February 2016

Republicans advance ban on Internet rate regulation

Republicans advanced a bill meant to prevent the Federal Communications Commission from regulating the rates charged for Internet service. The House Commerce Committee’s subcommittee on communications passed the bill over objections from Democrats, who said it could have overly broad implications because “rate regulation” is not defined. The subcommittee rejected two Democratic amendments aimed at limiting the reach of the bill. Subcommittee Chairman Greg Walden (R-OR) and other Republicans said negotiators seemed close to reaching an agreement before Democrats walked away at the last minute. Ranking Member Anna Eshoo (D-CA), however, said she was never offered a proposal that had a clear definition of rate regulation.

The Truth Behind the Doublespeak on Internet Rate Regulation

[Commentary] Republicans on the House Subcommittee on Communications and Technology are marking up that says little more than this: The Federal Communications Commission may not regulate the rates companies like Comcast charge for broadband Internet access. Why is the legislation needed when there’s practically no difference in the top-level talking points that both sides use when it comes to letting market forces determine the rates most Internet users pay for access.

But there are meaningful differences between the rate-setting power Congress granted the FCC in the laws on the books today—which are the same ones that Chairman Wheeler and the FCC have already chosen not to use—and the consumer-protection authority the newly proposed bill endangers. The FCC’s 2015 Open Internet Order treats broadband like a communications service as Congress always intended—instead of treating it like a website for regulatory purposes. Contrary to the fibs and fabrications some lobbyists and lawmakers favor, this is exactly the right dividing line. The FCC has no business (and no authority for) regulating Internet content, but it does have a congressional mandate to ensure we have world-class broadband communications networks. The FCC’s reclassification of broadband provides a deregulatory, flexible and technology-neutral framework: it preserves absolutely essential principles, like the guarantees of universal, affordable, reasonable and nondiscriminatory telecommunications services. But the bill under consideration now endangers those very same principles. It doesn’t just take rate setting off the table, or cement in a new statute what the FCC has already decided to do by forbearing from Sections 203 and 205. It would prevent the FCC from assessing entire categories of unfair broadband-provider practices.

[Wood is the policy director for the Free Press Action Fund]

Communications Subcommittee OKs Permanent Enhanced Transparency Waiver

The House Commerce Committee’s Communications Subcommittee approved the Small Business Broadband Deployment Act, a bill that would grant a permanent waiver to smaller Internet service providers from the Federal Communications Commission's enhanced transparency requirements under network neutrality rules. The bill defines "small businesses" eligible for the permanent waiver as 1,500 or fewer employees and 500,000 or fewer subscribers. A Democratic amendment was offered, then withdrawn, that would have sunset the waiver after five years and set the cut-off at 100,000. Another amendment with a five-year sunset and 200,000 subs cut-off was not offered.

FCC Chairman Wheeler’s Remarks on 20th Anniversary of Telecommunications Act

The Telecommunications Act was a watershed between the era of analog networks and the competition-enhancing, converged networks of the digital era. Its authors had a vision – the vision to enact flexible and sensible policies that would allow the bounteous effects of digital networks to benefit consumers by stimulating competition and innovation. But of course, neither the authors of the legislation – nor anyone – could have imagined the digital communications cornucopia that was to come.

The Telecom Act of 1996 was a kick in the pants that focused and accelerated trends that had been percolating in both Congressional and [Federal Communications Commission] policy debates. With the Telecom Act, Congress moved from percolating to a full boil the shift in policy to encourage competition rather than the previous micromanagement of scarcity. Then that boiling bucket was passed to [FCC Chairman] Reed Hundt and the FCC to implement; a prodigious lift that led to 84 implementation decisions in 18 months. Those of us today who operate in the shadow of the leaders who charted this new course have the incredible privilege of continuing what they started…. The Telecom Act recognized the importance of access to networks. The establishment of E-Rate connected America’s schools and libraries to the Internet. The creation of a Universal Service Fund to support access by those in high-cost areas as well as low-income Americans established as national policy that broadband connectivity must reach all Americans, regardless of location, means, or ability. And, of course, access to networks goes hand-in-hand with access on open, fast and fair networks.

Broadband industry groups fire salvo in FCC privacy fight

Some of Washington’s most prominent trade groups want to dissuade Federal Communications Commission Chairman Tom Wheeler from significantly changing the way data privacy issues are regulated for Internet service providers. The groups argue that any new privacy regime for Internet providers stemming network neutrality rules should reflect the way the Federal Trade Commission currently handles privacy concerns. The seven signatories to the letter — CTIA, USTelecom, the Consumer Technology Association, the National Cable and Telecommunications Association, the American Cable Association, the Competitive Carrier Association and the Internet Commerce Coalition — are trade groups that represent a wide range of companies, from cable providers like Comcast to wireless providers like AT&T, with a stake in the broadband business.

