Sen. Wyden Wants Answers From New DHS Head, Introducing Legislation To Create Warrant Requirement For Border Phone Searches

from the annual-Fourth-Amendment-restoration-project dept

There aren't many rights extended to anyone in the "Constitution-free zones" we like to call "borders." You may have rights 100 miles inland, but the government's needs and wants outweigh citizens' and non-citizens' rights wherever immigration officers roam. According to the Supreme Court, warrants are required for cell phone searches. But neither the Constitution nor Supreme Court rulings apply within 100 miles of the border, where the government's needs and wants are considered more important than the protections they can avail themselves of everywhere else in the country.

Senator Ron Wyden is looking to change that. Rather than cede more ground to the rights-swallowing concept of "national security," Wyden is looking to change the laws governing the "Constitution-free zones."

Sen. Ron Wyden will soon introduce legislation to prevent Customs and Border Patrol agents from demanding the passwords to online accounts and mobile devices from American travelers without a warrant.

In a letter to Secretary of Homeland Security John Kelly dated Feb. 20, the Democratic senator from Oregon said border searches that take place without a warrant circumvent the right to privacy and “weaken our national and economic security.”

We'll see how that sits with John Kelly. Kelly appears to be on board with the new administration's "extreme vetting" immigration stance. He's offered to take the DHS's requests for immigrants' social media account info to the next level -- moving it from a voluntary request on visa application forms to mandatory demands for account passwords. Chances are, Kelly has about as little use for citizens' rights as he has for non-citizens in general. The security of the nation is prized above presenting the appearance of a Constitutional republic to the outside world.

Given the current climate in the White House, the legislation will be facing a steep uphill grade. But while we wait for the security vs. privacy legislative fistfights to commence, perhaps DHS head John Kelly will help us pass the time by explaining exactly what it is that he feels gives him the right to search devices without a warrant and/or demand this country's visitors hand over their social media account passwords. From Wyden's letter [pdf]:

1. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person disclose their social media or email account password traveler?

2. How is CBP use of a traveler's password to gain access to data stored in the cloud consistent with the Computer Fraud and Abuse Act?

3. What legal authority permits CBP to ask for or demand, as a condition of entry, that a U.S. person turn over their device PIN or password to gain access to data? How are such demands consistent with the Fifth Amendment?

4. How many times in each calendar year 2012-2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a smartphone or computer password, or otherwise provide access to a locked smartphone or computer? How many times has this occurred since January 20, 2017?

5. How many times in each calendar year 2012, 2013, 2014, 2015, and 2016 did CBP personnel ask for or demand, as a condition of entry, that a U.S. person disclose a social media or email account password, or otherwise provide CBP personnel access to data stored in an online account? How many times has this occurred since January 20, 2017?

Then again, perhaps not. Government officials are kind of used to ignoring questions they don't feel like answering. This will put Wyden back in a familiar position: repeatedly asking unanswered questions of agency officials at any Congressional hearing his opponents can't keep him from attending.

Filed Under: 4th amendment, border patrol, border searches, cbp, dhs, ron wyden

Federal Bill Introduced To Add A Warrant Requirement To Stingray Deployment

from the reclaiming-the-Fourth,-bit-by-bit dept

House Oversight Committee chairman Jason Chaffetz, along with his Senatorial counterpart Ron Wyden, is tackling something he promised to act on after he was finished excoriating the leaky Office of Personnel Management for ruining the lives of millions of Americans: Stingray devices.

A bipartisan group of House and Senate lawmakers introduced legislation Wednesday requiring police agencies to get a search warrant before they can deploy powerful cellphone surveillance technology known as "stingrays" that sweep up information about the movements of innocent Americans while tracking suspected criminals.

“Owning a smartphone or fitness tracker shouldn’t give the government a blank check to track your movements," said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who introduced the bill with Reps. Jason Chaffetz, R-Utah, and John Conyers, D-Mich. "Law enforcement should be able to use GPS data, but they need to get a warrant. This bill sets out clear rules to make sure our laws keep up with the times."

What the bill would do is codify the DOJ's "Stingray Best Practices" policy, which implemented a warrant requirement for cell site simulator deployment -- albeit one that wasn't really a requirement because it wasn't statutorily-required. This would be the statutory requirement the DOJ's better-late-than-never approach to constitutionality was missing.

But the bill doesn't limit itself to cell tower spoofers. It also would add a layer of protection to data the DOJ has long argued isn't covered by the Fourth Amendment.

