Topic: Telecom, Internet & Information Policy

FCC’s Net Neutrality Nuclear Option

Proponents of network neutrality regulation are cheering the announcement this week that the Federal Communications Commission will seek to reclassify Internet Service Providers as “common carriers” under Title II of the Telecommunications Act. The move would trigger broad regulatory powers over Internet providers—some of which, such as authority to impose price controls, the FCC has said it will “forbear” from asserting—in the name of “preserving the open internet.”

Two initial thoughts:

First, the scope of the move reminds us that “net neutrality” has always been somewhat nebulously defined and therefore open to mission creep. To the extent there was any consensus definition, net neutrality was originally understood as being fundamentally about how ISPs like Comcast or Verizon treat data packets being sent to users, and whether the companies deliberately configured their routers to speed up or slow down certain traffic. Other factors that might affect the speed or quality of service—such as peering and interconnection agreements between ISPs and large content providers or backbone intermediaries—were understood to be a separate issue. In other words, net neutrality was satisfied so long as Comcast was treating packets equally once they’d reached Comcast’s network. Disputes over who should bear the cost of upgrading the connections between networks—though obviously relevant to the broader question of how quickly end-users could reach different services—were another matter.

Now the FCC will also concern itself with these contracts between corporations, giving content providers a fairly large cudgel to brandish against ISPs if they’re not happy with the peering terms on offer. In practice, even a “treat all packets equally” rule was going to be more complicated than it sounds on face, because the FCC would still have to distinguish between permitted “reasonable network management practices” and impermissible “packet discrimination.” But that’s simplicity itself next to the problem of determining, on a case by case basis, when the terms of a complex interconnection contract between two large corporations are “unfair” or “unreasonable.”

Second, it remains pretty incredible to me that we’re moving toward a broad preemptive regulatory intervention before we’ve even seen what deviations from neutrality look like in practice. Nobody, myself included, wants to see the “nightmare scenario” where ISPs attempt to turn the Internet into a “walled garden” whose users can only access the sites of their ISP’s corporate partners at usable speeds, or where ISPs act to throttle businesses that might interfere with their revenue streams from (say) cable television or voice services. There are certainly hypothetical scenarios that could play out where I’d agree intervention was justified—though I’d also expect targeted interventions by agencies like the Federal Trade Commission to be the most sensible first resort in those cases.

Does the Government Require Your Hotel to Spy on You?

If you’re a privacy conscious traveler, you may have wondered from time to time why hotels ask for ID when you check in, or why they ask you to give them the make and model of your car and other information that isn’t essential to the transaction. What’s the ID-checking for? There’s never been a problem with fraudsters checking into hotels under others’ reservations, paying for the privilege to do so…

Well, in many jurisdictions around the country, that information-gathering is mandated by law. Local ordinances require hotels, motels, and other lodgers (such as AirBnB hosts), to collect this information and keep it on hand. These laws also require that the information be made available to the police on request, for any reason or no reason, without a warrant.

That’s the case in Los Angeles, which not only requires this data retention about hotel guests for law enforcement to access at will or whim. It also requires hoteliers to check a government-issued ID from guests that pay cash.

Open access to hotel records may have been innocuous enough in the early years of travel and lodging. Reading through hotel registers was a social sport among the wealthy, who could afford long-distance travel and lodging. Today, tourism is available to the masses, and hotel records enjoy tighter privacy protections. Most people would quit a hotel that left their information open to the public, and many would be surprised that hoteliers’ records are open to law enforcement collection and review without any legal process.

Bandying “Terrorism”

George Clooney has now joined North Korea’s United Nations ambassador Ja Song Nam in bandying charges of “terrorism” against a foe. North Korea’s emissary in New York complained in July that the production of Sony’s film, The Interview, was “the most undisguised sponsoring of terrorism as well as an act of war.”

So, too, according to Clooney, was the threat leveled by unknown persons against theaters that might show the film: “Then, to turn around and threaten to blow people up and kill people, and just by that threat alone we change what we do for a living, that’s the actual definition of terrorism,” he said.

