Op-Ed

[Commentary] What developers need is an internet where anyone that’s smart, hardworking, and a little lucky can win. Not a playing field that is rule-free, but one where the rules are known, and where rules are stable and consistent. The flaw in an Federal Communications Commission-driven internet is that the rules reflect the ideology of the sitting commissioners. When the referees change, the rules change too. That frustrates investors, stifles entrepreneurs and kills innovation. But the fix is simple: Congress must establish a permanent set of net neutrality rules and remove the FCC from the game. A set of rules, established by Congress, can easily put the issue of net neutrality to rest and support future investment and innovation in a strong, stable, and open internet. Any other course would be, well, Groundhog Day.

[Bruce Gustafson is a senior advisor for the Application Developers Alliance.]

[Commentary] President Barack Obama made it seem as if Title II is the only way to protect the free and open internet, and the result was 2015’s comprehensive regulatory order enshrining net neutrality. But some critics of the 2015 order insist that the Federal Communications Commission could have used more limited approaches that might have relied primarily on Title I or on Section 706 of the Telecommunications Act of 1996. They’ve argued that Title II classification is both bad policy and bad law, but so far, the 2015 order has survived its challenges in federal court. Now FCC Chairman Pai—who had served as a Republican commissioner for four years during Obama’s presidency—has proposed new rules that would roll back the 2015 order and reverse broadband classification under Title II. Of course, rolling back the 2015 framework also could mean that broadband providers feel more freedom under the FCC’s rules to block, throttle, or prioritize services—something that ISPs could certainly use unfairly. But revisiting the 2015 rules may also enable providers to do the kind of “reasonable network management” that President Obama mentioned, like allocating more bandwidth to video streaming services or lower latency for Voice over Internet Protocol services.

Some advocates see the reversal of the Title II classification as a threat to the very possibility of net neutrality. But the fact is that even when the Democrats held a majority of seats on the commission during Chairman Tom Wheeler’s chairmanship and before, there was some widespread belief at the commission that net neutrality might be achieved through non–Title II approaches—until President Obama urged the commission to use Title II instead. What’s more, Chairman Pai says he welcomes public input and wants to build a bipartisan consensus—like the one that has informed commission policy since at least the Clinton era—about how to deal with net neutrality issues. Pai also insists that he has been “pretty consistent about my view that I favor a free and open internet.” Some critics of the latest move may dismiss Pai’s statements as empty rhetoric, but dismissing the invitation to contribute to this new proceeding will only hurt the debate over the future of net neutrality.

[Mike Godwin is a senior fellow with the R Street Institute. Tom Struble is a technology policy manager with the R Street Institute.]

[Commentary] When the government engages in prospective cell-site surveillance, it obtains a court order requiring a cell provider to provide the phone’s location at that moment in “real time.” That contrasts with collection of historical cell-site records, when the government obtains a court order requiring the provider to hand over stored records retained by a cell provider in the ordinary course of business from some time in the past. Although every circuit court and state supreme court to rule on historical cell-site collection has concluded it is not a search, the Florida Supreme Court ruled in Tracey v. Florida that prospective cell-site surveillance is a search. Importantly, Tracey went out of its way to say that it was ruling only on prospective surveillance and not on historical collection. On May 22, the U.S. Court of Appeals for the Fifth Circuit ruled in United States v. Wallace that the reasoning of its precedents on historical collection applies equally to prospective cell-site surveillance. In Wallace, the Texas Department of Safety had a warrant out for the arrest of a gang member. The police knew the suspect’s cell phone number, so they obtained what the opinion calls a “Ping Order” authorizing the police to determine the locations of cell site towers being accessed by a number.

[Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School]

Wael Ghonim’s anonymous Facebook page helped start a revolution in Egypt. Here is what he concluded about social media today

[Commentary] A fridge that puts milk on your shopping list when you run low. A safe that tallies the cash that is placed in it. A sniper rifle equipped with advanced computer technology for improved accuracy. A car that lets you stream music from the Internet. All of these innovations sound great, until you learn the risks that this type of connectivity carries. The early Internet was intended to connect people who already trusted one another, like academic researchers or military networks. It never had the robust security that today’s global network needs. As the Internet went from a few thousand users to more than three billion, attempts to strengthen security were stymied because of cost, shortsightedness and competing interests. Connecting everyday objects to this shaky, insecure base will create the Internet of Hacked Things. This is irresponsible and potentially catastrophic. It may be hard to fix security on the digital Internet, but the Internet of Things should not be built on this faulty foundation. Responding to digital threats by patching only exposed vulnerabilities is giving just aspirin to a very ill patient. It isn’t hopeless. We can make programs more reliable and databases more secure. Critical functions on Internet-connected objects should be isolated and external audits mandated to catch problems early. But this will require an initial investment to forestall future problems — the exact opposite of the current corporate impulse. It also may be that not everything needs to be networked, and that the trade-off in vulnerability isn’t worth it. [Tufekci is an assistant professor at the School of Information and Library Science at the University of North Carolina]