Transcripts For CSPAN2 The Communicators 20160315

Turned them in and this was a suit was brought by Bernie Sanders campaigned very and the reason that they did this is because it is state is going to be close, it is going to be very close. She is joining us from columbus, oh thank you for joining us. Thank you. Here on cspan2, the the communicators with the sec in its regulation of the internet followed by a roundtable discussion of the house energy and Commerce Committee with medical experts about confession research. Later canadian Prime Minister Justin Trudeau talks about canadian politics and takes questions from students at American University in washington dc. Cspan, created by americas Cable Company 35 years ago and brought bought you as a Public Service by your local cable or satellite provider. It has been about one year since the sec voted to regulate the internet of a public utility. Coming up next is the Net Neutrality saga, a discussion and vote on privacy rules for the internet. Jim halpert is a privacy and cybersecurity lawyer. Mr. Halpert, what will the sec be discussing . The issue is for many years the federal trade commission, by virtue of the Net Neutrality order, the fcc has changed that because it is classified as an Internet Access provider and that creates a void where the ftc can no longer regulate that aspect, the one aspect of the situation of the business of Internet Access providers. So there is now a rulemaking coming up where the sec will decide what to put into place perhaps replicating these rules. You support the fact that the federal Communications Commission may do some commission may do some once they reprocess this end that meant that the regulatioregulatio ns had to apply. There are specific privacy regulations to the data they get put in place by the providers. So they have to do it. The question is, most of the rules and now they are extended by the use of classification and the situation to cover this is very important, especially to the world of the internet and not just the telephones and that is what this is about. Host jim halpert, the use support this rulemaking process and what is part of it. Guest it makes sense for them to move forward and described what rules that they are going to apply in greater detail. You know, in terms of what should be in that, i think that is really a key question which we will be discussing today and there is considerable disagreement. One can take the view that the internet that process them is a whole entity and that isps are a particular player in that. But fundamentally in the world of internet advertising they are a small player in that market right now and that there ought to be one set of rules if the consumer has an apple iphone, they do not expect a different set of rules to apply to the Internet Connection that they have received and then would apply to the operating system that sees all of the traffic across that or any of the apps. There is an argument for consistency and john will present an argument for exceptionalism. One of the other things to think about here is precisely what kind of Regulatory Authority does the ftc have a . What is the section five violation which is an unfair and deceptive practice and that means basically the company said that they were doing something with the information and Privacy Policy and turned around and did Something Different. Then they could be retroactively hit with some kind of a fine or Something Like that. And that happened to womack. They were honoring blocking thirdparty cookies and it cost them 2200. The fcc affirmatively now under the fact that the Communications Law will cover them as communications common carriers, they have to make. Host before we go any further, lets bring howard into the conversation was the executive senior communication editor. I want to ask you first of all, what are the concerns of the isp in terms of where we may be headed in this area . What would be your biggest concern . I have done a lot of work in many different areas including with isp clients. But the concern is that if one were to apply the Current Telecommunications privacy rules which were developed in the context of the Telecom Reform act of 1996 which was a world of telephony, the rules do not very work very well in a world of the internet where you have apps and internet advertising companies, you have operating systems and all of these different players are involved in collecting a certain amount of information and in delivering services. The broad concern would be that they would be discriminated against in on the one hand they are required by the Net Neutrality order to carry all traffic that goes across their system, they are regulated as a sort of common carrier and required to support all of these different entities. Uniquely they would be prohibited from anticipating and the internet advertising marketplace, which they are currently very small players. The idea that they would have to carry this traffic would either be unable themselves to obtain any sort of advertising revenue by virtue of information that they have obtained strikes many as very unfair and being a tiny part of the internet at backup system that is not probably a major player in the world of advertising. So its interesting that this would be irrational and discriminatory. How much data would they have to protect and as it changes the ecosystem, how much data they actually are responsible for. There is a study that just came out by the former privacy czar with some other individuals at georgia tech. It showed that the majority of internet traffic by the end of this year is going to be encrypted so that all of the content of those communications will not be visible to the isp. In the other hand an operating system provider would see that traffic unencrypted and would actually have more information than the isp would. Furthermore, the isps are no longer in a world where people access the internet only from their home. The average consumer uses 6. 