Last Week in Tech Law & Policy Vol. 7: The Politics of Net Neutrality

By Austin Gaddis (Colorado Law 2L)

As the Federal Communications Commission (FCC) prepares for its much-anticipated vote on Chairman Wheeler’s net neutrality proposal on Thursday, Republicans on the Commission and in Congress are using the opportunity to stage one final battle before the votes are in and the lawsuits begin. Under the Chairman’s proposal, both fixed and mobile broadband services would be regulated under Title II of the Communications Act, which would ban throttling, blocking, and paid prioritization of Internet traffic by Internet service providers (ISPs).

Commissioner Ajit Pai, a Republican, has taken the helm as the chief critic of Wheeler’s plan, often dubbing it “the President’s plan” in a reference to President Obama’s public push to put pressure on the FCC—an independent regulatory agency—to adopt strong net neutrality regulations. Commissioner Pai’s foray into the debate represents the most high-profile opposition of his tenure at the Commission.

On Capitol Hill, Republican lawmakers are also using their platform (and gavels) to put implicit and explicit pressure on FCC as it prepares for Thursday’s vote. Currently, three congressional committees have lined up to investigate the White House’s influence on FCC’s decision-making process, especially since Chairman Wheeler seemed to be signaling a  different approach to the net neutrality proceedings before the President’s public campaign in support of strong Title II regulations late last year. One committee, the House Energy and Commerce Committee, has decided to delve even more into the commission’s operations, calling attention to Chairman Wheeler’s use of the agency’s “delegated authority.”

In an address at Colorado Law several weeks ago, Chairman Wheeler outlined his vision for the future of broadband under a Title II regime, delivering what TechCrunch called an “explanatory manifesto of the Chairman’s thinking.” In the speech, he attempted to respond to critics of his plan who think of Title II regulation as an outdated relic of the past, calling instead for a modernized Title II that addresses the unique opportunities and challenges that the Internet poses in the contemporary world.

Articles we’re reading:

Last Week in Tech Law & Policy Vol. 6: Self-Driven Tech

(by James Frazier, Student Attorney)

Planes, automobiles, and artificial intelligence. This week, the FAA released new rules regulating drones, Apple and Sony threw their hats into the autonomous automobile arena, and Great Britain announced that it will release new rules governing driverless car testing in the UK. Mike Hean, a Swiss entrepreneur, suggested that driverless cars should be programed with advanced artificial intelligence that would allow an Uber-style ride sharing app. Indeed, Hean believes that driverless car should be able to own themselves, and even earn their own income. Tying these threads together, MIT’s Tech Review released an article this week outlining some contemporary concerns about artificial intelligence.

Continue reading “Last Week in Tech Law & Policy Vol. 6: Self-Driven Tech”

Last Week in Tech Law & Policy, Vol.5: Funding Privacy

(by Joseph de Raismes, Colorado Law 3L)

This week, I would like to look at internet privacy, how privacy tools are funded, and what  the future of privacy should look like.

Last week, ProPublica ran Julia Angwin’s excellent profile of GnuPG’s lead developer Werner Koch. Koch wrote the free email  encryption tool GNuPG in 1997, and has been keeping the project alive basically single-handedly ever since. In response to ProPublica’s profile, Koch received an outpouring of support in the form of private donations and grants.

Werner Koch’s situation drew the attention of cryptographer Matt Green, who questioned the entire framework of how we fund the long-term development of privacy tools.  In his post, Matt draws attention to the fact that the US government has been an extremely important funding source for key privacy tools, but questions the sustainability of the current framework for funding research and development in this area.

In light of the Snowden revelations, real name systems, perma-cookies, browser fingerprinting, and other sophisticated tracking measures, internet privacy seems more and more like a thing of the past. Is internet privacy a value that should be fostered (and funded) in a cohesive manner?

