The FCC approved a set of auction rules today for the crucial 700 MHz spectrum. For 22 MHz of the spectrum, the rules apparently include some openness conditions, as Chairman Martin had indicated was likely. On the other hand, the rules do not require any spectrum to be operated on a wholesale basis with the goal of supporting multiple retail service providers, as CDT and others had urged.

The text of the rules isn’t yet publicly available, which makes it hard to say whether this is best characterized as a glass-half-full or glass-half-empty scenario. For example, it isn’t clear to us how broadly the requirement for openness to applications will be phrased and how it will be interpreted and enforced.

It’s pretty clear that the conditions fall well short of what Google had been publicly advocating in recent weeks. But the media’s excessive focus on Google, probably fueled by efforts of incumbent carriers to portray openness conditions as a money grab by Google, was neither helpful nor accurate. Yesterday’s front-page article in the Washington Post even characterized public interest groups as lobbying on Google’s behalf on the spectrum issue, and suggested that Google was responsible for recruiting various groups and companies to lobby for “its [Google’s] idea of an open network.”

In truth, it’s not just Google’s idea. The idea of an open network with no gatekeepers is one of the core principles that CDT has been fighting for since its inception, and a number of advocacy groups and academics have been working to promote open spectrum and open networks for years. The Public Interest Spectrum Coalition and Frontline Wireless played lead roles in bringing openness considerations to the fore of the spectrum policy debate.

As CDT has said before in the context of Internet neutrality, the debate really isn’t about what’s good or bad for Google. The focus should be squarely on innovation — the next Google, not the current one. Competitive broadband choices and networks that are open to innovative providers of services and applications would end up benefiting upstart entities that today have neither billions of dollars to participate in spectrum auctions, nor FCC regulatory counsel to weigh in on the intricacies of auction rules. Hopefully the FCC Commissioners, in deciding how far to go on openness and in crafting the specific rules, didn’t lose sight of why this really matters. It’s not just about who will buy the spectrum — it’s about whether the spectrum will be employed as key infrastructure that can enable innovation and economic growth by a diverse group of parties, or whether it will be devoted to narrower, single-company business models.

This week, Sen. Lamar Alexander is expected to introduce an amendment to the Homeland Security Appropriations Bill (S. 1644) that would provide $300 million in funding for REAL ID (a program that in total will cost an estimated $23 billion). The debate over REAL ID funding shifts the focus from the more pertinent issue: REAL ID is a fundamentally flawed law that has serious privacy and security problems. Congress must address these problems first before determining how to pay for the program’s implementation.

Senator Alexander’s funding amendment would allocate good money to implement a fundamentally bad law. Furthermore, funding of REAL ID could encourage states that had previously raised privacy and security objections to the law to implement the REAL ID Act in the hopes of receiving more federal funding down the road.

Congress’ foremost focus should be on promoting meaningful driver’s license reform that properly addresses privacy and security concerns, which is exactly what Senator Akaka’s Identification Security Enhancement Act of 2007 does (S. 717). Congress must act immediately — if it waits until the final Department of Homeland Security (DHS) regulations are released this summer, focus will likely shift away from reforming the original statute.

DHS is considering creating a central database of driver’s license and ID card information with no meaningful privacy and security standards. Such an approach would create a single access point to the full identity and personal information of virtually every American including highly sensitive source documents such as birth certificates, Social Security cards, and passports, which REAL ID requires states to scan and store digitally). REAL ID would create a one-stop-shop for terrorists, identity thieves, unscrupulous DMV or other government employees seeking to steal identities or do other harm. These concerns apply equally whether the data is centralized or resides in a system of linked DMV databases without proper safeguards. The weakest state’s security system, if breached, would then allow access to all other databases, even those with much more robust security measures.

REAL ID mandates that each card contain a machine-readable zone (MRZ), which DHS had mandated be standard across all states. The MRZ mandate was intended to aid law enforcement in processing suspects with greater accuracy and efficiency. However, without any use limitations whatsoever, it will be much more likely that government and commercial entities will use the MRZs to log virtually every public and private transaction.

CDT wrote a letter to the Senate expressing these concerns and urging senators to vote against the REAL ID funding amendment.

