The FCC's Sneaky Plan To Make It Easier To Ignore ISP Complaints

from the nothing-to-see-here dept

From real news to fake news then back again. The FCC this week was slated to vote on some seemingly insubstantial changes to the way the agency fields consumer complaints, but journalists and consumer advocates appear to have derailed the plan. It began when a few Senators expressed concern that the agency was subtly changing the wording to its consumer complaint process, potentially making it easier for the agency to ignore them entirely:

"As the chief communications regulator, the FCC plays a critical role in ensuring consumers -- including families, small businesses and struggling Americans -- get fair and honest treatment from their service providers. We worry that the proposed change signals that the FCC no longer intends to play this role, and will instead simply tell consumers with limited means and time that they need to start an expensive and complicated formal legal process."

As it stands, consumers have two options if they want to file a complaint about their ISP or cable company with the FCC. They can either file an informal complaint, which is free, or they can file a formal complaint, which requires a $225 fee and begins a long, court-like process that involves oodles of paperwork and numerous hearings. For obvious reasons most consumers don't select the latter. In fact, during the net neutrality repeal fight only one consumer actually bothered to even file a truly formal complaint, though that complaint does a pretty stellar job explaining why the net neutrality repeal was terrible (pdf).

In short, subtle wording changes by the agency reduced the likelihood that the FCC would have to take informal complaints seriously, forcing consumers toward a formal filing and the costly $225 fee to begin any meaningful process. When initial news outlets reported on the story, they incorrectly implied that the $225 for a formal complaint was new. Pai's staff was quick to pounce on those incorrect headlines to insist numerous media reports were "fake news":

Berry's denial quickly got outlets like the Washington Post to issue stories "debunking" the previous stories, parroting Berry's claim that nothing was actually changing (though it's worth noting that the Post had to later walk back the headline below claiming such). Berry, as you can imagine, really liked that:

The problem: consumer advocates like Free Press then clearly spelled out precisely what language was being changed, and why the Post was wrong to believe the FCC's claims at face value:

While minor (for example the term "disposition" is fiddled with in footnotes), many of the changes did indeed reduce the FCC's obligation to take consumer complaints seriously and intervene:

As the day wore on, tech journalists were again reporting that yes, the FCC did appear to be subtly tinkering with rules surrounding complaint handling to make it easier to ignore your complaints (again, unless you're willing to pay $225, file lots of paperwork and attend hearings). By day's end, the Washington Post received leaked word from the agency that it would be scrapping the change-that-supposedly-wasn't-a-change after "political backlash":

"The Federal Communications Commission has dropped the parts of its proposal dealing with informal complaints, according to multiple people familiar with the matter. The move comes after Democratic FCC Commissioner Jessica Rosenworcel requested the provisions be struck. Several officials cited the political backlash over the issue as a reason the FCC will not vote on those provisions Thursday, with one official saying the proposal on informal complaints was never a “conservative plot” intended to harm consumers. The officials spoke on the condition of anonymity to discuss internal agency deliberations."

But this morning, the Post was then told that the agency might be including the language after all:

Whatever the outcome, it highlights how paying attention to often wonky policy really does matter. Pai, a telecom policy wonk since his days working at Verizon, has spent the last year building the agency he envisions: namely one that sits on its hands while giant ISPs dictate most major policies, leading us down the miraculous path to supposed telecom Utopia. Pai's Title II repeal already gutted much of the FCC's authority over ISPs, and it's unclear how many other revisions and rule changes he's shoveled through for similar effect. Whoever winds up replacing Pai will have their work cut out identifying and reversing many of these changes, if they're reversed at all.

Meanwhile, it should probably go without saying that an agency that has completely made up supporting data for its net neutrality repeal, and made up a DDOS attack in an incredibly bizarre attempt to downplay the "John Oliver effect," probably shouldn't be giving lectures on "fake news" (whatever the hell that means) anytime soon.

