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  2. July 2017

July 2017

The People Speak

The people’s verdict is in. A slew of recent polls make clear that most Americans, nearly 80%, support keeping the network neutrality rules that are the foundation of an open internet. These are the rules passed by the Federal Communications Commission in 2015, under the leadership of then-chairman Tom Wheeler, that keep the big Internet Service Providers (ISPs) like Comcast, AT&T, and Verizon from determining your internet experience, because they’d rather do that themselves than let you do it. Net neutrality rules prohibit blocking or throttling content. And they keep ISPs from favoring their affiliates, corporate friends, and those who can afford sky-high broadband prices with fast lanes on the net, while the rest of us are told to travel in the slow lane.

How Title II Harms Consumers and Innovators

The Federal Communications Commission’s 2015 Open Internet Order follows years of advocacy to implement network neutrality rules, which appears to contravene Congress’ intention that the internet be free of regulation and the people’s will for a free market for broadband. The application of the Title II regulatory framework to the internet has harmed consumers and innovators. While proponents claim they want competition in the broadband market, the objective of Title II is to create a system of government-owned broadband networks under FCC control and to significantly reduce, if not eliminate, private-sector provision.

Smaller Manufacturers Take Aim at Title II

A group of small and mid-sized manufacturers of broadband network products has told the Federal Communications Commission to roll back Title II, just one in a wave of comments coming in to the FCC by July 17, the deadline for initial comments in FCC Chairman Ajit Pai's net neutrality proposal. The makers of modems and routers, switching equipment and semiconductors—which included Blonder Tongue Labs, FiberSource, Infinera and more than a dozen others—say their input should get "special weight" since the D.C. appeals court that has principal jurisdiction over FCC issues has said those who sell goods and services have an "incentive to make a completely unbiased judgment on the matter." Their judgment, they told the FCC, is that there is a "serious and substantial risk" that continuing to regulate broadband under Title II "will have a negative impact on the economic well-being of the numerous small and medium size companies that make hardware and software used to provide Internet services."

Rate Regulation By Any Other Name

[Commentary] At bottom, network neutrality is nothing more than good old-fashioned rate regulation. Accordingly, if you are going to impose rate regulation, then Title II prescribes certain rules you must adhere to in order to ensure that the regulated firms’ Fifth Amendment due process rights are not violated....At stake...is whether an administrative agency should be permitted to re-write the law—especially when it does so simply to fit a political agenda. According to the D.C. Circuit in United States Telecom v. FCC, the answer appears to be “yes.” Citing the Supreme Court’s seminal case in Brand X, the D.C. Circuit found in USTelecom that the FCC had wide—nearly unbounded—latitude to interpret the Communications Act and not only upheld the agency’s decision to reclassify but also upheld the agency’s ability to “tailor” how it chose to implement Title II. In so doing, the D.C. Circuit—rather by design or by omission—has taken Chevron deference to the extreme.

USTelecom has greatly expanded the commission’s authority to set the rates, terms and conditions of private actors well beyond its statutory mandate. Accordingly, the statutory construct of “Title II” now has no meaning; it is some bizarre legal hybrid that the FCC has made up and the D.C. Circuit has sanctioned. For those who care deeply about due process and the rule of law, the precedent set by the D.C. Circuit in USTelecom is deeply troubling and is a case that we will likely have to deal with its aftermath for years to come.

[Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]

Outgoing Ethics Chief: US Is ‘Close to a Laughingstock’

Actions by President Trump and his administration have created a historic ethics crisis, the departing head of the Office of Government Ethics said. He called for major changes in federal law to expand the power and reach of the oversight office and combat the threat. Walter M. Shaub Jr., who is resigning as the federal government’s top ethics watchdog on July 18, said the Trump administration had flouted or directly challenged long-accepted norms in a way that threatened to undermine the United States’ ethical standards, which have been admired around the world.

“It’s hard for the United States to pursue international anticorruption and ethics initiatives when we’re not even keeping our own side of the street clean. It affects our credibility,” Shaub said in a two-hour interview this past weekend — a weekend Mr. Trump let the world know he was spending at a family-owned golf club that was being paid to host the U.S. Women’s Open tournament. “I think we are pretty close to a laughingstock at this point.” Shaub called for nearly a dozen legal changes to strengthen the federal ethics system: changes that, in many cases, he had not considered necessary before Mr. Trump’s election. Every other president since the 1970s, Republican or Democrat, worked closely with the ethics office, he said.

US to Create Independent Military Cyber Command

After months of delay, the Trump Administration is finalizing plans to revamp the nation's military command for defensive and offensive cyber operations in hopes of intensifying America's ability to wage cyberwar against the Islamic State group and other foes, according to US officials. Under the plans, US Cyber Command would eventually be split off from the intelligence-focused National Security Agency. Details are still being worked out, but officials say they expect a decision and announcement in the coming weeks. The officials weren't authorized to speak publicly on the matter so requested anonymity. The goal, they said, is to give US Cyber Command more autonomy, freeing it from any constraints that stem from working alongside the NSA, which is responsible for monitoring and collecting telephone, internet and other intelligence data from around the world - a responsibility that can sometimes clash with military operations against enemy forces.

Sinclair taking perilous political path with Boris Epshteyn

[Commentary] I ended last week’s column on the hope that Baltimore-based Sinclair would use its clout as the nation’s largest station group to do better journalism, not yield to the temptation of becoming more partisan on behalf of President Donald Trump. On July 10, Sinclair confirmed to Politico that it was adding air time for Boris Epshteyn, the former Trump campaign adviser on messaging and White House aide who now serves as the company’s chief political analyst.

Epshteyn’s commentaries will now appear eight or nine times a week on all stations, Scott Livingston, Sinclair’s vice president of news, told The Sun. They had previously run three times week on a must-run basis. So much for high hopes as to which way Sinclair is headed.

To battle hackers, IBM wants to encrypt the world

IBM said that it has achieved a breakthrough in security technology that will allow every business, from banks to retailers to travel-booking companies, to encrypt their customer data on a massive scale — turning most, if not all, of their digital information into gibberish that is illegible to thieves with its new mainframe.

“The last generation of mainframes did encryption very well and very fast, but not in bulk,” said Ross Mauri, general manager of IBM's mainframe business. Mauri estimates that only 4 percent of data stolen since 2013 was ever encrypted. As the number of data breaches affecting US entities steadily grows — resulting in the leakage every year of millions of people's personal information — IBM argues that universal encryption could be the answer to what has become an epidemic of hacking.

Spreading fake news becomes standard practice for governments across the world

Campaigns to manipulate public opinion through false or misleading social media postings have become standard political practice across much of the world, with information ministries, specialized military units and political operatives shaping the flow of information in dozens of countries, said researchers from Oxford University’s Computational Propaganda Research Project.

These propaganda efforts exploit every social media platform — Facebook, Twitter, Instagram and beyond — and rely on human users and computerized “bots” that can dramatically amplify the power of disinformation campaigns by automating the process of preparing and delivering posts. Bots interact with human users and also with other bots. Though most social media platforms are designed and run by corporations based the United States, the platforms are infiltrated almost immediately upon their release to the public by a range of international actors skilled at using information to advance political agendas, within their own countries and beyond, said the researchers.

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