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Dear Friends of Wireless Messaging, Welcome back to The Wireless Messaging News. nuff said
For our readers whose native language is not English, “nuff said” is a common expression meaning “enough said” As in: what I have previously said should adequately demonstrate my point. One reader who previewed my cartoon—and is much smarter them I am—said that I am a “meme.” I had to look it up in Wikipedia:
So I guess that isn't a bad thing. Further reading revealed that the word meme originated with Richard Dawkins' 1976 book The Selfish Gene. I have read some of Dawkins' works, but didn't remember this word. Unfortunately, at my age there are a lot of things that I can't remember. Since Edward Snowden leaked documents detailing the practices of the NSA and other government agencies, several of the big players on the Internet have incorporated robust encryption to protect their users from “prying eyes.” As long as we have a warm and fuzzy feeling that our government will always do what's best for us, everything is OK. However, once a government starts to discriminate on the basis of political alignment, religion, or race then it's time to take a stand. National security can be used as an excuse for overstepping our constitutional rights to privacy, but remember what Adolf Hitler—the democratically elected leader of Germany—did to the Jews! I can painfully remember seeing signs in a bus station in Virginia, in 1961 saying “White Only” at the water fountain and on the restroom doors. Can we always trust the government to do the right thing? I have had agents from secret government agencies come right here to my office and ask for my assistance. I gave them permission to look through my files, and to search through my computer because I consider myself a patriot, I have no secrets, and I trusted them. Now I wonder. . . This is why I am sharing several news articles again this week on the Apple vs. FBI issue of private text messages on iPhones. I think it matters—a lot. What do you think? Why Apple vs. FBI might be the worst cybersecurity dilemma everVikram Mansharamani
Earlier this week, MIT welcomed a distinguished guest to speak as part of its Internet Policy Research Initiative: Robert Hannigan, director of GCHQ, Britain’s version of the National Security Agency . Extending an olive branch to a fiercely skeptical audience, Hannigan tried to clarify the elusive balance between cybersecurity and national security when it comes to encryption. His talk in Cambridge took place amid a raging legal battle between Apple and the FBI regarding the tech giant’s refusal to unlock an iPhone belonging to one of the San Bernardino shooters. The FBI needs Apple to modify the operating system on the attacker’s phone so that it can gain access to its contents; without doing so, the phone’s contents would be automatically erased after 10 failed attempts to guess the shooter’s password. By circumventing this automatic self-destruct mechanism, an Apple-written “backdoor” to the device would enable the FBI to gain access to the phone by trying every possible password.
Apple argues that the FBI is imposing an unfair burden on the company and is violating its right to freedom of speech . It’s relying on prior cases in which software code has been deemed a form of speech. Major tech firms including Google, Amazon, Facebook and Microsoft have lined up in support of their traditional rival. Silicon Valley fears that a ruling favorable to the FBI would set a precedent that ultimately undermines the tech industry’s ability to secure its products. Given that any backdoor access available to law enforcement might be exploited for nefarious purposes, customers might grow wary of using these devices. Ultimately, the move could undermine both the industry’s and the country’s economic interests. The GCHQ director stressed he did not come to offer a panacea to such dilemmas. Instead, Hannigan argued, solutions would have to be diverse and dynamic to address different contexts and shifting circumstances. In a controversy that often is framed as a binary (privacy vs. security, backdoor vs. locked), he suggested all involved might benefit from looking beyond a simplified black and white characterization. Engineers asking questions after his talk seemed fiercely skeptical. One cryptographer asked why he shouldn’t include Britain’s spy agency in his “threat model,” given allegations of abuses. Another attendee questioned the director’s assertion that TOR , an anonymous networking tool, was predominantly used by criminals. A third expressed skepticism toward the British courts’ Orwellian distinction between “bulk collection” and “bulk surveillance.”
The lively debate was a testament to the increased public scrutiny heaped on spying agencies since Booz Allen Hamilton contractor Edward Snowden leaked documents detailing the practices of the NSA and GCHQ. Although many had suspected the scale of these surveillance efforts was enormous — in part thanks to earlier whistleblowers like William Binney and Thomas Drake — Snowden’s files drew public attention to the tension between privacy and large-scale information gathering in the name of security. But how can we debate the tradeoffs between the cybersecurity of individual devices and our national security interests? Aren’t both important?
