Government & Communications

Federal Communications Commission Chairman Ajit Pai unveiled new details about a reported cyberattack that came after comedian John Oliver urged his viewers to flood the agency with pro-network neutrality comments. In response to a series of questions about the incident from Sens Ron Wyden (D-OR) and Brian Schatz (D-HI), Chairman Pai said he was taking the issue seriously. “I agree that this disruption to [the Electronic Comment Filing System] by outside parties was a very serious matter,” Pai wrote in a letter. “As a result, my office immediately directed our Chief Information Officer (CIO) to take appropriate measures to secure the integrity of ECFS and to keep us apprised of the situation. The Commission's CIO has informed me that the FCC's response to the events sufficiently addressed the disruption, and that ECFS is continuing to collect all filed comments."

The ECFS slowed to a crawl after Oliver’s HBO show addressed the net neutrality proceeding in May, leading many to assume that the system was bogged down by an influx of public filings. But the next day, FCC CIO David Bray said the disruption was caused by a malicious distributed denial of service (DDoS) attack, a move designed to take down a site by flooding it with fake traffic. “I appreciate the FCC’s response,” Sen Wyden said. “I’m waiting to draw any final conclusions until the FBI weighs in. However, it is clear that FCC wasn’t ready for this attack. In the future, the agency should consider other ways to submit comments if its web portal fails again.”

Businesses leaders expressed surprise that the Department of Justice is appealing a case about when law enforcement should have access to data stored in other countries. The case pits the DOJ against Microsoft over an issue both sides have indicated requires a legislative fix: whether or not a domestic warrant can require a company to retrieve data stored on a foreign server.

Both chambers of Congress had taken up the issue with hearings involving the DOJ, industry and other stakeholders, and both chambers had expressed a sense of urgency to resolve the conflict. The DOJ filed paperwork for the appeal on June 23. The government is appealing lower court rulings that law enforcement cannot obtain data stored in a foreign nation with a warrant. Rather, the ruling says law enforcement needs to follow the foreign nation's policies for searching and seizing evidence. This has long been the case with physical evidence and the United States has several treaties known as Mutual Legal Assistance Treaties (MLATs) to provide a diplomatic apparatus to request evidence be retrieved and sent stateside.

Twenty years ago, on June 26, 1996, the US Supreme Court unanimously decided Reno v. American Civil Liberties Union, which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying strict scrutiny under the First Amendment, the Supreme Court concluded that unlike broadcasting – where the Federal Communications Commission’s indecency regulation has been upheld due to the unique characteristics of that medium – no content regulation with a justification of online child protection would be allowed. This means that there continues to be no content restrictions on what American internet users can send or receive.

Viewed in contemporary context, two lessons from Reno v. ACLU endure. First, as a constitutional law matter, there is a firewall for US government restrictions on any non-obscene online content. In turn, this virtually unfettered freedom has fueled the pervasiveness of the internet in our lives. Remember, Facebook and the world of online apps – which now exceed websites as the go-to sources online – did not even exist then. Mark Zuckerberg was only 13 years old when the court decision was released, and other app content pioneers such as Snapchat’s Evan Spiegel were still in elementary school.

This leads to the case’s second legacy, which is more implicit but also of great importance. Given the continuing inability to predict the speed and scale of internet development or changing consumer preferences, there seems to be a subtext in that government may find it difficult to develop broad prescriptive long-lasting approaches to internet regulation. The FCC favored this ex ante approach when crafting the Open Internet order under the Obama Administration. Under new FCC Chairman Ajit Pai, the agency seems to favor a revision that limits government oversight to the Federal Trade Commission’s traditional enforcement authority. As the FCC compiles its rulemaking record to justify this significant change in approach, it would not be surprising to see the Reno v. ACLU decision used to support a return of this light-touch regulatory framework.

The hasty effort in New York to pass a right-of-publicity bill ended—for now—recently after the state assembly sponsor pulled his bill and the senate appeared unwilling to advance its own version until the assembly acted. Media organizations had opposed the legislation: The National Press Photographers Association said the assembly bill would “unconstitutionally deprive” its members “of the right to exercise property and copyright interests in their still, filmed, and recorded images.” And a broad coalition—including the Reporters Committee for Freedom of the Press, the Media Law Resource Center, and the New York News Publishers Association—ran a full-page ad in the Albany Times-Union calling the bills “an attack on the First Amendment.”

But what’s the right of publicity, anyway? And why were media organizations so concerned about the bills? Those two questions are worth answering: Many states have some kind of publicity-related law on the books, and it’s likely that another New York bill will be introduced in the fall.

President Donald Trump on June 26 said former President Barack Obama took no action against Russia for its actions in the 2016 election because he expected Hillary Clinton to win. President Trump concluded that Obama had not "choked" in taking no action against Russia. Instead, President Trump said Obama had "colluded" or "obstructed." "The reason that President Obama did NOTHING about Russia after being notified by the CIA of meddling is that he expected Clinton would win.....and did not want to 'rock the boat,' " President Trump tweeted. "He didn't 'choke,' he colluded or obstructed, and it did the Dems and Crooked Hillary no good." “The real story is that President Obama did NOTHING after being informed in August about Russian meddling. With 4 months looking at Russia ... under a magnifying glass, they have zero ‘tapes’ of T people colluding. There is no collusion & no obstruction. I should be given apology!” he added.

