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FCC is Taking Net Neutrality Protections from the People

The FCC has announced a final vote on removing net neutrality rules in the next few weeks. We’ve talked about net neutrality before and, unfortunately, predicted a slightly rosier future than is before us. The rollback of net neutrality provisions is looking increasingly sure to occur on a larger scale than this blog or most anybody originally predicted.

Not only has the FCC chosen the longer route of publishing a proposed rule in order to overturn the Obama-era net neutrality provisions, it’s new rule will strip away essentially every consumer protection when it comes to net neutrality. As it stands, the protections will be repealed without replacement in any form.

Net neutrality, for those unfamiliar with the term, is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.  For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality.

What net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

net neutralityThis is important for a number of reasons. It prevents ISPs from censoring content by blocking or slowing down access to a crawl. It prevents them from selling the internet in bundles, similar to how you buy packages of television channels. It prevent ISPs from limiting access to the internet, providing preferential treatment to internet services they provide or services that are willing to be strong-armed through bandwidth throttling into giving them a cut of their profits (as Netflix was forced to do not so long ago).  Finally, it stops these companies from allowing sites to buy preferential treatment, something that could seriously harm smaller businesses and startups in this internet age.

The End of the Open Internet Order

Under the Obama Administration we saw the introduction of new net neutrality consumer protections in the form of the Open Internet Order, This order changed the classification of ISPs to that of a Title II public utility similar to telephone services–often known as common carrier status.  This change allowed greater regulation of ISPs. It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The order also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point, however, was quite an uphill battle, both in the courts and within the FCC itself. The FCC initially proposed much weaker regulations.  However, the combination of a call from then-President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the final version of the Open Internet Order.

FCC Chairman Ajit Pai, a former Verizon attorney, has made his anti-net neutrality stance well known. However, his plans take the axe to net neutrality provisions such as the Open Internet Order even more than initially anticipated. Pai followed through with the long process of proposing a new rule, opening it for comment (a process that was fraught with bots repeatedly entering anti-net neutrality comments), and finally his new rule is looking set to be confirmed in an FCC vote on December 14th of this year. The rule was always anticipated to strip away the Title II classification that allowed through regulation of ISPs. However, it has turned out to be an early Christmas gift for telecommunications interests.

What Chairman Pai’s New Rule Will Do

In discussing how the rule could be changed, Comcast expressed hope that the Title II classification could be removed so long as  “clearly defined net neutrality principles—no blocking, no throttling, no anti-competitive paid prioritization, and full transparency ” remained in place. The final plan being voted on in a few weeks will not only remove Title II classification, it also includes no replacement guidance whatsoever when it comes prioritizing, blocking or throttling internet traffic. This goes beyond even what ISPs had hoped for–a full rollback of all net neutrality provisions. The only FCC oversight which will remain is a requirement that ISPs disclose in their terms of service or user agreements that they will block, prioritize, or throttle content.

This requirement, due to the change in classification, will primarily be overseen by the FTC. The FTC is barred from policing Title II common carriers, but the change places ISPs back under their domain. However, the FTC can’t create the sort of net neutrality rules the FCC could. The most they can do is prevent deceptive and unfair practices. This basically means that if an ISPs terms of service say they will follow net neutrality practices, the FTC can come down on them if they break that promise.

This being said, as the rules stand there is nothing requiring these companies to include these promises in their terms of service in the first place. Even if they do, there will no real repercussions for removing them down the line.

Internet Providers Already May Be Gearing Up To Take Advantage

The response from ISPs when it comes to these potential dangers has long been, “well we promise we won’t.” Chairman Pai himself has relied on similar arguments in promoting his plan. This seems unlikely, they’ve spent millions lobbying for the power to do this, if they’re happy to promise to follow these rules why get rid of the rules in the first place? What’s more, their own history shows that they are more than happy to violate net neutrality principles.

Beyond the squeeze put on Netflix discussed above, ultimately requiring Netflix to pay up to end slow-down of its traffic, there have been a number of incidents where broadband providers have got overly ambitions and violated net neutrality rules.  In 2005, Comcast was caught blocking and slowing peer to peer services.  In 2011, Metro PCS announced plans to block all streaming services but YouTube on its 4G network. In 2012, the FCC caught Verizon blocking people from using tethering applications on their phones in violation of a net neutrality pledge they had made to the FCC in 2008. In 2013, when Verizon was asked in court whether it would prioritize content if it could, they repeatedly responded that they would be “exploring those types of arrangements.” These are just a few examples of acts violating net neutrality rules.

