Gus Hurwitz

[Commentary] It is nice that network neutrality proponents are finally embracing the arguments that those of us who have been critical of the FCC’s Open Internet efforts have been making for nearly the past decade. This newfound concurrence, however, does raise interesting questions about how the inevitable legal challenge to the Restoring Internet Freedom Order (RIFO) will proceed.

[Commentary] One of the most unfortunate aspects of the net neutrality debate is its ability to bring out the worst sides of otherwise good people. Many friendships have been lost to the issue; many good people on both sides of the issue can no longer engage civilly with their counterparts on the other side. This is what came to mind when I saw Federal Communications Commission Commissioner Mignon Clyburn’s “fact sheet” that purports to show how FCC Chairman Ajit Pai has reversed his positions on the Open Internet Order between 2014 and today. Clyburn’s fact sheet is misleading, giving a false impression that the chairman’s views have changed in ways that they have not.

[Hurwitzis an assistant professor at the University of Nebraska College of Law]

[Commentary] Needless to say, regularly rewriting the rules that govern one of the largest industries in the economy isn’t a good way to run an industry. Unfortunately, it’s not within the current commission’s power to adopt rules that will likely constrain a future commission. But by returning to a more neutral baseline approach to internet regulation, Chairman Pai is creating an opportunity for Congress or the courts to step in and put an end to the destructive, yet largely meaningless, generational fight over “net neutrality.”...

The most important thing that Chairman Pai’s proposal does is to tidy up the net neutrality mess and deliver it to Congress. His proposal reverses the most extreme aspects of the 2015 rules — Title II reclassification in particular — and leaves the direction of substantive rules open. He has reestablished what has long been considered the neutral baseline of agency authority. Now it’s Congress’s turn.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] No one likes unsolicited commercial phone calls. It doesn’t matter much whether they are automated calls with prerecorded messages or merely calls from unrecognized numbers or whether they come during dinner or in the middle of the work day. If you are like most people nowadays, you screen all calls, never answering the phone except for numbers you recognize or when you are expecting a call.

The Federal Communications Commission (FCC) has been actively working to rein in this scourge, revising its implementation of the Telephone Consumer Protection Act (TCPA) in 2015 and working to address problems relating to robocalls with an ongoing rulemaking. These efforts are largely laudable – but they are also too limited. In particular, they place too much emphasis on those making these calls and too little on how the architecture of the phone network makes these calls possible. As a result, they simultaneously are only incomplete solutions to stopping the problem of “bad calls” and also unduly burden “good calls,” subjecting companies with legitimate need to call consumers that want to play by the rules in making those calls to substantial liability for simple and honest mistakes. A better approach would be to update the telephone network from its current 1980s protocols to give consumers greater control over who can call them.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] The United States has a long history of being a technology leader, developing ideas and technologies embraced by people and countries around the world. The United States also has a long history of being a moral leader — of doing what is right even when not in its narrow self-interest. When it comes to encryption, it has done neither. It has followed extreme views on the morality of encryption that other countries, unsurprisingly, have been reluctant to embrace. And now, those countries are leading with their own laws that jeopardize all the moral good that strong encryption can bring.

America needs to take a seat at that table, recognize that the moral absolutism of encryption exceptionalists conflicts both with our own needs and the fundamental values of most of our partners around the world, and find a way to lead again.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] Cybersecurity presents one of the greatest and fastest growing threats facing our country — and finding ways to address these threats is one of the most pressing concerns of the new administration. The new administration will have the ability to rethink the design of our country’s various cybersecurity institutions. Today, responsibility and authority for cybersecurity-related issues are spread across various fiefdoms throughout the government. An effective national cybersecurity policy requires far greater coordination. The cybersecurity efforts currently spread throughout the government should be channeled through an OIRA-like entity to ensure effectiveness, coordination, and efficiency.

As President-Elect Trump continues to form his government, he, and those who will make up that government, should seize this opportunity to restructure our approach to cybersecurity. Our approach to date does not and cannot work — but the transition that is now under way affords the opportunity for much-needed new thinking and real change.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] Attacks are an almost inevitable consequence of giving consumers near-commercial grade internet connections with the expectation that they will effectively maintain their security. But here’s the thing: most consumers don’t need or particularly want such an internet connection. I know I surely don’t.

[Gus Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] The Federal Communications Commission (FCC) is the embodiment of the Progressive and New Deal era ideals from which it was born. Under Tom Wheeler’s leadership, it has consistently championed progressive policies supported and advanced by progressive advocates and interests. At each turn, the commission wastes no opportunity to congratulate itself for the good work that it is doing on behalf of the American public — on behalf of the entire American public, including those most in need of assistance from the government. It is surprising, then, that many of the commission’s flagship policy efforts are, in fact, regressive, benefiting those who already have ample access to telecommunications and media resources at the expense of those lacking such access. Cases in point: set-top boxes, network neutrality, and broadband privacy.

[Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] Recently, news broke that Aereo has reframed its legal strategy to embrace just this argument, now arguing that it is a cable system and that it can avail itself of the Section 111 compulsory license to gain access to broadcast television content. The key question: Is Aereo a cable system?

At the end of the day, we should be thankful for Aereo’s willingness to put these issues front and center. Unlike their previous legal theory, where they tried to drive a freight train of copyright violations through the eye of the Cablevision needle, they are now forcing our attention to the key legal and policy issues. There are good arguments on both sides of the Aereo-as-cable question.

In either event, judicial resolution of the issue would increase certainty within the industry in a way that the Supreme Court’s Aereo decision did not. Even more important, a decision -- whichever way it goes -- would helpfully frame the issue for ultimate resolution by Congress.

If there’s one thing that the Aereo saga makes clear, it’s that current video regulations are a poor fit for the Internet age; Aereo’s continuing efforts can only help get the much-needed involvement of Congress in updating these out-of-date regulations.

[Hurwitz is an assistant professor at the University of Nebraska College of Law]

[Commentary] Even though it reaches the correct outcome, the Supreme Court’s Aereo opinion is staggeringly, and confusingly, bad. The court’s “looks like cable” analysis fails to address the difficult questions about the meaning of the Copyright Act; rather, it has added to existing confusion.

The most perplexing and problematic aspect of the Supreme Court’s opinion is that it never uses the term “primary transmission.” A primary transmission is a signal broadcast to the public that is later retransmitted by another service (a secondary transmission). Section 111(f) of the Copyright Act defines this term, and notes expressly that any streams broadcast by a broadcast television station are primary transmissions. The Act then defines “secondary transmission” as the “further transmitting of a primary transmission simultaneously with the primary transmission.”

This is precisely what Aereo was doing: it made a secondary transmission of a primary transmission. The implication -- supported by one of the most basic principles of statutory construction -- is that any secondary transmission is in fact a copyright violation unless it falls into one of the listed exceptions. In their briefs, the parties argue, obliquely, over whether Aereo is making a secondary transmission.

Regardless of their purpose, the parties’ briefs would have made the Justices sufficiently aware of Section 111’s framework to find answers to their questions there.

[Hurwitz is an assistant professor at the University of Nebraska College of Law]