Republican National Committee chair Ronna Romney McDaniel put her signature to the latest e-mail that uses attacks on the media to try and raise money for the party and its candidates. Taking a page out of President Donald Trump's divide to conquer strategy of trying to delegitimize negative stories, the e-mail cites a "fake news" headline from arguably the president's favorite target—CNN—to illustrate what the party claims is "fake news" that is "far more powerful than the Democratic Party." "[T]hey have the power to trick American voters into believing they're unbiased—all the while they peddle hateful and deceitful rhetoric about our President," she said. She makes it clear that CNN and the New York Times are two of those "they," saying: "They call themselves 'The Most Trusted Name in News.' They claim to cover 'All the News That’s Fit to Print…" Curiously, she suggested, after calling mainstream media outlets hateful and deceitful, that Trump supporters win when "we rise above their attacks" and deliver a positive message.

[Commentary] The Trump Administration’s penchant for secrecy is not a media issue; it is a democracy issue. And that makes it the weak spot in President Donald Trump’s otherwise successful jihad against American journalism. The bottom line, particularly on the Right is this: They hate you. They really hate you. Trump’s strategy in declaring the media “enemies of the people” is clear: He delegitimizes an independent source of criticism and exposure, while providing his base with red meat. His approach is aped by his allies in the conservative media, including Fox News’s Sean Hannity, who has taken to using clumsy formulations like the “Destroy Trump Media.”

Journalists may regard the case for transparency in government as self-evident, but the case can and should be made anew. The Trump era provides an opportunity to go back to first principles and remind the public why the freedom of the press is enshrined in the First Amendment. Don’t take it for granted that the public has connected all of those dots.

[Charlie Sykes is a political commentator who hosted the conservative radio talk show "Midday with Charlie Sykes" on WTMJ in Mlwaukee from 1993 to 2016.]

Much of the media coverage surrounding President Donald Trump's meetings with tech industry executives this week has focused on the companies in the room — Apple, Microsoft, Verizon and so on. But separate meetings organized around the same event have also included a smattering of government officials, including on June 22 the head of the Federal Communications Commission, Ajit Pai.

On one level, Chairman Pai's attendance makes sense: The day's meetings focused on the future of wireless technology, an area where the FCC has a lot of expertise and jurisdiction. On another level, though, Chairman Pai's presence was unusual: As the head of an agency that's supposed to keep its distance from the White House, Pai has shown no qualms about appearing on the same agenda with President Trump. And that is now raising questions among some about his overall independence from the Trump administration.

Early last August, an envelope with extraordinary handling restrictions arrived at the White House. Sent by courier from the CIA, it carried “eyes only” instructions that its contents be shown to just four people: President Barack Obama and three senior aides. Only in the administration’s final weeks in office did it tell the public, in a declassified report, what officials had learned from Brennan in August — that Russian President Vladimir Putin was working to elect Donald Trump.

Over that five-month interval, the Obama administration secretly debated dozens of options for deterring or punishing Russia, including cyberattacks on Russian infrastructure, the release of CIA-gathered material that might embarrass Putin and sanctions that officials said could “crater” the Russian economy. But in the end, in late December, President Obama approved a modest package combining measures that had been drawn up to punish Russia for other issues — expulsions of 35 diplomats and the closure of two Russian compounds — with economic sanctions so narrowly targeted that even those who helped design them describe their impact as largely symbolic. President Obama also approved a previously undisclosed covert measure that authorized planting cyber weapons in Russia’s infrastructure, the digital equivalent of bombs that could be detonated if the United States found itself in an escalating exchange with Moscow. The project, which President Obama approved in a covert-action finding, was still in its planning stages when he left office. It would be up to President Trump to decide whether to use the capability.

President Donald Trump has a new morning ritual. Around 6:30 am on many days — before all the network news shows have come on the air — he gets on the phone with a member of his outside legal team to chew over all things Russia. The calls — detailed by three senior White House officials — are part strategy consultation and part presidential venting session, during which President Trump’s lawyers and public-relations gurus take turns reviewing the latest headlines with him. They also devise their plan for battling his avowed enemies: the special counsel leading the Russia investigation; the “fake news” media chronicling it; and, in some instances, the president’s own Justice Department overseeing the probe.

His advisers have encouraged the calls — which the early-to-rise President Trump takes from his private quarters in the White House residence — in hopes that he can compartmentalize the widening Russia investigation. By the time the president arrives for work in the Oval Office, the thinking goes, he will no longer be consumed by the Russia probe that he complains hangs over his presidency like a darkening cloud. Senior officials have also been devising an overhaul of the White House communications operation to better meet the offensive and defensive demands of the president they serve, as well as the 24-hour cycle of tweet-size news.