Executive Briefing February 23, 2018

TOP STORIES — Coverage of Microsoft v. DoJ Supreme Court Oral Arguments (Feb. 27)

Coverage continues ahead of the February 27th oral arguments in the Supreme Court.  Legal scholars continue to weigh in on what they anticipate will happen.  Of note is that 35 state attorneys general sent a letter to the Senate and House calling for passage of the CLOUD Act.

WASHINGTON — A digital privacy dispute between the federal government and Microsoft is forcing the Supreme Court once again to match old laws to new technology. On tap at the court next Tuesday is the Trump administration’s effort to obtain emails relevant to a drug trafficking case. The statute governing access was enacted in 1986, before the World Wide Web existed. Today, Microsoft stores data on some 1 million servers in 40 countries.

Just Security published a contributed piece by Kristen Eichensehr, assistant professor at UCLA’s School of Law, examining that Congress, rather than the Supreme Court, is the appropriate venue to address the issue of cross-border data access at the heart of the case. The piece analyzes that while the Court’s opinion in the case may alter the presumption against extraterritoriality in the short term, any precedent will likely be overridden by later congressional action.

The Register reported on a letter sent Wednesday by 35 state attorneys general to Senate and House leaders calling for quick passage of the CLOUD Act. The article notes that the attorney generals also urge that new legislation should not stop ongoing alterations to ECPA that could strengthen consumer protections.

TOP QUOTES

  • “While the Supreme Court is a perfectly reasonable venue for deciding the statutory interpretation question presented, it is a poor fit for addressing the bigger issues behind the courtroom clash: how do the powers of different states interact to govern cyberspace, and how should the balance between state and corporate power in cyberspace be struck?… The Court’s opinion in the Microsoft case may alter the presumption against extraterritoriality, and it will likely set a default rule about government access to data. That rule will be subject, though, to overriding by later congressional action. And the ultimate resolution to debates among governments and between private and public powers about control over cyberspace won’t be found in the U.S. Reports.”

 – Kristen Eichensehr, assistant professor of law, UCLA

  • “Today’s letter urges Congress to pass the CLOUD Act as “an important step toward resolving this dispute.” The CLOUD Act “both confirms law enforcement’s ability to obtain probable-caused based warrants for electronic communications stored abroad and creates a clear avenue for service providers to challenge an SCA warrant that targets a foreign person and which would require a provider to violate foreign law. The Act also creates incentives for our foreign partners to enter into bilateral agreements that will facilitate cross-border criminal investigations, while ensuring that privacy and civil liberties are respected.””

 – Press release by Vermont Attorney General TJ Donovan

HILL UPDATE

The Hill Senators offer bill to close rural-urban internet divide

Senators Shelley Moore Capito (R-W. Va.) and Maggie Hassan (D-N.H.) introduced a bill on Tuesday aimed at promoting internet access in rural communities. The Rural Reasonable and Comparable Wireless Act would direct the FCC to implement a benchmark for rural internet access that is “reasonably comparable” to urban areas.

ARTICLE SUMMARY

Telecompetitor Microsoft Project Belgrade Taps Small Cells for TV White Spaces Fixed Wireless Broadband

Details progress on Project Belgrade, a “sizeable” cellular network testing delivery of broadband to 30 urban residents in Cambridge. Project Belgrade has now successfully proven that cellular network deployment for TVWS is a highly feasible alternative to Wi-Fi. Engebretson also briefly mentions that Microsoft’s US-focused TVWS projects are targeted at broadband delivery in rural areas.

Reuters Appeals Court Rejects Bid by Google to Escape Digital Ad Patent Case

A federal appeals court on Thursday sided with the trustee of an early internet search engine in a dispute with Google parent Alphabet over the validity of two patents related to online advertising. The trustee for bondholders of At Home Corporation, better known as Excite@Home, had accused the internet giant of infringing two patents that claim a method of counting the number of times an online ad has been displayed on a website.

Roll Call Rural Areas Feeling Left Behind in Race to Expand Broadband

Denny Law’s telecommunications company connects phone lines through the plains of western South Dakota and he’s all-in for ending the rural digital divide. He said President Donald Trump’s promise to level the playing field with a “great, great broadband,” made during a Jan. 8 speech in Nashville, Tennessee, has energized local providers like himself. And, he added, John Thune, the South Dakota Republican who chairs the Senate Commerce, Science and Transportation Committee, had better take note. Lawmakers are also watching software giant Microsoft, which said last July that it wants to partner this year with local providers in 12 states to use one of two unlicensed television channels in every market — dubbed white space and free for use without FCC approval — to deliver high-speed broadband service in rural communities.

