Unanimous passage -- again -- of House legislation that aims to revamp the 30-year-old Electronic Communications Privacy Act (ECPA) doesn't necessarily guarantee approval in the Senate, and it may take some time before it's considered there. Sen. Mike Lee, R-Utah, plans to reintroduce a version of the House's Email Privacy Act (HR-387), which would require law enforcement to get a warrant to access emails older than 180 days old, a spokesman said. Lee's spokesman didn't say when the bill would appear but added that "we’re hopeful" about chances.
A provision in President Donald Trump's public safety executive order issued Wednesday directs agencies to exclude privacy rights of foreigners under the 1974 Privacy Act. Some privacy experts said they see the order as a harbinger of things to come in undermining the rights of non-U.S. citizens and permanent residents that could eventually endanger the EU-U.S. Privacy Shield, which was negotiated last year to provide adequate protection of Europeans' personal data.
Obama administration pushback to the Senate’s Mobile Now drafts last year targeted core bicameral and bipartisan spectrum proposals from Capitol Hill. Federal officials successfully killed attempts to provide financial incentives to federal agencies to relinquish spectrum and a mandate to free up a higher amount of spectrum, largely through criticisms never made public but shown in emails that Communications Daily acquired through a Freedom of Information Act open records request to NTIA. Emails also show the administration’s hand in adding language on bidirectional sharing and its objections to spectrum leasing language, which surprised some we interviewed who saw the critique.
The FCC touted its efforts to reduce barriers to entrepreneurs and small businesses in the communications industry, in a report to Congress listed in Friday's Daily Digest. Communications Act Section 257 requires the FCC to report on such efforts every three years. Among the items the commission cited were its net neutrality order to safeguard Internet "edge" opportunities, "designated entity" rules to facilitate the ability of start-ups to acquire licensed spectrum, unlicensed spectrum and spectrum sharing for innovative uses, and amended joint sales agreement rules and other actions to assist small broadcasters. "We have created unprecedented opportunities for new and diverse media voices to find audiences," said the report. "We have promoted vigorous competition on a playing field that is fair for both large and small firms, and that is consequently attracting record amounts of venture capital at the edge and in networks." Chairman Tom Wheeler's statement said: "Our Open Internet Order protects entrepreneurs and small businesses free and open access to the Internet, enabling innovation without permission. At the same time, we forbear from sections of Title II like rate regulation and unbundling that might reduce network owners’ incentives to continue building out their networks and investing in new technologies like 5G." Commissioners Ajit Pai and Michael O'Rielly partially dissented. Pai agreed some actions had helped small businesses, but others, such as Title II reclassification "disproportionately burdens smaller broadband providers." O'Rielly said, "At best, only a portion of this report can be said to be responsive to the law. Even if the statute were read to suggest a broader application, Congress certainly did not expect that the report would be considered as just another opportunity to proselytize in favor of the current Commission’s partisan agenda." O'Rielly also called it "alarming" that the report is more than two years late, following the last one in 2011, and without explanation. "I cannot support this blatant indifference to Congressional requirements," he wrote. "Overall, this report is flawed and extremely late. I approve its issuance, as required under the law, approve instances where it actually acknowledges and addresses legitimate and applicable market entry barriers for small businesses, and reject the rest."
The FTC is suing online contact lens retailer 1-800 Contacts, alleging it secured anticompetitive agreements with at least 14 rivals to "eliminate competition" in internet search advertising auctions that eventually resulted in some consumers paying higher prices for products, the commission said in a Monday news release. Commissioners voted 3-0 to approve the administrative complaint; a trial is scheduled to begin April 11. The FTC said Google and Bing sell ad space on their search engine results pages through computerized auctions. The commission alleged 1-800 Contacts "secured agreements" between 2004 and 2013 with at least 14 competitors to not bid against each other in certain auctions. The agreements stem from lawsuits that 1-800 Contacts brought against rivals for supposedly infringing on its trademarks, said the FTC. The commission said such agreements are "overbroad" and aren't needed to safeguard legitimate trademark interests. "These bidding agreements unreasonably restrain both price competition in search advertising auctions and the availability of truthful, non-misleading advertising," said the complaint, adding that such agreements violate Section 5 of the FTC Act for unfair competition. The agency said the alleged practice deprived customers "of the benefits of vigorous price and service competition," increasing their search costs. In an emailed statement, 1-800 Contacts General Counsel Cindy Williams said the company "strongly disagrees" with the FTC's contention that the agreements were designed to protect its trademark and hinder competition. "1-800 Contacts is confident in its legal position and will vigorously defend its intellectual property rights in response to the administrative complaint filed today by the FTC," she said. Williams said the company has a "long history" of promoting competition and consumer rights, "including championing the passage of the landmark Fairness to Contact Lens Consumers Act of 2003 that increased convenience and lowered prices for consumers, and opposing recent price fixing by manufacturers."
The head of medical testing company LabMD said he will appeal the FTC's ruling released Friday that found his company liable for unfair data security practices. Almost five months after oral argument (see 1603080005), the commission voted 3-0 to issue the opinion, which overturned a decision by its own in-house judge, who dismissed the case against the company in November. Chairwoman Edith Ramirez, who wrote the opinion, concluded the administrative law judge (ALJ) applied the wrong legal standard for unfairness.
