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Posted on Techdirt - 23 April 2018 @ 3:27am

Apple Sued An Independent Norwegian Repair Shop In Bid To Monopolize Repair -- And Lost

from the high-horse dept

A few years ago, annoyance at John Deere's obnoxious tractor DRM birthed a grassroots tech movement. John Deere's decision to implement a lockdown on "unauthorized repairs" turned countless ordinary citizens into technology policy activists, after DRM and the company's EULA prohibited the lion-share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for "authorized" repair, or toying around with pirated firmware just to ensure the products they owned actually worked.

The John Deere fiasco resulted in the push for a new "right to repair" law in Nebraska. This push then quickly spread to multiple other states, driven in part by consumer repair monopolization efforts by other companies including Apple, Sony and Microsoft. Lobbyists for these companies quickly got to work trying to claim that by allowing consumers to repair products they own (or take them to third-party repair shops), they were endangering public safety. Apple went so far as to argue that if Nebraska passed such a law, it would become a dangerous "mecca for hackers" and other rabble rousers.

Apple's efforts in particular to monopolize repair run deep. The company has worked alongside the Department of Homeland Security and ICE to seize counterfeit parts in the United States and raid shops of independent iPhone repair professionals. FOIA efforts to obtain details on just how deeply rooted Apple is in ICE's "Operation Chain Reaction" have been rejected. The efforts to "combat counterfeit goods" often obscures what this is really about for Apple: protecting a lucrative repair monopoly and thwarting anybody that might dare repair Apple devices for less money.

And Apple's efforts on this front are a decidedly global affair. More recently, Apple has been harassing an independent repair shop owner in Norway named Henrik Huseby. After Norway customs officials seized a shipment of 63 iPhone 6 and 6S replacement screens on their way to Huseby's repair shop, Apple threatened to sue the store owner unless they agreed to stop using aftermarket screens and pay a hefty settlement:

"In order to avoid being sued, Apple asked Huseby for “copies of invoices, product lists, order forms, payment information, prints from the internet and other relevant material regarding the purchase [of screens], including copies of any correspondence with the supplier … we reserve the right to request further documentation at a later date."

The letter, sent by Frank Jorgensen, an attorney at the Njord law firm on behalf of Apple, included a settlement agreement that also notified him the screens would be destroyed. The settlement agreement said that Huseby agrees “not to manufacture, import, sell, market, or otherwise deal with any products that infringe Apple’s trademarks,” and asked required him to pay 27,700 Norwegian Krone ($3,566) to make the problem go away without a trial."

How sweet. Huseby decided to fight the case, and despite being out-manned five Apple lawyers to one, managed to win. And despite Apple's ongoing claims that it's simply engaged in a moral crusade against counterfeiters, Huseby's lawyer is quick to reiterate what Apple's methods are really all about:

"In this case, Apple indirectly proves what they really want,” Per Harald Gjerstad, Huseby’s lawyer, told me in an email. “They want monopoly on repairs so they can keep high prices. And they therefore do not want to sell spare parts to anyone other than ‘to themselves.’"

Apple's real motivation is the protection of their lucrative repair monopoly enjoyed thanks to their "Authorized Service Provider" program, which requires that repair companies become authorized by paying Apple a fee, only buy "authorized" repair parts from Apple at a fixed rate, and limits what repairs a third-party vendor can actually perform. Meanwhile, Apple continues to lobby against right to repair laws in 18 states around the United States, all of which require hardware vendors sell replacement parts and repair tools to the general public and independent repair companies.

Ironically, the harder Apple and other companies fight against this trend, the more support they drive toward these right to repair bills.

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Posted on Net Neutrality Special Edition - 19 April 2018 @ 6:31am

Another Survey Shows Massive Bipartisan Opposition To Net Neutrality Repeal

from the will-of-the-people dept

ISPs like Comcast (and the politicians, think tankers and PR/policy consultants paid to love them) have been successful framing net neutrality as a partisan issue to sow dissent and stall policy progress and consensus. But the reality is that net neutrality and net neutrality protections continue to have overwhelming, bipartisan support. Survey after survey have shown that the overwhelming majority of Americans support net neutrality, and for most people preventing natural monopolies from being bullies (at least until somebody has the courage to embrace policies that encourage broadband competition) is a no brainer.

This week another survey highlighted how opposition to Ajit Pai and the Trump FCC's net neutrality repeal is overwhelming. According to a new study out of the University of Maryland (pdf), 86% of the country opposes the FCC's decision to roll back net neutrality protections at ISP lobbyist behest. And again that opposition is bipartisan, with 82% of Republicans and 90% of Democrats opposing the FCC's obnoxiously-named "restoring internet freedom" repeal. While the sample size of 997 registered voters is arguably a little small, there's really nothing subtle about the findings:

It's worth noting that since the last survey, Republican opposition to the repeal has actually grown from 75% to 82% as more people realize the ISP-manufactured reasons for the repeal are based largely on fluff and nonsense. There's absolutely nothing "partisan" about trying to keep the internet relatively open, healthy and neutral. There's nothing partisan about protecting consumers from natural monopolies who've literally bought and written state laws keeping their broken, anti-competitive status quo intact.

While the survey found the traditional ISP arguments about net neutrality being "heavy handed" or "stifling innovation" work a little better on GOP voters, the public overall isn't really buying them:

Of course majority public opinion doesn't automatically make something right, but in this case we've noted time and time again that the logic and data supporting this repeal are little more than hot garbage pushed by companies terrified of open competition and truly level playing fields. It's difficult to tap dance around the fact that the attempted repeal of net neutrality is arguably the worst government tech policy decision in the history of the internet, making the SOPA backlash look like a toddler's hiccup in comparison.

And while ISP lobbyists believe they've "won" the battle by convincing Ajit Pai to ignore the will of the public, they'd be pretty foolish to think this giant policy middle finger aimed squarely at already angry consumers isn't going to result in mammoth and unforeseen political and policy blowback over the next decade. That's assuming the FCC repeal survives its looming court challenge, something that's no sure thing given all of the bizarre and unethical behavior Pai's agency engaged in as it tried to float this monumental turd of a policy proposal.

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Posted on Techdirt - 18 April 2018 @ 1:42pm

Former FCC Broadband Advisory Panel Chair Arrested For Fraud

from the this-seems-to-be-going-well dept

For a few months now we've been noting how a "broadband deployment advisory panel" (BDAC) the FCC created to "solve the digital divide" has been plagued by scandal, resignation, and accusations of corruption. The panel was created last year to purportedly advise the Trump FCC on the best approach(es) to improving broadband cost and availability. But it didn't take long for reports to emerge that the panel was little more than a who's who of entrenched telecom industry interests, and since its creation its been plagued by a steady stream of disgruntled departures.

This week, Pai's panel made headlines again after reports emerged indicating that the woman Pai picked to chair the panel has been arrested for defrauding investors as part of a fiber network deployment con:

"Elizabeth Ann Pierce, who served as CEO of Quintillion Networks LLC , allegedly convinced two investment companies that the firm had secured contracts for a high-speed fiber-optic system that would generate hundreds of millions of dollars in future revenue, the Manhattan U.S. attorney’s office and FBI said Thursday. The system was pitched as one that would provide service in Alaska and connect it to the lower 48 states, authorities said.

“As it turned out, those sales agreements were worthless because the customers had not signed them,” U.S. Attorney Geoffrey Berman said in prepared remarks. “Instead, as alleged, Pierce had forged counterparty signatures on contract after contract. As a result of Pierce’s deception, the investment companies were left with a system that is worth far less than Pierce had led them to believe."

Ajit Pai had proclaimed that he had an "excellent and deep pool of applicants to serve on the BDAC," when he announced (pdf) Pierce's appointment last year. Apparently that well wasn't quite deep enough. The disgraced executive was appointed by Pai in April, resigned her Quintillion CEO spot in August, and had resigned from the BDAC by September.

But Pierce's arrest is only the latest chapter on the problems with Pai's advisory council. Earlier this year, San Jose Mayor Sam Liccardo penned a letter saying he'd be resigning from the panel, claiming in his resignation letter (pdf) that not only does the panel exist almost exclusively to help prop up the interests of incumbent ISPs, but it hadn't actually accomplished a single item of note in terms of helping improve broadband competition or availability:

"It has become abundantly clear that despite the good intentions of several participants, the industry-heavy makeup of BDAC will simply relegate the body to being a vehicle for advancing the interests of the telecommunications industry over those of the public...after nine months of deliberation, negotiation, and discussion, we’ve made no progress toward a single proposal that will actually further the goal of equitable broadband deployment."