The legislation introduced Wednesday, called the Geolocation Privacy and Surveillance (GPS) Act, would require a warrant for all domestic law enforcement agencies to track the location and movements of individual Americans through GPS technology without their knowledge. It also aims to combat high-tech stalking by creating criminal penalties for secretly using an electronic device to track someone's movements.

This legislation is the sort of thing courts are apparently looking for when they kick crucial issues down the road. When outdated statutes present opportunities to redefine the Fourth Amendment's confines, judges are frequently willing to tell plaintiffs and defendants to take it up with Congress if they don't like the answer/non-answer they're presented with.

The Supreme Court is no exception. When it (sort of) found warrants might be a good idea when deploying GPS devices for long-term tracking, it never went quite so far as to say a warrant should be a requirement in all cases. It seemed concerned about the length of the tracking but left it at PROBABLY when all was said and done.

The DOJ has often argued that several outdated statutes should be updated to reflect the changing contours of today's connected, always-online world. But this is not the sort of thing it's ever argued for. It would much prefer to see its power and reach expanded at the expense of Americans' privacy. This bill, if passed, wouldn't necessarily fix what's wrong with past legislation and jurisprudence. But it will at least prevent multiple law enforcement agencies from deploying these invasive devices on a whim, or using them to engage in mass surveillance just because they can.

Filed Under: 4th amendment, imsi catcher, jason chaffetz, ron wyden, stingray, warrants

Proposed CIA Chief Seems Happy To Spy On Americans, Even If Using Info Hacked By Russians

from the that's...-a-concern dept

Last Friday, the first three of Donald Trump's appointments were up for vote -- with his DOD and DHS nominees sailing through with an easy vote. However, the Senate blocked Mike Pompeo, Trump's nominee for CIA. As we've discussed in the past, Pompeo is not concerned with violating civil liberties. In the past, we've noted that Pompeo put forth a sneaky fake amendment that pretended to defund NSA metadata collection, but which really reinforced it. He's further defended spying on Americans' metadata as the way government is supposed to operate. Oh, and did we mention that he angrily denounced SXSW for daring to have Ed Snowden speak there.

That's all quite concerning. But in opposing Pompeo for the CIA slot, Senator Ron Wyden has raised even more concerns -- including about Pompeo's willingness (or even eagerness) to use information hacked by the Russians to spy on Americans (and not just the Russians, but anyone else as well). That... should be concerning. As Marcy Wheeler explains, there were a long series of questions all leading up to the basic idea that Pompeo has no problem using whatever info is given to him to spy on people domestically, even if it comes from foreign hacking.

Wyden’s persistent concerns in his post-hearing questions pertained to whether and how Pompeo would be willing to cooperate with the Russians. Raising a Pompeo hearing comment that if a foreign partner gave the CIA information on US persons “independently,” “it may be appropriate of CIA to collect [that] information in bulk,” Wyden raised Trump’s encouragement of Russian hacking and asked what circumstances would make foreign collection so improper that CIA should not receive such information. Pompeo responded, “information obtained through such egregious conduct may be appropriate for the CIA to use or disseminate.”

Wyden then listed out a bunch of conditions, such as information coming from an adversary, to disrupt US democracy, information implicating First Amendment protected political activity, or information affecting thousands or millions of Americans. “The listed conditions could all be relevant,” Pompeo responded, remaining non-committal.

The full post-hearing questions can be found at that link, if you'd like to look them over. Meanwhile, Wyden is clearly not at all satisfied with Pompeo's answers, putting out a statement this morning saying:

Rep. Pompeo showed he's perfectly comfortable saying one thing on Monday, and the opposite on Tuesday. But his record reveals extreme positions, including enthusiasm for sweeping new surveillance programs targeting Americans and an openness to sending our country backward with regard to torture. Furthermore, his views on intelligence assessments on Russian interference in our election shifted along with the presidents', raising questions about the nominee’s objectivity.

There's been much made (especially over the weekend) about a potential rift between the CIA and Donald Trump, but no matter what, the CIA has a pretty long history of abuse of its powers in often dangerous ways. A person who has a history of supporting expanded spying on Americans (as a normal thing that government should do), and one who sees no problem using data hacked by foreign adversaries to then spy on Americans, seems like someone who should not be running the CIA right now.