EFF led the filing of a lawsuit Thursday against the federal government seeking to end enforcement of the Digital Millennium Copyright Act's Section 1201, claiming the DMCA's ban on circumvention of technological protection measures and its anti-trafficking provisions overly restrict First Amendment rights. EFF is representing Johns Hopkins University Information Security Institute assistant professor Matthew Green, media tech firm Alphamax and company owner Andrew Huang, who jointly filed the suit in U.S. District Court in Washington, D.C. The EFF-backed suit is directed at DOJ, the Library of Congress, Copyright Office and their leaders. EFF said Section 1201's provisions “broadly restrict the public’s ability to access, speak about, and use copyrighted materials, without the traditional safeguards -- such as the fair use doctrine -- that are necessary to protect free speech and allow copyright law to coexist with the First Amendment.” The threat of enforcement actions in the section “chills protected and noninfringing speech that relies on copyrighted works,” particularly speech about computer security research and the ability to shift the format of copyrighted works, EFF said. The CO triennial review process for considering exemptions to Section 1201's anti-circumvention rules doesn't “alleviate these problems” and is itself an “unconstitutional speech-licensing regime,” EFF said. Then-acting Librarian of Congress David Mao granted 10 exemptions in October after the CO's most recent triennial review, including a delayed exemption for security research. The office recommended against granting a proposed exemption allowing space-shifting and format-shifting of videos and other media for personal use (see 1510270056). EFF, which actively participated in the CO's most-recent Section 1201 triennial review and backed multiple exemptions, said it believes the LOC's failure to grant the format-shifting exemption and a broader security research exemption violate both the First Amendment and Administrative Procedure Act. “The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said EFF Staff Attorney Kit Walsh in a news release. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.” Public Knowledge Policy Fellow Kerry Sheehan lauded the EFF lawsuit, saying in a news release it “highlights fundamental failures by the Copyright Office in the DMCA exemption process. The Office has erected a litany of administrative barriers, not required by the law itself, to scholars, technologists, consumers, and many others ensnared by unintended consequences and indefensible applications of Section 1201. Even when the Copyright Office does recommend exemptions, they are often so narrow as to be practically useless. In light of the Copyright Office’s mismanagement, this constitutional challenge is hardly surprising.”
The FCC and stakeholders were saying little as the agency prepared to vote on a tech transition order Thursday. The agenda item is aimed at streamlining industry applications to discontinue legacy telecom services and giving price-cap carriers some additional relief. An FCC official recently told us a draft would take four main actions: (1) remove the "outdated designation" of ILECs as "dominant" in the legacy switched-access marketplace; (2) establish a framework for evaluating a request for discontinuing a legacy voice service as part of the technology transitions; (3) refine the FCC’s discontinuance and notice requirements to make sure the public "is aware of and prepared for" such transitions; and (4) partially grant a petition for reconsideration of an August 2015 order "to make a minor change" in the timing of Communications Act Section 214 discontinuance for competitors affected by a copper retirement (see 1606240069). An NPRM had proposed eight criteria for judging replacement services in discontinuance applications: (1) network capacity and reliability; (2) service quality; (3) interoperability; (4) service for individuals with disabilities; (5) public service answering point and 911 service; (6) cybersecurity; (7) service functionality; and (8) coverage. ILECs criticized the proposals as too burdensome and pushed for more streamlining, while civil rights groups and others sought further consumer protections, including by adding or strengthening consumer notification, education, affordability and broadband access safeguards (see 1607080043). "We have made a strong case that Internet access must be included in the 'adequate replacement' evaluation, and CWA certainly anticipates that the FCC will include this in its updated discontinuance rules," Communications Workers of America Telecom Policy Director Debbie Goldman emailed us Wednesday. A telecom industry official emailed: “The FCC is setting up a process whereby companies can seek permission to retire a service that fewer and fewer Americans are actually using. I doubt that, with all the options consumers have to communicate, the landline phone will ever pull a Pokemon and make a comeback. Nonetheless, we’ll see tomorrow how easy or streamlined or difficult the FCC will make the discontinuance process.” A lawyer involved in the proceeding said there's much opposition to the cybersecurity proposal, which could be watered down. Whatever the FCC adopts, the lawyer predicted the actual process of telcos converting legacy phone networks and services to broadband/IP systems is "going to roll in over an extended period," with carriers focused initially on urban areas. "The expectation that this is going to be a rapid transition is going to prove illusory," the attorney said. Many others didn't comment.
The 2016 draft Republican Party platform says Republicans don’t want government to be a “meddlesome monitor” on tech policy and attacked the FCC net neutrality order and broadband policies generally. The Republican National Convention platform committee began meeting Monday in Cleveland, the site of the GOP convention beginning next week, to start debating the GOP draft platform.
Before cable operators can replace paper communications with electronic ones, a host of cable subscriber safeguards are needed, mainly an opt-in option, some local government commenters said in docket 16-126. Friday was the deadline for replies to the NCTA/American Cable Association petition for declaratory ruling that would allow cable operators to send required notices or written information through email to subscribers for whom the operator has a confirmed email address (see 1603080052). One lawyer representing a filer in the proceeding told us the FCC could take up the petition as soon as this fall, if only to give the commissioners a topic that could result in a 5-0 decision.