American Enterprise Institute

[Commentary] In the last week of July, the chairman of the Senate Judiciary Committee, Sen Patrick Leahy (D-VT), introduced a version of the USA Freedom Act that is far more restrictive on intelligence agencies’ operations than any other competing bill.

In explaining the distinct shift toward more privacy and transparency provisions in the competing bills, much weight has to be given to events occurring in the background: the slow drip of Snowden revelations, combined with more near-term political blunders by the intelligence agencies.

There is merit to the concerns that the new metadata process is so cumbersome and protracted that it may impair the ability to ward off future well-planned terrorist attacks. An open-minded, continuous assessment is thus in order. On the controversial change related to a public advocacy role before the FISA Court, however, there can be no doubt that ultimately the security agencies will reap a benefit.

One does not have to subscribe to the view that the FISA Court has been a “patsy” for the security establishment, to hold that an independent, internal “other pair of eyes” will enhance the credibility of future legal reviews of data requests.

[Commentary] Netflix and Mozilla are leading the charge for the government to oversee the Internet as never before, however, it is important to understand -- and to refute, where warranted -- their positions.

Here we select and scrutinize just a few of the technical and economic arguments and assertions from their comments to the Federal Communications Commission.

[Swanson is president of Entropy Economics]

[Commentary] The House of Representatives placed four cybersecurity bills -- all pieces of a larger cybersecurity legislative puzzle -- on the House suspension calendar.

The core bill, sponsored by House Homeland Security Committee Chairman Mike McCaul (R-TX), would establish the National Cybersecurity and Communications Integration Center, a coordination point for civil information sharing between sector-specific coordination groups and federal, state, and local government agencies. Should the bill pass, will its provisions be enough to bring cybersecurity to the top of the agenda in corporate America?

Chairman McCaul’s effort establishes a baseline for the importance of cooperating and coordinating the efforts of owners and operators of critical infrastructure. Cross-sector facilitation is needed to get to the next step in managing cybersecurity. Similar to the creation of the baseline organization of the Center for Disease Control and Prevention almost 60 years ago, cybersecurity information sharing could create benefits that would prevent and minimize incidents that affect multiple networks.

Creating the National Cybersecurity and Communications Integration Center would be the first major step towards creating such a system of prevention, preparation, and planning, and would likely be one that we would all benefit from.

[Tews is the Chief Policy Officer at 463 Communications]

[Commentary] Fiber-to-the-Home (FTTH) deployment is booming in Spain. More than 15 years after the end of the legal monopoly, alternative operators are finally committing to deploying their own high-speed Internet access networks. After 15 years without Next Generation Network (NGN) deployment, suddenly all three operators – Orange, Tele2, and Jazztel -- decide to commit to costly investments in fixed networks. Why this spectacular turnaround? The FTTH miracle in Spain would not have been possible with regulated access to the FTTH network of the incumbent operator. At last, the dynamic competitive process for NGNs has been unleashed in Spain, and there will be one winner for sure: the consumer. [Herrera-González is Regulatory Economic Manager at Telefónica]

[Commentary] Much of the controversy surrounding the Federal Communications Commission’s network neutrality proceeding involves the issue of paid prioritization: whether an Internet content or application provider can pay for priority delivery or minimum guaranteed speed over last-mile broadband networks.

Title II Section 202 prohibits telecommunications providers from engaging in “unreasonable discrimination.” But there’s an important limitation on the scope of Section 202. It does not require that the telecommunications provider offer only a single class of service to all people. Rather, it only prohibits discrimination among “like” services -- services that a customer may view as “functionally equivalent.”

In other words, we need to separate differentiation (offering different products at different prices) from discrimination (offering the same product at different prices).

[Lyons is an associate professor at Boston College Law School]

[Commentary] As soon as Netflix reached a transit agreement with Comcast, Netflix piggybacked on the network neutrality debate and announced that transit should be free for content providers.

It argued that all traffic should be treated the same, regardless of the costs it imposes on networks. Netflix wants to ensure that someone else pays for the high-definition video infrastructure it needs to realize its business, even though its traffic is the leading source of the congestion.

Not wanting its own customers to be adversely impacted, Netflix calls for the socialization of upgrade costs to all the users in the network, even if they don’t subscribe to Netflix.

[Layton is a PhD fellow at the Center for Communication, Media, and Information Studies at Aalborg University in Denmark]

[Commentary] Many activists would like to treat Internet service as a utility, to be regulated the way the power and water systems are. In those industries, a government board sets rates and can authorize or reject proposed capital investments.

The Federal Communications Commission’s Open Internet Order requires ISPs to provide detailed data about their internal routing policies and performance metrics. Does it make sense to view ISPs as utilities? Internet pipes are very different from water pipes. An ISP doesn’t just deliver data packets -- it delivers particular data packets to particular destinations.

[Rabkin is a professional software engineer]

[Commentary] Around the world there are different definitions of network neutrality and the so-called “open Internet.” A survey of national net neutrality rules shows that the concept is an empty vessel used to capture concerns ranging from vertical foreclosure to privacy to parental controls.

As each country’s telecommunications market is different, “each telecom authority must develop its own solution.” The lack of clarity offers governments a Trojan horse. On the ruse of protecting consumers, governments can legitimize increased control of the Internet -- and its users.

[Layton is studies Internet economics at the Center for Communication, Media, and Information Technologies at Aalborg University in Copenhagen]

[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]