MediaFreedom Files Comments on the Comm Act Update with Congress

As part of updating the Telecommunications Act of 1996, the House Energy and Commerce Committee sought third-party comment on the state of U.S. competition policy, asking what Congress could do to “understand areas where the law is no longer working effectively and determine areas of improvement to foster an environment for innovation, consumer choice, and economic growth.”

MediaFreedom filed the attached comments with the Committee last Friday, making five recommendations to boost broadband competition and adoption, which include:

  1. Title-based regulatory distinctions must go;
  2. Taxation and similar barriers must be kept to a minimum;
  3. Reform the merger review process;
  4. Release more spectrum; and
  5. The FCC’s Net Neutrality rule must be stopped.

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Dear Representative Upton, Rep. Walden, Rep. Waxman, Rep. Eshoo, and Committee Members:

MediaFreedom.org is a free market-oriented 501(c)(3) nonprofit, which works to minimize the Federal Communications Commission’s regulatory imprint on U.S. Internet policy. MediaFreedom urges policymakers to more confidently rely on today’s technological evolution, industry best practices and peer group policing, consumer education and transparency tools, marketplace competition, and presently available enforcement laws to protect consumers from actual, not conjectured, harm. We believe that this approach better serves consumers and the marketplace than do new laws or regulations when addressing most marketplace issues that arise.

The ever-evolving communications landscape is healthy and thriving, ably serving consumers with what they want and need. This is due in no small measure to congressional policy – clearly stated throughout the Telecommunications Act of 1996 – which has sought to “…provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans…

As explosive as the Internet’s growth has been over the past 18 years, FCC implementation of Congress’ policies, as well as other actions, are undermining the ’96 Act’s goals, adversely affecting, in particular, the vibrant and competitive open Internet.

To this end, MediaFreedom briefly proposes the following:

Title-based regulatory distinctions must go: The convergence of communications services and technologies has made the FDR-era approach of service-based regulation (e.g., Title ll, lll and Vl of the Communications Act of 1934) largely obsolete. Given the rapid and ongoing pace of convergence, a more rational “regulatory” schema would eliminate these service-based distinctions and move to a “consumer harm” standard, based in antitrust law. Buttressing this change would be reliance on increased industry self-regulation, technical collaboration, alternative dispute resolution mechanisms, community policing and expert third-party oversight – all tools which have guided the Internet’s growth since the medium’s inception, well before Net Neutrality came into being. Under this system, regulation built on prophylaxis would give way to enforcement, which would address what factually occurs in the real world, further aided by peer policing. This both protects consumers from actual harm, and frees up more companies to take risk and innovate in a more permissionless and flexible manner, boosting competition to the benefit of American consumer.

Taxation and similar barriers must be kept to a minimum: Though broadband access is nearly universal, Internet adoption remains problematic: One in seven Americans is not online. Perhaps ironically, as policymakers inform us just how “essential” the Internet is for daily living, regressive taxes – or those policies that have the same effect – have placed obtaining communications services out of reach for many, especially society’s most marginalized citizens. To be sure, state and local taxation treats many communications services as if they were “sinful” items like alcohol and tobacco, resulting in taxes topping 20% or more for such services in many states. While states must be free to enact tax policy as they see fit, even if those policies may be wrong, Congress can do something directly and quickly to keep choking taxes off of the Internet by immediately passing a permanent Internet Tax Freedom Act. Additionally, as the FCC rewrites its dubious Net Neutrality rule, Congress – if it cannot stop the FCC from moving forward on Net Neutrality – should urge the agency to allow specialized agreements between edge providers and ISPs, thereby placing the costs of specific network upgrades on the cost causers, not average citizens who, under the previous, illegal rule, were stuck subsidizing Silicon Valley for services they did not use. Bottom line: If the Internet is “essential,” government taxation and similar barriers should be kept to an absolute minimum to improve adoption. Where adoption thrives, competitive response to it will grow, too.

Reform the merger review process: The fractured merger review process is broken, it working primarily through dark room deals that extort public policy and other concessions, which could not be achieved in an open, democratic process. Congress should shut the racket down; give it to a single agency to administer (such as the Federal Trade Commission); put it on a up-or-down vote, 90-day shot clock; and strictly limit the approval process to address the narrow competitive concerns at hand. A merger review process that presents an open trough of opportunity for competitors, “consumer activists” and policymakers to arbitrage for their own gain greatly harms companies’ ability to respond to fickle marketplace demands. This essentially untoward, undemocratic shakedown does not serve the “public interest.”

