Wednesday, June 19, 2013

Fed Reg RFC :: Telephone Numbers for IP Enabled Service Providers

Federal Register June 19 Action Proposed rule.

Summary In this document, the Federal Communications Commission (Commission) propose to promote innovation and efficiency by allowing interconnected Voice over Internet Protocol (VoIP) providers to obtain telephone numbers directly from the North American Numbering Plan Administrator (NANPA) and the Pooling Administrator (PA), subject to certain requirements. We anticipate that allowing interconnected VoIP providers to have direct access to numbers will help speed the delivery of innovative services to consumers and businesses, while preserving the integrity of the network and appropriate oversight of telephone number assignments. The accompanying Notice of Inquiry further seeks comment on a range of issues regarding our long-term approach to numbering resources. The relationship between numbers and geography—taken for granted when numbers were first assigned to fixed wireline telephones—is evolving as consumers turn increasingly to mobile and nomadic services. We seek comment on these trends and associated Commission policies.

Dates Comments are due on or before July 19, 2013. Reply comments are due on or before August 19, 2013.

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Tuesday, June 18, 2013

VID The NCTA Cable Show 2013 Playlist

[Literature] Yoo, Protocol Layering :: Hoboken, et al, Obscured by Clouds :: Skorup, Fed Spectrum :: Sutherland, World Class Broadband

Yoo, Christopher S., Protocol Layering and Internet Policy (2013). University of Pennsylvania Law Review, Vol. 161, P. 1707, 2013; U of Penn, Inst for Law & Econ Research Paper No. 13-18.
An architectural principle known as protocol layering is widely recognized as one of the foundations of the Internet’s success. In addition, some scholars and industry participants have urged using the layers model as a central organizing principle for regulatory policy. Despite its importance as a concept, a comprehensive analysis of protocol layering and its implications for Internet policy has yet to appear in the literature. This Article attempts to correct this omission. It begins with a detailed description of the way the five-layer model developed, introducing protocol layering’s central features, such as the division of functions across layers, information hiding, peer communication, and encapsulation. It then discusses the model’s implications for whether particular functions are performed at the edge or in the core of the network, contrasts the model with the way that layering has been depicted in the legal commentary, and analyzes attempts to use layering as a basis for competition policy. Next the Article identifies certain emerging features of the Internet that are placing pressure on the layered model, including WiFi routers, network-based security, modern routing protocols, and wireless broadband. These developments illustrate how every architecture inevitably limits functionality as well as the architecture’s ability to evolve over time in response to changes in the technological and economic environment. Together these considerations support adopting a more dynamic perspective on layering and caution against using layers as a basis for a regulatory mandate for fear of cementing the existing technology into place in a way that prevents the network from innovating and evolving in response to shifts in the underlying technology and consumer demand. 
Van Hoboken, Joris V. J., Arnbak, Axel and Van Eijk, Nico, Obscured by Clouds or How to Address Governmental Access to Cloud Data from Abroad (June 9, 2013). 
Transnational surveillance is obscured by the cloud. U.S. foreign intelligence law provides a wide and relatively unchecked possibility of access to data from Europeans and other foreigners. The amendments to the Foreign Intelligence Surveillance Act in 50 USC 1881a (section 702) are of particular concern. Recent leaks around the PRISM surveillance program of the National Security Agency seem to support that these legal possibilities are used in practice on a large scale.....
Skorup, Brent, Reclaiming Federal Spectrum: Proposals and Recommendations (May 28, 2013).
With the popularity of smartphones, tablets, Wi-Fi, and other wireless devices that require as an input transmissions over radio spectrum, the rising demand for bandwidth is rapidly using up the available supply of spectrum. Spectrum demand increases significantly every year with no end in sight, yet the "greenfields" of available and unallocated spectrum are gone. Redeployed spectrum must come from incumbent users. Today, the largest holder of spectrum appropriate for mobile broadband is the federal government, which uses spectrum for a variety of military and nonmilitary uses. Federal users generally use spectrum only lightly and the inefficiencies have triggered bipartisan calls for selling the spectrum used by federal agencies to the private sector, particularly to mobile broadband carriers. To date, reclaiming federal spectrum is a painfully slow process and billions of dollars of social welfare are lost with every year of delay. This paper examines proposals for reclaiming spectrum and puts forth some best practices to ensure more efficient use of spectrum. Policymakers should consider creating a commission with authority to require the sale of spectrum so that agency-controlled spectrum is quickly and easily redeployed to its highest-valued uses. In the long run, Congress should also require agencies to pay for the spectrum they possess, just as agencies pay market prices for other inputs. 
Sutherland, Ewan, A Short Note on World Class Broadband (June 11, 2013). 
The term world class is used in some broadband plans, as a target. Comparisons with other countries are beneficial, though not straightforward, in measuring progress. Claims about improvements to national competitiveness and economic growth are difficult to determine, given that economic rivals are following similar policies, and the effects of the use of the most recent broadband services are difficult to measure. Many countries rely on statistics that are inadequate for the task, though there are independent data (e.g. crowdsourced) that fill key gaps. Economic regulation will maximise the contribution of market players, but there is a growing recognition of the need for demand stimulation in order to reach potential silver surfers, the disabled and the very poor. Different indicators and policies are required. For a very countries broadband leadership is seen as part of a manufacturing strategy, for those aspiring to be world class, it may be sufficient to be fast followers, but this requires a wide range of initiatives supported by high quality and timely statistics.  
Dudley, Christie, Strange Intersections between Data Brokers and the CFAA: A Financially Supported Attack on Privacy (May 7, 2013). Available at SSRN: or

