Electronic Privacy Needs ICPA Update

Privacy advocates won an important victory in July when a federal appeals court ruled to limit the access of the U.S. government to individuals’ e-mail accounts.

The U.S. Court of Appeals for the Second Circuit said the federal government did not have the authority to issue search warrants for persons’ e-mails stored on servers outside the United States.  The case was brought by Microsoft Corp. in response to a warrant that would’ve compelled Microsoft to turn over customer e-mails stored on a server it maintained in Ireland.  The court affirmed that the Stored Communications Act (part of the broader Electronic Communications Privacy Act of 1986) did not give the government such powers outside U.S. territory.

This was a key judicial ruling to be sure. But it points up the increasingly urgent need for Congress to update that 1986 ECPA legislation to reflect the realities of today’s global digital environment.

Such legislative efforts have been initiated in recent years, only to languish in committee.  The most notable example was the Law Enforcement Access to Data Stored Abroad (or “LEADS”) Act, introduced in February 2015.

Writing about the LEADS Act when it was introduced, attorney Kurt Wimmer noted in an issue paper for The Media Institute that “cloud computing” as we know it today did not exist when the ECPA was enacted in 1986.  “Our current storage habits for digital records are precisely the opposite of the habits that existed in 1986, when ECPA was adopted,” he wrote.  And so it remains today.

However, there is new hope on the horizon.  On May 25, Reps. Tom Marino (R-Pa.) and Suzan DelBene (D-Wash.) introduced the International Communications Privacy Act (ICPA).  Senators Orrin Hatch (R-Utah), Chris Coons (D- Del.), and Dean Heller (R-Nev.) introduced identical legislation in the Senate.  These bills (H.R. 5323 and S. 2986) follow in the footstep of the LEADS Act in seeking to establish a rule of law for lawful access to data in the global environment.

Reps. Marino and DelBene (who had also introduced the LEADS Act) said in a statement:

“We were pleased that the LEADS Act gained such widespread support with more than 130 cosponsors in the House.  ICPA improves upon this effort by broadening industry recognition, and we believe it will earn an even greater backing from our colleagues in Congress.  This bill guarantees that users of technology have confidence that their privacy rights will be protected by due process while simultaneously ensuring law enforcement agencies have necessary access to information through a clear, legal framework to keep us safe.”

The bill stipulates that U.S. law enforcement could obtain warrants for the electronic information of U.S. persons physically located in the United States, or nationals of foreign countries that have a Law Enforcement Cooperation Agreement with the United States, provided the country does not object to the disclosure.  Thus, the ICPA would maintain the sovereignty of nations in protecting information stored within their borders.

By clarifying the rules surrounding the release of electronic information, the ICPA would not only protect individual privacy but would also improve the competitive posture of American companies doing business in the global digital economy.  Cloud computing will continue to revolutionize everything from newsgathering and financial transactions to the Internet of Things as the future of business migrates ever more rapidly to the cloud.  The rules governing privacy and the protection of information in that space need to be clear.

Updating the ECPA with the International Communications Privacy Act would reflect today’s reality of cloud computing and provide the legal framework needed to protect the privacy of individuals, support law enforcement, and promote a competitive environment for American companies.  Congress can’t afford to let this one languish.

Netflix, Self Interest, and Net Neutrality

The recent announcement by Netflix that it has been reducing the video quality of its programs on mobile networks for years – something the new net neutrality rules prohibit Internet service providers (ISPs) from doing – has sparked a firestorm by opponents of net neutrality regulations.

From the Federal Communications Commission (FCC) and cable and telecom interests have come expressions of outrage that Netflix never acknowledged this practice during the time when regulators were actively considering, and ultimately approving, utility-style regulation of ISPs.

Though Netflix has kept a low profile since acknowledging its throttling, it has averred that it did so to assist some of its customers in remaining under data caps.  FCC Commissioner Michael O’Rielly, though, takes a dim view of that argument, saying in a recent speech that “Netflix has attempted to paint a picture of altruism whereby it virtuously sought to save these consumers from bumping up against or exceeding their data caps.  There is no way to sugarcoat it: The news is deeply disturbing and justly generates calls for government – and maybe even congressional – investigation.” …

The thing that troubles O’Rielly is that this Netflix practice was never revealed in the company’s many filings to the FCC during that agency’s net neutrality proceeding.  >> Read More

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  The full version of this article appeared in The Hill on April 5, 2016.