Filed Under: ajit pai, complaints, consumer protection, fcc, isps, matthew berry, oversight

AT&T Ends Quest To Erode FTC Authority Over Broadband Providers

from the zero-accountability dept

As we've noted for a while, the ISP attack on net neutrality is only one small part of a broader gambit to eliminate all federal and state oversight of telecom monopolies. Not only did the "Restoring Internet Freedom" net neutrality repeal kill net neutrality, it neutered the FCC's ability to adequately police some of the most anti-competitive companies in America. At the same time, language embedded in the repeal also attempts to neuter state authority over ISPs, something some cable companies are already using to try and wiggle out of lawsuits over substandard service and slow speeds.

All the while, ISPs and their policy BFFs have tried to argue that this massive neutering of state and FCC authority over ISPs was no big deal because the FTC would rush in and save the day, ignoring the fact that the FTC's authority over broadband providers is already shaky. The agency can't make rules as conditions warrant (like the FCC), and can only act against ISPs if a behavior is clearly shown to be "unfair and deceptive," something not easy to do in the net neutrality realm where anti-competitive behavior is often dressed up as "reasonable network management."

As ISPs and their allies told anyone who'd listen the FTC was perfectly suited to police ISPs, they routinely "forgot" to mention that AT&T has spent the last few years in court trying to dismantle any remaining FTC authority over ISPs completely as it tried to tap dance around an FTC lawsuit for lying to consumers about the company's throttling practices. Ironically, AT&T lawyers had been trying to argue that the same common carrier rules AT&T has fought tooth and nail against on the net neutrality front exempt it from FTC oversight.

AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. But lately those efforts haven't been going so well, with several lower court rulings hampering AT&T's quest for zero government accountability. And while AT&T had hinted that it would pursue the case all the way to the Supreme Court, last week the company quietly announced that it wouldn't be chasing this particular dream any longer:

"AT&T has given up its years-long quest to cripple the Federal Trade Commission's authority to regulate broadband providers. Just weeks ago, AT&T said it intended to appeal its loss in the case to the US Supreme Court before a deadline of May 29. But today, AT&T informed court officials that it has decided not to file a petition to the Supreme Court and did not ask for a deadline extension."

In addition to having trouble with lower court rulings, AT&T's trying to secure regulatory approval for the company's $86 billion merger with Time Warner. But AT&T's decision to back off its quest also likely reflects efforts to reach a settlement with the FTC over its throttling practices, and the company's surely eager to put the four year old case behind it with what (based on other actions by this administration) is likely to be a light wrist slap of a settlement.

On the positive side, this means the FTC can at least make some effort to protect net neutrality when the FCC's rules officially expire on June 11. That said, even with its authority intact there's frankly not much the FTC can do to punish ISPs that violate net neutrality provided said ISPs are just a little bit clever about how they go about it. Meanwhile, ISPs like AT&T are still threatening to "aggressively" sue any states that try to protect consumers in the wake of the Trump-induced federal apathy toward bad behavior by giant broadband monopolies.

Filed Under: authority, broadband, fcc, ftc, oversight, regulation
Companies: at&t

Charter Uses Net Neutrality Repeal To Claim States Can't Hold It Accountable For Shoddy Service, Failed Promises

from the zero-accountability dept

While people remain exclusively fixated on the telecom industry's attacks on net neutrality, the reality is companies like Comcast, Charter, AT&T and Verizon are busy trying to eliminate nearly all federal and state oversight of their businesses. And while deregulation has its uses in healthy markets as part of an effort to protect innovation, you may have noticed that the telecom market isn't particularly healthy. As such, the end result of eliminating most meaningful regulatory oversight without organic market pressure in place is only likely to make existing problems worse.

This battle is getting particularly heated on the state level. After the Trump administration dismantled net neutrality and consumer privacy protections, states began flexing their muscle and attempting to pass their own privacy and net neutrality rules. ISP lobbyists, in turn, tried to head those efforts off at the pass by lobbying the FCC to include (legally untested) language in its net neutrality repeal "pre-empting" states from being able to protect broadband consumers in the wake of federal apathy.