Filed Under: cia, domestic surveillance, metadata, mike pompeo, ron wyden, russia, surveillance

James Clapper's Office To Finally Reveal NSA's 'Incidental Collection' Numbers

from the and-only-a-half-decade-since-it-was-first-asked! dept

Prior to the Snowden leaks making it unignorable, the NSA denied the incidental collection of Americans' communications was much of a problem. Ron Wyden and Mark Udall were two of the few members of the NSA's oversight willing to ask tough questions. One of the questions they asked -- all the way back in 2011 -- was how many Americans were spied on by the NSA's programs. The answer may shock you cause uncontrollable eyerolling.

What's never made sense is why the feds simply refuse to admit how many Americans they've spied on under the law. In the past, the Director of National Intelligence has basically told Wyden and Udall that he wouldn't answer because he didn't want to. But the latest answer really takes the insanity to stunning new levels. As initially revealed at Wired, the NSA has refused to answer claiming that, not only would it be too much work to figure it out, but that figuring it out would violate the privacy of Americans.

It's a terrible answer. But it's still better than the one the ODNI gave the senators earlier. Basically, James Clapper said it would be difficult to give the senators the information they sought because the NSA really didn't want to hand over that information. Not "difficult" in the technical sense, but "difficult" in the "no desire to" sense.

A leaked document showed the NSA didn't think incidental collection was a big deal. Slides from an internal presentation told analysts such collections were inevitable and not to worry about the reporting collected US persons' communications to the Inspector General. Hence why the Inspector General felt it might take a bit of effort to collect this information: it never had collected or received this information previously.

As the re-up for Section 702 approaches, legislators are taking a renewed interest in these still-unrevealed numbers. And Clapper's office has decided to comply:

"The timely production of this information is incredibly important to informed debate on Section 702 in the next Congress— and, without it, even those of us inclined to support reauthorization would have reason for concern," said the letter signed by 11 lawmakers, all members of the House Judiciary Committee.

The letter was sent on Friday to National Intelligence Director James Clapper. It said his office and National Security Agency (NSA) officials had already briefed congressional staff about how the intelligence community intends to comply with the disclosure request.

There are more specifics to this, which make it more useful than the normal publicized internal memo swap. First, the legislators want this expressed in real numbers, not a meaningless percentage of the total Section 702 take. Second, the letter serves to "memorialize" Clapper's agreement to not only hand over these numbers to legislators, but to the public as well.

This data should contain everyone swept up by PRISM or the NSA's upstream collection -- the latter of which pulls communications directly from domestic internet backbones. The upstream collection has no targets. Instead, it grabs everything it can (including audio communications) it can and sorts through it for targeted terms, as well as anything related to the targeted terms NSA analysts add to the filter.

The potential for incidental collection in either program is huge. So it may actually involve a bit of effort to collect this data. Of course, the effort put into this may also involve making the final numbers a bit more palatable by applying internal rules as to what should or shouldn't be considered an incidental collection. Just as certainly as NSA collections are laundered (via parallel construction) before being introduced in court, one should expect the final incidental collection numbers to be purged of anything that might make them larger than the IC would like to admit publicly.

Filed Under: james clapper, mass surveillance, nsa, odni, ron wyden, section 702, surveillance

Intelligence Committee Senators Call On Obama To Declassify Evidence Of Russian Election Interference

from the that-would-be-interesting dept

We've been a lot more skeptical than most about all the claims of "Russian interference" with the US Presidential election this year. While I don't doubt there was some effort to do something, Russia is such an easy scapegoat. Still, plenty of people insist that it's true, including those who at least should have a fair bit of insight into what actually happened. To me, the bigger issue is that attribution in many of these things is a lot more difficult than most people make it out to be.

Either way, it's quite noteworthy that seven Senators on the Senate Intelligence Committee have asked President Obama to declassify the evidence pointing to Russia and detailing what Russia actually did to attempt to interfere with the election. The Senators sent a very simple letter, which was released publicly, noting that a classified letter with a lot more details was also sent. Here's the entire text of the publicly released letter:

Dear Mr. President:

We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.

Thank you for your attention to this important matter.

Of course, it needs to be noted that this will clearly be seen as a partisan effort. Of the seven Senators who signed on to the letter, six are Democrats, and the other, Senator Angus King, is an Independent who caucuses with the Democrats. Basically it's all of the Democrats on the Senate Intelligence Committee except for Dianne Feinstein and Harry Reid. So, it's easy for some to spin this as a case of sour grapes about the Democrats not winning the election, and that they're now clinging to stories of Russian interference to explain what happened.