Washington Post State Elections Officials Fret Over Cybersecurity Threats

State elections officials said Saturday that they want more information from federal officials to ensure they are protected from cybersecurity threats in light of evidence that foreign operatives plan to try to interfere in the midterm elections. At a conference of state secretaries of state in Washington, several officials said the government was slow to share information about specific threats faced by states during the 2016 election. According to the Department of Homeland Security, Russian government hackers tried to gain access to voter registration files or public election sites in 21 states.

The Hill New EU Data Protection Rules a Turning Point for Privacy

On Jan. 24, Facebook announced major privacy changes in advance of the European Union’s new Data Protection mandate, coming into effect later this year. Starting May 25, any company that is non-compliant can face fines equivalent to as much as 4 percent of their annual revenue, forcing a major review of corporate privacy policies across the board that will have an impact far beyond the borders of the European Union.

New York Times The Case Against Google

Google has succeeded where Genghis Khan, communism and Esperanto all failed: It dominates the globe. Though estimates vary by region, the company now accounts for an estimated 87 percent of online searches worldwide. It processes trillions of queries each year, which works out to at least 5.5 billion a day, 63,000 a second. So odds are good that sometime in the last week, or last hour, or last 10 minutes, you’ve used Google to answer a nagging question or to look up a minor fact, and barely paused to consider how near-magical it is that almost any bit of knowledge can be delivered to you faster than you can type the request. If you’re old enough to remember the internet before 1998, when Google was founded, you’ll recall what it was like when searching online involved AltaVista or Lycos and consistently delivered a healthy dose of spam or porn. (Pity the early web enthusiasts who innocently asked Jeeves about “amateurs” or “steel.”)

TechCrunch Facebook Will Verify the Location of US Elections Ad Buyers by Mailing Them Postcards

Facebook’s global director of policy programs says it will start sending postcards by snail mail to verify buyers of ads related to United States elections. Katie Harbath, who described the plan at a conference held by the National Association of Secretaries of State this weekend, didn’t reveal when the program will start, but told Reuters it would be before the congressional midterm elections in November.

The Verge Embedding a Tweet Could Be Copyright Infringement, Says New Court Ruling

A New York district court has ruled that embedding a tweet on a webpage could violate copyright — a decision that could have a wide-ranging impact on social media and publishing. Yesterday, Judge Katherine B. Forrest rejected the defense of several news outlets that embedded tweets containing a copyrighted photograph of Tom Brady, saying they could be liable for infringement even if they weren’t hosting the image on their site. Her decision can be appealed, but the reasoning could apply to many kinds of embedded content, making a basic feature of web publishing riskier to use.

New Republic Ban Facebook Before Elections

The indictment of 13 Russian nationals for meddling in the 2016 U.S. election has reignited the debate on whether Facebook and other social-media giants are a threat to democracy. While the electoral impact of Russian trolls who amplified anti–Hillary Clinton memes can be disputed, there’s a strong argument that social media has had a toxic effect on American society, driving polarization and creating paranoia. The wildfire spread of conspiracy theories that grieving high school students in Parkland, Florida, are “crisis actors” is only the latest example of how social media can poison public discourse.

Washington Post Trump Tech Advisor Reed Cordish Is Leaving the White House

A senior Trump administration adviser on government-to-government and technology initiatives is stepping down, the latest of more than a dozen top officials to depart the White House in little more than a year. Reed S. Cordish is leaving his post as assistant to the president in the Office of American Innovation, where he is being replaced by Brooke L. Rollins, the White House said this week. Rollins is a former aide to Energy Secretary Rick Perry, from his time as Texas governor. She joins the White House from the Texas Public Policy Foundation, a conservative think tank that advocates for criminal justice reform and free enterprise.

Broadcasting Cable Schools & Libraries: We’re Keys To Closing Rural Divide

The Schools, Health & Libraries Broadband (SHLB) Coalition announced a strategy called “To and Through Anchors,” a $13-$19 billion plan to connect every anchor institution (schools, libraries, community centers) in the country (excluding Alaska) with fiber to help close the rural digital divide. CAN Executive Director Richard Cullen is quoted saying, “Fiber-connected schools, libraries and health clinics across the heartland can serve as anchors to deploy TV white space connections to remote communities where laying cable is simply not an option.” Eggerton notes that Microsoft has been pushing the FCC to expand access to TVWS, and that Microsoft has representation on the SHLB board.