And in the wake of the net neutrality repeal, companies like Charter (Spectrum) are trying to claim that states have no legal authority to hold them accountable for failed promises, slow speeds, or much of anything else.

For example, Charter is already trying to use the FCC net neutrality language to wiggle out of a lawsuit accusing it of failing to deliver advertised speeds. And the New York Public Service Commission also recently stated it found that Charter has been effectively lying to regulators about meeting conditions affixed to its $89 billion acquisition of Time Warner Cable and Bright House Networks. As part of the deal, Charter was supposed to deploy broadband to a set number of additional homes and businesses, but regulators found (pdf) several instances where Charter actively misled regulators.

Last week Charter replied to these allegations by again claiming that states have no authority over them. As part of that effort the company is already citing the FCC's pre-emption language buried in its net neutrality repeal:

"The Commission does not have the authority to compel broadband providers to offer service to particular customers at particular speeds or at particular locations, or to establish any other obligations in a cable television and telecommunications service merger related to the provision of broadband services. Indeed, it has been established for years that Internet access services are interstate, and accordingly subject to exclusive federal jurisdiction.

The FCC has made abundantly clear that states may not impose “any so-called ‘economic’ or ‘public utility-type’ regulation[]” on broadband services and that federal law flatly preempts such requirements. Requiring a provider to expand the geographical range in which it offers broadband services and to offer it at specific speeds—as the Expansion Condition does—is a quintessential public utility obligation that could never lawfully be imposed by a state, as such a requirement would blatantly violate federal law.

There's several things wrong with this claim. One, NY State and the NY PSC absolutely does have authority over Charter -- because this is a merger agreement signed off on by the company that also currently holds a franchise agreement in the state. Two, the FCC's pre-emption effort was already on shaky and untested legal ground. But as Stanford Law School Professor Barbara van Schewick recently pointed out, ironically when the Ajit Pai's FCC rolled back Title II classification of ISPs, it also abdicated its own authority allowing it to tell states what they can do:

"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."

Still, it will take years to hammer this all out in the courts, and in the interim efforts to erode oversight on numerous other fronts (as we saw on net neutrality and privacy) has so far been a smashing success. As we've already noted several times, cable operators like Charter are enjoying larger broadband monopolies than ever before thanks to telcos that have no interest in upgrading aging DSL lines at scale. If you really enjoy the high prices and comical shitshow that passes for cable customer service, by all means let's make sure nobody on the state or federal level can ever hold them accountable.

Filed Under: fcc, net neutrality, new york, oversight, state laws
Companies: charter

AT&T Continues Fight To Gut FTC Authority Over Broadband Monopolies

from the have-your-cake-and-eat-it-too dept

For years, massive broadband providers (and the lawmakers and think tankers paid to love them) have repeatedly stated that gutting net neutrality and FCC oversight of ISPs is no big deal because the FTC will rush in and protect consumers. When ISPs like Comcast convinced the Trump FCC to kill net neutrality, they repeatedly proclaimed that the FTC would step in and ensure that nothing bad would happen. When ISPs lobbied Congress to kill off some modest consumer privacy protections, again they proclaimed that this was no big deal because the FTC would ride in and keep consumers safe from monopoly bad behavior.

But while ISP lobbyists are claiming that neutering the FCC is a great idea because the FTC will fill the void, they consistently "forget" to mention that AT&T has been busy in court trying to gut FTC authority over ISPs entirely. You'd think that's kind of important to mention, but large ISP mouthpieces are understandably busy these days, so perhaps it just got lost in the lobbyist paperwork shuffle.

AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very clever Schrodinger-esque tap dance.

At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America.

