Morning Consult

[Commentary] At some point Federal Communications Commission Chairman Ajit Pai is going to have to dance with the elephant in the room: network neutrality. In truth, this fight is much more about the legal authority the FCC claims for regulating broadband, and its long-term implications, than it is about the open internet.

On the one hand, we could return to the prior regulatory structure established under former President Bill Clinton, with the FCC relying on light-touch rules, voluntary codes of conduct, and antitrust-like enforcement to oversee a by-and-large competitive market of different technologies innovating to offer similar services. On the other, we can continue in the direction former FCC Chairman Tom Wheeler laid out toward a heavily regulated utility service. The problem is net neutrality is more religious war than policy discussion, and, with accusations of “alternative facts” already flying, it’s unlikely the gulf between the two sides is closed any time soon. We need some way to break this logjam; I hope Pai is up to the task.

[Doug Brake is a telecommunications policy analyst at the Information Technology and Innovation Foundation]

Sen Orrin Hatch (R-UT) introduced a sweeping tech-focused agenda that aims to bolster the H-1B visa program, prevent forum-shopping by patent trolls and improve data privacy both at home and abroad. In a speech on Capitol Hill, the Utah Republican addressed the tech community’s concerns about President Donald Trump potentially issuing an executive order that could weaken the H-1B visa program, which many tech employers say they rely on to fill high-skilled positions. Sen Hatch, who’s chairman of the Senate Republican High-Tech Task Force, said it was important for tech leaders to do their part in persuading Trump not to weaken the foreign-worker program, and that includes “not provoking the White House unnecessarily.” He reiterated his close relationship with Trump, and stressed his ability to act as a “bridge” between Silicon Valley and the administration when it comes to the H-1B program and other industry issues. “I know he trusts me,” Sen Hatch said, referring to President Trump. “Then again, I’m not sure he trusts anybody … but I think he does trust me. He knows I’m not going to go around what he’d like to do.”

[Commentary] It is disappointing that a recent order from the Federal Communications Commission’s Wireline Bureau to reconsider the eligibility for participation of just nine of the more than 900 companies currently participating in the Lifeline program has sparked such a maelstrom of misinformation and motive-questioning.

Notably, the FCC did not cut funding for the Lifeline program, nor did it attempt to unwind the more than 30-year commitment to ensuring American consumers have access to baseline communications. The FCC simply announced it was putting on hold the eligibility of less than 1 percent of the companies currently participating in the program while it takes steps to ensure the program’s integrity. Ensuring digital opportunity for everyone includes affordable broadband options for low-income consumers. But companies that game the system threaten its effectiveness and, ultimately, its existence. Bottom line? Closing the digital divide and maintaining the integrity of the Lifeline program are hardly objectives that should be at odds. It is imperative that our government leaders take clear and firm action to protect low-income Americans who need financial help to get and stay connected — and weed out entities that are siphoning resources away from those who need broadband’s many opportunities most.

[Diane Smith is a board advisor to Mobile Future]

Senate Commerce Committee Chairman John Thune (R-SD) is pushing forward with plans to draft legislation that would codify network neutrality principles into law, even if the Federal Communications Commission hasn’t taken action to roll back the agency’s 2015 Open Internet order. “Sen Thune is open to immediately working with his colleagues on legislation if there is a serious readiness on the other side of the aisle to come to the table,” said Commerce Committee spokesman Frederick Hill. “To date, Democrats haven’t been quite ready to sit down.” At the same time, Hill added that action from the FCC action could lead to “new engagement” from Democrats in a legislative effort, and Chairman Thune is “all for that.” The remarks follow recent comments from House Communications Subcommittee Chairman Marsha Blackburn (R-TN), who said that she wanted to the let the FCC make the first move on net neutrality before legislating.

James Baker, the top lawyer at the Federal Bureau of Investigation, recommended that Congress take a more active role in legislating on US law enforcement’s limited access to encrypted data tied to a criminal investigation. “We don’t want this debate driven by some kind of catastrophe down the road,” Baker said. Baker, the FBI’s general counsel, appeared at an event to discuss a new encryption report issued by the Center for Strategic and International Studies. “The American people, through their elected representatives, have to make a value determination” regarding encryption, he said. “The world is moving forward, and doing nothing is an action, and will result in a particular state of affairs.” “I’m not sure that a commission is going to be able to come up with a kind of granular solution, [a] highly technical solution, promptly, that we can put in place to deal with this,” Baker said.

