When the European Commission re-approved the Privacy Shield agreement during its first annual review in the fall of 2017, permitting the transatlantic transfer of personal information to compliant U.S. companies to continue, it did so with a number of reservations. As the Privacy Shield agreement fast approaches its second annual review at the end of this week, it remains to be seen if the steps taken by the U.S. government at the close of the summer will be enough to satisfy skeptical European lawmakers.

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A victory for net neutrality; U.S. may join Irish Facebook Data-Transfer case; EU-U.S. Privacy Shield by early July?; French Data Protection Authority opens GDPR consultation; FTC addresses proposed TCPA changes; DOJ and DHS cybersecurity sharing guidelines.

Federal appellate court upholds net neutrality

The U.S. Court of Appeals for the D.C. Circuit upheld “net neutrality” rules that require all broadband providers to treat internet traffic the same regardless of source.  Last year, the Federal Communications Commission (“FCC”) issued its net neutrality decision, which reclassified broadband service as common carriers under the Communications Act and thus brought Internet service within the FCC’s power to regulate common carriers under Title II of the Communications Act.  The FCC then issued rules banning providers from blocking, throttling, or otherwise degrading internet traffic lawful content, and also from engaging in paid prioritization of traffic.

A number of Internet service providers and other groups challenged the FCC’s authority to reclassify broadband service and promulgate such regulations. They also challenged the legality of the net neutrality rules.  In a 115-page opinion, the D.C. Circuit rejected each challenge and, in doing so, affirmed the FCC’s power to regulate broadband service under Title II of the Communications Act.  The court also rejected the argument that net neutrality impacts service providers’ First Amendment rights, explaining that a service provider “does not . . . ‘speak’ when providing neutral access to Internet content as common usage.”

The petitioners are expected to appeal the ruling to the Supreme Court. Unless the Court reverses this ruling, the FCC retains broad power to regulate Internet service providers as common carriers, and may use that power to continue implementing and enforcing regulations concerning open access to content as well as consumer privacy.


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