More spectrum, please: Broadband competition comes in many different flavors. Driven by powerful smart phones, tablets and their apps, as well as expanding wireless LTE networks and Wi-Fi connectivity, over 65% of U.S. broadband connections are mobile/wireless. This growth, however, is being severely tested by the lack of usable spectrum, the lion’s share of which is hoarded by the government. Though the FCC is working, albeit fitfully, to address the need for more licensed and unlicensed spectrum, the federal government – which essentially owns 85% of the spectrum, but effectively uses less than 10% of it – stands in the way of carriers and the general public from accessing more. Not only is this wasteful – with the raw resource enabling wireless to flourish being strictly rationed and thus squandered – it has a negative effect on broadband competition, too. Consequently, Congress should put more pressure on the FCC and the National Telecommunications & Information Administration to more swiftly resolve the technical and other outstanding issues that exacerbate the government-created spectrum crunch. Quite simply, with a greater amount of licensed and unlicensed spectrum available, more competitive broadband options will be available to U.S. consumers.

The FCC’s Net Neutrality rule must be stopped: MediaFreedom has long been a vocal critic of the FCC’s efforts to impose Net Neutrality regulation. Presently, the FCC is rewriting the (needless) regulation to accord with the DC Circuit’s recent ruling, which made key parts of it illegal. Yes, the Commission’s new proposal moves the rule in a more reasonable direction, potentially allowing (once banned) priority agreements between edge providers and ISPs. But, don’t be fooled – this is just the lesser of two evils. No matter how one cuts it, the Commission’s “solution” to a problem that will never exist will one day enable the agency to heavily regulate the Internet and its ecosystem.

If the FCC reclassifies ISPs as Title II common carriers, reclassification also brings the unregulated edge into play because many of its functions look and act like common carriage. This catnip will prove too tempting for the FCC, making it just a matter of time, or change in administration, before the edge gets regulated under Title ll (if the FCC arrives at this rule via its Net Neutrality rewrite).

Perhaps more troubling than this, though, is the FCC’s proposal to use § 706 of the ’96 Act to encourage deployment of broadband infrastructure, allowing the Commission to impose rules just shy of Title ll to preserve “Internet openness,” as well as facilitate the so-called “virtuous circle” of edge innovation the FCC believes has grown the medium.

The DC Circuit’s recent Net Neutrality majority opinion, written by Judge David S. Tatel, approvingly lays out the FCC’s regulatory algorithm as such

“Internet openness, [the FCC] reasoned, spurs investment and development by edge providers, which leads to increased end-user demand for broadband access, which leads to increased investment in broadband network infrastructure and technologies, which in turn leads to further innovation and development by edge providers. If, the Commission continued, broadband providers were to disrupt this ‘virtuous circle’ by ‘[r]estricting edge providers’ ability to reach end users, and limiting end users’ ability to choose which edge providers to patronize,’ they would ‘reduce the rate of innovation at the edge and, in turn, the likely rate of improvements to network infrastructure.’”

But, as Judge Laurence Silberman (who concurred in part and dissented in part on the ruling) rightly points out, that’s a big problem because:

“[A]ny regulation that, in the FCC’s judgment might arguably make the Internet ‘better,’ could increase demand. I do not see how this…prevents § 706 from being carte blanche to issue any regulation that the Commission might believe to be in the public interest.”

Using the court-approved formula for its new § 706-oriented Net Neutrality rule (which looks like the probable result of the rule’s rewrite), it seems that any player who can affect “Internet openness” or edge innovation could be hauled before the FCC and regulated into obeisance if the Commission so determined. Any player, not just those who transmit communications and data. Congress cannot have intended this perverse outcome, which clearly does not comport with the ’96 Act’s pro-competitive, deregulatory policy framework.

Because Supreme Court precedent gives agencies like the FCC an immense amount of deference to do what they want, the only solution to the Commission’s Net Neutrality “solution” is for Congress to stop the FCC from going forward on Net Neutrality. With the entire Internet ecosystem under the boot of the unelected Commissioners at the FCC, permissionless innovation will end, undermining – not boosting – broadband infrastructure deployment and competition. This type of control thwarted innovation and competition for decades under the old Communications Act. Given the rapid pace of technological change and convergence today, there is even less reason to believe that returning to such a “mother-may-I” regime will boost competition and flexibly serve U.S. consumers now and in the future.

 MediaFreedom wants to thank the Committee for the opportunity to comment on this important matter, and we stand ready to offer any assistance as may be needed to help the Committee further understand our positions.

