Following Facebook, Verizon Quietly Backs Off Opposition To Modest California Privacy Rules

from the sunlight-is-the-best-disinfectant dept

If you missed it, large ISPs like Verizon, with the help of the Trump administration and GOP, worked to quickly kill FCC privacy protections before they could take effect last year. Those rules were arguably modest by any measure, simply requiring that ISPs transparently disclose what data is being collected and who it's being sold to, while providing users working opt out tools (or opt in tools if dealing with sensitive consumer financial data). Those rules, you'll recall, were only proposed after ISPs repeatedly made it clear they were utterly unwilling and unable to self-regulate on the privacy front.

ISPs like Verizon, AT&T and Comcast were given ample leeway on privacy for years. Our reward was covert efforts to track users around the internet without telling them, and repeated efforts to charge users more if they wanted to protect their own privacy. Large ISPs had every opportunity to avoid regulation and self-regulate. They showed us repeatedly this was beyond their capabilities. Limited broadband competition routinely protected them from any repercussions, and revolving-door regulators have now completed the circle of dysfunction.

Much like we're seeing on net neutrality, this hostility to real consumer privacy protections on the federal level resulted in multiple states devising their own consumer protections. Like in California, where lawmakers attempted to push a privacy law that largely mirrored the FCC's effort. And while Google, Facebook, Comcast, AT&T and Verizon will all breathlessly tell you they support meaningful privacy reform, the EFF documented in great detail how they worked together last year to quietly scuttle the initiative. Largely by lying about what it actually did:

"One of the most offensive aspects of the misinformation campaign was the claim that pretending to restore our privacy rights, which have been on the books for communications providers for years, would help extremism...In materials like this advertisement, the opposition lobby claimed that A.B. 375 would result in a deluge of pop-ups that consumers would have to click through, and that in turn this inundation would create a sort of privacy fatigue. Consumers would stop caring, and cybersecurity would suffer.

Comcast, Facebook, Verizon and Google all donated $200,000 each to help hamstring the effort. And while successful, they're now facing another push for a new, very similar initiative that should show up on California voter ballots this November. Again, despite industry face-fanning and pearl clutching there's not much that's controversial about it (you can read more about the act here), with the primary goal being transparency and ensuring consumers have the ability to opt out.

But when the Cambridge Analytica story broke, and actually caring about privacy became en vogue for a brief moment, the public spotlight forced Facebook to quietly slink away away from its opposition to the effort in California. Now Verizon, who is trying to make inroads in marketing via its Oath subsidiary (the combination of AOL and Yahoo), has also been forced to quietly back off opposition in the wake of media attention. A Verizon spokesperson makes it clear that, much like the net neutrality fight, the company's goal is to lobby for weak federal protections that pre-empt tougher state ones:

"Verizon has decided not to continue with the coalition so that we can focus our efforts on creating a national framework for privacy and related issues -- and not a state-by-state approach," a spokesman says."

Again, all of these giant companies will breathlessly tell you they support meaningful privacy protections for consumers. But the reality is that any effort to empower and inform consumers erodes revenues, since it will increase the chance that users opt out of data collection and monetization efforts. That's why no matter how frequently you'll see companies like Verizon and Facebook insist they're interested in "solutions" to the wild west that is currently consumer privacy, it remains routinely difficult to take them seriously in any meaningful capacity.

Filed Under: california, fcc, ftc, isps, privacy, transparency
Companies: facebook, verizon

California Bill Could Introduce A Constitutionally Questionable 'Right To Be Forgotten' In The US

from the well-meaning-but-poorly-thought-out dept

As we've pointed out concerning the General Data Protection Regulation (GDPR) in the EU, the thinking behind the regulation is certainly well-meaning and important. Giving end users more control over their own data and increasing privacy controls is, generally speaking, a good idea. However, the problem is in the drafting of the GDPR, which is done in a manner that will lead to widespread censorship. A key part of the problem is that when you think solely in terms of "privacy" or "data protection" you sometimes forget about speech rights. I have no issue with giving more control over actually private information to the individuals whose information is at stake. But the GDPR and other such efforts take a much more expansive view of what information can be controlled, including public information about a person. That's why we've been troubled by the GDPR codifying a "right to be forgotten." We've already seen how the RTBF is leading to censorship, and doing more of that is not a good idea.