1 devices to connect to the internet. The most that consumers are using are three to five different Internet Access providers to connect to the internet every day and so the single isp does not have a unique view of a huge amount of user activity. If you consider and you take your smart phone and you connect to the wifi which many mobile users are doing this for their internet traffic, if you access the internet from home, you will typically have a Home Internet provider. If you access when you are not connected to wifi, the wireless provider will be connecting from their and then your work isp provider will be providing Broadband Service at the office will potentially collect some information. But this is a much more fragmented universe with much of the data encrypted anyway. That has been disputed by a number of people recently. I think its about 65 of the data is unencrypted. That is talking about the content of what is just as significant and revealing and it is the information of what site you went to and how long you were there and sort of tracking the types of sites that you visit and then having targeted those on the basis of that information. It is correct that the current rules were from the world of telephones and they were not adequate and they really do not correctly categorize the kinds of information that should come under the privacy rule is with Broadband Access providers and that is what this rulemaking is all about. Trying to figure out which things, what is known as cpni, Customer Proprietary Network information, the data of someone plugging into your network. The idea is that you should not be able to use that data for purposes other than completing the Network Transaction unless the person gives permission for that to happen and that is the way it works in the telephone world and it should work the same way in the broadband Internet Accessing provider world. Guest why should the average subscriber care but that information . Are there where he ways in which they are monetizing or communicating in this that are raising concerns . Guest sure. I believe you get that data, a profile can be put together about you. Then you can sort of be targeted for kinds of advertising that can end up being discriminatory and taking advantage of you in ways that probably are not entirely fair. While it is true that the internet is more than just the Internet Access providers, they are in a unique position in terms of a pretty much have to go through one and it is appropriate because they are unique to recognize that and deal with the data that they have gathered. We can talk about other questions around these providers. I believe that there should be rules that are put in place there. But that is not this object of this particular provision at this point. I think that you do need to look at the internet echo system as a whole. For the reasons that i describe it is not true that the isp is having a uniquely broad view of this behavior. There is also no indication that i have read of that they are analyzing all of the unencrypted traffic that goes through the network and all of the places where the users are going. But even if that were the case, that is exactly what the internet advertising Business Models do today and it is not particularly harmful, it is essentially presenting where you may be going on the internet. This is how they have supported Free Internet today. The isps are tiny players in the world of internet advertising. They are strong selfregulatory were arm in that they and others in this echo system have all made to follow privacy opt out rules in a way to give consumers notice and control. Those are absolutely enforceable today. There is nothing that would change that. And so to break off this today, this tiny piece of the internet advertising at the system, subjecting it to rigorous rules that consumers are not going to understand, ignoring the rest of the internet echo system is not really a rational approach to privacy on the internet. The fact is that given the way that congress is continuing right now and the house of representatives is likely to remain under a libertarian republican control for at least six years and probably another 10 years after that. It is virtually certain that there will be no general privacy legislation that applies to the internet. It would just be this one odd, tiny little piece of the internet echo system that would be subject to potentially very confusing rules. What the Consumers Want and what i think they expect is to have choices about how their information is used in order to have clear and transparent notice and information practice and an easy way to opt out in this. Moving to this privacy rule which is effectively what john has been advocating for is really quite different if you think about what has happened with your help information. For example, when you go to a doctor you must sign a form, a privacy form, every single time you go to a different doctor. Effectively that would be happening with the Internet Access service for information to be used for any purpose other than delivery of service. So i think under johns proposal that this is part of the other privacy groups. I think that is what we are essentially suggesting. We think that indeed before they can use the information for purposes other than providing a service that it should be an opt in sort of situation. You know, that is part of the problem as we talk about all these selfregulatory regimes and so on, based on the notice and choice model where they explain in the Privacy Policy. People say, okay, thats fine. But then who around this table, when was the last time that anyone read a Privacy Policy and you get paid to by getting the ability to write in it. And my standard line is that they read like they are written by lawyers who are paid to take away from the situation. Guest we did have an effort to simplify the problem. Host right now we are in the west german administration. Guest right now they are working at improving just the proposal. Host what is it like that they are going to be able to get back all the things they need to get back and then still get a final ruling and get that in place by the end of this administration 2. Guest i think it will be very interesting to see if they can get that done. I think it is important that they do the notice of public rulemaking as soon as they possibly can. I would expect that would be quite soon. If nothing else, that raises all the questions and get a record going where people can put in their various views and concerns and if they can come back fast enough with another rule that would be great ,com,com ma but it can also serve as a foundation for what goes on with the next administration. There are some contingencies, which is that the underlying Net Neutrality order that created this particular problem has had other problems and it created this regulatory gap. So it may not be upheld in its entirety. Its a decent chance that wireless providers will be, indiana, Dc Circuit Court of appeals is reviewing a challenge to that order. There is a pretty good chance that a wireless provider could be ruled to be outside of the Net Neutrality order. If that is the case, we would see an even more fragmented potential rule and probably a fair amount of confusion that could slow down as rulemaking. So because we are on uncertain legal ground with the Net Neutrality order itself, we cannot exclude a surprise coming from the Dc Circuit Court of appeals, and further narrow this. All of a sudden you would see for the wireless providers, you would see bft seagate jurisdiction again midstream. And its possible that they will have litigation on this underlying regulatory situation that has triggered the