But... that spin holds somewhat less weight when you look at the details. First off, the letter itself was put together by Senator Ron Wyden. And, yes, his name comes up a lot around here, but that's because he has a pretty long history of being right on lots and lots of stuff. And that's been especially true when Wyden says that there's some secret info that the public deserves to know about. He's been right on that every single time he's said it. So the track record is there. When Wyden says the public deserves to know something, pay attention.

The second thing that provides more confidence here is that this isn't just random conspiracy theories about "rigged" voting or whatever that some have been spewing. This is a specific request for more transparency by asking for specific information to be released to the public -- specific information that the Senate Intelligence Committee members have seen.

Given that, it seems worth paying attention to -- and at least asking why the President won't declassify such information? If there really is such strong evidence, why not reveal it? So far, all of the evidence pointing to Russia has been fairly weak, and it feels a bit like groupthink that everyone just insists it's true. But it's entirely possible (and perhaps now, probable) that the intelligence community has some more serious evidence. And, if that's the case, it seems worth sharing with the public even if you were happy with the outcome of the election. If Russia really did "interfere" somehow in the election, the public deserves to know the details of it.

Filed Under: declassify, election, hacking, interference, ron wyden, russia

Thanks To Months Of Doing Nothing, Senate Allows DOJ's Rule 41 Changes To Become Law

from the do-nothing-lawmakers-manage-to-accomplish-something dept

The amendments to Rule 41 are now law, thanks to Sen. John Cornyn, who prevented bills opposing the immediate adoption of the changes from being debated.

Sens. Ron Wyden (D-Ore.), Steve Daines (R-Mont.) and Chris Coons (D-Del) took to the floor and unsuccessfully asked for unanimous consent to either pass or formally vote on three bills to delay or prevent updates to the process used by law enforcement to get a warrant to hack suspects' computers.

“We simply can’t give unlimited power for unlimited hacking,” Daines argued.

[...]

But the bid to prevent the imminent changes to Rule 41 ended quickly. After Wyden spoke, Majority Whip John Cornyn (R-Texas) immediately objected to all three bills, without waiting to hear from Coons and Daines.

But Cornyn alone can't be blamed for this outcome. A vast majority of senators did nothing to prevent the proposed changes from becoming law -- even though the decision has been in their hands since the Supreme Court's approval in April.

The FBI and others will be able to take advantage of the removal of jurisdictional limits to search computers anywhere in the world using a single warrant issued by a magistrate judge. It will also be granted the same power for use in the disruption of botnets -- in essence, searches/seizures of devices owned by US citizens suspected of no wrongdoing.

Cornyn, who prevented any debate over the "updates" to Rule 41, seems closely aligned with the DOJ's views -- that these changes will have "little effect" on civil liberties because the FBI, etc. "will still have to get a warrant."

Sure, warrants are still involved, but the scope of what can be accessed with a single warrant has been expanded greatly. And the DOJ has yet to explain how it's going to prevent law enforcement agencies from shopping around for the most compliant magistrates, now that they're not required to perform searches in the issuing court's jurisdiction. The DOJ also hasn't adequately explained what sort of notification process it will use when performing its botnet cleanups.

What it has done, however, is issue a statement saying the ends justify the means.

In an effort to address concerns, U.S. Assistant Attorney General Leslie Caldwell wrote a blog post this week arguing that the benefits given to authorities from the rule changes outweighed any potential for "unintended harm."

The DOJ wanted fewer restrictions, more power, and the opportunity to treat any appearance of anonymization software as an excuse to deploy these newly-granted powers. The Senate -- for the most part -- gave it everything it wanted by doing nothing at all to stop it.

Filed Under: doj, fbi, hacking, john cornyn, nit, ron wyden, rule 41, surveillance, warrants

Senators Not Impressed By DOJ's Answers On Rule 41 Changes

from the answer-the-damn-question dept

The DOJ has finally responded to questions posed by several senators about its interpretation of the proposed Rule 41 changes, due to go into effect on December 1st. Arriving shortly before the deadline -- and during the Thanksgiving holiday Black Friday news rush -- the DOJ's letter [PDF] contains a few explanations of its jurisdiction limitation-stripping and roving botnet warrants.

Unfortunately, not much is clarified other than that the DOJ still feels its proposal is nothing more than Rule 41 64-bit -- an update of existing law more in line with today's connected reality. (The DOJ offers no insight on its reluctance to update other outdated laws like the CFAA…) It also appears to believe the Fourth Amendment impact of its "one warrant, thousands of searches" proposal will be minimal and that it will maintain the same level of respect it has shown for privacy protections (also minimal) under the updated rule.