Fortunately for consumers, AT&T's legal efforts have seen mixed results. AT&T won a major ruling in the case back in August of 2016, but the FTC won the most recent federal appeals court decision. Undaunted, AT&T made it clear this week that this is a battle it intends to take to the Supreme Court:

"AT&T intends to file a petition for certiorari in the Supreme Court" by the deadline of May 29, according to a joint case management update filed last week. An AT&T victory could leave many ISPs in a regulation-free zone. The Federal Communications Commission in December 2017 voted to eliminate net neutrality rules and relinquish its authority to regulate ISPs as common carriers. One of the FCC's justifications for deregulating the broadband market was that the Federal Trade Commission can force ISPs to uphold their net neutrality promises."

The goal remains little to no oversight of some of the least-competitive and most anti-competitive American companies in any industry. What could possibly go wrong?

It's worth reiterating that even if the FTC wins this case, the agency remains a pale echo of the FCC when it comes to holding giant ISPs accountable. The FTC lacks rule-making authority, is already over-extended, and can only hold an ISP accountable if it can clearly prove the ISP engaged in "unfair or deceptive" behavior. That's something that's particularly problematic on the net neutrality front when anti-competitive behavior is routinely hidden behind bogus claims of routine network management.

Granted if you really like growing monopolies running amok, this plan should be right up your alley. But if you realize that removing already pretty tepid oversight of an uncompetitive and broken telecom industry could cause vast irreparable harm to consumers and smaller businesses alike, then this is a case you most certainly should be keeping an eye on.

Filed Under: broadband, fcc, ftc, net neutrality, oversight, privacy
Companies: at&t

FCC Commissioner Says Her Agency Is Now Just A Giant Rubber Stamp For Sinclair Broadcasting

from the ill-communication dept

If you've been napping, the Ajit Pai run FCC has been busy gutting decades-old media consolidation rules just to grease the skids for Sinclair's planned $3.9 billion acquisition of Tribune. The deal, if completed, would give Sinclair ownership of 230 broadcast stations, reaching 72% of the public with what's generally considered facts-optional "news" on a good day. Consumer advocates and media watchdogs have been warning about the negative impact such media consolidation has on competition and local reporting for decades, largely to yawns and eye rubs from many in the tech sector.

The importance of limits on media consolidation have seen renewed attention as the United States tries to get a hold of its previously-ignored disinformation problem(s). Last week Deadspin published a video highlighting how Sinclair forces its reporters to parrot factually-dubious commentary in a relatively creepy fashion, much of it blasting any critical reporting on the Trump administration as "fake news":

It's worth noting that opposition to Sinclair's deal is bipartisan in nature. Democrats oppose the deal because it would extend the reach of a "news" organization that has repeatedly been caught parroting Trump disinformation and misleading its audience. But many Conservatives oppose the merger as well, rightly worried that a larger Sinclair could have a stifling impact on smaller news organizations. And many Sinclair employees say they're frustrated by the company's policies as well, but note that noncompete and other contract language makes quitting financially untenable:

"After Sinclair Broadcast Group Inc. drew widespread criticism for having anchors read a statement taking aim at the integrity of other U.S. media outlets, many wondered why some of the company’s journalists didn’t just quit.

The short answer is the cost may be too steep. According to copies of two employment contracts reviewed by Bloomberg, some Sinclair employees were subject to a liquidated damages clause for leaving before the term of their agreement was up: one that requires they pay as much as 40 percent of their annual compensation to the company."

While Deadspin's video brought some welcome attention to our mindless media consolidation problem and the impact it has on quality local reporting, most of the analysis didn't even tell the full story. For example, few bothered to point out that FCC boss Ajit Pai is already facing a bipartisan investigation by the FCC's own Inspector General for potential corruption in his dealings with Sinclair. And many overlooked this recent lamentation by Pai's fellow Commissioner Jessica Rosenworcel on how Pai's FCC is little more than a glorified rubber stamp for the alternative-fact broadcaster:

"Every element of our media policy is custom-built for the business plan of Sinclair Broadcasting,” says Rosenworcel. “That is stunning, it is striking, and it looks like something’s wrong. And I’m not the only one to think that. We’re burning down the values of media policy in this agency in order to service this company."

