Op-Ed

[Commentary] The Federal Communications Commission’s 2015 open internet order has long been a posterchild for bad law and worse economics. It has been labeled an “economics-free zone” by the FCC’s own chief economist. The data on the results of its fool hard decision to proceed with Title II despite reams of expert warnings bears this out. FCC Chairman Ajit Pai deserves credit for revisiting the issue in an economically serious way and attempting to restore some semblance of order to a renegade regulatory agency.

[George S. Ford, Ph.D., is an economist specializing in technology issues at the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]

[Commentary] Right now, a bill is being rushed through the California state Legislature using the highly suspect “gut and amend” process. It would reorganize the Internet app and data ecosystem – which has created hundreds of thousands of jobs – without a single public hearing. At first glance, AB 375 seems reasonable. The author claims the bill is needed to restore President Obama era privacy protections repealed by President Trump. However, and this is a critical point, AB 375 does not “restore” President Obama’s longstanding privacy policy. It actually reverses that policy.

[Nancy Libin is co-chair of the Privacy and Information Governance Practice at Jenner & Block LLP and the former chief privacy officer at the U.S. Department of Justice.]

[Commentary] Congress must decide by the end of 2017 whether to renew the National Security Agency’s power to engage in surveillance of communications that transit switches and servers inside the United States using a secret court order. The intelligence community has revealed that over 100,000 targets were under such surveillance in 2016, for reasons well beyond terrorism. While the government may not single out Americans as targets, it may search the database for information about Americans who may be communication with foreigners. It did so more than 30,000 times in 2016.

While Congress should reform this “backdoor search” practice, it should not make the same mistake I made by focusing only on protecting the privacy of Americans. If it does, businesses may face a rude awakening when European courts again strike down transfers of personal data to the United States, threatening a half-trillion dollar transatlantic trading relationship. Reforming the NSA’s mass surveillance programs to focus more narrowly on terrorism and other security threats would do much to address these concerns. Protecting the privacy of foreign users of American internet services is not just good for business, it is good for everyone’s privacy – including Americans. The digital data, communications, and personal lives of Americans now transcend national boundaries. It turns out we are all in this together. In the digital age, the only way to protect the privacy of Americans is to protect the privacy of everyone.

[Tim Edgar was the first privacy officer for the White House, former ACLU attorney and current Professor at Brown University.]

[Commentary] It’s time to stop the regulatory foot-dragging and require the mobile phone industry to use its technology’s capabilities to deliver safety alerts with the same accuracy that delivers a taxi and the same functionality that delivers video. Immediately after the installation of the Trump Federal Communications Commission, the mobile carriers filed a petition to stop the implementation of the earlier decision on Wireless Emergency Alerts (WEA) improvements that were strongly advocated by the Center for Missing and Exploited Children as well as public safety managers across the country. The Trump FCC magnified the failure of the current system by not acting on the WEA improvements proposed last September. The new FCC majority even removed wireless alerts form the charter of the public safety and industry working group that made the original recommendations.

If the Obama FCC regulations and recommendations were in effect, geo-targeting could deliver the precise message to specific audiences; those messages could contain links to maps and other important information; and the ability to link with users would allow the collection of information from victims, providing a rapid triage among survivors and targeting the delivery of rescue and other services. Instead, in Houston, victims overloaded the 911 system and public safety officials had to resort to social media. The FCC must learn from what happened in Hurricane Harvey.

[Tom Wheeler is a visiting fellow with the Governance Studies, Center for Technology Innovation, and former Chairman to the FCC.]

[Commentary] Network neutrality is having a Gilda Radner moment. After years of debate, protests, name calling, and the like, technology is leaving net neutrality behind. Here are at least three indicators that technology is outsmarting net neutrality:

1. 5G will use network slicing, which enables multiple virtual networks on a common physical infrastructure. Each slice can be customized for specific applications, services, customers, etc. Network slicing means the end of treating all internet traffic the same — if that ever really happened — which was supposed be a core principle of net neutrality. 5G explicitly customizes the network to different types of traffic.
2. Netflix and other large edge providers are bypassing the internet. More specifically, they are building or leasing their own networks designed to their specific needs and leaving the public internet — the system of networks that only promise best efforts to deliver content — to their lesser rivals.
3. Mobile internet is leaving wireline internet in its dust in numbers of users and traffic. Mobile internet increasingly bypasses the World Wide Web because about 90% of customers’ mobile time is spent in apps, not the web. Apps are gatekeepers that direct customers only to resources that the app makers choose.

[Mark Jamison is the director and Gunter Professor of the Public Utility Research Center at the University of Florida’s Warrington College of Business. He served on the Trump FCC Transition Team.]

[Commentary] As one of the few remaining members of the Kennedy administration who participated in the 1962 Cuban missile crisis, I was an eyewitness to the crucial role that telecommunications played in averting nuclear disaster.

