Telecom Lobbyists Easily Weakened Language In 'Bipartisan' Broadband Infrastructure Bill

from the do-not-pass-go,-do-not-collect-$200 dept

So we've already noted how the broadband component of the "bipartisan compromise" infrastructure bill was still helpful, but much weaker than many wanted it to be (pretty much the common theme across the infrastructure package). While there are some useful grant funds for underserved "middle mile" and other networks -- as well as the continuation of a helpful but flawed COVID broadband discount program -- the proposal itself doesn't really do much of anything about the core reason US broadband is so expensive: namely, regional telecom monopolization or the corruption that protects it.

Other aspects of the proposal started off well but were steadily eroded throughout the "negotiations" process. For example, many lawmakers wanted the country to boost its standard definition of "broadband" to symmetrical 100 Mbps to better represent modern realities. But the final package implemented a 100 Mbps down, 20 Mbps standard -- and only as it pertains to who can get funding for broadband expansion. The overall definition of broadband remains unchanged.

As Ernesto Falcon at the EFF notes, this weakened standard was courtesy of fixed wireless and cable industry lobbyists, who know that much of their infrastructure can't actually do much better than 10-20 Mbps on the upstream. So we basically lowered the bar to make them happy:

"By defining internet access as the ability to get 100/20 Mbps service, the draft language allows cable monopolies to argue that anyone with access to ancient, insufficient internet access does not need federal money to build new infrastructure. That means communities with nearly decade-old DOCSIS 3.0 broadband are shielded from federal dollars from being used to build fiber. Copper-DSL-only areas, and areas entirely without broadband, will likely take the lion’s share of the $40 billion made available. In addition to rural areas, pockets of urban markets where people are still lacking broadband will qualify. This will lead to an absurd result: people on inferior, too-expensive cable services will be seen as equally served as their neighbors who will get federally funded fiber."

Ernesto has routinely pointed out that fiber broadband is future proof (and feeds most cellular towers in the first place), so if you're going to throw billions of dollars in subsidies at companies, you probably should be encouraging fiber as often as possible. Of course, the government rarely adheres to his advice, frequently throwing countless subsidies at wireless companies for service they don't deliver, or hundreds of millions of dollars at Elon Musk to bring inferior broadband to a couple of traffic medians and airport parking lots.

There were other nonsensical sacrifices made to the broadband component of the infrastructure agreement made under the banner of "bipartisan compromise," including the elimination of any attempts to lend a hand to the popular community broadband efforts taking root across the country out of frustration. Again, not based on any hard data or factual reality, but because telecom lobbyists don't really like anything that could potentially erode regional monopoly revenues.

As noted previously, these kinds of downgrades are uniformly framed in beltway DC coverage as a "bipartisan compromise." In reality, it's really only the people who want decent baseline standards and the barest levels of sector oversight who are having to compromise. And more often than not the press helps politicians frame their decisions to pander directly to sector lobbyists as simply being principled spendthrifts.

Filed Under: broadband, definitions, infrastructure plan, lobbyists

GAO Tells US Government Its Speed Definition For Broadband Sucks

from the keeping-the-bar-at-ankle-height dept

The US has always had a fairly pathetic definition of "broadband." Originally defined as anything over 200 kbps in either direction, the definition was updated in 2010 to a pathetic 4 Mbps down, 1 Mbps up. It was updated again in 2015 by the Wheeler FCC to a better, but still arguably pathetic 25 Mbps downstream, 3 Mbps upstream. As we noted then, the broadband industry whined incessantly about having any higher standards, as it would only further highlight industry failure and a lack of competition.

Unfortunately for them, pressure continues to grow to push the US definition of broadband even higher. Back in March, a coalition of Senators wrote the Biden administration to recommend that 100 Mbps in both directions become the new baseline. And last week, the General Accounting Office (GAO) issued a new report noting that the current standard of 25 Mbps down, 3 Mbps up is simply too pathetic to be useful. The focus was on small businesses, but the GAO politely noted that the FCC should update its definition soon:

"Is broadband fast enough for small business owners? As they shift to more advanced uses of broadband, their speed needs are likely increasing. However, the FCC has not updated its speed benchmark for 6 years. We recommended that the FCC determine whether its current definition of broadband really meets the needs of small businesses."

Granted entrenched ISPs fight tooth and nail against upgrading the standard for several reasons. One, higher speed standards means having to work harder for the billions in subsidies we throw at them for networks that routinely wind up half-deployed anyway. Two, better broadband definition more clearly highlights the lack of broadband competition, especially at faster speeds. That, in turn, brings more public and policymaker attention to their regional monopolies, and the state and federal corruption that protects and enables it. All bad things if you're a largely unaccountable telecom monopoly.

Former FCC boss and industry BFF Ajit Pai refused to upgrade the FCC's broadband definition during his term, something current interim FCC boss Jessica Rosenworcel said "confounds logic." But if your over-arching policy goal is to protect AT&T, Verizon, and Comcast revenues from any threat to the status quo, it's perfectly logical. Rosenworcel will now need to update the definition on her watch, something she can't do (thanks to partisan gridlock) until the Biden administration gets around to finally staffing the FCC (which it appears in no rush to actually do).