We don’t know more about the definition, but the ambassador and Mr. Clooney do teach us about usage. “Terrorism” is a debased, all-purpose charge anyone can use against anyone. There is a special variant of the word in which the results of an action provide conclusive evidence of the motive behind it. Because U.S. theaters yanked The Interview from their Christmas Day schedules, Clooney can plausibly call the threat “terrorism.” Had most people, like me, assumed the threat to be an idle prank, it would not have been terrorism.

I remain unpersuaded of a North Korean connection or anyone’s meaningful capacity or willingness to attack theaters. The most proximate cause of The Interview’s cancellation, it seems to me, is risk aversion on the part of theater owners’ lawyers. They apparently concluded that an attack could be a foreseeable cause of death and injury, for which owners could be liable. (Go ahead, reformers. Call trial lawyers “terrorists.”)

Subject matter expert Paddy Hillyard, a professor of sociology at Queen’s University, Belfast, eschews the term “terrorism” for reasons he articulated in a 2010 Cato Unbound. He participated in Cato’s study of terrorism and counterterrorism (conference, forum, book). I’m one of many who don’t believe that “cyberterrorism” even exists.

The greatest risk in all this is that loose talk of terrorism and “cyberwar” lead nations closer to actual war. Having failed to secure its systems, Sony has certainly lost a lot of money and reputation, but for actual damage to life and limb, you ain’t seen nothing like real war. It is not within well-drawn boundaries of U.S. national security interests to avenge wrongs to U.S. subsidiaries of Japanese corporations. Governments in the United States should respond to the Sony hack with nothing more than ordinary policing and diplomacy.

NOBODY Expects the Spanish Press Contrition!

Back in October, Spain’s parliament passed a horribly ill-advised law at the behest of the Spanish news publishing lobby, the AEDE. Struggling to adapt to the information age in one of Europe’s more troubled economies, the AEDE thought it had hit on a brilliant new revenue source: They got a provision inserted in a new intellectual property law that, starting in January, will force news aggregation sites to pay newspapers for the privilege of linking to their stories.

This never made much sense: News aggregators are a massive source of traffic (and therefore ad revenue) for news sites.  In effect, the law seeks to make it more difficult and costly for anyone to give those sites free advertising.  Indeed, it’s hard to see the point of posting stories online unless you expect people to link to them, and it’s simple enough to automatically prevent search engines from indexing your site’s content if, for some obscure reason, you don’t want people to have an easy means of discovering your content.  But never mind the logic; the law seemed like a foolproof way for ailing news companies to milk a few euros from big tech corporations flush with cash. What could go wrong?

You know how the story ends, right?  Everyone but the newspapers themselves seems to have seen it coming, since something similar had just played out in Germany: Google News, the largest of the aggregators, announced last week that they would be shutting down operations in Spain. Since the company didn’t even show ads on its news site, keeping it open under the new regulations would be an unsustainable, money-losing proposition.

The hilarious coda to the story: The AEDE, which previously complained that news aggregators were “stealing” their work by publishing headlines and tiny snippets of stories, is now begging Spanish regulators to stop Google News from closing. The site’s shuttering, the group complained without irony, “would undoubtedly have a negative impact on citizens and Spanish businesses.” Give them points for chutzpah if nothing else: They’re not even waiting for the blood to dry on the hatchet before bemoaning the loss of their golden eggs.

Connolly: Yes to Privacy Act Liability for Mental and Emotional Distress

A couple of years ago I wrote here about the Supreme Court case denying that a person could collect damages from the government under the Privacy Act based on mental and emotional distress. It’s a narrow point, but an important one, because the harm privacy invasions produce is often only mental and emotional distress. If such injuries aren’t recognized, the Privacy Act doesn’t offer much of a remedy.

Many privacy advocates have sought to bloat privacy regulation by lowering the “harm” bar. They argue that the creation of a privacy risk is a harm or that worrisome information practices are harmful. But I think harm rises above doing things someone might find “worrisome.” Harm can occur, as I think it may have in this case, when one’s (hidden) HIV status and thus sexual orientation is revealed. It’s shown by proving emotional distress to a judge or jury.

