Love or hate net neutrality, GOP probe is pointlesss

Let the dog and pony show begin! Republicans in Congress and their cable company allies are smarting over news that the FCC will reclassify internet providers, and have responded with not one, but two investigations that seek to uncover illegal meddling by the White House.

The twin probes, which are being led by Sen. Ron Johnson (R.-Wis) and Rep. Jason Chaffetz (R-Utah), call on FCC Chairman Tom Wheeler to explain how he came to favor net neutrality — a policy that prevents ISPs from giving special treatment to some websites over others when they deliver broadband.

Net neutrality is indeed an important issue, and Republicans are within their rights to implement investigations of it. The problem, however, is that their premise for probing Wheeler appears to be completely baseless.

According to Senator Johnson, the purpose of the investigation is to determine if Wheeler’s decision resulted from “undue outside pressures, particularly from the White House.” The message is that President Obama has someone flouted the rule of law, and run roughshod over an independent agency.

But there’s little evidence to justify such a charge. While Johnson cites public remarks by the President and a report in the Wall Street Journal about the White House’s interest in the net neutrality file, that’s hardly a smoking gun.

More importantly, the Republicans have yet to explain how exactly they think the White House behaved illegally. Johnson’s public letter says the executive branch’s behavior has been “inappropriate from a constitutional standpoint” and “improper from an Administrative Procedures Act perspective,” but fails to point to specific laws or regulations.

Unfortunately for net neutrality critics, “inappropriate” and “improper” seem pretty thin gruel, even as a political charge. And they almost certainly fall far short of material for a lawsuit.

While Presidents typically steer clear of saying what independent agencies should or should not do, President Obama is hardly the first to speak up on an FCC issue. Indeed, every chief executive in the last 30 years has stuck their oar in the water at one time or another, according to Harold Feld, a senior lawyer with the advocacy group Public Knowledge.

“By strong convention, the President is supposed to respect the independence of the agency, and Presidents generally save their ammo on this for things they really care about. There are good reasons for this general rule,” wrote Feld by email. “But there are also good reasons for the President to speak up from time to time — particularly on matters of national importance such as the fate of broadband (Obama), reducing the influence of money on politics (Clinton) and the fate of media ownership rules (Reagan, Bush I, and Bush II).”

Feld, who has created a graphic of Presidential pronouncements about FCC issues, added that there is no law that prevents the President from sharing his views about the agency or from talking to its Chairman. Meanwhile, none of the previous Presidents’ remarks on FCC issues have resulted in a court action — meaning it’s near certain that Obama’s won’t either.

So what’s going on? In the view of Berin Szoka of TechFreedom, a group critical of Wheeler’s proposal, the legal case is “subtle” but turns on two issues: whether the White House “threatened” Wheeler as the head of an independent agency, and whether the executive violated an anti-lobbying law by having FCC staff lobby Congress. Or something.

The better explanation is that the twin Congressional investigations are no more than a political stunt to muddy the waters in the net neutrality debate. That’s a shame. No matter what you think of the substance of Wheeler’s proposal — you can read about a Republican FCC Commissioners’ latest objections here and here — the American public deserves better on this matter than Congress’s “investigations.”

Republicans embrace fair use (and Taylor Swift) to hit Obama

Many Republicans like to take a hard line against perceived pirates who use copyright without permission  – but what if those people included their own staff members? In the case of John Boehner, the Speaker of the House of Representatives, his staff appear to have helped themselves to Taylor Swift videos as part of a webpage mocking President Obama’s community college plans.

In case you missed it, “12 Taylor Swift GIF’s for you” is posted right on Speaker John Boehner’s official government website, and features classic Swift shots like this one from “Shake it off”:

TSwift-Shaking-5

As the Verge noted, the Taylor-montage was created by two Communication Directors from Speaker Boehner’s office, and appears targeted at younger voters who are used to receiving information through meme-style messaging.

But that still leaves the question of what Swift thinks of the whole thing, and whether she is okay with the intellectual property implications — specifically, Speaker Boehner’s use of her copyrighted videos, and of the personality rights tied to her public image. Recall that Swift recently made a big stink about the alleged harm to artists when their work is made available for free.

Boehner’s office did not immediately reply to a request for comment about whether they obtained Swift’s permission, but I suspect the answer is “no,” and they just went and did it anyways like anybody else posting a funny GIF on the internet.

Fortunately for them, on the copyright question, the Speaker is almost certainly on safe ground thanks to the law of fair use. These rules permit people to use creative works without the copyright owner’s permission. The actual fair use test is more complicated than many people think but, for these purposes, the fact that clips are under 6 seconds with a transformative purpose means almost any judge would rule against Swift if she sued.

A harder question is whether Swift has a case the law of personality rights, which protects people (usually celebrities) from being placed in a false right or endorsing something without their permission.

I have no idea what Swift thinks of the President’s community college proposal, but it’s possible she could take exception to having her image used in Republican attack ads. If she does, the Speaker’s Office could likely rely on the First Amendment as a defense, though the state of the law right now means that wouldn’t be a sure thing.