It’s the morning after the CNN-YouTube debate and Washington is abuzz with the usual post-debate debate about which candidates won, lost and placed. But today, the pundits have something new to opine about: the Internet and its role in transforming citizens from spectators to participants in the political process. There is no question that last night’s debate was a triumph for the Internet, and both CNN and YouTube should be applauded for finding a clever way to use new media to spice up the aging television debate format.

CDT has been tracking the migration of politics to the Internet for a long time and it is fair to say that there were times in the last decade when we feared that clumsy efforts to apply campaign finance rules to the Internet were poised to stifle the ability of ordinary citizens to engage in election-related activities online.

Its worth a look back to see the highly regulatory path the Federal Election Commission (FEC) almost took on campaign finance and the Internet and reflect on how Internet politics would look today if the Commission had not reversed its course.

One of the first battles came in the late 1990’s when the FEC held that the “costs” associated with a citizen-created website that criticized a member of Congress and advocated for the election of his opponent were “independent expenditures” under the law, triggering disclosure and reporting requirements under campaign finance rules. Shortly thereafter, the Commission tied itself in knots over the issue of whether and under what circumstances hyperlinks might be considered a campaign contribution. Take a look at CDT’s report from that year: “Square Pegs and Round Holes: Applying Campaign Finance to the Internet.” It paints a sobering picture of how the government almost sacrificed the most democratizing tool in politics with a ham-fisted application of ill -fitting rules.

It was only a few years ago that a federal court ordered the FEC to write a rule that would apply the Bipartisan Campaign Finance Reform law to the Internet. At first things looked very dark. A staff draft of the rule would have broadly applied campaign finance to the Internet, requiring every online political activist to not only have an Internet connection but a lawyer as well.

This time, bloggers organized in opposition and CDT brought together a powerful coalition to fight the rule. In the end, we won a resounding victory. The final rule exempted almost all citizens’ online electoral activity from campaign finance rules and the rest, as they say is history. If you want to learn more, checkout our online politics page. All of the key documents are there. And if you want to understand more about when campaign finance rules might apply to your online activities, check out our Net Democracy Guide. The short answer is rarely, which is why last night’s debate was such a success.

Over the past few days the major online search engines have made a series of announcements regarding their privacy practices:

• Ask.com has announced a new tool that allows users to request that Ask not retain any of their search queries — the only tool of its kind among the major search engines. Search query logs that Ask does retain will be disassociated from specific user data (IP addresses and cookie identifiers) after they have been stored for 18 months.
• Google has decided to limit the lifetime of its cookies to two years, causing them to expire on the computers of users who do not visit the search engine for two years. Google will also partially obscure IP addresses and cookie identifiers in its search logs after they have been stored for 18 months.
• Microsoft has announced that it will remove all IP addresses and cookie identifiers from its search logs after 18 months, and will store search logs separately from account information (name, email address, or phone number).
• Yahoo will soon announce a new policy to delete portions of IP addresses and cookie identifiers in its search logs after 13 months. After 13 months Yahoo will also apply a personal information filter to remove names, social security numbers, addresses, telephone numbers, and other personal information from its search logs. Yahoo plans to limit the lifetime of its cookies to two years.

These developments indicate that search engines are beginning to compete on privacy. The major search engines have long been competing on the quality of their search results, the clarity of their site design, and their ability to personalize their services. It is high time for privacy to be added to this list. Search is becoming an increasingly integral part of Internet users’ daily lives – for many, it is difficult to go for an entire day without conducting a search. This means that search engines are not only holding more user data than ever, but that the privacy and security of that data impacts more people than ever before.

We hope these recent announcements are only the beginning of a process that ultimately gives users increased control over their online information. Microsoft and Ask.com have proposed that search engines and public interest groups join together to discuss the privacy issues in this area, and we are fully supportive of such a dialogue.

On Thursday I had the opportunity to join CDT Executive Director Leslie Harris when she spoke on a panel entitled “Freedom of Expression in the Internet Era” at the State Department’s annual Democracy, Human Rights, and Labor Officers Conference, “Defending the Defenders.” The panel, which also featured speakers from the Jefferson Institute and the International Research & Exchanges Board, reviewed the state of freedom of speech, especially Internet speech, around the world, focusing on the challenges facing the media in restrictive environments.