Filed Under: broadband, definitions, fcc, gao

AT&T Fights Against New Broadband Definitions, Insists 10 Mbps Upstream Is Good Enough

from the less-is-more dept

In early March, Senators pushed the Biden FCC to update our fairly pathetic definition of broadband, which is currently anything 25 Mbps downstream, 3 Mbps upstream. The Senators proposed something closer to 100 Mbps in both directions, a definition mirrored in a new broadband bill recently introduced in the House.

As they've done every single time anybody has tried to improve the US definition of broadband, ISPs have started to fight back against any changes. After all, when you increase the definition of broadband, you only further advertise the fact that monopolization has resulted in spotty coverage and slow broadband speeds across most of US. As a result there's virtually no real competition at speeds of 100 Mbps or above in the United States.

Enter AT&T, which, in a blog post last week, argued both against subsidizing ultra-fast fiber deployments across the US, while also trying to argue that 10 Mbps upload speeds are good enough for Americans:

"[T]here would be significant additional cost to deploy fiber to virtually every home and small business in the country, when at present there is no compelling evidence that those expenditures are justified over the service quality of a 50/10 or 100/20Mbps product."

For context, AT&T has a long, long, history of taking taxpayer subsidies and massive tax breaks for fiber networks it then fails to deliver. It also has a very long history of skimping on network upgrades and repairs, which is why only 14.93 million of the 52.97 million households in AT&T's 21-state wireline service have access to actual, full fiber broadband. It's also why the company is continually under fire for letting its taxpayer subsidized DSL networks simply fall apart.

In its blog post, AT&T also takes some time to complain about "overbuilding," which is the industry's fancy term for a little something called "competition":

"Second, as noted above, adopting a symmetrical standard could result in overbuilding existing services today, including existing asymmetrical services that are currently meeting modern connectivity needs. My home internet connection delivers service at 300 Mbps down but only 20 Mbps up, yet it is a service that has supported my household reliably throughout the last year. Overbuilding such solutions would needlessly devalue private investment and waste broadband-directed dollars."

AT&T's rhetorical flourishes aside, the company is only really worried about two things here. One being a higher broadband standard that highlights how the company (in fact much of the industry) has skimped on upgrades despite billions in subsidies, tax breaks, and regulatory favors. The other is a subsidization process that holds bidders to a higher speed standard, something that might just result in more smaller companies providing AT&T with competition in many of its markets. AT&T can't just come out and say this, so instead you get clever blog posts that attempt to obfuscate the company's real motivations.

As Ars Technica notes, this is all fairly well-tread territory. When the FCC raised the definition of broadband from 4 Mbps downstream, 1 Mbps upstream -- to 25 Mbps downstream, 3 Mbps upstream back in 2015, we saw much of the same consternation from industry and loyal lawmakers. Less discussed by Congress (or the press) is the fact that if America ever bothered to audit the billions in subsidies, tax breaks, and regulatory favors thrown at industry, they'd find that Americans likely have already paid for fiber to every home in America several times over.

Filed Under: broadband, definitions, fcc
Companies: at&t

Senators Push FCC To Finally Update Our Pathetic Definition Of Broadband

from the do-not-pass-go,-do-not-collect-$200 dept

To be clear, the US has always had a fairly pathetic definition of "broadband." Originally defined as anything over 200 kbps in either direction, the definition was updated in 2010 to a pathetic 4 Mbps down, 1 Mbps up. It was updated again in 2015 by the Wheeler FCC to a better, but still arguably pathetic 25 Mbps downstream, 3 Mbps upstream. As we noted then, the broadband industry whined incessantly about having any higher standards, as it would only further highlight the vast impact of monopolization.

Unfortunately for them, last week, a bipartisan coalition of Senators wrote the Biden administration, urging it to adopt a more aggressive broadband definition. How aggressive? 100 Mbps in both directions:

"For years, we have seen billions in taxpayer dollars subsidize network deployments that are outdated as soon as they are complete, lacking in capacity and failing to replace inadequate broadband infrastructure. We need a new approach. "

Granted if the telecom industry hated 25 Mbps down, 3 Mbps up, they'll positively despise a new symmetrical 100 Mbps benchmark. In large part because if we implemented it, FCC data suggests that only around 43 percent of Americans have access to at least one provider (aka a monopoly) capable of doling out those speeds. In rural markets that number falls to around 23 percent. The Senators were quick to note that these tallies are probably notably worse given the FCC's historically dodgy broadband mapping data:

"Unfortunately, the FCC data continually overestimates broadband connectivity due to outdated mapping and poor data collection methods. We now have multiple definitions across federal agencies for what constitutes an area as served with broadband, resulting in a patchwork without one consistent standard for broadband."

