How Political Contributions Limit Internet Access

Much has been written about the role of money in American national politics, especially after the Supreme Court’s 2010 ruling in Citizens United. Sometimes overlooked in this debate, however, has been the ways in which political spending influences lawmaking at the state level, ultimately resulting in state polices which are favored by powerful corporate interests, but may not be in the best interests of the public as a whole. The battle over community broadband offers a troubling case study in how this happens.

Earlier this year, the Federal Communications Commission (FCC) ruled in favor of a petition filed by cities in North Carolina and Tennessee, and agreed to restrict the ability of state governments, to prevent these towns from offering their own Internet services (often known as community broadband) in certain areas.

The FCC’s action was prompted by the successful lobbying efforts of telecommunications firms, in North Carolina, Tennessee and elsewhere, to pass laws which limit the ability of municipalities to develop and expand community broadband networks, designed to serve local businesses and individuals.

Why would a city or town choose to get involved in providing Internet service? In some less populated, rural areas, Internet access is slow and rather limited, with private telecommunications firms (such as Charter Communications, AT&T and Comcast) demonstrating minimal interest in expanding and improving broadband capacity (likely because such ventures would not be profitable, given the relatively high costs involved in expanding such services to serve a fairly small population).

To bridge this market gap, some cities and towns have begun expanding community broadband, which individuals, families, and private businesses can pay to access (generally at a lower price than private telecom providers might have charged). Additionally, these localities have often sought to expand these services to neighboring towns and counties in need, so that they might increase overall revenue, and improve the financial viability of community broadband ventures.

Advocates of community broadband have often argued that high-speed broadband is a critical part of the personal lives of millions of Americans, necessary for everything from communicating with friends and family, to conducting a variety of commercial activities, and allowing primary school students to more easily complete their homework. They also cite to data suggesting that it can play an important role in attracting businesses to a city, and improving local economic growth, since firms across a variety of industries are reliant on rapid Internet connectivity.

Major telecom firms, and those wary of community broadband programs, take a more skeptical view. AT&T CEO Randall Stephenson observed that the “idea of private capital competing with taxpayer-provided capital just feels inconsistent to us with what a free-market system looks like”, raising the specter of aggressive government encroachment into what has traditionally been the domain of for-profit (privately held or publicly traded) companies.

These fears might resonate even more since the passage of the Affordable Care Act, which many opponents criticized as a “government takeover” of the healthcare market. To some, these trends suggest an ever-expanding state, which increasingly crowds out private investment.

Some critics of community broadband also fear that it might place taxpayer money at risk. They argue that government has neither the efficiency nor the expertise to successfully operate such networks, and that since these projects have access to funds from the government, they can charge less for a service than it costs (unlike private firms, which would be unable to survive with such a cost structure), leading to financial losses that will ultimately be absorbed by taxpayers.

Detractors of community broadband often cite to the example of Utopia, a troubled community broadband project in Utah, which racked up more than $350 million in debt, and had $146 million in negative assets. They also point to Solyndra, a solar panel company which received over $500 million in taxpayer loans before eventually going bankrupt, as an example of the pitfalls of government involvement with technology businesses that are normally founded by entrepreneurs and backed by venture capital funds.

A piece from the Center for Public Integrity details how telecom providers have fought efforts by municipalities to develop community broadband. Janice Bowling, a Republican state senator from Tullahoma, Tennessee, believed that many of her rural constituents would benefit from faster Internet access.

People living in more isolated parts of Bowling’s district often faced slow connection speeds, with major Internet service providers offering somewhat spotty access. Bowling thought that Tullahoma’s city government could help, by developing their own, speedier networks through which residents could get online quickly, and possibly attract outside businesses to set up shop in the area.

However, under a 1999 Tennessee law, municipalities which run their own Internet service networks are not allowed to provide online access outside of areas where they offer electrical service. This restriction was an impediment to Bowling’s hopes for community broadband in Tullahoma and surrounding areas. Bowling thus introduced a bill in the Tennessee Senate, seeking to amend existing legislation.

This proposal quickly met with determined resistance from the telecom industry. Representatives from AT&T and other firms aggressively pressed Republican members of the state legislature to table the bill, and threatened litigation if it were passed. Shortly afterwards, Bowling’s bill died in committee, and the existing barriers to community broadband remained in place.

Bowling’s dream of improved Internet access for her constituents in Tullahoma, would thus not become a reality. She admits she was surprised by the intensity of the efforts directed against this proposal, noting that “I had no idea the force that would come against this, because it’s just so reasonable and necessary.”

In Tennessee (and many other states), the telecom industry has spent considerable amounts on influencing politicians, and donating money to campaigns for public office. According to public disclosure reports, in recent years, AT&T has been one of the largest spenders on lobbying Tennessee’s legislature, with nearly $300,000 dedicated to such efforts in 2014. AT&T has also been a large-scale donor to state political campaigns in Tennessee, with nearly $370,000 given in 2014, nearly five times what was spent in 2000.

Thus, when AT&T went to battle against Bowling’s reforms, their efforts were backed merely by words, but also a deep war chest of political cash. AT&T’s spending is backed, to a lesser but still very substantial degree, by Comcast and other telecom firms.

