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 In the speech, he attempted to respond to critics of his plan who think of Title II regulation as an outdated relic of the past, calling instead for a modernized Title II that addresses the unique opportunities and challenges that the Internet poses in the contemporary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.
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.
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.
This week I want to focus on a specific area of tech law and policy: health care. With the advent of telemedicine as a way of providing health care at a distance, there is exciting potential for innovation, however with this innovation comes new challenges in law and policy.
As just one example, there is a new app, Harbinger, that transmits communication from Emergency Medical Service (EMS) workers in an ambulance to hospitals in real time. The hope is that such technology can improve care by sending protected health information (PHI) such as drivers licenses and insurance cards to hospitals for faster registration. The app even allows EMS workers to send pictures and videos of injuries or accident scenes for more rapid diagnosis and treatment.
With this great technology, however, privacy concerns abound. Because cell phones store data on the device itself, PHI is much more likely to fall into the wrong hands if a cell phone is lost or stolen. While the Health Insurance Portability and Accountability Act (HIPAA) does not have any official rules banning the use of cell phones, the HIPAA Privacy Rule requires health care providers to implement appropriate safeguards to reasonably protect health information.
In order to solve this problem, the Harbinger app promises:
[P]atient information is encrypted with today’s most advanced methods. The data is transported to our server with the industry standard for banks and credit cards, and is stored in an encrypted format.
While this sounds like it may satisfy HIPAA standards, patients and hospitals will likely still have concerns about this new technology. The founders, both Coloradoans, are currently negotiating with hospitals and we may see the system operating by the end of the year.
For more information, check out Harbinger’s website.
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.)
(by Stephanie Vu, Colorado Law 3L, and Stefan Tschimben, Interdiscliplinary Telecom Program student)
On October 20th, the TLPC and the ATLAS Institute at the University of Colorado held a screening and panel discussion of the documentary The Internet’s Own Boy: The Story of Aaron Swartz. The documentary follows the life and death of Internet activist and programing prodigy Aaron Swartz. Aaron played a part in the creation of web feed format RSS (Really Simple Syndication) and was a co-founder of Reddit. Aaron was best known to some for his political activism against the Stop Online Piracy Act and his crusade for the open access to information. This crusade led to a two-year legal battle and ultimately his death at age 26. The documentary explores the relationship between civil liberties and technology and gives a heartfelt account of a young man whose life work has benefited almost everyone who has ever used the internet.
According to Professor Blake Reid, “Aaron’s life and death have left an indelible mark on public policy surrounding technology, digital civil liberties, and access to knowledge. The Internet’s Own Boy is a window into Aaron’s legacy through which anyone interested in the future of our democracy in an information age should take a careful and thoughtful look.”