But now the idea is spreading. Right here in California, Assemblymember Mark Levine has introduced a local version of the GDPR, called the California Data Protection Authority, which includes two key components: a form of a right to be forgotten and a plan for regulations "to prohibit edge provider Internet Web sites from conducting potentially harmful experiments on nonconsenting users." If you're just looking from the outside, both of these might sound good as a first pass. Giving end users more control over their data? Sounds good. Preventing evil websites from conducting "potentially harmful experiments"? Uh, yeah, sounds good.

But, the reality is that both of these ideas, as written, seem incredibly broad and could create all sorts of new problems. First, on the right to be forgotten aspect, the language is painfully vague:

It is the intent of the Legislature to ensure that personal information can be removed from the database of an edge provider, defined as any individual or entity in California that provides any content, application, or service over the Internet, and any individual or entity in California that provides a device used for accessing any content, application, or service over the Internet, when a user chooses not to continue to be a customer of that edge provider.

Any content? Any application? At least the bill does limit "personal information" to a limited category of topics, so we're not just talking about "embarrassing" information, a la the EU's interpretation of the right to be forgotten. But "personal information" is still somewhat vague. It does include "medical information" which is further defined as "any individually identifiable information, in electronic or physical form, regarding the individual’s medical history or medical treatment or diagnosis by a health care professional." So, would that mean that if we wrote about SF Giants pitcher Madison Bumgarner, and the fact that his broken pinky required pins and he won't be able to pitch for a few weeks... we'd be required to take that information down if he requested it? That seems like a pretty serious First Amendment problem.

This is the problem with writing broad legislation that doesn't take into account the reality that sometimes this kind of information is made public for perfectly good reasons.

Similarly, the prohibition on "potentially harmful experiments." How does one define "potentially harmful"? Websites are in a never-ending state of experimentation. That's how they work. Everyone gets a different view on sites like Amazon and Netflix and Facebook and Google, because they're all trying to customize how they look for you. Is that "potentially harmful"? Maybe? It's also potentially very, very helpful. Before just throwing out the ability of websites to try to build better products, it seems like we should have a lot more of an exploration of the issue than just saying nothing "potentially harmful" is allowed. Because almost anything can be "potentially harmful."

Again, I'm quite sure that Levine's intentions here are perfectly good. There are very good reasons (obviously!) why so many people are concerned about the data that companies like Facebook, Google, Amazon and others are collecting on people. And these are big companies with a lot of power. But these rules seem vague and "potentially harmful" themselves. Beyond blocking perfectly natural "experimenting" in terms of how websites are run, these rules won't just impact those giants, but every website, including small ones like, say, this blog. Can we experiment in how we display our information? Or is that "potentially harmful" in that it might upset some of our regulars? That may sound silly, but under this law, it's not at all clear what is meant by "potentially harmful."

There are important discussions to be had about protecting individuals' privacy, and about experiments done by large companies with lots of data. But the approach in this bill seems to just rush into the fray without bothering to consider the actual consequences of these kinds of broad regulations.

Filed Under: california, gdpr, privacy, right to be forgotten

Cali Lawmakers Pushing For 72-Hour Bot Removal Requirements For Social Media Companies

from the bad-idea,-worse-implementation dept

Following in the footsteps of misguided European lawmakers, California legislators have introduced a time-sensitive "remove speech or else" law targeting social media sites.

They’ve introduced a bill that would give online platforms such as Facebook and Twitter three days to investigate whether a given account is a bot, to disclose that it’s a bot if it is in fact auto-generated, or to remove the bot outright.