House Judiciary Committee Chairman Bob Goodlatte (R-VA) said the panel’s top tech priorities consist of updating a 1986 electronic privacy law and reauthorizing a provision in the foreign intelligence statute that allows US spies to intercept communications abroad.

The Electronic Communications Privacy Act, which was authored long before the widespread use of email and social media, doesn’t require law enforcement agencies to obtain a warrant before inspecting emails stored for more than 180 days. That standard is based on a 1980s understanding of electronic messaging that assumed anything stored for that period of time has been abandoned. “This law is outdated and contains insufficient privacy protections for Americans’ email communications in today’s digital age,” Goodlatte said. Rep Kevin Yoder (R-KS) introduced a measure in Dec that would require law enforcement to obtain a warrant before investigating an individual’s online communications that have been stored in excess of 180 days or kept in a cloud storage service.

Sen Mike Rounds (R-SD), chairman of the recently created Senate Armed Services Subcommittee on Cybersecurity, views cyberspace like any other battleground. “Cyberwar is more than simply stealing emails,” Chairman Rounds said. “Cyberwar is where you’re doing damage that, if it was done using a different weapon — a kinetic weapon, a bomb or a missile — everyone would say, ‘Look, you just damaged our infrastructure. You just messed up the New York Stock Exchange. You just blew up a dam.’”

In Chairman Rounds’ view, there is little difference between a missile attack on key US targets and a cyberattack that accomplishes the same kind of destruction. Chairman Rounds said the cybersecurity panel’s first task will be to help the Defense Department craft guidelines for responding to cyberattacks — particularly those perpetrated by hostile states — that mirror the way the Pentagon responds to bombs and bullets.

A new executive order that requires executive agencies to find at least two existing regulations to rescind for every new rule does not extend to independent agencies, according to the White House. “All independent agencies are not covered by the EO,” said Lindsay Walters, a White House spokeswoman. “Trump independent agencies that are headed by [Republican] commissioners or [Republican] appointees will want to comply,” said Amit Narang, a regulatory expert for the consumer group Public Citizen. That group includes the Federal Communications Commission and the Federal Trade Commission. White House Press Secretary Sean Spicer described the order as the most significant regulatory rollback effort since former President Ronald Reagan established the Office of Information and Regulatory Affairs in 1981.

[Commentary] The Federal Communications Commission needs some structural reform. In particular, it should create an Economics Bureau tasked with conducting economic analyses of proposed rules, mergers, and other important actions, much like the Bureau of Economics at the Federal Trade Commission.

This is not a radical proposal. In addition to the FTC’s Bureau of Economics (with 78 PhD-level economists), the Department of Justice has an Economic Analysis Group within the Antitrust Division and the Securities and Exchange Commission has a Division of Economic and Risk Analysis. The FCC has no such group, although it is largely concerned with competition and consumer protection and has a similar need for economic analysis to inform its decisions. By creating an Economics Bureau similar to the FTC’s, the commission can institutionalize the role of economics. The FCC leadership should ensure that its Economics Bureau is involved in all major issues, including significant enforcement actions, and can submit its analyses directly to the commissioners to be considered alongside the recommendations of the other operating bureaus. And the FCC should require that a preliminary cost-benefit analysis be completed and put out for public comment at the same time as the corresponding notice of proposed rulemaking. Executive branch agencies operate this way; there is no substantive reason independent agencies should behave differently.

[Lenard is senior fellow and president emeritus at the Technology Policy Institute]

Sen Steve Daines (R-MT) introduced bipartisan legislation (S 228) that would exempt small internet service providers from transparency requirements under the Federal Communications Commission’s Open Internet order. The Republican-led FCC has already said it won’t enforce the requirements for small ISPs, and suggested that it would revisit the rules as part of a broader re-examination of the 2015 Open Internet order. But providers want the exemption codified into law. The lack of enforcement could give senators time to work out the bill’s details with Democrats. As of Jan 24, Sen Joe Manchin (D-WV) was the only Democratic co-sponsor. The Senate Commerce Committee is not scheduled to vote on the measure, according to an aide to Sen Daines. S 228, would grant broadband providers with fewer than 250,000 subscribers a five-year exemption from FCC requirements that they provide enhanced technical and fee data to consumers. Smaller ISPs say the cost of collecting that data is onerous and would cut disproportionately into their business. The House passed a similar bill by voice vote earlier in January.