Progressives’ Anti-Merger Mania

The proposed merger between the cable systems of Charter Communications, Time Warner Cable, and Bright House Networks has brought out the usual poseurs in opposition.  I speak, of course, of such as Common Cause, Consumers Union, and Public Knowledge (all of which are wrong in their usual and tiresome way, but not certifiable), and their more extreme kin, Media Alliance and Free Press.

As it happens, there exists a bridge between these armies of progressivism in the person of former FCC commissioner Michael Copps.  Since leaving the FCC, Copps has flocked to the aid of those organizations he favored when he was a commissioner.  So it is that the gentleman is now on the board of Free Press and a “special adviser” to Common Cause.

Which, of course, is why it’s important to know the kinds of things he’s saying about the merger.  Writing in Common Dreams (“Breaking News and Views for the Progressive Community”), Copps relieves himself of opinions like these:

This merger would create a new Comcast – a national cable giant with the ability and the incentive to thwart competition, diversity, and consumer choice….  >> Read More

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  The full version of this article appeared in The Hill on Feb. 9, 2016.

Title II Places Global Internet Freedom in Jeopardy

By guest blogger ROBERT M. McDOWELL, partner at Wiley Rein LLP in Washington, D.C.  Former FCC commissioner McDowell is chairman of The Media Institute’s Global Internet Freedom Advisory Council.

In February, the Federal Communications Commission reversed decades of bipartisan consensus on America’s foreign policy for the Internet when it adopted new “open Internet” rules.  These sweeping new regulations undermine America’s ability to resist increased government control of the Internet internationally, thus placing global Internet freedom and prosperity in jeopardy.

Proponents of more Internet regulation argued that “the strongest possible” laws were needed to prevent Internet service providers, such as cable and phone companies, from acting in anticompetitive ways and harming consumers by, say, blocking selected Web destinations.  Their solution?  Imposing regulations designed for the Ma Bell phone monopoly on 21st-century technology by declaring the Internet a public utility under Title II of the Communications Act of 1934.  After unprecedented pressure from the White House and net neutrality activists, the FCC abandoned a more moderate approach in favor of Title II classification.

It is important to remember that this represented a stunning reversal of the policies of the Clinton and Bush administrations.  Both presidencies rejected regulating the Internet like a public utility – domestically or internationally – instead adopting a highly successful “hands-off” approach.   The result: The Internet is the greatest global deregulation success story of all time.

Despite the long-held policy against subjecting the Internet to telephone-style regulations, the FCC’s imposition of more than 1,000 new regulations under Title II – including the power to set “rates, terms, and conditions,” will serve to legitimize international efforts to expand government control of the Internet as well.  With America’s bargaining power regarding the issue of Internet freedom weakened as a result, countries like Russia and China may encounter less resistance to increased multilateral authority over the Net.

Furthermore, the FCC’s new rules could have tangible consequences for America’s existing treaty obligations.  For example, defining the Internet as a phone network may trigger expanded jurisdiction over the Web through existing treaties of the International Telecommunication Union, a regulatory arm of the United Nations.  In reaction to similar proposals in 1998, President Clinton’s FCC chairman, William Kennard, presciently said that “classifying Internet access services as telecommunications services could have significant consequences for the global development of the Internet.”

In 2012 at the World Conference on International Telecommunications (WCIT), the United States led a coalition of 55 nations that refused to sign a global treaty that would presume new authority to regulate disparate aspects of the Internet.  Now, however, with more government intrusion into this space at home, maintaining such global coalitions in the future will become increasingly more difficult.

Another potential consequence of the FCC’s rules is an unintended encouragement of intergovernmental rules to impose “sending party pays” fees for international Internet traffic that terminates on networks owned by foreign phone companies.  Such a plan was put forward in 2012 by a handful of European phone companies and ITU member states.  Fortunately, the plan was rejected, as the Unites States and others recognized it would increase costs for consumers as Internet content and app companies would have to pay fees – as a matter of international law – that would be passed on to all Internet users.