In North Carolina, advocates of community broadband have faced many of the same challenges as in Tennessee. In 2009, the city of Wilson began offering a service called Greenlight, which allowed residents to purchase access to high speed Internet service. The service quickly gained traction, turning a profit by 2013 (like many private businesses, it was not initiallyprofitable), and cornering 1/3 of the market in Wilson County. Local officials hoped to expand this service into neighboring counties, which could further improve it’s financial position, and possibly allow for further cost savings for customers.

However, leaders in Wilson soon found themselves hampered by a 2011 state law, heavily backed by the telecom industry, which imposes significant restrictions on the ability of municipalities to develop and expand government-backed broadband services, beyond their immediate boundaries. Just as in Tennessee, the telecom lobby is deeply involved in the legislative process, donating substantial sums of money to politicians.

A report from Follow The Money, a project of the National Institute on Money in State Politics, offers some troubling details on how political donations might have influenced votes on the 2011 bill. Follow The Money’s analysis indicates that in the 2010 election cycle (which immediately preceded passage of the bill), a staggering 3/4 of North Carolina legislators received campaign donations from political action committees organized by telecom firms, with legislators in key positions, or those who were sponsors of the bill, bringing in several times the amounts of other, less powerful lawmakers.

What’s more, in many instances, the most influential lawmakers were given several times the amounts donated to them in the 2006 or 2008 election cycles. The most prominent example of this is Thom Thillis, a Republican who until recently served as Speaker of the North Carolina House of Representatives (in 2014, Thillis was elected to the United States Senate).

Despite running unopposed in 2010, Thillis received nearly $37,000 in donations (more than any other state lawmaker), from telecom-backed political action committees (known as PACs), topped off by donations from Verizon, Time Warner and AT&T, shortly before he was sworn in as Speaker. This sum was more than eight times what Thillis took in during the 2006 and 2008 election cycles combined.

Donations from these PACs to the state Democratic and Republican parties, while not unusually large in terms of dollar amount, were unusual in terms of timing. In 2011, just a few weeks before the bill in question was filed, the PACs sent donations to both parties, and repeated this action just a few weeks after the bill was passed. Given that 2011 was not an election year, the timing of these contributions raises some troubling questions.

North Carolina and Tennessee are hardly unique in their restrictions on community broadband; at least 18 other states impose similar sorts of regulations, often passed at the behest of telecom firms. Frustrated by these restrictions, in 2014, the city of Wilson, as well as Chattanooga, Tennessee, filed a petition with the FCC, seeking preemption of state laws which restrict community broadband service.

In February 2015, the FCC ruled in favor of this petition, finding that the aforementioned state laws in North Carolina and Tennessee were “barriers to broadband deployment, investment and competition, and in conflict with the FCC’s mandate to promote these goals.”

The FCC noted the positive commercial and business consequences of local broadband (including the expansion of companies like Amazon and Volkswagen to Chattanooga), and observed that state laws against local broadband, including those passed by North Carolina, were often heavily pushed for by “incumbent’ Internet providers (that is, major telecom firms).

Lastly, the FCC stated that it had the authority to override the laws of North Carolina and Tennessee, under the Telecommunications Act of 1996, a federal law which orders the FCC to “remove barriers to broadband investment and competition.” North Carolina and Tennessee each responded swiftly, bringing suit in federal court to fight the FCC’s ruling, and to preserve the ability of states to limit community broadband. These states’ arguments focus largely on the FCC’s authority to apply the Telecommunications Act of 1996, to supersede the laws of North Carolina or Tennessee.

Setting aside the legal merits of the states’ cases, it is useful to consider how state attorney generals are influenced by campaign donations. As ProPublica’s Leticia Miranda noted, in the 2012 election cycle, North Carolina’s attorney general, Roy Cooper (who is responsible for the litigation against the FCC), received around $35,000 in donations from the telecom industry, a figured topped only by donations he received from retailers.

Meanwhile, in Tennessee, the state retained Wiley Rein LLP, a powerful (and undoubtedly pricey) Washington DC law firm, headed by former FCC chairman Richard Wiley, as counsel in it’s suit against the FCC. Mr. Wiley’s prior client list is a comprehensive Rolodex of the telecom industry, including firms such as Verizon and AT&T, who stand to benefit from a ruling in favor of Tennessee, and against the FCC.

Given the power of telecom firms within Tennessee’s political system, it is hardly unreasonable to wonder why the state is so eager to devote such significant resources to defending a law so clearly opposed by, and arguably harmful to, the social and economic interests of many local cities and towns,.

In debating the merits of community broadband, just as with any policy matter, it is crucial to consider a variety of arguments, and critically assess the evidence which supports these stances. Legislators should hear from local citizens and their representatives, regarding the benefits of these programs in facilitating personal and business connectivity, and as a part of this process, they should also consider relevant social, economic and legal issues.

Lawmakers must also seriously consider the objections of telecom firms, and advocacy groups opposed to community broadband, which see these programs as a troubling expansion of governmental scope and power, as well as a potentially risky undertaking which might ultimately cause taxpayers to lose money.

