Other Developments, Further Reading, and Coming Events (12 May 2021)

Uncategorized 16 Minutes

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Other Developments

  • The General Court of the European Union (GCEU) ruled for Amazon and Luxembourg regarding the European Commission’s allegations the company had not paid sufficient taxes. In a summary, the GCEU overturned the European Commission’s 2017 finding that “Luxembourg granted undue tax benefits to Amazon of around €250 million…[which] is illegal under EU State aid rules because it allowed Amazon to pay substantially less tax than other businesses.”
  • The United States (U.S.) Department of the Treasury (Treasury) launched “the Coronavirus State and Local Fiscal Recovery Funds, established by the American Rescue Plan Act of 2021, to provide $350 billion in emergency funding for state, local, territorial, and Tribal governments.” Treasury issued an interim final rule to implement the program. In its press release, Treasury explained:
    • The Coronavirus State and Local Fiscal Recovery Funds provide substantial flexibility for each jurisdiction to meet local needs—including support for households, small businesses, impacted industries, essential workers, and the communities hardest-hit by the crisis. Within the categories of eligible uses listed, recipients have broad flexibility to decide how best to use this funding to meet the needs of their communities. In addition to allowing for flexible spending up to the level of their revenue loss, recipients can use funds to:
      • Support public health expenditures, by – among other uses – funding COVID-19 mitigation efforts, medical expenses, behavioral healthcare, mental health and substance misuse treatment and certain public health and safety personnel responding to the crisis;
      • Address negative economic impacts caused by the public health emergency, including by rehiring public sector workers, providing aid to households facing food, housing or other financial insecurity, offering small business assistance, and extending support for industries hardest hit by the crisis
      • Aid the communities and populations hardest hit by the crisis, supporting an equitable recovery by addressing not only the immediate harms of the pandemic, but its exacerbation of longstanding public health, economic and educational disparities
      • Provide premium pay for essential workers, offering additional support to those who have borne and will bear the greatest health risks because of their service during the pandemic; and,
      • Invest in water, sewer, and broadband infrastructure, improving access to clean drinking water, supporting vital wastewater and stormwater infrastructure, and expanding access to broadband internet. 
    • In the interim final rule, Treasury explained the broadband requirements:
      • The Interim Final Rule provides that eligible investments in broadband are those that are designed to provide services meeting adequate speeds and are provided to unserved and underserved households and businesses. Understanding that States, territories, localities, and Tribal governments have a wide range of varied broadband infrastructure needs, the Interim Final Rule provides award recipients with flexibility to identify the specific locations within their communities to be served and to otherwise design the project.
      • Under the Interim Final Rule, eligible projects are expected to be designed to deliver, upon project completion, service that reliably meets or exceeds symmetrical upload and download speeds of 100 Mbps. There may be instances in which it would not be practicable for a project to deliver such service speeds because of the geography, topography, or excessive costs associated with such a project. In these instances, the affected project would be expected to be designed to deliver, upon project completion, service that reliably meets or exceeds 100 Mbps download and between at least 20 Mbps and 100 Mbps upload speeds and be scalable to a minimum of 100 Mbps symmetrical for download and upload speeds. In setting these standards, Treasury identified speeds necessary to ensure that broadband infrastructure is sufficient to enable users to generally meet household needs, including the ability to support the simultaneous use of work, education, and health applications, and also sufficiently robust to meet increasing household demands for bandwidth. Treasury also recognizes that different communities and their members may have a broad range of internet needs and that those needs may change over time.
  • New York Attorney General Letitia James published “a report detailing the results of her office’s wide-ranging investigation into fake, public comments submitted to the Federal Communications Commission (FCC) in a 2017 proceeding to repeal net neutrality rules.” Three of the companies James and her office found responsible agreed to multimillion-dollar settlements. James stated:
    • Through its investigation, the Office of the Attorney General (OAG) found that, in 2017, the nation’s largest broadband companies funded a secret campaign to generate millions of comments to the FCC. Many of these comments provided “cover” for the FCC’s repeal of net neutrality rules. This practice — disguising an orchestrated, paid campaign as a grassroots effort, to create a false appearance of genuine, unpaid public support — is often referred to as astroturfing. To help generate these comments, the broadband industry engaged commercial lead generators that used prizes — like gift cards and sweepstakes entries — to lure consumers to their websites and join the campaign. However, nearly every lead generator that was hired to enroll consumers in the campaign, instead, simply fabricated consumers’ responses. As a result, more than 8.5 million fake comments that impersonated real people were submitted to the FCC, and more than half a million fake letters were sent to Congress.
    • The OAG also found that the FCC received another 9.3 million fake comments supporting net neutrality that used fictitious identities. Most of these comments were submitted by a single person — a 19-year old college student using automated software. In all, the OAG confirmed that nearly 18 million of the more than 22 million comments the FCC received in its 2017 proceeding to repeal net neutrality rules were fake.
    • Additionally, the OAG’s investigation revealed that the fraud perpetrated by the various lead generators infected other government proceedings as well. Three of the lead generation firms involved in the broadband industry’s net neutrality comment campaigns had also worked on more than 100 other, unrelated campaigns to influence regulatory agencies and public officials. In nearly all of these advocacy campaigns, the lead generation firms engaged in fraud. As a result, more than 1 million fake comments were generated for other rulemaking proceedings, and more than 3.5 million fake digital signatures for letters and petitions were generated for federal and state legislators and government officials across the nation.
    • Attorney General James’ report recommends several reforms to root out the deception and fraud that have infected public policymaking by agencies and legislatures, including encouraging:
      • Advocacy groups to take steps to ensure they have obtained valid consent from an individual before submitting a comment or message to the government on their behalf,
      • Agencies and legislatures that manage electronic systems that receive comments and messages to hold advocacy groups and their vendors more accountable for the comments they submit on behalf of individuals,
      • Lawmakers to strengthen laws to deter the submission of deceptive and unauthorized comments to the government, and
      • Agencies to adopt technical safeguards to protect against unauthorized bulk submissions using automation.
    • Attorney General James also, today, announced agreements with three of the lead generators that were responsible for millions of the fake comments submitted in the net neutrality proceeding: Fluent, Inc., responsible for approximately 4.8 million fraudulent comments; Opt-Intelligence, Inc., responsible for more than 250,000 fraudulent comments; and React2Media, Inc., responsible for approximately 329,000 comments in the net neutrality proceeding (all or nearly all of which were fraudulent). Fluent and React2Media were also responsible, collectively, for millions of fake comments and messages submitted in dozens of other advocacy campaigns. The agreements with the OAG require the companies to adopt comprehensive reforms in future advocacy campaigns and pay more than $4.4 million in penalties and disgorgement.
  • Senators Ed Markey (D-MA) and Bill Cassidy (R-LA) introduced the “Children and Teens’ Online Privacy Protection Act,” a bill that “updates the Children’s Online Privacy Protection Act (COPPA)” and would:
    • Build on COPPA’s consent requirements by prohibiting internet companies from collecting personal information from users who are 13 to 15 years old without the user’s consent;  
    • Ban targeted advertising (as opposed to contextual advertising) directed at children; 
    • Establish a “Digital Marketing Bill of Rights for Teens” that limits the collection of personal information of teens;
    • Revises COPPA’s “actual knowledge” standard to a “constructive knowledge” standard  so that websites that should reasonably know that kids are on their websites need to get consent in order to collect children’s data;
    • Create an “Eraser Button” for parents and kids by requiring companies to permit users to eliminate personal information from a child or teen when technologically feasible;
    • Establish a Youth Marketing and Privacy Division at the Federal Trade Commission (FTC);
    • Require online companies to explain the types of personal information collected, how that information is used and disclosed, and the policies for collection of personal information;
    • Require that internet connected devices targeted toward children meet robust cyber security standards;
    • Require manufacturers of connected devices targeted to children and minors to prominently display on their packaging a privacy dashboard detailing how information is collected, transmitted, retained, used, and protected; and
    • Commission reports on the effectiveness of the COPPA safe harbor program.
  • The National Transportation Safety Board (NTSB) issued its preliminary report “for its ongoing investigation of the fatal, April 17, 2021, crash of a 2019 Tesla Model S near Spring, Texas.” The NTSB stated:
    • The report states the Model S P100D car was equipped with “Autopilot” – Tesla’s advanced driver assistance system. This system requires both the Traffic Aware Cruise Control and the Autosteer systems to be engaged. NTSB tests of an exemplar car at the crash location showed that Traffic Aware Cruise Control could be engaged, but Autosteer was not available on the part of the road (Hammock Dunes Place) where the crash happened.
    • According to the report the crash trip began at the owner’s residence. Footage from the owner’s home security cameras show the owner entering the driver’s seat and the passenger entering the front passenger seat. The video also shows the car slowly entering the roadway and then accelerating down the road away from the camera and out of sight. Based on examination of the accident scene investigators have determined the car traveled about 550 feet before departing the road on a curve, driving over the curb, and hitting a drainage culvert, a raised manhole and a tree.
    • The post-crash fire destroyed the car’s onboard data storage device and damaged the car’s restraint control module. The damaged module was recovered and taken to the NTSB’s recorder laboratory for evaluation. Restraint control modules can record data associated with vehicle speed, seat belt status, acceleration and airbag deployment.
  • Federal Trade Commission acting Chair Rebecca Kelly Slaughter announced the appointment of an Associate General Counsel for the New Rulemaking Group and an Attorney-Advisor for consumer protection. Slaughter stated that “she has selected Austin King to be the Associate General Counsel for Rulemaking. Replacing Mr. King, who previously served as one of the Acting Chairwoman’s attorney-advisors for consumer protection, will be Gaurav Laroia.”
  • The National Telecommunications and Information Administration (NTIA) is asking for comment on its positions ahead of an international conference this fall. In its notice, the NTIA stated:
    • As the United States prepares for the International Telecommunication Union’s (ITU) World Telecommunication Development Conference (WTDC-2021) scheduled for November 8-19, 2021, in Addis Ababa, Ethiopia, the National Telecommunications and Information Administration is working closely with the U.S. Department of State, the Federal Communications Commission (FCC), other federal agencies, and members of the U.S. private sector. The WTDC-2021 will set the priorities and activities for the ITU Telecommunication Development Sector in areas such as connectivity and digital inclusion. Through this Notice, NTIA is seeking public comments regarding activities, priorities, and policies that advance telecommunications and information and communications technology (ICT) development worldwide to assist the U.S. government in the development of its position for the conference.
    • In general, the U.S. government’s goal is to strengthen open, inclusive, and secure digital ecosystems as nations work towards universal connectivity. Additionally, the U.S. government seeks to leverage private sector collaboration to strengthen local capacity, create improved outcomes for development and humanitarian assistance, encourage adoption of U.S. values, ensure adherence to internationally recognized standards, improve cybersecurity, and foster open markets to close the global digital divide. We seek to reach the U.S. telecommunication/ICT stakeholder community and expand this community with new connectivity stakeholders in order to obtain a diverse range of views and increase recognition about the positive contributions U.S. entities are making to connect the unconnected and increase digital inclusion. We welcome views, studies, reports and references to development projects and engagements that could bolster and help facilitate future partnerships and collaborative endeavors towards telecommunications/ICT development.
  • The ad hoc Public Interest Spectrum Coalition has written acting Federal Communications Commission (FCC) Chair Jessica Rosenworcel to voice its “concern with regard to the potential impact of the shutdown by T-Mobile of its 3G CDMA network relied upon by DISH to provide voice and text service for millions of prepaid wireless customers subscribed to Boost Mobile, and roaming to other, unaffiliated rural carriers.” They stated:
    • Rather than consider this exclusively as a question of enforcing merger conditions, as framed by the parties, we urge the Commission also to exercise its general authority under Section 201(b) and its general authority under Title II, Title III and other relevant provisions4to protect Boost and rural carrier subscribers from disruption and potential loss of service. As explained below, this is a separate matter from determining the issue disputed between DISH and T-Mobile on the meaning of the merger conditions and resolution of their contractual dispute. Rather, we urge the Commission to require both licensees to work together to establish a reasonable transition schedule that allows T-Mobile efficiently to re-farm valuable spectrum for 5G services while simultaneously protecting subscribers and promoting competition.

