FTC’s Majoras Spotlights Arguments against Broadband Duopoly, Net Neutrality

The workshop took up advertised broadband download speeds and raised questions about what they mean to consumers and how they can test the promises, Majoras also noted. “I don’t know yet” where the FTC will go with the matter, she said. In Nov. a “series of town hall meetings” on privacy, security and related technology matters will let the FTC “talk to the market” and “find out where we need to be,” after the Nov. Tech-ade conference, Majoras said. A workshop will examine changes in spam and best responses, she said. The FTC will spell out every Jan. its plan for privacy, security and technology research for the year, she said.

The FTC and the EC are working to harmonize enforcement against monopolistic practices, Majoras said, in response to a question about tougher treatment of Microsoft by European than U.S. authorities. “I hope there’s an opportunity for greater alignment in the future,” she said: “This is the area where you'll find the great divergence,” rather than on merger policy, where “we really haven’t had a major divergence since 2001.” But “there may be some growing pains along the way” to more uniform practices internationally, Majoras acknowledged, citing variations in economic development.

Cal.’s pioneering breach-notice law is “a good thing” because it raises security awareness, Majoras said, but there should be “a national, consistent standard.” And consumers should get breach notices only when there’s significant risk to them, so security information doesn’t get lost in “noise,” as with Gramm-Leach-Bliley privacy notices from financial institutions, Majoras said.

The FTC has found broadly that tried & true regulatory doctrines can keep pace with the Internet and other fast- changing technologies, Majoras said, contesting the commonplace that the law is doomed to lag behind. Conventional antitrust analysis “is highly fact-intensive” and “as economic thinking evolves, so too does antitrust enforcement,” she said: “Only the landscape changes, and we have to have a keen awareness of that.” The changes can be convulsive, she acknowledged. She cited the “phenomenal” rise of the iPod and music downloading, which means that suddenly even “iconic” retailers like Tower Records “reign no more.”

Consumer protection is no different, Majoras said: “The same principles applied in an offline world in the industrial age apply to the online world in the Internet age.” She characterized the Sony BMG rootkit case as a straightforward application of the principle that a firm’s failure to disclose material terms to consumers’ detriment can constitute illegal deception.

The FTC has endorsed a patent-law revamp, Majoras said in passing, and “I hope some progress can be made this Congress.” -- Louis Trager

Tech Policy Summit Notebook…

DHS may ask Congress to reorganize its cybersecurity and emergency communications offices, said Gregory Garcia, assistant secy.-cybersecurity & telecom. Congress last year created an Office of Emergency Communications to promote interoperable communications among first responders. It’s been added to the National Cyber Security Div., with the National Communications System, for national-emergency communications, made part of the Office of Cyber Security & Telecom that Garcia runs. Replying Tues. to our question on the set-up at the Tues. Tech Policy Summit in San Jose, he said the secretary has broad power to organize the Dept.; to avoid “stovepiping,” the Dept. will align along functional lines staff members from across units, such as in the convergence of communications onto IP networks. After a year or 2, the Dept. may go to Congress about the structure, he said. In his remarks, Garcia said his priorities through 2008 are: (1) Getting govt. to “lead by example” through strong internal network security. An “interagency process” chaired by the White House and deeply involving OMB and DoD will devise “low-cost, high impact” practices for agencies, such as appointing CIOs and creating rules to integrate security considerations into procurement. (2) Implementing the National Infrastructure Protection Plan. (3) Creating a “core hub of operational people” to decide who will do what when in a major national cyber blowup. Housing US-CERT in Arlington, Va., with the Communications Industry Sector Advisory Committee and representatives of the IT ISAC starting next month is a start, Garcia said. But strong cooperation requires trust, and that requires experience working together, he said. Getting there will take time and attack exercises, Garcia said. -- LT ----

Google’s top policy executive said an authority other than the FCC should enforce a simple net-neutrality rule barring broadband providers from discriminating in favor of their own companies or applications providers in quality of service. The regulation is justified by the “market failure” of “inadequate competition in the broadband last mile,” Andrew McLaughlin, the company’s global public policy head & senior counsel, said Tues. at the Tech Policy Summit in San Jose. Wireless technologies aren’t “meaningful alternatives,” he said. Legislation could spur telcos and cable companies to expand network capacity instead of exploiting scarcity in a way that would undercut the “innovation without permission” premise underlying the Internet boom, McLaughlin said. Google favors a simple rule against bias, not “heavy regulation or price tariffing” for the FTC, DoJ or another enforcer to interpret, he said. “Cutting the FCC out of the picture would be a good idea,” since agency network regulation wouldn’t be suitable, McLaughlin said. But otherwise broadband quality of service guarantees should be legal, he said. On mandatory search- query retention, Google hasn’t seen evidence that mandatory search-query retention would help govt. inquiries, at least enough to justify the privacy intrusion and cost, McLaughlin said. Authorities admit search terms have little investigative value, he said: “There is no scenario that I can imagine… where a murder investigation would thwarted by the lack of that one piece of evidence,” McLaughlin said. And in publicized cases where search terms have aided prosecutors, they came off defendants’ PCs, not from companies, he said. Like hard drives, e-mails make for far more useful investigative information than Web searches, McLaughlin said. Combining a user’s data from Google and an ISP with other police information, “you could do things that could be troubling,” so the “cost-benefit” of search retention is “out of whack,” he said. -- LT ----

Correction: At the Tech Policy Summit (WID Feb 27 p2), Peter Pitsch, Intel communications policy dir., said high- tech companies would risk being seen as “corpocrats” if they narrow their lobbying to immediate business concerns.