Flash Digest – News in Brief

Digest Reports First Amendment Flash Digest

Democrats to Reverse FCC Net Neutrality Repeal

On February 27th, Democrats in the Senate introduced a resolution to reverse the Federal Communications Commission’s  (FCC’s) “Restoring Internet Freedom” order repealing the agency’s prior net neutrality rules from 2015. The FCC’s 2015 Open Internet Order prevented Internet service providers from engaging in blocking, throttling, or paid prioritization. 

The Congressional Review Act allows Congress to overturn an agency rule by a majority vote within 60 days of the rule’s publication on the Federal Register. The FCC published its new order on February 22, 2018, meaning that Congress has until April 23rd before the order goes into effect.

Sen. Ed Markey (D-Mass.) is spearheading the resolution in the Senate. With support from all 57 Democrats, the 2 Independents, and Sen. Susan Collins (R-Maine), the resolution is one vote away from the 51 votes needed to succeed. In the House, 150 Democrats have sponsored the resolution with no support from Republicans. Politico states that the resolution is unlikely to pass, but it will be an important symbolic measure when net neutrality becomes a campaign issue for the 2018 midterm elections.

Other net neutrality bills have also been proposed in the House and the Senate. In 2017, Marsha Blackburn (R-Tenn.) introduced the Open Internet Preservation Act in the House, and on March 7 of this year, Sen. John Kennedy (R-La.) introduced a companion bill in the Senate that would restore some of the 2015 net neutrality rules. These bills would prevent blocking and throttling on the Internet but not paid prioritization. Public interest advocacy groups like Free Press say that Sen. Kennedy’s bill does not go far enough to protect net neutrality.

Individual states are also passing their own net neutrality laws in response to the FCC repeal. The Verge points out, however, that the FCC repeal preempts any state legislation, so ISPs will likely sue to fight the state laws. Attorneys General from over 20 states, advocacy groups, Internet companies, and more have also filed lawsuits against the FCC.


Rhode Island Legislature Introduces Bill to Create $20 Porn-Unblocking Fee

Democratic state Senators Frank Ciccone and Hanna Gallo introduced a bill in the Rhode Island Senate to force Internet Service Providers to block “sexual content” and charge a $20 one-time unblocking fee to access porn and other “offensive material” online. The bill appears to block all sexual content by default, but Sen. Ciccone has said that it will be an opt-in parental block where consumers would have to first request the block for it to be imposed.

The bill titled “An Act Relating to Public Utilities and Carriers—Internet Digital Blocking” would require consumers to make a request in writing, provide identification of proof of age over 18, acknowledge the danger of deactivating the block and pay a one-time $20 fee to access “sexual content” online. The one-time $20 fees would be used to fund operations against human trafficking.

A reporting mechanism would be created to unblock any non-sexual content that was wrongly blocked, but non-compliance could result in a fee up to $500. The bill adopts the definition of “sexual conduct” found in Rhode Island General Law § 11-31-1, which includes “act[s] of sexual intercourse, normal or perverted, actual or simulated” and more. As pointed out by Ars Technica, the bill in its current form appears to allow Internet users to view legal porn or child pornography as long as they pay the fee.

Other state legislatures have considered similar bills, but some look at more specific types of sexual content such as child pornography. A Virginia bill also requiring a $20 unblocking fee failed to pass the committee stage.

Should the bill pass, it could conflict with net neutrality rules and First Amendment free speech rights. Because it requires Internet service providers to block content, it would violate the no blocking rules under current FCC rules. However, that would be no longer be an issue once the FCC’s net neutrality repeal goes into effect in April. Of course, the Rhode Island legislature has also proposed additional net neutrality legislation that could be problematic for this bill. Under Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), First Amendment rights could also be an issue should the bill be too broad and suppress “a large amount of speech that adults have a constitutional right to send and receive.”


FBI Director Calls for Solutions to Encrypted Phones

FBI Director Chris Wray gave a speech at Boston College that again called for solutions to the “Going Dark” problem, which refers to the difficulties faced by law enforcement when trying to extract data from encrypted phones.

Wray said that the FBI was unable to access almost 7,800 encrypted devices­­­­ –– over half of encrypted devices the FBI attempted to access in 2017 –– which he considers “a major public safety issue.” He emphasized the need for information security measures to be “thoughtfully designed so they don’t undermine the lawful tools we need to keep the American people safe." Tim Cushing of Techdirt is skeptical of the significance of the number of phones that cannot be decrypted, questioning whether the FBI is using all its resources and whether the encrypted phones are actually impeding investigations.

Wray stated that the FBI supported strong encryption but believed that either a legislative or technical solution could be found that would still allow government access to encrypted devices when it has a warrant. A report from the Berkman Klein Center by technical experts in the field found that such a solution is not possible. Various other solutions have been proposed, such as the use of metadata, hacking, third parties hosting data on the cloud, and more.

The FBI has been pushing for increased access to digital devices for decades. The issue became a huge concern after the 2015 San Bernardino shooting, when the FBI requested Apple’s help to decrypt the shooter’s iPhone. Apple resisted the FBI’s attempts to force the company to provide assistance, and eventually the FBI found another company that provided the necessary decrypting software.

Wray’s speech is part of a continuing effort by the FBI and other government entities to advocate for “responsible encryption” that will give law enforcement access to encrypted devices.


 Alicia Loh is a 1L student at Harvard Law School.