Yet, in this deliberative process, no single voice should be amplified, or ignored, due to how much money an individual or corporation has available to dole out to state politicians. Community broadband programs could markedly improve the lives and economic prospects of people in places like Tullahoma, Wilson, and a thousand other towns across this nation. Or perhaps they are a problematic initiative, which must be reimagined or suspended altogether.

Either way, a policy should not be either implemented or discarded due to the financial interests of large corporations, which can direct their considerable profits towards favorably influencing elected officials. We need a serious debate here; one which is driven by facts, and a commitment to the interests of the public as a whole, rather than controlled by big checks and backroom influence peddling. The seemingly incessant flow of campaign cash through state houses across the nation, and to influential “independent” advocacy groups who are deeply involved in the electoral process, ultimately corrodes the plumbing of our political system.

The challenges posed by state-level lobbying and donations, aren’t limited to the debate over community broadband. In the past several years alone, lawmakers in Texas have stymied air quality regulations which were opposed by the energy industry, while legislators in Florida and elsewhere have facilitated the expansion of private prisons, in large part thanks to campaign cash from correctional industry groups. Meanwhile, concernshave grown that state attorneys generals are being heavily influenced by corporations and plaintiffs’ attorneys, who are using aggressive lobbying efforts and campaign donations to obtain their preferred outcomes.

It is more crucial than ever that advocacy groups, independent journalists, and perhaps most of all, private citizens, find creative ways to fight the corrupting impact of money on state politics. Without it, Americans will never have the quality of government which we deserve, but rather, that which can be most easily purchased through lobbying and donations. We will all be worse off for it.

The Stories Our Data Tell

In a recent ruling, an en banc panel of the 11th Circuit Court of Appeals (which covers Alabama, Georgia, and Florida), held that police may track an individual’s prior location, based on data transmitted from his or her cell phone, without having to show probable cause, or obtain a warrant from a judge. The court’s findings reversed a decision by a smaller panel of the 11th Circuit, which required that police demonstrate probable cause to access cell phone user location data.

In other parts of the nation, some federal courts have ruled in favor of allowing the government to obtain such data without a warrant, while other have called for a more restrictive approach to the gathering of such data. Ultimately, Congress needs to pass laws which offer clear limits on the collection of data by law enforcement authorities. More specifically, Congress should make it clear that a showing of probable cause is required in order to obtain a person’s call, text, email, or internet usage history.

United States v. Davis: Background

In United States v. Davis, a group of judges on the 11th Circuit considered the use of cell phone records in the trial of Quartavius Davis, who was convicted of carrying out seven armed robberies in the Miami area, over a two month period. Prosecutors offered a variety of evidence against Davis, including video footage from crime scenes, as well as the testimony of Davis’ conspirators, and that of eyewitnesses and victims of Davis’ crimes.

As a part of this investigation, prosecutors obtained records of cell phone calls made by Davis, during the 67 day period in which the robberies occurred. These records offered a history of both the phone number Davis called, as well as the cell phone tower which connected this call. Since a call is connected to a particular tower, based on where a mobile phone’s user is located at the time, the prosecution could use this location data, to demonstrate that Davis was present in a particular vicinity (accurate to just over 0.5 square miles), when the offenses in question occurred.

These records were obtained from Davis’ wireless provider, Metro PCS, under a court order, based on the Stored Communications Act, a federal law which provides that a government entity, either state or federal, may (quoting the Court of Appeals in Davis): “require a telephone service provider to disclose ‘a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)’ if “a court of competent jurisdiction finds ‘specific and articulable facts showing that there are reasonable grounds to believe’ that the records sought ‘are relevant and material to an ongoing criminal investigation.”

In other words, if a law enforcement agency has reason to believe that this information might be relevant in understanding a criminal incident, they can appear before a judge, and obtain an order requiring a telecommunications firm to turn over such evidence. That’s what the authorities did in the Davis case. Given the other evidence offered against Davis, as the 11th Circuit noted, there is essentially no debate that this standard was met.

This “reasonable grounds” standard is less strict than the “probable cause” requirement, which is applied in situations involving a search, as defined under the Fourth Amendment of the United States Constitution. In those cases, since probable cause must be demonstrated, the prosecution typically offers an affidavit from law enforcement officers, based on information obtained through their own observations, or statements of witnesses and confidential informants, setting forward specific facts (rather than just conclusions without actual evidence) which show why a search must be permitted.

Davis’ attorney argued that the information obtained from Metro PCS under the Stored Communications Act constituted a search, and so should have been subjected to the elevated standard of probable cause. This question was to be decided by the Court of Appeals.

The Majority Ruling

In deciding whether a search had occurred, the court had to decide whether Davis had an expectation of privacy in the type of information which was disclosed, and if so, whether this expectation was in fact reasonable. The court ultimately did not find in favor of such a right of privacy, since the evidence Davis sought to suppress was found to be a business record of Metro PCS. Referring to the Supreme Court case of Smith v. Maryland, where police used a pen register to obtain records of (landline) phone calls made by a criminal defendant, the majority observed that since anyone who uses a phone is voluntarily exposing his or her call history to the phone company, it was difficult to believe that the defendant had any real expectation that his call history would remain private. What’s more, even if a defendant did hold such an expectation, it was not objectively reasonable.

