Dr. Shawn Powers Speaking on The Real Cyber War: A Political Economy of Internet Freedom

LECTURE

September 18 @12:30 in Faculty Lounge

4th Floor, Rutgers University Law School

217 N. 5th Street, Camden, NJ

This TALK explores several cases in which governments have tried to control domestic information flows for political advantage.   China, Egypt, Denmark and the United States each implement control—through law, technology, subsidy and force—over domestic Internet space.  Using different methods and understandings of “control,” each seeks to maintain sovereignty over information flows.  Publics within these states increasingly view multifaceted efforts at information control as legitimate.  This talk will focus on the meaning of, and movement towards, information sovereignty.

Shawn Powers is an assistant professor in the Department of Communication at Georgia State University. His research specializes in international political communication with particular attention to the geopolitics of information and technology policy. Dr. Powers is a faculty affiliate of GSU’s Transcultural Violence and Conflict initiative and co-leads its British Council and U.S. Institute of Peace funded project on Civic Approaches to Religious Conflict. He is also an associate director at the Center for International Media Education and serves on the Board of Advisors for the U.S. Advisory Commission on Public Diplomacy.

 

 

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Digital is Different SCOTUS Says When it Comes to Constitutional Privacy Protections

Continuing and strengthening a trend in U.S. privacy law, the Supreme Court decided on June 25 that the constitutional prohibition on unreasonable searches and seizures (Fourth Amendment) requires police to get a warrant before searching a mobile phone incident to arrest.    Two years ago, in United States v. Jones, another unanimous Court decided that law enforcement needed a warrant to place a GPS device on a suspect’s car.  But that was because there was a physical intrusion.  Here, in Riley v. California, the Court fully confronts for the first time the constitutional meaning of digital data capture.  The question was whether theright of law enforcement “always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime” extends to searches of mobile phones.

The Court concluded unanimously that government could not justify the warrantless search of mobile phones (and presumably other electronic devices with similar functions) on either of the traditional grounds: (1) the interest in seizing weapons or the fruits or evidence of a crime, or (2) the minimal additional intrusion on a suspect already in custody.  Neither rationale holds up as reasonable in light of the quantity and quality of information that mobile phones contain.

What does a 225 year old Constitution say about digital privacy expectations?  Chief Justice Roberts seeks the answer in Colonial Americans’ revulsion against the “general warrants … which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”  The question then becomes whether the search of an electronic device found in a pocket is more like the ransacking of a house or the pat-down of a person.  After surveying the capabilities of a smartphone, including location tracking, records of Internet browsing history, cloud computing, photographs, video, and apps, the Court sharply distinguishes mobile phones from other physical objects.  They are as alike as “a ride on horseback” is to “a flight to the moon.” The rest of the decision grapples for the right analogies, and concludes that:

  • Mobile phones are not like wallets.  The records they contain differ in terms of variety (mobile phone records “reveal much more in combination than any isolated record”), type (a single record may “convey far more than previously possible”), and provenance (“data on a phone can date back to the purchase of the phone, or even earlier”).
  • Mobile phones are as sacrosanct as the home.  Justice Holmes once said that it was “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” Chief Justice Roberts observes that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”

Of course the question on everyone’s mind is what this decision means for the legality of NSA warrantless data mining.  Although it’s not controlling, the sensitivity to digital privacy issues revealed in this decision – reflecting the views of all nine justices – has to make the NSA worry.  Interestingly, in a very brief passage, the Riley Court rejects the government’s argument that at least law enforcement should be able to search a phone’s call log information.  This is also known as “metadata” of the kind that the NSA has culled, and which at least one lower court has held is entitled to Constitutional protection.  Without discussing it, the Court seemed sympathetic, noting that this type of metadata can be very revealing and cannot be categorically distinguished from other data.

In what may be another precursor to some future consideration of NSA activities, the Court addressed the government’s worries about officer safety should the phone communicate with criminal confederates or evidence tampering should the phone be wiped remotely.  Often, these are the kinds of security concerns that trump privacy interests.  But here, the Court insisted on a bright line rule as a general matter:  get a warrant.  Exceptions in exigent circumstances will be allowed on a case-by-case basis.

