Consumer Broadband Privacy Protections Are Dead

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Last week, the Senate voted 50-48 along party lines to kill consumer broadband privacy protections. That vote then continued today in the House, where GOP lawmakers finished the job, apparently happy to advertise how ISP campaign contributions consistently, directly manifest in anti-consumer policy with a 215 to 205 vote (you can find a full vote breakdown here). The rules, which were supposed to take effect this month, were killed using the Congressional Review Act -- which not only eliminates the protections, but limits the agency's ability to issue similar rules down the road.The broadband industry's effort to kill the rules is one of the uglier examples of pay-to-play government in recent memory. The protections, originally passed last October by the FCC, have been endlessly demonized by the broadband industry, despite the fact that they're relatively straight forward. The rules would have simply required that ISPs are transparent about what they collect (and who they sell it to), and provide working opt out tools. ISPs were also required to have consumers opt in for more sensitive data collection (financial, browser history data).Large ISPs, however, consistently whined about the rules, insisting the rules would "confuse" consumers, and hamper "innovation" in the advertising and telecom space. They also tried to claim that ISPs don't really collect much data on consumers, and what collection that does happen can be easily dodged by using a VPN (neither of which is true). ISPs also tried to claim it was unfair to saddle them with additional privacy regulations not seen by Google and Facebook, intentionally ignoring that the often stark lack of broadband competition makes this an apples to oranges comparison.In an last-ditch attempt to try and convince the House that ISP revenues shouldn't take priority over consumer privacy, a group of around twenty smaller ISPs sent a letter to the House (clearly promptly ignored) trying to explain to them how the lack of competition in broadband made the rules necessary:

"Perhaps if there were a healthy, free, transparent, and competitive market for Internet services in this country, consumers could choose not to use those companies' products. But small ISPs like ours face many structural obstacles, and many Americans have very limited choices: a monopoly or duopoly on the wireline side, and a highly consolidated cellular market dominated by the same wireline firms.Under those circumstances, the FCC's Broadband Privacy Rules are the only way that most Americans will retain the free market choice to browse the Web without being surveilled by the company they pay for an Internet connection."

...When I was growing up, one of the tents of the Republican party that I admired the most was (dedication to) privacy. Please give me one, not two, one good reason why all these people here, why all these people watching, would want Comcast or Verizon to have information -- unless they give it to them. We're talking medical information, we're talking passwords, we're talking financial information, we're talking college applications -- there is nothing in today's society that every one of us doesn't do every day on the internet -- and yet Comcast is gonna get it. Not because I said it's ok....Go out in the street! Please, leave Capitol Hill for five minutes -- go anywhere you want -- find three people in the street who think it's ok. And you can explain to them "ROIs, and the company has to make progress, and we have to make money." You'll lose that argument every single time, as you should. And I guarantee it you won't find anybody in your district who wants this bill passed.

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California News Publisher Files SLAPP Suit Against Competing Online Publisher

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In the news and publishing world, there tends to be pretty strong support for protecting free speech and, in particular, strong anti-SLAPP laws. After all, news publishers, are (unfortunately!) frequently targeted in SLAPP suits that are designed solely to shut up a news organization from reporting on something that someone doesn't like. That's why I'm always surprised when publications themselves seem to go after others for speech. But here we are, with a weird legal battle involving two publishers in nearby Santa Clara, California. The lawsuit was filed by Santa Clara Eagle Publishing and its boss Miles Barber against a guy named Robert Haugh, who just recently started an online-only publication called "Santa Clara News Online." Eagle Publisher/Barber, on the other hand, publish the more established "Santa Clara Weekly."Haugh's Santa Clara News Online appears to be your typical local blog, with Haugh -- a local reporter for over 15 years -- posting news and opinion blog posts about local happenings in Santa Clara. Some of those blog posts criticized Barber and Santa Clara Weekly. And, thus, the lawsuit. Lawyer Ken White -- better known around these parts as Popehat -- is representing Haugh and has filed a lovely anti-SLAPP motion against Barber and Eagle Publishing, noting that it seems quite clear that the intent of the lawsuit was to try to silence Haugh from criticizing Barber and the SCW:

This case presents a classic story - a minor local luminary, incensed at bad press,abuses the legal system to lash out at critics, hoping that the ruinous expense of litigationwill crush them even if the claim has no merit. Fortunately, California has a robust remedy:California Code of Civil Procedure § 425.16, the Anti-SLAPP Statute (Section 425.16).The Court should employ it to strike the complaint in this case, which is utterly meritless.

Now Plaintiffs sue Mr. Haugh, claiming that he's used the Site to interfere with theSCW's relationship with Santa Clara, misappropriated the trade name Santa Clara Newsonline, defamed it and Mr. Barber, and put them in a false light. Plaintiffs' Complaint isnotably and strategically vague. It complaints of false statements, but does not cite or attacheven a single blog post or statement, nor does it quote even one statement on the Site.Instead, Plaintiffs claim that Mr. Haugh made the following vaguely defined categories ofstatements, which Plaintiffs claim are false:

• [T]hat the 49'ers had bought out the weekly and that the weekly serves as nothingmore than a proxy for the 49'ers business interest,
• [T]hat Miles Barber is a misogynist and the Weekly's criticism of the women ofthe city council were [sic] based on a desire to remove all women from thecouncil,
• [T]hat the Weekly was not authorized to publish legal notices,
• [T]hat the Weekly's advertisers do not see a return on investment,
• [T]hat Plaintiff has been skipping publication dates, and
• [T]hat numerous facts published by the weekly were not true.

These vague assertions mischaracterize the actual content of the Site:

• On the Site, in columns explicitly labeled as opinion, Mr. Haugh identified factsunderlying his questions about whether the SCW was serving the needs of theSan Francisco 49ers: that the SCW had run a large 49ers ad nearly every weeksince 2010, that an associate editor of SCW promoted the 49ers' sponsorship ofher non-profit arts event, and that a Political Action Committee called BluPacassociated with the 49ers reprinted stories printed in the SCW.
• The Site has never called Mr. Barber a misogynist. It has criticized him for acolumn in the SCW (Exh. R) in which he derided female City Council members,saying they could barely spell their name.
• Mr. Haugh has not asserted that Plaintiffs are unauthorized to print legal notices.Rather, in a guest letter written by Burt Field, Mr. Field explained that he hadwritten to the City Clerk and City Auditor asking questions about whether theSCW met the requirements for legal notices.
• The Site's sole reference to advertiser return on investment in the SCW camefrom a column - expressly labeled an opinion - in which Mr. Haugh referred tothe fact that most of the candidates who advertised in the SCW in the 2016 localelection were not elected.
• Contrary to Plaintiffs' claim, the Site is not aware of any post asserting that theSCW has skipped publication dates.
• Though the Site has questioned factual claims in the SCW, each time it has done sso in opinion pieces that have expressly stated the basis for the question.

[Haugh's] Site was initially located at stantaclaranews.wordpress.com until Mr. Haugh registeredsantaclaranews.org on October 27, 2016.... On November 21,2017, more than a month after Mr. Haugh began publishing the Site under the name SantaClara News Online, Plaintiffs filed a Fictitious Business Name application purporting to layclaim to that name, and in January 2017 published the claim.

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