Technology Academics Policy

Antitrust Provides a More Reasonable Regulatory Framework than Net Neutrality

In 2015, the Federal Communications Commission (FCC) imposed network neutrality rules on Internet Service Providers (ISPs). The rules depressed investment and harmed consumers. In 2017, the FCC started a proceeding to end net neutrality regulation. Antitrust law can address harm to innovation arising from anticompetitive acts by ISPs.

Congress’s Attempt to Repeal the FCC Internet Privacy Rules: The Void Will Be Filled

[Commentary] The Federal Communications Commission Internet service provider privacy rules had many reasonable protections. Judging from the extensive media attention and negative public reaction, it strikes many people as creepy and wrong for ISPs to share their browsing history or health information without affirmative consent. Given these sentiments, I don’t think that repealing the FCC rules will be the last move.

[Daniel J. Solove is a professor at George Washington University]

A Gaping Hole in Consumer Privacy Protection Law

[Commentary] Recently, the US Court of Appeals for the 9th Circuit issued a decision with profound implications for consumer privacy protection law. In FTC v. AT&T Mobility (9th Cir. Aug. 29, 2016), a 3-judge panel of the 9th Circuit held that the Federal Trade Commission (FTC) lacks jurisdiction over companies that engage in common carrier activity. The result is that there is now a gaping hole in consumer privacy protection law.

Ironically, if this decision isn’t reconsidered and if this hole isn’t patched up, the result will not be a great boon for companies falling outside of FTC regulation. Instead, in the long run, these companies will likely be much worse off. Everybody will lose — consumers and industry. There is nothing good about the 9th Circuit decision, which is foolhardy and naive, the product of abstract musings in the clouds without sufficient consideration of the consequences.

[Daniel Solove is a profess at George Washington University School of Law]

Privacy Paranoia: Is Your Smartphone Spying On You?

[Commentary] “Smart” devices are spying on us. GoogleMaps tracks our location, smart home lights figure out our vacation, PillDrill knows our medication, and Fitbit records our dedication. Siri or Alexa, needless to say, report every breath we take. The technological rise of data-driven devices is universally embraced by consumers. Machines that used to provide simple static functionality now perform data-intensive advisory roles. These “smart” machines transmit through the “Internet of things” information on how they are being used, and are fed back with alerts prompting consumers to improve usage, save money, and—truth be told—buy more products. There are smart cars, coffeemakers, refrigerators, alarms, baby monitors, watches, wallets, t-shirts, racquets, Barbie dolls and of course phones.

For some observers, however, these machines are threatening social order. In the emerging fraternity of “privacy alarmists,” “smart” is code name for surveillance. Smart devices are spies who infiltrated our intimate spaces, watching us, eavesdropping our conversations, and reporting back to their corporate headquarters. This information is then stored forever and used to prescribe the way we live. It is also used to enrich the creators of these gadgets. Privacy alarmists view the dissemination of smart devices and the resulting collection of private information as a plot to deny citizens their autonomy and control. Yes, smart devices transmit information to computers that emit pre-programmed feedback in response. But no, there is no “they” there, no eyes watching us, no surveillance or monitoring–there is no Manchuria. Individuals are not targeted, wiretapped, spied on, or exposed. Instead, databases about populations are assembled, statistical patterns are detected, and greatly beneficial personalized services are offered by automata.

[Omri Ben-Shahar is a law professor and Kearney Director of the Coase-Sandor Institute for Law and Economics at the University of Chicago Law School]

Privacy and Data Security Harms

[Commentary] Suppose your personal data is lost, stolen, improperly disclosed, or improperly used. Are you harmed?

Suppose a company violates its privacy policy and improperly shares your data with another company. Does this cause a harm? In most cases, courts say no. This is the case even when a company is acting negligently or recklessly. No harm, no foul.

[Solove is Professor of Law at George Washington University]

Privacy Implications of Social Media Manipulation

[Commentary] The ethical debate about Facebook’s mood manipulation experiment has rightly focused on Facebook’s manipulation of what users saw, rather than the “pure privacy” issue of which information was collected and how it was used.

The key point is that the privacy impact of an interaction like this depends not only on which types of information are gathered, but also on which prompts were given to the user and how those prompts were chosen. Experimenting on users affects their privacy.

Now: What can we learn about the privacy impact of Facebook’s experiment? Facebook did learn some non-zero amount of information about the manipulability of individual users’ emotions. Given the published results of the study, the information learned about individual users was probably very weak, in the statistical sense of being correlated with the truth but only very weakly correlated, for the vast majority of users or perhaps for all users.

Ultimately, experiments that manipulate user experience impact users’ privacy, and that privacy impact needs to be taken into account in evaluating the ethics of such experiments and in determining when users should be informed.

[Felten is Director, Center for Information Technology Policy, Princeton University]

Does the US Supreme Court's Decision on the 4th Amendment and Cell Phones Signal Future Changes to the Third Party Doctrine?

[Commentary] The US Supreme Court handed down a decision on two cases involving the police searching cell phones incident to arrest. The Court held 9-0 in an opinion written by Chief Justice Roberts that the Fourth Amendment requires a warrant to search a cell phone even after a person is placed under arrest.

The two cases are Riley v. California and United States v. Wurie, and they are decided in the same opinion with the title Riley v. California. I applaud the Supreme Court's decision.

The Court's reasoning in Riley suggests that perhaps the Court is finally recognizing that old physical considerations -- location, size, etc. -- are no longer as relevant in light of modern technology. What matters is the data involved and how much it reveals about a person's private life.

If this is the larger principle the Court is recognizing today, then it strongly undermines some of the reasoning behind the third party doctrine.

[Solove is the John Marshall Harlan Research Professor of Law at George Washington University Law School]

Goodbye, Net Neutrality; Hello, Net Discrimination

[Commentary] In 2007, at a public forum at Coe College, in Iowa, Presidential candidate Barack Obama was asked about net neutrality. Specifically, “Would you make it a priority in your first year of office to reinstate net neutrality as the law of the land? And would you pledge to only appoint Federal Communications Commissioners that support open Internet principles like net neutrality?” “The answer is yes,” President Obama replied. “I am a strong supporter of net neutrality.”

If reports in the Wall Street Journal are correct, President Barack Obama’s chairman of the Federal Communications Commission, Thomas Wheeler, has proposed a new rule that is an explicit and blatant violation of this promise. In fact, it permits and encourages exactly what Obama warned against: broadband carriers acting as gatekeepers and charging Web sites a payola payment to reach customers through a “fast lane.”

FCC Chairman Wheeler released a statement accusing the Wall Street Journal of being “flat-out wrong.” Yet the Washington Post has confirmed that the new rule gives broadband providers “the ability to enter into individual negotiations with content providers … in a commercially reasonable matter.” That’s telecom-speak for payola payments, and a clear violation of President Obama’s promise.

This is what one might call a net-discrimination rule, and, if enacted, it will profoundly change the Internet as a platform for free speech and small-scale innovation. It threatens to make the Internet just like everything else in American society: unequal in a way that deeply threatens our long-term prosperity.

[Wu is professor at Columbia Law School]