Liccardo's complaints were mirrored by a similar, late March resignation letter by New York City CTO Miguel Gamiño Jr. And they were also mirrored by complaints from community broadband groups like the Coalition for Local Internet Choice (CLIC), who say the panel is actively undermining community-driven attempts to improve the nation's broadband connectivity:

"The audacity and impropriety of the process is clear from the fact that this entity, comprised primarily of corporate and carrier interests, is empowered by the Commission to develop model codes that could potentially impact every locality and state in the United States without any serious input from the communities it will most affect."

In more rural areas with a tepid ROI community broadband and public/private partnerships are often the best creative solutions to the broadband monopoly logjam. But because giant ISPs fear competition and folks like Ajit Pai are blindly, ideologically opposed to even working closely with local governments, the FCC is now actively undermining such efforts. Pai has routinely supported ISP-crafted protectionist state laws in 21 states that hamstring communities looking to build their own networks, even in areas ISPs refuse to.

In other words, much like his boss, Ajit Pai says one thing then immediately does another; he breathlessly professes to be "fixing" problems he's actually making worse, and is leaving a trail of dysfunction and grumbling in his wake.

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Posted on Techdirt - 18 April 2018 @ 6:20am

In Trying To Ban Telegram, Russia Breaks The Internet

from the unintended-consequences dept

Russia's war on encryption and privacy has reached an entirely new level of ridiculous. We've noted for a while how Putin's government has been escalating its war on encrypted services and VPNs in the misguided hope of keeping citizens from dodging government surveillance. But things escalated dramatically when the Russian government demanded that encrypted messaging app Telegram hand over its encryption keys to the FSB. After Telegram refused, a Russian court banned the app entirely last Friday, and the Russian government began trying to actually implement it this week.

It's not going particularly well.

Telegram tried to mitigate the ban by moving some of its essential infrastructure to third-party cloud services. But Russian telecom regulator Roskomnadzor responded by blocking upwards of 16 million IP addresses, many belonging to Amazon Web Services and Google Cloud. Not too surprisingly, the heavy-handed maneuver resulted in connectivity problems across massive swaths of the Russian internet:

Some users say the ban has disrupted the functionality of unrelated online games and services:

And even credit card terminals:

While the Russian government has been portrayed as a technological and hacking mastermind in the wake of its escalating global disinformation and hacking campaign, there's nothing at all competent about this effort. The Russian government is demanding that both Apple and Google pull encrypted messaging apps from their app stores. They've also tried to pressure sideloading websites like APK Mirror into refusing to offer alternative access to the Telegram app. But it's just another game of Whac-a-Mole, with VPN provider NordVPN saying it saw a 150% spike in Russian usage in the wake of the ban.

The Russian government is claiming that its ham-fisted blockade has resulted in a 30% dip in Telegram usage. But Telegram founder Pavel Durov has downplayed the ban's impact on overall "user engagement":

"For the last 24 hours Telegram has been under a ban by internet providers in Russia. The reason is our refusal to provide encryption keys to Russian security agencies. For us, this was an easy decision. We promised our users 100% privacy and would rather cease to exist than violate this promise.

"Despite the ban, we haven’t seen a significant drop in user engagement so far, since Russians tend to bypass the ban with VPNs and proxies. We also have been relying on third-party cloud services to remain partly available for our users there."

Russian state media meanwhile continues to demonize Telegram as a haven for villains, and is directing users to alternatives like TamTam with alleged ties to the Russian government. All told, it's another wonderful illustration of how filtering the internet doesn't work (unless collateral damage and annoyance is your stated goal), and a war on fundamental security and privacy tools only makes everybody less secure. This is not a battle Russia can "win," but it's apparently too far down the rabbit hole of bad ideas to stop now.

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Posted on Techdirt - 17 April 2018 @ 6:28am

Comcast To Sell Netflix Subscriptions In False Belief This Will Slow Cord Cutting

from the good-luck-with-that dept

As we've noted previously, Comcast has enjoyed a little more resilience to the cord cutting threat than satellite TV and telco TV providers--thanks to its growing monopoly over broadband. As DSL users frustrated by lagging telco upgrades switch to cable to get faster speeds, they're often forced to sign up for cable and TV bundles they may not want (since standalone broadband is often priced prohibitively by intent). Of course that doesn't mean these users or stick around (or that they even actively use the cable subscription they pay for), but it has helped Comcast all the same.

There are some indications that advantage isn't helping as much now that we're seeing so many streaming services come to market. At least one Wall Street research firm predicts that Comcast's cord cutting defections will double this year, though those totals still remain modest (400,000) compared to the company's total number of pay TV (22.4 million) and broadband (25.5 million) subscribers.

In the hopes of slowing the slow but study climb in cable TV defections, Comcast has announced that it will soon begin bundling Netflix subscriptions with its existing services, in what it claims is a quest to provide "more choice, value and flexibility":

"Netflix offers one of the most popular on demand services and is an important supplement to the content offering and value proposition of the X1 platform,” said Sam Schwartz, Chief Business Development Officer, Comcast Cable. “Netflix is a great partner, and we are excited to offer its services to our customers in new ways that provide them with more choice, value and flexibility. The seamless integration of Netflix with the vast Xfinity entertainment library on X1 present a unique and comprehensive experience for customers."

There's no indication yet whether Comcast will sell Netflix at any kind of discount. Still, the move isn't likely to help Comcast stop what's become an obvious example of market evolution. Customers looking for actual "choice, value and flexibility" pretty consistently find that's not something they get from traditional cable, thanks in part to Comcast's relentless rate hikes and hidden fees. Since most of these customers are ditching cable due to having to pay $130 or more per month, even a discounted subscription to Netflix isn't likely to help.

Of course Comcast still has an ace up its sleeve: usage caps and overage fees. The company's slow and steady deployment of these arbitrary, unnecessary and punitive limits will allow Comcast to (ab)use a lack of broadband competition to not only counter reduced TV revenues by jacking up the price of broadband, but to punish customers who choose to wander outside of Comcast's walled gardens.

After all, Comcast's own streaming services don't count against the company's caps, while Netflix's service does. And should Comcast and the FCC survive legal challenges to the net neutrality repeal, there's not much to stop Comcast from using a lack of adult oversight on this front to brutal, anti-competitive advantage.

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Posted on Techdirt - 16 April 2018 @ 1:26pm

A Casino Was Hacked Thanks To The Internet Of Broken Things & A Fish Tank Thermometer

from the somebody-might-want-to-get-on-this dept

For years we've documented how the internet of broken things industry and evangelists have contributed to a global privacy and security shitshow. The rush to connect everything from tea kettles to Barbie dolls to the internet without including even basic privacy or security standards has resulted in a massive security problem few seem interested in actually fixing. As a result we're not only less secure and more at risk for privacy violations, but these devices are now routinely contributing to some of the most devastating DDoS attacks history has ever seen.

A year or so ago Bruce Schneier penned what was probably the best explanation of why nothing in the IOT chain of dysfunction seems to improve:

"The market can't fix this because neither the buyer nor the seller cares. Think of all the CCTV cameras and DVRs used in the attack against Brian Krebs. The owners of those devices don't care. Their devices were cheap to buy, they still work, and they don't even know Brian. The sellers of those devices don't care: they're now selling newer and better models, and the original buyers only cared about price and features. There is no market solution because the insecurity is what economists call an externality: it's an effect of the purchasing decision that affects other people. Think of it kind of like invisible pollution."

Instead of fixing their products, vendors simply move on to marketing the next best thing. And consumers continue to gobble them up, creating millions of millions of new attack vectors into homes and businesses around the world annually. Obviously this "invisible pollution" continues to have a very real and visible impact. Case in point: Nicole Eagan, the CEO of cybersecurity firm Darktrace, says hackers are increasingly targeting unprotected IOT devices including air conditioners, toys, and surveillance cameras to get into corporate networks.

She noted how one bank that decided to skimp on security cameras actually wound up being hacked after those cameras were quickly compromised by attackers. Speaking at the WSJ CEO Council Conference, she also shared an anecdote about how one big casino client had their customers' financial histories stolen thanks to an internet-of-broken things aquarium thermostat:

"Eagan gave one memorable anecdote about a case Darktrace worked on in which a casino was hacked via a thermometer in an aquarium in the lobby. The attackers used that to get a foothold in the network," she said. "They then found the high-roller database and then pulled that back across the network, out the thermostat, and up to the cloud."

It's understandable that people are wary of regulating this sector lest it stifle innovation or create unforeseen, additional problems. But it's pretty clear we're going to need a massive collaboration between the public, companies, and government if we want to avoid some potentially calamitous and fatal outcomes (especially if and when essential infrastructure is targeted). That's why what the open source IOT security and privacy standards organizations like Consumer Reports have been cooking up desperately need all the public and private sector support they can get.