"Looks like?" Of course none of this is entirely new, and pushing through unpopular megamergers without seriously weighing the negative impact on markets or the public welfare is a time-honored, bipartisan tradition. Much like the man who appointed him, Pai's just taking existing, long-standing dysfunction, corruption and revolving-door regulation to an entirely new level. And if Pai's response to the massive net neutrality backlash is any indication, he's too intellectually and ideologically cocksure to seriously weigh legitimate bipartisan criticism (or the facts) ahead of the Sinclair merger vote later this year.

Being an unelected bureaucrat there's not much to do about Pai outside of voting out his employer, but hopefully his mindless defense of broadband, media, and even prison phone monopolies at least serves an education function for those with the tendency to ignore a decade of warnings about the downsides of mindless M&A mania.

Filed Under: ajit pai, fcc, jessica rosenworcel, media mergers, oversight
Companies: sinclair broadcasting

AT&T Fails In Bid To Kill FTC Authority Over Broadband Monopolies

from the have-your-cake-and-eat-it-too dept

It can't be overstated that the broadband industry isn't just trying to kill net neutrality, it's trying to gut most meaningful federal and state oversight of entrenched telecom monopolies. While Ajit Pai dismantled consumer protections at the FCC, his "Restoring Internet Freedom" order also ironically attempts to ban states from holding ISPs accountable for privacy, net neutrality, or other anti-competitive behavior. With neither adult regulatory supervision or healthy organic competition in place to keep bad actors in line, the end result will likely be even worse behavior than the kind of Comcast shitshows we've grow used to.

But there's one part of this effort that just faced a notable setback.

Under Ajit Pai's (read: the broadband industry's) proposal, the FCC would take a step back from overseeing ISPs, ceding any remaining authority to the FTC. What Pai and his ISP friends didn't mention is that the FTC's authority over ISPs is severely limited, or that AT&T has spent the last four years in court trying to demolish what authority the FTC does have. That this would leave consumers almost entirely unprotected from monopoly behavior must have simply slipped Ajit Pai's mind during his endless sales pitches for his unpopular repeal.

AT&T's legal gambit began when the FTC sued AT&T back in 2014 for lying to customers about the company's throttling practices. You'll recall that AT&T had been waging a not-so-subtle war on unlimited data users as it tried to drive them to more expensive, metered plans. Amusingly, AT&T lawyers tried to argue in court that the company's "common carrier" status -- the same status it has fought viciously against on the net neutrality front -- exempted it from FTC authority almost entirely under Section 5 of the FTC Act. As we noted at the time, it was a very absurd and Schrodinger-esque tap dance.

At the time, the FTC issued a warning stating that should AT&T lawyers be successful, any company with a common carrier component (from Google to oil conglomerates) could tap dance around FTC oversight. Those without such components could simply buy or merge with a small company with a common carrier component to nab the same benefit. This, the FTC warned, would create a massive accountability and enforcement gap regarding corporate America:

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

Unfortunately for AT&T, things didn't work out that way. This week the US Court of Appeals for the 9th Circuit ruled (pdf) AT&T's dream scenario wouldn't be coming to fruition, and that the lawsuit against AT&T for lying to its customers would be moving forward:

"We affirm the district court’s denial of AT&T’s motion to dismiss. Looking to the FTC Act’s text, the meaning of “common carrier” according to the courts around the time the statute was passed in 1914, decades of judicial interpretation, the expertise of the FTC and Federal Communications Commission (“FCC”), and legislative history, we conclude that the exemption is activity-based. The phrase “common carriers subject to the Acts to regulate commerce” thus provides immunity from FTC regulation only to the extent that a common carrier is engaging in common-carrier services.