The bill would make it illegal for anyone to use an automated account to mislead the citizens of California or to interact with them without disclosing that they’re dealing with a bot. Once somebody reports an illegally undisclosed bot, the clock would start ticking for the social media platform on which it’s found. The platforms would also be required to submit a bimonthly report to the state’s Attorney General detailing bot activity and what corrective actions were taken.

This is ridiculous for a number of reasons. First, it assumes the purpose of most bots is to mislead, hence the "need" for upfront disclosure. The ridiculousness of this part of the law's many faulty premises is only further underscored by a bot created by the legislator behind the bill, Bob Hertzberg. His bot's bio says [emphasis added]:

I am a bot. Automated accounts like mine are made to misinform & exploit users. But unlike most bots, I’m transparent about being a bot! #SB1001 #BotHertzberg

Hertzberg's bot must have been made to "misinform and exploit users," at least according to its own Twitter bio. And yet, the account's tweets appear to disseminate actual correct info, like subcommittee webcasts and community-oriented info. It's good the bot is transparent. But it's terrible because the transparency immediately follows a line claiming automated accounts are made apparently solely to misinform people.

Plenty of automated accounts never misinform or exploit users. Techdirt's account automatically tweets each newly-published post. So do countless other bots tied into content-management systems. But the bill -- and bill creator's own words -- paint bots as evil, even while deploying a bot in an abortive attempt to make a point.

Going on from there, the bill demands sites create a portal for bot reporting and starts the removal clock when a report is made. User reporting may function better than algorithms when detecting bots spreading misinformation (putting bots in charge of bot removal), but this still puts social media companies in the uncomfortable position of being arbiters of truth. And if they make the "wrong" decision and leave a bot up, the government is free to punish them for noncompliance.

The bill also provides no avenue for those targeted to challenge a bot report or removal. (And no option for sites to challenge the government's determination that they've failed to remove bots.) This is a key omission which will lead to unchecked abuse.

Finally, there's the motivation for the bill. Some of it stems from a desire to punish "fake news," a term no government has ever clearly defined. Some of it comes from evidence of Russian interference in the last presidential election. But much of the bill's impetus is tied to vague notions of "rightness." Hertzberg himself exhumes a long-dead catchphrase to justify his bill's existence.

"We need to know if we are having debates with real people or if we’re being manipulated," said Democratic State Senator Bob Hertzberg, who introduced the bill. "Right now we have no law and it’s just the Wild West."

So, summary executions of bots by social media posse members? Is that the "Wild West" you mean, one historically notorious for its lack of due process and violent overreactions?

Here's the other excuse for bad lawmaking, via an advocate for terrible legislation.

"California feels a bit guilty about how our hometown companies have had a negative impact on society as a whole,” said Shum Preston, the national director of advocacy and communications at Common Sense Media, a major supporter of Hertzberg’s bill. “We are looking to regulate in the absence of the federal government. We don’t think anything is coming from Washington."

So, secondhand guilt justifies the direct regulation of third-party service providers? That's almost worse than no reason at all.

And this isn't the only bad bot bill being considered. Assemblymember Marc Levine wants all bots to tied to verified human beings. The same goes for any online advertising purchases. Levine feels his bill will help fight the bot problem, but his belief is predicated on a profound misunderstanding of human behavior.

By identifying bots, users will be better informed and able to identify whether or not the power of a group’s influence is legitimate. This will mitigate the promulgation of misinformation and influence of unauthentic social media campaigns.

Yes, telling people the stuff they think is legitimate isn't legitimate always results in people ditching "illegitimate" news sources. Especially when that info is coming from a government they don't like presiding over a state many wish would just fall into the ocean. Trying to fight a bot problem largely associated with alt-right groups with legislation from coastal elites is sure to win hearts and minds.

A bot-reporting portal with no recourse provisions -- and a possibile "real name" requirement added into the mix -- will become little more than a handy tool for harassment and hecklers. The cost of these efforts will be borne entirely by social media companies, which also will be held responsible for the mere existence of bots the Californian government feels might be misleading its residents. It's bad lawmaking all around, propelled by misplaced guilt and overstated fears about the democratic process.