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Posted on Techdirt - 13 April 2018 @ 1:51pm

Public Attention Forces Facebook To Retreat From Anti-Privacy Alliance With ISPs In California

from the now-that-you're-watching... dept

Silicon Valley companies have historically not seen eye to eye with giant ISPs, as we saw during the early years of the net neutrality debate. But Google and Facebook recently put aside their differences and joined forces with Comcast, AT&T and Verizon to successfully kill an attempt to impose some fairly-modest privacy standards in California. California's proposal closely mirrored the FCC privacy rules ISPs lobbied the GOP and Trump administration to kill last year. Those rules simply required that companies clearly outline what data is collected and sold, and provide working opt out tools.

As the EFF noted at the time, sidelining this proposed law required a lot of lying on the behalf of Facebook and Comcast, including claims that the modest protections would harm children, prevent law enforcement from doing its job (not true), reduce consumer security, increase internet popups (what?) and even somehow "embolden extremism." It's pretty clear lobbyists didn't have much problem exploiting the (then) recent tragedy in Charlottesville to their tactical advantage, notes the EFF:

"One of the most offensive aspects of the misinformation campaign was the claim that pretending to restore our privacy rights, which have been on the books for communications providers for years, would help extremism. Here is the excerpt from an anonymous and fact-free document the industry put directly into the hands of state senators to stall the bill:

The bill would bar ISPs from sharing potentially identifiable information with law enforcement in many circumstances. For example, a threat to conduct a terror attack could not be shared (unless it was to protect the ISP, its users, or other ISPs from fraudulent, abusive, or unlawful use of the ISP's service). AND the bill instructs that all such exceptions are to be construed narrowly.

In addition to national security scaremongering, the industry put out a second document that attempted to play off fears emerging from the recent Charlottesville attack by white supremacists:

"This would mean that ISPs who inadvertently learned of a rightwing extremist or other violent threat to the public at large could not share that information with law enforcement without customer approval. Even IP address of bad actor [sic] could not be shared."

While ISPs, Google and Facebook successfully managed to stall that bill, a new citizen petition has emerged in its shadow. Dubbed the California Privacy Act, the proposal again focuses largely on transparency, requiring that ISPs and content companies alike disclose precisely what data is being collected and sold, while providing working opt out tools. This new proposal should show up as a ballot initiative in November. In some ways it goes further than the earlier proposal, but in other ways it's less comprehensive ("The ISP privacy bill regulates use, sale, and disclosure of cable and telephone. The initiative goes at sale and disclosure of everyone (tech and ISP) but leaves use untouched," the EFF tells me).

Needless to say, with everybody suddenly at least pretending to care about privacy for a little while in the wake of the Cambridge Analytica scandal and Zuckerberg's testimony before Congress, Facebook was forced to quietly retreat from its opposition to the measure:

Except again, Facebook has consistently fought reasonable privacy measures in California. Backers of the proposal were quick to issue a statement applauding Facebook's retreat, while noting that AT&T, Verizon, Comcast and Google continue to battle the proposal:

"We believe that all consumers deserve the basic rights outlined in our initiative. We call on the remaining corporations who have contributed to the Super PAC opposing this common-sense measure to drop their opposition. Google, AT&T, Verizon & Comcast: if you are not selling our personal information, why are you spending a million dollars to oppose us? Voters overwhelmingly support this measure, and protecting consumers is not only a good business decision, but the right thing to do. It’s time to stop business as usual and to step up and do the right thing."

Of course we'll see if Facebook's opposition persists once the spotlight fades. Facebook had already donated $200,000 to the "Committee to Protect California Jobs" in the hopes of keeping the initiative off the ballot, with matching support from AT&T, Google, Comcast and Verizon. That committee remains very much active in its opposition:

"Steven Maviglio, the spokesperson for the Committee to Protect California Jobs, contends that Facebook still considers the proposed bill to be “flawed.” In an emailed statement, he told Gizmodo, “It is unsurprising that proponents of the so-called ‘California Consumer Privacy Act’ are looking to distract from their deeply flawed initiative that will do enormous harm to the California economy while not protecting anyone’s privacy."

Obviously legislation will play at least some role in addressing the deep well of privacy dysfunction that ranges from your broadband connection to your IOT gadgets. It should be fairly apparent these industry giants aren't likely to support even the most modest of proposals without a fight. An informed and empowered consumer is simply more likely to opt out of data monetization schemes, reducing overall revenues. And as we stumble forward, many of these companies are already proposing their own bogus legislative "solutions" that could make things worse.

People spent much of this week pearl clutching over privacy, but it's a very small fraction of those folks that actually pay attention to the nuts and bolts policy efforts to actually do something about it, especially on the state level. That's going to need to change. Privacy legislation is coming, and the public can either choose to be a part of its construction, or cede that responsibility to industry giants intent on crafting incomplete or potentially harmful "solutions."

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Posted on Techdirt - 12 April 2018 @ 3:37pm

ACLU: If Americans Want Privacy & Net Neutrality, They Should Build Their Own Broadband Networks

from the breaking-the-logjam dept

More than 750 towns and cities across the United States have been forced to build their own networks if they want anything close to next-generation broadband. These towns and cities aren't doing this because it's fun, they're doing it as an organic response to market failure, and the growing cable monopoly that fuels high prices, poor coverage, and abysmal customer service. By and large the incumbent response to this shift hasn't been to offer better, cheaper service, but to literally write and buy protectionist laws in more than 21 states prohibiting locals from making their own decisions.

ISPs also like to demonize these efforts as automatic taxpayer boondoggles, which not only isn't true (municipal broadband, like any other business plan, can be well or poorly designed), but ignores the fact that these towns and cities wouldn't be getting into the broadband business if existing service wasn't so expensive and shitty across wide swaths of America.

Not too surprisingly, the Trump administration's decision to protect these disliked monopolies by killing net neutrality and broadband privacy protections is only driving more interest in such alternative solutions. For example, the ACLU has issued a new report stating that if cities want privacy and a neutral internet, they should join the trend of building their own networks:

"The internet has become a crucial utility, yet unlike water and electricity, quality broadband service in the U.S. is far from universal. Twenty-four million Americans don’t have access to high-speed internet at home, either because it’s not available or too expensive. Lack of access to decent broadband is especially bad in low-income or rural areas and communities of color. In general, there’s very little competition in this market, with most people having only one or two choices of an internet service provider. As a result, internet service in the United States is slow compared to many other countries.

Hundreds of cities, towns, and counties around the country have already turned to community broadband, often providing faster and cheaper service than for-profit telecoms. And, municipally-owned broadband providers can honor net neutrality and privacy values, regardless of what the FCC does or doesn’t do. With these public systems, communities can ensure that internet service is provided in an equitable way.

Except thanks to Comcast, AT&T, Verizon, Charter and CenturyLink's lobbying stranglehold over our leaders, terrible state laws prohibit many locals from being able to even consider the option. This protectionism has been such a problem, companies like AT&T have even tried to sneak anti-community broadband language into unrelated traffic bills when nobody was looking. In some cases, these laws go so far as to ban towns and cities from even striking public/private partnerships with the likes of Google Fiber or Tucows' Ting.

The ACLU advises residents of states that have such restrictions (you can find a complete map here) should, first and foremost, fight to reverse such protectionist measures:

"Unfortunately, telecom lobbyists have convinced at least 21 state legislatures to enact restrictions or outright bans on the ability of municipalities in those states to create their own broadband service — thereby leaving people no choice but to utilize the commercial services that are often slow, unjustifiably expensive, and now poisoned by their lack of protections for privacy and network neutrality...Residents of those states should start by demanding that their state legislators reverse those laws.

Like net neutrality, ISP lobbyists have had great success framing municipal broadband as a "partisan" fight in order to sow dissent and prevent anybody from disrupting their cozy status quo. But wanting better broadband (or wanting a say over tax spending and infrastructure) isn't a partisan concept, and by and large municipal broadband networks are most commonly built in conservative areas. Our collective disdain of Comcast appears to be one of just a few things that easily bridges our deep partisan divides.

Still, after decades of disinformation on this front, ISPs have been very effective in getting people to believe that building your own broadband networks is a vile socialist cabal that always ends in wasted taxpayer money and tears. But again, these towns and cities wouldn't even be considering this if they were happy with incumbent broadband options. These attempts to demonize local broadband networks successfully obfuscate the fact that incumbent ISPs like Comcast are dictating both state and federal policies that are only making our broadband connectivity and competition problems worse.

