EU Privacy Law and Trump's Internet-Closure Flaw

You’re reading the Benton Foundation’s Weekly Round-up, a recap of the biggest (or most overlooked) telecommunications stories of the week. The round-up is delivered via e-mail each Friday; to get your own copy, subscribe at www.benton.org/user/register

Robbie's Round-Up (December 14-18, 2015)

Although the $1.1 trillion spending bill grabbed most of the headlines this week, as we go to press, it is still being considered by Congress. We will report on the bill and the impact it will have on communications policy early next week.

Onto this week’s telecommunications and media policy news:

EU Reaches Agreement on Privacy Law
European Union officials reached agreement December 15 on a pan-European digital privacy law, creating a strict new legal framework that will have ripple effects globally on how companies can use individuals’ personal information. After nearly four years of lobbying and discussions, negotiators agreed on the final text of the EU-wide bill, which will replace a patchwork of 28 different sets of national privacy laws, and boost the bloc’s penalties to potentially billions of euros.

The law is expected to tighten rules for getting online consent and create new responsibilities for cloud-service companies. It is also expected to tightly restrict how analytics and advertising companies can re-use data harvested from individuals, for example after they purchased a product or signed up for a service.

Under the law, fines would rise to a maximum of 4% of a company’s worldwide revenue.

Among the new policies:

• Allowing national watchdogs to issue fines, potentially totaling the equivalent of hundreds of millions of dollars, if companies misuse people’s online data, including obtaining information without people’s consent.
• Enshrining the so-called right to be forgotten into European law, giving people in the region the right to ask that companies remove data about them that is either no longer relevant or out of date.
• Requiring companies to inform national regulators within three days of any reported data breach, a proposal that goes significantly further than what is demanded by American authorities.
• Obliging anyone under 16 to obtain parental consent before using popular services like Facebook, Snapchat and Instagram, unless any national government lowers the age limit to 13.
• Extending the new rules to any company that has customers in the region, even if the company is based outside the European Union.

Privacy advocates hope Europe will become a model for the rest of the word, while some tech executives say the EU’s new rules will hobble their businesses.

Some say the combination of stiff penalties and ambiguously worded provisions in the new law raises daunting prospects for companies operating in Europe. “Legal uncertainty and big fines are a toxic cocktail,“ said Allan Sørensen, a board member for IAB Europe, an advertising trade group.

That “toxic cocktail” also highlights the difference in the approach to privacy between Europe and the US. “Europe’s approach to privacy is much stronger than in the United States,” said Peter Church, a technology lawyer at Linklaters in London. “There’s a fundamental difference in culture when it comes to privacy.”

The text must be approved by the European Parliament and EU governments before going into effect in two years’ time.

GOP Debate
‘Closing that Internet up’
The Republican presidential candidates debated yet again on December 15. Donald Trump used the opportunity to double down on his proposal to reduce the influence of ISIS by “closing that Internet up in some way.” When asked specifically at Tuesday’s debate if he supported closing or shutting down access to parts of the Internet, he answered, "I would certainly be open to closing areas where we are at war with somebody...I sure as hell don't want to let people who want to kill us and kill our nation use our Internet. Yes sir, I am."

Brian Fung, writing for the Washington Post, highlighted the dangers of public figures displaying ignorance as to how the Internet works. He wrote:

“Beyond all the technical reasons why shutting down the Internet would be rather difficult, Trump's remarks reflect an overwhelming sense that the Internet is somehow America's property, that it is ‘ours’ because, you know, ‘it was our idea.’...Even if we give Trump the benefit of the doubt and assume he simply meant ‘the parts of the Internet that Americans happen to frequent,’ the notion that those parts of the Web belong to the United States leads to a more favorable view of decidedly controversial policies, such as that the government can or should have unrestricted access to your digital data. If Trump meant something more -- that the Internet is a magical gift America bestowed on the rest of the world that can be taken away at will -- it speaks to a worldview that attributes vast, imaginary powers to the Oval Office. And leadership is as much about understanding boundaries as it is about breaking them.”

NSA Surveillance
Tuesday’s debate also saw a clash between Senators Marco Rubio (R-FL) and Ted Cruz (R-TX) over their opposing votes on the USA Freedom Act. Sen Rubio accused Sen Cruz of hampering intelligence agencies by supporting the USA Freedom Act, legislation which ended the NSA’s vast collection of millions of US phone records. (You can read a summary of the USA Freedom Act in Nov 30’s version of Robbie’s Round-Up here.) Sen Cruz accused Sen Rubio of lying, saying that the old NSA dragnet covered only 20-30% of call records, whereas the USA Freedom Act will actually allow the agency to collect “nearly 100%” of records. But who is right? Sen Cruz, according to top intelligence officials. They said that the overall volume of call detail records subject to query pursuant to court order is greater under the USA Freedom Act. Basically, the USA Freedom Act opened up the ability of the NSA to obtain cell phone records (rather than just landline), so while the NSA now has fewer records in its direct possession, the universe of phone call logs it can access is actually larger.

Quick Bits

• House passes bill on combating terrorists on social media (The Hill)
• GOP Senators, Including Sen Rubio, Grill Chairman Wheeler on Muni Broadband Efforts (Broadcasting & Cable)
• States Have Jurisdiction Over ISP-Bound Traffic Says 3rd Circuit (Davis Wright Tremaine)
• FCC Order on Open Internet Small Business Exemption Extension (Benton Write-Up)

Events Calendar for the Week of Dec 21-25, 2015
Please, take a break from telecom events. We are.

ICYMI From Benton

• New research: Digital Inclusion Project: Findings and Implications, A Canadian Perspective
• John Windhausen’s “Time for the FCC to Modernize the Rural Health Care Program”