The Electronic Frontier Foundation (EFF) is seeking to shine light on the many sealed and heavily redacted filings related to a recently settled patent case involving Charter Communications and Entropic Communications. 

The two companies settled Entropic's lawsuit in a U.S. District Court in Texas over Data Over Cable Service Interface Specification (DOCSIS) technologies in December. (You can read the case here.) 

But according to digital rights advocacy group EFF, the two sides made so much of their beef secret, it's difficult to gauge the impact of the complaint and resulting settlement on the ever-evolving DOCSIS standard, which is the foundation of cable broadband. 

"EFF’s motion argues that the legal issues in the case and their potential implications for the DOCSIS standard are a matter of public concern and asks the district court judge hearing the case to provide greater public access," wrote the group's senior policy analyst, Joe Mullin, and Aaron Mackey, its chief transparency and free speech litigator, in a blog post. 

"In Entropic, both sides are experienced litigants who should know that this type of sealing is improper," the pair added. "Unfortunately, over-broad secrecy is common in patent litigation, particularly in cases filed in the U.S. District Court for the Eastern District of Texas."

EFF has filed this motion to unseal the court records. 

Entropic has recently sued other cable companies, including Comcast and Cox Communications, as well as satellite TV companies DirecTV and Dish Network. 

Section 230 is the surviving section of the 1996 Communications Decency Act, the rest of which was ruled unconstitutional by the U.S. Supreme Court.

It allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it, either taking it down despite complaints from individuals, corporations or governments, or leaving it up despite such complaints.

As the Electronic Frontier Foundation put it, Section 230 “has allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users.”

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In a note to clients, attorneys at Wiley Rein explained the specific legal protection that Section 230 affords online service providers:

“Section 230 protects interactive computer service providers such as social media platforms in two ways. Under Section 230(c)(1), ‘[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ This means that interactive computer service providers are free to host third-party content without being liable for the substance of that content.

“Section 230(c)(2) establishes an additional liability shield for users and providers of interactive computer services who moderate their content, immunizing them from suit for ‘any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene … or otherwise objectionable.’

“As the Ninth Circuit has explained, these two subsections provide independent protections for providers: “even those who cannot take advantage of subsection (c)(1), perhaps because they developed, even in part, the content at issue … can take advantage of subsection (c)(2) if they act to restrict access to the content because they consider it obscene or otherwise objectionable.”

The new Congress is reportedly considering repealing the privacy rules that Tom Wheeler’s Federal Communications Commission put in place right before the presidential election. Proponents of the new rules are engaged in a furious public-relations campaign, claiming that consumers’ privacy will be violated left and right if the new rules are repealed. Frightening if true.

When it comes to using your data from Web browsing and app usage, the Federal Trade Commission has been the regulatory cop on the beat. Determined to be relevant in the digital economy, the FCC created its own, radically different set of privacy regulations targeting just Internet service providers. By requiring an ISP’s customers to give permission for their data to be used, the FCC’s new privacy rules subject ISPs to a different and more restrictive set of regulations than their online advertising rivals.

The difference in the rules — “opt-in” rules for ISPs versus “opt-out” rules for edge providers — has significant competitive implications in the online advertising market, which is dominated by Google and Facebook. The reason is that consumers typically elect the default choice out of laziness and respect for the status quo. By making it relatively easier for edge providers to access consumers’ data, the FCC has perversely impaired the ability of ISPs to compete for online advertisers.

Not what you’d expect from an FCC chairman who liked to chant “competition, competition, competition” as his raison d’etre.

Google and its minions are understandably upset Congress might upend this regulatory arbitrage, and they have come out swinging. A Feb. 20 blog post by the Electronic Frontier Foundation in defense of the FCC’s rules begins with a breathtaking subtitle: “Cable and telephone companies are pushing Congress to make it illegal for the federal government to protect online consumer privacy.”

Please. Even if the FCC’s new privacy rules are repealed, there are myriad layers of federal and state protection for consumers. None are mentioned in EFF’s blog.

Where to begin? At the federal level, the FCC has authority under section 222 of the Communications Act to prevent privacy abuses by telephone providers. Section 222 was originally designed to prevent traditional telephone companies from giving their wireless subsidiaries an unfair advantage over unaffiliated wireless companies by sharing customer information with them.

Not content with section 222? Repeal of the FCC’s new privacy rules will not prevent the FCC from establishing a different privacy regime going forward. For example, in the name of regulatory symmetry, the new FCC could replicate the same opt-out standard used by the Federal Trade Commission.

Perhaps anticipating this rejoinder, EFF claims without citation to any case law or precedent that the mechanism being considered by Congress to repeal the FCC’s privacy rules “could possibly bar the FCC from enacting future consumer privacy rules even if they are more industry friendly.” Adding “possibly” after “could” seems redundant, unless there is simply no basis for making such a claim. (I’m anxious to be corrected.)