THINK TANK/TECH TRADE ASSOCIATION HIGHLIGHTS

Brookings Institution

  • Blog post on broadband: Nonresident senior fellow Blair Levin wrote, “It’s been less than a decade since the release of the National Broadband Plan, but the evidence is now even stronger that next-generation broadband networks create a number of benefits.” He added, “Communities should study and emulate the models that clearly improve the math for investment in next-generation networks, regardless of the public or private delineation.” (BROOKINGS BLOG – Communities can’t afford to wait for the federal government to obtain next gen broadband, By Blair Levin, February 16, 2018)

Competitive Enterprise Institute (CEI)

  • Op-ed on competition in technology: “The clamor is rising for Big Tech firms to be broken up…Both sides claim these companies use data they collect from customers to keep themselves big and powerful,” wrote vice president for strategy and senior fellow Iain Murray and research associate Ryan Khurana. “Breaking up big technology companies in an attempt to force ‘competition’ (according to a model developed in the pre-tech, 20th Century economy), without a clear understanding of the current market dynamics and the impact on consumers themselves, would leave their users worse off.” (INVESTOR’S BUSINESS DAILY – Competition In Technology Is More Vibrant Than It Looks, By Iain Murray and Ryan Khurana, February 21, 2018)

Information Technology & Innovation Foundation (ITIF)

  • Report on workforce development: President Robert D. Atkinson argued in a recent report that “policymakers should focus on doing significantly more to help those who are displaced transition successfully into new jobs and occupations.” In the report, Atkinson “discusses the recent and current views of Rather than slow down change to protect a small number of workers at the expense of the vast majority, policymakers should focus on doing significantly more to help workers transition easily into new jobs and new occupations.” Additionally, he “examines six issues related to technological innovation and implications for the labor market.” (ITIF REPORT – How to Reform Worker-Training and Adjustment Policies for an Era of Technological Change, By Robert D. Atkinson, February 20, 2018) (Additional: Press Release)
  • Comments on broadband: In comments filed to the FCC, director Doug Brake stated that “ITIF strongly supports providing subsidies to help low-income Americans afford the communications services that are increasingly essential for modern life.” He noted, “Beyond the equities of ensuring a safety net for those less fortunate, subsidized connectivity for those otherwise unlikely to pay for broadband contributes to network effects, making the Internet a more valuable communications platform and working toward a society that can organize assuming everyone is online.” (ITIF COMMENTS – Comments to the FCC on Modernizing the Lifeline Program for the Broadband Era, By Doug Brake, February 21, 2017)

NOTABLE QUOTES

  • “While the Supreme Court is a perfectly reasonable venue for deciding the statutory interpretation question presented, it is a poor fit for addressing the bigger issues behind the courtroom clash: how do the powers of different states interact to govern cyberspace, and how should the balance between state and corporate power in cyberspace be struck?… The Court’s opinion in the Microsoft case may alter the presumption against extraterritoriality, and it will likely set a default rule about government access to data. That rule will be subject, though, to overriding by later congressional action. And the ultimate resolution to debates among governments and between private and public powers about control over cyberspace won’t be found in the U.S. Reports.”

 – Kristen Eichensehr, assistant professor of law, UCLA

  • “The idea of having bilateral agreement, allowing each country to follow its own law enforcement procedures to demand data from multinational corporations, makes sense, but only if the standards are high enough to comply with human rights concerns.”

 – Greg Nojeim, senior counsel, Center for Democracy & Technology

  • “The full debate over cross-border access to data will not end with the resolution of the Microsoft Ireland case. These issues still pose important challenges for Congress. It is critical that in refining proposals to resolve these issues, the government and tech companies consider the interests of all stakeholders, and that legislation to address cross-border access to data includes robust safeguards for individual rights.”

– Sharon Bradford Franklin, director, New America’s Open Technology Institute 

  • “At the heart of the case is the conflict between the government’s need for evidence to investigate and prosecute serious crimes, ranging from terrorism to fraud, and digital privacy. Microsoft warns that if the government can use a warrant to seize emails located outside the United States, foreign governments may act to seize emails inside the United States. It also sees the government’s action as a threat to the U.S. cloud-computing industry.”

– Marcia Coyle, Chief Washington Correspondent, National Law Journal

SOCIAL MEDIA HIGHLIGHTS