Even just recently, in the wake of the recent announcement out of the FCC, Comcast has changed a pledge posted online. Originally promising to never block, throttle or prioritize content, the Comcast pledge has recently dropped the promises regarding prioritization. They now promise not to “discriminate against lawful content” or use “anti-competitive paid prioritization. This conveniently drops promises not to offer internet fast lanes to companies willing to pay that premium. This is especially true because, after the net neutrality rollback, the only person to say whether or not prioritization is anti-competitive (except in particularly extreme cases) will be Comcast itself.

Net Neutrality Is In The Hands Of Congress

At this point, the December 14th FCC vote is looking more and more like a formality. If nothing changes, it is a near certainty that these rollbacks will happen. The only real chance of changing this–and it is an outside chance at best–would be for Congress to intervene. This would require them to act fast and, if you want to avoid a future without net neutrality, now is the time to contact your representatives and make your voice heard.

This is absolutely the last chance for these rules and any replacement rules from a future administration will certainly have to overcome the same years of lawsuits that mired down the Open Internet Order taking effect. As it is, before the end of the month we will know one way or another if net neutrality provisions will be completely repealed with no replacement whatsoever.

If this happens, we’ll see whether the ISPs will stay true to their promises. It is possible, but it seems unlikely the face of the internet will remain the same based on the history here. This does not necessarily even mean you will see instantaneous changes from your ISPs. Likely, there will be an incremental ratcheting down of the norm when it comes to how you expect to receive your internet. From here, it is in Congress’ hands what will happen to the internet.

Doctor Denied Medical License Because She Doesn’t Use a Computer

Dr. Anna Konopka of New Hampshire was forced to surrender her medical license because she was unable to use a computer. The 84-year-old doctor turned over her medical license in October, but requested permission later to continue her practice. Judge John Kissinger denied her request.

Konopka built a network of loyal patients in New London, New Hampshire. Many of her patients suffer from complicated conditions, but who are tired of big hospitals and distracted doctors. She typically only charged $50 in cash.

Konopka didn’t have a computer in her office and didn’t want to use one. Instead, Konopka relies on two filing cabinets. New Hampshire medical regulators argue that Konopka’s failure to use a computer violates the state’s mandatory electronic drug monitoring program, a state program designed to combat the opioid epidemic of recent years. The state also alleges that Konopka had been leaving dosing levels to parents and failed to treat a patient with daily inhaled steroids. Konopka claims she never harmed her patient and that the boy’s mother ignored her instructions.

medical licenseKonopka has asked Judge Kissinger to reverse his ruling. Legally, there aren’t many claims that Konopka can rely on. There might be a couple of federal statutes, but neither are really an appropriate fit:

Age Discrimination

Konopka’s supporters might think this is age discrimination. Age discrimination occurs if Konopka is 84 years old and her limited understanding of technology is shared by many citizens in their eighties.

Although Konopka is an elderly woman who has limited computer skills, this alone is not evident of age discrimination. There was no mention in the complaints about Konopka’s age. Moreover, if any doctor refused or was unable to use a computer, regardless of his or her age, the state would presumably revoke their license as well. Finally, if Konopka had hired someone to handle computer use, even a relative or a friend’s child, this might be avoidable. There is nothing in these facts that indicate age was an issue.

Disability Accommodation

Medical licensing boards are bound by the Americans with Disabilities Act (ADA). If Konopka had a disability, New Hampshire would be required to accommodate the disability.

The problem would be that there isn’t a recognized disability. Disabilities must be mental or physical. Refusing to learn or being unable to use a computer is not a recognized mental or physical disability. However, even if a learning disability that prevents a person from using a computer were a recognized mental disability, there is still no explanation for why Konopka cannot find someone else to assist her.

Konopka’s Solution is in Politics, Not Law

However, the issue isn’t whether Konopka can learn the system that the state has mandated to combat opioids. Konopka herself has said: “Even if I knew how to use it, I would be unwilling. I cannot compromise the patient’s health or life for a system, I refuse to.” Many of her patients, as many as 30, have testified that Konopka spends significant time with them, as much as two hours per appointment. Konopka declines to follow the practice of using electronic records to diagnose patients because she is experienced enough to diagnose a patient just by examining and talking with them.