The court also looked to a case whose facts were quite similar to Davis, decided by the Fifth Circuit Court of Appeals in 2013. In that matter, In Re: Application of the United States For Cell Phone Data, Fifth Circuit judges considered the use of location data, gleaned from calls transmitted through cell phone towers. The Fifth Circuit had focused on who was collecting this data (telecommunications providers, as a part of their daily operations), and noted that the actual content of the communication (what was said during the phone conversation) was not being monitored. The court then turned to expectations of privacy, finding that a mobile phone user would normally be aware that his or her phone was transmitting a signal to a tower, in order to make calls. This would blunt any expectations of privacy based on calling patterns, and by extension, call-based location data.

Lastly, the Fifth Circuit panel acknowledged that there might be privacy concerns in using mobile devices to track an individual’s prior location, noting that such reservations had to be balanced against the need to combat criminal activity. However, the court felt that Congress, rather than the judiciary, was best poised to address these questions.

They noted that Congress had passed the Stored Communications Act, which was compliant with existing Supreme Court precedence, and which permitted for the collection of third-party business records in criminal investigations, without treating such records as subject to Fourth Amendment probable cause requirements. For this reason, Fifth Circuit judges stated that Congress, rather than courts, are best suited to making decisions around how to regulate such issues. The court allowed the aforementioned evidence to be entered into evidence.

The 11th Circuit in Davis applied much of the Fifth Circuit’s reasoning, as well as that of the Supreme Court in Smith, arguing that Davis, like other cell phone users, must have known that his mobile device was transmitting signals to an outside tower, in order to make calls. Thus, Davis could be said to have little subjective (or objective) expectation of privacy.

The court also distinguished Davis’ situation from that of the defendant in  States v. Jones, a 2012 Supreme Court case where the Court held that the extended use of a GPS tracking device, installed by police, without a warrant, on the vehicle of a suspected drug trafficker, was a Fourth Amendment search.

In it’s ruling, the court noted that the majority in Jones had focused on the physical act of attaching a GPS device to a defendant’s vehicle. In Davis, however, the phone records in question were created by and belonged to Metro PCS, and were obtained through use of a federal statute (the Stored Communications Act), rather than through what the court described as the sort of “physical intrusion” seen in Jones. What’s more, since location data, based on use of a mobile phone, is not precise in the sense that GPS tracking typically is, it poses a significantly smaller intrusion.

While the court noted that Davis had offered some noteworthy policy arguments in support of greater privacy protections, their belief was that Congress, rather than courts, should ultimately decide whether and how to offer greater privacy protections in this area.

The First Concurring Opinion

In a concurring opinion, Judge Wilson and Judge Jordan of the 11th Circuit expressed concerns over how the continued expansion of technology (specifically, location-based services) might lead to greater encroachments on individual privacy. In the absence of some sort of reasonable expectation of privacy (which was not found by the majority), these two judges feared, “24/7 electronic tracking (live or historical) in the years to come without an appropriate judicial order” might become commonplace.

Wilson and Jordan argued for a finding that Davis did enjoy some reasonable expectation of privacy (although a reduced level, since the records in question were held by a third party). They did agree that the government had met the requirements of the Fourth Amendment, through obtaining permission for the subpoena of Metro PCS phone records, under the Stored Communications Act.

However, Wilson and Jordan also seemed intent on strengthening privacy protections for those in Davis’ situation. While their findings led to the same ultimate result as the court’s majority (that is, Davis’ call records and cell phone tower locations should be admitted into evidence), they sought to do so in a more limited, cautious manner.

The Second Concurring Opinion

Judge Rosenbaum also offered a concurrence that argued for a more critical view of governmental incursions into individual privacy. Rosenbaum agreed that Smith was the controlling authority in this matter (and thus, Davis’ phone location records were admissible), but also argued that courts ought to take a nuanced view of individual expectations of privacy. Specifically, Rosenbaum contended that individual expectations of privacy when conducting a particular activity, should not be weakened simply because of technological changes.

To illustrate this point, Rosenbaum harkens back to early privacy concerns surrounding telephone calls. During the early 1900’s, she noted, human operators (a “third party”, just like the phone company in Davis) frequently eavesdropped on people’s conversations, while in later years, as the Supreme Court observed in Smith, it was possible for phone companies to utilize recording devices to monitor an individual’s phone calls. Yet, this did not stop the Supreme Court from issuing it’s historic ruling in Katz v. United States (1967), which held that individuals enjoy a reasonable expectation that their phone calls will remain private, which would render monitoring the content of such calls a search under the provisions of the Fourth Amendment.

Rosenbaum extends this point to argue that neither the third-party doctrine, nor changes in technology should override our historic expectations of privacy in a particular activity or type of communication. Thus, chatting with a friend by email, as opposed to by telephone or letter, should not be treated as substantively different, simply because email necessarily implicates use of the Internet. Both involve the transmission of content which we would expect to be private.