Filed Under: automation, bob hertzberg, bots, california, censorship, fake news, marc levine, regulations, social media, speech

Ex-Obama FTC Boss Now Lobbying For Comcast, Trying To Prevent States From Protecting Consumers

from the revolving-door-regulation dept

While the Trump FCC has certainly taken protectionism, corruption and cronyism to an entirely new level, it's important not to forget that Trump and Ajit Pai are just products of the country's long established bipartisan dysfunction when it comes to revolving door regulators, and it's going to take more than just ejecting Trump and Pai to repair the underlying rot that has allowed them to blossom.

Case in point: former Obama FTC boss Jon Leibowitz, who has long professed himself to be a "privacy advocate," has spent much of the last few years lobbying for Comcast while at Davis Polk. That has included making a myriad of false claims about ongoing, EFF-backed efforts to protect broadband consumer privacy in California.

In an endless wave of op-eds (where his financial conflicts of interest are almost never disclosed to the reader), Leibowitz has been busy insisting that rampant ISP privacy abuses are a "nonexistent problem," and that strong state and FCC oversight of ISPs are unnecessary because the FTC will somehow rush in to save the day in the wake of efforts to neuter the FCC, kill net neutrality, and embolden massive anti-competitive telecom duopolies.

We've already outlined in detail why that's a horrible take here. More specifically, the FTC lacks rule-making authority, and can only act against ISPs if behavior is clearly proven to be "unfair and deceptive," something ISPs can usually wiggle out of on the net neutrality front (we weren't throttling a competitor, we were protecting the safety and integrity of the network!). The FTC's also understaffed, under-funded, and over-extended. And oh, did we mention that AT&T has been busy in court trying to obliterate whatever authority over ISPs the FTC does have?

Leibowitz (like most ISP lobbyists pretending to be objective analysts) "forgets" to mention that.

With more than half the states in the nation now considering some flavor of net neutrality and privacy rules in the wake of federal apathy, Leibowitz is also busy trying to help Comcast scuttle privacy and net neutrality in other states like Massachusetts. Massachusetts, with the backing of dozens of lawmakers, is contemplating new net neutrality rules that would effectively mirror the ones Comcast lobbied the FCC To dismantle last December.

Leibowitz's oppositional testimony this week in front of state leaders included claims that net neutrality somehow hampered broadband industry investment, an ISP-lobbying claim routinely debunked by just looking at ISP earnings reports, SEC filings, and countless CEO statements:

"According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized "the sky did not fall" when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers. But he said that reclassification did have costs to consumers, including diminished deployment of broadband, according to the FCC, as well as removing broadband consumer protection from the FTC's jurisdiction."

Again that diminished deployment never happened. ISP CEOs admit as much. Meanwhile, the "sky did not fall" because the FCC's 2015 net neutrality rules haven't even technically been repealed yet (that's expected to occur sometime in April). Even then, ISPs aren't expected to truly even start testing their newfound anti-competitive freedoms until they're sure the FCC (with ISP help) wins their looming legal battle. Even then ISPs may not truly be comfortable behaving badly until they're sure tougher state and federal rules are pre-empted (that's why they're pushing for a fake, loophole-filled net neutrality law.)

Knowing that states might fill the consumer protection vacuum, both Verizon and Comcast lobbied the Trump FCC to include language in their net neutrality repeal trying to ban states from protecting consumers (from net neutrality or privacy violations). And while Leibowitz tried to warn Massachusetts leaders that they might run afoul of the Trump FCC if they try to protect consumers (oh no!), that ignores the fact that legal experts say the FCC abdicated its authority on this front when they decided to back away from classifying ISPs as common carriers.

Again, dozens of individual state privacy and net neutrality protections aren't ideal, but that's something Leibowitz's client Comcast should have thought about before lobbying to demolish popular and modest federal level privacy and net neutrality protections. The fact that ISP lobbyists still cling to false claims that net neutrality "demolished sector investment" speaks volumes as to the integrity of their arguments. Meanwhile, at some point media outlets in the States need to wake the hell up to the harm caused by publishing lobbyist op-eds without disclosing authors' financial ties to industries they represent.