Media Freedom

Data anonymization is hard – this time shown with NYC taxi data

Bag on Head

One often hears that some massive collection of data will not have privacy implications because it has been “anonymized”. Any time you hear that, treat the statement with great skepticism. It turns out that effectively anonymizing data, making it impossible to identify the individuals in the data set, is much harder than you might think. The reason comes down to combinatorics and structured information.

This article on Medium by Vijay Pandurangan discusses a massive data set of NYC taxies, complete with medallion number, license number, time and location of every pick up and drop off, and more. The key to unraveling it is that there are just not that many taxi medallions, and the numbering structure only allows for a manageable possible number of combinations (under 24 million). While that would be a lot to work through by hand, Vijay was able to hash and identify every single one in the database in under 2 minutes.

Another approach would have been to make a set of known trips, note the location, time, etc., then use that to map the hash to the true identity. More work but very straight forward.

Even harder is the problem of combinatorics when applied to “non-identifying” data. One will often see birth date (or partial birth date) zip code, gender, age, and the like treated as non-identifying. Just five digit Zip-code, date of birth, and gender will uniquely identify people 63% of the time.

A study of cell phone location data showed that just 4 location references was enough to uniquely identify individuals.

This is a great resource on all kinds of de-anonymization.

The reality is that, once enough is collected is is almost certainly identifiable. Aggregation provides the best anonymization, where individual records represent large groups of people rather than individuals.

Lance Cottrell is the Founder and Chief Scientist of Anonymizer. Follow me on Facebook, Twitter, and Google+.

Update: small edit for clarification of my statement about aggregation.

The Privacy Blog

HOW THE REPUBLICANS CAN WIN IN NOV….

On April 17, 2014 Obama declared the success of Obamacare. Insurace providers have released the following figures:

* under 18 – 9 percent
* Ages 18 to 25 – 10 percent
* Ages 26 to 34 – 15 percent
* Ages 45 to 54 – 23 percent
* Ages 55 to 64 -29 percent
* 65 and older – 1 percent

Obama declared the debate repealing the law is over and Obamacare is here to stay.

Everytime we hear the Left or the Right say it is too late to get rid of this monstrosity. Our blood boils. Gentleman, Ladies it is never too late to face a mistake and correct it. The problem is that the Republicans are too weak and to concerned with their own political careers to do what is necessary. So at the next election we are going to relieve you Democrats and Republicans of your duty and find someone who is in office for the right reasons. Those reasons are to uphold the Constitution of the United States and to do the best job they can for us the American People not their political party or their personal interests. 

If the Republicans really want to take back the Senate and this country. Run on repealing Obamacare and make it happen.
FREEDOM OF SPEECH

IT’S DERBY DAY….

The 2014 Kentucky Derby is the 140th renewal of The Greatest Two Minutes in Sports.

Churchill Downs, the world’s most legendary racetrack, has conducted Thoroughbred racing and presented America’s greatest race, the Kentucky Derby, continously since 1875.

Off to the Derby!
FREEDOM OF SPEECH

Iran criminalizes Facebook

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Iran has taken the next step beyond censorship to criminalize the use of social media, particularly Facebook.

Iran has long had one of the most strict and effective Internet censorship regimes, but still huge numbers of Iranians were able to skirt the blocking to access social media websites, generally under false names. Actually criminalizing the activity adds a huge chilling effect to those striving for free access to information and speech. Using Facebook is now not just difficult, but also dangerous.

Obviously it is unlikely that someone positing positive messages about Iran, or the mullahs, would be prosecuted. This is a big stick that can be swung at dissidents and any opposition.

Ironically many within the government, including president Hassan Rouhani, have and actively use Facebook and Twitter. Hypocrisy is never lacking in repressive governments.

Iran makes accessing Facebook a crime | VentureBeat | Social | by Richard Byrne Reilly

Lance Cottrell is the Founder and Chief Scientist of Anonymizer. Follow me on Facebook, Twitter, and Google+.

The Privacy Blog

Law enforcement can’t keep your seized files forever (anymore)

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The US Second Circuit court of appeals just ruled on a very important case about Fourth Amendment protections for seized computer files. While this ruling is only binding on courts in the 2nd circuit, it will be influential, and we are likely to see this issue addressed by the Supreme Court before too long.

The reality of computer forensics is that investigators start by grabbing everything off the computers they are searching, then look for the specific information specified in the warrant. Generally this is done by making a direct image of the computer’s hard drive. From there additional copies are made so the chain of evidence is clean, and the original image can be shown to be unchanged. It is impractical to try to capture only the targeted information because the volumes are often so large the search must be automated and may take considerable time. Additionally, suspects may have taken steps to try to hide files on the disks.