In any case, the timing of the Speaker’s Swift meme is interesting since Congress, controlled by the Republican party, is currently undertaking a sweeping review of copyright law. While these reviews typically focus on piracy and enforcement, many people are calling on lawmakers this time to look at fair use issues, and how over-enforcement by big companies or trolls can limit free expression — like the clever GIF-messages created by Boehner’s team.

As Taylor suggests, there’s a lot to think about:

TSwift-Thinking-2

 

Is public broadband a threat to taxpayers? Let towns decide

A casual observer might think towns across the country are contemplating Communism, rather than construction projects. Such is the state of the national debate over how to build more high speed internet, which is becoming as indispensable to modern life as hot water or electricity.

The crux of the debate is over how small cities, especially those where fast internet is in short supply, can get better broadband networks. The right answer, however, should not be a matter of partisan politics — but in looking at the competence of individual towns, and ensuring that their populations can have a say in the decision on whether or not to build. The FCC will vote on the issue on Feb 26, but in the meantime the right role for public broadband will remain a hot topic for the President, pundits and consumers across the country.

Blessing or boondoggle?

The state of the national broadband debate was on display this week in Cedar Falls, Iowa. President Obama was there to extol the town’s homegrown broadband network, and to urge the FCC to override laws in some states that restrict cities from building high speed internet projects of their own. In response, Republicans and industry groups pounced on his remarks, accusing the President of promoting a broadband model that meddles with the market and sticks it to taxpayers.

Why is a place like Cedar Falls at the center of this? The answer is the town’s community-owned internet provider, which reportedly offers its 40,000 residents connected speeds of 50 megabits a second for $45.50 and, for a little more money, 1 gigabit speeds. This sort of service is unavailable to many Americans and, especially, to those outside major cities where the fastest internet may be well below a new proposed 25 Mbps definition of broadband.

The Cedar Falls example is also what led Obama to call on the FCC to come to the aid of places like Wilson, North Carolina and Chattanooga, Tennessee, which have promising broadband projects of their own, but are being stymied by state rules that restrict their operations. The two towns currently have a petition asking the agency to invoke federal law in order to override the state rules, and there’s a good chance the FCC will grant the request since Chairman Tom Wheeler has repeatedly stated cities should be able to decide for themselves what to build.

Not everyone, however, is as enthusiastic about cities getting involved in the broadband business. Groups with names like the Center for Boundless Innovation in Technology and the Taxpayers Protection Alliance have been loudly claiming that city-run broadband projects are a sinkhole for taxpayer dollars. Here is how the latter group described the situation in a recent press release (my emphasis):

Five high-profile municipal broadband networks have failed spectacularly, including one in Provo, Utah, which was sold to Google for $1, though taxpayers will continue to pay off the construction costs for another 12 years. Another, in Burlington, Vermont, was sold to a private company for $6 million, not even coming close the $51 million cost of the network. And the debt racked up by a third network in Salisbury, North Carolina, was the reason Moody’s downgraded the entire city’s bond rating. The system in Salisbury was such a financial mess that they resorted to using water and sewer funds to make up shortfalls from the network’s expected revenue, which isn’t being realized.

You get the idea. The underlying argument is that city-run internet will inevitably turn into an expensive failure, and that state laws that limit municipal broadband projects (either through outright bans or cumbersome procedural rules) amount to a sensible shield for consumers against government boondoggles.

U.S. President Barack Obama inspects a piece of fiber-optic cable during a visit to Cedar Falls Utilities on January 14, 2015 in Cedar Falls, Iowa. Obama spoke of plans to increase access to affordable high-speed broadband internet service across the nation.

U.S. President Barack Obama inspects a piece of fiber-optic cable during a visit to Cedar Falls Utilities on January 14, 2015 in Cedar Falls, Iowa. Obama spoke of plans to increase access to affordable high-speed broadband internet service across the nation.

Despite the above claim of “five high-profile” examples, however, the overall evidence is thin that city broadband projects are intrinsically flawed or wasteful.

According to Christopher Mitchell, who leads community broadband studies at the Institute for Local Self-Reliance, most of the 450 municipal internet networks the group is tracking were not financed by tax dollars in the first place. And most of the 100 or so that are have avoided financial trouble.

Mitchell added that, in places like Burlington that have lost money, the critics have also overlooked overall benefits to the city from the project.

“The City did indeed borrow $51 million and the network has recently been sold in part for $6 million – but the deal is much more complicated. These groups often ignore all the revenue generated over the life of the network – so they compare the full costs of debt with only some of the revenues. Now in the case of Burlington, it happens that the debt does outweigh all the revenues over the years – but the network also lowered prices from competitors in the market, generated many jobs, and other benefits,” Mitchell said by email.