Further Reading

  • “Pentagon investigated suspected Russian directed-energy attacks on U.S. troops” By Betsy Woodruff Swan, Andrew Desiderio, Lara Seligman and Erin Banco — Politico. The Pentagon has briefed top lawmakers on intelligence surrounding suspected directed-energy attacks against U.S. troops, and officials identified Russia as a likely culprit, according to two people with direct knowledge of the matter. The Defense Department had been investigating the incidents, including those targeting its personnel around the world, since last year, according to four former national security officials directly involved in the probe.
  •  “‘Dog Biting Dog’: China’s Online Fight Could Further Empower Beijing” By Li Yuan — The New York Times. Hours after the Chinese government imposed a record $2.8 billion fine on Alibaba, a veteran internet entrepreneur urged regulators to do something similar to his company’s biggest competitor. Douyin, TikTok’s Chinese sister service, is suing Tencent, China’s biggest internet company, to allow users to share videos to Tencent’s ubiquitous WeChat messaging service. Alibaba, meanwhile, has applied to set up its own apps within WeChat, essentially daring Tencent to say no.
  • “Tesla Is Sorry, but Not for the Fatal Driverless Car Crash in Texas” By Viola Zhou — Vice. In the United States, Tesla has stayed largely silent over the death of two men in a Model S crash in Texas. Having dissolved his U.S. public relations team, Elon Musk gave his first public response in a reply to a Twitter user, denying that the Autopilot system was at fault—authorities said no one was driving—and mocking the reporting of The Wall Street Journal. Meanwhile in China, where Tesla has also been put on the defensive over a crash, the company has posted a late-night apology, published driving log data on state media, and vowed to do everything the government asks for.
  • “Pentagon Weighs Ending JEDI Cloud Project Amid Amazon Court Fight” By John D. MacKinnon — The Wall Street Journal. Pentagon officials are considering pulling the plug on the star-crossed JEDI cloud-computing project, which has been mired in litigation from Amazon.com Inc. and faces continuing criticism from lawmakers.
  • “‘I Used to Like School’: An 11-Year-Old’s Struggle With Pandemic Learning” By Rukmini Callimachi — The New York Times. By the time Precious Coleman returned home from her overnight shift at a casino, it was past 9 in the morning. It had been another night of dealing with belligerent patrons who refused to wear their face masks and drunks who needed to be escorted to the curb. Her eyes stung. More than anything, she wanted to fall into bed. But her 11-year-old son, Jordyn, was waiting for her. Or, more specifically, for her cellphone: Because their Mississippi apartment has no internet, Jordyn uses her phone to log into his virtual classroom two days a week.
  • “A Border Town Confronts the Reality of Police Surveillance” By Sidney Fussell — WIRED. In 2019, the border town of Chula Vista, about 15 minutes from Tijuana, became California’s first “ Welcoming City,” highlighting the city’s financial and educational opportunities for immigrants. It’s also one of the nation’s most surveilled cities, where the police department uses license plate readers, drones, and body cameras to track residents and has explored facial-recognition technology. Now, those distinctions are clashing, as residents and activists accuse city leaders of “betraying” immigrant residents by permitting federal immigration authorities to access data from license plate readers. That’s sparked a citywide movement questioning the city’s police department, its surveillance apparatus, and its relationship with residents and immigration enforcement.
  • “Facebook Ban Hits Trump Where It Hurts: Messaging and Money” By Nick Corasaniti and Shane Goldmacher — The New York Times. The decision by Facebook on Wednesday to keep former President Donald J. Trump off its platform could have significant consequences for his political operation as he tries to remain the leader of the Republican Party, thwarting his ability to amplify his message to tens of millions of followers and hampering his fund-raising ability.
  • “CISA still waiting for Colonial Pipeline to share key data about hack” By Eric Geller — Politico. Colonial Pipeline still has not shared important technical information with DHS’ cyber agency about the ransomware attack that has crippled its fuel supply operations since last weekend, the agency’s acting director told lawmakers Tuesday. “Right now, we are waiting for additional technical information on exactly what happened at Colonial so that we can use that information to … protect other potential victims down the road,” acting Cybersecurity and Infrastructure Security Agency Director Brandon Wales told the Senate Homeland Security Committee.
  • “The Colonial Pipeline Hack Is a New Extreme for Ransomware” By Andy Greenberg — WIRED. For years, the cybersecurity industry has warned that state-sponsored hackers could shut down large swathes of US energy infrastructure in a geopolitically motivated act of cyberwar. But now apparently profit-focused cybercriminal hackers have inflicted a disruption that military and intelligence agency hackers have never dared to, shutting down a pipeline that carries nearly half the fuel consumed on the East Coast of the United States.
  • “Here’s just how much people have stopped talking about Trump on Facebook and Twitter” By Shirin Ghaffary and Rani Molla — Recode. Donald Trump used to be everywhere on social media — but lately, it feels like he’s nowhere. Many have noted just how little people have been talking about Trump — from cable news to Google searches — since he lost the election and was kicked off Facebook, Twitter, and YouTube four months ago. New data Recode obtained from social media measurement firms Zignal Labs and CrowdTangle shows just how drastic the drop in conversation about Trump has been.
  • “Josh Hawley and Donald Trump Haven’t Been ‘Silenced’” By Farhad Manjoo — The New York Times. I was on my iPhone the other day when I heard the first furtive whispers about Big Tech’s silencing of Senator Josh Hawley. Since Jan. 6, when the Missouri Republican was photographed fist-pumping his support for some of the very fine people who would later storm the United States Capitol, Hawley has been all but banished from the media. Other than his frequent appearances on some of the most popular cable news shows in the country, his biting Twitter account, the Instagram account where he posts family snapshots and clips from cable hits, and his YouTube page collecting his nearly every utterance on the Senate floor, Hawley has suffered the worst fate known to a modern American politician: cancellation.
  • “Six decades ago, Newton Minow called TV a ‘vast wasteland.’ It’s even vaster today” By Michael Hiltzik — The Los Angeles Times. It may be the most famous broadside launched by a government official in American history: Sixty years ago this Sunday, Newton N. Minow invited the television executives gathered in Washington for his first official speech as chairman of the Federal Communications Commission to spend a day watching their own broadcasts. “Keep your eyes glued to that set until the station signs off,” he said. “I can assure you that what you will observe is a vast wasteland.”

