Category Archives: Electronic Communication

The “open” nature of high-speed Internet service in the United States may be at risk based on a new appeals court ruling that struck down the Federal Communication Commission’s “net neutrality” regulations.

Since 2010, the FCC regulations, known as the “Open Internet Order,” have prohibited broadband service providers (ISPs) from blocking access to lawful content. as well as from blocking applications that compete with the  provider’s service offerings. The Order also prohibits providers of fixed broadband service (i.e., non-mobile broadband) from unreasonably discriminating in transmitting lawful Internet traffic, such as by granting preferred status or speeds to websites that are affiliated with the provider or who pay a fee to the provider.

The Court’s decision in Verizon v. Federal Communications Commission struck down most of the Open Internet Order.  In particular, the Court said that the FCC went beyond its regulatory authority in imposing the anti-blocking and anti-discrimination rules on ISPs.

Notably, the Court did not say that the FCC could never impose such rules on ISPs. Instead, the Court found issue with the way that the FCC imposed the rules on ISPs. Specifically, the Court faulted the FCC for creating rules that could be considered common carrier obligations and then imposing them on ISPs that were not considered to be “common carriers” under the Communications Act.

The Court did uphold the Order’s requirement that ISPs disclose to consumers accurate information about their network management practices, performance and commercial terms of service.  So, although an ISP can now block or slow a particular website, it must disclose that practice to its subscribers.

The FCC is expected to appeal the decision.  Alternatively, the FCC could attempt to re-write the rules within the guidelines of the decision. Either way, it will be interesting to see whether any broadband service providers change the way that they deliver services to consumers. Under the Court’s ruling, an ISP who is also a cable service provider could block or slow certain over-the-top services so long as they disclose that fact to subscribers. An ISP could charge a higher fee for access to certain sites, or perhaps a reduced fee to consumers who are  willing to accept a more limited scope of the World Wide Web.   Alternatively, some ISPs may use the Court’s ruling as an opportunity to attract new consumers by pledging to make all sites freely available without blocking or discrimination.

Either way, consumers are likely to see changes in their broadband service soon based on the new ruling.

It’s a general counsel’s worst nightmare. Sensitive data. Gone. Stolen by faceless thieves who breached the company’s seemingly secure network.

As my partner Scott Vernick of Fox Rothschild recently stated:  “Data breaches can severely impact a company’s reputation and have debilitating consequences to businesses big and small.”

A new mobile phone app launched by the Fox Rothschild Privacy and Data Security Practice provides a guide to swift damage control in situations like this. The app—called Data Breach 411—can help companies who are affected by a breach navigate the various laws and regulations relating to data breaches. Currently, 46 states have laws in place addressing how organizations should prepare for and respond to the loss or theft of data.

According to Vernick:  “Our app is a ‘one stop shop’ for in-house counsel and privacy officers to instantly access the relevant state-specific details on what they need to do, who they need to notify, when and how. The ability to access these state rules at your fingertips can make all the difference in terms of what’s at stake for an organization: loss of reputational integrity, public trust and business, and time-consuming and costly remediation efforts.”

Information available via the Data Breach 411 app include:

• State Security Breach Statutes: An alphabetical listing of the states that have data breach laws in place and links to all the relevant notification statutes.
• HIPAA/HITECH Statutes: Breach notifications rules and other pertinent information related to the loss or theft of personal health information.
• Resources: Links to credit agencies and credit monitoring services as well as the FTC website. Also, a section on COPPA – the Children’s Online Privacy Protection Act – and relevant information surrounding the mining of data on minors. This section also includes links to Fox’s Privacy Compliance & Data Security Blog and its HIPAA, HITECH and Health Information Technology Blog.

The Data Breach 411 app is currently available for free in the iTunes Store. An Android version will be available soon. To download the app, click here.

A new California state law is prompting businesses around the country to update their website privacy policies to more fully describe how the business handles certain customer data.

California’s Online Privacy Protection Act (CalOPPA) already required any commercial website or online service that collected personally-identifiable data from California residents to post a privacy policy. The new law amends CalOPPA to mandate that privacy policies explicitly describe how the website or service will respond to “do not track” requests from users.

My partner Mark McCreary prepared a detailed summary of the CalOPPA amendment and its additional disclosure requirements.  Mark’s summary is available via this link.