The ConnectED scheme: Proposed new $5 per year cellphone tax could be used to bring more U.S. schools online

The ConnectED scheme
Unwilling to ask Congress for extra funds to pay for high-speed Internet connections in schools, President Obama is instead looking to tack yet another charge on cellphones through the Federal Communications Commission.  The new program, called ConnectED, would expand an existing school-wiring effort and cost each cellphone user about $5 a year, said White House officials.
President Obama’s plan to bring high-speed Internet connectivity to 99 percent of America’s school students. The five year scheme was revealed back in June and at the time, there was vague talk about raising taxes on phone bills to help pay for the initiative – except it wasn’t clear whether this was fixed or phones, or when such a tax would be implemented, if at all.
That question has been answered today, and it’s cellphone users who will be paying. White House officials, quoted in the New York Post, say each phone user will end up paying about $5 extra per year on their bill, or around $0.40 each month. It’s unlikely to break the bank, but it’s enough to notice.
The FCC is considering completely reworking the E-Rate. The goal will be to reach President Obama’s goal of providing 100 Mpbs-1 Gbps of bandwidth to schools serving 99 percent of students, and to provide wireless access inside schools. Allocating funding based on enrollment is one proposal, but the FCC is also considering cutting the top discount level, eliminating telephone service from the program, expanding eligibility of fiber leases, etc.
To see a brief list of the changes that the FCC is considering
For those with more time, here is the full Notice of Proposed Rulemaking (NPRM)
It’s worth reading the comments of Commissioners Rosenworcel and Pai at the end of the NPRM, as they lay out very different visions of what the reform should look like. And the FCC really does read the comments. I think comments from school districts are especially powerful. It’s pretty easy to file comments online; here are the FCC’s instructions: FYI, E-Rate comments should be filed in Docket 02-6.
Comments were due September 16, 2013.


The Criminal N.S.A.

June 27, 2013
Jennifer Stisa Granick is the director of civil liberties at the Stanford Center for Internet and Society. Christopher Jon Sprigman is a professor at the University of Virginia School of Law.
THE twin revelations that telecom carriers have been secretly giving the National Security Agency information about Americans’ phone calls, and that the N.S.A. has been capturing e-mail and other private communications from Internet companies as part of a secret program called Prism, have not enraged most Americans. Lulled, perhaps, by the Obama administration’s claims that these “modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”
It didn’t help that Congressional watchdogs — with a few exceptions, like Senator Rand Paul, Republican of Kentucky — have accepted the White House’s claims of legality. The leaders of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, and Saxby Chambliss, Republican of Georgia, have called the surveillance legal. So have liberal-leaning commentators like Hendrik Hertzberg and David Ignatius.
This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.
The administration has defended each of the two secret programs. Let’s examine them in turn. <snip>

[ECP] Educational CyberPlayGround: NetHappenings Newsletter


Surveillance – Spy

Who Controls Big Data?


The modern American surveillance state is not really the stuff of paranoid fantasies; it has arrived. The American Surveillance State owes the public an explanation.
The public needs to decide if these policies are right or wrong.

Criminal investigators may not carry out unrestricted computer searches without proper evidence to support their probe because computer drives store a massive amount of sensitive private information protected by the Fourth Amendment, the Second Circuit found Tuesday.
QUESTION: How can the United States shape the global cyber landscape to promote U.S. economic interests, and develop a cyber domain that considers transparency, accessibility, security, and privacy?
We need to ask hard questions about technology. Not just “Is it cool?” but “Does it make our lives better, or more just? And does it make our world more secure?” ~ Gary Chapman
Continue reading “[ECP] Educational CyberPlayGround: NetHappenings Newsletter”

Corporate Governance and Surveillance

The 4th Amendment, Corporate Governance and Surveillance.

