Don’t Let Huawei Control 5G

President Trump has taken a firm stand against Huawei, the Chinese telecom behemoth – and for good reason.  Huawei is not your garden-variety Chinese company in the same vein as Tencent, Alibaba, or Baidu.  By many credible accounts, Huawei is a corporate extension of the Chinese government, replete with Beijing back channels and generous government support. 

In a report released by the U.S. Permanent Select Committee on Intelligence back in 2012, Huawei and ZTE Corp., another Chinese company, were described as potential threats to U.S. security interests precisely because of Chinese government involvement.  Last month, the U.S. Navy reported it was under intense “cyber-siege” by Chinese hackers.  These follow a litany of allegations that have Huawei engaged in spying, commercial espionage, and intellectual property theft over many years.

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Broadcasting Today: Energized by Innovation

There is a saying that goes, “Everybody has a story to tell.”

My own NAB Show story began a decade ago – almost to this day, in fact – when I spoke at my first show as the new president and CEO.  On that morning, I shared the story of broadcasters’ unrelenting commitment to always be there for their communities … to inform them … and to help them.

It is a deep-rooted commitment that manifests itself in many ways that often go unnoticed – in ways that have become ingrained in everyday life for millions of Americans.

Our communities turn on the radio to find out what the weather is like before heading to work … to learn how to help their neighbors in need … or to listen to the great personalities who seem like old friends.  They turn on their televisions to watch their favorite local news anchor and to get an unbiased report of what is happening in their communities.

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The Continuing Leadership of the U.S. in Global Net Vitality

Regardless of your political leanings, the just-released report by the Telecommunications Research and Policy Institute shows that with regard to the global broadband Internet ecosystem, there is no need to Make America Great Again.  That’s because the U.S. leadership role in this field remains well established, as documented in the study that I authored – “Net Vitality 2.0: Identifying the Top–Tier Global Broadband Leaders – The Net Vitality Index In Detail” (available at trpiresearch.org).

This is the only evidence-based analysis that compares countries on an apples-to-apples basis, based on four essential elements that work together seamlessly to create the Internet’s vitality that we rely on in virtually every aspect of our daily lives.  These are (1) applications and content; (2) devices; (3) networks; and (4) innovation and competitiveness indicators.  Omit one of these elements from the internet equation and the value of the Net to all of us would be greatly diminished.

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The Enduring Threat of Net Neutrality

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H.L. Mencken

No regulatory issue in memory has been quite like that of “net neutrality.” A solution in search of a problem, bankrolled and of early and particular economic benefit to two companies, and a regulation that threatens to give government sway over an industry where it had none before, network neutrality by regulation defies logic, history, and the way the world works. Other than that it’s one terrific idea.

Net neutrality was conjured up by an alliance of left-wing activists, Democratic commissioners of the FCC, and certain Internet companies and their trade associations. The regulations that followed have been on a devolutionary path, such that what was merely bad (net neutrality under Title I) became, in 2015, very much worse – net neutrality under Title II. Continue reading “The Enduring Threat of Net Neutrality”

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.

The Overblown Backlash Against Peter Thiel for Destroying Gawker

The news that pro wrestler Hulk Hogan’s lawsuit against Gawker has been financed by Silicon Valley billionaire Peter Thiel has sparked many opinions, some of them erroneous, some duplicitous, and some deeply shameful.

Before providing examples of each, a little background.  In 2007, Valleywag, a now-defunct blog site then owned by Gawker Media, outed Thiel, against his express wishes, as a homosexual.  Though he is in fact gay, Thiel was angry about this, and angry too about what he saw, and sees, as Gawker’s bullying journalism in its coverage of Silicon Valley’s tech industry.

For some apparent combination of these reasons, Thiel subsequently offered to covertly pay for Hogan’s legal fees in connection with the wrestler’s invasion of privacy suit against Gawker.  The gravamen of Hogan’s suit is that Gawker published online a secretly taped video of Hogan having sex with the wife of a friend of his.  At trial the jury awarded Hogan $140 million.

So right off the bat a couple of things are clear: Neither Hogan’s lawsuit nor Thiel’s payment of his legal fees are First Amendment issues, despite allegations to that effect in stories published by such as the New York Times>> Read More

Maines is president of The Media Institute.  The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Daily Caller on June 9, 2016.

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

 

Google, the FTC, and ‘Plausible’ Justifiability

Though it was surely not its intention, the Federal Trade Commission’s conclusion last week of its investigation of Google invites the question: What useful function does the FTC serve?

Not content, after two years of investigation on the taxpayers’ dime, to largely look past the mountain of evidence of marketplace harm caused by Google’s search and advertising practices, the Commission compounded that error by declining to issue a formal consent order, leaving it in the hands of Google itself, without the prospect of penalty, to change some of its business practices.

