Watching how the other side aligns itself is always important. It’s important in military operations. It’s important for politicians. It’s even important for digital jurists inside and outside the courtroom. Now, when the other side is a federal agency that has public disclosure requirements, as well as liking its own public relations, it gets interesting and sometimes… Telling.

Stealthily sneaking into yesterday’s public record was a mundane announcement of new hires and appointments in the FCC’s Enforcement Bureau. This was senior staff level placements. Aside from the usual FCC’s back-slapping kudos, the Commish may just have telegraphed its next major move on enforcement actions for 2024, or at least where its next target may be. Again, here’s where it gets…Telling, if not…Telegraphed.

The Enforcement Bureau is bringing on two attorneys with clear and substantial expertise in “the protection of their privacy and sensitive data.”  One comes from the U.S. Department of Justice’s National Security Division having served as an Acting Deputy Chief for telecom-related foreign investment in the Foreign Investment Review Section (Team Telecom) with trial experience in the federal Civil Division.  More recently this attorney was assigned to support the Federal Trade Commission in investigations of privacy and data security practices of foreign-owned entities.  This counsel’s past awards include distinction for work related to the implementation of Executive Order 13913.  Clearly, this attorney will be part of the spear’s head for the FCC’s Privacy and Data Protection Task Force.  You may remember that was covered previously on the DJ Blog.

The other addition is an attorney advisor with NGO experience in agency and congressional work on legislative proposals for privacy, competition, and AI.  Clearly, the Commish is bringing on someone to balance not just present enforcement, but future expansion be it through the Commish’s Rules or Congress.  Front line experience with the Enforcement Bureau will definitely be useful and suasory for such moves by the Commish.  Familiarity with A.I. and competition will also augment that not only in the EB but with the Policy folks as well.

This kind of “troop” movement shows that something is going to ramp up in the next couple of months, on the privacy and data protection side. Since 2020, the majority of rules, focus, and news from the FCC’s EB has been in the area of robocalls and intermediate providers under the Traced Act and in the implementation of STIR/SHAKEN and the Industry Traceback Group. Now there seems to be distinct pivot. Parallel to the Traced Act, Congress also enacted the Federal Secure and Trusted Communications Networks Act. That law concerns not only certain interests of national security but also equipment and support services used in U.S. communication networks.

The FCC’s response to this has been to develop slowly its internal working group, the Privacy and Data Protection Task Force.  The group is internal, so it doesn’t have a particular purpose like a division or an office of the FCC.  Attorney advisors, staffers, and policy folks who are part of this group may be able to float between the various divisions and bureaus. However, the current Commission’s priority seems clear: foreign owned operators of communication networks, foreign manufacturers of communication devices and equipment, privacy issues of consumers, and data integrity of operators as related to data breaches and other possible cyber intrusion events resulting in the loss of consumer data, and maybe ultimately identity theft or some type of digital crime.

Now when will that hammer drop, good question. The FCC recently completed a onetime data collection from international telecommunication carriers on whether they have more than 10% foreign interest in their company, and if so to detail that interest. And the knot too far distant past, the FCC denied carrier applications from applicants that were Chinese controlled, and also ban certain manufacturers of consumer electronics and communication equipment that required FCC Part 15 approval.

Taking a step back, and from the reasonable common person’s perspective, many smartphones and many elements of the current mobile network are foreign made or have foreign interests in their holding. That was logical because production abroad was more available and cheaper than production domestically.

Could it be that the FCC is lining itself up for some kind of enforcement against a major provider with more than 10% foreign ownership and equipment procured abroad?

Will it be a top-down enforcement of smaller providers with foreign ownership of more than 10% or their voice over IP counterparts? 

Do they have a specific Smartphone or equipment manufacturer in mind?

Good questions that we will just have to watch.

Obviously, the concern will be something related to data protection and privacy as well as national security interest.  It will also likely involve a new set of rules coming into play to better define things before enforcement. Will the FCC’s first move on this take weeks or months or even another year? That’s also a good question.

However, recent FCC troop movement does show that is lining itself up for something on the enforcement side and on the rule side. A prudent digital jurist should be mindful of this because it’s not clear on whom the hammer may fall when they do. So, it is clear that something is moving around and lining up over at the FCC’s EB.  Maybe an industry enforcement alert will proceed it, and then again maybe not. 

Keep an eyeball on this Digital Jurists.  Report back any information you may have to share with others, OK? Seems like it’s going to get…Interesting out there.

Here’ the official press release from the Commish: FCC Enforcement Bureau Announces Senior Staff Additions | Federal Communications Commission