Last Week in Tech Law & Policy, Vol.3: SOTU and the Community Broadband Act

(by Elizabeth J. Chance, Colorado Law 3L)

State of the Union: In his State of the Union address last Tuesday, President Obama shared his vision on hot-topic issues in technology law and policy. In response to debates over US surveillance programs, President Obama promised a report next month on how the country’s intelligence agencies are keeping our country safe and strengthening privacy. Additionally, President Obama assured the country that the government is integrating intelligence to address cyber attacks, and urged Congress to pass legislation to better meet the evolving need of cybersecurity. Without expressly referencing the issue of net neutrality or municipal broadband,  President Obama discussed the need for 21st century infrastructure including fast, free, and open Internet:

Twenty-first century businesses need twenty-first century infrastructure—modern ports, stronger bridges, faster trains and the fastest Internet. . . . I intend to protect a free and open internet, extend its reach to every classroom, and every community, and help folks build the fastest networks, so that the next generation of digital innovators and entrepreneurs have the platform to keep reshaping our world.

Community Broadband Act: Two days after the President’s State of the Union Address, four Democrats introduced the Community Broadband Act in Congress. The Community Broadband Act aims to preserve the rights of cities and localities to build municipal broadband networks and ensure that their communities are connected and have access to reliable networks. Senator Edward Markey also continued to urge the FCC to act to use its authority to end any state restrictions that impede local communities from making these decisions for themselves.

Last Week in Tech Law & Policy, Vol.2: The Inside Scoop

(by Chelsea E.  Brooks, Colorado Law 2L)

State of the Union:  This week, I want to look ahead to President Obama’s State of the Union Address, which will be held Friday,  January 20th.  The President has revealed cybersecurity as being one of the key issues he will address. In particular, he is proposing a 30-day window in which companies must notify consumers that their data has been breached, is championing criminalization of selling credit card information outside of the U.S.,  and is expected to recommend to Congress a Consumer Privacy Bill of Rights.  In addition to consumer-focused proposals, the President wants to broaden the legal definition of unauthorized computer access under the Computer Fraud and Abuse Act (CFAA) and increase penalties for computer access crimes.

Back to Sony:  Connecting back to last week’s post, could the Sony hacking scandal have been influential in directing this agenda?  As mentioned in Vol.1, the Sony hack has “broad implications for the future of law enforcement, crime and punishment, privacy, and war.”  Those implications may already be coming to light as Shaun Donovan, the Director of the Office of Management and Budget, has cited to the Sony hack in writing the Administration’s cybersecurity proposals to Congress.  Donovan states:

[T]he dramatic increase in cyber intrusions and the recent destructive and coercive attack on Sony Pictures Entertainment offer a stern reminder that we must act with urgency to do everything possible to better protect the Nation and economy against cyber threats.

With that statement in mind, consider two questions posed by the New York Times:

When should the federal government step in to fight hackers? And is America’s own use of cyberweapons a complicating factor?

Blackhat:  Hollywood’s recent connections with cybersecurity don’t stop with the Sony hack.  The just-released Blackhat glamorizes the world of hacking and raises the question: could the current climate of fear of cyber crime lead to over-inclusive policy making?  Members of the Obama administration are already citing to the Sony hack as reasoning for increasing punishments and broadening the power of the CFAA. Is this reasoning justifiable?  Can increasing penalties effectively deter undesirable hacking?  (The legal ramifications didn’t seem to deter the Sony hackers.)

Last Week in Tech Law & Policy, Vol.1: Net Neutrality and the Sony Hack

(by Blake E. Reid, TLPC Director)

Just about every week during the fall and spring semesters, the TLPC spends time discussing current events in tech law and policy. Our students do a great job researching and highlighting current events, so this semester we thought we’d share what we’re reading with the world.

I have the task of leading our inaugural discussion, so I’m going to focus on two events that have blown up over our winter break:

Net Neutrality. While it’s hard to narrow down the 10+ year-old net neutrality / Open Internet discussion down, the biggest news over break was the soft-launch of the Commission’s plan to reclassify ISPs under Title II of the Telecommunications Act— announced at the Consumer Electronics Show—in rules to be voted on at the Commission’s February open meeting. Other interesting issues waiting in the wings include the treatment of wireless providers, the Commission’s approach to forbearance, various other bells and whistles of the final item (I’m particularly interested in the treatment of reasonable network management and the premises operator exception), and how the courts and Congress will ultimately impact the state of play (or not).

The Sony Hack. There’s so much to say about this, but I’ve been most interested in the epistemological debate over whodunit (is it North Korea, or isn’t it?), and the difficulty of assessing adversaries online. This is the tip of the iceberg for this phenomenon, which has broad implications for the future of law enforcement, crime and punishment, privacy, and war.

See you next week!