Internet/Broadband

On the surface, the investigation was routine. Federal agents persuaded a judge to issue a warrant for a Microsoft e-mail account they suspected was used for drug trafficking. But US-based Microsoft kept the e-mails on a server in Ireland. Microsoft said that meant the e-mails were beyond the warrant’s reach. A federal appeals court agreed. Late in June, the Trump administration asked the Supreme Court to intervene. The case is among several legal clashes that Redmond (WA)-based Microsoft and other technology companies have had with the government over questions of digital privacy and authorities’ need for information to combat crime and extremism.

Privacy law experts say the companies have been more willing to push back against the government since the leak of classified information detailing America’s surveillance programs. Another issue highlighted in the appeal is the difficulty that judges face in trying to square decades-old laws with new technological developments. In the latest case, a suspected drug trafficker used Microsoft’s email service. In 2013, federal investigators obtained a warrant under a 1986 law for the e-mails themselves as well as identifying information about the user of the e-mail account. Microsoft turned over the information, but went to court to defend its decision not to hand over the e-mails from Ireland.

[Commentary] It’s clear that most US consumers depend upon a few big players in order to access the internet. Therefore, the critical question is whether these companies have the incentive and ability to harm consumers and competition. That is, are they motivated to control what kinds of innovations come to consumers? And do they have the tools to do so? Both the Federal Communications Commission and the Department of Justice have recognized in recent proceedings that the answers are yes and yes.

In 1776, Thomas Paine didn’t need the permission of any other content creator or distributor to circulate Common Sense. But without rules prohibiting blocking, throttling, and the like, broadband providers would gain the power to limit what unpopular content flows over their networks—to the detriment of consumers and democracy. One challenger to the 2015 Open Internet Order argued exactly this to the DC Circuit: that the rules violated its right to block legal but unpopular content. An Open Internet has worked for America, creating a virtuous circle of innovation, trust, adoption, and further innovation. That circle should not be broken.

[Terrell McSweeny is a commissioner of the Federal Trade Commission. Jon Sallet is the former general counsel of the Federal Communications Commission. Both are alumni of the antitrust division of the Department of Justice]

In its analysis of data from 2012 through 2014, the Government Accountability Office was unable to confirm the eligibility of 30 percent of Lifeline users it examined. Opponents hail this finding as proof of widespread fraud. However, the GAO didn’t determine that these individuals were ineligible; it was simply unable to verify whether providers had complied with eligibility guidelines. The GAO also conducted undercover investigations, submitting a total of 21 Lifeline applications using false information and fabricated supporting documents. Investigators were able to secure service from 12 of the 19 Lifeline providers. Notably, the GAO underscored that the tests were “for illustrative purposes to highlight any potential internal control vulnerabilities and are not generalizable.”

Although investigators were able to leverage their expertise to deceive certain Lifeline providers, the GAO itself admits this effort doesn’t prove that the program is plagued by fraud. But none of that will stop Lifeline critics — including Federal Communications Commission Chairman Ajit Pai — from using the GAO report to intensify attacks on the program and malign its users. They will continue to dismiss the tremendous opportunities Lifeline has provided for millions of people — and the millions more whose lives can be improved with Lifeline’s new broadband offerings.

The Fiber Broadband Association commended the Federal Communications Commission’s efforts towards removing regulatory roadblocks to nationwide broadband deployment. FBA also offered significant barrier-reducing steps to help make that happen. First, FBA suggested that the Commission should amend its pole attachment rules to address practices of many pole owners and existing attachers that delay and increase the cost of access. Second, FBA urged the Commission to repeal the 2015 network change notification rule, which imposes an unnecessary and costly process, thereby hindering investment in fiber infrastructure. Third, FBA proposed that the Commission adopt criteria that can be used to readily determine which state and local laws and regulations violate Section 253 of the Communications Act and inhibit broadband deployment.

