April 2016

The Supreme Court approved a rule change that would let US judges issue search warrants for access to computers located in any jurisdiction despite opposition from civil liberties groups who say it will greatly expand the FBI's hacking authority.

Chief Justice John Roberts transmitted the rules to Congress, which will have until Dec. 1 to reject or modify the changes to the federal rules of criminal procedure. If Congress does not act, the rules would take effect automatically. Magistrate judges normally can order searches only within the jurisdiction of their court, which is typically limited to a few counties. The US Justice Department, which has pushed for the rule change since 2013, has described it as a minor modification needed to modernize the criminal code for the digital age, and has said it would not permit searches or seizures that are not already legal. Google and civil liberties groups such as the American Civil Liberties Union and Access Now contend the change would vastly expand the Federal Bureau of Investigation's ability to conduct mass hacks on computer networks. They say it also could run afoul of the U.S. Constitution's protections against unreasonable searches and seizures.

The Federal Communications Commission jumpstarted the process of protecting and advancing competition in the $45 billion market for business data services, also known as special access. The item adopted by the Commission seeks broad public comment on reforming and modernizing its rules based on four principles:

1. Competition is best, but where competition does not exist, market conditions must not be allowed to stifle the ability of business customers to innovate and compete
2. Technological neutrality should be at the core of any new regulatory framework.
3. Policies should remove barriers to the transition to new technologies.
4. Rules should be crafted to meet the needs of both today’s and tomorrow’s marketplace.

The item includes an Order resolving an investigation of existing special access tariffs filed by four major telecommunications companies, known as incumbent local exchange carriers (ILECs): AT&T, Verizon, CenturyLink and Frontier. The Order finds that certain terms and conditions of these tariffs were unjust and unreasonable, and had the effect of decreasing facilities-based competition and inhibiting the transition to new technologies. These companies will be required to withdraw the illegal terms of these tariffs and file new tariffs within 60 days of release of the Order. A Further Notice of Proposed Rulemaking seeks to replace the existing, fragmented and outdated rules with a new technology-neutral framework that classifies markets as either non-competitive or as competitive. Where competition is lacking, the Further Notice asks about the specific rules necessary to advance it.

By this Public Notice, the Public Safety and Homeland Security Bureau seeks comment on the ex parte presentation made by wireless providers AT&T, Sprint, T-Mobile, US Cellular, and Verizon, together with CTIA (collectively, “the carriers”), in which they announce a “Wireless Resiliency Cooperative Framework” described as “a voluntary initiative that will enhance coordination and communication to advance wireless service continuity and information sharing during and after emergencies and disasters.”

In their ex parte filing, the carriers detail a five prong approach to enhance industry coordination to “facilitate greater network resiliency and faster restoration of service” which they assert will “obviate the need for legislative action or inflexible rules that could have unintended consequences.” Specifically, the five prongs include: (1) providing for reasonable roaming under disaster arrangements when technically feasible; (2) fostering mutual aid during emergencies; (3) enhancing municipal preparedness and restoration; (4) increasing consumer readiness and preparation; and (5) improving public awareness and stakeholder communications on service and restoration status. Under each prong, the carriers provide specific actions that they will undertake designed to “enhance coordination among wireless carriers and all key stakeholders, improving information sharing and making wireless network resiliency more robust.