Rosenbaum also considers research in a library (by browsing through books and perhaps taking notes), as compared to conducting similar work online, or storing personal or business documents in an office, instead of in a cloud storage platform. In each instance, Rosenbaum argues, one should have a reasonable expectation of privacy, which should not be altered by the reality that a third-party service provider acts as an intermediary in those activities which are online.

Rosenbaum concludes her discussion by observing that since the location data provided by Metro PCS in Davis was rather imprecise (it tracked Davis’ location to a range of just over half a square mile, which is not very exacting in an urban area), Smith still applies. Yet, Rosenbaum, just like the Fifth Circuit in their consideration of these issues, and the majority in it’s ruling, argues for greater legislative guidance around digital monitoring. Overall, this concurrence raises serious concerns about the erosion of Fourth Amendment rights to privacy, in the face of technological change.

The Dissent

Judge Martin and Judge Pryor penned a vigorous dissent to the majority’s holding, warning of the dangers of applying the third-party doctrine too broadly. They argued that the majority’s reasoning might lead to all sorts of sensitive information about a party’s Internet activity becoming available to authorities, including an individual’s search history, email activity, and more.

First, the dissent sought to distinguish Davis from Smith. In Smith, the court noted, one must actually disclose a phone number to the phone company or operator, when making a call. This isn’t quite analogous to location data with cell phones; that is, no cell phone user takes the deliberate action of disclosing his or her location, when making a call. Thus, expectations of privacy seem to be higher in Davis than in Smith.

What’s more, the dissent cites a variety of cases which narrow the scope of the third-party doctrine. In one Supreme Court ruling, the Court held that even though letters were sent through a mail carrier (clearly a third party), senders and recipients had legitimate expectations of privacy. The same was true of hotel guests, when a hotel employee authorized a search of their room, and of course in the aforementioned Katz matter, where the Court found a reasonable expectation of privacy for calls made from a phone booth. While the dissent acknowledges that each of these cases is in some respects different from Davis, they use these cases to warn that the third party doctrine is not quite as clear-cut as the majority seems to believe.

The dissent also examines Google’s privacy policy, which allows them to collect information ranging from a user’s name, email address, credit card information and location, and engage in extensive data collection of an individual’s Internet activities. Martin and Pryor argue that by applying the majority’s reasoning (which limited expectations of privacy in information which was voluntarily provided to a third party), users would have essentially no privacy interest in such personal information. The same could be said of the social data collected by Facebook, or the commercial activities of Amazon members.

As a part of this analysis, Martin and Pryor also raise questions about what exactly is and isn’t protected content. In it’s ruling, the majority weighed against letting Davis enjoy a legitimate privacy interest in the location data transmitted by his mobile phone, and took pains to distinguish this type of information from direct monitoring of the text of one’s email, arguing that the latter was “content” while cell phone location data was “non content” evidence.

Yet, in assessing this argument, the dissent notes that there is no clear definition of precisely what does and does not comprise protected content. Is a person’s Google search history content or non-content information? Also, while the text of an email might constitute privileged content or information, isn’t it quite possible that the time an email was sent, as well as it’s recipient, might be discoverable, and thus of considerable evidentiary value? The dissent views content as a matter that is difficult to define precisely.

The dissent next argues that Davis in fact had a reasonable expectation that his mobile location data would stay private. Citing to Jones, Marin and Pryor note that a variety of personal information can be revealed from long-term monitoring of a person, and the same is true of cell phone call tracking in Davis, where the defendant’s call history offers a close look at his or her movements, communication patterns, and personal habits. With the shift from calling to texting and messaging, and more frequent communication between mobile devices and carrier networks, this has become even more of a concern.

Lastly, the dissent notes that by applying the probable cause standard, which governs searches under the Fourth Amendment, it would have still been quite simple to obtain Davis’ location data from Metro PCS. This standard, the dissent notes, is not exceptionally high, but it plays an important role in protecting constitutional rights. Given the nature of the information revealed in Davis, and the threats to privacy which loom large in the digital age, the court warns against an overly lax view of standards of privacy.

What Congress Needs To Do

Both the Fifth Circuit holding in In Re:, as well as the majority in Davis, argued that Congress needs to play a more prominent role in deciding what sorts of laws ought to govern the privacy questions raised in these cases. After all, Congress passed the Stored Communications Act, which was originally invoked to obtain Davis’ phone-based location records. Why not have Congress offer further guidance as to how to proceed on the electronic privacy issues of today?

Congress can accomplish this by declaring the collection of any and all metadata, as well as textual, visual, video or other electronic content, obtained from a person’s mobile, tablet, computer or other Web-accessible computing device, or through digital communications in general, as a search under the provisions of the Fourth Amendment. Such a categorization will require authorities to make a showing of probable cause before a judge, in order to obtain authorization to access such data.

Metadata must be broadly defined, to cover both the sort of location data stored by Metro PCS in Davis, as well as other information which authorities might seek access to in the future, includes patterns of texting, messaging, emailing, and searching online. Content needs to be understood in a similarly expansive manner, as including, for example, words, videos, and images in a text message, as well as Google and YouTube search queries.