Filed Under: broadband, california, competition, ftc, jon leibowitz, lobbying, massachusetts, net neutrality, privacy
Companies: comcast

School Sells Out Students' First Amendment Rights, Apologizes And Deletes Article Containing Controversial Images

from the when-you-value-the-relationship-with-the-PD-more-than-the-relationship-with-stud dept

This line of thinking can never be reinforced too often by public officials: the First Amendment is great but only if your speech doesn't offend someone powerful. (via Adam Steinbaugh)

A California high school took matters into its own hands -- not even waiting to see if powerful people were offended -- and memory-holed both its physical and online student publication after a student wrote article about the relationship between art and activism made some parents take to Facebook to complain about "liberal propaganda."

The article contained images found via Google searches, including one depicting Trump with a Nazi symbol on his head and another with a cop in Klan hood pointing a gun at a black child meant to represent Travon Martin. The following image comes from the Facebook post that started the backlash against the school.

The cascade of criticism on Facebook led to the mayor of the California town (Don Kendrick) to offer this explanation of how someone at the Bonita High School made the mistake of allowing students to engage in protected speech. [Line breaks added for readability, since apparently even mayoral announcements on Facebook must be delivered as a wall of text.]

First, I would like to thank everyone for your interest in this topic. Yes, I was furious when I first learned about this and I am still concerned. But I have had discussions with a number of people and would like to share those with you.

I would like to address two issues. One, the incident, and the other, the clubs at Bonita High School. First the incident. As most of you know, the city of La Verne Police Department has a very good, if not excellent, relationship with our school district, and especially Bonita High School, with a police officer assigned to the La Verne schools as a School Resource officer. This is a relationship that has been ongoing for over 25 years.

This unfortunate incident with the school newspaper has turned out to be a very bad judgment call by a new teacher, not an example of what normally goes on at the school. One Bonita teacher went to the police station on his own, talked to the Chief of Police, and apologized on behalf of what he said was 99.9% of the teachers at the school. Further, the Superintendent of Bonita Unified School District and the Principal of Bonita High School also went to the police station, met with the Chief, and apologized. Mistakes are made. The Police Department is fully committed to working with everyone in the school district, including the students, to make our community the best it can be. The Chief said it was an unfortunate mistake, but should not be used to judge the school district or the relationship that exists with the police department, and one that will continue to exist.

The second topic is the Bonita High School clubs. Did you know that there were over 60 clubs on the campus? Why so many? Because there is a wide variety of interests among the students. There is a club for everything you can think of, and even a club if there is no other club to belong to. Engaged students, doing things they like, leave little time to become engaged in destructive activities like we have recently witnessed in Florida. Every student at Bonita High School is expected to be engaged and involved in something. We are a better community when they are.

Thank you for your time.

Within this announcement are several concerning statements and assertions. First, the mayor is ready to throw a single teacher under the bus for allowing students to freely express controversial ideas. Second, the school is apparently so worried local officers might be offended that it took it upon itself to make sure local cops knew this was the work of one bad apple. Third, the mayor insinuates that approved school activities, if there's enough of them, will either prevent school shootings (which I doubt is what he meant -- no one refers to shootings as "activities") or prevent students from engaging in activism (like the several protests/walkouts that followed the Parkland shooting). If it's the latter, the mayor is encouraging the school to further divert students away from any outlet in which controversial ideas might be expressed. This is bad for students and bad for the First Amendment.

The thread of comments on the Facebook post that started this all is the expected hellhole of ignorance and calls for heads. The two Fox articles covering this both claim officers were offended by the publication but feature no direct quotes from anyone at the PD saying as much. As quickly as staff rushed off to prevent public servants from having their feelings hurt by a publication they likely never would have seen, it's hard to believe any officers were offended until after they'd been apprised of the situation. It's not like the PD applied pressure on the school. The school just simply abdicated its responsibility to its students in favor of preemptive feather de-rufflings.