As even Commissioner J. Thomas Rosch said in his statement of concurrence and dissent, the FTC’s “settlement” with Google “creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the Commission.”

In elaboration of his dissent from the settlement procedure, Comm. Rosch added this:

Instead of following standard Commission procedure and entering into a binding consent agreement to resolve the majority’s concerns, Google has instead made non-binding commitments with respect to its search practices….

Our settlement with Google is not in the form of a binding consent order and, as a result, the Commission cannot enforce it by initiating contempt proceedings.  The inability to enforce Google’s commitments through contempt proceedings is particularly problematic given that the Commission has charged Google with violating a prior consent agreement.

What Comm. Rosch delicately calls “special treatment,” the more cynical of us would recognize as political influence peddling, a practice that Google has become quite adept at employing.  First it bankrolled the codification, at the Federal Communications Commission, of “net neutrality” regulations, thereby providing a solution to a nonexistent problem; then it led the successful opposition to the PIPA and SOPA copyright bills, the better to protect its investment in YouTube; now it has neutered the FTC, with the consequence being that it can continue to game its search results in ways that favor companies it controls.

So how has Google managed such political feats?  Well, would you believe that money has played a role?  In the FTC investigation alone Google reportedly spent some $25 million lobbying the matter.  To give an idea of the magnitude of this kind of spending, it equals 10 percent of the FTC’s total annual budget of $250 million.

But in addition to its FTC-specific lobbying, it’s well known that Google has cast its lot, through munificent campaign contributions and public policy support, with the current administration. Though it failed to come to pass, there was undoubtedly substance to the rumor that Google’s Eric Schmidt was being considered for a cabinet post in the Obama Administration.

Even so, there is evidence that the FTC commissioners know what they have done.  Their concluding statement about Google’s search practices, for instance, displays an almost comical defensiveness as they contend that, even if Google’s search practices favor its own companies, that is arguably okay:

In sum, we find that the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification.  Rather, we conclude that Google’s display of its own content could plausibly (emphases added) be viewed as an improvement in the overall quality of Google’s search product….  Although at points in time various vertical websites have experienced demotions, we find that this was a consequence of algorithm changes that also could plausibly be viewed as an improvement in the overall quality of Google’s search results….

Although our careful review of the evidence in this matter supports our decision to close this investigation, we will remain vigilant and continue to monitor Google for conduct that may harm competition and consumers.

Such limp-wristed rhetoric aside, there is a chance that Google will be brought to heel, just not by American authorities.  As it happens, the European Commission has also been investigating Google’s misdeeds, and the odds are good that, lacking the kind of political clout in Europe that it has in the USA, the company may actually receive from the Europeans something more than just a slap on the wrist.  On Dec. 18 the Commission gave the company 30 days to provide it with proposals to settle its complaints, something that could cost Google billions if it fails to do so.

Whatever the Europeans do, however, there remains the FTC’s foozled play, well put in a Bloomberg News editorial:

The FTC missed an opportunity to explore publicly one of the paramount issues of our day: Is Google abusing its role as gatekeeper to the digital economy?  Lawmakers, economists, other regulators, and consumers should all be in on this important debate over whether Google is leveraging its overwhelming dominance of search into unassailable market power in other areas. 

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

The Truth Behind Google’s Copyright-Bills Hysteria

Though the final chapter in the legislative history of the copyright bills hasn’t yet been written, a couple things are obvious even now: The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.

This provides the background for what happened within just a few days last week, as Congress was flooded with calls and mail, and petitions were signed by millions, in opposition to bills whose intent was to provide an effective way to combat content infringement on rogue websites abroad.

Didn’t matter that most fans of social media, file-sharing, blogs, and the like know next to nothing about communications policymaking, or even the details of the laws they were moved to oppose.  They know what they like, and dislike, and when manipulated into seeing the copyright bills as a threat they responded in great numbers.

None of which, of course, is to wonder why people feel more of a kinship with things like the social media than they do with the mainstream media.  The one-way and “one-to-the-many” aspects of the old media don’t empower people, or allow for their personal expression, in the manner of blogs or social media like Facebook and YouTube.

But the reason so many people were disposed to dislike the copyright bills, and their knowledge of what was actually in them, are two different things.  What moved them to act on their dislike was yet another.  For these parts of the story we have to look to the tech industry lobby, and Google most importantly.  It was Google that floated the canard that passage of the bills would forever change “the Internet as we’ve known it.”

The irony in Google’s claim was apparently lost on most of the media, tech and mainstream, which may explain why so few reporters pointed out that this alleged threat is word-for-word what the company said, 13 years ago, in opposition to another copyright bill (the Digital Millennium Copyright Act), passage of which has since proven to be a positive boon to Internet companies.