Corporate Governance and Surveillance

Corporate Governance and Surveillance
#1 the government tells the companies that they are legally required to comply, and that as corporations they are legally forbidden to reveal the subpoenas/requests for information. Apparently the laws Congress has passed since 9/11 support this position. So the commands from the government probably start near the top of the company, and work their way down.
#2  if  CEOs were to quit every time a government tells them to do something they don’t agree with, few would remain.
#3: the government both prosecutes and persecutes individual whistleblowers in these situations.
Q: Did none of these people resign in protest?  Did none ask to be reassigned?  Were they all convinced by the NSA’s argument that “it’s the only way to keep you safe”?  Or were they simply cowed into silence, afraid to act, afraid to move, afraid to not do what was asked?
Michael Woodford’s _Exposure_, about his very brief tenure as president of Olympus, and the accounting scandals that came to light during his time, which he refused to sweep under the rug.  He became a major whistleblower, and much of Olympus’s board resigned, and some were prosecuted, as a result.
The Surveillance State
Shouldn’t IT/Networking/Internet professionals have standards that, hopefully, distinguishes us from… say… China and the State-run ISP of North Korea
Why these activities are so pernicious, is that regardless of how appropriate the intended consequences anyone can paw over the data can use it for any purpose.
Big Data, Internet Surveillance, and 4th Amendment:
“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”


Beginners Eyes: Digital Birds: Nothing is what it seems. The Illusions of Security:
The Known and Unknown Rules, becoming part of the borg. The Masters, The Humplings, and The Dregs but so what! You never get the truth from the company Memo ~ Timothy Leary.
Email Privacy
Another Court of Appeals upholds 4th Amendment rights in email. June 2007
A significant opinion was decided by the 6th Circuit Warshak v. US, upholding 4th Amendment protections for emails. The 6th Circuit ruled, agreeing with an amicus brief filed by EFF, that “A [government] seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to” a 4th amendment violation. This case is doubly important because the government primarily argued that the 4th Amendment shouldn’t matter, as it complied with most (but not all) of the relevant administrative subpoena statute, with its lesser standards of proof. Details: US statutes offer some privacy for emails, based on distinctions like ‘sent’ vs. ‘in transit’ vs. ‘stored’ vs. ‘read or unread.’ These categories, their standards of proof and the protections they offer, are hotly debated themselves because the US has several statutes (the Wiretap Act, ECPA, etc.) that protect some emails and computer uses, most cases never have to address the 4th Amendment issue. The case can be decided just based on whether the statute was followed. A recent case, Councilman, may be familiar to readers as an example of a case that involved the intricacies of these statutes. But the issue has always been lurking as to whether or not there is additional 4th Amendment protection above and beyond the statutes – especially as amendments (like the Patriot Act) have pared back the protections or standards in these statutes. The court today signaled there clearly is independent 4th Amendment protection, and ruled that some portions of ECPA were constitutionally inadequate.
~ Ethan Ackerman
Big Data
Infringements on Privacy – What is Protected and Private?
Cellphone Data On 4th Amendment Grounds
10/26/2012 Judge Protects Cellphone Data On 4th Amendment Grounds, Cites Government’s Technological Ignorance
Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request.
Various US government agencies have spent a lot of time and energy hoping to ensnare as much cell phone data as possible without having to deal with the “barriers” erected by the Fourth Amendment. The feds, along with Los Angeles law enforcement agencies, have bypassed the protections of the Fourth Amendment by deploying roving cell phone trackers that mimic mobile phone towers. The FISA Amendments Act has been used as a “blank check” for wholesale spying on Americans and has been abused often enough that the Director of National Intelligence was forced to admit these Fourth Amendment violations publicly.
The good news is that a few of these overreaches are receiving judicial pushback.
Surveillance – Who’s Watching the N.S.A. Watchers?
Welcome to a world where Google knows exactly what sort of p0rn you like, and more about your interests than your partner does. Welcome to a world where your cell phone company knows exactly where you are all the time. Welcome to the end of private conversations, because increasingly your conversations are conducted by e-mail, text, or social networking sites. you do or is done on a computer, is saved, correlated, studied, passed around from company to company without your knowledge or consent; and where the government accesses it at will without a warrant.
Senators: NSA phone sweeping has been going on since 2007
“Everyone’s been aware of it for years, every member of the Senate,” said Sen. Saxby Chambliss (Ga.), the ranking Republican on the Senate Intelligence Committee.  Under the auspices of the Foreign Intelligence Surveillance Act. He said he was not aware of a single citizen filing a complaint about it.
I love the comment that “nobody complained about it” —  maybe because nobody knew about it!
“There’s another way to phrase that and that is that the absence of evidence is not the evidence of absence.” – Donald Rumsfeld
NSA/FBI also tapped into major Internet Companies
“the only members of Congress who know about PRISM were bound by oaths of office to hold their tongues.”
Q: Does this “oath to hold their tongues” supersede their oath to uphold the Constitution to the United States against enemies both foreign and DOMESTIC?
Good timeline: Electronic Surveillance Under Bush and Obama

