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Matt DelNero works with companies in the telecommunications, technology and media sectors—advising them in policy development, regulatory compliance, and commercial transactions, among other settings.

FCC Chairman Pai announced today that the FCC will move forward with a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act (CDA).  To date, Section 230 generally has been interpreted to mean that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions.
Continue Reading FCC Announces Section 230 Rulemaking

Reflecting the heightened interest in 5G and related cybersecurity concerns, the National Telecommunications and Information Administration (NTIA) has requested public comment on the implementation of its National Strategy to Secure 5G.  Stakeholders with interests in telecommunications infrastructure and security—and any parties interested in 5G generally—currently have the opportunity to provide input on the plan that will carry out the Administration’s 5G strategy.

From now until June 18, 2020, the NTIA will accept public comments as part of its efforts to develop a rollout for its National Strategy to Secure 5G.  This implementation plan is being developed per the Secure 5G and Beyond Act of 2020, which President Trump signed into law on March 23.  The NTIA published its National Strategy the same day.
Continue Reading Administration Seeks Public Input on Rollout of 5G Strategy

In a ruling with implications for both net neutrality and privacy, the Ninth Circuit ruled en banc today that the common carrier exemption in Section 5 of the FTC Act is activity-based, reversing a 2016 panel ruling that the exemption was status-based.  Today’s decision bolsters the FTC’s authority to bring consumer protection (including privacy) and competition actions against providers of Internet access service, which the FCC has ruled is not a common carrier service in connection with that agency’s repeal of net neutrality rules.

This appeal arises from the FTC’s lawsuit against AT&T alleging that AT&T’s practice of throttling the speed of customers with unlimited data plans once they reached a certain data usage threshold violated Section 5 of the FTC Act.  AT&T had challenged the FTC’s authority to bring the case, arguing that the company was immune from FTC oversight because it also offers common carrier (e.g., voice telephone) service.  Although the district court sided with the FTC on this question, a 2016 Ninth Circuit panel went the other way and, in doing so, created what the FTC and FCC agreed was a potential ‘gap’ in authority in which neither agency would have the right to police many actions by telecommunications companies. 
Continue Reading Ninth Circuit Decision Provides Critical Win to FTC in its Authority over Internet Service Providers

FCC Chairman Ajit Pai announced today that at its December 14 open meeting, the FCC will vote on an overhaul of the net neutrality framework adopted by the prior Administration in 2015.  The full text of the draft order will be released tomorrow, but Chairman Pai has made certain key details known today.  The order envisions an expanded role in oversight of Internet Service Providers (“ISPs”) by the Federal Trade Commission—a move which Acting FTC Chairman Maureen Ohlhausen welcomed.

First, as anticipated, Internet Service Providers (“ISPs”) will again be classified as providers of “information services” under Title I of the Communications Act, rather than “telecommunications services” under Title II.  In many ways, in recent years the net neutrality debate in the U.S. has been as much—or some would say, more—about this statutory classification question than it has been about specific net neutrality rules.  
Continue Reading FCC Poised to Release Draft Order on Net Neutrality Overhaul

The FCC has released the Notice of Proposed Rulemaking (“NPRM”) on “Restoring Internet Freedom” that was adopted by a 2-1 vote at the Commission’s open meeting on May 18.  The NPRM is substantively very similar to the draft released by Chairman Pai on April 27, and the comment deadlines remain the same: July 17 for initial comments and August 16 for reply comments.

Of possible relevance from a privacy perspective, the NPRM now asks about the jurisdictional effects of finding broadband to be an interstate information service.  As he explained in his statement approving adoption of the NPRM, Commissioner O’Rielly had asked that this question be added to the NPRM, and he expressed the view that this finding should foreclose states and localities from regulating the privacy practices of ISPs (among other matters).  Whether the FCC would attempt to make such a broad preemption finding remains to be seen.   
Continue Reading FCC Releases NPRM on Broadband ISPs and Net Neutrality Rules

In a widely anticipated step, FCC Chairman Ajit Pai has released a draft Notice of Proposed Rulemaking (“NPRM”) on the legal framework that governs broadband providers and related net neutrality questions.

Most notably from a privacy perspective, the draft NPRM proposes to find that broadband Internet access service is an “information service” under the Communications Act, reversing the 2015 “telecommunications service” classification that had brought broadband providers under the statutory privacy requirements of Title II of that Act.

The draft NPRM states that the 2015 reclassification “stripped FTC authority over Internet service providers,” in light of the common carrier exemption in Section 5 of the FTC Act.  By reversing the FCC’s prior finding that broadband is a common carrier service, the draft NPRM proposes to “return jurisdiction over Internet service providers’ privacy practices to the FTC, with its decades of experience and expertise in this area.”
Continue Reading FCC Chairman Pai Proposes New Regulatory Framework for Broadband ISPs, Seeks Comment on Net Neutrality Rules

Advances in technology present opportunities to improve student learning, allow teachers and students to work more efficiently, and reduce operational costs for educational institutions.  Many schools are taking advantage of these benefits by implementing online course systems and cloud computing services that allow students and teachers to access their programs, e-mails, and documents online from anywhere and almost any device.

As a New York Times article published earlier this week also highlighted, the embrace of educational cloud services also raises interesting and important questions about the privacy and security of student data.  After all, these services by definition involve the movement of student and teacher communications, documents, or other data that used to be stored on-site and managed by school employees to the cloud.  Cloud computing services are operated by third-party vendors, and these vendors have a range of business models and practices with respect to the collection, use and disclosure of data. 

As they work to safeguard student data without inhibiting the benefits of educational technologies, we find that educational institutions increasingly are focusing on regulatory requirements and contractual protections for student data — and in particular five principles that we describe after the jump.


Continue Reading Student Privacy and the Cloud: Five Principles for Schools

Earlier today in Bogota, the supervisor of the Colombian data protection authority (within the Superintendency of Industry and Commerce) announced that the country’s new data protection law will receive final approval from President Juan Manuel Santos this month or next.  The supervisor, José Alejandro Bermúdez, made the announcement in an interview with the Spanish news