The case of the San Bernardino shooter’s iPhone has highlighted the intractability of this predicament more clearly than ever. Given the critical importance of both cybersecurity and national security, prioritizing one over the other is no trivial task. Indeed, FBI Director James Comey said it was the “the hardest question I’ve seen in government,” and Hillary Clinton called it the “worst dilemma ever.” Clearly, there are no easy or obvious answers. Apple supporters argue that mandating restrictions on security would endanger those that rely on the encryption, including journalists and activists in foreign countries. Indeed, as Bloomberg View columnist Eli Lake has pointed out , the U.S. government has helped develop and spread user-friendly encryption technologies for precisely this reason — to support dissidents from China to Russia. Critics argue that such strong encryption enables criminals to communicate without fear of detection. Given the situation’s complexity, the GCHQ director’s call for open, calm, nuanced public dialogue appears sound. Whenever participants in a debate frame problems in black and white and call for silver bullet resolutions, it’s best to summon the most potent superpower we humans have: empathy. It’s essential that we try to see and feel the perspectives of those with whom we disagree. It may well turn out, as advocates of tech firms suggest, that there is an unacceptable security tradeoff in accommodating law enforcement’s demands. But it’s also possible the opposite is true — might technology prevent law enforcement from ensuring our safety? So before you dig your heels in to a position and defend it at all costs, try to see the world differently. Are you in the privacy camp, defending cybersecurity at all costs? How would you feel if you had family members killed in the San Bernardino attack? Or if threats were made today against you or your family? Or are you convinced that law enforcement should take priority? What if hackers could track your every move, every communication? Would that make you feel safer or more vulnerable? We humans tend to prefer clearly defined and certain situations rather than more ambiguous ones. Seeing the world through the eyes of those with whom we disagree is one way to appreciate complexities. Indeed, adopting multiple perspectives may offer our best hope for finding common ground. When it comes to cybersecurity, privacy and national security, doing so may lead us, as Hannigan suggested, to a hodgepodge of partial, diverse and impermanent solutions. As unsatisfying as that may seem, it may be the best we can hope for at this point in time. Taking a step back, analyzing the situation from multiple perspectives and empathizing with those with whom we disagree is the best chance we have to tackle this and the many other conundrums we will increasingly face in the hyper-connected 21st century. Vikram Mansharamani Now on to more news and views. | Wayne County, Illinois
A new issue of the Wireless Messaging Newsletter is posted on the web each week. A notification goes out by e-mail to subscribers on most Fridays around noon central US time. The notification message has a link to the actual newsletter on the web. That way it doesn’t fill up your incoming e-mail account. There is no charge for subscription and there are no membership restrictions. Readers are a very select group of wireless industry professionals, and include the senior managers of many of the world’s major Paging and Wireless Messaging companies. There is an even mix of operations managers, marketing people, and engineers — so I try to include items of interest to all three groups. It’s all about staying up-to-date with business trends and technology. I regularly get readers’ comments, so this newsletter has become a community forum for the Paging, and Wireless Messaging communities. You are welcome to contribute your ideas and opinions. Unless otherwise requested, all correspondence addressed to me is subject to publication in the newsletter and on my web site. I am very careful to protect the anonymity of those who request it. I spend the whole week searching the Internet for news that I think may be of interest to you — so you won’t have to. This newsletter is an aggregator — a service that aggregates news from other news sources. You can help our community by sharing any interesting news that you find.
Editorial Opinion pieces present only the opinions of the author. They do not necessarily reflect the views of any of advertisers or supporters. This newsletter is independent of any trade association. Back To Paging
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FBI could force us to turn on iPhone cameras and microphones, says AppleEddy Cue warns precedent set by San Bernardino case could lead to company being forced to turn users’ smartphones into surveillance devices Samuel Gibbs
If the FBI wins in its case against Apple to help it unlock the San Bernardino killer’s iPhone 5C , it won’t be long before the government forces Apple to turn on users’ iPhone cameras and microphones to spy on them, according to the company’s head of services Eddy Cue. The FBI has demanded that Apple creates custom software that bypasses certain security features of the company’s iOS to allow law enforcement to brute force the passcode of the gunman’s iPhone 5C. But according to Apple , making the modifications necessary in this case would set a dangerous precedent in offering backdoors into users’ smartphones. Cue said to Univision : “Someday they will want [Apple] to turn on [a user’s] camera or microphone. We can’t do that now, but what if we’re forced to do that? “Where will this stop? In a divorce case? In an immigration case? In a tax case? Some day, someone will be able to turn on a phone’s microphone. That should not happen in this country.” The FBI is trying to access the locked iPhone of one of the San Bernardino killers and insists it needs Apple’s due to the software protections built into iOS, which require Apple’s unique signature. But security expert and NSA surveillance leaker Edward Snowden recently said that the FBI’s assertions that only Apple has the capability to unlock the phone is “ respectfully, bullshit ”.
