Kevin Taglang

[Commentary] On July 2, the Privacy and Civil Liberties Oversight Board released a detailed analysis of U.S. surveillance programs. The headline-grabbing conclusion of the research is that a set of National Security Agency programs that collect vast amounts of Internet communications from U.S. companies has proved to be an effective intelligence tool, but that some aspects bordered on unconstitutionality. The board said that the NSA programs need better safeguards for protecting Americans' communications scooped up in the process. One of the goals of the board in writing the report has been to increase transparency about U.S. surveillance. In addition to this effort to explain the program, the board has set forth a series of policy recommendations designed to ensure that the program appropriately balances national security concerns with privacy and civil liberties. As you pack up for July 4 weekend, we thought we’d take a closer look at what the Privacy and Civil Liberties Oversight Board is and what it found out about the NSA.

[Commentary] The Supreme Court of the United States (SCOTUS) released two big communications-related decisions on June 25. First, the Court unanimously ruled that the police need warrants to search the cellphones of people they arrest. That ruling will have the most immediate impact on the approximately 12 million people -- yes, 12,000,000 -- who are arrested in the US each year. But its impact will most likely be much broader: the ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies. In the second case of note, SCOTUS ruled that Aereo, a television streaming service, had violated copyright laws by capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee. The ruling blocks a company whose goals were to upend long-standing models for how broadcast programming is delivered to consumers. The 6 to 3 decision handed a major victory to the broadcast networks, which argued that Aereo’s business model was no more than a high-tech approach for stealing their content.

After the Supreme Court released its 6-3 decision in American Broadcasting Companies v. Aereo, wonkland responded.

National Association of Broadcasters President and CEO Gordon Smith said, “NAB is pleased the Supreme Court has upheld the concept of copyright protection that is enshrined in the Constitution by standing with free and local television. Aereo characterized our lawsuit as an attack on innovation; that claim is demonstrably false. Broadcasters embrace innovation every day, as evidenced by our leadership in HDTV, social media, mobile apps, user-generated content, along with network TV backed ventures like Hulu. Television broadcasters will always welcome partnerships with companies who respect copyright law. Today's decision sends an unmistakable message that businesses built on the theft of copyrighted material will not be tolerated.”

Aereo CEO and Founder Chet Kanojia said, “Today’s decision by the United States Supreme Court is a massive setback for the American consumer. We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter. This sends a chilling message to the technology industry. It is troubling that the Court states in its decision that, ‘to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.’ That begs the question: Are we moving towards a permission-based system for technology innovation?”

“While the court ruled that Aereo had overstepped, invention and innovation are at the heart of America’s global leadership in communications and technology development,” said House Commerce Committee Chairman Fred Upton (R-MI). “This case underscores the mounting need to modernize the 80-year-old Communications Act, which serves as an important, yet outdated, framework for the communications industry. We will continue laying the groundwork toward a #CommActUpdate to bring our laws into the innovation era so that the United States can continue leading the world in developing groundbreaking technologies that drive job creation and support consumer choice, economic growth, and social discourse.”
“The Court’s decision reminds us that the complex communications and technology marketplace is constantly innovating and rapidly changing, and that nuances in the law can have a profound effect on content providers and consumers,” added House Communications and Technology Subcommittee Chairman Greg Walden (R-OR). “Providing consumers with a vibrant and innovative content delivery system in the 21st century is an important objective of our #CommActUpdate. In that effort, we will carefully balance the competing marketplace interests to make sure that this industry continues to innovate, localism is preserved, and consumers ultimately come out on top.”
“The ABC v. Aereo case highlights the regulatory uncertainty that exists in the rapidly evolving video marketplace as a result of our country's outdated communications laws,” said House Communications and Technology Subcommittee Vice Chairman Bob Latta (R-OH). “I look forward to working with Chairmen Upton and Walden in engaging in a comprehensive review of the Communications Act to ensure our policies foster robust investment and innovation in the 21st century digital economy.”

“21st Century Fox welcomes the US Supreme Court’s ruling, a decision that ultimately is a win for consumers that affirms important copyright protections and ensures that real innovation in over-the-top video will continue to support what is already a vibrant and growing television landscape," said Fox.

“We are gratified that the Court’s decision adopted a sensible middle ground, holding that unlicensed retransmission services like Aereo violate the copyright law, while protecting consumer-friendly, cloud-based technologies, such as RS-DVR. The real winner today is the consumer who will continue to benefit from future innovation," Cablevision said.