To top it all off, the school's statement on the issue is a non sequitur.

"There is a California Education Code that affirms the First Amendment rights of student newspapers," Carl Coles, the interim superintendent of the Bonita School District, said in the statement. "The student journalist's article does not represent the views of Bonita High School or the District."

Great. But what the hell does that mean in this context? A school vanished away speech it find uncomfortable despite this "affirmation" of students' rights. If the school had left the article live on the website and the physical publication untouched and simply informed parents, cops, and the mayor that it did not represent the views of the school, everything would have turned out much better than it has. Instead, the school has announced its subservience to local law enforcement and its willingness to silence students rather than overrule heckler's vetoes.

Filed Under: bonita high school, california, don kendrick, first amendment, free speech

Facebook Working With Comcast To Scuttle California Broadband Privacy Protections

from the watch-what-we-do,-not-what-we-say dept

Last year you might recall that the GOP and Trump administration rushed to not only kill net neutrality at ISP lobbyist behest, but also some pretty basic but important consumer privacy rules. The protections, which would have taken effect in March of 2017, simply required that ISPs be transparent about what personal data is collected and sold, while mandating that ISPs provide consumers with the ability to opt of said collection. But because informed and empowered consumers damper ad revenues, ISPs moved quickly to have the rules scuttled with the help of cash-compromised lawmakers.

When California lawmakers stepped in to then try and pass their own copy of those rules, ISPs worked in concert with Google and Facebook to scuttle those rules as well. As the EFF documented at the time, Google, Facebook, AT&T, Verizon and Comcast all collectively and repeatedly lied to state lawmakers, claiming the planned rules would harm children, increase internet popups, and somehow "embolden extremism" on the internet. The misleading lobbying effort was successful, and the proposal was quietly scuttled without too much fanfare in the tech press.

Obviously this behavior has some broader implications in the wake of the Cambridge Analytica scandal. Especially given Facebook's insistence this week that it's open to being regulated on privacy, and is "outraged" by "deception" as it tries (poorly) to mount a sensible PR response to the entire kerfuffle:

But last year's joint ISP and Silicon Valley assault on consumer privacy protections wasn't a one off.

California privacy advocates are again pushing a new privacy proposal, this time dubbed the California Consumer Privacy Act of 2018. Much like last year's effort the bill would require that companies be fully transparent about what data is being collected and sold (and to who), as well as mandating mandatory opt-out tools. And this proposal goes further than the FCC's discarded rules, in that it would ban ISPs from trying to charge consumers more for privacy, something that has already been implemented by AT&T (temporarily suspended as it chases merger approval) and considered by Comcast.

But privacy groups note that Facebook and Google are again working with major ISPs to kill the proposal, collectively funneling $1 million into a PAC custom built for that purpose:

Privacy advocates at Californians for Consumer Privacy also wrote a letter to Facebook this week expressing their lack of amusement at the effort in the wake of the Cambridge scandal:

"Something’s not adding up here,” Mactaggart writes. “It is time to be honest with Facebook users and shareholders about what information was collected, sold or breached in the Cambridge Analytica debacle; and to come clean about the true basis for your opposition to the California Consumer Privacy Act of 2018."

As we recently noted, however bad Facebook's mistakes have been on the privacy front, they're just a faint shadow of the anti-consumer behavior we've seen from the telecom sector on this front, suggesting that a disregard for privacy is a cross-industry norm, not an exemption. That said, while Google and Facebook love to portray themselves as the same kind of consumer allies they were a decade ago, their refusal to seriously protect net neutrality -- and their eagerness to work with loathed companies like Comcast to undermine consumer privacy -- consistently paints a decidedly different picture.