While an important win for FTC authority, it's important to note that on the broadband front this only retains the status quo: that is, the FTC's existing, flimsy oversight of broadband ISPs. And that oversight doesn't extend very far. Unlike the FCC, the FTC can't create new guidelines when needed, and can only act against broadband ISPs after the fact -- if it can be clearly illustrated that an ISP engaged in "unfair or deceptive" behavior. In the telecom sector, where anti-competitive behavior is often hidden behind claims of network security, that's often difficult.

That said, FCC boss Ajit Pai was quick to issue a statement (pdf) declaring that this was a win for consumers (correct, sort of), and that the FCC would be working closely with the FTC to protect net neutrality better than before (not correct, and extremely unlikely):

"The Ninth Circuit’s decision is a significant win for American consumers. Among other things, it reaffirms that the Federal Trade Commission will once again be able to police Internet service providers after the Restoring Internet Freedom Order takes effect,” said FCC Chairman Pai. “In the months and years ahead, we look forward to working closely with the FTC to ensure the protection of a free and open Internet."

Again, the FTC's authority over ISPs is extremely limited, and with no actual net neutrality rules to enforce it's comical to think this will be the equivalent of keeping real net neutrality rules (and FCC authority) intact. The throttling lawsuit aside, the FTC pretty rarely actually takes action against ISPs for oceans of bad behavior despite ample opportunity (most notably on the false advertising front). That's in part because the FTC's already under-funded and under-manned, and is tasked with overseeing everything from washer and dryer manufacturers to accuracy in bleach labeling.

So while this ruling is important in terms of ensuring the FTC can police bad actors generally, for the broadband industry specifically it simply means what little authority it has over ISPs remains intact. The shorter version: while uncompetitive broadband monopolies have been successfully gutting most federal and state oversight of their regional monopolistic fiefdoms, their attempt to eliminate all oversight won't be occurring just yet.

Filed Under: authority, fcc, ftc, net neutrality, oversight, regulations
Companies: at&t

The Nunes Memo Has Effectively Destroyed Intelligence Oversight

from the WTG dept

The Nunes Memo, capitalized to give it far more gravitas that it actually possesses, was released late last week to mixed reviews. Nunes had built it up to be a mind-blowing damnation of a politically corrupt Federal Bureau of Investigation, more interested in destroying Trump than performing its appointed duties. The memo showed the FBI had relied on questionable evidence from the Steele dossier while securing FISA warrants to surveill former Trump adviser Carter Page. This memo was composed by the House intelligence oversight head -- one who had rarely expressed concern about domestic surveillance prior to investigations of Trump officials.

The memo showed the basis for the warrants may have been thin, but it didn't show it was nonexistent. In fact, the underlying warrants actually did inform the FISA court about the political background of Christopher Steele and his dossier. Nunes didn't know this because Nunes hadn't actually read the warrants. When he was finally apprised of this contradiction, he claimed the FBI disclosure didn't count because the disclosure was contained in a footnote.

The memo's release has had some serious side effects, however. But it will be Congressional oversight taking the damage, rather than the FBI. The memo's release showed the dumping of sensitive, classified info could be motivated by political whims, rather than as the result of a thoughtful, deliberative process. It showed oversight committee members were willing to jeopardize law enforcement sources and methods to score political points -- ironically the same claim Nunes was making about the FBI's motivations.

The damage will also be felt -- indirectly -- by the American public. Intelligence oversight is supposed to protect Americans from surveillance abuses. With this move, Nunes has destroyed its credibility, as Julian Sanchez points out.

It will be hard for anyone who has read the Nunes memo to regard the committee’s output as nonpartisan now. And by crying wolf about intelligence abuses with no serious evidence, Nunes and his enablers have made it far easier for America’s spy agencies to dismiss any future allegations, however meritorious, as yet another self-serving partisan distraction: at best, baseless conspiracy theorizing; at worst, an effort to obstruct legitimate investigations.

And that may not even be the worst of it. As Sanchez notes, the effectiveness of intelligence oversight will be blunted further. It's already mostly ineffective. Now, it may be completely broken.

