June 2016

Foreigners traveling to the United States without a visa would be asked to provide the government with their social media handles under a new proposal from the US Customs and Border Protection. The optional question on arrival and departure forms would ask about a traveler’s “social media identifier," but not passwords. People could leave it blank.

The extra information would be used for vetting and contact information, according to the proposal. “Collecting social media data will enhance the existing investigative process and provide [the Department of Homeland Security] greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case,” according to the proposal. The proposed change was published in the Federal Register, giving the public 60 days to comment. The change would apply to arrival and departure forms that most foreigners traveling to the United States without a visa must fill out. The change would also apply to immigrants traveling through the visa waiver program, which was recently updated after terror attacks last year in Paris. The visa waiver program allows citizens from 38 countries to travel to the United States for business or vacation for up to 90 days without first getting a visa.

[Commentary] The Open Internet Order (OIO) has only been in effect for a year, so it is too soon to fully evaluate its effects, but it is not too soon to begin collecting data and analyzing results. The DC Circuit’s charitable (to the Federal Communications Commission and the Administration) opinion means the OIO is going to be with us for the foreseeable future, so we will want to know what effects the order is actually producing. The OIO is clearly making an impact in the following four areas:

Disclosure: One of the first consequences of the order was the introduction of a performance label devised by the FCC’s Consumer Advisory Committee. This label is meant to be an FCC-sanctioned safe harbor for Internet service providers to satisfy the OIO’s disclosure requirement, but it provides little in the way of useful information.

Privacy: At the time that the Title II privacy law was actually written, the only networks that existed in its scope were telephone networks. Since those networks have a totally different structure than the Internet, the legacy privacy law effectively governed a closed system.

Business Broadband: The monopoly telephone network operator was required to offer data services to businesses at essentially any location for a set price. At one time, data services were simply a part of the monopoly, so this requirement arguably made sense. The FCC wants to impose this requirement on ISPs, but not on competitive firms that offer the same service in limited territories.

New television: While the FCC’s proposed set-top box rules are not a direct consequence of the OIO, they’re emboldened by the spirit that animated the OIO: the desire to provide benefits to over-the-top “edge” services at the expense of the firms who invest in networks. There is a direct philosophical connection between the OIO and the data volume price controls the FCC required in the Charter/Time Warner Cable merger and which may be coming to your network provider in the near future.

[Bennett is a researcher, and coinventor of Wi-Fi and the modern Ethernet architecture.]

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB’s attention to the privacy and civil liberties “of United States persons.”

Internal disagreements over the move were highlighted in the Committee report published recently to accompany the text of the bill, which was reported out of Committee on June 5. “While the PCLOB already focuses primarily on US persons, it is not mandated to do so exclusively,” wrote Sens Martin Heinrich (D-NM) and Mazie Hirono (D-HI) in dissenting remarks appended to the report. “Limiting the PCLOB’s mandate to only US persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ US or non-US status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA’s Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process,” they wrote.