While the FCC defines broadband at 25/3, the USDA, which helps dole out rural broadband subsidies, defines it a 10 Mbps downstream, 1 Mbps up. As a result, we've thrown billions of dollars in taxpayer subsidies at companies that do the bare minimum. Or, upgrades they would have deployed anyway. So yes, it makes perfect sense to set the bar a little higher than at ankle height. Especially given that the US continues to rank somewhere around "mediocre" in every major broadband metric that matters (including price).

The problem for the broadband industry is that were America to adopt 100/100 as a standard, 187 million Americans wouldn't technically have access to broadband. That would only pour fuel on the conversation asking why not. That's the very last thing a heavily monopolized industry wants. US phone providers have spent years refusing to upgrade or repair aging DSL lines, something this new standard would shine a bright spotlight on. Even the US cable industry, which tends to offer faster downstream speeds, is so embarrassed by its upstream offerings it tries to hide them in company advertising.

I tend to think folks are asking for a symmetrical 100 Mbps hoping to settle on symmetrical 50 Mbps, or 50/25 Mbps, as a compromise. Either way, you can probably expect a tough fight by industry. Wimpy definitions, hand in hand with the FCC's crappy broadband availability and pricing data, helps obscure the impact of monopolization and limited competition. And changing it would threaten the subsidy gravy train. So expect ample consternation and hand wringing by major ISPs and their allies about how actually having tough standards (for once) is diabolical extremism of the very worst sort.

Filed Under: broadband, congress, definitions, fcc

NY State Legislators Unanimously Pass A Cyberbullying Bill That Can't Be Bothered To Define Cyberbullying [Update]

from the passed-without-an-ounce-of-credibility-or-sincerity dept

Update: Eugene Volokh points out (via email) that there is a definition of cyberbullying on the books in New York state. The bill does not reference it, however. This bill appends Section 12a to Section 12, which is part of the state's consolidated education law. Section 12 says "no student will be subjected to harassment or bullying by employees or students on school property or at a school function." There's still no definition here of bullying or cyberbullying, nor is there anything pointing to the state's definition of these terms. To find a definition, readers must look to Section 11 (again, not mentioned anywhere in the new bill), which is another part of the state's education laws. This is how that section defines cyberbullying:

“Harassment” and “bullying” shall mean the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that (a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being;  or (b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety;  or (c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student;  or (d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.  Acts of harassment and bullying shall include, but not be limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.  For the purposes of this definition the term “threats, intimidation or abuse” shall include verbal and non-verbal actions.

This definition helps, but it's still an unconstitutional proposal. What might have been limited to acts on school property or those resulting in disruption is now being spread to cover the act (as defined here) anywhere it takes place. Criminalizing the act takes it a step further than it should be taken, and in doing so, infringes on protected speech. Volokh's post give several examples of protected speech that would be considered a criminal act if the law goes into effect. Here are just a couple of them:

[3.] A popular local blogger harshly condemns an under-18-year-old accused of crime, calling him a thug or other words that are viewed as "verbal abuse." The blogger knows that opinion among high schoolers about the accused criminal is sharply divided (perhaps on ethnic, racial, or religious lines), with some people stridently defending him and others condemning him. The article is foreseeably read on school property, as students pull it up on their phones or computers. The article also foreseeably leads some students to again condemning the accused criminal, and others to defend it; foreseeably, a fight breaks out, or threatens to break out, which means the article "foreseeably create[d] a risk of substantial disruption within the school environment." The blogger is a criminal.

[4.] An under-18-year-old high school student becomes a nationally known activist, for instance for gun control or transgender rights or some such. People repeatedly mock his arguments online, and condemn his as an idiot, which a prosecutor thinks is "verbal abuse" and "would reasonably be expected to cause ... emotional harm" to him. The people can be prosecuted, and will be convicted if the jury agrees with the prosecutor.

Tl;dr: I screwed up. It is defined elsewhere in the state's statutes. Unfortunately, there's no acknowledgment of that fact in the bill's wording. It simply assumes everyone knows what cyberbullying is and what is covered under that definition. I can assure you many of those voting for the bill are likely unaware of how much protected speech this bill targets.

---

New York state legislators are back at it, attempting to tackle cyberbullying with a "new" law. In reality, this would be the legislature's fifth attempt to enact an anti-cyberbullying law. New York attorney Eric Turkewitz was the first to catch the New York's Senate's self-congratulatory tweet. The tweet touted the bill's unanimous passage (a 56-0 vote). But "widespread support" isn't synonymous with "well-crafted law." No state senator wants to appear "soft" on bullying, so the law passes without anyone bothering to ascertain its effectiveness, much less its constitutionality.

For an anti-bullying law to survive a constitutional challenge, it must be exceedingly well-crafted and narrowly-defined. This bill -- with 56-0 support -- has none of that. From Turkewitz's post on the bill:

Just one teensy little problem seems to have escaped the drafters, however. This “cyber-bullying” that they wish to make a misdemeanor has a flaw. I’m almost embarrassed to mention it, but here goes.

Cyber-bullying doesn’t seem to have a definition.