The dissent in Davis correctly noted that there is still considerable ambiguity around the precise meaning of content vs. non-content data. In addition, the privacy policies of firms like Google, which requires users to provide access to a variety of highly personal information, could lead to governmental access to massive amounts of highly private information, under the third party doctrine.

These sorts of gaps in our current privacy framework, which often involve collecting data from third-party businesses, which make use of one’s data as part of user agreements, must be closed. There is no better way to accomplish this goal, than through the development of explicit, well-defined legislative standards around privacy of such data.

In drafting such legislation, Congress’ primary objective must be to protect individual electronic and digital communications patterns, by heightening the burden which the state must meet, in order to gain access to this type of information. Congress ought to be mindful of the concerns raised by Judge Rosenbaum in her concurrence.

Rosenbaum had warned against allowing technological change, specifically, the growing shift of many aspects of our lives online, to erode our longstanding view of whether our communications and personal activities ought to enjoy some degree of privacy. That fact that we now conduct so many of our daily activities and communications through digital means (which was not the case just 15 to 20 years ago), should not lead to unrestrained monitoring by law enforcement and intelligence organizations.

Congressional action here will clearly fall within the scope of recent efforts to better define what sort of governmental monitoring and data collection ought to be permitted. Earlier this year, following a protracted Senate battle, which led to a brief lapse of the USA Patriot Act, Congress passed the USA Freedom Act, which restricted the bulk collection of certain metadata by the NSA, as exposed by former NSA and CIA contractor Edward Snowden in 2013. This act also brought greater transparency and fairness to the secret FISA court process, which oversees requests for expanded surveillance.

What is particularly notable about this legislation is that it drew bipartisan support, with some prominent Republican senators, most notably Mike Lee and Rand Paul, vocally advocating in favor of reform, alongside their Democratic colleagues. They faced concerted opposition from Senate Majority Leader Mitch McConnell and some other Republicans, who were concerned that such reforms might weaken anti-terrorism and intelligence efforts.

The passage of the USA Freedom Act, along with growing public wariness towards government surveillance programs, suggests that Americans are growing increasingly doubtful of the need for a sprawling national security state. The initial fear and terror which followed 9/11, seems to be finally giving way to a more reasoned understanding of the balance between fighting terrorism and safeguarding our liberties. Thus, for the first time in nearly 15 years, it seems politically feasible to pass the sorts of reforms.

Of course, there will undoubtedly be objections to such changes. Perhaps the most common argument against reform will involve arguments about public safety; that is, with the heightened standard of probable cause being applied to the collection of telephone and other digital metadata, law enforcement agencies will face greater hindrances in their efforts to investigate criminal activity, which could lead to a suspect successfully evading capture and punishment. That would put the public at risk.

Such arguments are flawed. While probable cause does indeed require a higher threshold of evidence in order to conduct a search, it has hardly stopped the police from performing their jobs. As the dissent in Davis noted “The probable cause standard is not onerous.” Probable cause itself sets manageable requirements, in terms of what the prosecution must demonstrate in order to obtain a search warrant. For this reason, historically, there is little proof that this requirement has actually hindered criminal investigations. Also, as the dissent in Davis observed, data obtained from cell phone or Internet usage is rather unlikely to be lost, which alleviates concerns that valuable information will become unavailable, while working to obtain a warrant.

The application of a probable cause standard will, however, have a notable positive impact. It creates not just a basic standard of proof, but rather, a barrier against unjustified encroachments into an individual’s privacy. Law enforcement agencies will also learn that the rules of the game have changed, and our digital data, which can reveal as much personal information as any search of a house or vehicle, cannot be accessed at will.

Additionally, application of probable cause requirements to searches of data and digital content, will lead to a body of case law, which will better define our privacy rights in this realm. Courts across the nation will be required to consider various factual situations, involving attempts by authorities to obtain access to a variety of information. Over time, just as with physical searches of vehicles or homes, judges will consider questions of law and policy, in order to best balance concerns of security, privacy, and constitutional rights. Citizens will thus enjoy a better idea of what sorts of rights they currently enjoy, while Congress can act to strengthen privacy protections as needed.

In today’s era, our digital footprints can be used to weave an intimate story about our lives. It can lay bare a variety of information about our social interactions, interests, personal habits, and patterns of movement. For this reason, is eminently reasonable for Americans to believe that such information deserves an increased degree of privacy. Applying standards of probable cause to accessing will go a long way towards providing such protections, while still allowing authorities to enforce the law and help maintain public safety and order.

Thoughts On Khan Academy

For the past 28 months, I have been using online education platforms to learn new skills, and brush up on old ones. This journey has taken me through topics ranging from JavaScript syntax to economic growth factors to statistical analysis of data. Over that time, I’ve used a variety of services, including Udacity, Coursera, Code Academy, and, most recently, Khan Academy.

While I’ve found all of these websites useful at some level, arguably none have drawn as much attention, or gained as much traction in a short time, as Khan Academy, the free online instructional site developed by former hedge fund analyst Salman “Sal” Khan, initially as a series of YouTube videos to help teach his younger cousin math. For that reason, I’ve decided to share my own experiences with Khan Academy, and what this platform means for education more broadly.

Khan Academy works best for quantitative topics.