It may also explain why so few reporters pointed out that Google’s claims about the copyright bills – as precursors to the regulation of the Internet – are not just over the top but hypocritical.  It was, after all, Google that successfully lobbied, with the active help of a majority of FCC Commissioners, for so-called “network neutrality” regulations, the precedent of which provides not for just speculative but “here and now” regulation of the Internet.

Still, if crass exaggeration and hypocrisy were all that Google displayed in this regard, one might be inclined just to dismiss it as boys being boys.  But it didn’t stop there.  Google, and other groups that should know better, also gave expression and currency to the bunkum that the copyright bills amounted to an assault on the First Amendment.

That this argument was utterly demolished by the country’s leading First Amendment expert, Floyd Abrams, didn’t give them a moment’s pause, with the upshot being that this nonsense was parroted by all sorts of people as a reason for rejection of the bills.

In August of last year, The Media Institute filed a white paper with the Federal Trade Commission titled “Google and the Media: How Google is Leveraging its Position in Search to Dominate the Media Economy.”  Among other things, the paper demonstrated the ways in which Google profits from copyright infringement; that indeed the use of other people’s content without their permission has been at the heart of the company’s business plan.

Though the paper didn’t recommend any particular remedy, it asked the FTC to intervene in a way that would prevent the media economy from being dominated by a single entity.  Google’s conduct regarding the copyright legislation shows that, far from pulling back, its interest in this kind of domination is growing apace.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in the Dallas Morning News on Jan. 25, 2012.

 

Media Institute Response to ‘The Truth About Google, Search, and the Media Industry’

GUEST BLOG

[EDITORS’ NOTE:  Kurt Wimmer is a partner in the Washington, D.C., office of Covington & Burling LLP.  He is chairman of The Media Institute’s First Amendment Advisory Council, and is the principal author of the Institute’s white paper to the Federal Trade Commission about Google’s practices.  The article below is in response to the rebuttal of Oct. 6 by Adam Kovacevich of Google, which can be found on this site.]  

By Kurt Wimmer, Esq.

When Google wrote the Media Institute about the white paper we submitted to the FTC (“How Google is Dominating the Media Economy”), Patrick Maines invited Google to respond on this blog.  Frankly, we were pleased that we’d prompted a frank conversation about Google and the future of media.  We expected and were ready to welcome energetic disagreement with our position; after all, one of the Media Institute’s underlying missions is promoting a diversity of voices on major public policy issues.

But instead of deepening the debate, Google dusted off talking points that it’s been using for years, most of which our paper readily acknowledges. 

We don’t question, for example, that Google News drives some traffic to some publications’ websites.  Most viewers of Google News do not click through to any of the media sites from which Google scrapes content – about half of all users go no further than Google News and thus do not generate a dime for the content producers.  But we know that some traffic does flow from Google News to publishers’ sites.  We do have serious doubts about the “value” of this traffic, and we worry that, as it has in other areas, Google increasingly uses its News page to cannibalize whatever value there is.  Whether these websites can “opt out” of News is unhelpful because of the predicament News puts publishers in – opt-in, and feed the Google monster; opt-out and starve alone.  Our concerns do not relate to publishing only; as our paper pointed out, Google Places is following the Google News model in using its search dominance to scrape and scuttle local review websites.  Google’s response breezily ignores these points.

We have the same objections to Google’s treatment of Books and YouTube in its response, which again relies on broad statements rather than engaging in any serious debate.  Google simply bypasses our basic premise, which is that it has used its scale to coerce content makers into accepting the Google business model.  Google claims legal victory in the dispute between YouTube and Viacom, but the Second Circuit won’t hold oral argument to settle the matter until later this month.  Given the brazen evidence that YouTube was founded and grew on a business model of copyright infringement, we believe that Viacom is likely to take the upper hand – but we won’t claim victory until the Second Circuit rules, and suggest that Google should do the same.

And Judge Chin’s concerns about the Google Books Settlement have left that agreement hanging by a thread.  Though we disagree with Google’s legal arguments in both cases, we wouldn’t have criticized Google for offering an outspoken defense of those positions.  But Google, rather than addressing the colossal quantities of content it stockpiles at the expense of creators and competitors, offers only the same hollow defense: We bring books and video to a wider audience.  This is no help, in our view, given the costs that Google’s response sidesteps.  Infringement always brings works to a “wider audience” – an audience that the creators of the works did not agree to serve for free, and one that does not fund the creative spark that created the works.  In fact, both Google Books and YouTube exist not to bring works to a wider audience, but to create dominant platforms for works that deny creators the benefit of a competitive marketplace.

The rise of Google’s dominance in media deserves a candid discussion, both here and at the FTC.  We wish Google had contributed something new to the discussion, rather than just reiterating its weary talking points.  We would welcome any additional comments that Google would like to make in defense of its position or in rebuttal to our white paper.

                                   

The opinions expressed above are those of the writer and not necessarily of The Media Institute’s Board, contributors, or advisory councils.