It doesn't. Once you get past the full page of preamble explaining why such a law is needed, you run into this, which defines nothing but who would be protected by the law.

S 12-A. CYBERBULLYING. 1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:

A. MINOR SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL UNDER THE AGE OF EIGHTEEN.
B. PERSON SHALL MEAN ANY NATURAL PERSON OR INDIVIDUAL.

ANY PERSON WHO KNOWINGLY ENGAGES IN A REPEATED COURSE OF CYBERBULLYING OF A MINOR SHALL BE GUILTY OF AN UNCLASSIFIED MISDEMEANOR PUNISHABLE BY A FINE OF NOT MORE THAN ONE THOUSAND DOLLARS, OR BY A PERIOD OF IMPRISONMENT NOT TO EXCEED ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT.

This act shall take effect immediately.

Up to one year in prison based on a definition apparently to be determined post-arrest by prosecutors or presiding judges. And, apparently, cyberbullying ends once the victim turns 18, so there's no need to extend this dubious protection to adults.

State lawmakers should know better. First, they should know laws attempting to regulate speech must be particular and explicit in their definitions of the prohibited speech. Second, the justification for regulating speech must clearly and heavily outweigh the negative repercussions of the government's act of censorship. All this law has is a statement saying schools are powerless to stop cyberbullying that occurs off campus. That's not nearly enough justification to start handing out misdemeanor charges to mean people.

There have been better-defined bills passed in the state of New York. The county of Albany actually took the trouble to define the terms central to the law.

1. "any act of communicating … by mechanical or electronic means,”

2. “including posting statements on the internet or through a computer or email network,”

- “disseminating embarrassing or sexually explicit photographs;”

- “disseminating private, personal, false or sexual information,”

- “or sending hate mail,”

3. ”with no legitimate private, personal, or public purpose,”

4. “with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

This definition is 73 words longer than the state senate's definition of "cyberbullying" and it still couldn't beat a Constitutional challenge. The state's highest court shut down enforcement of the law, noting that its definitions would "criminalize a broad spectrum of speech outside the popular understanding of cyberbullying."

On its fifth attempt to push through anti-cyberbullying legislation, the state senate can't even be bothered to craft a definition narrow enough to be rejected by the state's courts, much less one that would survive even the most cursory challenge.

A bill like this -- one that's seen four previous attempts -- serves one purpose. And it's got nothing to with the children we're always supposed to be thinking about. Here's Scott Greenfield's take:

[T]his law is just a cynical attempt to game the emotions of the electorate, as it has absolutely no chance of passing constitutional muster. The senators didn’t even give it a try, and as much as they may not be the sharpest knives in the legislature, even they know that you can’t criminalize cyberbullying by defining it as cyberbullying.

The proposed law is electioneering dressed up to look like empathethic legislation. It's multiple campaign efforts being funded by taxpayers who not only pay the salaries of legislators who can't be bothered to do their job properly, but will also be on the hook for legal fees if the bill becomes law and has to be defended in court. When one of these partners in unanimous useless ask for donations during the next election run, point to bullshit like this and tell them you gave at the office.

Filed Under: cyberbullying, definitions, new york

FCC Prepares To Weaken Broadband's Definition To Hide Competitive, Coverage Issues

from the not-particularly-subtle dept

Under Section 706 of the Telecommunications Act, the FCC is required to consistently measure whether broadband is being deployed to all Americans uniformly and "in a reasonable and timely fashion." If the FCC finds that broadband industry is failing at this task (you may have noticed that it is), the agency is required by law to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment" and by "promoting competition in the telecommunications market."

Of course given that the telecom sector is often the poster child for regulatory capture, this mandate often gets intentionally lost in the weeds. This is usually accomplished by simply pretending the lack of competition doesn't exist. Or worse, by meddling with broadband deployment metrics until the numbers show something decidedly different from the reality on the ground. It's a major reason why broadband ISPs (and the lawmakers who love them) whine incessantly every time we try to update the definition of broadband to a more reasonable and modern metric.

As such, we engage in this endless tug of war depending on how grossly-beholden the current FCC regulators are to regional telecom duopolies. Regulators not blindly loyal to giant ISPs will usually try to raise the bar to match modern needs, as Tom Wheeler did when he bumped the standard definition of broadband to 25 Mbps down, 4 Mbps up back in 2015. Revolving door regulators in turn do everything in their power to manipulate or ignore real world data so that the industry's problems magically disappear.

Case in point: the FCC is expected to vote in February on a new proposal that would dramatically weaken the standard definition of broadband. Under the current rules, you're not technically getting "broadband" if your connection in slower than 25 Mbps down, 4 Mbps up. Under Pai's new proposal, your address would be considered "served" and competitive if a wireless provider is capable of offering 10 Mbps down, 1 Mbps up to your area. While many people technically can get wireless at these speeds, rural availability and geography make true coverage highly inconsistent.

