Gus Hurwitz

Gus Hurwitz

Gus Hurwitz, a visiting scholar at AEI's Center for Internet, Communications, and Technology Policy, is an assistant professor at the University of Nebraska College of Law, where he teaches telecommunications law, cyber law, law and economics, and other regulation-related subjects. His research builds on his background in law, technology, and economics to consider the interface between law and technology and the role of regulation in high-tech industries. He has a particular expertise in telecommunications law and technology. He was previously the inaugural research fellow at the University of Pennsylvania Law School’s Center for Technology, Innovation and Competition, and before that was a visiting assistant professor at George Mason University Law School. He previously spent several years as a trial attorney with the US Department of Justice Antitrust Division’s Telecommunications and Media Enforcement Section. Hurwitz has a background in technology and worked at Los Alamos National Laboratory.

On broadband privacy, the FCC doesn’t know what it doesn’t know

Over the past two decades, federal agencies, thousands of academics from a number of disciplines, and stakeholders from industry, think tanks, and other civil society organizations have struggled mightily to understand what privacy rules should govern our online interactions. Little did we know that a little administrative fiat was all that was needed to answer these difficult questions. Little did we know that the Federal Communications Commission (FCC) was standing silently in the wings, waiting to make its presence known, with a Notice of Proposed Rulemaking (NPRM) asking 500 questions about privacy and neatly answering to them with proposed rules to govern broadband Internet access services’ privacy obligations.
People gather at a small rally in support of Apple's refusal to help the FBI access the cell phone of a gunman involved in the San Bernardino shooting. Santa Monica, California, February 23, 2016. REUTERS

Burr-Feinstein’s unintelligible approach to encryption undermines any hope for viable legislation

When it comes to encryption, regular readers may remember that I have come down firmly on the government’s side in the dispute between Apple and the FBI. My take in that case is that Apple made a deliberate choice to sacrifice its customers’ security for usability by implementing very weak default passwords. Apple then tried to use the law and interface workarounds to avoid responsibility for these bad security decisions. Of course, that situation ended up being mooted because the iPhone had other security vulnerabilities that allowed the government to circumvent Apple’s legal obstinance and political grandstanding. Given my sympathy to the government when it comes to Apple, my take on last week’s legislation released by Senators Richard Burr (R-NC) and Dianne Feinstein (D-CA) may come as some surprise: The bill is incomprehensibly, unintelligibly bad.
Apple CEO Tim Cook speaks during the Wall Street Journal Digital Live conference at the Montage hotline Laguna Beach, California on October 19, 2015. REUTERS

The All Writs Act isn’t the unbounded power Apple and co. should fear

Unbounded government authority is a concern that we have been writing on since day one of Recently, one of the common concerns expressed by those supporting Apple in its fight with the FBI over the San Bernardino iPhone is that the legal authority on which the judge’s order requiring Apple to assist in the DOJ’s efforts to gain access to the phone is based — the All Writs Act (AWA) — is “limitless.” This understanding is flawed. But if tech advocates are truly concerned about limitless government power — and I hope they sincerely are — they should look no further than the truly incredible authority claimed by the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) in recent years.

Will courts “route around” Apple’s encryption stand?

A common refrain, and central ethos, of the early Internet was that the net interprets censorship as damage and routes around it. It is unsurprising, then, that today’s refrain is that Apple interprets government warrants as damage and routes around them. Since the Snowden revelations, much of Silicon Valley — and the world — has been swept up by the promise of technology to limit such government abuses. Apple, and Apple CEO Tim Cook, have been the corporate vanguard of this activism. Unfortunately for Apple, the courts have their own refrain: they interpret interference with judicial authority as damage and routing around it.

All Apple’s writs are belong to US*

On Tuesday, Judge Sheri Pym issued an order under the All Writs Act requiring Apple to assist the FBI in searching the contents of one of the San Bernardino shooters’ iPhones. The Internet responded as expected: apoplectic hysteria. Tim Cook announced that Apple would refuse the order, writing in a public letter that “the implications of the government’s demands are chilling. . . . [The government] would have the power to reach into anyone’s device to capture their data. The government could . . . demand that Apple . . . intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”