Additionally, China continues to advance a proposal to make a special committee of the U.N. General Assembly the dominant body to determine global Internet governance.  Meanwhile, Russia has joined China in sponsoring an “international code of conduct for information security” at the U.N. that would authorize Internet censorship and enshrine multilateral state control of the global network.  These countries have many client states that would support them in a one-country-one-vote treaty adoption.

This week, many of these same countries will be advocating their vision of the Internet’s future at a major international conference at U.N. headquarters in New York.  Global multilateral oversight and regulation of the Internet is their goal.  Included in the written submissions preceding the conference is a proposal by China, and members of the G-77 group of developing countries, calling on member states to reject use of the Internet for “subversive” or “political” purposes.

Also this week, China hosts the Second World Internet Conference.  With government leaders from Russia, Tajikistan, Kyrgyzstan, and Kazakhstan – among others – in attendance, the purported goal of the conference is to promote “an interconnected world shared and governed by all.”  At the conference, China will continue to push for “Internet sovereignty,” a vision for Internet governance that threatens to fundamentally transform the Internet from a truly international information sharing platform, to a compartmentalized series of intranets heavily regulated by governments.

By reversing decades of bipartisan agreement to limit Internet regulation, the FCC has created an irreconcilable contradiction between America’s domestic and foreign policies.  Unfortunately, the cause of an open and freedom-enhancing global Internet will suffer as a result.

Net Vitality Should Be the Cornerstone of U.S. Broadband Policy

By guest blogger PROF. STUART N. BROTMAN, faculty member at Harvard Law School and author of the study Net Vitality: Identifying the Top-Tier Global Broadband Internet Leaders published by The Media Institute.  Prof. Brotman is a member of the Institute’s Global Internet Freedom Advisory Council.  The full version of this article appeared in The Hill on April 24, 2015.

The Federal Communication Commission’s recent Open Internet Order is intended to develop an enforceable regulatory scheme to ensure that net neutrality would be achieved.  One of its rationales is that unless such government intervention is put in place, the United States is likely to slip into the category of Internet also-rans, hurting innovation and our economy as a whole as Internet “fast lanes” and “slow lanes” thwart competition and impede consumer demand.

But how accurate is this perception?  The Internet, after all, is not just a network of networks, but rather a complex ecosystem comprised of applications and content, devices, and networks.  The interdependency of these three pillars creates the rich experience of the Internet, not just in the United States, but all around the world.

And consumer usage patterns continue to be extraordinarily dynamic, as well.  More people now access the Internet through mobile devices, such as smartphones and tablets, than on desktops and laptops tethered in homes, for example.  And more people now rely on apps rather than browsers to get the information and help they need more readily.  Policies premised on fixed residential use of fiber-based broadband do not seem to recognize that these seismic changes already have occurred.  >> Read More

The FCC’s Wheeler of Fortune

LAS VEGAS – Federal Communications Commission (FCC) Chairman Tom Wheeler’s speech yesterday to broadcasters attending the NAB (National Association of Broadcasters) Show here dealt primarily with broadcast-specific subjects.  But as expected, he also used the occasion to tout the Commission’s new Open Internet Order, arguing that broadcasters should support it because, like the must-carry rules, the order “assures that your use of the Internet will be free from the risk of discrimination or hold-up by a gatekeeper.”

To characterize this claim as 100-proof claptrap would be to understate the case.  Put simply, no Internet service provider has, or would have, the tiniest interest in discriminating against anything broadcasters might want to put online.  Indeed, net neutrality is widely embraced by the phone and cable companies.

The real issue is the way in which the FCC – through Title II regulation – proposes to define and enforce net neutrality in the future.

Much has been said about the inefficiencies and investment-reducing effects of Title II regulation, and most all of it is true.  But the less-well-discussed aspect is the potential in it for activist groups and ideologues like Free Press and kindred organizations to exploit this order in attempts to impose certain types of content controls.  >> Read More

Is This What Net Neutrality Is Really About?

Recent congressional hearings held in the wake of the Federal Communication Commission’s (FCC) net neutrality ruling provide a glimpse into what is so deeply wrong with this regulation, and why so many activist groups were behind it.