The original notice of inquiry (pdf) proposed by the FCC tries to frame this manipulation of the data as a matter of efficiency, asking:

"Given that Americans use both fixed and mobile broadband technologies, we seek comment on whether we should evaluate the deployment of fixed and mobile broadband as separate and distinct ways to achieve advanced telecommunications capability. Taking into account the differences between the various services and the geographic, economic, and population diversity of our nation, we seek comment on focusing this Section 706 Inquiry on whether some form of advanced telecommunications capability, be it fixed or mobile, is being deployed to all Americans in a reasonable and timely fashion. Would such an inquiry best follow the statutory instruction to evaluate the deployment of advanced telecommunications capability "without regard to any transmission media or technology?"

And while that's designed to sound reasonable on its surface, industry analysts like Doug Dawson have quickly pointed out that there's all manner of issues with this effort. One, wireless simply isn't equivalent to a fixed-line connection and may not be for a decade or more in many rural markets, where users not only pay an arm and a leg for capped and metered service, but are often kicked off the network for using these connections like traditional, unlimited fixed-line connections. Folks who believe wireless to be some magical competitive panacea often like to ignore usage caps and higher prices of cellular:

"There is a monstrous difference in price between landline and cellular data. A household using 100 gigabytes of cellular data in the month might pay nearly $1,000 per month. Most ISPs report that the average US household now uses between 150 and 200 gigabytes of broadband per month. It’s hard to think of cellular broadband as a substitute for landline broadband with such disparate pricing."

Folks that think wireless competition will come and save us all also like to ignore the fact that just two carriers hold a monopoly over business data services and backhaul connections that feed towers, something Ajit Pai's FCC also recently tried to downplay when they redefined what constitutes competition in that segment as well. Again, the goal here isn't efficiency, it's illusion:

"The major reason that counting cellular data as equivalent to landline data is that it’s going to largely take the FCC off the hook for promoting broadband. They currently have directed billions from the Universal Service Fund to help build faster broadband networks, mostly in rural America. They can discontinue such programs and not expand their effort if most of rural America is considered to have broadband. With a simple vote a large percentage of rural homes on the wrong side of the digital divide will suddenly have broadband. That’s going to be big news to rural people who already understand that cellular broadband is not really broadband."

Again, it's so much easier to justify your apathy to a problem (in this case, broadband coverage and pricing problems caused by market failure and a lack of competition) when you manipulate the data to suggest the problem somehow doesn't exist.

Filed Under: ajit pai, competition, definitions, fcc, speed

Elsevier Launching Rival To Wikipedia By Extracting Scientific Definitions Automatically From Authors' Texts

from the don't-do-as-we-do,-do-as-we-say dept

Elsevier is at it again. It has launched a new (free) service that is likely to undermine open access alternatives by providing Wikipedia-like definitions generated automatically from texts it publishes. As an article on the Times Higher Education site explains, the aim is to stop users of the publishing giant's ScienceDirect platform from leaving Elsevier's walled garden and visiting sites like Wikipedia in order to look up definitions of key terms:

Elsevier is hoping to keep researchers on its platform with the launch of a free layer of content called ScienceDirect Topics, offering an initial 80,000 pages of material relating to the life sciences, biomedical sciences and neuroscience. Each offers a quick definition of a key term or topic, details of related terms and relevant excerpts from Elsevier books.

Significantly, this content is not written to order but is extracted from Elsevier's books, in a process that Sumita Singh, managing director of Elsevier Reference Solutions, described as "completely automated, algorithmically generated and machine-learning based".

It's typical of Elsevier's unbridled ambition that instead of supporting a digital commons like Wikipedia, it wants to compete with it by creating its own redundant versions of the same information, which are proprietary. Even worse, it is drawing that information from books written by academics who have given Elsevier a license -- perhaps unwittingly -- that allows it to do that. The fact that a commercial outfit mines what are often publicly-funded texts in this way is deeply hypocritical, since Elsevier's own policy on text and data mining forbids other companies from doing the same. It's another example of how Elsevier uses its near-monopolistic stranglehold over academic publishing for further competitive advantage. Maybe it's time anti-trust authorities around the world took a look at what is going on here.

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Filed Under: definitions, knowledge, open access
Companies: elsevier

Senators Blast The FCC For Weakening The Definition Of Broadband To Try And Hide The Industry's Lack Of Real Competition

from the set-the-bar-at-ankle-height dept

Back in 2015, the FCC raised the standard definition of broadband from 4 Mbps down, 1 Mbps up, to an arguably-more-modern 25 Mbps down, 3 Mbps up. Of course the uncompetitive broadband industry (and the lawmakers who adore them) subsequently threw a collective hissy fit about the change, because they realized a higher bar would only highlight their failure to deliver next-generation broadband to vast swaths of America.

And highlight it did: by this new metric, two-thirds of the country lack access to real broadband from more than one ISP. We've explored repeatedly how this is due to a refusal by the nation's telcos to upgrade lagging DSL connections, leaving cable companies with a growing broadband monopoly across huge swaths of the country. With this reduction in competition comes a growing apathy to customer service, as well as the ability to impose new unnecessary and arbitrary usage caps (read: price hikes) without any competitive reaction by the broken market.