Other security researchers have said that for Apple to modify the iOS software of the iPhone 5C to allow the FBI to guess the passcode via a machine without losing data would be a slippery slope. Apple has the backing of the majority of the technology industry, including Microsoft, Twitter, Facebook and Google, which makes the most-used smartphone operating system, Android. The case will come to a head this month when Apple and the FBI go to federal court to contest the order. The US government was recently dealt a blow in a similar but unrelated case over the unlocking of an iPhone in New York , which it is currently appealing against.
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| BloostonLaw Newsletter |
Selected portions of the BloostonLaw Telecom Update, and/or the BloostonLaw Private Users Update — newsletters from the Law Offices of Blooston, Mordkofsky, Dickens, Duffy & Prendergast, LLP — are reproduced in this section with the firm’s permission.
REMINDER: Accessibility Recordkeeping Compliance Certifications Due April 1On March 4, the FCC issued a Public Notice reminding service providers that are subject to Section 255, 716, or 718 of the Communications Act of their obligation to maintain records of the efforts they take to implement these accessibility requirements, and of their obligation to file their annual recordkeeping certifications and required contact information by April 1, 2016, in the “Recordkeeping Compliance Certification and Contact Information Registry” (RCCCI Registry). Service providers interested in obtaining assistance with this filing should contact the firm. HeadlinesChairman Wheeler and Commissioner Clyburn Propose Lifeline Broadband RevisionsOn March 8, FCC Chairman Tom Wheeler and Commissioner Mignon Clyburn issued a “Fact Sheet” summarizing an Order they are circulating with the full commission aimed at “making broadband more affordable for low-income consumers.” According to the Fact Sheet, the proposed Order will be voted on by the full Commission at the March 31 Open Meeting. Specifically, the draft Order proposes that low income consumers can apply the $9.25 per month support to stand-alone broadband service as well as bundled voice and data service packages. It also proposes minimum service standards, establishes a National Eligibility Verifier, and incorporates a budget mechanism. The Fact Sheet states that the Order:
In a statement released shortly after the Fact Sheet, Commissioner O’Rielly expressed some consternation: It’s impossible to tell whether the “budget mechanism” is actually a budget in any real sense of the word. It is unclear what “Commission action” would take place when spending gets close to the amount specified — would the full Commission get a vote? And what is the rationale to justify increasing spending on this Universal Service program — but not others – by $750 million, an increase of 50%? More details will become available when the Order itself is actually adopted and released. FCC Modifies Rural Broadband Experiment Letter of Credit ObligationOn March 9, the FCC issued an Order in which it (i) clarified that price cap carriers can use Phase II model-based support to serve locations in eligible census blocks where the price cap carrier has served or intends to serve a location or locations using Phase I Round 2 incremental support and (ii) made several modifications to the letter of credit (LoC) requirements for recipients of rural broadband experiment support. Although by no means a guarantee, it is possible that future use of these mechanisms may feature these modifications. With regard to the use of model-based support, the FCC found that, in light of the adoption of the geo-coded location reporting requirement for recipients of Phase II model-based support, if a price cap carrier has served or intends to serve a location or locations using Phase I Round 2 incremental support in a census block where that price cap carrier accepted Phase II model-based support, that price cap carrier may use Phase II model-based support to serve the remaining eligible locations within that census block. This is because, according to the FCC, it would be an inefficient use of Connect America support to permit a price cap carrier to receive both Phase I incremental and Phase II model-based support to serve a single location; however, the price cap carrier may not count the locations it serves using Phase I Round 2 incremental support towards its Phase II obligation to serve a set number of locations within the state. Accordingly, if the price cap carrier is using Phase I Round 2 funding to upgrade, or has already upgraded, specific locations in census blocks that were part of the offer of model-based support, it will need to deploy service to other locations in Phase II eligible census blocks or extremely high-cost census blocks in the state to fulfill its Phase II model-based support obligation to serve a specific number of locations. With regard to rural broadband experiment LoC requirements, the FCC attempted to reduce the cost of obtaining such instruments by (i) requiring that the LoC only remain open until the recipient has certified that it has deployed broadband and voice service meeting the Commission’s requirements to 100 percent of the required number of locations, and USA has validated that the entity has fully deployed its network and (ii) allowing recipients that have met the 85 percent build-out milestone to obtain a new letter or renew their existing letter of credit so that they are valued at 80 percent of the total support disbursed plus the next year of support until the 100 percent build-out milestone has been met and verified. LPTV Licensees Continue to Seek Postponement of the Incentive AuctionWith less than three weeks before broadcasters eligible to participate