Beyond irking advocates of net neutrality, the Google-Verizon proposal regarding regulation of wireless Internet access has drawn fire from a couple of FCC commissioners.

Reporting for FDL, David Dayen writes that FCC Commissioners Michael Copps and Mignon Clyburn, "slammed the Google-Verizon joint policy and strongly endorsed net neutrality last night at a hearing before hundreds of citizens in Minneapolis giving the Chairman of the federal agency Julius Genachowski all of the support he would need to regulate broadband Internet if he so chose." The commissioners, Dayen continues, criticized the Google-Verizon proposal saying if adopted it "would eliminate any openness provision over wireless, which is where all Internet applications are going."

Critics of the Google-Verizon proposal say it is an affront to net neutrality, which calls for information via the Internet to be easily and fairly accessible to all people. The proposal offered earlier this month maintains that net neutrality should not apply to wireless access.

The FDL post notes that Sen. Al Franken has also criticized the Google-Verizon proposal. FDL includes video of Franken addressing the two companies' ideas. "We can't let companies write the rules that we the people are supposed to follow. Because if that happens those rules will be written only to protect corporations," Franken said.

Google's team-up with Verizon sparked great consternation among supporters of net neutrality principles, with several claiming that Google had abandoned its commitment to those principles.

Jordon Rohan, an Internet analyst at Stifel Nicolaus, told The New York Times, "I don't know that Google pondered the moral decision this time. I think the business decision to cooperate with Verizon superseded the other complications and side effects that it may cause."

After providing a keynote address at a recent ACS event on privacy concerns in a digital age, Christopher N. Olsen, the assistant director in the Federal Trade Commission's Division of Privacy and Identity Protection, noted in an interview with ACSBlog that the agency plans several forums for hearing input on the tackling online privacy concerns. Watch Olsen's interview below or download a podcast of it here.

Connecticut Attorney General Richard Blumenthal, leading a multistate investigation into Google's Street View software, urged the company to release more data about the software, including the names of the people responsible for its usage.

In a press release announcing his letter that was sent to Google earlier this week on behalf of the 37-state coalition, Blumenthal maintained that the Internet search company should have been aware that the software could ensnare personal data.

"If Google tested this software, it should have known all along that Street View cars [pictured] would snare and collect confidential data from homes across America. Now the question is how it may have used - and secured - all this private information," he stated.

In his letter, Blumenthal also asked Google to supply the names of the people responsible for the Street View software, Reuters reported. The news service states that Google has acknowledged that its Street View software, intended to use Wi-Fi spots to provide location information to smartphones, had collected personal information over a number of years. Reuters noted that Google is facing "an informal investigation into the matter by the Federal Trade Commission, a variety of probes overseas, and class action lawsuits." Additionally Blumenthal asks Google whether it "sold or otherwise used technical network information also collected."

Blumenthal states:

Google's responses continue to generate more questions than they answer. Our powerful multistate coalition - 37 states so far - is demanding that Google reveal whether it tested Street View software, which should have revealed that it was collecting payload data.

We are asking Google to identify specific individuals responsible for the snooping code and how Google was unaware that this code allowed the Street View cars to collect data transmitted over WiFi networks. Information we are awaiting includes how the spy software was included in Google's Street View program and specific locations where unauthorized data collection occurred.

We will take all appropriate steps - including potential legal action if warranted - to obtain complete, comprehensive answers.

Some of the states involved in the investigation include Florida, Illinois, Kentucky, Massachusetts, Missouri, Texas, New York, Mississippi, Vermont Nebraska, Michigan, North Carolina, Oregon, Washington, Kansas, Montana and Rhode Island. The District of Columbia is also a part of the coalition.

Google spokeswoman Christine Chen told Reuters, "It was a mistake for us to include code in our software that collected payload data, but we believe we did nothing illegal. We're working with the relevant authorities to answer their questions and concerns."

[image via adambowie]

Broadband networks represent the most critical communications infrastructure of our time: if these underlying transmission systems don't function effectively, the Internet cannot serve as a vibrant forum for speech, commerce, and culture.

