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House Passes Email Privacy Act

Drew Clark

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WASHINGTON, February 6, 2017  – The House of Representatives on Monday approved by voice vote the Email Privacy Act, H.R. 387, designed to protect Americans’ privacy and public safety in the digital age. Below is a statement from House Judiciary Committee Chairman Bob Goodlatte, R-Virginia, applauding passage of the bill.

I’ve written about previous version of this legislation in each of the past three years, including this column from March 1, 2015 and from May 1, 2016 for the Deseret News. In the former of the two columns, I wrote:

It’s important at the outset to dispense the shibboleth that the Internet changes everything. What the Internet needs is a strong dose of 18th century legal wisdom, not words about “freedom of expression in the 21st century,” to quote the [former] chairman of the Federal Communications Commission during [a vote by] the agency on network neutrality.

The Constitution says that we have the right to be secure in our “persons, houses, papers and effects.” We have the right to speak free from regulation by the government. There are some who say that the Internet has rewritten the laws of supply and demand, or changed common decency and morality, or altered the possibility of being free from police surveillance. They are mistaken.

[more…]

From Chairman Goodlatte: “The U.S. Constitution protects Americans’ property from unreasonable searches and seizures and we must ensure that this principle continues to thrive in the digital age. Current law governing law enforcement’s access to electronic communications was enacted in 1986 – when mail was sent through the U.S. Postal Service, a search engine was called a library, tweets were the sounds made by birds in the trees, and clouds were found only in the sky.

“As technology has far-outpaced the Electronic Communications Privacy Act of 1986, the Email Privacy Act modernizes this decades-old law to establish a uniform warrant requirement to acquire stored electronic communications in criminal investigations. These updates to the law will better safeguard Americans’ constitutional rights while also protecting law enforcement’s ability to fight crime.  As the House again has overwhelmingly approved this bill, it’s time for the Senate to take up this bipartisan legislation and send it to the President’s desk to become law.”

Background from House Judiciary Committee Chairman Goodlatte:

Nearly 30 years ago, Congress passed the Electronic Communications Privacy Act of 1986 to provide a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies. The law sets forth a system to protect the privacy rights of customers and subscribers of computer network service providers and governs requests to obtain stored content, records, or other information, which includes stored emails, text or instant messages, documents, videos, or sound recordings stored in the cloud. ECPA applies not only to federal criminal investigations and prosecutions, but to state and local investigations and prosecutions, public safety requests, and civil investigations in which stored communications of these types of information are sought.

There is broad consensus that ECPA is outdated and contains insufficient protections for Americans’ privacy. The Email Privacy Act, sponsored by Rep. Kevin Yoder, R-Kansas, modernizes ECPA to protect Americans’ privacy and provide law enforcement with tools needed for its investigations. Last year, the House passed the bill unanimously by a vote of 419-0 but the Senate failed to act.

Key Provisions of the Email Privacy Act:

Warrant requirement: The bill creates a uniform warrant standard for law enforcement to obtain the content of communications in criminal investigations. ECPA warrants will continue to be executed with the provider since, as with any other third-party custodian, the information is stored with them. It allows the provider to notify its customers of receipt of a warrant, court order, or subpoena, unless the provider is court ordered to delay such notification.

Remote Computing Services: The bill maintains current law that delineates which remote computing service providers – or cloud providers – are subject to the warrant requirement for content in a criminal investigation.  ECPA has traditionally imposed heightened legal process and procedures to obtain information for which the customer has a reasonable expectation of privacy, namely emails, texts, photos, videos, and documents stored in the cloud.

Allows Law Enforcement to Access Public Information: ECPA currently makes no distinction between content disclosed to the public, like an advertisement on a website, versus content disclosed only to one or a handful of persons, like an email or text message.  The result is that law enforcement would be required to obtain a warrant even for publicly-disclosed content. The bill clarifies that commercial public content can be obtained with a process other than a warrant.

Maintains Congress’s investigative power: The bill clarifies that nothing in the law limits Congress’s authority to subpoena information from third parties in furtherance of congressional oversight.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney at The CommLaw Group. He has closely tracked the trends in and mechanics of digital infrastructure for 20 years, and has helped fiber-based and fixed wireless providers navigate coverage, identify markets, broker infrastructure, and operate in the public right of way. The articles and posts on Broadband Breakfast and affiliated social media, including the BroadbandCensus Twitter feed, are not legal advice or legal services, do not constitute the creation of an attorney-client privilege, and represent the views of their respective authors.

FCC

FCC Delays Auction of Citizens Broadband Radio Service Frequences in Light of COVID-19 Pandemic from Coronavirus

Broadband Breakfast Staff

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Seal of the Federal Communications Commission

Agency Changes Upcoming Auction 105 Schedule, Postpones Auction 106

Adjustments Made in Light of COVID-19 Pandemic

WASHINGTON, March 25, 2020—The Federal Communications Commission today announced schedule changes for Auction 105 as well as the postponement of Auction 106.
Given the COVID-19 pandemic, these changes were deemed necessary in order to protect the health and safety of Commission staff and to allow parties additional time to prepare to
participate in Auctions 105 and 106.

“Many Americans have had to make tough decisions on how they do business in this rapidly changing environment, and the FCC is no different,” said agency Chairman Ajit Pai. “After consulting agency staff within the relevant Bureaus and Offices, we determined that it was in everyone’s best interest to make these changes. But we remain committed to holding the 3.5 GHz auction this summer and look forward to beginning this important mid-band auction in July.”