With ISP lobbyists only making already frustrated towns and cities angrier with the net neutrality repeal and attack on consumer privacy laws, they've only guaranteed that more towns and cities than ever before will be pursuing the roll-your-own option when it comes to broadband. And it's only a matter of time before people catch on and these state-level bans start to be dismantled. If ISPs like Comcast and AT&T don't like it, they have an obvious solution: actually start competing and provide better, faster, cheaper service.

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Posted on Techdirt - 12 April 2018 @ 10:41am

Netflix Bows Out Of Cannes After Festival Tells Streaming Services To Get Off Its Lawn

from the relics-of-a-bygone-era dept

Last month, the folks running the Cannes film festival had a little toddler moment, when they declared that streaming services like Netflix wouldn't be allowed to win the Palme d’Or. More specifically, Cannes boss Thierry Fremaux stated that streaming services wouldn't be allowed to win any awards if they didn't adhere to outdated French film industry release windows. Such windows are increasingly archaic, but the release windows required by France's cultural exception law are particularly obnoxious, requiring a 36-month delay between theatrical release and streaming availability.

Cannes couldn't just come out and admit it was having a "damn kids get the hell off my lawn moment," so it tried to peddle a bunch of nonsense about how this was all about ensuring high festival standards. That, of course, ignores the fact that while Netflix pushes a lot of streaming crap, streaming services in general are increasingly winning both television and film awards. It also ignores the fact that Cannes is trying to dress protectionism up as something more noble than it actually is. Or, that bad streaming content wouldn't be considered for awards anyway.

In response, Netflix has now stated that the company will be avoiding Cannes entirely, Netflix Chief Content Office Ted Sarandos stating the company will be taking its ball and going home:

"We want our films to be on fair ground with every other filmmaker,” Sarandos says. “There’s a risk in us going in this way and having our films and filmmakers treated disrespectfully at the festival. They’ve set the tone. I don’t think it would be good for us to be there."

In a subsequent interview, Sarandos says Netflix learned of its ouster from the media, and was quick to point out that Cannes is really only making itself look stupid here:

"We hope that they do change the rules. We hope that they modernize. But we will continue to support all films and all filmmakers. We encourage Cannes to rejoin the world cinema community and welcome them back. Thierry had said in his comments when he announced his change that the history of the Internet and the history of Cannes are two different things. Of course they are two different things. But we are choosing to be about the future of cinema. If Cannes is choosing to be stuck in the history of cinema, that’s fine."

It's all really just another stupid example of how folks love to try to dress up counterproductive protectionism, stubbornness and resistance to natural evolution as some kind of more elaborate ethos. And how countless people, companies and organizations believe they can somehow thwart disruptive technology to try and roll back the clock to the way things used to be. Of course as Techdirt readers are very much aware, that never tends to work out particularly well.

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Posted on Techdirt - 12 April 2018 @ 3:33am

The FCC's 'Broadband Advisory Council' Keeps Losing Members Due To Cronyism

from the adorable-little-stage-play dept

Last year, FCC boss Ajit Pai repeatedly hyped the creation of a new "Broadband Deployment Advisory Council" (BDAC) purportedly tasked with coming up with solutions to the nation's broadband problem. Unfortunately, reports just as quickly began to circulate that this panel was little more than a who's who of entrenched telecom operators with a vested interest in protecting the status quo. What's more, the panel featured few representatives from the countless towns and cities that have been forced to build their own broadband networks in the wake of telecom sector dysfunction.

When first introduced, the FCC proclaimed that the agency was built to provide the FCC with well-rounded input on how to improve broadband deployment:

"The BDAC's mission will be to make recommendations for the Commission on how to accelerate the deployment of high-speed Internet access, or "broadband," by reducing and/or removing regulatory barriers to infrastructure investment. This Committee is intended to provide an effective means for stakeholders with interests in this area to exchange ideas and develop recommendations for the Commission, which will in turn enhance the Commission's ability to carry out its statutory responsibility to encourage broadband deployment to all Americans."

This being Ajit Pai, you'll probably be shocked to learn that none of this has actually happened. The panel has seen a slow but steady stream of departures by folks who say that not only is the panel ignoring the input of people Pai doesn't agree with, but the panel itself hasn't actually accomplished much of anything. Back in January, San Jose Mayor Sam Liccardo penned a letter saying he'd be resigning from the panel, claiming in his resignation letter (pdf) that the panel exists almost exclusively to help prop up the interests of incumbent ISPs (if you've watched the whole net neutrality thing, this surely comes as no surprise):

"It has become abundantly clear that despite the good intentions of several participants, the industry-heavy makeup of BDAC will simply relegate the body to being a vehicle for advancing the interests of the telecommunications industry over those of the public. The apparent goal is to create a set of rules that will provide industry with easy access to publicly-funded infrastructure at taxpayer subsidized rates, without any obligation to provide broadband access to underserved residents."

Liccardo, one of the only municipal representatives on the panel (quite by intent), goes on to note how the agency has yet to put forth one meaningful solution to truly help bridge the digital divide, something you'll recall Pai constantly insists is his top priority:

"The chairs of the working groups on which I participated have been very cordial, and collaborative in tone, and I am grateful for that. However, after nine months of deliberation, negotiation, and discussion, we’ve made no progress toward a single proposal that will actually further the goal of equitable broadband deployment. Although we’ve adopted principles that pay lip service to that objective, not a single one of the draft recommendations attempts to meaningfully identify any new or significant resources to promote digital inclusion."

Liccardo's resignation has been followed by the resignation of New York City CTO Miguel Gamiño Jr. late last month, who had very similar complaints in his own resignation letter:

"As the BDAC’s process is scheduled to come to a close, it is clear that despite good faith efforts by both the staff and members involved, the membership structure and meeting format of the BDAC has skewed the drafting of the proposed recommendations towards industry priorities without regard for a true public-private partnership. These circumstances give me no choice but to step away from this committee in order to direct the City’s energy and resources to alternative forums that provide more productive opportunities for achieving the kind of cooperative progress in advancing broadband deployment in the public interest."

The reality is that deploying broadband to more remote or less affluent areas is slow-going with limited return on investment, requiring some creative solutions to improve connectivity (especially on the public/private partnership front). But there's a contingent of cocksure, hardline free marketeer types who believe government can absolutely never accomplish anything good, making the idea that better broadband needs to be a combined effort between private industry and local governments a tough pill to swallow.

So instead of swallowing it, folks like Pai have decided to instead embrace protectionist state law that makes the problem worse, while putting on little stage plays like this one designed, predominately, to give the illusion that protecting the entrenched status quo (read: AT&T, Verizon, Comcast revenues) isn't the top priority.

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Posted on Techdirt - 11 April 2018 @ 10:40am

The Video Game Industry Joins The Lawsuit To Save Net Neutrality

from the with-Mario's-help dept

The Electronic Software Association (ESA) has decided to take a break from making up piracy statistics to actually do something useful.

The group, which represents video game publishers ranging from EA to Nintendo, has filed a motion to intervene (pdf) in the looming case against the FCC's repeal of net neutrality rules at the behest of consumers. Numerous consumer advocacy firms, several companies including Vimeo and Mozilla, and 23 State attorneys general have filed suit against the FCC, arguing it ignored the public interest, experts, and objective data when it rushed to kill popular net neutrality rules at the telecom industry's behest.

In a statement posted to its website, the ESA states it felt the need to lend a hand to ensure that ISPs don't use their last-mile monopolies to hamstring innovative and disruptive new games or gaming-related services:

"The internet drives innovation, fuels our 21st century economy, and helps create the jobs of tomorrow—especially for the connected world of interactive entertainment. Consumers deserve rules of the road that prevent blocking, throttling, and other restrictive conduct – and enable the great online experiences that bring meaning and value to all parts of our country. ESA will make that case in the months ahead on behalf of America’s gamers and game makers."

In the full filing, the ESA says its members are concerned that with no rules in place, ISPs may "take actions that could jeopardize the fast, reliable, and low latency connections that are critical to the video game industry." In Canada, that manifested a few years back when Rogers decided to throttle all BitTorrent activity, hampering the then BitTorrent-based World of Warcraft upgrade client. As with every other sector, there's valid worry that ISPs will strike paid prioritization or zero rating deals with the deepest-pocketed companies, putting smaller services and companies at a disadvantage.

The lawsuits against the FCC comes as more than half the states in the union have now proposed their own, state-level net neutrality protections. Large ISPs, meanwhile, have threatened to sue any state that dare try and protect consumer welfare. The lawsuits, which should fully kick off after the FCC finalizes publication of the repeal (expected late this month), should be chock full of insight into some notably bizarre behavior by the Trump FCC as it tripped over itself to pander to the telecom industry.