in the reverse auction must submit their initial election options, and the March 29 official start date for the incentive auction, we wanted to provide our clients with a roundup of potential legal hurdles that the FCC faces before the auction can commence. Videohouse Appeal The Videohouse is a Pittsburgh-area LPTV licensee that is challenging the FCC’s determination that only licensees of stations that had a full-power or Class A low-power license or pending application for a license as of February 22, 2012, have a statutory right to repacking protection and eligibility to participate in the incentive auction. The Media Bureau’s ruling was upheld by the Commission in an Order on Reconsideration that the FCC released on February 12, 2016. In brief, the FCC in its Incentive Auction Report and Order extended repacking protection (and auction eligibility) to current Class A stations that had a Class A construction permit or application for a permit on file as of February 22, 2012, as a matter of discretion . In other words, the FCC had to draw a line somewhere, and it chose February 22, 2012 ( i.e., the date that the Spectrum Act became law), as the eligibility cut-off date. Even through Videohouse subsequently obtained its Class A license, it did not file an application to convert its LPTV station to Class A status until January of 2013 (i.e., almost a year after the FCC’s cutoff date). Thus, the FCC has determined that Videohouse does not qualify under its discretionary standard for auction eligibility. Videohouse has filed a Petition for Stay with the DC Circuit and the DC Circuit has received responsive pleadings from the FCC, as well as amicus curiae (friend of the court) briefs from broadcasters who want to auction to proceed on schedule, as well as other LPTV interests who want to delay the auction until the Court can address the merits of Videohouse’s case. Oral argument for the case has been scheduled for May 9, which is 40+ days after the scheduled March 29 start date of the incentive auction. Thus, unless the court grants the stay request, a victory on the merits would be a hollow one. The FCC could choose to postpone the start of the incentive auction until after the court issues its ruling on the merits of the Videohouse’s arguments, but it has shown no inclination to do so, suggesting the FCC believes it holds a strong hand. Videohouse has asked the Court to issue a ruling by Friday, March 11th, but the Court is under no obligation to meet that deadline. Latina Appeal Latina Broadcasters is a minority- and female-owned LPTV license that is situated somewhat differently than The Videohouse. For its part, Latina claims the FCC discriminated against its Daytona Beach LPTV station, when it reversed its original decision that it was eligible to participate in the incentive auction, but allowed another similarly situated LPTV station in Los Angeles to participate. Latina purchased LPTV station WDYB (which had previously secured Class A status on channel 28) in November of 2010, and a year later it filed for a construction permit to construct broadcast facilities on in-core channel 14. According to Latina, FCC Media Bureau staff instructed it to file its application on a low power station form, and said it would be able to convert the facility back to Class A status when it filed a license application. In November of 2012 ( i.e., nine months after the FCC’s incentive auction eligibility cutoff date), Latina filed for its license and application to convert to Class A status, which the FCC granted in October of 2014. In its June 2014 incentive auction Report and Order, the FCC did not protect previously out-of-core Class A eligible stations that had obtained in-core channels prior to February 22, 2012. However, it made a single exception for KHTV, an LPTV station in Los Angeles. The FCC subsequently issued a Second Order on Reconsideration and Declaratory Ruling in June of 2015 extending auction eligibility and repacking protection to stations in addition to KHTV that hold a Class A license today and that had an application for a Class A construction permit pending or granted as of February 22, 2012. Latina believes that Station WDYB met both of these criteria. In the Declaratory Ruling, and on a number of other occasions in 2015, the FCC affirmed that WDYB was among those stations entitled to protection. All the time believing its station was eligible, Latina timely filed an application to participate in the reverse auction. Then in an Order for Reconsideration released on February 12, 2016, the FCC clarified its eligibility criteria and concluded that WDYB was not eligible for the incentive auction because the current licensee (Latina) was not pursuing Class A status as of February 22, 2012. Moreover, the FCC said it its June 2015 Declaratory Ruling was not intended to pre-judge the outcome of pending reconsideration petitions regarding the scope of protection. Latina is also challenging the FCC’s February 2016 Order on Reconsideration before the DC Circuit, and it filed a request for stay of the incentive auction with the Court at the end of February, just days after the Media Bureau denied Latina’s request to stay the March 29 auction on its own motion. In denying Latina’s request, the Bureau said that denying the stay would not cause irreparable harm, one of the legal tests for a stay, because the station would not have to go off the air. The Bureau also concluded that granting the stay would harm others. Latina has also requested that the Court issue a ruling on its motion for stay by March 11. The stakes for Latina — and its incentive to litigate this to the death — are very high because the opening bid price for WDYB going off the air would have been over $87 million. While there are no guarantees that Latina would have won, or that