Khan Academy is most useful when it teaches and tests subjects which are primarily grounded in numbers. I realized this after taking courses in statistics, economics and biology, and finding the lessons in statistics most effective.

Sal offers a clear, comprehensive lesson on a concept like standard deviation, and proceeds to test one’s understanding through a series of multiple choice and free response questions, some portion of which you must answer correctly. After completing a lesson, I had a strong sense that I genuinely understood what I had just learned, and could apply it in the future.

Compare this with biology. Sal offers a useful, albeit long-winded series of lectures on a topic like cell division, which involves a complex series of steps (mitosis and meiosis, if your high school biology is as rusty as mine was). Economics wasn’t much different structurally, with lengthy discussions of GDP, income, and labor markets. Yet, with each of these subjects, at the end of a lesson, there was no assessment to test whether one actually understood a given topic.

While I do feel that I understand cell biology and economics somewhat better after Khan’s lectures, without any sort of assessment, it’s hard to truly know where I stand. Perhaps this lack of testing is a result of such subjects being a series of interlocking issues and processes, without short, discrete answers. In statistics or trigonometry, by contrast, while concepts certainly build on and closely relate to each other, there is normally a clear, brief answer to a problem, however challenging it might be to work through.

The other issue with many of the non-quantitative lessons is their length, or more specifically, the way in which they are structured. More than a few lectures went on for well over 10 minutes, and explored several complex issues in a short period of time. The longer a lecture carries on for, the more challenging it is to distill and break information down into distinct, manageable parts. To add to these challenges, Khan often jumps quickly from concept to concept, sometimes making it hard to keep up. For some reason, Khan’s statistics lessons didn’t have these shortcomings, as they were more effectively structured, and of manageable length.

Though a student can take breaks during these lectures, pausing as he or she sees fit, the reality is that when a lesson is constructed in a particular format, most of us tend to stick with this structure, rather than develop our own approach. As a result, we end up with our minds saturated, overwhelmed by the sheer volume of knowledge that we have been forced to take in, without pause. Khan ought to explore covering the same material in a series of shorter videos.

When trying to grasp a subject initially, Khan Academy’s lack of individualized instruction makes it considerably less effective than if one were taught in a classroom.

Learning new concepts isn’t easy. We have to wrestle with unfamiliar ideas and terms, and really, form a new way of thinking about the world. We must then apply this knowledge practically. This process requires time, effort, repetition and perhaps most of all, guidance. Khan Academy, or for that matter any online education platform, can certainly explain a concept, and to some degree, test one’s understanding of it.

But what about personalized assistance, tailored to the specific needs of each student? Khan Academy offers forums where students can work collaboratively towards a better understanding of a topic. This tool can be useful. Yet, there isn’t an instructor or teaching assistant with whom one can sit down (or communicate with through video chat), and work through a problem, seek feedback and ask questions.

When I worked through those aspects of cell biology which were completely unfamiliar from my prior study, more than once, I felt an urge to raise my hand and say “I don’t understand what’s going on here. Could we discuss it after class?” Right now, Khan Academy doesn’t make this possible, and I suspect it would be quite a useful service for many students.

Research has shown that focused individualized or small group instruction can have a major impact on student learning. Khan Academy, as a non-profit, likely doesn’t have the resources to offer such assistance. What’s more, even a commercial online teaching venture, possibly flush with millions of dollars in venture capital, would find it difficult to offer such help, since the human resources required would render such an undertaking largely unscalable. Barring major innovations in artificial intelligence, this may be an inherent limitation of online learning, and is yet another reason why retaining and supporting effective public school teachers is so crucial.

Khan Academy is a useful supplement for a topic one already has some familiarity with.

There is one role in which Khan Academy truly shines: as an instructional supplement. If you already have some degree of familiarity with a topic, Khan Academy can help deepen that understanding. I took a statistics course in college, and also make use of it in my daily life. Thus, concepts like variance, mean, median and mode are not totally foreign.

What Khan Academy did was strengthen this existing knowledge, by bringing greater clarity to those topics which I had either partially forgotten, or simply had a hard time understanding initially. Sal worked through problems methodically, allowing me to understand exactly how my current approach might be flawed, and provided a blueprint for improving upon it. Completing practice problems also helped test whether my skills had in fact improved.

Through this approach, Khan Academy can function as a powerful tool for educational empowerment. For people who have been away from a subject for years, let’s say, a parent seeking to help a child with homework, or a military veteran who recently returned to school, Khan Academy can tip the balance in favor of subject-matter comprehension.

What’s more, while our public school system benefits from thousands of wonderful teachers, who devote their lives to their students, many other teachers can’t successfully impart knowledge to their students, whether due to overcrowded classes, a lack of support, or a simple absence of skill in their chosen profession. Sadly, students in poorer schools are more likely to be taught by such teachers.

In other instances, perhaps a teacher isn’t objectively “bad”, but rather, a student simply might not connect with an instructor’s teaching style, or might just need more practice and supplemental instruction, in order to truly master a topic. The reasons for pupil failure are varied and complex.

Khan Academy can help close this gap, by providing a fresh source of instruction, to improve one’s grasp of a topic. Anyone with access to a computer, or for that matter, a mobile device, can use these tools to develop their skills in a particular subject. I, and thousands of others, have done exactly this.