Sunday, June 16, 2013

PR :: NIST and NTIA Announce Plans to Establish New Center for Advanced Communications

Press Release June 14 The U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) and National Telecommunications and Information Administration (NTIA) today announced plans to establish a national Center for Advanced Communications in Boulder, Colo. The new center will implement a key provision of a memorandum President Obama issued earlier today on “Expanding America’s Leadership in Wireless Innovation.”

The two agencies recently signed a Memorandum of Understanding (MOU) to collaborate on the establishment of the center. The MOU  states that the center will leverage the “critical mass of NIST and NTIA research and engineering capabilities concentrated in Boulder” to form a “unique national asset,” and includes the infrastructure and collaborative environment needed to address a wide range of advanced communications challenges. This joint effort will increase the impact of existing efforts already under way in both agencies.

“Advanced communication technologies drive product development in telecommunications, IT, energy, and many other critical economic sectors. This new center will combine NIST’s and NTIA’s research and technology support for U.S. industry so that it can rapidly evaluate and exploit exciting new opportunities in the field,” said Under Secretary of Commerce for Standards and Technology and NIST Director Patrick Gallagher. 

A key focus of the center will be to promote interdisciplinary research, development and testing in radio frequency technology and spectrum sharing for public safety and commercial broadband applications.
“NIST and NTIA have longstanding, productive programs in this economically important field,” noted Assistant Secretary for Communications and Information and NTIA Administrator Lawrence Strickling. “By creating a center that optimizes our combined resources, we can focus on testing and measurement to support spectrum sharing between industry and government agencies, allowing for more efficient use of spectrum by all.”

The Presidential Memorandum directs the Secretary of Commerce, through NTIA and NIST, to publish an inventory and description of federal test facilities available to commercial and other stakeholders engaged in research, development, testing and evaluation of technologies to enhance spectrum sharing and other wireless related efficiencies.  

Examples of the specific types of research, facilities and other activities at the new center may include:
  • multiuser test beds that allow government and industry researchers to realistically measure and evaluate the performance of new advanced communications technologies;
  • targeted interdisciplinary research, development and testing projects in fields such as digital information processing, interoperability and quantum communications; and
  • outreach to international standards development organizations to help ensure compatibility of U.S. advanced communications efforts with the global marketplace.

FCBA Panel on Incentive Auctions - Webcast by NY ISOC

Friday, June 14, 2013

Does the Computer Fraud and Abuse Act violate the 10th Amendment to the US Constitution?

US v. Roque, Dist. Court, D. New Jersey 2013

Motion to Dismiss indictment denied.  From the Court Opinion:

Essentially, the Superseding Indictment[1] alleges that Felix Roque, who is the Mayor of West New York, and his son, Joseph Roque, sought, through violations of the Computer Fraud and Abuse Act ("CFAA"), to disable a website critical of Mayor Roque's administration and to harass persons associated with the website. Of course, alleging is not proving, and the defendants are clothed in the presumption of innocence. It would be premature and inappropriate at this stage to consider the truth, or not, of what is alleged. The current motions are directed to the sufficiency of the Indictment and its allegations as a matter of law.