it would be able to get this top price, the company won’t be eligible for any compensation if it isn’t allowed to participate in the auction. Mako Communications and Free Access & Broadcast Telemedia Mako Communications, LLC is the licensee of 31 LPTV stations, the majority of which are in the top 30 US markets. The company is lead petitioner in another DC Circuit case that is challenging what Mako sees as the FCC’s “subordination” of LPTV broadcasters’ rights to other “more favored” interests. Free Access & Broadcast Telemedia, LLC is another LPTV licensee that has filed as an intervenor in support of Mako. It is undisputed that the FCC grants LPTV licenses with secondary (as opposed to primary) status, which means that LPTV licensees cannot cause harmful interference and must accept such interference from other licensed primary status spectrum users. The gist of Mako’s arguments are that the FCC acted illegally by promulgating spectrum auction rules subordinating LPTV licensees to spectrum users well beyond full power and Class A television, that the auction rules effectively “revoke” Mako’s broadcast licenses and terminate LPTV broadcasters’ license rights en masse without proper administrative due process through adjudication. Mako’s challenge is a much more broad one, and would appear to have the least likelihood of success on the merits. The FCC has repeatedly rejected arguments that seek to raise LPTV’s secondary status to something greater. If successful, a reclassification of LPTV as having secondary status, but still being entitled to protection from other non-broadcast operations (such as new commercial wireless licensees) would significantly expand the pool of licensees entitled to receive a share of the incentive auction proceeds. A LPTV advocacy group known as the LPTV Spectrum Rights Coalition has estimated that an additional $1 billion would be needed to need to protect and help relocate LPTV and TV translators, which currently have secondary status. These and other LPTV licensees and their advocates have been furiously battling the FCC and are seeking to delay the auction through the courts and in Congress so they may have greater leverage in seeking repacking rights and a share of auction proceeds. However, as we have reported over the past few months, the FCC seems to be confident in its legal positions, and we are not aware of any inclination among members of Congress to change the status quo, which does not protect LPTV or TV translators. Law & RegulationEshoo Introduces Robocall Bill to Protect Individuals with Federal LoansOn March 4, Congresswoman Anna G. Eshoo (D-Calif.), Ranking Member of the Communications and Technology Subcommittee, introduced legislation to protect anyone with a federal loan ( e.g., student loans, mortgages, veteran’s loans, farming loans) from unwanted robocalls and texts, specifically to their mobile phones. The Help Americans Never Get Unwanted Phone calls (HANGUP) Act rescinds a recently enacted provision in the Budget Act of 2015 exempting debt collectors from longstanding law that has prohibited them from robocalling without consent the mobile phones of those who have a debt owed or guaranteed by the federal government. The Telephone Consumer Protection Act (TCPA) has provided statutory protection to consumers until now. “We’ve all experienced the highly annoying dinner hour robocall with a prerecorded message,” Eshoo said. “Phone harassment was stopped by the 1991 Telephone Consumer Protection Act, but the provision in the Budget Act of 2015 has rolled back important consumer protections in TCPA. The exemption allows private debt collectors to conduct robocalls and send texts to mobile phones for debt owed or guaranteed by the federal government. The HANGUP Act restores critical protections for consumers by establishing a statutory roadblock to unwanted robocalls and texts.” FCC Fines Net One $1.6 Million for CrammingOn March 9, the FCC announced a $1.6 million fine against Net One International, a Florida-based long distance carrier, for billing consumers for unauthorized charges and fees — a.k.a. “cramming.” According to a press release, the FCC’s Enforcement Bureau reviewed over 100 consumer complaints filed with the agency as well as the Better Business Bureau against Net One. Consumers complained that Net One continued to charge them for services and “late fees” after they cancelled service and paid all final bills. Net One then refused to let consumers close their accounts until they paid these unauthorized charges and fees. In many cases, consumers contacted Net One repeatedly about the unauthorized billings, but were unable to resolve the issue until after they filed a complaint. Net One continued to engage in cramming despite repeated warnings from the FCC that such actions violated the law. The Forfeiture Order issued affirms a Notice of Apparent Liability for Forfeiture that was issued by the FCC in July 2014. FCC Provides Limited Compensation Rate Relief for Small VRS ProvidersOn March 1, the FCC adopted a Report and Order “provid[ing] limited compensation rate relief for video relay service (VRS) providers with 500,000 or fewer monthly minutes (smallest VRS providers).” Specifically, for the 16-month period beginning July 1, 2015, and ending October 31, 2016, the FCC directed the administrator of the Interstate Telecommunications Relay Services Fund (TRS Fund) to pay compensation to such providers at a rate of $5.29 per minute; for the period from November 1, 2016, to April 30, 2017, a rate of $5.06 per minute; and for the period from May 1 to June 30, 2017, a rate of $4.82 per minute. In 2013, the FCC adopted a four-year schedule that gradually adjusts the VRS compensation rates downward every six months, beginning July 1, 2013, and ending June 30, 2017. The net effect of the