Needless to say, Sen. Wyden and co. aren't impressed by the DOJ's response.

Wyden and Coons were among 11 senators and 12 House members who queried DOJ about the hacking powers expansion last month. The department’s reply, which arrived today, should be “a big blinking warning sign about whether the government can be trusted to carry out these hacks without harming the security and privacy of innocent Americans’ phones, computers and other devices,” Wyden wrote.

The DOJ is still dodging a few questions. One question in particular was completely unaddressed in the DOJ's response. Wyden and his co-signers asked what the DOJ was going to do to prevent forum shopping for compliant judges -- something that would become far more common with jurisdictional limits removed.

The letter does not recount any specific department policies or training that would prevent forum shopping. It does stress police will only be able to seek warrants in districts where activity related to a crime has occurred and that the revised rule uses the same language as existing out-of-district warrant authorities for terrorism cases.

The DOJ either can't answer this or won't answer this. In either case, the lack of response indicates the DOJ isn't interested in preventing law enforcement agencies (like the FBI) from shopping for judges. If there's nothing in place now, it's highly unlikely any guidance will be in place by December 1st. If there is something in place, it's apparently nothing more than a suggestion that law enforcement seek warrants in their own jurisdictions. If the DOJ was truly interested in shutting down forum shopping, it would have begun putting policies in place at any point over the last couple of years while it pursued this "update" of Rule 41.

The letter does say law enforcement agencies won't be able to peek at private files while mucking about the insides of citizens' computers to shut down botnets. But the letter (and the Constitution) both say a lot of things that are great in theory, but less so in practice. Fourth Amendment violations can only be cured by visits to courtrooms, but it's something that's prohibitively expensive and subject to a large number of "GET OUT OF VIOLATION" cards (good faith, plain view, close-but-no-suppression, etc.) issued by presiding judges.

The redux of the changes is still this: if anonymization efforts are made by anyone targeted in a criminal investigation, the FBI, etc. can go find the most compliant judge available to sign off on a single warrant that can be used to search thousands of computers worldwide. It can also do this under the pretext of fighting botnets, performing the same sort of limited search for identifying info, even when all the hundreds or thousands of targets are not suspected of any wrongdoing.

Pretty much the only thing standing between the DOJ's proposal and the December 1st implementation is Congressional members' decision to "opt in" to a shutdown fight -- something the DOJ is clearly hoping won't happen. Wyden's recently-introduced bill would push the adoption back until the middle of next year, but it still requires representatives to express some sort of opinion (yes/no) on rule changes that could easily coast into existence while everyone in Congress is distracted by upcoming holidays and annual budget battles.

Filed Under: chris coons, doj, fbi, hacking, jurisdiction, malware, nit, ron wyden, rule 41

Bill Introduced To Push Back Approval Of DOJ's Proposed Rule 41 Changes

from the buying-time dept

Unless someone steps up to push this off course, the DOJ's proposed changes to Rule 41 will become law December 1. That's the key part: doing something. All that has to happen is nothing for the changes to become law. The December 1st date plays right into the DOJ's hands, arriving between two major holidays when legislators have other things on their minds, including the annual Congressional fisticuffs over the federal budget.

The DOJ says the changes are no big deal. Just an "update" on outdated laws. Oddly, it's never shown any interest in updating any other outdated laws (like the CFAA) or pushed for a reconsideration of the Third Party Doctrine, which traces back nearly four decades. When it comes to expansions of power, though, it's apparently time for some "updating."

The proposed changes would allow the FBI to hack thousands of computers around the world with a single warrant, much like it already did during two child porn investigations. Unfortunately for the FBI, its warrant is being met with successful challenges because the agency clearly violated Rule 41 jurisdictional limitations.

In addition, the DOJ wants permission to break into "compromised" computers and poke around inside them without the permission or knowledge of the owners of these computers. It also wants to treat anything that anonymizes internet users or hides their locations to be presumed acts of a guilty mind. The stripping of jurisdictional limits not only grants the FBI worldwide access for digital seizures and searches, but also encourages it to go venue shopping for judicial rubber stamps.