Computer Fraud and Abuse Act

Defendants move to dismiss the Indictment. They assert that the CFAA, at least as applied here, impinges upon the authority of the State of New Jersey to regulate local conduct, and hence violates the Tenth Amendment to the United States Constitution. The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const, amend. X. The government responds, in essence, that the CFAA is an exercise of a power "delegated to the United States by the Constitution" — specifically, by the Commerce Clause, which grants Congress the power to "regulate Commerce ... among the several States." U.S. CONST, art. I, § 8, cl. 3. See generally Treasurer of N.J. v. U.S. Dep't of Treasury, 684 F.3d 382, 413 (3d Cir. 2012) ("If Congress acts under one of its enumerated powers ... there can be no violation of the Tenth Amendment") (quoting United States v. Parker, 108 F.3d 28, 31 (3d Cir. 1997)).[3]

The CFAA was enacted pursuant to the Commerce Clause power. The CFAA charges here are explicitly tied to "protected computers," defined as computers "used in or affecting interstate or foreign commerce or communication." 18 U.S.C. § 1030(e)(2)(B). The Indictment alleges that each computer in question was a protected computer, i.e., a "computer used in and affecting interstate commerce." E.g., Indictment Count 1, ¶¶ 2(a) 86 (b); Count 2, ¶ 2. If facially adequate, such allegations are sufficient to call for a trial on the merits. See generally Costello v. United States, 350 U.S. 359, 363 (1956); United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007). The Indictment, in other words, need only allege a valid offense; it need not on its face negate the possibility of every application of the statute that might present a Constitutional problem. It is almost tautological that an allegation of interstate commerce, if proven, would establish the required nexus to interstate commerce. And having alleged interstate commerce, the government has taken on the burden of proving it. Nevertheless, because that is something of a legal conclusion, I will entertain briefly the defendants' contention that the allegations factually fall short of what is legally required to support federal jurisdiction. See generally Fed. R. CRIM. P. 12(b)(3)(B); United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002) (Rule 12 challenge available "if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute").

It is settled that the Commerce Clause power encompasses (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 558-59 (1995); United States v. Bishop, 66 F.3d 569, 590 (3d Cir. 1995). The Indictment alleges facts and circumstances sufficiently broad to encompass proof of the requisite connection to interstate commerce under category (1) or category (2).

The inherent attributes of the internet, plus the physical locations of the computers in question here, suggest that the defendants used the "channels" or "instrumentalities" of interstate commerce, and that the relevant communications crossed state lines and hence were "in" interstate commerce. See United States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006) (concluding that the "Internet is an instrumentality and channel of interstate commerce"); United States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007). The computers at issue here were all connected to the internet, and were used to communicate over the internet. The government argues, with some force, that the internet is the quintessential "instrumentality" of 21st century commerce. Thus the commerce power that once permitted the government to regulate intrastate activities of railroad cars would permit regulation here, even if the computer communications had been confined to this State. Cf. Southern R. Co. v. United States, 222 U.S. 20 (1911).[4] Even as applied to in-state activity, the CFAA has been upheld as a valid exercise of the Commerce Clause power. See, e.g., Trotter, 478 F.3d at 921; United States v. Mitra, 405 F.3d 492, 496 (7th Cir. 2005) (purely local attack on first-responder network upheld as violation of CFAA because the network operated over the electromagnetic spectrum and was an instrumentality of interstate commerce). Likewise, and in the alternative, the commerce power that once permitted the government to regulate persons and property actually transported across state lines permits regulation of the interstate communications here. Cf. Brooks v. United States, 267 U.S. 432 (1925) (upholding Dyer Act, which prohibits transportation of stolen vehicles across state lines); Hoke v. United States, 227 U.S. 308, 320 (1913) (Mann Act). Actual interstate communications between, for example, computers in New Jersey and "Go Daddy, an Internet Service Provider (ISP') located in Arizona," or "Weebly, a second ISP located in California" (Indictment Count 1, ¶ 1(h)), may demonstrate that the computers were used "in" interstate commerce. See Trotter, 478 F.3d at 921 (citing Mitra, 405 F.3d at 496).