Yesterday's ruling from the D.C. Circuit in Comcast v. FCC called into question the Federal Communications Commission's ability to protect consumers from harmful activity by the owners of these networks. Without oversight, dominant broadband providers - principally large cable and telephone companies - will be free to do as they wish even if their actions hinder the free flow of information, treat consumers unfairly, or discriminate against speech that they find undesirable. The decision also suggests that the Commission has limited authority to implement its recently devised National Broadband Plan - a plan that will be critical in closing the digital divide at home and abroad.

To understand these issues more fully, we need to step back in time a bit. Historically, communications law and FCC policy have recognized several unique characteristics of communications networks (like the telephone, telegraph, and now IP-based networks): (1) The networks require significant investment to build them, and as a result, the market to provide access to such networks will likely be heavily concentrated, (2) customers can likely use the services of only one network provider at a time; and (3) the costs associated with switching providers are significant. Thus, the owners of the networks have sufficient gatekeeping power. Because the network providers possess this gatekeeping power, the law required them to comply with certain basic rules, including the duty to open their networks to everyone without discrimination, and the duty to interconnect with other network providers that offered the same services.

On the other hand, the law historically imposed very few requirements on companies whose services made use of these networks, including such services as e-mail, Web browsing, and other content and applications made available over the Internet. The market for those types of services is more competitive, the barriers to entry are lower, and the chance that those service providers can extract monopoly rents or hamstring their competitors is significantly reduced as a result.

In 1996, Congress passed the Telecommunications Act, which essentially adopted these distinctions. Access to a communications network was deemed a "telecommunications service," and content and applications that used that IP-based networks to transmit data were termed "information services." And for the first few years after the 1996 Act was passed, the FCC treated broadband providers as "telecommunications service" providers.

In 2002, that changed. Reversing course, the Bush-era FCC decided to classify broadband Internet access service as an "information service" under the Act. In 2005, that decision was upheld by the Supreme Court as a reasonable interpretation of the 1996 Act. The Court did not reach the question of whether the FCC's interpretation was the best interpretation; it just said that the agency retained the discretion to make that determination, and that under Chevron v. Natural Resources Defense Council, the Court would defer to the agency's determination.

This deregulatory decision had far-reaching consequences. As set forth above, the law imposes very few obligations on information service providers. What the D.C. Circuit said yesterday is that since the Commission made the decision to classify broadband Internet access as an information service, it doesn't have authority under the current regulatory framework to enact basic consumer protections.

While the court drastically limited the scope of the FCC's authority to regulate broadband if broadband access continues to be classified as an information service, the Court left the door open for a straightforward fix: the FCC retains the authority to reclassify broadband providers as telecommunications service providers. The Commission would then be able to adopt policies to preserve the value of the open Internet, bring broadband to rural and low-income Americans, provide consumers with basic privacy protections, and require network operators to advertise and bill accurately for their services.

The Commission can and should pursue this option. It would put the FCC's broadband policies on more solid legal footing. And it would not be a radical change: it would merely close the loophole created by previous Commissions. Moreover, the Commission has the authority, under a procedure called forbearance, to tailor its policies narrowly. It can decide that broadband network owners should be required to comply with only some, and not all, of the rules governing "telecommunications services."

In the long term, Congress may pass legislation that provides the FCC with further guidance on how to regulate network providers. But in the meantime, the FCC must use the tools at its disposal - including reclassifying broadband transmission as a telecommunications service - to protect consumers from anti-competitive behavior, encourage broadband deployment and adoption, and preserve the Internet as an open platform for democratic engagement, information-sharing, cultural expression, and commercial activity. As both consumers and citizens, Americans deserve no less. 

[image via crunchgear.com]

Broadband service provider Comcast fended off the federal government's attempt to pursue a "net neutrality" policy, when a federal appeals court ruled that Comcast can limit the ability of certain types of information to be easily shared over the Internet. The New York Times reported, "The decision by the United State Court of Appeals for the District of Columbia Circuit specifically concerned the efforts of Comcast, the nation's largest cable provider, to slow down customers' access to a service called BitTorrent, which is used" to exchange files over the Internet.

Comcast caught the attention of the Federal Communications Commission (FCC) when it started throttling of BitTorrent, supposedly to ensure greater broadband capacity. The FCC issued rules forcing broadband providers to halting the practice to ensure "net neutrality," to limit discrimination against users of BitTorrent. In the case, the federal appeals court rejected the FCC's arguments (pdf) that it had authority under federal law to enforce regulation ensuring net neutrality.