Moreover, repeal of the FCC’s privacy rules will not prevent Congress from establishing a different privacy regime going forward. To the extent that Congress repeals both the FCC’s 2015 Open Internet Order and its privacy rules, the FTC would be placed firmly back in control of privacy enforcement for ISPs. Before the FCC’s reclassification of ISPs as common carriers in March 2015 took away the FTC’s authority, the FTC was the primary privacy cop on the beat for ISPs. For example, in 2014, the FTC sanctioned AT&T Mobility for its alleged failure to adequately inform its customers of its data-throttling program.

EFF has argued that a recent 9th U.S. Circuit Court of Appeals decision stripped the FTC of its “authority to penalize cable and telephone companies if they deceive their customers, meaning the FCC is the only broadband consumer protection agency.” But Congress could eliminate the FTC’s common-carrier exception, assuming the GOP majority could convince eight Democratic senators to overcome the filibuster rule. This would also return privacy enforcement to the FTC.

Moving beyond federal protections, several states add yet another layer of protection against potential privacy abuses by ISPs. For example, Nevada and Minnesota require ISPs to keep private certain information concerning their customers, unless the customer gives permission to disclose it. And under California law, non-financial businesses, including ISPs, are required to disclose to customers, in writing or by email, the types of personal information sold to a third party for direct marketing purposes.

If and when the FCC’s new privacy rules are overruled, the statute that empowers the agency to police privacy abuses by ISPs will still apply. And nothing prevents the FCC from designing a different (and more symmetric) regulatory standard.

Repeal of the FCC’s new rules will simply restore the regulatory environment that existed for more than 18 months between its reclassification decision and its privacy rules. Given the myriad layers of protections and regulatory options, the notion that repeal would leave the ISPs without any privacy regulator is patently false.

Hal J. Singer is a principal at Economists Incorporated and a senior fellow at the Progressive Policy Institute, and has served as an adjunct professor at Georgetown’s McDonough School of Business.

John Legere served up a slice of humble pie Monday in the form of an open letter in which the outspoken T-Mobile CEO apologized for some disrespectful remarks directed to the Electronic Frontier Foundation (EFF) while remaining steadfast in a position that T-Mobile’s new and optional zero-rated Binge On streaming offering “absolutely supports Net Neutrality.”

Legere stirred things up last week when using Periscope to conduct a Q&A about Binge On. EFF asked if Binge On alters streams or just limits its bandwidth.  Legere offered some details and then said:  “Who the f*** are you, anyway, EFF? Why are you stirring up so much trouble, and who pays you?"

That didn’t go over well with members of EFF, and caused Sidefuse, the company behind 4Stream.TV, to announce that it was dropping out of the Binge On program.

Legere’s letter lists out some details about Binge On before this apologetic passage:

“Look, by now you know that I am a vocal, animated and sometimes foul mouthed CEO.  I don’t filter myself and you know that no one at T-Mobile filters me either (no, they don’t even try).  That means I will sometimes incite a bit of a ‘social media riot’, but I’m not going to apologize for that.

“I will however apologize for offending EFF and its supporters. Just because we don’t completely agree on all aspects of Binge On doesn’t mean I don’t see how they fight for consumers.  We both agree that it is important to protect consumers' rights and to give consumers value.  We have that in common, so more power to them.  As I mentioned last week, we look forward to sitting down and talking with the EFF and that is a step we will definitely take.  Unfortunately, my color commentary from last week is now drowning out the real value of Binge On – so hopefully this letter will help make that clear again.”

Earlier in the letter, Legere said T-Mobile “absolutely supports Net Neutrality and we believe in an open and free Internet, noting that the company developed the proprietary Binge On system (it zero-rates streams at DVD-like 480p quality) to help customers “stretch their data bucket.”  

He also reiterated that customers can turn off Binge On to stream and HD and flip it back on after.  When Binge On is active, streaming from partners such as Crackle, Curiosity Stream, Sling TV, Hulu, Starz, HBO Now,  etflix and several others, don’t count against a T-Mobile customer’s monthly data usage, but streams from others, such as YouTube, which has criticized the program over “throttling” claims, are also delivered via the mobile provider’s proprietary system.

T-Mobile countered that Binge On doesn’t throttle video streams, but told DSL Reports that it thinks “[a]  better phrase is ‘mobile optimized’ or a less flattering ‘downgraded’ is also accurate."

Semantics aside, Binge On, Legere held in the open letter, is “a VERY ‘pro’ net neutrality capability -- you can turn it on and off in your MyTMobile account – whenever you want.  Turn it on and off at will.  Customers are in control.  Not T-Mobile.  Not content providers.  Customers. At all times.”