We might hypothesize that the offense conduct involves purely local politics, or that the participants were personally indifferent to the interstate character of the internet or the location of the servers. In general — and certainly at this pretrial stage — I cannot say that this affects the issue. It may be just as true, for example, that a carjacker does not intend to commercially exploit a stolen car, or to drive it across state lines; nevertheless, because carjacking implicates interstate commerce, Congress has the power to prohibit it. See Bishop, 66 F.3d at 590; see also Trotter, 478 F.3d at 922,

Under these principles, I cannot grant defendants' motion to dismiss the Indictment. The allegations of the Indictment encompass a set of facts that, if proven, would make out a violation of the CFAA that would fall within the Commerce Clause power. Even if I accepted the defendants' Tenth Amendment reasoning, see n.3, above, I could not find at this early procedural stage that the government had boxed itself out of proving a valid federal case. The motion to dismiss the Indictment on these grounds is denied.

VIDEO Internet Law and Public Policy Conference, Stanford Law School

"On May 3-4, 2013, Stanford's Program in Law, Science and Technology hosted the Second Stanford-Peking University Conference on Internet Law and Public Policy."


This document is scheduled to be published in the Federal Register on 06/17/2013 and available online at, and on 6820-B3

[Notice-PCLOB-2013-03; Docket No 2013-0004; Sequence No. 3]
Sunshine Act Meeting
TIME AND DATE: 1:00 p.m. – 3:00 p.m. on Wednesday, June  19, 2013.
PLACE: The meeting will be held at 2100 K Street, NW,  Washington, D.C. 20427.
STATUS: Closed.
The Privacy and Civil Liberties Oversight Board will  meet in closed session to discuss classified information  pertaining to the PRISM-related activities and the Foreign  Intelligence Surveillance Act.
The Government in the Sunshine Act, 5 U.S.C. § 552b,  normally requires that agencies provide at least one week  prior notice to the public of the time, date, and location  of meetings. As permitted by section 552b(e)(1), the Board  determined, by recorded vote, that agency business requires
that this meeting be called at an earlier date.

Susan Reingold, Chief
Administrative Officer, 202-331-1986.
Dated: June 12, 2013.
Claire McKenna,
Legal Counsel [FR Doc. 2013-14431 Filed 06/13/2013 at 11:15 am;  Publication Date: 06/17/2013]

Thursday, June 13, 2013

FCC Announces Date of Next Open Internet Advisory Committee - July 9

"By this Public Notice, the Federal Communications Commission (Commission) announces the date, time, and agenda of the next meeting of the Open Internet Advisory Committee (Committee). The next meeting of the Committee will take place on July 9, 2013, from 10:00 A.M. to 1:00 P.M. (EST) in the Commission Meeting Room at Commission Headquarters, located at 445 12th Street, S.W., Room TW-C305, Washington, DC 20554. The Committee will consider issues relating to the subject areas of its four working groups Mobile Broadband, Economic Impacts of Open Internet Frameworks, Specialized Services, and Transparency as well as other open Internet related issues. A limited amount of time will be available on the agenda for comments from the public. Alternatively, members of the public may send written comments to Tejas Narechania, Designated Federal Officer of the Committee, or Kristine Fargotstein, Deputy Designated Federal Officer, at the addresses provided below. The meeting is open to the public and the site is fully accessible to people using wheelchairs or other mobility aids. Other reasonable accommodations for people with disabilities are available upon request. The request should include a detailed description of the accommodation needed and contact information. Please provide as much advance notice as possible; last minute requests will be accepted, but may not be possible to fill. To request an accommodation, send an email to or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). The meeting of the Committee will also be broadcast live with open captioning over the Internet from the FCC Live web page at For further information about the Committee, contact: Tejas Narechania, Designated Federal Officer, Office of General Counsel, Federal Communications Commission, Room 8-C721, 445 12th Street, S.W. Washington, DC 20554;-, Deputy Designated Federal Officer, Wireline Competition Bureau, Federal Communications Commission, Room 5-C323, 445 12th Street, S.W. Washington, DC 20554;  - FCC -


FTC Announces New Date for Internet of Things Workshop: Nov. 19

FTC Press Release For Your Information: 06/13/2013 Workshop Will Take Place Nov. 19
The Federal Trade Commission has announced a new date for its planned workshop on the privacy and security of the Internet of Things. The workshop will now be held on Nov. 19, 2013, in Washington, D.C.
The workshop will address a wide variety of issues related to the ability of everyday devices to communicate with each other and with people, which is becoming more prevalent and is often referred to as the Internet of Things.
The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them.  To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357).  The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 2,000 civil and criminal law enforcement agencies in the U.S. and abroad.  The FTC’s website provides free information on a variety of consumer topics.  Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.
Jay Mayfield
Office of Public Affairs

Karen Jagielski
Bureau of Consumer Protection