Normally, this is where regulators would step in with policies aimed at shoring up this lack of competition. Under the Telecommunications Act, the FCC is required by law to track broadband deployment and competition and -- if things aren't up to snuff -- "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." But if you fiddle with how precisely broadband penetration and competition is measured, you can avoid having to admit there's a problem, or do anything about it.

With industry-ally Ajit Pai now in charge of the FCC, the telecom industry has been lobbying to weaken the standard definition of broadband to help mask the sector's shortcomings. As if on demand, a new FCC proposal would lower the definition of broadband by declaring a region covered if it has access to wireless data connections at speeds of 10 Mbps. The goal: lower the goalposts for the express benefit of lazy telecom duopolies. Duopolies that talk a good game about "closing the digital divide," but refuse to upgrade huge swaths of their networks (espcially the parts where disadvantaged and poor people live) -- and lobby for protectionist state laws ensuring nobody else can, either.

Of course the FCC isn't framing their decision as the industry-coddling myopia it is, instead declaring this a "modernization" of FCC policy, in some instances fooling media outlets into thinking this is about "reclassying wireless broadband" for some ambiguously noble policy purpose. But a handful of Senators this week criticized the FCC's new plan, highlighting (correctly) how lowering the broadband deployment bar to ankle height is a disservice to those waiting for, or trying to deploy, better broadband:

"At this time, such a striking change in policy would significantly and disproportionately disadvantage Americans in rural, tribal, and low-income communities across the nation, whose livelihoods depend on a reliable and affordable broadband connection... In reading this notice of inquiry, it appears that the FCC, by declaring mobile service of 10Mbps download/1Mbps upload speeds sufficient, could conclude that Americans' broadband needs are being met—when in fact they are not. By redefining what it means to have access, the FCC could abandon further efforts to connect Americans, as under this definition, its statutory requirement would be fulfilled."

AT&T, Verizon and the current FCC will tell you that mobile broadband is a perfect substitution for quality fixed-line broadband. And while that might be true by 2030 or so, that's certainly not the case now. Wireless networks certainly can offer comparable speeds to lower-end fixed-line connections, but traditionally at much higher prices -- and often with notable restrictions on usage (more so with the looming death of net neutrality). So these Senators are also right in highlighting how wireless is far from being a suitable-replacement for fixed-line connectivity:

"We believe that mobile broadband service cannot adequately support the same functions as does fixed service currently and, therefore, cannot be a substitute at this time. A small business owner who wants to begin a new venture today would not be adequately supported by mobile-only service. Should the decision to change current policy be made with the technology currently available, it would signal a strong departure from the Commission's mission, while also implying that certain consumers must accept lower-quality connectivity."

Unfortunately, like net neutrality, the quest to erode basic deployment standards will somehow be framed as a "partisan" debate, causing many to lose the plot. And pandering to the Comcast status quo will be framed as some sort of heroic pledge to phony free market ideals none of the regulators or companies backing this effort actually believe in. But lowering the bar to obfuscate the fact U.S. broadband is an uncompetitive market rife with regulatory capture (especially on the state level) isn't some panacea, it's the kind of weak-kneed regulatory apathy that gave us the customer-service abomination we call Comcast in the first place.

Filed Under: ajit pai, broadband, competition, congress, definitions, fcc

FCC Begins Weakening The Definition Of Quality Broadband Deployment To Aid Lazy, Uncompetitive ISPs

from the It's-not-a-problem-if-we-say-so dept

You may be shocked to learn this, but like most U.S. regulatory agencies, the FCC's top Commissioner spots are occassionally staffed by individuals that spend a bit too much time focused on protecting the interests of giant, incumbent, legacy companies (usually before they move on to think tanks, consultant gigs, or law firm policy work financed and steered by those same companies). In the telecom market these folks usually share some fairly consistent, telltale characteristics. One, they're usually comically incapable of admitting that there's a lack of competition in the broadband market.

Two, they go to great, sophisticated lengths -- usually via the help of economists hired for this precise purpose -- to obfuscate, modify, and twist data until it shows that broadband competition is everywhere and the market is functioning perfectly. After all, if the data shows that there's no longer a problem -- you can justify your complete and total apathy toward doing anything about it.

We've seen this cycle play out time and time again, and it's a major reason most of us have shitty broadband. Under former FCC boss Michael Powell (now shockingly the head lobbyist for the entire cable industry), the FCC repeatedly proclaimed that the broadband industry was so competitive, we didn't need rules, regulations, or consumer protections governing their behavior. And when anyone provided evidence that existing providers like Comcast were little more than walking shitshows, Powell would consistently insist that these complaints were utterly hallucinated.

This sort of behavior continued for a while under Obama-era FCC boss Julius Genachowski. But his successor, Tom Wheeler shocked a few people by actually acknowledging the industry wasn't competitive. Wheeler went so far as to raise the base definition of broadband to a more modern 25 Mbps, a decision the industry whined incessantly over. Why? By raising the bar, Wheeler was able to highlight how two-thirds of the country only have the choice of one broadband provider at current generation speeds.

