Internet Issues

Cybersecurity: Private Sector Faces Increasing Regulatory Risk From Agency Enforcement and Informal “Guidance” Becoming Standard of Care

Litigation Practice Group Teleforum Thursday, October 15, 03:00 PMFederalist Society Teleforum Conference Call

After Target, Anthem, Sony and Ashley Madison, cybersecurity is at the top of every company and regulator’s list of worries. As Congress considers legislation, the Executive Branch has been implementing a Presidential Executive Order to develop a “voluntary” framework for cybersecurity. The private sector faces a rapidly shifting terrain without clear standards. Agencies are flexing their regulatory muscles to expand oversight through informal guidance and threat of enforcement, as embodied in a recent victory by the FTC in the Wyndham case.

This Teleforum will provide an overview of the cybersecurity trends facing the private sector, and will discuss the implications for predictability, transparency, and innovation. Will the President’s Executive Order, and the NIST Cybersecurity Framework, become the de facto standard for the private sector? Is the federal government regulating through the threat of enforcement by FTC, FCC and other federal agencies, instead of through more regular administrative processes? What should companies make of emerging agency “guidance” from agencies like the FDA, SEC, NHTSA, and DoD, on operations and innovation in areas like the Internet of Things, mobile applications and devices, cloud services, connected cars?

Join us for a lively discussion about these trends and what the private sector faces in 2015 and 2016.


  • Megan Brown, Partner, Wiley Rein LLP
  • Brent McIntosh, Partner, Sullivan & Cromwell LLP
  • Rebecca Seidel, General Counsel, Senate Commerce, Science and Transportation Committee

What's the Download on Municipal Broadband? - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Charles M. Davidson, Randolph J. May, Christopher Mitchell, Rachael M. Bender September 22, 2015

The role of municipally-owned and operated broadband networks in the United States has been the subject of considerable debate. Among some stakeholders, there is increasing enthusiasm around the potential for government-owned broadband networks (GONs) to serve as an engine for municipalities to jump-start economic development. When GONs fail, however, the costs are borne by taxpayers. Earlier this year, the FCC threw its hat into the ring by moving aggressively to preempt certain provisions of Tennessee and North Carolina law that restrict municipal provision of broadband service. In this teleforum, our experts assessed the need for GONs, addressed the competition policy and regulatory issues associated with these projects, and explored whether the FCC’s move to preempt the states will survive judicial appeal.

  • Charles M. Davidson, Director, Advanced Communications Law and Policy Institute, New York Law School
  • Randolph J. May, President, The Free State Foundation
  • Christopher Mitchell, Policy Director, Next Century Cities
  • Moderator: Rachael M. Bender, Senior Policy Director, Mobile Future

Public Service and Private Servers: The Law of Government Information Retention and Security - Podcast

International & National Security Law Practice Group Podcast
Shannen W. Coffin, Nathan A. Sales, Adam R. Pearlman September 15, 2015

There has been much in the news recently relating to public officials’ transmission and retention of public records, and the classification and security practices related to the information contained therein. Prime examples include the conviction of former CIA Director David Petraeus for mishandling classified information that he kept in his home in violation of security protocols, and the many issues related to the revelation that former Secretary of State Hillary Clinton, during her tenure in office, used a private email address hosted by a server located in her home to conduct official business, some of which may have been classified.

In this Teleforum, Professor Nathan Sales, a law professor and a veteran of the Departments of Justice and Homeland Security, and Shannen Coffin, former Deputy Assistant Attorney General for the Justice Department’s Civil Division and later Counsel to Vice President Cheney, will discuss several of the national security, criminal, and regulatory dimensions related to the handling of sensitive government information. What laws and regulations define government officials’ responsibilities concerning the classification, transmittal, and retention of government information? Are government employees allowed to use private servers or commercial email services to conduct official business and transmit government documents? Are government servers in fact the most secure way of communicating sensitive information, or do rules that confine certain communications to official channels serve chiefly as recordkeeping purpose? Are classification markings on documents mere bureaucratic measures, or does their presence or absence on a document containing national security information have legal significance? Does an official who is an Original Classification Authority have legal duties different than other government employees to safeguard sensitive information?

Please join us for this Teleforum breaking down these issues and more, as they relate to the national security, counterintelligence, law enforcement, and administrative functions of the government.


  • Mr. Shannen W. Coffin, former Deputy Assistant Attorney General, Justice Department's Civil Division
  • Prof. Nathan A. Sales, Associate Professor of Law, Syracuse University College of Law
  • Moderator: Mr. Adam R. Pearlman, Special Advisor, International & National Security Law Practice Group 

Tale of Two Agencies – Overlapping Jurisdiction of the FCC and FTC - Audio/Video

Telecommunications & Electronic Media Practice Group
Maureen K. Ohlhausen, Ajit V. