The American Legislative Exchange Council will look at draft model legislation restricting warrantless cellphone tracking, following similar laws enacted in Maine and Montana (CD July 15 p7), at ALEC’s annual meeting in Chicago Aug. 7-9. The 40-year-old organization, which brings together state legislators and industry, will also consider revising past model legislation, propose a draft resolution objecting to certain potential Communications Decency Act (CDA) amendments and a statement of principles for cybersecurity. The group has attracted fierce criticism from such groups as Free Press (CD April 9 p11), but it remains committed to transparent policy discussions, its task force leaders told us.
Arlington v. FCC did not hold that an agency is always entitled to deference in its interpretation of the statutes it relies on, Verizon told the U.S. Court of Appeals for the D.C. Circuit in a filing Monday. Verizon was responding to an FCC argument that Arlington bolstered its arguments in the court challenge to the net neutrality rules (CD May 24 p1). The Arlington decision, Verizon said, simply held that under the established Chevron framework, deference only applies when it resolves “'a statutory ambiguity’ that constitutes an implicit delegation to gap-fill.” And according to D.C. Circuit precedent, whether ambiguity exists is not a question that agencies get deference on, Verizon said. Congress declined to grant specific authority over the Internet, instead creating a distinct regulatory scheme for information services and expressly directing that the Internet remain “unfettered” by regulation, Verizon said, quoting Section 230 of the Telecom Act. “There is no gap to fill."
Monday’s Supreme Court decision that the FCC is entitled to deference in interpreting ambiguous statutes about its jurisdiction (CD May 21 p1) bolsters the commission’s position in the net neutrality court battle, the FCC said in a letter filed with the U.S. Court of Appeals for the D.C. Circuit Thursday. Attorneys and law professors we spoke to agree that the decision in the case, Arlington v. FCC, could help the commission -- but only if the court thinks the statutes in question are ambiguous in the first place. A Verizon spokesman said the company will file a response with the D.C. Circuit.
A New Jersey woman claiming that Apple failed to stop third-party applications from uploading users’ personal and device information without permission will get a second bite at Apple. U.S. District Judge Yvonne Gonzalez Rogers in Oakland, Calif., granted Apple’s motion to dismiss the lawsuit seeking class-action status while also granting Maria Pirozzi leave to amend her claims. The suit faults Apple for allegedly not enforcing its terms of service for app developers, letting developers upload “private address book information (including names and contact information of users’ contacts), location data, private photographs and videos without the users’ knowledge or consent when a user agrees to allow an app to access the user’s then current locations.” The Path app, for example, was caught uploading address book and calendar data without user consent in February, the suit said. Pirozzi claimed she was “induced” to buy an unidentified Apple device in September 2011, and download paid apps to it, based on Apple’s terms and promises regarding app consent rules, Rogers said. But it’s not clear from Pirozzi’s complaint whether any apps “actually uploaded” her information, the judge said (http://xrl.us/bn8b2j). “Overpaying for goods or purchasing goods a person otherwise would not have purchased based upon alleged misrepresentations by the manufacturer would satisfy the injury-in-fact and causation requirements” for standing to sue, but because Pirozzi didn’t “allege specifically which statements she found material to her decision to purchase” the device or any apps, she hasn’t suffered injury-in-fact through Apple’s alleged conduct, Rogers said. Pirozzi similarly didn’t allege that an app “actually misappropriated” her information, only that it was at “greater risk” of misappropriation through Apple’s negligence, the judge said. The plaintiff will have to provide specifics, including what harm she suffered from unauthorized tracking and whether Apple even received her information and thus profited from it, to show her standing, Rogers said, giving Pirozzi leave to amend her claims. Rogers also pooh-poohed Apple’s reliance on Section 230 of the Communications Decency Act (CDA) as a shield for Pirozzi’s claims. Apple said it can’t be held responsible for exercising editorial discretion over which apps it approves and distributes through the App Store. But Pirozzi didn’t “solely” fault Apple for choosing which apps to distribute -- rather she wants to hold it liable for its own representations as an “information content provider,” Rogers said: The record is too “scant” to decide whether Apple is shielded by the CDA. The judge gave Pirozzi until Jan. 22 to file an amended complaint.
The FCC offers a strong economic defense for its net neutrality rules in a filing at the U.S. Court of Appeals for the D.C. Circuit, made late Monday, countering Verizon and MetroPCS’s legal challenges to the December 2010 rules (CD Sept 11 p1). The FCC’s economic argument is that rather than discourage investment, the rules have had a stimulative effect. The commission also argues that Section 706 of the Communications Act, which directs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” gives the commission authority to pass net neutrality rules. That, along with an order that explicitly tied its authority to specific statutes, make this more than simply a “rerun of Comcast,” the pleading said.
Those who post content on social media and similar platforms should be liable for proper disclosures and the FTC shouldn’t assign liability to the host of the user-generated content, NetChoice said. In comments for the agency’s May 30 workshop to explore online and mobile media advertising disclosures, the association said the FTC should acknowledge that hosts of content posted by third parties aren’t liable for “improper disclosure by these third-parties.” The FTC’s limiting the liability of the host of content from the actions of a third party “makes sense under Section 230 of the Communications Decency Act that protects such intermediaries,” it said. For mobile ads, the FTC should allow clickthrough for notice and choice, as in the Digital Advertising Alliance’s self-regulatory program, NetChoice said. The agency has noted on several occasions that disclosures via mobile apps are limited by screen size, the association said. “To help alleviate this problem, we recommend the FTC find that ads on mobile devices can off-load these disclosures via a click-through to another screen or application.” For location-based mobile ads, the FTC should incorporate clickthrough and consent mechanisms, it said. The agency should avoid addressing privacy disclosures in the proposed update to the Dot Com Disclosures because they are “outside the scope of the original guidelines and may impede the greater goal of the update,” NetChoice said.
The Obama administration believes it’s “critical to find a smart innovation-leaning balance” to cybersecurity legislation, said Danny Weitzner, White House deputy chief technology officer for Internet policy. And part of the balance is for the government to have authority to ensure that companies that have “our critical infrastructure are engaging in adequate security practices,” he said at the Computer & Communications Industry Association’s Washington caucus.
ISP’s and their clients should consider the existing leading concepts in terms of privacy and intermediate liability in light of the phenomena of cloud computing, said U.S. State Department Coordinator of International Communications and Information Policy Philip Verveer after a Media Institute speech. Verveer told us cloud computing presents many advantages with respect to more extensive and less expensive services. During his speech Verveer said occasions -- such as the thirtieth anniversary of OECD’s Guidelines and the fifteenth anniversary of EU’s Data Protection Directive -- are sufficient to make a point: the privacy-related implications of cloud computing have been recognized and beginning to be addressed. However, it’s desirable to find an appropriate balance between the values associated with privacy and the opportunities for increased economic efficiency in the cloud concept, Verveer told us: “The closer we can come to an understanding with respect to privacy, jurisdiction, and intermediary liability, the better off we will be, particularly if we take care not to diminish the efficient operation of cloud computing beyond whatever may be necessary to protect other values deemed to be of superseding importance.” Regarding Internet intermediaries and their social and economic role, Verveer said that to the extent that the Internet’s various intermediaries, transmission companies, Internet service providers and application vendors are subject to liability for content provided by third parties, there inevitably will be less diverse content available. “Some of that will be a function of the risks of consequential damages,” Verveer said. “This is a matter where the United States has something very useful to offer the world.” Section 230 of the Communications Act, was passed in 1996 as part of the Communications Decency Act, itself a part of the Telecommunications Act amendments,” he said. The provision, which was introduced as a floor amendment by Rep. Christopher Cox, R-Calif., and former Rep. Ron Wyden, D-Ore., has been integral to the development of the Internet as we know it today, Verveer said, and it provides “a federal immunity” to any cause of action that would make service providers liable for information originating with a third-party user of the service.
The three appeals judges who heard FCC v. Comcast expressed skepticism that the commission had ancillary authority to find the company had violated net neutrality principles in blocking peer-to-peer file transfers (CD Aug 4/08 p1). Judges at the U.S. Court of Appeals for the District of Columbia Circuit pressed FCC General Counsel Austin Schlick Friday to cite a statute that gave the regulator direct authority over an ISP’s network management. Comcast’s lawyer was challenged to show how the company was harmed by the commission’s order against it, since no fine was imposed.
Comcast and Free Press continue feuding at the FCC (CD July 21 p11) over whether the agency has authority to find that the cable operator violated commission net neutrality principles, as Free Press claimed in a filing on Comcast’s network management. In a Monday letter to the FCC Comcast said it meant its communique to “re-emphasize the fundamental legal flaw in Free Press’ demand” that the FCC act: “There is simply no law, and no lawful basis to promulgate any new legal standard to be enforced.” Section 230(b) of the Communications Act and 706(a) of the Telecom Act, both of which Free Press “now focuses” on, “confer no rights or enforceable duties on subscribers or broadband providers, and do not expand the agency’s statutory authority in any way,” said Comcast. “The absence of any potentially applicable law prevents the Commission from taking any action on the Complaint.” If it did act, the FCC could violate the Administrative Procedure Act and the due process clause of the Constitution, Comcast suggested. Friday, officials from Free Press and other network neutrality proponents met with Commissioner Jonathan Adelstein to discuss “the strongest jurisdictional bases for the Commission to issue a show-cause Order,” said an ex parte. “We also discussed several of the meritless arguments that Comcast and its allies have raised in its attempt to delay the Commission’s action.” Another letter from Comcast to the FCC said the cable operator’s network management, similar to that of other ISPs in the U.S. and other countries, isn’t discriminatory. Comcast broadband customers “can and do access any content, run any application, and use any service that they wish,” said the cable company.