May 2017

Fight for the Future is asking the Federal Communications Commission and state attorneys general to investigate what it says is potential fraud related to the filing of comments in the FCC's network neutrality docket.

Campaign Director Evan Greer said the group has been collecting evidence that "a large number of anti-net neutrality comments have been submitted to the FCC using real people's names and addresses without their knowledge or permission." Greer argues that the FCC needs to investigate that potential fraud before it votes on its plan to roll back Title II classification of ISPs, which is scheduled for the May 18 public meeting. Greer cited reports of people confirming that they knew nothing about the anti-net neutrality comments filed under their names and said Fight for the Future had interviewed a dozen people itself who said that was the case.

A record 46 million seniors live in the United States today, and older Americans – those age 65 and older – now account for 15% of the overall U.S. population. Pew Research Center surveys find that seniors are moving towards more digitally connected lives.

Around four-in-ten (42%) adults ages 65 and older now report owning smartphones, up from just 18% in 2013. Internet use and home broadband adoption among this group have also risen substantially. Today, 67% of seniors use the internet – a 55-percentage-point increase in just under two decades. And for the first time, half of older Americans now have broadband at home. Yet despite these gains, many seniors remain largely disconnected from the digital revolution. One-third of adults ages 65 and older say they never use the internet, and roughly half (49%) say they do not have home broadband services. Meanwhile, even with their recent gains, the proportion of seniors who say they own smartphones is 42 percentage points lower than those ages 18 to 64. And as is true for the population as a whole, there are also substantial differences in technology adoption within the older adult population based on factors such as age, household income and educational attainment.

Could reporters really go to jail for publishing leaks? The answer is probably not. But we don’t really know with 100 percent certainty because the federal government has never tried to jail reporters under such circumstances before.

The wild card is a federal law called the Espionage Act of 1917. The federal law was created to prosecute spies, but it is so broadly worded that some fear it could be used against journalists. The law makes it a felony for an unauthorized person to receive or “communicate” “national defense” information to others with reason to believe that it could harm the United States or assist a foreign enemy. The punishment ranges from a $10,000 fine to imprisonment. The law has never been used against a journalist. Some legal experts argue that the law, if applied to journalists, is unconstitutional because it is vague, overbroad, and allows censorship of the press for lawfully obtained, critically important information. Already, the Trump administration’s Department of Justice is weighing filing Espionage Act charges laws against members of the WikiLeaks organization for its 2010 leak of diplomatic cables and military documents as well as the website’s disclosure of the CIA’s cyber-tools, the Post reported in April.

The press relies heavily on the landmark Pentagon Papers case from 1971 in which the Supreme Court ruled that the government cannot block publication of classified federal documents without concrete evidence of immediate, irreparable harm, akin to publishing the location of US troops during war. The court rejected the Nixon administration’s request to stop the New York Times and Washington Post from reporting about secret documents revealing that the government knew the Vietnam War was fruitless. But three justices suggested that the Nixon administration could prosecute the Times and the Post for violating the Espionage Act by publishing classified documents. The Nixon administration, however, did not try to prosecute the newspapers. The two men who leaked the Pentagon Papers — including military analyst Daniel Ellsberg — were charged with a felony under the Espionage Act, but the case was thrown out by a Los Angeles judge due to misconduct by the Nixon administration.

[Commentary] Net neutrality advocates and opponents alike have demonstrated their steady investment in a specific outcome that juxtaposes regulation over no regulation. These deep seated divisions are played out among members of Congress, industry leaders, activists, and even academics. Given the tumultuous history of net neutrality at the Federal Communications Commission, the future of internet regulations will remain uncertain in the US. Today’s decisions will be vulnerable to challenges from a possible Democratic administration and potentially overturned if argued before the Supreme Court. Congress may be the only entity that can offer a more permanent solution to what is driving the debate – adherence to the principles of an open internet and the application of the appropriate legal authority. As the FCC works on its repeal, Congress should exercise leadership to identify a legislative solution that marries – rather than polarizes – these two perspectives to reach bipartisan agreement. Clearly, a congressional solution cloaked in partisanship will not be the starting place for such negotiations. Congress cannot remain gridlocked on this issue given their constituents’ reliance on the digital economy. Citizens are increasingly leveraging the internet and other new technologies for employment, entrepreneurship, health care, education, civic engagement, and other critical functions. Elected officials must start the negotiations in radical agreement on internet openness, given that the digital economy will continue to face broadband capacity challenges (i.e., spectrum and infrastructure concerns) as demand for services rises.

As such, Congress should delve into the question of legal authority conditioned not on emotion or political party, but on the most appropriate and sustainable framework for its application. Under this scenario, a bipartisan agreement could abandon Title II based on its outdated and perfunctory application to the online economy and focus on codifying the bright line rules through statute. A compromise might also include an additional bright line rule that offers consumers a formal means for complaint and adjudication at the Commission. Or FCC authority can perhaps be shared with the FTC: making one agency the cop on the beat over behavioral and commercial practices (FTC) and the other over technical misgivings and other consumer concerns (FCC).