FCC’s Report and Order of March 1 is to temporarily “freeze” the compensation rates of providers handling 500,000 or fewer monthly minutes on this four-year glide path for 16 months. The FCC found that, among other considerations, “available financing arrangements will not permit [these providers] to maintain operations indefinitely in accordance with the FCC’s minimum TRS standards while continuing to operate at a loss.” As such, the FCC concluded that it should temporarily halt the scheduled reduction in the VRS compensation rates applicable to the smallest VRS providers, in order to permit them “a reasonable opportunity to grow and to attain efficiencies comparable to those of larger VRS providers.” IndustryVerizon Settles “Supercookie” Investigation, Requires Consumer Opt-In for Third PartiesOn March 7, the FCC announced a settlement resolving an investigation into Verizon Wireless’s practice of inserting unique identifier headers called “supercookies” into its customers’ mobile Internet traffic without their knowledge or consent. These unique, undeletable identifiers — referred to as UIDH — are used to identify customers in order to deliver targeted ads from Verizon and other third parties. As a result of the investigation and settlement, Verizon Wireless is notifying consumers about its targeted advertising programs, will obtain customers’ opt-in consent before sharing UIDH with third parties, and will obtain customers’ opt-in or opt-out consent before sharing UIDH internally within the Verizon corporate family. The investigation began in December of 2014 to determine whether Verizon Wireless failed to appropriately protect customer proprietary information and whether the company failed to disclose accurate and adequate information regarding use of UIDH, in violation of the FCC’s 2010 Open Internet Transparency Rule and Section 222 of the Communications Act. The investigation found that Verizon Wireless began using UIDH as early as December 2012, but failed to disclose this practice until October 2014. Although Verizon Wireless claimed that it was unlikely third parties would use the UIDH’s for any reason, news reports claimed in January 2015 that a Verizon Wireless advertising partner used UIDH for unauthorized purposes — specifically, restoring cookie IDs that users had cleared from their browsers by associating them with Verizon Wireless’s UIDH, in effect overriding customers’ privacy choices. It was not until late March 2015, over two years after Verizon Wireless first began inserting UIDH, that the company updated its privacy policy to disclose its use of UIDH and began to offer consumers the opportunity to opt-out of the insertion of unique identifier headers into their Internet traffic. Under the terms of the settlement, the company must also pay a fine of $1,350,000 and adopt a three-year compliance plan. Comcast Gets Net Neutrality Complaint Over Zero RatingOn March 8, non-profit public interest group Public Knowledge filed a complaint with the FCC regarding Comcast's Stream TV service. Specifically, the complaint alleges that Comcast excludes Stream TV traffic from its own data cap, which is both a violation of its merger agreement and counter to the FCC's Open Internet rules. Stream TV is a $15 per month offering for Xfinity internet customers. It includes local channels, some basic cable, HBO, and the use of a cloud DVR. In a statement, Public Knowledge's senior staff attorney said “Comcast's actions could result in fewer online video choices for viewers nationwide, while increasing its dominance as a video gatekeeper. If its behavior persists, prices will go up, the number of choices will go down, creators will have a harder time reaching an audience, and viewers will have a harder time accessing diverse and independent programming.” DeadlinesMARCH 31: INTERNATIONAL CIRCUIT CAPACITY REPORT. No later than March 31, all U.S. international carriers that owned or leased bare capacity on a submarine cable between the United States and any foreign point on December 31, 2015 and any person or entity that held a submarine cable landing license on December 31, 2015 must file a Circuit Capacity Report to provide information about the submarine cable capacity it holds. Additionally, cable landing licensees must file information on the Circuit Capacity Report about the amount of available and planned capacity on the submarine cable for which they have a license. Any U.S. International Carrier that owned or leased bare capacity on a terrestrial or satellite facility as of December 31, 2015 must file a Circuit Capacity Report showing its active common carrier circuits for the provision of service to an end-user or resale carrier, including active circuits used by itself or its affiliates. Any satellite licensee that is not a U.S. International Carrier and that owns circuits between the United States and any foreign point as of December 31, 2015 of the reporting period must file a Circuit Capacity Report showing its active circuits sold or leased to any customer, including itself or its affiliates, other than a carrier authorized by the FCC to provide U.S. international common carrier services. APRIL 1: FCC FORM 499-A, TELECOMMUNICATIONS REPORTING WORKSHEET. This form must be filed by all contributors to the Universal Service Fund (USF) sup-port mechanisms, the Telecommunications Relay Service (TRS) Fund, the cost recovery mechanism for the North American Numbering Plan Administration (NANPA), and the shared costs of local number portability (LNP). Contributors include every telecommunications carrier that provides interstate, intrastate, and international telecommunications, and certain other entities that provide interstate telecommunications for a fee. Even common carriers that qualify for the de minimis exemption must file Form 499-A. Entities