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Posted on Techdirt - 11 April 2018 @ 6:33am

The Competition-Killing Sprint, T-Mobile Merger Nobody Asked For Is Back On The Menu

from the M&A-mania dept

When last we checked in with T-Mobile and Sprint's longstanding M&A dance of dysfunction, the deal had been scuttled after Sprint was unwilling to give up control post-merger. But something in the dynamic between the two companies (more specifically T-Mobile's German owner Deutsche Telekom and Sprint's Japanese owner Softbank) appears to have shifted, and the deal nobody actually asked for appears to be back on the menu (annoying Wall Street Journal paywall warning):

"Sprint and T-Mobile have rekindled merger talks, people familiar with the matter said, as the wireless rivals explore a combination for the third time in four years. The latest discussions come just five months after a previous courtship collapsed largely over who would control the combined firm. The talks also come in the midst of an antitrust fight between the U.S. government and AT&T Inc.

T-Mobile and its more consumer friendly brand identity have widely been seen as a good thing for the industry (even though T-Mobile's brand schtick doesn't extend to things like net neutrality). The company's "innovative" focus on actually listening to consumers once in a while has resulted in a lot of notable improvements in the industry as other carriers play copycat, including more reasonable roaming costs, the elimination of long-term contracts, and a modest reduction in the tendency to nickel and dime consumers to death with obnoxious hidden fees.

Sprint, meanwhile, has languished in a sort of brand identity hell, with most of its efforts to counter T-Mobile and resonate with consumers going nowhere. While improving slowly, Sprint pretty consistently rates last in terms of overall network quality and performance among the big four carriers, and it seems like the company has been stuck for years promising the network everybody actually wants is just around the next corner. Meanwhile despite a wealthy sugar daddy in Softbank, Sprint's debt load continues to hamstring the company's efforts at improvement.

The argument has long been that combining the two companies will create a more effective competitor for AT&T and Verizon. But that's generally not how competition, or the telecom sector, works. Reducing the total number of competitors almost always results in less incentive to compete. Even with T-Mobile's disruptive habits, the wireless sector already doesn't really try too hard to seriously compete on price. And part of the reason Sprint and T-Mobile have struggled is AT&T and Verizon's monopoly dominance of fiber-based cellular backhaul, something that won't change just because of M&A mania.

As they hunt for possible regulatory approval, Sprint and T-Mobile have previously tried to play on Donald Trump's facts-optional job creation claims, insisting the deal will somehow, magically, be a boon for employment. But analysts that rely on actual facts and hard data (remember them?) have argued the deal will be mammoth job killer:

"Together, the companies reported employing 78,000 in their most recent disclosures. Sprint, based in suburban Kansas City, accounts for 28,000 of those, and T-Mobile for 50,000. Merging the companies, said a report by Jonathan Chaplin of New Street Research, could eliminate “approximately 30,000 American jobs” — which is more than Sprint employs.

"Synergies," indeed.

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Posted on Techdirt - 10 April 2018 @ 3:33am

Broadband Industry Aims To Use Facebook Fracas To Saddle Silicon Valley With Crappy New Laws

from the we-own-the-pen dept

For years now, the nation's broadband industry has clung to one, consistent message: anti-competitive giants like Comcast are innocent, ultra-innovative daisies, and Silicon Valley companies are a terrible, terrible menace. From Ajit Pai's bizarre attacks on Netflix to an endless wave of ISP-payrolled consultants falsely accusing Google of stealing bandwidth, major ISPs have long made it clear they see Silicon Valley not as a collaborator, but as a mortal enemy. Given ISPs routinely try to use their last-mile monopolies to harm disruptive new services with arbitrary barriers and higher, extortion-esque costs, the feeling is generally mutual.

As companies like Comcast NBC Universal and AT&T (and soon Time Warner) grow and push into the internet ad industry, the ISP lobbying message has been consistent: more regulation for Silicon Valley, and virtually no regulation for the broadband industry. Given many of these ISPs are growing natural monopolies, the rules governing them have been (and should be) notably different, and sometimes stronger. After all, however bad Facebook is, you can choose not to use them, whereas if you're like more than half of America, Comcast is your only option if you're looking for real broadband.

Needless to say, the entire (justified) Facebook and Cambridge Analytica fracas has given ISP lobbyists a wonderful new opportunity to push for bad legislation they'll likely be writing. Former FCC boss turned top cable lobbyist Mike Powell has been beating the "regulate Silicon Valley" drumbeat for several weeks now, blaming rising social media "mindshare" for all manner of evils. And I've noticed the arrival of several new astroturf groups calling for regulation of Facebook and Google that are tied to co-opted "minority" organizations with a history of helping AT&T covertly lobby.

With Zuckerberg headed to a hearing this week, the broadband industry has ramped up its tap dance. This blog post by USTelecom, an AT&T backed lobbying organization, proclaims that we should look to the same industry that gave us zombie cookies for examples of exemplary behavior moving forward:

"And, in the search for privacy best practices, Congress need look no further than America’s broadband providers. For over twenty years, internet service providers (ISPs) have protected their consumers’ data with strong pro-consumer policies. ISPs know the success of any digital business depends on earning their customers’ trust on privacy."

From charging users more for privacy to using credit data to provide customers even worse customer service, the broadband industry has been a privacy circus for decades, making this USTelecom's apparent attempt at comedy.

Charter CEO Tom Rutledge this week also joined the festivities by penning a new blog entry proclaiming that Charter really, really wants a new, comprehensive privacy law:

"Tomorrow, Congress will begin important hearings to examine who is collecting what, how that data is shared and sold, and how best to protect and secure personal data when much of our lives are increasingly taking place online. As a company with over 95,000 employees that has the privilege of providing Internet service to 22.5 million homes across 41 states, we at Charter have an important stake in this conversation."

Keep in mind, Charter was one of several major ISPs that lobbied the GOP and Trump administration to kill modest broadband consumer privacy protections before they could take effect last year. Those rules, crafted after endless examples of bad ISP behavior, simply would have required that ISPs clearly disclose what data is being collected and sold. They also would have required that ISPs provide working opt-out tools, and (the biggest reason ISPs opposed the rules) they would have required that consumers opt in to the sharing of more sensitive data.

Yet mysteriously here is Charter, now calling for the creation of new privacy regulations:

"Charter believes individuals deserve to know that no matter where they go online or how they interact with online services, they will have the same protections. Different policies leading to inconsistent protections sow confusion and erode consumer confidence in their interactions online, threatening the Internet’s future as an engine of economic growth. And as an Internet Service Provider, that’s bad for business. So we are urging Congress to pass a uniform law that provides greater privacy and data security protections and applies the same standard to everybody in the Internet ecosystem, including us."

Again, Charter knows it has enough political power right now under the Trump administration and GOP that it will likely be one of the companies that gets to write whatever new privacy legislation gets proposed. And given Charter and Comcast's history, you can be pretty damn sure their version of a "uniform law" likely includes massive loopholes for ISPs, while hamstringing many of the companies large ISPs plan to compete with in the video ad wars to come.

Meanwhile, the rhetoric about "applying the same standards" to everybody in the chain again hopes to confuse folks that don't understand that natural monopolies may need tougher consumer protections (which is what net neutrality was all about). It's much like the calls on some fronts for things like "search neutrality" by people that usually have no earthly understanding of what net neutrality's actually about: protecting consumers from last mile monopoly harms.

As we've been noting, the broadband industry has been attempting to neuter FCC authority over ISPs, then shovel any remaining authority to an FTC that's ill-equipped to handle it. Applauding the FTC as the exclusive handler of telecom privacy concerns actually weakens oversight of telecom monopolies, (especially given AT&T is trying to gut all FTC oversight over ISPs entirely).

Of course Google and Facebook are not innocent victims here either, and they don't want tough, meaningful privacy protections any more than the telecom industry does.

In fact, AT&T, Comcast, Verizon and Charter have recenty put aside some of their animosity to work hand in hand with Google and Facebook to scuttle meaningful privacy rules in California. This entire call for "privacy legislation" may serve multiple functions for ISPs: put a bullet in any efforts to restore tougher and more meaningful FCC authority over ISPs, while working with Facebook and Google on privacy legislation that simply doesn't do much, but does pre-empt the possibility for tougher federal or state protections. Knowing ISPs well, they'll also try to sneak in language that harms their newfound "allies" at the last second.

Giving how corrupt this current Congress is, there's a universe of ways this well-intentioned effort for new meaningful privacy guidelines could go south with genuine consumer privacy being a distant afterthought. There's certainly a case to be made for tough new privacy protections in the wake of IOT dysfunction and the Cambridge Analytica scandal. But it should probably go without saying that we don't want Comcast lawyers (or Facebook and Google lobbyists) writing them.