“Aereo was using technology, in this case thousands of dime-sized antennas, in a blatant attempt to circumvent copyright law and to profit from broadcasters’ content without compensating them," said Media Institute President Patrick Maines. The instituted had filed an amicus brief in support of broadcasters. "The Supreme Court has struck a strong blow in support of our copyright system. The Court has affirmed that technological schemes cannot be used as loopholes to avoid paying for copyrighted content.”

SAG-AFTRA was applauding the protection of its members’ content and business model. "[T]he US Supreme Court’s decision in the Aereo case... sends a clear and strong message that the Court will not permit companies like Aereo to use inconsequential technical workarounds to evade Congress’ intent to protect content creators and owners in the Copyright Act," the union said. "By adopting a practical analysis that recognizes the extraordinary similarity between Aereo and the cable systems Congress expressly regulated in the Act, the Court rightly focuses on the use of copyrighted works and refused to be sidetracked by the inconsequential technical details with which Aereo attempted to cloak itself. But in doing so, the Court properly limited the scope of the decision so that cloud services and other technological innovations are neither inhibited nor limited. This decision gives the creative community greater confidence that copyright law cannot be so simply evaded and restores the proper balance to the system.

“We are disappointed that the Supreme Court today ruled against innovator Aereo," said Consumer Electronics Association President Gary Shapiro, "but are pleased the Court said it favored future innovation and specifically referred to the Sony Betamax principles of fair use as a safety valve for new services and technologies. We especially appreciate Justice Scalia’s powerful dissent describing how innovation is often opposed by incumbents who make false, ‘the sky is falling’ predictions about the future."

"It is very unfortunate for consumers that the Supreme Court has ruled against Aereo, which has provided an innovative service that brings consumers more choices, more control over their programming, and lower prices,” said Public Knowledge President and CEO Gene Kimmelman. "We're concerned that the court's misreading of the law leaves consumers beholden to dominant entertainment and cable companies that constantly raise prices and gouge consumers. This decision, endangering a competitive choice for consumers, makes it all the more important for the Department of Justice and Federal Communications Commission to guard against anti-competitive consolidation, such as the Comcast/Time Warner Cable merger.”

“We’re disappointed that the Supreme Court has ruled to make it harder for consumers to access and watch broadcast television when and where they want," said Ellen Bloom, senior director of federal policy for Consumers Union. "We think Aereo was on to something by filling a need for low cost, flexible viewing options. As cable prices keep skyrocketing, the consumer demand will continue to grow for more personalized, affordable ways to watch television."

“We are greatly disappointed with today’s Aereo ruling and we believe that the majority’s opinion failed to reflect the reality of today’s media landscape," said Parents Television Council President Tim Winter. "This is a ruling for the status quo that hurts consumers. Aereo had the potential to break up the bundled-channel cable TV model that is forcing Americans to pay higher cable bills year after year for channels they don’t want or don’t watch."

[Commentary] “Our top story tonight concerns the Internet.” That may sound like us, but, in fact, it is the first line in a 12 minute sketch by comedian John Oliver during the June 1 edition of his new HBO show, Last Week Tonight.

And in those 12 minutes, Oliver did what even he said was impossible -- he made the network neutrality debate accessible and interesting.

Oliver, a long time “correspondent” on Jon Stewart’s The Daily Show, used nearly half his program to highlight the dangers of the Federal Communications Commission proposal to allow broadband service providers to charge content providers “more money for service that isn't entirely awful,” as Jordan Zakarin wrote in The Wrap.

Oh, funnyman, you might be able to get people to laugh at the arcane workings of government policymaking, but you can’t expect to get them to do anything about it. But Oliver tried anyway. He asked the Internet's worst “trolls” to take the "badly spelled vile" they normally pump into YouTube comments and send it the FCC's way -- all in the name of net neutrality. He asked commenters to channel their anger for the greater good by taking advantage of the FCC's open comment period.

"This is the moment you were made for," Oliver said. "We need you to get out there and for once in your lives focus your indiscriminate rage in a useful direction. Seize your moment, my lovely trolls. Turn on caps lock and fly, my pretties."

Ha ha, funny, funny. No way this impact’s Washington policymaking, right? Well, um… by 3:45 on June 2, the FCC tweeted out: “We’ve been experiencing technical difficulties with our comment system due to heavy traffic. We’re working to resolve these issues quickly.”