The upshot of this is that the law enforcement entity now has a great many documents far outside the scope of the warrant. This is where we come to the specifics of the case United States v. Ganias. In 2003 the government searched Ganias’ computers as part of a fraud investigation. As I described, they captured full images of all the computer’s hard drives to 19 DVDs. After competing their searches, they kept the DVDs.

In 2006, they thought Ganias might be involved in tax related crimes, so they obtained warrants to search the DVDs they had in storage for this different set of documents.

The 2nd Circuit ruled to suppress the evidence obtained from that 2006 warrant because the documents searched should never have been seized in the first place.

The ruling recognizes the realities of the search process, and allows for capture of full drive images, and keeping that data for a reasonable time, but specifically forbids keeping it indefinitely as a source of information in future searches. That would completely void the Fourth Amendment which requires that the warrant specify the specific things to be searched.

As a reminder, the full text of the Amendment is: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Thanks to the Washington Post for a more detailed legal analysis: Court adopts a Fourth Amendment right to the deletion of non-responsive computer files – The Washington Post

Lance Cottrell is the Founder and Chief Scientist of Anonymizer. Follow me on Facebook, Twitter, and Google+.

The Privacy Blog

CASH OR CREDIT?

The city is currently borrowing a fire laddar truck from Sellersburg. The trucks typically have a service life of 20-30 years.

Freedom of Speech would like to say: Mayor Garner, Doug England and now Jeff Gahan have each bought new fire trucks right before a re-election.

Won’t  photographs of NEW Police cars and a NEW Fire truck look good on a political mailer?

Questions to our readers:

How many police cars, fire trucks and salt trucks have we purchased in the last few years?

How come last winter we couldn’t afford salt, but it’s important now to buy another salt truck?

If we have cash on hand why borrow $$$$$?
FREEDOM OF SPEECH

Mind the gap: Poll finds many Canadian businesses believe privacy is important but not taking basic steps to protect customer information

Ten years after Canada’s private sector privacy law came into full effect, our latest survey has found that many Canadian businesses are still not taking the basic steps necessary to protect the personal information of their customers and clients – despite believing that protecting privacy is “extremely important”.

An overwhelming majority of businesses (82%) said protecting privacy is important—in fact 59% rated it as “extremely important.”  As well, more than two-thirds (69%) indicated they were “very confident” in the ability of their business to protect the personal information they collect about customers.

However, the telephone survey of 1,006 companies across Canada identified serious gaps in basic privacy protection by businesses both large and small, for example:

  • More than half (55%) do not have a privacy policy;
  • Half (50%) do not have procedures for responding to customer requests to access their personal information;
  • Nearly half (49%) do not have procedures for dealing with privacy complaints; and
  • More than two in five (42%) have not designated an employee responsible for ensuring privacy protection.
  • Two-thirds (67%) have no policies or procedures for assessing the privacy risks of new products, services or technologies.

The survey, carried out in November 2013 by Phoenix Strategic Perspectives of Ottawa, also found that 59% of the surveyed businesses have little or no concern about the prospect of a data breach. Despite numerous high-profile media reports of data breaches in the private sector over the past few years, the number of businesses indicating a lack of concern about data breaches has increased over time to 59% from 49% in 2011 and 42% in 2010.

In addition, 58% of the businesses surveyed had no guidelines for dealing with a breach where the personal information of their customers was compromised.

We commissioned the survey, which is considered to be accurate to within +/- 3.1%, 19 times out of 20, in order to better understand the extent to which businesses are familiar with privacy issues and requirements, and the types of privacy policies and practices they have in place. Similar surveys were conducted in 2011, 2010 and 2007.

What do you think – are businesses doing an adequate job of safeguarding customer information? What challenges do they face in protecting privacy? Let us know in the comments.

Office of the Privacy Commissioner

Pacific media ‘too cosy’ with political power, says author

From Pacific Media Watch

The Pacific Media Centre’s director, Professor David Robie, has called for more emphasis on critical development journalism in the Asia-Pacific region.

Speaking on ABC’s Media Report, Dr Robie said there was a tendency globally – and not just in the Pacific -  for journalism to be a “bit too cosy with political power”.

“Agendas are often set in the media based around
Café Pacific – David Robie | Media freedom and transparency

New York Times: The Privacy Paradox, a Challenge for Business

The New York Times reports on a new study concerning privacy sponsored by data-storage company EMC: People around the world are thrilled by the ease and convenience of their smartphones and Internet services, but they aren’t willing to trade their privacy to get more of it. That is the top-line finding of a new study of 15,000 […]
Privacy Lives