It’s an aspect of this matter of which you were perhaps unaware while the FCC was considering its regulatory strategy. Perhaps you thought net neutrality meant what was said of it: that it was intended to prevent the blocking or throttling of websites, or of “paid prioritization.”

Silly you.  Actually, those were the interests of those companies — like Google and Netflix — that saw in governmental sway over the Internet commercial benefits for themselves.  But what about those groups and individuals who had political or ideological interests, and who played such outsized roles in the deal?

You know, groups like Free Press, Media Matters, Public Knowledge and New America’s Open Technology Institute?  Or what about the large grant-giving foundations, like Ford, MacArthur, Knight, and George Soros’s Open Society Institute that, in addition to munificently funding third-party net neutrality activists, directly lobbied the FCC themselves?

It should now be clear, even to those who weren’t paying attention earlier, that the primary interest these groups had, and have, in net neutrality is their desire to insinuate government in the regulation of speech on the Internet.  >> Read More

 

The LEADS Act and Cloud Computing

Bipartisan legislation, introduced last month in the House and Senate, promises to reform and update the antiquated Electronic Communications Privacy Act (ECPA) and in the process push back against the practice by agencies of government to gain access to personal data stored on U.S. corporation servers abroad.

The legislation, called the LEADS Act, is co-sponsored in the Senate by Sens. Orrin Hatch (R-Utah), Chris Coons (D-Del.), and Dean Heller (R-Nev.), and in the House by Reps. Tom Marino (R-Pa.) and Suzan DelBene (D-Wash.).

Short for “Law Enforcement Access to Data Stored Abroad,” the LEADS Act’s principal improvements on ECPA are in recognizing that U.S. law enforcement may not use warrants to compel the disclosure of customer content stored outside the United States unless the account holder is a U.S. person, and by strengthening the process – called MLATs (mutual legal assistance treaties) – through which governments of one country allow the government of another to obtain evidence in criminal proceedings.

One of the better examples of the need for updating ECPA centers on a government warrant served on Microsoft for the contents of the email of an Irish citizen stored on a Microsoft server in Dublin.  >> Read More

What Changed the FCC Chairman’s Mind?

On the occasion last week of the Federal Communications Commission (FCC)’s passage of “net neutrality” regulations, Tom Wheeler, chairman of the Commission, announced that it was “the proudest day of my public policy life.”  It’s not known whether that statement is a reflection of how little Wheeler feels he’s accomplished in life, or an embarrassing attempt to take credit for something that was forced on him.

What we do know is that the regulation that passed with his vote – and those of the other two Democrats on the Commission – was not the much sounder one Wheeler initially proposed, but a radical version that carries within it opportunities for mischief and much worse than that.

So what happened to change Wheeler’s mind?  The most obvious explanation is the interjection of President Obama who, a few weeks before the vote, publicly stated his view that the FCC should subject Internet service providers (ISPs) to utility-like regulation.  This is the explanation for Wheeler’s switch held by most insiders, and there’s no doubt that these FCC commissioners, their notional “independence” notwithstanding, move like earlier ones to the music of their parties and the presidents who appoint them. >> Read More

Who’s Behind the Push for Net Neutrality?

If “net neutrality” were a life form, it would be classified as a simple organism.  And that lack of complexity, as it happens, is its very appeal to certain “progressives,” garden-variety regulators, and large Internet companies, who see in government regulation of the Internet opportunities to cement and extend their franchises.

The brave and gifted Federal Communications Commission (FCC) Commissioner Ajit Pai, and former commissioner Robert McDowell, are doing all they can to point out the many already identifiable problems, as well as potential pitfalls, that line the path of this regulatory nightmare.  Among those problems are higher user fees to consumers, a slowdown in the rate of investment in broadband infrastructure, regulatory creep, and the wrong kind of example to set before foreign dictators and tyrants.

Alas, none of this is likely to deter the three Democratic FCC commissioners, as instructed by the White House, from passing this regulation.

What has not been much discussed in all of this is the role in the promotion of net neutrality played by some of the actors: activist groups like Free Press, Public Knowledge, and Media Matters; huge grant-giving foundations like the Ford, Soros, and Knight foundations; and companies like Google.   >>Read More