Meanwhile, in the case of Chattanooga, which made a prescient decision to invest early on in a fiber network, the project has not just been financially sustainable in its own right. It has also brought the town new cachet as a “gig city” that can attract businesses in search of fast and affordable internet.

The upshot is that there doesn’t appear to be an over-arching economic case one way or the other as to whether cities should supply broadband in the same way they do sewers or electricity.

“I don’t think every city should do it, but I think every city should analyze it,” said Mitchell, adding that places with a history of competent local government, including Wilson, are good candidates for broadband projects, while those with a history of corruption are not.

The problem is that municipal voters in many states don’t get a choice to decide in the first place.

Should states ban city transit too?

As the President noted in his Cedar Falls speech, there are 19 states in which legislatures have passed laws to ban or restrict cities from building broadband infrastructure (a recent report suggests the number of states is actually 21 — see full list below).

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Craig Settles’ report breaks down state laws restricting broadband into 3 categories: 1) “If-Then laws” that impose requirements on communities before they can build; 2)  “Minefield Laws” that create major obstacles but fall short of a total ban; 3) Total Bans (some states may have loopholes)

Despite the prevalence of these laws, however, they don’t seem to be grounded in economics. Instead, as a withering investigative report from last year suggests, they appear to be the fruit of a larger campaign by telecom incumbents like AT&T to stymie competition through lobbying and litigation.

The result is a situation in which millions of Americans can choose from only one company — and sometimes none — that is capable of offering real broadband (defined as 25 Mbps). But at the same time, their local governments are also barred from acting to increase competition.

Harold Feld, a senior lawyer with advocacy group Public Knowledge, likens the situation to one in which states forbade cities from building public transit.

“Take public transportation as an example. Sometimes it works out well, sometimes it works out poorly. But no one would say that the problems we’re having today in Washington DC prove that New York City shouldn’t be allowed to operate a subway system,” said Feld by email.

The issue of what cities can and cannot do in terms of internet infrastructure will become clearer in the next month or so when the FCC decides whether to pre-empt the state laws. (If the agency does opt for the pre-emption route, however, the process is likely to end up in a swamp of court challenges brought by AT&T or another big incumbent).

In the meantime, the current legal logjam means thousands of towns across the country will not only continue to lack Cedar Falls style internet amenities, but they will be cut off from pursuing them in the first place. As Feld notes, this situation bodes poorly not only for the push for more broadband, but for basic American principles of self-governance as well.

“As a rule, communities don’t get into the broadband business unless they feel they have no alternative. That ought to be their decision, not the decision of special interests lobbying state houses to get bills passed behind closed doors. Preempting these state bans used to be a bipartisan issue. I’m hoping it will be again.”

The states with laws that ban or restrict municipal broadband, according to a 2015 report by analyst Craig Settles, are: Alabama, Florida, Arkansas, California, Louisiana, Missouri,  Colorado, North Carolina, Montana, Iowa, South Carolina, Nebraska, Michigan, Utah, Tennessee, Minnesota, Virginia, Nevada,  Pennsylvania, Washington, Wisconsin. 

Obama to target botnets and spyware as part of cybercrime agenda

President Obama, who this week announced plans to better protect American consumers and businesses from privacy breaches, will also propose new laws to go after those who use computer networks to commit crimes.

The details are to be announced Tuesday afternoon at a cybersecurity event in Virginia, but a White House fact sheet shown to Politico refers specifically to the overseas sale of spyware, and to cracking down on botnets:

The law enforcement proposal will contain provisions broadening prosecutors’ powers against cyber crime, for example by criminalizing the overseas sale of stolen U.S. financial information. It would also allow for the prosecution of the sale or rent of botnets, and would allow courts to shut down botnets engaged in criminal activity such as distributed denial of service attacks.

The recent White House focus on computer crime and privacy coincides with a spate of high-profile hacking episodes, targeting companies like Sony and Microsoft, that have increased public awareness of cybersecurity issues.

The Obama Administration has also indicated it will weave these themes into next week’s State of the Union address. Ordinarily, the topics included in the annual speech are a closely guarded secret, but this year the White House has decided to break with tradition and air some of them beforehand.

According to the New York Times, Obama will also propose laws to encourage companies to share security incidents with industry groups and with Homeland Security. The measures will also reportedly sweep more malicious computer activities, such as operating botnets, under a law known as RICO, which stands for the Racketeer Influenced and Corrupt Organizations Act.

RICO provides prosecutors with the power to seek harsh penalties against those who commit various other crimes as part of an organization.

While any proposed criminal measures Obama proposes are likely to be popular with Congress, which is likewise paying renewed attention to cybersecurity issues, there is also a risk that the new legal tools could be abused by overzealous prosecutors.

Many scholars and civil liberties organizations are already critical of how the federal government uses existing computer law statutes, perceiving the laws as overly broad and out-of-date. The White House, however, appears to be anticipating such criticism and is planning to reform the notorious Computer Fraud and Abuse Act to ensure “insignificant conduct does not fall within the scope of the statute.”