It seems Konopka’s problem is political rather than legal. New Hampshire recognized a drug problem in their state and took a step to stop it, by requiring all license doctors to use an electronic system to track what kinds of drugs and how much the doctors are prescribing. Dr. Konopka refused to follow the regulations and surrendered her medical license.

As long as New Hampshire has a valid reason to enact their electronic program – drug safety is a valid concern, then the regulation cannot be overturned. If Konopka and other doctors in her position disagree, they should speak with their state representatives to either find a new regulation that they agree with or to create an exception in the regulation.

Trump’s HIRE Veterans Act is More Show than Substance

Honoring our military veterans, the people who chose to risk their lives to fight for our country, is incredibly important. Part of that needs to include helping them find a life, and a job, once they return from their service. There are already existing programs to help veterans find employment. For instance, the Department of Labor has the Veteran’s Employment and Training Service (VETS). VETS, among other things, provides job training services, an employment placement service for veterans, job training placement, and enforces the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA makes it illegal for an employer to discriminate in employment, promotions, etc, based on somebody’s current or past service history.

These services, combined with other efforts have demonstrably helped with veteran unemployment. The unemployment rate has been consistently trending downward since peaking at around 10% in late 2010–going down to about 4.7% by the end of the Obama administration. The unemployment rate has continued this trend, currently sitting around 4.1%. The veteran’s unemployment rate has trended slightly below the general unemployment rate, around 4.3% last year and down to 2.7% now.

Under the Obama administration Congress passed a number of laws aimed at assisting vets in finding employment which have likely contributed to this trend of keeping veteran unemployment below the national percentages. For instance, the Veteran Opportunity to Work and Hire Heroes Act (VOW Act) was passed in 2011 and provided tools and training for service members and their spouses as they entered private life. It also required the department of labor to rework and expand the implementation of employment workshops and training programs offered to veterans.

veteransThe Trump administration’s has made its first move towards helping veterans find work with the Honoring Investments in Recruiting and Employing American Military Veterans Act (better known as the HIRE Vets Act).  President Trump signed the act into law on May 5th, 2017. However, despite the name suggesting that it is a law designed to help veterans get hired, it is more of a gold star for companies who hire at least a certain number of veterans or offer some sort of charitable services to the veteran community. While this is better than nothing, the program seems more likely to motivate companies already hiring a certain number of veterans to continue doing so. Hiring veterans should be rewarded, and it’s worth looking at whether you qualify, however it seems like a middling step at best towards helping veterans. Let’s look at how the HIRE Vets Medallion works.

The HIRE Vets Medallion Program

The program, as mentioned, exclusively offers a “HIRE Vets Medallion Award” to employers hiring veterans. It does not immediately provide any benefit to the veterans themselves. Under the law, employers are broken down into different sizes and offered an award if they meet certain criteria. Small employers include companies with 50 or less employees, medium employers have 51-499 employees, large employers have 500 or more employees.

Under the Program, there will be different awards for large employers (500 or more employees), medium employers (51-499 employees) and small employers (50 or less employees). There also will be two award tiers: Gold and Platinum. The criteria for receiving the Awards will look at percentage of new hires who are veterans in the last year, percentage of veteran employees, percentage of veterans who’ve been employed for at least a year, employment resources and training programs offered to veterans by a company, whether a company pays employees while they are on active National Guard duty, and whether the company provides tuition assistance to veteran employees. It can be assumed that the companies who receive the award will be those who are best in all these categories. No companies with a labor law ruling against them are eligible for the award.

The program seeks to do a first award ceremony for 300 companies next Veterans’ Day. However, the awards will not begin in earnest until 2019. Applications for the award will start being accepted in January 2019 and have a deadline of April 2019. The Department of Labor charges for each application for the award, $90 for small companies, $190 for medium companies, and $495 for large companies. Winners receive a physical award and can post a virtual symbol of a HIRE Vets Medallion online.

But the HIRE Vets Act Doesn’t Do Much for Veterans

This doesn’t do actually nothing for veterans. It’s a good thing to support companies that support and hire veterans. However, a program which gives an award to these companies once a year but offers no other benefit to these companies beyond the right to post a medallion online is certainly not doing much. Trump has presented himself as president who will support veterans and reduce unemployment. However, this is a minute step at best and a publicity stunt at worst.