As chairman of the Federal Communications Commission at that time, we created a “hotline” with the Soviet Union in the belief that improved communications would help avoid conflicts between nations in the nuclear era. Today, telecommunications have improved in ways we could not have imagined. They are faster, stronger, clearer, more accessible and higher resolution. News on television, radio and the internet is far more comprehensive, multisourced and instantaneous. Some of those new technologies have undermined the very tools President John F. Kennedy needed to avert war. President Kennedy once gave me a top-secret assignment. The Russians had jammed the Voice of America. My job was to enlist eight American commercial radio stations whose signals reached Cuba to carry key messages from Voice of America to the Cuban people. Before confiding in the stations, I asked each station owner to swear that they would not share the information with their news division until the embargo was lifted. Every one of them agreed and kept their word, ultimately playing a useful role in averting nuclear war. Would broadcasters today be willing to do the same?

[Chicago attorney Newton N. Minow was chairman of the Federal Communications Commission from 1961 to 1963]

(Aug 27)

[Commentary] Since the Justice Department named a special investigator, Robert Mueller, to handle the government’s official inquiry into Russian meddling in the U.S. election, the weight of public expectation has largely fallen on his shoulders. While the two congressional panels, the Senate and House intelligence committees, continue to hold hearings and question witnesses, both are led by members of a party that is, with the exception of Charlottesville, skittish about criticizing the president. The two intelligence committees should act as if their investigations will be the final (and possibly the only) ones — because they may be.

A central role for Congress is the only real way to guarantee a full report, with conclusions and recommendations, for the American people. I oversaw a similarly complex and politically fraught inquiry as co-chairman of the joint congressional inquiry into 9/11, so I know what it takes — as a matter of resources, time, perseverance and, yes, occasional political courage — to run an investigation of this size and importance. And I know this, too: The congressional intelligence committees, as they are constituted today, are not ready for this burden.

[Bob Graham was a U.S. senator from Florida from 1987 to 2005. He served as chairman of the Senate Select Committee on Intelligence from 2001 to 2003 and as co-chairman of the Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001.]

[Commentary] Six years ago, I was pressured to unpublish a critical piece about Google’s monopolistic practices after the company got upset about it. In my case, the post stayed unpublished. I was working for Forbes at the time, and was new to my job. In addition to writing and reporting, I helped run social media there, so I got pulled into a meeting with Google salespeople about Google’s then-new social network, Plus. The Google salespeople were encouraging Forbes to add Plus’s “+1" social buttons to articles on the site, alongside the Facebook Like button and the Reddit share button. They said it was important to do because the Plus recommendations would be a factor in search results—a crucial source of traffic to publishers.

[Commentary] We have come to the end of the comments period set by the Trump Federal Communications Commission (FCC) during which the public could respond to the FCC’s efforts to deregulate high-speed Internet service and roll back network neutrality rules that designate the Internet a utility. There have been over 22 million comments to the FCC’s proposed rule making, or ‘rule unmaking’ — surely a testament to the Internet’s potential to encourage participation — and it appears the huge majority of those comments have spoken against the FCC’s proposal to deregulate.

The public now understands, just as the courts have always understood, the the Internet is an incredible information transmission utility that has fallen into the hands of monopolists and should be regulated in the public’s interest. But the Trump FCC has only free market solutions to problems we don’t have in 2017, so it is highly likely that this FCC will indeed do away with the Net Neutrality rules set forth by the FCC in 2015.

[Fred Johnson is a documentary maker and telecom policy analyst]

[Commentary] Is broadband internet an “information service,” as concluded repeatedly over two decades by Democratic and Republican commissioners, or a “telecommunications service” as a partisan majority decreed two years ago? This is a distinction with a profound legal difference under the Telecommunications Act of 1996.

Telecommunications services are subject to the same restrictions and government controls that applied to the old Bell monopoly starting in the 1930s. Information services have far more freedom to compete and innovate. The real-world effects of this heavy vs. light regulation are dramatic, and they turn on the question of how consumers use broadband internet. 72% of U.S. adults frequently read or watch news, sports or other content online. Sixty-one percent use search engines; 52% purchase items online, and 48% check or post on social media. Smaller percentages store photos, grocery lists and other items. That broadband internet access that enables these activities is precisely what makes broadband an “information service” under the statute. It is impossible to make use of popular video-rich information applications on today’s internet using old-fashioned dial-up access because of the need for higher speeds and lower latency. Returning to the longstanding light-touch framework will offer many benefits to American consumers and encouraging Congress to do its job and modernize the Telecommunications Act for the broadband era, developing and passing bipartisan legislation that ensures the open internet, protects consumers and maintains investment in the nation’s high-speed broadband networks.

[Bruce Mehlman is a lobbyist for broadband service providers]