For Auction 105, involving the auction of Priority Access Licenses for the 3550-3650 MHz band, the short-form application (FCC Form 175) filing window will now open on April 23,
2020 at 12 p.m. EDT and will close on May 7 at 6 p.m. EDT. Upfront payments will be due June 19.

Bidding will begin on July 23. Interested parties should continue to monitor the Auction 105 website at www.fcc.gov/auction/105 for any future announcements regarding the auction schedule and other important auction information. To read the Auction 105 Public Notice, visit https://go.usa.gov/xdhf4.

The FCC is postponing indefinitely Auction 106, an auction of construction permits in the FM broadcast service that was scheduled to begin on April 28. Auction 106 applicants that
submitted upfront payments may obtain a refund of those deposits after submitting a written request. Additional processes are outlined in today’s Public Notice. A revised schedule will
be announced in a future public notice. To read the Auction 106 Public Notice, visit https://go.usa.gov/xdhfZ.

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Press Releases

Tech Freedom and Other Advocacy Groups Push Back Against Growing Pressure to Modify Section 230

Masha Abarinova

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WASHINGTON, July 11, 2019 – Pushing back against a growing group of critics on the right and the left, the pro-free-market pro-free-speech group Tech Freedom on Thursday released a set of seven principles and online resources designed to “guide conversation about amending Section 230.”

As the principles statement declares: “we value the balance between freely exchanging ideas, fostering innovation, and limiting harmful speech. Because this is an exceptionally delicate balance, Section 230 reform poses a substantial risk of failing to address policymakers’ concerns and harming the Internet overall.”

In its current form, Section 230 of the Communications Decency Act (and part of the 1996 Telecom Act) holds online content creators responsible for what they publish, while protecting third parties that generate this content from liability.

“Section 230 is the law that made today’s Internet possible. Without it, hosting user-generated content would be impossible. Today’s most popular social websites would never have taken off and the Internet would look basically like cable,” said Tech Freedom President Berin Szóka.

“Making Section 230 protections contingent upon approval of government bureaucrats would be a grave mistake. Regulation must evolve as the Internet evolves, but creating new government powers that would be subject to the whims of whichever party occupied the White House would be bad for all Americans,” said Kevin Glass, vice president of communications at National Taxpayers Union.

The statement also included expressions of support from Prof. Eric Goldman, Santa Clara University School of Law, Sharon Bradford Franklin, director of Surveillance & Cybersecurity Policy, New America’s Open Technology Institute, Emma Llanso, director of the Free Expression Project, Center for Democracy & Technology, Bartlett Cleland, president of the Innovation Economy Alliance, and others.

Some of Tech Freedom’s resources on free speech and Section 230 on its website, including:

  • An op-ed “Some conservatives need a First Amendment refresher”
  • A letter to AG Session “DOJ Inquiry re Tech Companies Bias is Misguided”
  • A blogpost “Reality Check for Trump and Republicans Crying ‘Bias’”!
  • Tech Freedom President Berin Szóka’s testimony before the House Judiciary Committee on the filtering practices of social media platforms
  • A statement on the passage of SESTA
  • A statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation
  • Tech Policy Podcast #226: The Fairness Doctrine: Next Generation
  • Tech Policy Podcast #214: Information Intermediaries in a Nutshell

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FCC

Federal Communications Commission Announces $169 Million in Rural Broadband Funding

Broadband Breakfast Staff

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WASHINGTON, June 10, 2019 – The Federal Communications Commission on Monday authorized $166.8 million in funding over the next decade to expand broadband to 60,850 unserved rural homes and businesses in 22 states. Providers will begin receiving funding this month. A map of the winning bids is available here.

This funding represents the second wave of support from last year’s successful Connect America Fund Phase II auction. The FCC authorized the first wave of funding in May, providing $111.6 million in funding over the next decade to expand service to 37,148 unserved homes and businesses in 12 states.

To date, the first two rounds of authorizations are providing $278.4 million over the next decade to expand service to 97,998 new locations.  Over the coming months, the FCC will be authorizing additional funding as it approves the final applications of the winning bidders from the auction.

“I’m pleased to announce that the second round of funding starts now for buildout of high-speed Internet service to 60,850 rural homes and businesses, which will bring them to the right side of the digital divide and give them access to the 21st-century opportunities that broadband offers,” said FCC Chairman Ajit Pai.

“Providers will be deploying gigabit-speed connections to the majority of locations for which funding is being authorized today, while nearly 8,000 homes and small businesses on Tribal lands will be getting fixed broadband service for the first time,” he said.

Providers must build out to 40 percent of the assigned homes and businesses in the areas won in a state within three years.  Buildout must increase by 20 percent in each subsequent year, until complete buildout is reached at the end of the sixth year.

The Connect America Fund Phase II auction is part of a broader effort by the FCC to close the digital divide in rural America.

In addition to the funding that will be made available through this auction, the Commission recently provided 186 companies in 43 states $65.7 million in additional annual funding to upgrade broadband speeds in rural communities, and offered incentives for over 500 rural carriers to provide faster broadband to over 1 million rural homes and businesses.

Pai also announced his intention to create the Rural Digital Opportunity Fund, which will provide $20.4 billion over the next decade to connect approximately four million rural homes and businesses to high-speed broadband, representing the FCC’s single biggest step yet to close the digital divide.

(Photo by Jim Bradley used with permission.)

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