OTT #20 | Autumn 2019

LETTER FROM THE DIRECTOR

Dear Friends,

Fall has come and gone, and with it came important decisions with huge bearing on OTI’s work. The D.C. Circuit ruled partially in OTI’s favor in Mozilla v. FCC, the case we brought as petitioners, along with public interest, industry, and government, to block the FCC’s 2017 repeal of federal net neutrality rules. And, in spite of repeated and forceful calls from civil society, consumer advocates, rural wireless carriers, state attorneys general, and more, the FCC approved the T-Mobile/Sprint merger, which we maintain will raise prices for consumers, kill jobs, and worsen the digital divide. 

These issues go to the heart of OTI’s mission, and carry huge implications for our work on internet openness and access. A free and open internet that people are able to use regardless of location or economic circumstances is a key part of our vision, and we won’t stop working hard to make that a reality. The net neutrality decision, while disappointing in its overall reaffirmation of the FCC’s repeal, nonetheless yielded an important win by ruling that the FCC’s preemption of state net neutrality efforts was invalid, which heralds a renewed phase of state-level advocacy around the issue. Similarly, more than a dozen state attorneys general are suing to block the T-Mobile/Sprint merger in the absence of federal leadership. 

We are looking forward to a restful holiday season and renewed attention to these issues in the new year. We’re also excited to continue to grow our team—OTI is hiring a policy counsel or policy analyst focusing on internet platform accountability, data privacy, and broadband access and adoption. We have reports, blogs, and exciting projects on the way, so keep your eyes on our website and Twitter for updates!

Warmly,

Sarah Morris
Director, New America’s Open Technology Institute
sarmorris@opentechinstitute.org

NEW AND NOTEWORTHY

Evaluating the Digital Standard

As everyday devices like fitness trackers, home appliances, and security systems connect to the internet, consumers and advocates lack a clear method for evaluating the digital security of this new generation of tech. A coalition of organizations—including Consumer Reports and Ranking Digital Rights—developed the Digital Standard framework for Internet of Things device security to create clear industry standards and enable informed decision-making in the IoT space. To take this work further and make the Standard more accessible, OTI’s project Evaluating the Digital Standard is creating a publicly-available methodology based on the Standard’s framework. And we’re testing the methodology against devices as we go. Analysis of our first device—a smart lock—is well underway, and we’ll continue with more devices in 2020.

Exploring the 21st-Century Privacy Debate

OTI continued our ongoing series of events and reports on emerging topics in the privacy debate with two new publications. In Paying for Our Privacy, OTI examines how the dominant online business model—ad-supported, “free” platforms and services—leverages user data at a massive scale to drive behaviorally-targeted advertising, asking users to trade away their personal privacy in exchange for basic online services. In Enforcing a New Privacy Law, OTI considers the options available to federal policymakers for enforcing privacy legislation. Ideas highlighted in the report include creating a new data protection agency, empowering the FTC or state attorneys general, or allowing for a private right of action. The series’ first event and report focused on the intrinsic connection between privacy and civil rights.

Rising Through the Ranks

In an effort to drive more traffic, engagement, and revenue on their sites, social media and search platforms deploy complex news feed ranking and search algorithms to curate and rank content for users. In our new report, Rising Through the Ranks, OTI policy analyst Spandana Singh highlights a concerning lack of transparency around how these tools are designed, and how they could affect user behavior. What platforms consider high-quality, relevant content is typically what will keep users most engaged, thus helping to drive platforms' bottom lines. The report also raises concerns around how algorithms create filter bubbles and reinforce existing bias and inequality. This is the second report in a series exploring the myriad ways algorithms influence the content we see and engage with online, including through content moderation.

LIVE AT OTI

You can see all of OTI's recent events here.

ISSUES

Net Neutrality

On October 1, the D.C. Circuit ruled partially in favor of OTI and other petitioners in our case challenging the FCC’s repeal of the 2015 net neutrality rules. The court struck down the FCC Order’s broad preemption provision, giving the power to regulate net neutrality back to the states. Additionally, the court sent parts of the Order back to the FCC to be reconsidered, including sections dealing with net neutrality’s impact on public safety and the Lifeline program. With the repeal still in place, the decision highlights the limits of outside action and the importance of passing strong net neutrality legislation in Congress. OTI continues to educate policymakers and the public on net neutrality. OTI published a highly successful one-pager explaining the decision that was widely circulated on Capitol Hill; OTI Director Sarah Morris and Senior Policy Counsel Josh Stager discussed the decision’s future implications at two Congressional panels; and Senior Policy Counsel Eric Null analyzed the decision in a popular Reddit AMA.

T-Mobile/Sprint Merger

In November, the FCC published a widely criticized decision to approve the T-Mobile/Sprint merger. OTI strongly opposed the decision, which includes a convoluted, secretly-negotiated scheme to have Dish Network replace Sprint as a new wireless provider. OTI filed comments in D.C. District Court urging a federal judge to reject this scheme. We have also been highly critical of the FCC’s secretive process and lack of public comment period. And we have long advocated against this merger on the grounds that it will raise prices, kill jobs, and worsen the digital divide. We are also supportive of the 14 state attorneys general who are suing to block the deal in federal court; that case went to trial in December, and a ruling is expected in early 2020.