This isn’t to suggest that Khan Academy is any sort of replacement for effective teachers, who are pivotal to a student’s future growth and success, both in terms of conveying the intricacies of calculus or English literature, and in motivating students to succeed. Yet, when something is fundamentally broken in a student’s learning process, Khan Academy might well be able to help.

More and more school districts have recognized Khan Academy’s promise, and embraced it’s role as an instructional supplement. In 2011 and 2012, schools in Oakland and Los Altos launched pilot programs which made use of Khan Academy, and more districts around the nation have followed suit since. Many teachers and students who use Khan Academy in a school setting have expressed satisfaction with what Khan Academy offers, and the platform’s use as a tool for supplemental instruction seems likely to continue well into the future.

The criticisms of Khan Academy by some educators are largely accurate

Khan Academy has received praise and backing from many influential individuals and organizations, including Education Secretary Arne Duncan and First Lady Michelle Obama, as well as non-profit powerhouses like the Gates Foundation and the Broad Foundation. Sal Khan’s creation also enjoys support from boldface Silicon Valley names like Netflix CEO Reed Hastings and Google chairman Eric Schmidt.

Yet, not everyone is sold on this platform. In 2012, David Coffey and John Golden, two math professors at Grand Valley State University in Michigan, put together a video critique of Khan Academy, and announced that they would offer a cash prize to those who put together the best commentary which addressed problems with Khan’s videos. In their comments, Coffey and Golden, noted some inconsistencies and flaws in Khan’s approach to teaching math, and contemplated how these issues might either confuse students, or ultimately lead to a weaker understanding of a subject. Their comments garnered considerable attention, leading to Khan Academy ultimately removing the video in question.

Other takedowns of Khan Academy, most notably one published by Christopher Danielson and Michael Goldenberg in the Washington Post, argue that Khan seems to lack pedagogical content knowledge; that is, of how students are likely to learn and understand (or misunderstand) a topic, and how a teacher ought to account for these dynamics in teaching a subject. As a result, his instructional strategy optimally effective.

Danielson and Goldenberg note that a teacher’s pedagogical approach can have a significant impact on student learning, and proceed to detail how Khan’s approach to aspects of elementary mathematics, such as decimal comparison, can confuse and weaken a student’s comprehension of a topic, by using examples which fail to anticipate and address common student misconceptions. What’s more, the authors argue that the lack of practice exercises in some of Khan’s lectures are less than optimal for truly mastering a topic (I share this view).

Through observation of the comment pages which accompany Khan Academy lessons, the authors also argue that for those students who are truly “lost”, using Khan Academy often won’t leave them any better off than when they began using this website. Danielson and Goldenberg suggest that Khan seek outside input and collaboration, particularly from highly talented educators, in formulating his lessons.

While I am not an expert in the merits of various teaching methods, it is clear that there is room for Khan Academy to improve it’s teaching, as well as testing. If student success is the primary goal of Khan Academy, then Sal and his team should make use of the most effective practices possible. Doing so will make Khan Academy’s work that much more powerful, and relevant, for years to come. Hopefully, Khan is open to drawing on the knowledge and experiences of others who have successfully taught these subjects for years, and incorporating the things that they do best.

Conclusion

Sal Khan’s quest to help his cousin learn math, has transformed into a movement to facilitate access to education for all. Given his professional and educational background, there’s little doubt that Sal could have pursued far more lucrative opportunities, rather than devoting his life to helping others learn. For this, he is to be commended.

What’s more, Khan Academy holds considerable value as a supplement to classroom instruction, when applied to a subject one is already somewhat familiar with. For the motivated learner, who is returning to studying a topic after many years away, or a high school student who isn’t fully comprehending what he or she is being taught, Khan Academy can be a powerful resource. This exemplifies the best of what online education can do for society.

Unfortunately, when it comes to non-math topics, or pretty much any subject which one is working through for the first time, Khan Academy isn’t quite so useful. As noted earlier, Khan’s teaching and explanations, while sometimes excellent, also offer room for considerable improvement. What’s more, the lack of assessment and feedback in some of Khan Academy’s content, is a notable shortcoming of Sal Khan’s approach. If he implements some changes here, his platform will both gain more users, and serve them more effectively.

Yet, beyond anything Khan Academy can accomplish, there is no replacement for impactful, interactive classroom and afterschool instruction, which allows students to obtain the personalized guidance that is so critical to truly understanding a subject. These activities might someday be brought online on a mass scale, but until that time arrives, there is no substitute for well-planned investments in both hiring the best teachers, and supporting their efforts. Of course, in today’s political climate, how to actually implement such policies, is often mired in polarizing debate, with consensus hard to come by.

Ultimately, Khan Academy is a useful tool, and one which I hope continues to grow and improve in the coming years, eventually fulfilling it’s full potential. However, beyond the efforts of Sal Khan, and other agents of change, to dramatically improve educational outcomes, we need a commitment by all Americans, students and parents, teachers and policymakers, to embrace, celebrate and facilitate education and learning, both in spirit and through action.