The Tech Policy Battles Of 2016

Encryption and Law Enforcement’s Push for Special Access

Encryption, or encoding messages to prevent unwanted parties from snooping, is regarded as a crucial tool for communicating and doing business on the web. But for American law enforcement, the mass adoption of strong encryption tools — which would prevent even technology companies from decrypting private messages — poses a national security dilemma.

The FBI and U.S. intelligence agencies say that encryption can lead to tremendous harm. Being prevented from reading encrypted communications, they say, interferes with their ability to solve crimes and prevent terror attacks. U.S. officials argue that criminals and members of ISIS use encryption to escape the reach of justice. But technologists, privacy advocates, and even the White House maintain that efforts to weaken American encryption standards would do more harm than good.

Proponents of strong encryption say that granting law enforcement special access to devices and apps would necessarily compromise our security. This would leave citizens, businesses, and government networks vulnerable to malicious hackers and foreign spies, they argue. (If a special “backdoor” is created for law enforcement, can’t determined bad actors sneak in too?) While the Obama administration decided not to seek legislation to alter encryption standards in October, appearing to temporarily settle the issue, law enforcement officials have used the Paris and San Bernardino terror attacks to make their case again.

While the FBI has not presented evidence that encrypted communication prevented law enforcement from thwarting the attacks, they will point to the looming threat of terrorism to push for Silicon Valley to change its stance this year.

The Fourth Amendment Goes Digital, Mobile, and Into the Cloud

Should the law treat your documents stored in the cloud as if they’re in your filing cabinet at home, or more like the business records of a web company? Who, in fact, owns your email? Do prosecutors need to show probable cause and obtain a warrant before police can track your phone’s location? If the government copies your hard drive for an investigation, can it keep the copy and use it for a different one in the future? How have law enforcement agencies used and misused stingrays, devices that can mimic cell towers and track a phone’s call records, location, and even the content of a conversation? Federal courts will continue to wrestle with these questions in 2016 as citizens and the state apply the Fourth Amendment’s protections against unreasonable searches in new contexts.

The Commercial Drone Wars

For Christmas, the Federal Aviation Administration’s gift to the country was mandatory drone registration. But this summer, we’ll get an even bigger present: the government’s first set of rules for the commercial use of drones. (By 2020, the FAA estimates 11 million drones will be put to work in the U.S.)

A blanket ban is currently in place for people running business using unmanned aircraft, but armed with a pilot’s license and enough paperwork, professional operators can receive a special exemption from the FAA. This year the agency is expected to do away with the exemption process and lift the ban. (Most importantly, you won’t need to earn an expensive, time-consuming manned-aircraft pilot’s license to fly a quadcopter.) The entire aviation community is waiting to see what new rules the FAA will put in place, with an eye for how restrictive they will be. Manufactures, retailers, and pilots are especially concerned with a ban on nighttime flying, requirements that operators always keep the drone in sight, whether unmanned aircraft can be used for delivery, and how close to individuals and crowds drones will be allowed to fly.

Besides companies like Amazon fighting for dedicated airspace for cargo drones, fears of trespassing, collisions, and pervasive surveillance animate the policy debate. Like other novel forms of technology, commercial drones are setting up a political battle between states and the federal government over who has legal authority to regulate the near sky.

Network Neutrality in Court and in the Marketplace

The fate of net neutrality is now in the hands of a three-judge panel. In the spring, an appeals court will decide whether things like internet fast lanes and throttling, in which internet service providers favor some content over others, can be banned by the Federal Communications Commission. The FCC believes that its open internet rules protect consumers from unfair and anticompetitive business practices. By taking the FCC to court, however, telecom companies hope to challenge the FCC’s authority to institute such rules. Internet providers argue that net neutrality will chill investment and harm broadband innovation. But even after the decision later this year, the losing party can appeal to the Supreme Court to settle the issue.

While net neutrality winds its way through the court, it’s also playing out in the market. As streaming video continues to shape the way we use our phones and consume web content, providers are experimenting with new phone and cable plans. Does providing free data, where certain apps don’t count against your data usage, violate net neutrality? And more broadly, do these kinds of zero-rating plans, where only certain streaming services are free, promote consumer welfare and business competition? Outside of net neutrality, the FCC and the Justice Department will also face enduring issues concerning equal access to high-speed internet and the consolidation of the telecom industry.

The European Union vs. Silicon Valley

In October, Europe’s highest court struck down a trade agreement with the United States over concerns that American surveillance operations violated the rights of European citizens. The landmark decision, which put Silicon Valley and Washington on the defensive over data privacy, was the latest episode in an ongoing clash between Brussels and American tech. Fueled in part by the disclosures of Edward Snowden, the regulatory climate in Europe for American firms has been colored by distrust and antagonism. Lawmakers from both sides of the Atlantic will work with haste to reconstruct the trade agreement this year.

Beyond the trade compact, U.S. tech companies face a slew of regulatory challenges on data protection and financial power. In addition to privacy probes against Facebook and antitrust charges against Google, the European Union is researching the economic role of dominant web platforms, may of which are based in the U.S.