July 2017

The European Union’s top court is set to decide whether the bloc’s “right to be forgotten” policy stretches beyond Europe’s borders, a test of how far national laws can—or should—stretch when regulating cyberspace. The case stems from France, where the highest administrative court on July 19 asked the EU’s Court of Justice to weigh in on a dispute between Alphabet's Google and France’s privacy regulator over how broadly to apply the right, which allows EU residents to ask search engines to remove some links from searches for their own names.

At issue: Can France force Google to apply it not just to searches in Europe, but anywhere in the world? The case will set a precedent for how far EU regulators can go in enforcing the bloc’s strict new privacy law. It will also help define Europe’s position on clashes between governments over how to regulate everything that happens on the internet—from political debate to online commerce. France’s regulator says enforcement of some fundamental rights—like personal privacy—is too easily circumvented on the borderless internet, and so must be implemented everywhere. Google argues that allowing any one country to apply its rules globally risks upsetting international law and, when it comes to content, creates a global censorship race among autocrats.

[Commentary] The General Conduct standard and the advisory opinion process ended what Mercatus Center scholar Adam Thierer has described as the “permissionless innovation” standard that has governed the Internet ecosystem since at least 1996, when Congress passed a law declaring the policy of the US to leave the Internet “unfettered by Federal or State regulation.” The Federal Communications Commission’s wide-ranging, 400-page order instead opted for precisely the opposite, demanding that Internet service providers and their immediate business partners apply for permission for any improvement to the network—permission that wasn’t permission at all, and which might never actually arrive. These needless and dangerous innovation-killers, in addition to the other legal and economic problems caused by the hastily-crafted 2015 Open Internet order, justify FCC Chairman Ajit Pai’s proposal to reverse course and return ISPs to full participation in the Internet ecosystem, where they operated without violating even a strict definition of “net neutrality” for twenty years.

Neutrality was never seriously at risk, nor is it now. But if it is, legislation proposed by Republicans before the FCC swallowed the bitter public utility bill remains the only viable solution, if only to avoid another decade of see-sawing decisions. Chairman Pai is right to be undoing the damage done as quickly as possible.

[Larry Downes is the Project Director at Georgetown Center for Business and Public Policy.]

Sealed law enforcement requests to track Americans without a warrant through cellphone location records or Internet activity grew sevenfold in the past three years in the District, new information released by a federal judge shows. Details about the growth come as the US Supreme Court weighs whether to rein in such rapidly expanding demands. Legal experts said the disclosure appears to mark a first, and that neither the Justice Department nor private companies have previously made public such specific data about how often law enforcement agencies seek those court orders. The summary data gave counts of requests by year from 2008 through 2016 made in criminal cases handled by the Justice Department or US attorney’s office for the District. Details about each individual case, such as the name of a suspect or what records were sought, were not disclosed.

The requests were made under a 1986 statute that enables law enforcement agencies to obtain court orders requiring ­communication service providers to turn over records about individual customers. The orders do not apply to information about telephone calls, such as the time, date, duration and numbers dialed, which can be obtained in other ways. Instead, the requests seek individuals’ Internet connection records or cellphone tower records. Those records exclude the content of communications but can be highly valuable to investigators seeking to establish a history or pattern of movement, conduct or relationships. The information requests can include Internet browsing logs and activity; the time, date, size, sender and recipient of email, instant or social media messages, or other transaction records; as well as computer identification numbers and information about websites that a user accessed.