Internet/Broadband

[Commentary] Recently, without any reference to the Net Neutrality debate, the cable industry trade association NCTA made the unsurprising observation that broadband speeds in the US continue to rise, as they always have. Seeing all things through the lens of Net Neutrality, Public Knowledge Senior Vice President Harold Feld immediately laid claim to the trend, asserting that the data in NCTA’s post supports the FCC’s reclassification decision. According to Feld, the speed trend confirms that the “Title II Virtuous Circle” is “totally working” because “the rate of increase has accelerated since the FCC adopted the Title II Reclassification Order in February 2015.”

Feld sets up a direct test of the wisdom of Title II reclassification based on the pace of speed increases following the 2015 Open Internet Order. An empirical question requires an empirical answer. Using the Akamai speed data, Ford subjects Feld’s “theorem” to a battery of statistical tests. Without exception, the data reveal a statistically significant decline in the rate of average broadband speed increases for the US subsequent to the 2015 Open Internet Order. Ford finds that “but for” the FCC’s 2015 Open Internet Order, US broadband speeds would have been about 10% higher—or about 1.5 Mbps faster—on average. Thus, in direct contradiction to Feld’s claim, reclassification appears to have significantly retarded expected broadband speed increases.

[Commentary] The First Amendment protects our right to use social networks like Facebook and Twitter, the Supreme Court declared. The decision called social media “the modern public square” and “one of the most important places” for the exchange of views. The holding is a reminder of the enormous role such networks play in our speech, our access to information and, consequently, our democracy. But while the government cannot block people from social media, these private platforms can. Today, as social media sites are accused of spreading false news, influencing elections and allowing horrific speech, they may respond by increasing their policing of content. Clarity about their internal speech regulation is more important now than ever. The ways in which this newfound transparency is harnessed by the public could be as meaningful for online speech as any case decided in a United States court.

[Margot E. Kaminski is an assistant professor at the Ohio State University Moritz College of Law. Kate Klonick is a Ph.D. candidate at Yale Law School.]

The European Commission has hit Google with a €2.42 billion (approximately $2.73 billion) antitrust fine for abusing its dominance in search, a decision with potentially far-reaching implications for both the tech sector and already strained transatlantic relations.

The European Commission ended its seven-year competition investigation, concluding that the search group had abused its near-monopoly in online search to “give illegal advantage” to its own shopping service. Margrethe Vestager, the EU’s competition commissioner, said Google “denied other companies the chance to compete” and left consumers without “genuine choice”. “Google’s strategy for its comparison shopping service wasn’t just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results and demoting those of competitors. What Google has done is illegal under EU antitrust rules.” The company has 90 days to make changes and must “refrain from any measure that has the same or an equivalent object or effect”, the commission said.

[Commentary] Network neutrality rules are not the way to maintain a free and open Internet, according to Michael Katz, professor of economics and director of the Center for Telecommunications and Digital Convergence in the Haas School of Business at the University of California, Berkeley. Regulation never “levels” a playing field because that assumes we know the optimal balance between firms. We don’t, and if an optimal balance exists today it might be different tomorrow.

In this case, proponents believe tilting the field more towards edge providers is important for innovation. One problem with that belief, Katz argues, is that the Internet has never been neutral. For example, the Internet was designed in a way that “works relatively poorly for applications that are highly sensitive to packet loss and require very low latency (e.g., telepresence) and works relatively well for applications that require little bandwidth and are not time sensitive (e.g., email).” Another problem with the level playing field argument is that it should apply to many industries and services, not just the Internet. Yet, we know that paid prioritization has become crucial in other areas, like package delivery (think FedEx, UPS, or expedited shipping in e-commerce). Finally, the argument tends to focus on particular firms that might not do well with paid prioritization at the expense of consumer welfare. However, consumer welfare may be improved by new services that cannot currently exist, or must exist via workarounds that are not technically “paid prioritization.” The point is not that one of these necessarily outweighs the other, only that it is incorrect to automatically conclude that the net effect of paid prioritization is negative.

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.”