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Posted on Techdirt - 9 April 2018 @ 8:03pm

The New York Times Tries Something Novel: Listening To And Interacting With Readers

from the treating-humans-like-humans dept

For years the whine-du-jour in online media circles has been about the poor old news comment section. Time and time again we've been told that in the modern era, the news comment section is an untamable and unredeemable beast: a troll-factory hellscape that is simply too hostile and dangerous to be manageable. So instead of trying to fix the problem, outlets have prevented users from commenting at all. Usually these announcements arrive with some disingenuous prattle about how the outlet in question really "values conversation" and was just trying to "build a stronger community" by muzzling on-site discourse.

The real reason killing the news comment section is so popular is less glamorous. Most websites simply are too lazy or cheap to try and explore solutions, since "quality discourse" isn't something site bean counters can clearly monetize. Many other editors simply don't like having an area where plebeians can so clearly and obviously outline errors made during reporting. Many of these editors believe we can and should return the bi-directional internet back to the "letter to the editor era," when publishers got to choose which member of the public was heard.

So while "who cares about on site community" becomes the trend, the New York Times is trying something particularly blasphemous in 2018: actually interacting with their readership. Several columnists have taken to the website's still-operating comment section as part of what columnist Frank Bruni says is part of a newfound effort at the paper to actually talk with readers from "time to time":

"I'm the column's author, hereby beginning a Times-encouraged experiment of joining the Comments thread from time to time. Thank you, PaulB67, and thank you, all, for reading us and for engaging in this conversation."


"Hi. I'm the column's author; with The Times's encouragement, we writers on staff are beginning on occasion to join the Comments threads on the stories we publish."

Of course actually interacting with your readership is well out of line with fashion trends at the moment, and it's unclear how dramatic the Times' effort will be or if it will stick around. Most websites would rather outsource all public discourse to Facebook where it becomes SOP. But it runs in line with comments that former Times editor Liz Spayd began making a few years ago, namely that treating your audience like human beings instead of an irredeemable pile of jackasses might actually help foster better public discourse:

"Clearly, there is more to understanding readers than to literally have editors interact with them each day. Nonetheless, the small number of consumer-facing staffers is indicative of the bigger problem: a newsroom too distant from the people it serves...

What would prove more fruitful is for newsrooms to treat their audience like people with crucial information to convey — preferences, habits and shifting ways of consuming information. What do they like about what we do and how we do it? What do they want done differently? What do they turn to other sites for?"

That this is a novel idea tells you just far off trail we've wandered.

Spayd has since departed the Times to go work as a Facebook public image consultant, but apparently her lofty goal of actually giving a damn (TM) appears to have stuck around at the Times, for now. Again, actually interacting and caring about your audience is important, but recent evidence also suggests it doesn't really take much effort to craft tools that can have an immediate, positive impact on the quality of public discourse in comment sections. Yes, the news section is filled with a lot of bile and buffoonery, but the idea that this means all on-site news readers should be muzzled continues to be a popular, but flimsy, narrative.

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Posted on Techdirt - 9 April 2018 @ 9:30am

CenturyLink Tries To Dodge Broadband Billing Lawsuit By Claiming It Technically Has No Subscribers

from the impressive-tap-dancing dept

Broadband ISP CenturyLink has been on the receiving end of an ocean of lawsuits accusing the company of billing fraud after a whistleblower (who says they were fire for bringing it up to management) revealed systemic efforts to routinely overbill users and sign them up for services they never asked for. And while CenturyLink tried to claim an investigation of itself found no wrongdoing (shocking!), State AGs like Minnesota's Lori Swanson say in their complaints (pdf) that they've found plenty of evidence proving that billing fraud was a routine occurance at the broadband provider.

Most of these lawsuits have since been combined into one class action suit. And CenturyLink has since developed a fairly creative attempt to dodge legal liability for its misdeeds: by claiming it doesn't technically have any customers. Technically CenturyLink has 5.66 million broadband subscribers as of last year, but a new brief filed by the company tries to argue it's not culpable because "CenturyLink" is technically just a holding company that manages 10 subsidiaries around the country:

"That sole defendant, CenturyLink, Inc., is a parent holding company that has no customers, provides no services, and engaged in none of the acts or transactions about which Plaintiffs complain," CenturyLink wrote. "There is no valid basis for Defendant to be a party in this Proceeding: Plaintiffs contracted with the Operating Companies to purchase, use, and pay for the services at issue, not with CenturyLink, Inc."

Customers signed up for business relationships with those 10 companies (Qwest Corporation; Embarq Florida, Inc.; Embarq Missouri, Inc.; Carolina Telephone and Telegraph Company LLC; Central Telephone Company; CenturyTel of Idaho, Inc.; CenturyTel of Larsen-Readfield, LLC; CenturyTel of Washington, Inc.; CenturyTel Broadband Services, LLC; and Qwest Broadband Services, Inc.), most of which are just holdover names left over by the company's 2011 acquisition of and earlier fusion with CenturyTel and Embarq. Domains for those companies all resolve to CenturyLink.com.

Because customers signed user agreements with those ten subsidiaries holding them to binding arbitration, CenturyLink lawyers argue that CenturyLink proper can't technically be sued for wrongdoing. You'll recall that thanks to AT&T and a 2011 Supreme Court decision, companies can now strip away your legal rights via fine print, instead forcing you into binding arbitration, where the corporation is victorious more often than not. And while the class action system is arguably broken (unless your criteria involves helping lawyers buy new boats), the arbitration system we've supplanted it with is arguably worse.

Needless to say, the plaintiffs trying to hold CenturyLink accountable for routinely ripping them off aren't impressed by the company's strategy:

"We reject these heavy-handed, anti-consumer tactics and the absurdity of these shell entities that CenturyLink claims to operate under," Meiselas said..."The arbitration clauses they're trying to enforce post-date the litigation," he said.

"The arbitration clauses they're trying to enforce post-date the litigation," he said.

Even with Supreme Court ruling ISP efforts to shovel users into binding arbitration isn't always successful, depending on state law. For example a US District Court judge in California recently ruled that AT&T couldn't force customers into binding arbitration because California law prohibits some aspects of mouseprint arbitration efforts. CenturyLink, meanwhile, is one of several U.S. telcos that have been hemorrhaging customers thanks to their refusal to seriously upgrade their aging copper networks at scale. Between that and the company's billing shenanigans (which include imposing fees for doing absolutely nothing), CenturyLink's effort to have zero customers may just prove successful yet.

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Posted on Techdirt - 6 April 2018 @ 6:24am

Ex-Obama FTC Boss Now Lobbying For Comcast, Trying To Prevent States From Protecting Consumers

from the revolving-door-regulation dept

While the Trump FCC has certainly taken protectionism, corruption and cronyism to an entirely new level, it's important not to forget that Trump and Ajit Pai are just products of the country's long established bipartisan dysfunction when it comes to revolving door regulators, and it's going to take more than just ejecting Trump and Pai to repair the underlying rot that has allowed them to blossom.

Case in point: former Obama FTC boss Jon Leibowitz, who has long professed himself to be a "privacy advocate," has spent much of the last few years lobbying for Comcast while at Davis Polk. That has included making a myriad of false claims about ongoing, EFF-backed efforts to protect broadband consumer privacy in California.

In an endless wave of op-eds (where his financial conflicts of interest are almost never disclosed to the reader), Leibowitz has been busy insisting that rampant ISP privacy abuses are a "nonexistent problem," and that strong state and FCC oversight of ISPs are unnecessary because the FTC will somehow rush in to save the day in the wake of efforts to neuter the FCC, kill net neutrality, and embolden massive anti-competitive telecom duopolies.

We've already outlined in detail why that's a horrible take here. More specifically, the FTC lacks rule-making authority, and can only act against ISPs if behavior is clearly proven to be "unfair and deceptive," something ISPs can usually wiggle out of on the net neutrality front (we weren't throttling a competitor, we were protecting the safety and integrity of the network!). The FTC's also understaffed, under-funded, and over-extended. And oh, did we mention that AT&T has been busy in court trying to obliterate whatever authority over ISPs the FTC does have?

Leibowitz (like most ISP lobbyists pretending to be objective analysts) "forgets" to mention that.

With more than half the states in the nation now considering some flavor of net neutrality and privacy rules in the wake of federal apathy, Leibowitz is also busy trying to help Comcast scuttle privacy and net neutrality in other states like Massachusetts. Massachusetts, with the backing of dozens of lawmakers, is contemplating new net neutrality rules that would effectively mirror the ones Comcast lobbied the FCC To dismantle last December.