Trump also has done veterans few favors with the other steps he has taken since taking office.  His hiring freeze originally hit the U.S. Department of Veteran Affairs–itself a huge employer of veterans–quite hard. It took months of bipartisan work before the hiring freeze on the VA was, for the most part, lifted. Trump has supported cuts to the Department of Housing and Urban Development (HUD) and disability benefits. This hits veterans in a different way. Just last year HUD conducted a single-night census of homeless people living in shelters and found that around 60% of those people reported being veterans–these cuts will pull the rug out from under their feet and the roof from over their head.  Nearly 350,000 veterans receive rental assistance from HUD, they’ll be hit by these cuts as well. HUD even has a Veteran Affairs Supportive Housing program which has provided housing vouchers to over 85,000 veterans–another program that will be hurt by Trump’s cuts.

Trump proposes cuts to Social Security Disability Insurance benefits–benefits which benefit nearly a million veterans every year. Trump has proposed eliminating the Individual Unemployability benefits program, a program which allows the VA to give disability benefits equivalent to 100% disabled benefits where a veteran can’t get a job due to a service-related disability that wouldn’t normally qualify them as a 100% disabled.The program, as mentioned, exclusively offers a “HIRE Vets Medallion Award” to employers hiring veterans. It does not immediately provide any benefit to the veterans themselves.

The HIRE Vets Act isn’t nothing, it just pales in comparison to the steps backward we have seen in the last months. There have been some other moves forward on veteran hiring. A few months back the American Law Enforcement Heroes Act offered funds for hiring veterans as law enforcement officers. However, for a president who has consistently pushed a pro-veteran image, there has been a notable lack of follow-through from the Trump Administration. The HIRE Vets Act is not nothing, it’s just almost nothing.

Uber Data Breach and Why We Need New Digital Security Regulation

Uber Technologies Inc., joins Yahoo, Target, Equifax, and other companies as a target for hackers. Hackers allegedly stole personal data of 57 million Uber users and drivers. The hackers stole names, email addresses, and phone numbers from Uber riders and drivers from around the world. 600,000 U.S. driver license numbers were also stolen. Uber claims that no social security, credit card information, or trip details were taken. The shocking part is that Uber attempted to coverup the hack for a year instead of disclosing it to the public.

Uber’s former chief security officer, Joe Sullivan, and a deputy paid the hackers $100,000 to keep quiet about the hack. The company tracked down the hackers and asked them to sign nondisclosure agreements. Uber executives passed off the payment and nondisclosure agreements as a planned event where the hackers were paid in advance to test vulnerabilities in Uber’s system.

uberA Market for Corruption

Uber’s coverup is absolutely the wrong way of handling a hack into a business’s systems. The U.S. Securities and Exchange Commission requires that hacks be disclosed to investors to protect them from financial abuse (ironically, the SEC waited until September this year to disclose they had been hacked in 2016). Several states, including California, where Uber is headquartered, also mandate that companies disclose if their computers have been breached.

The New York attorney general’s office has opened an investigation into the matter. Two class-action lawsuits have been filed against Uber in federal courts in California.

Uber’s failure to disclose has potentially harmed investors, users, and drivers. The class action lawsuits claim that the company’s failure to disclose the hacks prevented users and drivers from contacting their financial institutions or from taking any action to prevent identity theft. Investors who spent money on Uber were also harmed, as Uber’s plans for an initial public offering in 2019 may either be delayed, or the company’s stock worth may be dramatically lower than originally forecasted.

Additionally, the coverup may lead to more hacks in the future. The F.B.I has warned against paying ransoms to hackers, since such payments will encourage hackers to invade other companies or even the same company again to secure more money.

21st Century Cyber Security

It is pretty obvious now that America needs massive change in how it handles cyber security. Major companies in every sector are being targeted. The current Presidential administration is being investigated by a special because of allegations involving hacking. Even the government watchdog charged with overseeing whether companies are disclosing hacks, has been hacked!

Although we have laws requiring that companies publicly disclose any hacks into their systems, such laws do not seem to be enough. Companies and government agencies alike need to learn how to prevent cyber security breaches. I’m not going to pretend to be a cyber security expert, but there are dozens of pending laws before state lawmakers that address the issue. The shocking thing about that list how many laws didn’t make it. Not all of them need to be enacted, but laws that criminalize the installation of malware, require data encryption in certain industries,  or to create anti-hacking infrastructure should at least get a second glance in the wake of all these hackings.