“If the courts determine that the FCC has authority to regulate broadband privacy, we encourage you to develop a framework that offers consumers robust privacy protection, while at the same time allowing broadband providers to continue to innovate and compete,” they said in the letter. “We recommend that any FCC framework be consistent with the successful FTC approach, which is grounded on prohibiting unfairness and deception.” They say in the letter that keeping an FCC proposal consistent with the FTC’s standards “will continue to provide Internet service providers with the flexibility to update their practices in ways that meet the evolving privacy and data security needs of their customers and ensure they can provide their customers new products and customized services.” “Rules dictating specific methods quickly become out of date and out of step with constantly changing technology, and will only hamper innovation and harm consumers." They argue that having similar regulations for Internet providers, which are governed under the new rules by the FCC, and other tech companies that answer to the FTC, would prevent consumers from having to deal with a complex system involving two regulators.

A data-driven argument on why Marc Andreessen is wrong about Free Basics

[Commentary] Facebook board member Marc Andreessen recently tweeted, “Denying world's poorest free partial Internet connectivity when today they have none, for ideological reasons, strikes me as morally wrong.” This reaction was a surprise because it resorts to a moralistic line of argument rather than one that is based on data or any sort of empirical evidence. So what do the facts say?

Well, for starters, Free Basics is not some hypothetical proposal that can be judged only in theory — in India itself, it has been running for over a year! Given that Free Basics has already has a decent run, any argument that posits that it is beneficial in some meaningful manner should have been clearly demonstrable by now. Although India added 100 million Internet users in the last year, approximately 1 million use Facebook’s Free Basic. If Free Basics was even remotely the silver bullet that Marc and his acolytes claim it to be, it is difficult to dispute that this number should have already been higher by an order of magnitude. And the target audience of Free Basics was not India’s poorest who have never come online but far more so, students and millennials to whom the hook was about surfing for free.

[Sumanth Raghavendra is an entrepreneur at pitchdeck.io]

Analysis

Bringing Broadband to Digital Deserts

To go from desert to oasis, you need water. To go from digital desert to oasis of opportunity, we need broadband.

For nearly 35 years, the Benton Foundation has promoted policy solutions to make sure all Americans have equitable and affordable access to information infrastructure and to information and knowledge essential to community and individual development.

How National Media Failed Flint

The water crisis in Flint, Michigan, in which thousands of residents have been exposed to everything from cancer-causing chemicals to lead in their drinking water, dates back nearly two years. But the unfolding story had received scant coverage from the national media until recently, when Gov Rick Snyder (R-MI) declared a state of emergency for Flint. Why did it take so long for major national outlets to focus closely on the story, even as local outlets had been doggedly covering it for well over a year?

In interviews with Media Matters, media observers and the journalists who have been covering the story in Michigan cite a wide range of factors, including continued newsroom cutbacks, the complexities of a story that combines government mismanagement with detailed science, and competition from the presidential primary campaign, breaking news events, and click-bait like celebrity gossip.

Amid federal gridlock, lobbying rises in the states

More companies and interest groups are pushing their agendas in the states, according to a Center for Public Integrity analysis of five years of lobbyist registrations from all 50 states gathered by the National Institute on Money in State Politics. Since 2010, the number of entities with either in-house lobbyists or part-time hired guns working in the states has grown more than 10 percent.

That means, on average, every state lawmaker was outnumbered by six companies, trade associations, unions or other groups angling for their attention from 2010 to 2014. And more special interests are finding it worthwhile to scatter lobbyists in dozens of states — or even all 50 — to make sure increasingly important state legislatures don’t leave them out of the picture.

Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. If agents can seize everything at the first stage, and see all the data at the second stage, what stops agents from accessing and using a target’s entire digital world every time a computer warrant is executed? This article argues that the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data seized during the execution of computer warrants. After reviewing the various ways courts could limit the execution of computer warrants, it concludes that use restrictions are the best way to restore the traditional limits on searches for the new technological environment of computers. The article then revisits the author’s earlier conclusion that courts can achieve that result by eliminating the plain view exception for computer searches. While still a possible approach, eliminating the plain view exception raises underappreciated doctrinal puzzles.

The better path is for courts to rule that the Fourth Amendment imposes use restrictions on nonresponsive data because use transforms the underlying seizure from a justified and modest step needed to execute the warrant to an unjustified and invasive seizure unrelated to the warrant itself. Agents can overseize at the first stage because they must, and they can search through all the data for the responsive files because there is no other way to ensure that they find all the evidence described in the warrant. But when agents use nonresponsive data, the seizure of that data is no longer justified by the warrant and ordinarily is no longer reasonable. This approach also allows courts to impose an exigent circumstances exception to the use restriction: When a review of nonresponsive files reveals exigent circumstances, agents can use the nonresponsive files to address the exigency.