Filed Under: broadband, california, lobbying, privacy, transparency
Companies: at&t, cambridge analytica, comcast, facebook, google

California Introduces New, Tougher Net Neutrality Rules; Uses Ajit Pai's Abdication Of Authority Against The FCC

from the reap-what-you-sow dept

Earlier this year, California introduced new net neutrality legislation as part of similar efforts across more than half the states in the nation. At the time, we noted how the EFF wasn't a particular fan of California's proposal, arguing that the wording of the effort left the law open to challenges by the FCC, which has (at AT&T and Comcast behest) promised to block states that actually try to protect consumers in the wake of its unpopular net neutrality repeal. But a new California proposal has no such Achilles heel, goes notably further than the first effort, and now has the EFF's full support.

California state senator Scott Wiener this week introduced SB 822, a much tougher, more comprehensive proposal that would prohibit not only the blocking and throttling of websites and services by ISPs, but would ban "paid prioritization" deals that would allow deep-pocketed content companies (like, say, ESPN) from buying an unfair advantage against smaller competitors and startups. The bill also takes aim at the kind of interconnection shenanigans and double dipping that resulted in Netflix performance issues back in 2014, while leaving the door open to reasonable network management practices.

In some ways the proposal goes a bit further than the FCC's 2015 net neutrality rules, in that it more concretely addresses the problem of "zero rating" ( when ISPs let a partner's content or their own bypass usage caps while still penalizing others). Zero rating in general is allowed, but only if entire classes of content are whitelisted. Individual efforts to whitelist only specific partners (as we saw with T-Moble's controversial "Binge On" efforts), would be forbidden, as would pay to play approaches where content companies are allowed to buy a zero rating advantage over a competitor:

"Wiener’s bill digs into more arcane matters that the Obama-era FCC’s now-abolished 2015 policy included. It tackles the “zero-rating” programs, such as T-Mobile’s Binge On, which exempt some sites, apps, and services from monthly data caps. Obama’s FCC allowed Binge On, since T-Mobile continued welcoming new video services. California’s law seems to require blanket access for all similar apps without a wait for the ISP to add them. “It can be allowed if it is about a certain class [of content], like you could have when you’re doing games,” says Wiener about zero-rating. “If they say we’re going to apply it to a category, not any one product, and all comers, then it’s not automatically illegal."

The bill is also more resilient to any efforts by the Trump and Ajit Pai FCC to hinder state efforts to protect consumers. Whereas many states are just regurgitating the FCC's 2015 rules in their own proposals, that alone isn't enough to protect them from potential FCC preemption, argues Barbara van Schewick, Professor of Law at Stanford Law School, and the Director of Stanford Law School’s Center for Internet and Society. She also argues that the FCC shot its state preemption efforts in the foot by rolling back the classification of ISPs as common carriers under Title II of the Telecommunications Act:

"The bill is on firm legal ground.

While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

More simply, the FCC shot itself in the foot, and when it neutered its own authority over ISPs at Comcast, AT&T and Verizon's behest, it managed to also neuter its authority to pre-empt states from filling the void. Of course this could all be moot if the FCC loses its battle in court, but it's amusing all the same, and it's another example of how Ajit Pai and friends didn't really think this whole thing through.

While ISPs have whined incessantly about the headaches of having to adhere to multiple discordant net neutrality rules, that's not quite as big of a problem as they claim (especially since they already adhere to numerous rules governing phone, broadband and TV, which can vary town to town). Most of these new state laws follow the same effective template, and Wiener's office says it will work with numerous states to help them mirror California's efforts. All told, if consistency and stability were really the goal of AT&T, Verizon and Comcast lobbyists, they should have left the popular federal protections alone.

Filed Under: ajit pai, california, fcc, net neutrality, pre-emption, scott wiener, states rights

Slowing Down Driverless Cars Would Be A Fatal Mistake

from the people-are-already-dying dept

Unsubstantiated driverless car hype may be annoying, but that shouldn't blind us to the real cost of unnecessarily delaying autonomous vehicle (AV) deployment.