Leibowitz's oppositional testimony this week in front of state leaders included claims that net neutrality somehow hampered broadband industry investment, an ISP-lobbying claim routinely debunked by just looking at ISP earnings reports, SEC filings, and countless CEO statements:

"According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized "the sky did not fall" when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers. But he said that reclassification did have costs to consumers, including diminished deployment of broadband, according to the FCC, as well as removing broadband consumer protection from the FTC's jurisdiction."

Again that diminished deployment never happened. ISP CEOs admit as much. Meanwhile, the "sky did not fall" because the FCC's 2015 net neutrality rules haven't even technically been repealed yet (that's expected to occur sometime in April). Even then, ISPs aren't expected to truly even start testing their newfound anti-competitive freedoms until they're sure the FCC (with ISP help) wins their looming legal battle. Even then ISPs may not truly be comfortable behaving badly until they're sure tougher state and federal rules are pre-empted (that's why they're pushing for a fake, loophole-filled net neutrality law.)

Knowing that states might fill the consumer protection vacuum, both Verizon and Comcast lobbied the Trump FCC to include language in their net neutrality repeal trying to ban states from protecting consumers (from net neutrality or privacy violations). And while Leibowitz tried to warn Massachusetts leaders that they might run afoul of the Trump FCC if they try to protect consumers (oh no!), that ignores the fact that legal experts say the FCC abdicated its authority on this front when they decided to back away from classifying ISPs as common carriers.

Again, dozens of individual state privacy and net neutrality protections aren't ideal, but that's something Leibowitz's client Comcast should have thought about before lobbying to demolish popular and modest federal level privacy and net neutrality protections. The fact that ISP lobbyists still cling to false claims that net neutrality "demolished sector investment" speaks volumes as to the integrity of their arguments. Meanwhile, at some point media outlets in the States need to wake the hell up to the harm caused by publishing lobbyist op-eds without disclosing authors' financial ties to industries they represent.

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Posted on Techdirt - 5 April 2018 @ 1:26pm

More Colorado Towns Vote Down A Comcast State Law Hamstringing Broadband Competition

from the roll-your-own dept

For years we've discussed how incumbent ISPs like Comcast have spent millions of dollars quite literally writing and buying shitty, protectionist laws in more than twenty states. These laws either ban or heavily hamstring towns and cities from building their own broadband networks, or in some cases from even engaging in public/private partnerships. It's a scenario where ISPs get to have their cake and eat it too: they get to refuse to upgrade their networks in under-served areas (particularly true among telcos offering DSL), but also get to write shitty laws preventing these under-served towns from doing anything about it.

ISPs and beholden lawmakers shoveled these bills through state legislature without much challenge. But as deployments like Google Fiber began highlighting how these laws actually harm efforts to improve competition (especially restrictions on public/private partnerships, essential in lower ROI areas), passing such legislation has become more challenging. In some states, that has forced companies like AT&T to try and hide competition-killing provisions in unrelated traffic or other bills.

This dance of dysfunction has been particularly interesting in Colorado, however. While lobbyists for Comcast and CenturyLink managed to convince state leaders to pass such a law (SB 152) in 2005, the legislation contains a provision that lets individual Colorado towns and cities ignore the measure with a simple referendum. With frustration mounting over sub-standard broadband and awful customer service, more than 86 cities and towns and more than 30 counties have already overturned the law as it applies to their localities.

While votes this week are still being counted (warning: adblock blocker) dozens more colorado towns are expected to follow suit this week. That includes Fort Collins, which this week voted to approve $142 million in revenue bonds to help build its own broadband network (an idea Comcast lobbyists tried to ban the city from even discussing). Six additional towns considered ballots to ignore the state law this week, and the vote totals so far aren't even close (locals tell me yes 1568 to 347 in Firestone, Yes 634 to 69 in Frisco).

Locals, shockingly, are increasingly tired of broadband monopolies:

"If an area doesn’t have reliable, good broadband access and availability, that area is not going to thrive,” said Jud Hollingsworth, a town trustee with Lake City, a mountain town of several hundred residents that is among the most remote in Colorado. “Residents here are saying if they could have some competition in that area, they would welcome that."

Across the state in Limon, town manager Dave Stone said residents in his eastern plains community have been less than pleased with the internet service they get now.

“We continually hear from people who have difficulty getting the broadband service they need,” he said. “They certainly feel there’s a need for competition in town."

Again, ISP lobbyists (and the fauxcademics, consultants and think tankers paid to parrot ISP positions) have tried to argue that municipal broadband is a vile socialist cabal that threatens private industry and always results in failure. But that's not only patently untrue, it obfuscates the fact that these towns and cities are only exploring this option after the telecom sector failed for more than a decade to offer fast, affordable service thanks to monopoly power and regulatory capture.

Comfy with their regional monopolies propped up by cash-compromised lawmakers, ISPs have refused to upgrade towns and cities they don't feel will be profitable enough, quickly enough. The Trump FCC's nonsensical "solutions" to these long-standing issues (killing privacy protections and net neutrality) have only made the problem worse, which, in turn, has only made the idea of community-owned and operated broadband networks more appealing than ever:

"(Colorado Broadband Office Executive Director Tony) Neal-Graves said some municipal leaders in Colorado were “spooked” by the FCC’s December ruling and want to make sure they have more than just one choice of internet provider, no matter where they might be located in the state."

Much like the state-level backlash on net neutrality, it's another example of how cocksure ISP lobbyists didn't quite think things through before waging their state-to-state war on competition, common sense, and public welfare.

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Posted on Techdirt - 5 April 2018 @ 6:27am

FCC Commissioner Says Her Agency Is Now Just A Giant Rubber Stamp For Sinclair Broadcasting

from the ill-communication dept

If you've been napping, the Ajit Pai run FCC has been busy gutting decades-old media consolidation rules just to grease the skids for Sinclair's planned $3.9 billion acquisition of Tribune. The deal, if completed, would give Sinclair ownership of 230 broadcast stations, reaching 72% of the public with what's generally considered facts-optional "news" on a good day. Consumer advocates and media watchdogs have been warning about the negative impact such media consolidation has on competition and local reporting for decades, largely to yawns and eye rubs from many in the tech sector.

The importance of limits on media consolidation have seen renewed attention as the United States tries to get a hold of its previously-ignored disinformation problem(s). Last week Deadspin published a video highlighting how Sinclair forces its reporters to parrot factually-dubious commentary in a relatively creepy fashion, much of it blasting any critical reporting on the Trump administration as "fake news":

It's worth noting that opposition to Sinclair's deal is bipartisan in nature. Democrats oppose the deal because it would extend the reach of a "news" organization that has repeatedly been caught parroting Trump disinformation and misleading its audience. But many Conservatives oppose the merger as well, rightly worried that a larger Sinclair could have a stifling impact on smaller news organizations. And many Sinclair employees say they're frustrated by the company's policies as well, but note that noncompete and other contract language makes quitting financially untenable:

"After Sinclair Broadcast Group Inc. drew widespread criticism for having anchors read a statement taking aim at the integrity of other U.S. media outlets, many wondered why some of the company’s journalists didn’t just quit.

The short answer is the cost may be too steep. According to copies of two employment contracts reviewed by Bloomberg, some Sinclair employees were subject to a liquidated damages clause for leaving before the term of their agreement was up: one that requires they pay as much as 40 percent of their annual compensation to the company."

While Deadspin's video brought some welcome attention to our mindless media consolidation problem and the impact it has on quality local reporting, most of the analysis didn't even tell the full story. For example, few bothered to point out that FCC boss Ajit Pai is already facing a bipartisan investigation by the FCC's own Inspector General for potential corruption in his dealings with Sinclair. And many overlooked this recent lamentation by Pai's fellow Commissioner Jessica Rosenworcel on how Pai's FCC is little more than a glorified rubber stamp for the alternative-fact broadcaster:

"Every element of our media policy is custom-built for the business plan of Sinclair Broadcasting,” says Rosenworcel. “That is stunning, it is striking, and it looks like something’s wrong. And I’m not the only one to think that. We’re burning down the values of media policy in this agency in order to service this company."

"Looks like?" Of course none of this is entirely new, and pushing through unpopular megamergers without seriously weighing the negative impact on markets or the public welfare is a time-honored, bipartisan tradition. Much like the man who appointed him, Pai's just taking existing, long-standing dysfunction, corruption and revolving-door regulation to an entirely new level. And if Pai's response to the massive net neutrality backlash is any indication, he's too intellectually and ideologically cocksure to seriously weigh legitimate bipartisan criticism (or the facts) ahead of the Sinclair merger vote later this year.