In what they concede on the surface is a surprising alliance, major Internet service providers have aligned with the Federal Trade Commission and the Federal Communications Commission against AT&T Mobility over the issue of the FTC's ability to enforce edge provider privacy. That came in an amicus brief to the US Court of Appeals for the Ninth Circuit.

"At first glance, amici’s position might seem surprising—four leading corporations are arguing in favor of restoring the FTC’s authority to regulate their non-common carriage activities," they said. "On closer inspection, however, this position aligns with the companies’ desire to reinstate a predictable, uniform, and technology-neutral regulatory framework that will best serve consumers and businesses alike." Signing on to that brief were Charter, Comcast, Cox, and Verizon.

Federal Communications Commission Chairman Ajit Pai has circulated an item for a vote that provides guidance on the broadband privacy rules that were in effect before its 2016 privacy order, apparently. That is opposed to a brand new framework for rules.

That broadband privacy order, adopted last fall by a Democratic majority under former chairman Tom Wheeler and against the dissents of the current Republican majority, was invalidated earlier in 2017 by a Congressional Review Act (CRA) resolution, essentially with the blessing of Chairman Pai and acting Federal Trade Commission chair Maureen Ohlhausen. The CRA did not roll back FCC authority over internet-service provider broadband privacy, which it has had since the 2015 Open Internet order classified web access as a common-carrier service exempt from FTC oversight. But just what authority the FCC had has been a bit unclear since the agency’s common-carrier privacy regulations are tailored to phone service, stemming from an effort to prevent telcos from using information about who was changing to another carrier to try and incentivize them not to switch. Following that Open Internet order, the FCC had teamed with the FTC on a memorandum of understanding outlining how — in a generally worded document — they could, together, protect broadband privacy going forward.

[Commentary] There are steps Congress can and should take to improve consumer privacy. Here are three big ones.

First, Congress should repeal the common-carrier exemption.
Second, Congress should pre-empt the current patchwork of state privacy laws by setting a single standard to govern consumer privacy throughout the country.
Third, Congress should direct the FTC to update its current privacy regime and reconsider which types of data are sensitive.

[Tom Struble is a technology policy manager with the R Street Institute. Joe Kane is a tech policy associate at the R Street Institute.]

Free market group Consumer Action for a Strong Economy (CASE) says according to its analysis of the Federal Communications Commission's open internet docket, a majority (65%) favor repealing the Title II-based Open Internet order, as FCC Chairman Ajit Pai has proposed to do. But it also points out that a vast majority, 75%, of those comments are from "letter campaigns" coming from both sides of the issue.

In addition, nearly 6% of the comments have been submitted by self-identified international filers. The group said it looked at the 4,990,000 filings as of June 20 and said it would do similar assessments in the future. Of those, it said, 3,237,916 support repealing the order, while 35% (1,752,084) oppose repeal. It said that assessment was based on analysis of "clear language" one way or the other—including the language encouraged by HBO's John Oliver—mostly on the form letters that make up the 75% of comments, though it said the percentage might actually be more since it was looking at varieties and permutations of the same language, and there could be more.

Apparently, an item Federal Communications Commission Chairman Ajit Pai has circulated for a vote on "Protecting the Privacy of Customers of Broadband and Other Telecommunications Services" essentially clarifies that the telecommunication customer proprietary network information (CPNI) privacy rules that were in effect before the Tom Wheeler FCC adopted a new broadband privacy regime are still in effect after that regime was nullified by Congress. It is a way to remind carriers that they are still responsible for submitting an annual certification of compliance with those CPNI privacy rules.

The item was described as administrative in nature and focused on voice privacy, rather than providing any new guidance on broadband privacy, apparently. In addition, the item dismisses petitions to reconsider the Wheeler-era rules, since they were mooted by the Congressional Review Act resolution. Chairman Pai has proposed reclassifying ISPs as information service providers, rather than telecoms, after which the Federal Trade Commission would reclaim its authority over broadband privacy, which it lost when ISPs were classified as common carriers in the 2015 Order. The FTC is prevented from enforcing regulations on common carriers.