whose universal service contributions will be less than $10,000 qualify for the de minimis exemption. De minimis entities do not have to file the quarterly report (FCC Form 499-Q), which was due February 1, and will again be due May 1. Form 499-Q relates to universal and LNP mechanisms. Form 499-A relates to all of these mechanisms and, hence, applies to all providers of interstate, intrastate, and international telecommunications services. Form 499-A contains revenue information for January 1 through December 31 of the prior calendar year. And Form 499-Q contains revenue information from the prior quarter plus projections for the next quarter. (Note: the revised 499-A and 499-Q forms are now available.) Block 2-B of the Form 499-A requires each carrier to designate an agent in the District of Columbia upon whom all notices, process, orders, and decisions by the FCC may be served on behalf of that carrier in proceedings before the FCC. Carriers receiving this newsletter may specify our law firm as their D.C. agent for service of process using the information in our masthead. There is no charge for this service. APRIL 1: ANNUAL ACCESS TO ADVANCED SERVICES CERTIFICATION. All providers of telecommunications services and telecommunications carriers subject to Section 255 of the Telecommunications Act are required to file with the FCC an annual certification that (1) states the company has procedures in place to meet the recordkeeping requirements of Part 14 of the Rules; (2) states that the company has in fact kept records for the previous calendar year; (3) contains contact information for the individual or individuals handling customer complaints under Part 14; (4) contains contact information for the company’s designated agent; and (5) is supported by an affidavit or declaration under penalty of perjury signed by an officer of the company. MAY 31: FCC FORM 395, EMPLOYMENT REPORT. Common carriers, including wireless carriers, with 16 or more full-time employees must file their annual Common Carrier Employment Reports (FCC Form 395) by May 31. This report tracks carrier compliance with rules requiring recruitment of minority employees. Further, the FCC requires all common carriers to report any employment discrimination complaints they received during the past year. That information is also due on June 1. The FCC encourages carriers to complete the discrimination report requirement by filling out Section V of Form 395, rather than submitting a separate report. Calendar At-A-Glance March April May |
| This newsletter is not intended to provide legal advice. Those interested in more information should contact the firm. For additional information, please contact Hal Mordkofsky at 202-828-5520 or halmor@bloostonlaw.com . |
Why the NSA is staying out of Apple's fight with the FBIApple’s court fight has exposed a deep rift in how the two agencies deal with technology By Russell Brandom on March 9, 2016 01:44 pm
From the beginning of Apple’s fight with the FBI, there’s been an inconvenient question: why can’t the NSA just break into the San Bernardino iPhone ? We know from Edward Snowden that the agency has eyes nearly everywhere, amassing data in transit and developing exploits to break specific devices like the iPhone at the center of this case. What could we be looking for in the San Bernardino phone that the NSA can’t somehow pry loose? But while the FBI has pulled no punches in going after Apple, the NSA has largely stayed out of the fight. In a judiciary committee hearing last week, FBI Director James Comey said he had asked for a way to open the phone from "anybody who will talk to us" but came up empty. He declined to name the NSA specifically, but the implication was clear. The agency has now denied the FBI even political cover, with Reuters reporting that "several key officials" in the NSA opposed the move against Apple.
It’s puzzling from the outside, but the encryption divide between the NSA and FBI is just one sign of a growing split in the way the government investigates cases and infiltrates technology. The NSA and FBI both deal with locked iPhones, but they come at them with very different tools and very different goals. The FBI’s fight with Apple has thrust that divide into the spotlight. While the FBI is pushing for court-mandated access through Apple, the NSA and other intelligence agencies specialize in a much more covert and adversarial approach. With so much pressure on accessing the San Bernardino phone, exploits seem like an easy compromise, a way to give feds the evidence they want without compelling Apple’s help or setting any ugly precedents. But relying on exploits would set a precedent of its own, and that tactic could have more consequences than Apple defenders realize. First, there’s good reason to think that the NSA really could help with at least some of the phones that the FBI is looking at. The phone in the New York unlocking case, which has played out in parallel to the San Bernardino trial , is still running iOS 7, making it vulnerable to a $350 lockscreen-breaking device that’s commercially available to law enforcement agencies. The same device could handle at least 11 of the 12 other Apple devices identified as under FBI order . There are plenty of similar tools available, as detailed here , and it’s genuinely unclear why the feds haven’t used them to unlock at least some of the phones. All of the attacks take advantage of bugs that were closed in more recent versions of iOS, and while we still don’t know if there’s an outstanding bug for iOS 9 — that is, a bug that could get into the specific San Bernardino phone at the center of all this — the broader picture is clear. There’s been some bug in the lockscreen protections of every previous version of iOS. It would be foolish to think iOS 9 is the exception.