Being an unelected bureaucrat there's not much to do about Pai outside of voting out his employer, but hopefully his mindless defense of broadband, media, and even prison phone monopolies at least serves an education function for those with the tendency to ignore a decade of warnings about the downsides of mindless M&A mania.

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Posted on Net Neutrality Special Edition - 4 April 2018 @ 6:28am

Comcast's Top Lobbyist Is Pushing A Net Neutrality 'Compromise' That Isn't

from the zero-credibility dept

With net neutrality rules currently on the chopping block, Comcast's top lobbyist is once again trying to sell people on letting giant ISPs pick winners and losers on the internet. The FCC's 2015 net neutrality rules explicitly banned "paid prioritization," or letting one company (say, Disney) buy itself a network advantage over more cash-strapped competitors. While the FCC's 2015 rules carved out vast exceptions for legitimate prioritization (VoIP, medical services), they made it clear that anti-competitive paid prioritization deals of this kind distorted the traditionally level playing field, letting the wealthiest companies buy an unfair edge over competitors.

And while Comcast used to promise that it would never consider such deals, those promises have slowly but surely evaporated the closer we get to the net neutrality repeal the company has spent millions on. As we get closer to a country without real net neutrality protections, Comcast's promises to avoid such pay-to-play schemes have been not-coincidentally mysteriously disappearing from the company's website.

Now Comcast's top lobbyist David Cohen (who calls himself the company's "Chief Diversity Officer" to tap dance around lobbying disclosure rules) has been making the rounds trying to suggest that paid prioritization isn't all that bad. Speaking at a recent telecom industry-funded think tank event, Cohen tried to argue that "politics" has gotten in the way of a real conversation about such proposals, and that hard rules banning all prioritization would hamstring innovation:

"He said there has been a recognition that "something might come along that is not anticompetitive, that is pro-consumer, and that is a specialized service not available to every user of the internet that would be in the public interest."

He said the paid prioritization/specialized service example, which he raised at last week’s American Cable Association conference in Washington, was about what could happen if people sat down to talk about the issue rather than playing politics with it. His point was that there was a conversation to be had about pro-consumer, non-anticompetitive services if folks would get past the politics."

But that's bullshit. There was a way to allow sensible, innovative prioritization deals while still outlawing anti-competitive paid prioritization: the 2015 FCC rules that Cohen and his buddies lobbied the Trump FCC to repeal. Again, we had this problem pretty much resolved already with rules that allowed for the prioritization of essential and specialized services, but prohibited deals that put smaller players at an anti-competitive disadvantage. Rules that took years of debate to craft, only to be discarded because the Trump FCC decided to ignore the public, ignore the experts, and kiss Comcast's giant, monopolistic ass.

This idea that net neutrality will hamper innovation is a canard the industry has been circulating for years. Both Comcast and Verizon have also repeatedly tried to falsely claim that net neutrality rules harm the sick and disabled, despite the fact that's never been remotely true. But said canards have been dusted off and repurposed as Cohen renews a push for "rational" net neutrality legislation with weaker limits on prioritization deals:

"If rational people will sit down and talk about this, they can even resolve what has become a third rail around bipartisan network neutrality legislation," he said."

What's Cohen's really up to here? Again, the broadband industry is (quite justly) worried that the Trump FCC's net neutrality repeal won't hold up in court, in large part thanks to all the shady behavior the FCC either directly engaged in or turned a blind eye toward during the repeal. Large ISPs like Comcast, AT&T and Verizon are also increasingly worried about the fact that more than half the states in the country are now pursuing their own net neutrality rules in the wake of federal apathy on the subject.

As such, the industry is pushing hard for a fake net neutrality law it knows its lawyers will get to write. A law so filled with loopholes it would be effectively useless in policing net neutrality. But it would serve one primary purpose: it would both pre-empt tougher state efforts, and prevent the FCC's 2015 rules from being restored in the wake of an FCC and industry court loss. As large ISPs get more and more nervous about their chances in court, you're going to see the sale pitch for this bogus "compromise" legislative solution only grow.

Again, if you support net neutrality, the best path forward rests with the courts, not garbage "compromise" legislation being pushed by a company with zero credibility on this subject. If the courts don't stop the FCC's repeal, the next best option is voting out the lawmakers that sold out the public at Comcast's behest, then trying again down the road with an FCC and Congress that isn't quite so cash-compromised.

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Posted on Techdirt - 3 April 2018 @ 12:04pm

It's Grindr's Turn In The Barrel As America Finally Decides To Care About Consumer Privacy

from the standard-operating-procedure dept

Whatever you think about the Facebook Cambridge Analytica kerfuffle, it's pretty obvious that the scandal is causing a long overdue reassessment of our traditionally lax national privacy standards. While most companies talk a good game about their breathless dedication to consumer privacy, that rhetoric is usually pretty hollow and oversight borders on nonexistent. The broadband industry is a giant poster child for that apathy, as is the internet of very broken things sector. For a very long time we've made it abundantly clear that making money was more important than protecting user data, and the check is finally coming due.

While it may only be a temporary phenomenon, the Cambridge Analytica scandal is finally causing some much-needed soul searching on this front. And given how deep our collective privacy apathy rabbit hole goes, being sloppy with consumer data may actually bear witness to something vaguely resembling accountability for a little while. Case in point is gay dating site Grindr, which this week was hammered in the media after it was revealed that the company was sharing an ocean of data with app optimization partner companies, including location data and even HIV status.

Norwegian nonprofit SINTEF was commissioned to dig into the problem on behalf of Swedish public broadcaster SVT, which first broke the story. According to SINTEF, Grindr was also sharing its users’ precise GPS position, "tribe" (their preferred gay subculture), sexuality, relationship status, ethnicity, and phone ID with third-party advertising companies. And, because even "anonymized" data can never be truly considered anonymous, they concluded it isn't hard to identify these users based on this data.

Many were surprised that such a popular company would have such a casual disregard for its consumer privacy:

"Grindr is a relatively unique place for openness about HIV status,” James Krellenstein, a member of AIDS advocacy group ACT UP New York, told BuzzFeed News.

“To then have that data shared with third parties that you weren’t explicitly notified about, and having that possibly threaten your health or safety — that is an extremely, extremely egregious breach of basic standards that we wouldn’t expect from a company that likes to brand itself as a supporter of the queer community."

But again, this casual treatment of data isn't errant behavior on Grindr's part -- it's the norm. And in this case, many are correct to point out that in addition to it being problematic that users didn't know this data was being shared outside of the Grindr community, the exposure of the HIV data (which again was only with two app optimization companies) could potentially have placed people living in homophobic areas at risk of violence:

To its credit, Grindr wound up announcing that it would stop sharing HIV data with third parties, but not before the company issued a statement tinged with the usual lamentations about "misinformation." Several statements were made of the "everybody does it," flavor which didn't help the company's case. Grindr security chief Bryce Case also got defensive in comments to Axios about how the company was being "unfairly" singled out due to the Cambridge Analytica scandal:

"I understand the news cycle right now is very focused on these issues," Case said, but added, "I think what’s happened to Grindr is, unfairly, we’ve been singled out..."It’s conflating an issue and trying to put us in the same camp where we really don’t belong."

But nobody accused Grindr of doing what Cambridge Analytica did. They did however accuse the company of what's now fairly standard privacy apathy across countless industries, including overlong terms of service that don't make it clearer what data is being shared with whom, the sharing of some of private consumer data in unencrypted plain text (you know, like your television probably does), and sharing extremely-sensitive HIV status data that pretty clearly wasn't necessary for "app optimization":

"But some security experts say that this argument about whether the data was being sold to a third party for nefarious purposes or not misses the point: that HIV data is highly sensitive, and that sharing it with any outside companies is a move away from the security of its users.

"There was no reason for them to be storing that data with these analytics companies in the first place," Cooper Quintin, senior staff technologist and security researcher at the Electronic Frontier Foundation, told BuzzFeed News. "Grindr should be taking extra steps to secure this sort of very personal data."

It's understandable that Grindr doesn't want to be lumped in with Cambridge Analytica, and it's obvious that there's a vast chasm between sharing some data with ad optimization partners and using unauthorized data to disrupt elections. Still, companies like Grindr are lucky that this come to Jesus moment in consumer privacy didn't arrive years ago.

Assuming this concern for privacy isn't just a temporary fashion trend, Grindr's certainly not going to be the last company caught in the crossfire of what should be seen as a cultural learning process. And hopefully, some of the truly terrible players on this front (like the telecom sector) will ultimately witness their time in the barrel as well. Especially since what many wireless carriers have routinely been up to makes Grindr's privacy missteps look like child's play, and the government's response so far has been to make it easier than ever to violate consumer privacy.

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