Coming Events

  • On 12 May, the Senate Commerce, Science, and Transportation Committee will hold a markup to consider the following matters among others:
    • Nomination of Lina M. Khan, of New York, to be Commissioner of the Federal Trade Commission
    • Nomination of Leslie B. Kiernan, of Maryland, to be General Counsel of the Department of Commerce
    • S.1260, Endless Frontier Act; Sponsors: Sens. Chuck Schumer (D-NY), Todd Young (R-IN)
  • On 14 May, the House Armed Services Committee’s Cyber, Innovative Technologies, and Information Systems Subcommittee will hold a hearing titled “Operations in Cyberspace and building Cyber Capabilities Across the Department of Defense.”
  • On 20 May, the Federal Communications Commission (FCC) will hold an open meeting with this tentative agenda:
    • Reducing Interstate Rates and Charges for Incarcerated People – The Commission will consider a Third Report and Order, Order on Reconsideration, and Fifth Notice of Proposed Rulemaking that, among other actions, will lower interstate rates and charges for the vast majority of incarcerated people, limit international rates for the first time, and seek comment on further reforms to the Commission’s calling services rules, including for incarcerated people with disabilities. (WC Docket No. 12-375)
    • Strengthening Support for Video Relay Service – The Commission will consider a Notice of Proposed Rulemaking and Order to set Telecommunications Relay Services (TRS) Fund compensation rates for video relay service (VRS). (CG Docket Nos. 03-123, 10-51)
    • Enforcement Bureau Action – The Commission will consider an enforcement action.
    • Enforcement Bureau Action – The Commission will consider an enforcement action.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

Published by Michael Kans

An attorney who specializes in technology policy, law, and politics with other areas of expertise.

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