The Riley case has implications not only for privacy, but also for free speech.  Notably, the New York Times and other media organizations filed an amicus brief in this case, arguing that searches and seizures of mobile phones incident to arrest is bad for journalism.  The brief provides many examples of journalists arrested in the course of covering protests and police actions whose mobile phones were confiscated, searched, and sometimes returned with data missing.  The nexus between Fourth Amendment privacy protections and First Amendment speech protections is frequently visible, and in this case, it is especially clear.  Another unknown – and something to watch – is how this decision impacts the search and seizure of electronic devices at the borders, especially when in the hands of journalists.

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The FCC Hasn’t Really Shifted on Open Internet; Net Neutrality Was Never the Law

Reaction to the FCC’s announcement yesterday that it was circulating new open Internet rules blazed, with many claiming that the FCC had dramatically shifted course and was set to kill net neutrality.  The truth is that the FCC never endorsed the strongest versions of net neutrality and has hardly budged.  The agency’s tentative plans don’t increase the distance between the idealized egalitarian net and the reality of a pay-to-play distribution system — they just expose the reality that the distance has been growing. 

To the extent that we’ve had a neutral network, with ISPs transmitting all content on equal terms, it has not been legally required.  Look at the Comcast-Netflix deal for preferential interconnection.  This “peering” arrangement whereby Netflix pays more to ensure fast delivery of its content was never even covered by open Internet rules, much less forbidden.

Net neutrality proponents accuse the FCC of walking away from its 2010 Open Internet rules that the D.C. Circuit partially vacated in Verizon v. FCC earlier this year.  In fact, these rules equivocated on the practices that the FCC now wants to permit:  “commercially reasonable” payments from content providers to ISPs for preferential delivery.  The Open Internet Order said this practice of paid prioritization “would raise significant cause for concern,” but it ultimately reserved judgment.  Of course the nondiscrimination rules did not reach mobile and we have seen a number of paid prioritization deals in the mobile space, such as AT&T’s sponsored data program and the privileging of Google and Facebook on some mobile plans.

Without reclassification of internet transmission as a Title II telecommunications service, the FCC was never going to forbid deals that improved content delivery (and even under Title II, tiered pricing is not always “unreasonable discrimination.)”  Where “best efforts” delivery is not good enough (often because the network is under-built), it’s hard to imagine a regulator standing in the way of a better consumer experience.  The consumer benefits of course are often illusory and short-term.  Consumers may end up paying more and having access to less diverse and innovative content.  Apart from economic harms, there is harm to the potential future consumer experience foreclosed because some players never get the chance to play.  The harm is to diversity – a concept that has long bedeviled U.S. media law.   But this tradeoff between greater distant harms and smaller immediate benefits is not new.  Nor is the direction the FCC announced this week. 

The game will turn, as we always knew it would, on the meaning of “commercially reasonable” pricing practices.  About this, I’ll have more to say in another post. We know from Section 616 of the 1992 Cable Act that proving unreasonably discriminatory carriage of cable channels is extremely hard, expensive, and protracted.  If there is to be any bite in rules preventing unreasonable discrimination on broadband networks, it will be crucially important to develop a different, faster procedure that shifts the burden to the network operator.  The other thing that net neutrality advocates have to focus on, as I’ve said here and here, are various components of public broadband.  We know what highly commercialized content distribution systems look like.  Progressives have pushed back to build noncommercial alternatives.  This has to be part of the response to networks that are ever more tied to a relentlessly commercial logic.         

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First Amendment Liberties and the Right-to-Know – Commercial Disclosure Imperiled

Freedom of speech is probably Americans’ most celebrated individual liberty.  One thinks of the great First Amendment cases that have advanced press freedoms and the rights of individuals to voice unpopular opinions.   In the last month, however, we’ve seen a very different deployment of the First Amendment – a cynical use of individual freedoms to shield corporations from commercial disclosure requirements. 