Leslie noted that repressive foreign regimes currently take a reactionary approach to Internet freedom of press, by which a journalist might be imprisoned or a blogger silenced, leading to worldwide outcry. Instead of this incident-based strategy, Leslie urged the proactive establishment of sound front-end policy frameworks for the Internet, opening the door for a free press to evolve on top of that policy.

By keeping the barriers to entry low, letting users decide what content they add to and view on the Internet, and not holding operators liable for the content that passes over their networks, Leslie said, policymakers encourage a robust regime unburdened by self-imposed or governmental censorship.

While U.S. Foreign Service workers are trying to urge Internet freedom in developing countries, Leslie pointed out, the United States’ domestic policies can actually undermine its foreign policy efforts in this regard. Our own government’s changing standards for and restrictions on Internet speech as part of the war on terror, along with practices such as demanding that the makers of Internet backbone routers install “backdoors” for law enforcement monitoring into their products, send a “do as we say, not as we do” message to governments already sensitive to U.S. attempts to impose American values on their countries.

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Last week Senator Rockefeller introduced a relatively unnoticed bill (S. 1780) that would effectively overturn a major court decision in the area of free expression: Fox Television Stations v. FCC. On June 4, the Court of Appeals held that the FCC’s recently established stance that a single utterance of a curse word on broadcast television may be indecent, violated the Administrative Procedure Act (APA).

Deviating from a long-standing agency precedent, the FCC had ruled that one-time uses of the common expletives and their various derivations were now presumptively indecent. The Court found this abrupt change in policy to be a violation of the APA. Apparently disappointed by the Second Circuit’s ruling, Senator Rockefeller now wants to mandate that the FCC “maintain a policy that a single word or image may constitute indecent programming.” (The bill is scheduled for Commerce Committee markup on July 19.)

The bill has interesting implications for free expression.

On the bad side: There is no doubt that a mandate by Congress that a “fleeting expletive” can now be found indecent will create a vast chilling effect on broadcast speech. Prior to this bill and the FCC’s policy change, the FCC exercised discretion in determining which utterances were indecent, and consistently found that one-time uses of curse words were not indecent. Now, with a statutory directive stating that the FCC indeed has the authority to find fleeting expletives indecent, it is highly likely that broadcasters will censor themselves even more to avoid being targeted by the Commission.

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Yesterday I had the opportunity to attend a Subcommittee on Telecommunications and the Internet hearing titled “Wireless Innovation and Consumer Protection,” which focused on whether rules to promote consumer choice in wireless devices and applications would benefit the nearly 240 million Americans who are wireless subscribers.

While some of the lawmakers and witnesses at the hearing supported federal action, others maintained that market forces in the competitive space would serve consumers better than government regulation.

Tagged by many as the “iPhone” hearing, in reference to the controversy over Apple’s hot new product, the event kicked off with Chairman Ed Markey (D-MA.) criticizing AT&T’s exclusive service plan for the device, which he called a “Hotel California” service. “You can check out any time you like, but you can never leave: you’re stuck with your iPhone and you can’t take it anywhere.”

In addition to consumer welfare, the hearing considered whether the current wireless marketplace structure stifles innovation by would-be entrepreneurs. The subcommittee discussed Skype’s March petition to the FCC to extend the landmark 1968 Carterfone decision — which opened up a competitive, innovative marketplace for telephonic devices — to the wireless industry.

Separately, public interest advocates — including CDT, in recently filed comments — are pressing the FCC to apply “open access” principles to new licenses that will be granted to the winners of the upcoming 700 MHz band spectrum auction.

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It is evening in Cuzco and I am just back from an amazing two-day trek on the Inca trail. My goals for this trip were simple: take some time away from Internet policy and head to a place that promised adventure and renewal. I have certainly achieved those goals but surprisingly I have also gained a fresh perspective on the work that CDT does and why it matters.

As I arrived in Peru, Machu Picchu had just been named one of the seven new wonders of the world. The people of Peru were elated and every newspaper celebrated the victory. What does this have to do with the Internet? Well, as it turns out, everything. The seven new wonders were selected online by a global poll in which over 100 million votes were cast online and on mobile devices.