"It is true the ‘Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications, the appeals court concluded in Comcast v. FCC. "It is also true that ‘[t]he Internet is such a technology,' indeed, ‘arguably the most important innovation in communications in a generation.' Yet notwithstanding the ‘difficult regulatory problem of rapid technological change' posed by the communications industry, ‘the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer ... Commission authority.'"

In a press statement S. Derek Turner, research director for Free Press, one of the public interest groups that urged the FCC to regulate Comcast's efforts to stifle BitTorrent traffic, said the decision leaves "the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing."

[image via M3Li55@]   

Plaintiffs have won a rare victory against the government in a case involving the state secrets privilege. On April 1, 2010, Federal District Judge Vaughn Walker ruled in favor of Al-Haramain Islamic Foundation, Inc., a now-defunct Islamic charity that had sued the government for intercepting its employees' international telephone conversations without obtaining a warrant. Al-Haramain claimed the government's warrantless wiretap violated the Foreign Intelligence Surveillance Act (FISA), a federal law that limits the government's ability to eavesdrop on its citizens. The case is one of several challenging the National Security Agency's warrantless wiretapping program. The government has responded to all such lawsuits by arguing because its surveillance activities concern national security, the state secrets privilege requires dismissal of claims that it violated FISA.

Yet FISA was enacted for the very purpose of preventing the government from eavesdropping without a warrant, and it provides a mechanism by which individuals or groups who believe they have been victims of an unlawful government wiretap can seek redress in the courts even when the claim relies on classified evidence. Under FISA, if a plaintiff establishes a "colorable basis" for believing that it has been subject to unlawful surveillance, the Court can then examine classified evidence in camera to determine whether the surveillance occurred, and if so whether it was lawful.

Al-Haramain met its burden by producing non-classified evidence that it had been the subject of such surveillance -including statements by government officials admitting as much. (In addition, the government had inadvertently produced a classified document acknowledging that Al-Haramain was wiretapped, though that document was excluded from the Court's consideration.) Unfortunately, the government refused to respond to the merits of plaintiffs' claims. Rather than dispute whether Al-Haramain had been subject to surveillance, or contend that the surveillance was lawful, the government continued to argue that the state secrets privilege barred introduction of any evidence relevant to those questions.

So it should come as no surprise that the government lost its case. Clearly frustrated by the government's "intransigence," Judge Walker concluded that he had no choice to rule in favor of the plaintiffs after the government failed to address Al-Haramain's claims that it had been the subject of unlawful surveillance.

This "victory" for the plaintiffs is unsatisfying for just about everyone. Because the government refused to respond to the merits of plaintiffs' claim, the case sheds no light on NSA's warrantless surveillance program. Just as disappointing, the government forfeited an opportunity to work with the court and the plaintiffs to create a model for future civil litigation involving classified information. Judge Walker ordered the government to process security clearances for plaintiffs' attorneys and to work with plaintiffs to create a protective order governing use of classified information-all reasonable steps that could have protected the classified information at issue while enabling the plaintiffs to seek judicial review of their FISA claim. Yet the government refused to participate in this process, preferring instead to argue that it alone controls access to information about whether it violated the law. Accordingly, the win is a hollow one for those who hope to see executive branch work with the courts rather than claim immunity from judicial oversight.

[Image via Jinx!.]

U.S. District Court Judge Vaughn Walker rejected arguments initially offered by both the Bush and Obama administrations, ruling that the National Security Administration's (NSA) warrantless wiretapping broke federal law. Walker determined that the program violated the 1978 Foreign Intelligence Surveillance Act (FISA) which requires warrants that the NSA failed to obtain.

Rather than mounting a legal defense of the NSA's program, the Obama administration only argued that the state-secrets privilege required the court to block the suit. Judge Walker bucked the administrations' invocations of the privilege, which he characterized as amounting to "unfettered executive-branch discretion" bearing "obvious potential for governmental abuse and overreaching." Walker's 45-page opinion made no mention of the Bush administration's argument that the NSA acted within the president's war time powers to override FISA.