Governments have long required manufacturers to disclose to consumers such things as food ingredients, health hazards, business risk, and environmental impact.  Indeed, the appeal of disclosure as the light-handed alternative to regulation is rising.  The Supreme Court itself recently endorsed campaign finance disclosure in lieu of regulation (McCutcheon v. FEC).  Yet recent cases suggest that many of these disclosure requirements will be vulnerable to constitutional challenges from the disclosing corporations.  If they win, that could mean no disclosure of genetically-modified organisms in food, no disclosure of broadband download speeds, and even no disclosure of campaign contributions. 

Here’s what’s happened.  Last year, the D.C. Circuit decided a case about graphic cigarette warnings (Reynolds Tobacco v. Food and Drug Administration).  A divided panel held that the new warnings, required by a federal statute in accordance with a World Health Organization treaty, violated the rights of tobacco companies against “compelled speech.”  The court refused to apply a Supreme Court precedent giving the government broad authority under the First Amendment to require purely factual and uncontroversial commercial disclosures (Zauderer v. Office of Disciplinary Council).  In a recent law review article, I criticized the Reynolds decision, especially for its holding that the Zauderer standard should apply only when the government was trying to combat consumer deception, and not also to other informational goals.  The “more speech is better” ethos of First Amendment law, combined with consumer “rights to know”  and the rather minimal interests of commercial speakers in avoiding disclosure, all militate towards permissive review of reasonable commercial disclosure requirements. 

Last month, the D.C. Circuit seemed to agree.  It upheld a Department of Agriculture requirement that meat products bear a label indicating country of origin (American Meat Institute v. DOA).  The producers had argued that having to disclose where an animal was raised, slaughtered, and processed violated their free speech rights if the purpose was just to provide consumers with information, rather than vanquishing deception.  The court distinguished Reynolds, finding that that case turned as much on the strength of the tobacco manufacturers’ speech interests in avoiding disclosure as on the consumer-deception rationale of Zauderer.  Given the reduced magnitude of the meat producers’ speech interests, the court held that Zauderer’s permissive standard applied. 

The winds blew in another direction this month.  On April 4, the D.C. Circuit decided on its own to review its American Meat Institute panel decision en banc.  Arguments are set for May 19.  And last week, a divided panel of the D.C. Circuit struck down a disclosure requirement on First Amendment grounds.  As part of the 2010 Dodd-Frank securities reform, Congress required issuers to disclose information about their use and sourcing of “conflict minerals” originating in the Democratic Republic of the Congo and associated with extreme violence, especially against women.  Because it’s hard to trace these materials, the rule mandated an infelicitous double-negative disclosure, obligating issuers to say whether their products had “not been found to be ‘DRC conflict free.’”  According to the court’s decision in National Association of Manufacturers v. SEC, this requirement is unconstitutional.  The court reverted back to Reynolds’ narrow reading of Zauderer and the limitation that it should apply only in cases of consumer confusion.  

It seems likely that the full D.C. Circuit will ultimately endorse the Reynolds/National Association of Manufacturers reading of the First Amendment and Zauderer’s applicability.  The First and Second Circuits have taken different approaches, setting the stage for Supreme Court review.  If the cramped reading of Zauderer holds up, many reasonable commercial disclosure requirements will be imperiled.  Manufacturers do not deceive consumers by concealing relevant information.  But there still may be a strong governmental interest in providing consumers with that information and relatively weak private interests in concealing it.  Requirements to disclose things such as the presence of GMO ingredients and the environmental impact of products would be subject to heightened review under the Reynolds approach.   Linda Greenhouse, in her New York Times commentary on the Supreme Court’s campaign finance decisions, astutely noted that the Court was leaning on disclosure requirements as the solution to the “money in politics” problem  — requirements that might well be doomed under a perverse reading of First Amendment protections.

What seems to be happening in First Amendment law reflects what is happening in America more generally – economic liberties are becoming more narrowly concentrated and displacing political liberties.  You can call this the “Lochnerization” of the First Amendment or simply the constitutional vindication of sovereign corporate power.

 

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