NYT: President Obama’s Dragnet By THE EDITORIAL BOARD
The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it.
So that’s what the NYT “discovered” that we have today: a 1997 type of control.  Perhaps they can also announce the ’97 solution.
In 1997 All these methods, besides the obvious advantages of a legal and centralized control method, provide however a back door into each person’s or company’s private businesses by giving government agencies the possibility of easy decryption of otherwise private messages. One could add that these methods make network systems insecure also by design, whereas before they were insecure by accident.
… in — one of the most visited pages in the Internet at the time. The paper also showed in ’97 that PGP and PKI would not work for encryption (sorry, even if done right) and that’s why we started to develop a secure system that anyone can use well and it’s now ZSentry.
So, why are the NYT and people here claiming surprise today? This is all actually very old old news. This was a new (’97) type of control — and was devised because the Internet is at odds with centralized control, so Internet control must be decentralized in order to be effective.

Q: How Does the How the military and civil service always manage to control the administration’s position on such things?
A #1: from  Mark Stahlman Brooklyn NY
In early 1960, Eisenhower gave his farewell speech in which he famously named the “military-industrial complex” and, as most have forgotten, the equally dangerous “scientific and technological elite.”
As a man who had both made history and who personally knew dozens of others with “world-historic” ambitions, most notably the Rockefeller brothers, even he couldn’t stop the *machine* that came rolling out of WW II to dominate US policy and actions — domestic and foreign.
Following the Nixon impeachment, what President was safe?  Was Reagan *really* the President?  How about Clinton after he was also “impeached”?  No one thought that George W. Bush was really the “decider” — did they?
The NYTimes endlessly complains about how Obama is “detached” and “too cool.”  Of course he is.  Why would he want to know what’s going on?  He’s a law professor from Chicago, without the experience or personality to actually “run” anything.
Only 57.5% of eligible voters actually cast ballots in the 2012 election and Gallop has just fallen on their sword over how they mis-estimated the makeup of the turnout — which was skillfully “engineered” to give Obama an apparent “victory” where everyone knows he really won because many Republicans *really* didn’t want Romney, so they stayed home.
The US hasn’t had an over-reaching *strategy* since the Cold War and that was designed in the 1950s.  Instead, we have a situation where “no one” is in charge and “no one” really has a comprehensive picture of what is actually going on or what to do about strategically.
Instead, the MACHINE is running the place.  If the technology *wants* it to be done, then it is budgeted and “cleared” legally, since, as we all know, the Constitution requires actual people to apply it — but the *people* have retreated into their “fall-out” shelters, hoping to survive the conflagration.
It has been a *very* long time since the US has had either a leader or a leadership group or a process like this. As a result, the *BUS* is “driving” itself and, for better-and-worse, the rest of the world both knows and fears where it is heading  . . . !!
A #2  John Dougan
The civil service controls what the politicians see and hear (substantially&nbsp;in a policy proposal sense, certainly also in an&nbsp;intelligence&nbsp;information sense) so of course they have substantial control of the discourse. I think they also have an advantage in that relatively few people in the US think of the civil service as its own entity, with its own goals, directions and interests. This enable it to operate in more of a stealth mode. Lobbyists certainly understand this.
Organization,  is about linkages. Society may be thought of as the workings of an intricate machine, with all the parts working happily at their complementary functions.

Mainstream Media Fail to Break Even One of Four Obama Scandals
But one thing is for damn sure, whatever that scandal is, you can bet the American mainstream media will be playing catch up and not carrying the glory of breaking a story about a major White House scandal. Fact: Over the past few weeks, four major scandals have broken over the Obama administration, and it is a very sad (and frightening) truth that our pathetic, American, lapdog mainstream media is not responsible for breaking even a single one.
This disclosure was made by a British newspaper not U.S. Journalists.
Perhaps the recent monitoring of (Associated Press) reporters inhibited them from pursuing the matter.  Will this lead to the UK and USA going forward with expanding the UK’s Official Secrets Act to include disclosing secrets of foreign countries?