Writing at Wired's "Threat Level" blog, David Kravets called the ruling "a landmark decision."

"It's the first ruling addressing how Bush's once-secret spy program was carried out against American citizens," Kravets reports. "Other cases considered the program's overall constitutionality, absent any evidence of specific eavesdropping."

Marcy Wheeler outlines the procedural posture and surmises that the Justice Department is unlikely to appeal the case:

If this ruling stands, al-Haramain will get a ruling that the wiretapping was illegal. The government will be directed to purge any records it collected from its databases (I'll explain in a later post why I think this will present some problems). And it'll be asked to pay a fine, plus legal fees. But the fines, at least ($100 per day per day of illegal wiretapping) might end up being a relative pittance-tens of thousand or hundreds of thousand of dollars. Sure, there will be punitive fines and legal fees for four years of litigation. But the government was happy to settle Hatfill and Horn for millions, why not have this be done for the same range of millions?

What al-Haramain won't get-unless it litigates some of the other issues in the case, which likely can be dismissed with State Secrets-is access to what the government was doing. Or details of how it came to be wiretapped illegally.

I'm betting that the government will be willing to accept the ruling that it illegally wiretapped al-Haramain in exchange for the ability to leave details of how and what it did secret, leaving the claim of State Secrets largely intact.

[Image via ClintJCL.]

A draft proposal of the Anti-Counterfeiting Trade Agreement (ACTA) has been leaked, and critics are sharpening their attacks on the controversial anti-pirating agreement.

ACTA has long been a subject of criticism. Being negotiated behind closed doors, the multi-national agreement is intended to standardize intellectual property enforcement among participating countries. Critics argue, however, that the secret negotiations shaping ACTA should be made transparent. Leaked reports on the substance of negotiations have also drawn fire.

Today's Washington Post bears an op-ed by Harvard Law professors Lawrence Lessig and Jack Goldsmith who reiterate prior criticisms of both the process producing ACTA and the agreement's substance. Their op-ed also introduces constitutional concerns for how the United States might join the agreement, noting that the administration has suggested enactment without congressional involvement.

"If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives," Lessig and Goldsmith write. "When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied."

"Congress should follow Biden's lead," argue Lessig and Goldsmith.

[Image via Mike Blogs.]

The Washington Post reported this morning that between 2002 and 2006 the FBI "illegally collected more than 2,000 telephone records ... by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews." The Post noted that a Justice Department inspector general report due this month is likely to conclude that the spy agency "frequently violated the law with its emergency requests, bureau officials confirmed." TalkLeft has a detailed account of the newspaper's reporting on the illegally obtained phone records here.

The newspaper continued, "Documents show that senior FBI managers up to the assistant director level approved the procedures for emergency requests of phone records and that headquarters officials often made the requests, which persisted for two years after bureau lawyers raised concerns and an FBI official began pressing for changes."

The Supreme Court added new cases to its docket this morning, including one involving the extent of privacy for employee text messages and another involving whether immigrants convicted of repeated drug possession charges can be deported.

In City of Ontario v. Quon, the justices will determine whether Ontario, Calif., officials violated the privacy rights of several police officers by reading scores of text messages they sent via pagers issued by the police department. A U.S. District Court ruled against the officers, but the U.S. Court of Appeals for the Ninth Circuit ruled that the city had violated the privacy rights of police officers. Lewis Maltby, president of the National Workrights Institute, told the Los Angeles Times that the case "came down at a moment when there was virtually no protection for employee privacy. If it stands, it would mean employees for the first time could communicate at work with privacy." City officials, however, argue that employees should expect no privacy when using equipment provided by the employer.

In Carachuri-Rosendo v. Holder, the justices will consider a ruling by the U.S. Court of Appeals for the Fifth Circuit that upheld deportation proceedings of a legal alien convicted of multiple, minor drug possession offenses. The Associated Press reported that while the Fifth Circuit upheld the deportation proceedings, other federal circuits have ruled in favor of immigrants.

The high court also denied, without comment, a case involving four former Guantanamo Bay detainees who say they were tortured and denied their religious liberty rights. For more discussion of today's Supreme Court action see analysis from SCOTUSblog's Lyle Denniston here.