The Supreme Court narrowed the scope of what's a computer crime under the Computer Fraud and Abuse Act, in Van Buren v. U.S., (see 2011300067). By 6-3 Thursday, the court overturned a 2017 conviction against former Georgia police officer Nathan Van Buren. He used his police computer to access a law enforcement database to obtain data about a license plate number owned by a potential undercover officer, in exchange for thousands of dollars. In an opinion delivered by Justice Amy Coney Barrett, the majority ruled Van Buren didn’t violate CFAA: “This provision covers those who obtain information from particular areas in the computer -- such as files, folders, or databases -- to which their computer access does not extend. It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.” Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented. Van Buren “had permission to retrieve license-plate information from a government database, but only for law enforcement purposes,” Thomas wrote. Van Buren exceeded “authorized access” in violation of the statute, Thomas added. Van Buren’s attorney Jeffrey Fisher emailed: “We’re very pleased with the Court’s opinion and are happy that the CFAA is now restricted to its proper reach.” DOJ didn't comment. SCOTUS recognized "the terribly written CFAA crossed the line by criminalizing everyday activities like using your work computer to read the news or send personal emails,” said Sen. Ron Wyden, D-Ore., in a statement. “Today's ruling helps rectify the damage caused by that reactionary law.” The American Civil Liberties Union also backed the majority opinion.
Notable CROSS rulings
ISPs protested a NARUC task force’s focus on electric utilities expanding into broadband. Utility officials at the group’s virtual meeting Wednesday applauded a proposed recommendation to reduce barriers to nontraditional providers. Don’t forget wireless or anchor institutions, said other commenters.
Last week’s U.S. Supreme Court ruling in favor of FCC media ownership deregulation isn’t likely to immediately increase station sales, broadcast brokers and analysts said in interviews (see 2104010067). “This ruling is a day late and a dollar short,” said radio broker Michael Bergner of Bergner and Co. “Anytime there is a relaxation of a regulatory barrier to [mergers and acquisitions], it will be helpful to activity,” said media broker Robert Heymann of Media Services Group, but “the practical impact will be minimal.” Some brokers said the unanimous decision could set the stage for looser regulations later, but most also said that’s unlikely to happen soon.
A unanimous Supreme Court Thursday upheld on process grounds the previous FCC’s relaxation of several broadcast ownership rules (see 2101190070). This makes it unlikely that future challenges to quadrennial reviews will end up before the same panel of 3rd U.S Circuit Court of Appeals judges that has consistently ruled against QR orders for nearly two decades, experts noted in interviews. “The FCC’s decision to repeal or modify the three ownership rules was not arbitrary and capricious for purposes” of the Administrative Procedure Act, said the majority opinion by Justice Brett Kavanaugh. “We reverse the judgment of the" 3rd Circuit.
FCC dismissal of four petitions for reconsideration of its FM translator rule update takes effect April 9, says Wednesday's Federal Register. The petitions were from Charles Anderson, the LPFM Coalition, Fellowship of the Earth and Skywaves Communications (see 2010060068). A correction to a cross-reference in the FM translator order also takes effect that day, the FR says.
Providers, regulators and advocacy groups urged the FCC to establish broad eligibility criteria for its $3.2 billion emergency broadband fund and begin the program as soon as possible (see 2101070052). Several suggested relying on Lifeline rules. Some urged working with other federal agencies on data-sharing agreements to ensure all eligible households can enroll. Comments were due Monday.
If the Supreme Court rules against the FCC in Prometheus IV or “punts” without making a clear decision, the agency will be left in a “morass” that could take another decade to address, said former Commissioner Mike O’Rielly on a Federalist Society virtual panel Monday: “If that’s what the Supreme Court comes up with, we’re stuck.” The FCC majority pinned its hopes on SCOTUS from the beginning, and the agency went into the litigation “looking past the 3rd Circuit,” he said: “I didn’t much care what the 3rd Circuit’s opinion was.”
Ajit Pai, who leaves the FCC Wednesday, had one of the busiest conclusions to a chairmanship in recent history as he closed out many items. That was deliberate, Pai said in an interview. We’re “sprinting to the finish," he said Friday evening. Pai said all the big things he wanted to do he started in his first three years. “We didn’t want to leave significant items lingering out there for the last year,” he said: “Things can fall through the cracks before you know it.”
The Supreme Court narrowly focused on questions of administrative law rather than diversity, judicial deference or legal jurisdiction during Tuesday’s oral argument for FCC and NAB appeals of the 3rd U.S. Circuit Court of Appeals’ Prometheus IV decision. Broadcast and public interest attorneys were split about what that might portend.
The Enterprise Wireless Alliance warned the FCC that all states may not be ready to move forward with new rules for the 4.9 GHz band, approved 3-2 in September (see 2009300050), under which states will assign use of the spectrum. APCO raised concerns about the FCC’s order in general, in comments due Wednesday in docket 07-100. Commissioners Jessica Rosenworcel and Geoffrey Starks dissented to the order, and experts say its future is in question (see 2012300047). The proposal is “novel,” EWA said: “It will require states to take on spectrum management and leasing duties for which some have little or no experience, and perhaps limited interest. While there are parties with expertise available to help guide them, this is not an undertaking that will proceed smoothly and at the same pace in all states, whether or not a State Band Manager also is involved.” The FCC will need to stay involved and oversee the process, the alliance said. Reconsider the order, APCO said. “The new approach to expanding use of the 4.9 GHz band is unlikely to promote public safety or the Commission’s spectrum utilization goals,” APCO commented: “Continuing with this ill-conceived model for fragmented state-by-state spectrum leasing would be a mistake.” Lift the 4.9 GHz freeze, urged the California Department of Transportation. Freezing incumbents in place is “severely disruptive to state and local entities that have operational needs requiring continued access to the 4.9 GHz spectrum and prevents system expansions for months and possibly longer,” the department said. Protect 4.9 GHz incumbents “against interference and signal degradation as states enter into lease arrangements,” it said. Federated Wireless called for a spectrum management system comparable to what’s in place in the citizens broadband radio service band. Similar to CBRS, “the 4.9 GHz band currently supports operations by disparate users, including radio astronomy, naval training operations, public safety and critical infrastructure operations,” Federated said: “As the Commission expands access to the band to include non-public-safety, flexible-use lessees, the number of users and uses will continue to grow.” Make use of the sharing technologies used in other bands, said Nokia. “Encourage cross-jurisdictional cooperation, whether between states or on a regional basis,” it advised: “While we believe that the band could be useful for small-scale enterprise deployments, certain critical infrastructure providers (such as railroads and utilities) and carriers could span multiple states.” The Wireless ISP Association said its members are interested in the spectrum. More use of the band “will trigger investment and promote public safety use,” WISPA said: The band “has commercial value to WISPs even if it isn't 5G spectrum. For evidence, the Commission need look no further than the nearby 5 GHz U-NII bands, where commercial investment and deployment have flourished because the Commission’s rules do not dictate particular standards, uses or users.”