DNI Statement on NSA Disclosures June 6
Address some of the questions raised in the WaPo/Guardian articles and of course, includes the usual statements about “balancing privacy/security” and how such disclosures hurt the country, etc,

What We Don’t Know About Spying on Citizens: Scarier Than What We Know
The NSA’s surveillance of cell-phone calls show how badly we need to protect the whistle-blowers who provide transparency and accountability.
Yesterday, we learned that the NSA received all calling records from Verizon customers for a three-month period starting in April. That’s everything except the voice content: who called who, where they were, how long the call lasted — for millions of people, both Americans and foreigners. This “metadata” allows the government to track the movements of everyone during that period, and a build a detailed picture of who talks to whom. It’s exactly the same data the Justice Department collected about AP journalists.
We know the FBI has issued tens of thousands of ultra-secret National Security Letters to collect all sorts of data on people — we believe on millions of people — and has been abusing them to spy on cloud-computer users. We know it can collect a wide array of personal data from the Internet without a warrant. We also know that the FBI has been intercepting cell-phone data, all but voice content, for the past 20 years without a warrant, and can use the microphone on some powered-off cell phones as a room bug — presumably only with a warrant.
NSA’s ECHELON program from a 2000 European investigation, and about the DHS’s plans for Total Information Awareness from 2002, but much less about how these programs have evolved.
For a lot of this, we’re completely in the dark.
And that’s wrong.
The U.S. government is on a secrecy binge. It overclassifies more information than ever. And we learn, again and again, that our government regularly classifies things not because they need to be secret, but because their release would be embarrassing.
Knowing how the government spies on us is important. Not only because so much of it is illegal — or, to be as charitable as possible, based on novel interpretations of the law — but because we have a right to know. Democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that. That means knowing what our government is doing to us, in our name. That means knowing that the government is operating within the constraints of the law. Otherwise, we’re living in a police state.

We need whistle-blowers.
The rest of society isn’t grateful enough for what they did to defend their reputations or help them get another job. Whistleblowers are utterly dependent on how other people tell their story: will the focus be on their motives (disgruntled, troublemaker, security risk, politically inept) or whether what they did was for the greater good?
Manning trial draws focus on to Obama’s security state
In the three years it has taken the US military to bring Bradley Manning to trial, the Obama administration might have hoped some of the political heat surrounding the biggest leak of classified information in US history would have dissipated.
Free Bradley Manning petition to the White House
if you agree with it, please sign it and send it to your friends on facebook and on your email lists.

Dept. of Homeland Security: Laptops, Phones Can Be Searched Based on Hunches
The 23-page report, obtained by The Associated Press and the American Civil Liberties Union under the U.S. Freedom of Information Act, provides a rare glimpse of the Obama administration’s thinking on the long-standing but controversial practice of border agents and immigration officers searching and in some cases holding for weeks or months the digital devices of anyone trying to enter the U.S. the US Government also asserts that such warrantless searches can be done within 100 miles of the US border[1]. Two thirds of the US population lives within that distance.[2]
§ 287 (a) (3) of the Immigration and Nationality Act,
66 Stat. 233, 8 U.S.C. § 1357(a)(3), which simply provides
for warrantless searches of automobiles and other conveyances
“within a reasonable distance from any external boundary of the
United States,” as authorized by regulations to be promulgated
by the Attorney General. The Attorney General’s regulation,
8 CFR § 287.1, defines “reasonable distance” as “within 100
air miles from any external boundary of the United States.”
* What we found is that fully TWO-THIRDS of the United
States’ population lives within this Constitution-free or
Constitution-lite Zone.   That’s 197.4 million people who live
within 100 miles of the US land and coastal borders.
* Nine of the top 10 largest metropolitan areas as determined
by the 2000 census, fall within the Constitution-free Zone.
(The only exception is #9, Dallas-Fort Worth.) Some states are
considered to lie completely within the zone: Connecticut,
Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan,
New Hampshire, New Jersey, New York, Rhode Island and Vermont.