rulemaking. The whole thing could be thrown out. Correct. That could interrupt us as well. Host for folks watching this at home, what is this conversation about . Why is it important . I think it is important because if it goes through the way that many of us in the community would hope that it goes through, it would mean that consumers would have more choice and control over the data that is gathered about them and i think that that is such an important thing. I think that most people want that. If you look at the various polls that have been taken there is great concern in the United States by the average person about their privacy. I think what this means really is whether consumers are going to be asked to opt in when they sign up for Internet Service or in the middle of a service contract. Which is likely something that the Health Care Privacy release that you sign is going to be apart of. I think that they will be ready to sign onto on to that. I actually think its better to have very clear notices to consumers and then control where that consumers can go and choose to opt out consciously at different types of services. What john is advocating is the default rule where a Consumer Needs to first of all asked and will need to check the release of we can get this information that can be used. I dont think that actually brings the same degree of thought as very clear short notices. I think they want to have explanations before you opt in to give permission. I think it should be often. You think it should be opt out, i guess. I think that is probably where we are. You guys talked about where we are as far as privacy. Would it make sense to get consumer advocates and republican Interest Groups together and have a big discussion about this and maybe there could be an agreement on the rules and that that would obviously they could impose regulations . I think that actually that that probably would not work. I would agree that it would not work. [laughter] a good example. John and i tried to work. I devoted a lot of time and effort to a process where a set of guidelines should be developed so that consumers could make choices about whether to use a mobile application before downloading. What i found in the process was that a number of privacy advocates really did not want to tackle justin only that problem. And they did not want i dont think they were that interested in this effort being a broad consensus agreement. And the Business Community was concerned about being prescriptive. In the end apple, blackberry, google, they had all moved to do slightly different types of things. In the end i think that that gets the consumers to require that before the applications can be downloaded and maybe it was not exactly on the face of it. But it got us to the same place. On the other hand the consumer advocates wanted optimum privacy rules in different places. So they wanted to push for the broader ability to address that. Because it was difficult to come up with this. Its easier on narrower question i think that the process that that would take to yield an agreement on the whole universe would be feasible, but it would take several years and i dont think that regulators are going to wait for that. I think that the multistakeholder process may sound good. But i think that in order to really get something done i believe that you need to have a formal rulemaking which is what this particular thing that is coming up is going to be. There is a big difference, trying to come up with something, sort of a green. I think that a formal rulemaking is a much better way to go. And i think that our experience show that. Guest i dont think that that is always true but i think in a situation that is what is going to happen when we have this amount of time left in this administration and i dont see unmediated effort to come up with this. Guest it looks like things are breaking down toward the neutrality. Some are very opposed to these rules and the geordie really would like to move forward. And so you think that mira yes it is a little bit more complicated an issue from a Public Policy perspective and there is a very strong argument that for the fcc to move forward they have to do Something Different than the ftc, it would be arbitrary. Theres a strong argument also that Internet Access providers are absolutely required to carry all traffic and they should not be able to do things that thousands of other individuals are doing in regards to advertising for their Broadband Services over their Broadband Services. I think there also are legal questions here that are pretty complicated if the Net Neutrality rule is struck down as to the wireless providers and all of those things may create a more supple political alignment and i am hopeful that we will work toward finding solutions that are really practical and consistent and clear to consumers based largely on this framework. I am not sure this will happen. That is the framework that we applied deviously. The sec put them with much taller penalties. They have been very aggressive in terms of this. And again, can question whether that is arbitrary because others are not a part of that. It would be talked about in this way. There is a middle way here. I am hopeful that the commissioners when they really think about this and look robbery at the internet advertising market, which again they are tiny players and as isps, they will decide that they will do something thats closer to the framework. Host john simpson, you get the final word today. Guest well, i agree that its a complex issue. Im not sure that we have exactly the same way. We are getting a better sense of that in a few weeks when the rulemaking is open. It is a complex situation. Host john simpson, a former journalist is with consumer watchdog where he has declared this is project director and jim helper is a lawyer and he covers privacy and cybersecurity matters and howard kirk is executive Senior Editor of communication. Cspan is created by americas Cable Companies 35 years ago and brought to you as a Public Service by your local cable or satellite provider. On the next washington journal we talk to congresswoman Virginia Foxx about the republican agenda in the 2016 campaign and kathy castor joins us to discuss the u. S. Policy towards cuba. Including the obama administrations decision to restore diplomatic ties with havana, cuba. You can join the conversation on facebook and twitter are in ashington journal is live everyday at 7 00 a. M. Eastern. With that power comes individual responsibility. Unfettered for 35 years. It just doesnt pass this when it comes to a modern democracy. Sunday night. Changes that he would like to see in the supreme court, including opening up oral arguments and imposing term limits on the justices and requiring justices to hear to the same code of ethics that other judges follow. This affects al