But with Ajit Pai now in charge at the FCC, we've once again returned to the regulatory policy of burying your head firmly in the sand to the express benefit of Comcast, AT&T and Verizon. In addition to Pai's frontal assault on net neutrality, erosion of broadband programs for the poor, protection of prison phone monopolies, derailing of consumer broadband privacy standards and his protection of the cable industry's set top box monopoly , Pai has begun taking steps to lower the bar when it comes to determining whether or not the country is being adequately connected.

Under the Telecommunications Act, the FCC is required by law to track broadband deployment and competition and -- if things aren't up to snuff -- the agency is mandated to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." But if you fiddle with how precisely broadband penetration and competition is measured, you can avoid having to do, you know, work to improve things. Enter Ajit Pai, whose agency this week quietly began fiddling with these determinations to the benefit of industry:

"But with Republican Ajit Pai now in charge, the FCC seems poised to change that policy by declaring that mobile broadband with speeds of 10Mbps downstream and 1Mbps upstream is all one needs. In doing so, the FCC could conclude that broadband is already being deployed to all Americans in a reasonable and timely fashion, and thus the commission could take fewer steps to promote deployment and competition.

Of course determining that an area has healthy and competitive broadband if a wireless provider can offer 10 Mbps is a major gift to incumbent ISPs. AT&T and Verizon have been working tirelessly to gut rules requiring they continue to provide cheaper, more reliable fixed-line broadband to rural areas and many less affluent cities, while also wiggling out of fiber upgrade obligations in countless markets. But wireless connections are significantly more expensive and less reliable, and in many smaller and more rural cities won't be a suitable fixed line replacement for a decade or more.

And while AT&T and Verizon's own data will insist that they provide 10 Mbps wireless to pretty much everywhere already, if you've ever driven across the nation with work to do you can probably attest to the fact this uniform coverage isn't real. And because the FCC is more concerned about pleasing incumbent broadband providers than actually beefing up competition for consumers, they're not going to be running out anytime soon to do field tests and fact check wireless carrier data proclaiming 10 Mbps is sprouting up everywhere like weeds.

No, the FCC's goal here is to technically lower the standard definition of quality broadband from 25 Mbps down, 4 Mbps to, to 10 Mbps down, 1 Mbps up. By doing this, Pai and friends can simply declare the broadband industry ultra-competitive, justifying their failure to actually do anything about the obvious fact that's simply not true. Of course it's not being explained that way in the agency's related notice of inquiry (pdf), the proposal couched under the pretense that we're simply modernizing the way the FCC operates -- or imposing new baseline wireless standards.

If you haven't carefully watched these ISPs and revolving regulators work tirelessly at protecting their uncompetitive empire for two decades, you might be inclined to believe that line of bullshit. But what the FCC's actually doing here is really quite simple: they're fucking with the math and lowering the bar to ankle height as a gift to the nation's lumbering, uncompetitive duopolies -- who'd like it very much if we left the existing, embarrassing status quo well enough alone.

Filed Under: ajit pai, broadband, competition, definitions, fcc

Expanding Unconstitutional Backdoor Searches Of Surveillance Data Is Easy: Just Change What Words Mean

from the some-language-tricks-and-funny-games dept

I already wrote a post about how the FISA Court rejected the arguments of the public advocate that it appointed to review the legality and constitutionality of the infamous backdoor searches. However, I wanted to put up a second post as well, digging a little deeper into what the ruling itself means, rather than just focusing on the public advocate part of it. Because it's pretty scary. We already knew that, once that data was collected under the Section 702 PRISM program, the NSA opened it up to both the CIA and FBI to search on for other purposes.

However, as Elizabeth Goitein explains over at Just Security, even then there were some limitations:

 The Justice Department, having worked Section 702 into the foreign intelligence exception by certifying that the government’s targets were not Americans and that the surveillance had a foreign intelligence purpose, and having met the constitutional reasonableness requirement by noting that incidentally collected information about Americans would be “minimized,” was allowing the FBI to run queries of Section 702 data to obtain information about Americans in ordinary criminal cases. Edward Snowden’s disclosures confirmed this practice, and the Privacy and Civil Liberties Oversight Board’s (PCLOB) report on Section 702 revealed that it was routine.

Many commentators (myself included) have noted that this loophole creates an end run around the warrant requirement in ordinary criminal cases. Until recently, however, there was at least one substantive limitation on the FBI’s ability to query Section 702 data. As reported by the PCLOB, the FBI’s minimization procedures provided that queries must be “reasonably designed” to “find and extract” either “foreign intelligence” or “evidence of a crime.” This was a far cry from the probable cause that would be needed to obtain a warrant, but it was something. The FBI, at least on paper, could not simply go on a fishing expedition through the warrantlessly obtained data.