Welcome to the era of Total Information Awareness and ain’t it grand?
The problem isn’t the National Security Agency. It’s the Patriot Act and what it represents as we watch the modern surveillance state take shape — in secret.

How Congress unknowingly legalized PRISM in 2007
“unknowingly” ?? they just chose to marginalise their concerns in the name of protecting the homeland
WaPost backtracks on claim tech companies ‘participate knowingly’ in PRISM data collection
A slide depicting the top-secret PRISM program
NSA taps in to user data of Apple, Google and others, secret files reveal
• Top secret PRISM program claims direct access to servers of firms including Google, Skype and Yahoo
• Companies deny any knowledge of program in operation since 2007
The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.
The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.
The Guardian has verified the authenticity of the document, a 41-slide PowerPoint presentation – classified as top secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims “collection directly from the servers” of major US service providers.
SA slides explain the PRISM data-collection program

British government has access to Internet giants’ data via US spy agency.
Britain’s Guardian newspaper says that the U.K. government has been secretly gathering communications data from American Internet giants through the medium of the U.S. National Security Agency. The paper says that it has seen documents showing how the British eavesdropping agency GCHQ has had access to America’s “Prism” system since at least June 2010.
Is Big Data turning government into ‘Big Brother?’ 6/06/2013
With every phone call they make and every Web excursion they take, people are leaving a digital trail of revealing data that can be tracked by profit-seeking companies and terrorist-hunting government officials.
Documents: U.S. mining data from 9 leading Internet firms; companies deny knowledge
The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets, according to a top-secret document obtained by The Washington Post.
The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.
Welcome to the Bush-Obama White House: They’re Spying on Us The “Bush-Obama era” will be long remembered for curbing the Constitution.
Welcome to the era of Bush-Obama, a 16-year span of U.S. history that will be remembered for an unprecedented erosion of civil liberties and a disregard for transparency. On the war against a tactic—terrorism—and its insidious fallout, the United States could have skipped the 2008 election. It made little difference. Despite his clear and popular promises to the contrary, President Obama has not shifted the balance between security and freedom to a more natural state—one not blinded by worst fears and tarred by power grabs. If anything, things have gotten worse.

Revealed: NSA collecting phone records of millions of Americans daily
The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.
National Security Agency reportedly collecting info on *all* calls placed by Verizon subscribers
“The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.  The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries … Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.”
Let’s not forget that if the NSA+Verizon ( thing isn’t scary enough, the FBI wants to backdoor everything we own for spying, ala CALEA 2.0.
Al Gore
In digital era, privacy must be a priority. Is it just me, or is secret blanket surveillance obscenely outrageous?
@algore former vice president slammed the overreach of the NSA’s surveillance powers on Twitter.
Initial thoughts on the NSA-Verizon surveillance order
The WaPo and Guardian report this evening that through its PRISM program, NSA also is directly tapped into the systems of many leading Internet services, such as Microsoft, Yahoo, Google, AOL, Skype, and (as of April 2013) Apple.
Turn over call information (“telephony metadata”) to the National Security Agency (NSA).
The Fix
SOCOM-approved Silent Circle Resists Calls For Wiretap Backdoors
Silent Circle’s products are built completely around security and privacy. They meet the NSA’s “Suite B” standards. Emails are encrypted using the PGP protocol designed 20 years ago by Phil Zimmermann, the longtime security expert and privacy rights advocate who serves as the company’s president. Voice and video communications are encrypted by ZRTP, another Zimmermann invention.
Janke says the company has three customer bases: individual subscribers, enterprise clients, and governments. In the federal government, he said, there’s even been a surprising market coming from the Bring Your Own Device phenomenon: agencies, he says, buy Silent Circle for their workers to manage their personal smart phones.
The firm says U.S. Special Operations Command approved it as a commercial secure communications provider earlier this year.

Google Glass technology to be banned, infuriating a consumer watchdog group who accused the tech giant of hypocrisy
Nonprofit organization Consumer Watchdog called Google executives hypocrites for the restrictions.
“Google has unleashed one of the most privacy invasive devices ever,” John M. Simpson, privacy project director at Consumer Watchdog, said in a press release.
“Google Glass aids and abets people who want to invade our privacy by videoing or photographing us surreptitiously, but when it comes to their own privacy Google executives jealously guard it.”