[T]he committees are ultimately dependent on the intelligence community itself to direct their attention to areas that demand further scrutiny—whether in the form of official briefers, or whistleblowers who approach members with their concerns. Neither type is likely to repose much confidence in a committee that seems so enthusiastic to make a partisan circus of its grave task.

If the end game was to stop whistleblowing and give the nation's surveillance apparatus even more autonomy, well… mission accomplished. What was merely "dysfunctional" (according to the 9/11 Commission) will now be utterly useless.

And in the end, it won't matter to those who went along with Nunes' plan to own the libs (FBI Edition). For most committee members, intelligence oversight is a do-nearly-nothing job with zero political payoff. When things are fixed or further broken, the public is rarely informed. The few times the public is apprised of changes, it's handled obliquely with as many redactions as possible. Home state constituents waiting for their bridge to nowhere / vanity airport aren't going to be pouring funds into the re-election hoppers based on some shadowy, poorly-explained intelligence reforms. Everyone involved -- the overseers and the overseen -- would prefer as little interaction with each other as possible. By showing the House Oversight Committee is not above playing political football with FISA warrants, Nunes has virtually guaranteed the committee will be left alone.

Filed Under: house intelligence committee, infighting, intelligence community, nunes memo, oversight, politics

Spending Bill Would Give Administration Direct Control Of Surveillance Spending

from the Congress-votes-to-cut-itself-out-as-spending-middleman dept

We've been given six more years of Section 702 collections, thanks to many, many Congressional representatives who just couldn't find it in their hearts to tell the dear old NSA "No." An extension was granted to push the "debate" into 2018, but there was no debate to be had. Instead, oversight committees on both sides of the Congressional aisle used this time to push out zero-reform renewal packages that actually made Section 702 worse.

After a brief, two-week consideration of opposing views, things moved ahead as though the program had never been abused by the NSA and had never "inadvertently" swept up US persons' communications without a warrant. The same politicians who complained about the NSA's power being in the hands of Donald Trump were the ones who voted for the passage of "reform" bills increasing the agency's reach and grasp.

Now, Congressional reps are granting the Trump Administration even greater control of US spy powers. The House spending bill contains an alteration to the language covering the Intelligence Community's use of federal funds. The funding of surveillance programs is already secret. The NSA's infamous "black budget" makes it impossible for citizens to see how -- and how much -- money is being spent spying on the world.

But the book isn't closed to everybody. If the agency or the administration wants to shift funding around, it must first inform Congress. This theoretically gives Congress veto power on spending changes Congress hasn't pre-approved. The disclosures are, of course, done in secret and there's no way to know how often Congress blocks spending changes, but at least it's some form of oversight. That will no longer be the case if the spending bill is approved, as Ryan Grim reports for The Intercept.

The House spending bill released Wednesday would allow President Donald Trump, or people under him, to secretly shift money to fund intelligence programs, a break with 70 years of governing tradition.

Since 1947, section 504 of the National Security Act has mandated that the administration inform Congress if it intends to shift money from one intelligence project to another, if the new project has not been authorized by Congress. That notification can be — and almost always is — done in secret, but it is at least a minimal check on executive power.

The spending bill currently under consideration, known as a continuing resolution, or CR, breaks with that tradition, allowing funds to “be obligated and expended notwithstanding section 504(a)(1) of the National Security Act of 1947.”

This would make the entire "black budget" discretionary, overseen only by the people moving the money around. Congressional control of agency budgets would become a historical artifact, something long-term reps could gaze back at nostalgically as what's left of Intelligence Community oversight crumbles into nonexistence.