But the details of this newly revealed ruling show that that limitation has gone away -- basically because the FBI changed its own minimization procedures in part to pretend English words don't mean what they really mean. In the past, the NSA has reinterpreted many English words to mean things different than their plain English meaning. In this case, the FBI has decided to redefine the word "query":

Displaying the intelligence community’s penchant for defining well-understood terms to mean something entirely different, the FBI’s most recent minimization procedures, in the FISC’s words, “clarify that a search of an FBI storage system containing raw-FISA acquired information does not constitute a ‘query’ within the meaning of the procedures if the user conducting the search does not receive access to unminimized Section 702-acquired information in response to the search.” This includes instances in which the search does return unminimized Section 702-acquired information, and the agent is notified of that fact but is not authorized to access the data. Because such searches are deemed not to constitute “queries,” they presumably are not subject to the requirement that “queries” must be reasonably designed to return foreign intelligence or evidence of a crime.

The new procedures also “clarify” what happens if an agent performs a search that returns Section 702 information the agent is not authorized to access. In such cases, an agent who is authorized to access the information may re-run the search and determine whether the information “reasonably appears . . . to be foreign intelligence information, to be necessary to understand foreign intelligence information, or to be evidence of a crime.” If so, the information is passed along to the original agent.

This “clean team” approach is no substitute for a limitation on the initial search. It is analogous to claiming that searches of homes are not “searches,” and thus do not require warrants, if the agents performing the search find nothing – or if an elite team steps in to perform the search and can turn over what it finds to prosecutors only if it is evidence of a crime. Previously, the procedures did not allow fishing expeditions; now they do, and it seems somewhat beside the point that the fisherman only gets to keep the fish if he catches one.

Got that? A query is no longer a query and the FBI has much broader authority to do backdoor searches than was previously known. As the EFF notes in response to this, this seems to fly in the face of legal precedent and the Constitution:

This is a constitutional problem. Quite apart from the bait and switch opportunities it creates for the FBI, it's like saying it's OK for school officials to set up a drug testing program for non-law enforcement purposes, and then once it’s set up, they can completely abandon that purpose and start testing students to simply to put them in jail. Or that the government can set up a program to test pregnant women for drugs with a goal to get them into treatment, but also hand the information over to the police and use the threat of prosecution as additional leverage.

The Supreme Court rejected the latter scenario as unconstitutional in Ferguson v. City of Charleston in 2001. Other Supreme Court cases make clear that even holistic, programmatic assessments of Fourth Amendment "reasonableness"—like the one the FISC engages in here—must take into account the invasiveness of these programs. Searching vast databases containing the full content of emails and every website visited by nonsuspect Americans without a warrant is about as invasive as it gets.

And it's not just the FBI that gets much broader access to these backdoor searches. Marcy Wheeler points out that the decision reveals that the NSA and CIA basically wrote themselves a note last summer saying that they no longer needed to follow minimization procedures... and the judge is cool with that. Here's the paragraph in the ruling:

The NSA and CIA Minimization Procedures included as part of the July 15, 2015 Submission each contain new language stating that “[n]othing in these procedures shall prohibit the retention, processing, or dissemination of information reasonably necessary to comply with specific constitutional, judicial, or legislative mandates.” See NSA Minimization Procedures at 1; CIA Minimization Procedures at 4-5. These provisions were not included in the draft procedures that were submitted to the Court in June 2015, but appear to have been added by the government thereafter. They are not discussed in the July 15, 2015 Memorandum.

As Wheeler notes, this is just the NSA and CIA deciding unilaterally that they can ignore minimization. The judge even pointed out that this move "could undermine the Court's ability to find the procedures satisfy the above-described statutory requirement." However, the judge, Thomas Hogan, then decides that this is kind of okay because government lawyers told him informally (yes, really!) that they don't intend to abuse this very much:

The Court understands based on informal communications between Court staff and attorneys for the government that NSA and CIA intend to apply the similar provisions at issue here in the same narrow manner.

Wheeler has a lot more on this particular part of the ruling and how troubling it is. But, in short, it has also broadened the ability of the government to snoop through these massive troves of data. The reliance on informal promises not to take it too far mean very little. As former NSA and CIA director Michael Hayden has said, his job was to push up as close to the boundaries of what was legal as possible. Once Congress or the courts told him what was legal (or, in some cases, the President unilaterally), he would make use of that. Why would that not be the case here? Or, as Wheeler explains more vividly:

I’m not sure how that’ll be effective when President Trump decides he can pass an Executive Order requiring NSA to keep all the US person data it collects but not tell FISC about it, because the order they report on this to him is part of the minimization procedures they say they can blow off.

And, of course, none of this can be appealed, because even though there are the arguments from the public advocate (which didn't include this last part about ignoring minimization), only the government itself can appeal a ruling, and they got everything they wanted here (and possibly more).

The only actual way to fix it at this point is for Congress to step in and rewrite the law, but the chances of that happening appear to be slim to none.

Filed Under: 4th amendment, backdoor search, backdoor searches, cia, definitions, fbi, fisa court, fisc, law enforcement, mass surveillance, nsa, prism, query, section 702