This study evaluates the estimated impact of the Federal Communications Commission’s recent efforts to remove barriers to investment into next-generation wireless and wireline broadband networks, and thereby to accelerate the transition from legacy copper networks to next-generation services.

We estimate that these proposed changes could have a significant impact not only on new wireless and wireline broadband infrastructure investment, but could also positively impact job creation, economic output and consumer welfare. Our models forecast that with these new rules in place, up to an incremental 26.7 million premises would become economical to serve with next generation networks, driving up to $45.3 billion in capital investment. This investment would be made by incumbent service providers across the country and is expected to take place over at least five years.

The Federal Communications Commission has adopted the order clarifying that the rules on phone privacy are back in effect and dismissing as moot challenges to the telecom broadband privacy rules Congress nullified through a Congressional Review Act resolution. The vote was unanimous but with commissioner Mignon Clyburn dissenting in part and with a lot to say about what she viewed as the remaining lack of clarity about broadband privacy protections.

FCC Chairman Ajit Pai circulated the item earlier this month, which also reminds telecoms of their annual privacy compliance certification obligations. The FCC went straight to an order rather than putting the item out for notice and comment, explaining that "because we are simply recognizing the effect of the resolution of disapproval, we find that notice and public procedure are unnecessary to reflect this action in the Code of Federal Regulations."

[Commentary] The online privacy debate belongs in the halls of Congress, with Republicans and Democrats forging a consensus on how best to protect and empower consumers. I know members on both sides genuinely share concerns about protecting Americans' privacy. The BROWSER Act's opt-in regime will give consumers greater control over how their sensitive personal information is shared and establish regulatory consistency by treating Internet service providers and "edge" providers the same. Having two cops on the beat enforcing different sets of rules isn't fair to anybody and will lead to less certainty when it comes to protecting the privacy of Americans.

Broadband privacy sparked the latest Federal Communications Commission dustup. At issue was an FCC order making it clear the 2016 broadband privacy regulations are gone from the agency rule book, as required by a congressional resolution of disapproval back in March. FCC Commissioner Mignon Clyburn used her partial dissent as an opportunity to argue the Republican majority is willing to leave broadband customers without privacy protections. FCC Chairman Pai took issue with that, saying he brought the “ministerial” item to a vote at her request, but she offered no suggested changes. “I am therefore perplexed by her decision to dissent in part,” Chairman Pai said. “When a commissioner does not share her concerns about an item until after she casts her vote, it makes it difficult to work together to find common ground.”

This reply to "The Curious Absence of Economic Analysis at the Federal Communications Commission" (Faulhaber, Singer, & Urschel, 2017) makes three claims.

First, we document the paper's undisclosed origins as a white paper commissioned by an advocacy group with deep ties to the telecommunications industry. Second, we describe two of the authors' active participation, on behalf of clients, in a range of contested issues before the FCC in recent years, none of which they disclose. Finally, our review of FCC workshops, roundtables, seminars, dockets and rulings—including during its landmark 2015 Open Internet Order and several blockbuster mergers and acquisitions—provides detailed evidence to refute the paper's core "curious absence" charge. The stakes could not be higher, we conclude, as the new FCC chair Ajit Pai has repeatedly referenced the paper to justify his rollback of FCC regulations—including, crucially, the common carriage/net neutrality rules so vigorously opposed by the paper's funders.

In the fierce fight over Federal Communications Commission Chairman Ajit Pai's effort to roll back the network neutrality rules, it won't be Chairman Pai or his opposition who has the final say. The battle is almost certainly headed to a familiar place — federal court — where judges will determine its fate. Throughout the decade-old debate over whether and how to regulate internet access, the issue has sparked repeated lawsuits that sent FCC officials back to the drawing board. Players on both sides say it’s all but certain this latest go-around will end in litigation again. "When I was general counsel, I didn’t think that what the FCC said was the last word on the matter. I knew there would be a day in court," Jon Sallet, who served as the agency's top lawyer in the Obama era, said during a net neutrality town hall