Many of these attacks would be possible even without the NSA’s help. But while those bugs would get the FBI into some of the phones, the solution wouldn’t be as clean as the GovtOS system proposed in the San Bernardino case. A string of exploits isn’t as reliable as a legally mandated backdoor, and it’s a poor substitute. It’s the difference between climbing up your neighbor’s drainpipe and making a copy of his keys. If the FBI really has the legal right to compel Apple’s help — as Comey clearly believes — it would be foolish to settle for exploits like this. There are also structural forces keeping the FBI out of the exploit business. The NSA can put some of the nation's smartest researchers to work finding iOS bugs, or buy them from freelancers on the open market. Once they’ve got a good way in, the agency can deploy it in conditions of extreme secrecy, making sure news of its use never leaves Fort Meade. There are only a limited number of ways to break into a given phone — a number that dwindles with each security update — and extreme secrecy ensures the NSA will make the most of each technique.
The FBI can’t play that game. It’s a law enforcement agency rather than an intelligence agency, which means most of its work eventually ends up in open court. The data on the San Bernardino phone isn’t just intelligence, it’s evidence. If FBI agents did manage to unlock the phone, they’d be expected to explain how they did it in public court. News of the technique would quickly work its way back to Apple, and a fix would be put in place shortly after. The next time a locked phone came up, the FBI would need a brand new way in. At that rate, the bureau would run out of workable exploits long before they make a dent in the growing pile of iPhone search warrants. That’s why, from the beginning, the anti-encryption fight has been waged by the FBI, prosecutors, and local police — all law enforcement groups in the business of presenting evidence in court. Director Comey planted the flag in 2014 with his "Going Dark" initiative , and the message was picked up by affiliated groups like the IACP and APA. When bills banning iPhone encryption surfaced in California and New York state legislatures, it was because of active lobbying efforts from local District Attorneys. The exploit divide also explains why intelligence agencies like the CIA and NSA have been mostly indifferent to the fight. They don’t care about evidence, just intelligence — and intelligence can be collected much easier. The NSA doesn’t ask for help cracking individual devices, and doesn’t have much use for warrants either. It's playing a different game, and Comey’s fight for judicial power simply doesn’t do it any good.
That’s a particularly bitter pill for Director Comey because the NSA is a big part of why Apple pushed for device encryption in the first place. The Snowden documents hit Silicon Valley hard, particularly the news that the NSA had broken into private networks run by Google and Yahoo . It’s no coincidence that iOS 8’s stronger encryption features arrived less than a year after that news broke. Discontent around the NSA also undercuts FBI claims that the use of the proposed GovtOS will be limited. The biggest protection is that it will only be used with a warrant — but how much does that protection mean when a FISA court can issue a single warrant for the phone records of every US citizen? At the same time, the split between the NSA and FBI means that a win for Apple won’t be entirely good news for civil libertarians. As Apple fights to maintain a balance between users and the government, there’s another balance being struck between law enforcement and intelligence agencies within the government. If the FBI loses its case, the CIA and the NSA will be left as the only ones with a shot at breaking the iPhone’s last line of defense, which will tip the balance in their favor. In cases like San Bernardino where local crimes are linked to international conflicts, it’s easy to imagine the CIA stepping in, producing intelligence where evidence collection is impossible. There’s also the chance that, faced with a loss in court, the FBI will try to take up intelligence methods to solve cases without giving too much detail in court. In the case of the Stingray, that meant entering evidence while actively concealing where that evidence came from, a tactic that proved disastrous once the defendants caught on. For those focused on Apple’s current legal fight, all of this might seem beside the point. The FBI’s proposed backdoor is still invasive, and would set a terrible precedent for technology companies around the world. And for now, that stockpile of exploits is still a useful talking point in fending off FBI demands. As the bureau tries to prove it has exhausted every avenue, civil libertarians can point at hacking techniques as evidence that there’s another way in, and that the FBI doesn’t need the backdoor it’s trying to build. But after the trial is over, those same attacks become much more troubling. As invasive as the FBI’s proposal is, the NSA alternative is near anarchy, simply breaking whatever can be broken and grabbing whatever can be grabbed. If that becomes the standard for digital evidence collection, the future may be even bleaker than we thought. |
| Source: | The Verge.com |
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