#Privacy Obama and Supremes approve #Warrentless Wiretapping

Sorry Dr. Strangelove You can’t prove that NOT that having your privacy respected by the American Government will harm you.

#Privacy Obama and Supremes approve #Warrentless Wiretapping

Might as well know that it is the exact same thing as living in China.
If you’re worried about the United States government tapping your phone or perusing your emails, don’t complain to the US Supreme Court about it. They don’t want to hear it.
Today, the court ruled that citizens cannot challenge a federal law that allows for warrantless surveillance of international phone calls and emails. The ruling was a blow for civil rights activists and lawyers, and a victory for the Obama administration.
The justices voted 5-4, largely along ideological lines, in favor of the law, which was implemented in 2008. They claimed that the citizens represented by the American Civil Liberties Union-including Amnesty International, lawyers, journalists and international human rights activists-could not sufficiently show that they were actually being harmed by the potential surveillance.

The Next FCC Chair: Decisive Protector of the Public Interest

The Next FCC Chair: Decisive Protector of the Public Interest

The Next FCC Chair: Decisive Protector of the Public Interest
By Gigi Sohn
January 15, 2013
Even though current FCC Chair Julius Genachowski has not announced that he is leaving, there is still much talk about who is being considered to be his successor. In its never-ending fascination with the horse race of politics, the trade press has been throwing out names of the supposed frontrunners every few weeks or so.
But this focus on names is premature. Before we talk about who will be the next FCC Chair, there needs to be a conversation on the qualities the ideal candidate should possess. Because the issues and controversies that will come before the Commission over the next four years will be no less contentious than in the previous four.
The next Chair will preside over matters such as the transition to all IP networks, finalizing the incentive auction and spectrum screen proceedings, figuring out how to promote broadband competition, and of course, how to reinstate the agency’s authority (and indeed its relevance) should it lose the legal challenge to the open Internet rules. This is in addition to whatever transactions the Commission may be asked to decide by industry.
Is Comfortable as a Regulator
So what qualities should the next FCC Chair possess? First and foremost, the individual must be comfortable in the role of a regulator. This should not be taken to mean that the Chair should seek to regulate every industry out the yin-yang. But it does mean that where it is necessary to promote competition and/or protect consumers, the Chair must act, and decisively, with the understanding that in many regulatory battles there are winners and losers. And yes, that action should also include deregulation, particularly where regulations protect incumbents at the expense of competition.
A sound regulator also keeps fights out of the White House. As important as those of us in the telecom bubble think these issues are, for a President dealing with more fiscal cliffs and budget ceilings in front of him, agitation to pass laws governing gun control, immigration reform, and climate change, communications policy issues just don’t rate. And that’s why we have an independent FCC – to protect the public interest in those matters.
Understands the Role of Congress
The next FCC Chair needs also to understand the role of Congress, and that body’s limitations given how sharply divided it is. Let’s get real – an Obama FCC Chair is going to get pounded by the House telecom subcommittee and the full energy and commerce committee much of the time. The House may even vote to overrule decisions, like it did in 2011 with the resolution of disapproval on the open Internet rules. But the Senate, with more Democrats, a number of whom are very progressive, will not allow this FCC to be overruled. So there is no need for the next Chair to negotiate with herself in the fear that Congress will undo what it has done. This is not to say that the next Chair should thumb her nose at Congress – Congress is a critical partner for an agency to accomplish its goals. But the next Chair needs to recognize that it will be up to the FCC to be the ultimate decider of the difficult questions that will come before it.