Rep. Gerry Connolly (D-VA) has introduced the fix for the Supreme Court’s overly narrow interpretation of the Privacy Act. His Safeguarding Individual Privacy Against Government Invasion Act of 2014 would allow for non-pecuniary damages—that is, mental and emotional distress—in Privacy Act cases.

It’s a simple fix to a contained problem in federal privacy legislation. It’s passage would not only close a gap in the statute. It would help channel the privacy discussion in the right way, toward real harms, which include provable mental and emotional distress.

Google’s Search “Monopoly”

Last week, while we Americans were “unbundling” the various parts of our turkeys, the European Parliament was talking about unbundling Google’s various features:

Members of the European parliament voted overwhelmingly on a measure aimed at keeping companies, such as Google, from dominating the search engine market.

The motion “calls on the [European] Commission to consider proposals with the aim of unbundling search engines from other commercial services as one potential long-term solution” to ensure fair competition.

While the vote was largely symbolic, its outcome could put EU anti-trust commissioner Margrethe Vestager under pressure to pursue complaints against Google, which critics say squeezes out its competitors using unfair advantages.

The Economist weighed in with a bit of criticism:

The European Parliament’s Googlephobia looks a mask for two concerns, one worthier than the other. The lamentable one, which American politicians pointed out this week, is a desire to protect European companies. Among the loudest voices lobbying against Google are Axel Springer and Hubert Burda Media, two German media giants. Instead of attacking successful American companies, Europe’s leaders should ask themselves why their continent has not produced a Google or a Facebook. Opening up the EU’s digital services market would do more to create one than protecting local incumbents.

The good reason for worrying about the internet giants is privacy. It is right to limit the ability of Google and Facebook to use personal data: their services should, for instance, come with default settings guarding privacy, so companies gathering personal information have to ask consumers to opt in. Europe’s politicians have shown more interest in this than American ones. But to address these concerns, they should regulate companies’ behaviour, not their market power. Some clearer thinking by European politicians would benefit the continent’s citizens.

Building on these points, I’d go even further.  It seems to me there is pretty clear demand for a privacy-focused internet company.  But I don’t see why governments need to get involved here.  Instead, companies – European ones, and others, too – just need to recognize this demand, and jump into the market with some competing products.  There are fewer barriers to entry in this market than most other markets; someone just needs to be willing to take a risk.

Computer-Aided Reporting: Looking Where the Light Is Good

Upshot (New York Times) writer Derek Willis tweeted this morning, “We need to stop doing stories (and maps) with meaningless data.” At the link, a story on Vox charts the poorest members of Congress. It’s based on a Roll Call story published in September.

His main point, I think, is the failure of the data to reliably reflect what it’s supposed to. The disclosures on which these stories rely don’t include the value of homes members own, for example, and information is reported in broad bands, so it’s probably not very accurate and may be wildly inaccurate.

The data is meaningless in another, more important way. Neither story suggests any correlation between wealth (or its absence) and legislators’ behavior or fitness for office. It’s just a look at who has money and who doesn’t—uninformative infotainment. Maybe some readers stack up inferences to draw conclusions about Congress or its members, but this is probably an exercise in confirming one’s biases.

This illustrates a real problem for computer-aided journalism. When the only data available depicts a certain slice of the world, that will skew editorial judgments toward that slice of the world, overweighting its importance in news reporting and commentary.

In my opinion, reporting on public policy suffers just such a skew. There is relatively good data about campaign financing and campaign spending, which makes it easy to report about. The relatively high level of reporting on this area makes it appear more important while the actual behavior of public officials in office—the bills they sponsor, the contents of bills, amendments, votes, and the results for society—goes relatively unreported.

It won’t be the fix for all that ails reporting on public policy, but our Deepbills project makes essential content of legislation available as data. It vastly expands the territory around U.S. federal public policy that computer-aided jounalists can cover. Deepbills data has been picked up various places, but we need more adoption before it will provide all the value it can to a better-informed public.

Update: On Wednesday, the House Government Reform and Oversight Committee will have a hearing on implementation of the DATA Act, which could yet further expand the data available to journalists, and all of us.