Broadband Access and Universal Service Fund

Net neutrality is only one piece of OTI’s work on broadband access and adoption. In December, Sarah Morris testified before the U.S. Senate on the implementation of the MOBILE NOW Act. Her testimony focused on the urgent need to close our country’s digital divide, including the shortcomings of 5G for urban and rural communities and the importance of the FCC’s Lifeline program. In September, we submitted comments urging the FCC to begin long-overdue collection of broadband pricing data. We also filed comments in the FCC’s annual Section 706 inquiry that urged the agency to do more to close the digital divide and ensure that every American has access to affordable and reliable broadband. We are also aggressively fighting the FCC’s dangerous proposal to cap the Universal Service Fund, which includes the Lifeline program. We submitted comments and met separately with all five FCC commissioners and the Wireline Competition Bureau to strongly oppose the cap and defend Lifeline.

Encryption

In December, OTI organized an open letter to U.S., UK, and Australian law enforcement officials in response to their calls for Facebook to delay plans to encrypt its messaging platforms. The letter received over 100 signatures from civil society organizations, tech companies and trade associations, and security experts. OTI also publicly encouraged Facebook to follow through with its encryption plans by signing another widely-covered coalition letter. We are also working to educate policymakers on the technical and human aspects of encryption, explaining why building law enforcement backdoors will compromise our digital security without making us safer. OTI Policy Director Sharon Bradford Franklin spoke on multiple Capitol Hill panels in support of strong encryption.

Surveillance, Section 702

OTI joined the Center for Democracy and Technology (CDT) in filing an amicus brief in the long-running Jewel v. NSA case challenging U.S. government surveillance practices. We also continue our advocacy against undue secrecy regarding surveillance practices. After the Intelligence Community released a long-overdue series of FISA Court opinions in October, OTI joined a coalition letter to Acting Director of National Intelligence Joseph Maguire urging that subsequent FISA Court opinions should be declassified and released in a timely manner, and that the FBI should publicly report on statistics that the FISA Court has required it to compile.

Surveillance, Section 215

OTI will be heavily engaged in the upcoming debate around the sunset of several provisions of the USA Patriot Act, including Section 215. Although Congress extended the original December 15, 2019 sunset date by 90 days, this debate will be heating up in the coming months. Section 215 is the law that the U.S. government relied upon to conduct its privacy-invasive bulk telephone records program, which was revealed to the public by Edward Snowden in 2013 and ended by Congress with the passage of the USA Freedom Act in 2015. That act authorized the current Section 215 Call Detail Records program, which, as Sharon Bradford Franklin explained in an earlier piece in Just Security, Congress should end because it is invasive and ineffective. Earlier this year, OTI signed a coalition letter urging Congressional leaders to repeal the program, and spoke out against the administration’s attempts to renew it.

Artificial Intelligence and Platform Accountability

OTI is hard at work on the next report in our series on how AI drives our online experiences, which will focus on ad targeting and delivery. We also joined a coalition of groups pressing the Department of Housing and Urban Development (HUD) to abandon a proposed rule change that would offer housing providers new defenses in discrimination cases when they use algorithms to make decisions on which tenants and buyers to accept. OTI also continued to press Facebook to improve the transparency and independence of its new Oversight Board for Content Decisions. When Facebook released its charter for the new Board, OTI noted several concerns but called the Board’s creation an “encouraging step.” In addition, Sharon Bradford Franklin traveled to Stanford’s AI Ethics, Policy, and Governance conference and spoke on a panel on AI in government. Finally, Spandana Singh published two blogs digging into new corporate disclosures in the tech space: Facebook’s community standards report and Uber’s safety transparency report.

Freeing Up Spectrum

In a major win for innovation and wireless access, the FCC unanimously adopted an order freeing up spectrum in the 5.9 GHz band for unlicensed sharing, a policy FCC Chairman Ajit Pai announced at an event co-hosted by OTI and the Wireless Future Project. In another long-advocated-for win, Pai separately announced that the FCC would conduct a public auction of “C-Band” spectrum rather than a private sale of this public resource. OTI continues to urge policymakers to use the proceeds of this auction to bridge the digital divide, as Sarah Morris argued in her U.S. Senate testimony. Wireless Future Project Director Michael Calabrese participated in a recent Capitol Forum event on the importance of C-Band spectrum to the future of wireless connectivity, where he argued for a public auction ahead of Pai’s decision.

QUICK TAKE

LAST BYTES

Ranking Digital Rights published updated draft indicators for its next Corporate Accountability Index, which add companies’ use of targeted advertising and algorithmic decision-making to RDR’s ranking methodology. Feedback on the draft indicators is welcome. 

OTI is hiring for multiple open positions. We’re looking for a policy counsel or policy analyst to focus on platform accountability, data privacy, and broadband access. TechCongress is hiring a deputy director based in D.C.

In other staffing news, we’re thrilled to announce that Spandana Singh, who has been instrumental in building out our cutting-edge body of work on algorithmic content-shaping, has been promoted to policy analyst. We’re looking forward to sharing more sharp analysis and insights in this space soon.