Last week, after exploring new data from the California AV disengagement reports, Ross Marchand of the Taxpayers Protection Alliance argued that we should "put driverless cars back in the slow lane." California requires AV companies testing in the state to report each time a human operator takes over for a driverless car — an event otherwise known as a "disengagement." Marchand offers some interesting analysis, but ultimately reads far too much into a limited dataset and pushes for a restrictive policy prescription that would undermine public safety. The discussion is worth fleshing out because it reveals important limits to the "precautionary principle" mindset that is so common in AV discussions.

In 2017, Waymo — the self-driving car project formerly belonging to Google — reported driving over 350,000 miles on California roads with 63 total disengagements. Marchand claimed that, based on these data, Waymo's test vehicles are still not as safe as human drivers and that they are improving at a slower rate than those hyping AVs would have us believe. Further, he argued that until driverless cars can prove they are safer than human operators, we should keep them off public roads — and instead test them on expensive private tracks.

There are a few glaring issues with this argument. First, it overestimates how applicable and reliable the California disengagement data really are. As many commentators have pointed out, disengagement data are a poor measure of AV progress. Not only are disengagement reports an apples-to-oranges comparison across vehicle manufacturers who use different definitions, strategies and road conditions for testing, but Marchand drills down by comparing particular disengagement subcategories, leaving him with sample sizes of less than 20 — several orders-of-magnitude too small to make meaningful comparisons. Furthermore, comparing disengagements to would-be fatalities is problematic given that a safety driver's presence enables testing in regions that the vehicle is still learning to handle.

Marchand also left aside the successful testing and deployment of Waymo's fully driverless cars in Arizona. Since November 2017, hundreds of AVs have been providing free taxi services in the suburbs of Phoenix without any safety driver in the front seat. To date, there have been no reported accidents or fatalities. This suggests what we've known all along: these companies already face a host of legal, political, economic, regulatory and publicity pressures that incentivize them to prioritize safety in AV deployment. They know that every bump, scrape and crash will make headlines (regardless of who is at fault) and will slow or — if it's serious enough — completely derail their path to market. Waymo obviously feels confident enough to take its hands off the wheel, and so far has been right. Why rip AVs off the roads when no one has been harmed?

Marchand's larger argument against AV testing on public roads provided a textbook example of the precautionary principle in practice. Simply put, the precautionary principle requires innovators to prove that their new technology will not harm society, rather than placing the onus on regulators and litigators to demonstrate that an innovation actually causes harm.

And to that point, Marchand fails to specify what exactly the harm of public testing has been. Public testing has not unleashed mass fatalities on society, or even mass fender-benders. Rather, it appears to be speeding up the feedback loop of better data and more-rigorous test environments, leading to faster improvements in autonomous technology.

As a society, we can't afford to wait until we are 100-percent certain that driverless cars are statistically safer than humans before letting them on the roads. As a report from RAND highlighted, it could take several decades to accumulate enough miles on private test courses to know beyond a shadow of a doubt that AVs are safer than their human counterparts. Relying on Marchand's precautionary principle approach would mean waiting decades while nearly 40,000 people die on our roads every year. Regulatory delay of this magnitude could, conservatively-speaking, cost tens of thousands of lives.

That's not to say private test courses don't have a role to play in AV development. Indeed, Waymo already operates an extensive test track in Arizona where operators take real-world scenarios and experiment with hundreds of possible variations. This hybrid approach combines the advantages of real-world testing and private test courses. But forcing all AV testing onto private test tracks cuts off the real-world data necessary for this complementary approach and substantially raises the barrier to entry for new competitors.

To be clear, we should avoid over-hyping the progress made in AV development. Carefully taking into account the safety data will be a key part of this effort. But halting all real-world AV deployment is a heavy-handed "solution" desperately in search of a problem.

Caleb Watney (@calebwatney) is a technology policy associate at the R Street Institute. Marc Scribner (@marcscribner) is a senior fellow at the Competitive Enterprise Institute.

Filed Under: autonomous vehicles, california, driverless cars, human drivers, ross marchand