The people of Peru launched a vigorous campaign to ensure that their national treasure won a slot. I don’t know the details of the campaign but I do know that there are billboards and flyers everywhere calling on people to go online and vote for Machu Pichu. Bloggers, trekkers and guides were involved and people all over the world responded.

One major newspaper in Lima put it this way (apologies for my rough translation): “the success of an ancient technological wonder was made possible by a modern technological wonder, the Internet.

CDT’s mission is to preserve openness, innovation and freedom on the Internet. Sometimes it is good to stop and reflect on why these values matter. The people of Peru understand why they matter. And because they do, I will return to work with a new sense of purpose.

Following up on its February workshop, the FTC recently released its report on Broadband Connectivity Competition Policy. CDT believes the report provides a generally balanced and comprehensive view of the Internet neutrality debate. We agree with the Commission that proceeding with caution and developing an in-depth understanding of the broadband marketplace are both essential to developing the appropriate policy in this area. However, as FTC Commissioner Jon Leibowitz noted in his concurring statement, the FTC’s conclusions about the adequacy of current law in addressing neutrality concerns are somewhat off-target.

The report explains the FTC’s view that the FTC’s authority to pursue both consumer protection and antitrust enforcement, together with existing FCC and DoJ jurisdiction, can sufficiently address current neutrality concerns. While this may be true in the consumer protection arena — where the FTC has authority over such issues as disclosure of prioritization practices to broadband Internet customers and the potential privacy issues raised by Internet packet inspection – it is less apparent with regards to antitrust. Moreover, in any event, it is not clear that consumer protection and antitrust principles taken together would address all potential neutrality concerns.

As CDT has pointed out in recent comments to the FCC, ISPs may engage in a wide range of packet management practices. While competition law may well be a useful tool in dealing with certain behaviors, such as outright blocking of competing services, it is not clear that other forms of discrimination, such as prioritizing affiliates’ traffic or degrading entire categories of traffic, can be adequately addressed by antitrust regulation. Indeed, as CDT has previously noted to the FTC, it would be more useful for the Internet neutrality debate to focus on the affirmative goal of preserving the Internet’s extraordinary ability to facilitate independent innovation and speech, rather than being limited to an analysis of anticompetitive practices. Some ISP practices may ultimately harm innovation without necessarily being “anticompetitive” in a legalistic sense.

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I just got back from the Federal Trade Commission, where I dropped off the result of a few months of work here at CDT. Our petitionOur amended petition is a request to have the FTC look into the practices of a number of companies that ordered criminal background investigations on their employees — terminating many — without following the basic due process rules established in the Fair Credit Reporting Act (FCRA).

FCRA is an important statute that provides due process rights for people being subjected to background checks. The law gives the targets of checks an opportunity to challenge inaccurate information before that information can be used as a reason to deny a loan, a place to live or a job. Employers performing checks must notify targeted workers that the checks will be performed, provide copies of the reports and explain workers’ rights before terminating them.

We maintain the companies named in our petition, Rail Terminal Services, LLC, H&M International Transportation, Inc, Renzenberger, Inc and Quality Transportation Services, IncQuality Terminal Services LLC, all violated FCRA in ways that infringed on their employees’ core due process rights.

CDT and its fellow petitioners have asked the FTC to examine these companies and these questions, and bring suits against the named companies. We also have asked the FTC to look at instituting notice best practices for individuals that are executing criminal background checks, with the goal of standardizing the information given to subjects of background checks.

CDT also could not have put together this petition without the help from our co-signers: the Legal Action Center, the National Employment Law Project, the National Workrights Institute, Rainbow PUSH and the Teamsters union. We were also helped greatly by Tamara Holder and Ken Merlino, who are representing the affected workers in a private action.

Correction: In a petition filed with the Federal Trade Commission on July 11, CDT incorrectly identified Quality Transportation Services of Ashland, Virginia as a respondent. The petition has since been amended to include the name of the actual intended respondent, Quality Terminal Services of Cicero, Illinois, and to remove that of Quality Transportation Services. To CDT’s knowledge, Quality Transportation Services has no involvement whatsoever in the activities addressed in the petition. The petitioners regret the error.