Filed Under: black budget, budget, house, oversight, privacy, surveillance

Ajit Pai Doesn't Want You Talking About Court Ruling That Undermines His Bogus Claim That The FTC Will Protect Consumers

from the who's-desperate-now dept

We've noted a few times how the attack on net neutrality and consumer broadband privacy protections are just a small part of a massive lobbyist attempt to remove nearly all oversight of one of the least-competitive and least liked business sectors in America. Industry lobbyists (and the lawmakers and policy folk paid to love them) have made it abundantly clear that the goal is to gut FCC authority over broadband ISPs, then shovel any remaining, piddly authority to an FTC that's not only ill-equipped to handle it, but is currently engaged in a lawsuit with AT&T that could dismantle its authority over large ISPs entirely.

That FTC lawsuit was filed against AT&T after the company lied about throttling its wireless customers as part of an effort to drive unlimited customers to more expensive plans. Lower courts sided with AT&T's creative argument that the very Title II common carrier FCC classification AT&T has been fighting tooth and nail against on the net neutrality front -- exempted it from the FTC's jurisdiction. Last year, the FTC argued that should this ruling stand, it could let any company with a common carrier component (inhereted or acquired) dodge FTC oversight:

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

So again, that's the FTC warning that the AT&T court case could leave it rudderless in any attempt to protect consumers. Odd, given that Ajit Pai and his FCC staffers have been promising everyone that the FTC (which was already under-funded, over-extended, and lacked rulemaking capabilities) was the superior option when it comes to protecting consumers and competition (you can hear former FCC boss Tom Wheeler talk about how this promise is bunk here).

Fast forward to this week. Seeing an opportunity to highlight this blatant gift to the telecom sector, a coalition of 40 consumer advocacy and digital rights groups (as well as New York City) are hoping to use AT&T's legal fight with the FTC as a good reason to delay the FCC's December 14 vote to kill net neutrality. The coalition sent a a letter (pdf) to FCC boss Ajit Pai, arguing that it's irresponsible to plan a wholesale dismantling of net neutrality when one of Pai's central justifications for it (that the FTC will rush in and fill the enforcement gap) may be entirely untenable:

"Rushing to a vote before the Ninth Circuit resolves this decision cavalierly risks the purported safeguards that you and other supporters of the Draft Order have repeatedly declared will protect consumers from abusive or anti-competitive practices. Astoundingly, after committing the entire future of consumer protection from broadband access providers to the FTC, the Draft Order cavalierly dismisses the ongoing litigation that deprived the FTC of any jurisdiction to carry out the job[...] The question that should concern the Commission is whether or not the en banc panel will likewise deprive the FTC of jurisdiction over broadband access providers."

While an excellent point, this isn't likely to sway the FCC's thinking because, again, weakening FCC and FTC authority is the entire point and is exactly what large ISP lobbyists have been gunning for. Companies like Comcast, AT&T and Verizon would obviously prefer it if neither the FCC nor FTC had the authority to actually protect consumers from abuse of a lack of competition in the sector. Granted, if sound logic and compelling points could make the FCC backtrack from its extremely unpopular attack on net neutrality, Ajit Pai and friends would have retreated from this myopic assault months ago.

As such, it's not too surprising to see that Pai's response to a request for a delay involved calling net neutrality supporters "desperate":

"This is just evidence that supporters of heavy-handed Internet regulations are becoming more desperate by the day as their effort to defeat Chairman Pai's plan to restore Internet freedom has stalled. The vote will proceed as scheduled on December 14."

What happens next? Once the FTC and FCC are left rudderless, ISPs have made it clear that they want the FCC to slap down any states that get any funny ideas about policing anti-competitive behavior in the sector, whether that comes in the form of net neutrality violations or privacy abuses. FCC staffers have made it equally clear that they're happy to oblige. Again, this all ends with little to no ability to protect consumers and competition from AT&T, Verizon or Comcast's monopoly strangleholds over the last mile at any level. That might be ok if the government fixed the sector's competition problems first, but Ajit Pai's FCC has made it abundantly clear that trying to hide the sector's competition problems (a prime symptom of regulatory capture) is going to take top priority.

Filed Under: ajit pai, authority, fcc, ftc, net neutrality, oversight