Earlier this year, Sen. Ron Wyden introduced a bill aimed at stopping the DOJ's Rule 41 push. Not much has been heard about this bill since, so Wyden (along with Sens. Coons, Lee, Franken, and Daines) has introduced another bill seeking to prevent a "do nothing" approval of expanding hacking/search powers. The "Review the Rule Act" [PDF] is about as succinct as legislation gets. Here's the complete summary of the proposed legislation (via Naked Security):

To delay the amendments to rule 41 of the Federal Rules of Criminal Procedure.

Wyden's earlier bill hasn't gained any traction and the hopes of a complete rejection before December 1st are nearly nonexistent. So, this bill just asks for a little more time to discuss the implications of the changes. This would move the default approval date back seven months to July 1, 2017.

This would allow representatives more time to fully consider the DOJ's proposal, freed from the time crunch of major holidays and annual federal budget discussions. There's far too much at stake to simply allow the DOJ to roll its Rule 41 ball downhill and past a distracted Congress. Many legislators like procrastination as much as they like not doing anything, so signing off on this proposal shouldn't require much effort, mental or otherwise.

Filed Under: congress, doj, fbi, hacking, nit, ron wyden, rule 41, warrant

Senator Wyden Warns That AT&T's New Merger Poses A Massive Threat To Net Neutrality

from the nickel-and-dime dept

As AT&T fires up its lobbyists and various policy tendrils to sell the company's $100 billion (including debt) acquisition of Time Warner, the focus of the conversation has very quickly shifted to net neutrality and zero rating. AT&T already exempts its own content from the company's usage caps, and its DirecTV Now streaming service, launching later this month, is expected to follow suit. Once AT&T acquires Time Warner and its various properties (HBO, CNN), the worry is that this content will also get a leg up by being cap-exempt, creating an unlevel playing field for competing content and streaming services.

Senator Ron Wyden this week made it abundantly clear that he sees the new AT&T merger as a significant threat to net neutrality. In a letter to FCC boss Tom Wheeler (pdf), Wyden specifically points to AT&T's ever-expanding usage caps and the practice of zero rating as "anti-competitive practies that harm consumers" and small businesses alike:

"I am deeply concerned that if AT&T acquires Time Warner's content, the new mega-company will have incentives to prioritize its own content over content created by small business, independent artists or by its rivals."

As we've noted more than a few times, Wyden also highlights how usage caps are arbitrary and unnecessary constructs in the first place:

"Nearly all data caps, and particularly those attached to wireline broadband plans, have nothing to do with network management and everything to do with profiting from an ever-more-consolidated broadband market. Data cap plans that zero rate data at the discretion of the ISP violate the principle of net neutrality by creating an internet where one bit is favored over another bit absent user control...I am deeply concerned that if AT&T acquires Time Warner's content, the new mega-company will have incentives to prioritize its own content over content created by small business, independent artists, or by its rivals."

The problem, as we've long noted, is that while the FCC passed net neutrality rules last year, it failed to prohibit zero rating, and has yet to take any meaningful stand on usage caps. Usage caps aren't just price hikes on uncompetitive broadband markets, they're incredibly effective at giving incumbent ISP content a leg up in the market using zero rating. And while the FCC claimed it would be launching an "informal information exercise" to examine the negative repercussions of caps and ratings, that inquiry has resulted in jack shit in terms of actual enforcement.

As a result, we've now got AT&T, Comcast and Verizon all using caps to give their own content an unfair advantage, while Sprint and T-Mobile happily sell "unlimited" data plans that throttle games, music, and video unless consumers pay a premium. The FCC's failure to ban these peripheral behaviors, as we warned, opened the door to all of this, and AT&T's new mega-merger has the potential to take the problem to an entirely new level.

Wyden was quick to note on Twitter that he'll introduce legislation if the FCC fails to act: The problem is that in a nation where the majority of consumers don't even know what a gigabyte is, zero rating is simply too confusing. Most consumers (and many reporters) still labor under the illusion that zero rating gives them something for free, ignoring that usage caps are an entirely arbitrary construct layered on top of what's already some of the most expensive wireless data rates in the developed world. Without consumers understanding how anti-competitive usage caps and zero rating truly are, there's less political pressure to do something about it -- which is why the FCC continues to twiddle its thumbs on the sidelines.

The debate over the AT&T merger is thankfully bringing this entire conversation to the foreground, but it's also going to be a wonderful opportunity for AT&T, its lobbyists, and loyal politicians to confuse consumers even further.

Filed Under: competition, merger, net neutrality, ron wyden, zero rating
Companies: at&t, time warner