Senate bill rewrite lets feds read your e-mail without warrants

Senate bill rewrite lets feds read your e-mail without warrants

By Declan McCullagh
November 20, 2012
Proposed law scheduled for a vote next week originally increased Americans’ e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.
A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law.
CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.
Revised bill highlights
✭ Grants warrantless access to Americans’ electronic correspondence to over 22 federal agencies. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
✭ Permits state and local law enforcement to warrantlessly access Americans’ correspondence stored on systems not offered “to the public,” including university networks.
✭ Authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim “emergency” situations exist.
✭ Says providers “shall notify” law enforcement in advance of any plans to tell their customers that they’ve been the target of a warrant, order, or subpoena.
✭ Delays notification of customers whose accounts have been accessed from 3 days to “10 business days.” This notification can be postponed by up to 360 days.
Leahy’s rewritten bill would allow more than 22 agencies — including the Securities and Exchange Commission and the Federal Communications Commission — to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge. (CNET obtained the revised draft from a source involved in the negotiations with Leahy.)
It’s an abrupt departure from Leahy’s earlier approach, which required police to obtain a search warrant backed by probable cause before they could read the contents of e-mail or other communications. The Vermont Democrat boasted last year that his bill “provides enhanced privacy protections for American consumers by… requiring that the government obtain a search warrant.”
Leahy had planned a vote on an earlier version of his bill, designed to update a pair of 1980s-vintage surveillance laws, in late September. But after law enforcement groups including the National District Attorneys’ Association and the National Sheriffs’ Association organizations objected to the legislation and asked him to “reconsider acting” on it, Leahy pushed back the vote and reworked the bill as a package of amendments to be offered next Thursday. The package (PDF) is a substitute for H.R. 2471, which the House of Representatives already has approved.

H.R.2471 – To amend section 2710 of title 18, United States Code, to clarify that a video tape service provider may obtain a consumer’s informed, written consent on an ongoing basis and that consent may be obtained through the Internet.

H.R. 2471 – To Amend Section 2710 of Title 18, United States Code, to Clarify That a Video Tape Service Provider May Obtain a Consumer’s Informed, Written Consent on an Ongoing Basis and That Consent May Be Obtained Through the Internet.

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One person participating in Capitol Hill meetings on this topic told CNET that Justice Department officials have expressed their displeasure about Leahy’s original bill. The department is on record as opposing any such requirement: James Baker, the associate deputy attorney general, has publicly warned that requiring a warrant to obtain stored e-mail could have an “adverse impact” on criminal investigations.
Christopher Calabrese, legislative counsel for the American Civil Liberties Union, said requiring warrantless access to Americans’ data “undercuts” the purpose of Leahy’s original proposal. “We believe a warrant is the appropriate standard for any contents,” he said.
An aide to the Senate Judiciary committee told CNET that because discussions with interested parties are ongoing, it would be premature to comment on the legislation.
Marc Rotenberg, head of the Electronic Privacy Information Center, said that in light of the revelations about how former CIA director David Petraeus’ e-mail was perused by the FBI, “even the Department of Justice should concede that there’s a need for more judicial oversight,” not less.

ICE Releases Documents Detailing Electronic Surveillance Problems and then Demands Them Back a Year Later

ICE Releases Documents Detailing Electronic Surveillance Problems . . . and then Demands Them Back a Year Later

November 5, 2012 | By Jennifer Lynch
This is a first for us in all of EFF’s history of Freedom of Information Act (FOIA) litigation—Immigrations and Customs Enforcement (ICE) has demanded we return records it gave us more than a year ago. The release of these documents doesn’t endanger national security or create a risk to an ongoing law enforcement investigation. Instead, it seems that ICE simply wants to stymie further FOIA requests from EFF as we try to get answers about the government’s electronic surveillance procedures.
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It took ICE almost a year to get back to us on the narrowed request, and when it did, its response was frustrating. Not only did the agency decide that it would still be too burdensome to conduct any kind of a search for similar records, but ICE also told us it never should have turned over the original records in the first place—and it wanted them back. The problem for ICE is, these records have already been in the public’s hands for over six months—we filed them as an exhibit (pdf) in our FOIA litigation (pdf) in March 2012, and they’re readily available on the PACER docket for the case (or from the Internet Archive).
This is yet another example of the federal government failing to comply with the letter and spirit of the Freedom of Information Act—reverting to secrecy when it should be promoting transparency. It’s hard to imagine what harm could come from the release of these documents. ICE was careful to block out any information in the records that would identify the target of the investigation, and the information that isn’t blocked out seems to reinforce the government’s position on CALEA.
And it’s another disappointment from an administration that lauded its commitment to transparency on the first day the President took office four years ago. We can only hope that if the President wins this tight election, he’ll use the next four years to fulfill this commitment.