TripAdvisor Under Fire for Blocking Reviews of Rape and Injuries

The popular trip planning website, TripAdvisor, is under fire for alleging deleting user reviews of criminal activity in hotels. The Milwaukee Journal Sentinel published a story revealing that TripAdvisor had deleted reports of rapes, injuries, and even deaths among tourists in Mexico.  U.S. Sen. Tammy Baldwin (D-Wis.), has urged the Federal Trade Commission (FTC) to investigate TripAdvisor to protect consumers from potential fraud.

Dozens of people have alleged that TripAdvisor silenced them by deleting their posted stories and then alerting the user via email. According to the emails, TripAdvisor removes many negative reviews because the website views the reviews as “hearsay,” “off-topic” or in violation “family friendly guidelines.”

It is unknown how many reviews TripAdvisor has deleted. TripAdvisor relies on users with special privileges to manage its website. However, the company refuses to disclose how its moderators are selected. TripAdvisor has responded quickly by rolling out a new warning system that marks resorts where safety concerns have been reported in the media. The company has promised to make other changes so that travelers can share their traumatic stories.

tripadvisorIs It a Crime to Stop Someone From Reporting a Crime?

Generally, non-emergency personal (police, firefighters, paramedics, etc.) have no duty to report a crime. If I see someone mugging another person outside my window and don’t report it to be police, generally I wouldn’t be liable for not saying anything to the police.

Of course, different states often have exceptions to that general rule.  For example, California imposes a duty to report if a school official, medical professional, or therapist knows about a child being molested and fails to disclose it to law enforcement. Other states may have similar laws expanding aiding and abetting a crime to include failure to report certain crimes.

TripAdvisor presents a slight different question. Instead of failing to report a crime, TripAdvisor is taking down reports of crimes. Is that illegal?

Although potentially immoral, TripAdvisor hasn’t committed a crime. Generally, the law contemplates reporting a crime to law enforcement, not to the public at large.  It would be illegal to intercept communications to a police officer in order to ensure that the police don’t find out about a crime. However, removing a review on a website is not the same as preventing the police from discovering a crime. If that were illegal, newspapers and media outlets would be committing a crime by choosing to report on some crimes and not others.

Fraud and Libel from Both Directions

TripAdvisor’s reviews open it to allegations of fraud from consumers and libel from the businesses being reviewed. If TripAdvisor takes down negative reviews that are real, TripAdvisor may be misleading travelers into believing that a hotel or business is safe when in fact it is not. On the other hand, if the reviews are false and the business is harmed by the negative reviews, TripAdvisor may be guilty of libel. This knot is complicated by the fact that the company is not the one writing the reviews, but the users online.

The good news for TripAdvisor is that most of the businesses suing for libel probably wouldn’t make it very far. States like California have anti-SLAPP laws; laws that prohibit strategic lawsuit against public participation. Lawsuits that are designed to intimidate defendants from publicly criticizing others can be stopped by the right SLAPP law. Moreover, the truth is always a defense against libel. As long as the allegations of rape or criminal activity in the review is true, businesses generally won’t have a real claim against review sites like TripAdvisor or the reviewers on the website.

A review website removing content is a relatively new claim. Yelp.com has been sued for refusing to remove negative reviews, but the refusal to post negative reviews might be groundbreaking. However, it is doubtful that the reviewers would be able to successfully bring a such a claim. In order to file a lawsuit, the petitioner needs to show that he or she would be harmed by the defendant’s actions. Review sites like TripAdvisor or Yelp might harm people who read only positive reviews, but the people who post the missing reviews wouldn’t be harmed.

Even if the readers were to be harmed, it’s not clear that the review website would be liable. Suppose I go to TripAdvisor, read about a great hotel, and then get robbed when I at the hotel I found on TripAdvisor.  I later find out that TripAdvisor removed four reviews about mugging at the hotel because the website thought the reviews were only “hearsay.” Obviously, the thief would be the one response for actually stealing my stuff. Absent a legal duty to warn me about crime in the area, TripAdvisor would not be liable for its failure to warn.

However, TripAdvisor could be liable for misleading me about the safety of the area. TripAdvisor holds itself out to the public as a business that screens the services and safety of other businesses. If TripAdvisor modifies their reviews so that the reviews are less reliable, I could say they are misleading me about how their services work.