Welcome to the latest lesson in the public’s ongoing education of the Beltway, a course titled “Don’t Mess With the Internet.” But network neutrality isn’t the only nerve Oliver hit in his sketch. Oliver highlighted a recording of Comcast CEO Brian Roberts pointing out that Comcast and Time Warner Cable do not compete in any US markets.

We’ve already heard a lot about cable companies/ISPs having too much control over how content is delivered to their customers. And so it was quite a week in the ongoing debate over the Open Internet.

[Commentary] In many respects, Silicon Valley is the economic envy of the US. The area south of the San Francisco Bay led the nation in job growth in 2011 and in 2013, job growth in the South Bay and San Francisco metro areas was more than twice as fast as the countrywide rate. The technology sector drives this growth.

"The Bay Area, and particularly, the South Bay and San Francisco, are the epicenter for social media, mobile and Internet commerce," said Michael Bernick, a research fellow with the Milken Institute and a former California Employment Development Department director. "These strengths are why the Bay Area outpaces the state and the nation."

Demand is so strong for technology skills that Bay Area unemployment for people in the tech sector ranges from 1 percent to 3 percent.

But how inclusive are the opportunities that Silicon Valley offers? We have recently seen evidence that it is not for some groups. Although tech is a key driver of the economy and makes products that many Americans use every day, it does not come close to reflecting the demographics of the country -- in terms of sex, age or race. In the United States work force over all, 80 percent of employees are white, 12 percent are black and 5 percent are Asian. Forty-seven percent of the total work force in the United States are women and 20 percent of software developers are women, according to the Bureau of Labor Statistics.

Why is a diverse work force so important? The data -- which in Silicon Valley usually reigns supreme -- shows that diversity of groups benefits research, development, innovation and profit.

[Commentary] At a May 20 House oversight hearing, FCC Chairman Tom Wheeler emphatically defended the Commission’s latest open Internet proposal saying, “There is one Internet. Everybody ought to have open, equal access to the capacity delivered by the Internet." But what is the impact of open Internet policies on the digital divide?

Since May 15, Washington has been abuzz with addressing a fundamental question posed by the Federal Communications Commission: “What is the right public policy to ensure that the Internet remains open?”

At the Benton Foundation, we’ve been particularly interested in how the FCC made it a point to highlight that its Notice of Proposed Rulemaking (NPRM) seeks comment on questions designed to consider the impact of the open Internet on ensuring broadband access for all communities.

In particular, the FCC highlights, the NPRM: 1) asks whether any parts of the nation are being left behind in the deployment of new broadband networks, including rural America and parts of urban America; and 2) considers the impact of the proposals on groups who disproportionately use mobile broadband service.

[Commentary] Blair Levin, who served as the Executive Director of the Omnibus Broadband Initiative at the Federal Communications Commission, gave a speech at the birthday party of sorts for the National Broadband Plan, which turned four years old. In his speech, Levin identified four key strategies from the US broadband plan -- and in every national broadband plan around the world: 1) Driving fiber deeper; 2) Using spectrum more efficiently; 3) Getting everyone online; and 4) Using the platform to improve delivery of public goods. Levin says the right question for the fourth anniversary of the report is ‘Are we improving in executing on those 4 strategies?’ In light of the first goal of the National Broadband Plan, that at least 100 million US homes should have affordable access to actual download speeds of at least 100 megabits per second and actual upload speeds of at least 50 megabits per second by 2020, the data shows that just less than 57% of US households (so roughly 78.5 million) have access to wireline broadband offering download speeds of 100Mbps or more and just more than 18% (approximately 25.4 million) have access to upload speeds of 50Mbps or more. If you’re thinking wireless Internet access could help, just 3% of US households can access wireless broadband offering download speeds of 100Mbps or more and 4.2% have access to wireless upload speeds of 50Mbps or more. Far from 100Mbps, the median wireless connection delivers just 2.1 Mbps.

In assessing the National Broadband Plan's execution to "drive fiber deeper," Blair Levin noted that Google Fiber has sparked activities in nearly 40 communities and inspired efforts by AT&T, CenturyLink, CSpire, and Gig.U. But most of these efforts can be characterized as neighborhood projects: bringing high-speed broadband to the sections of cities that display the greatest demand -- and the resources to pay for it. Given the poor broadband performance in the US and the ongoing digital divide, we're still a long way from realizing the top goal of the National Broadband Plan -- and a long, long way from bringing affordable, high-capacity broadband to everyone in the US.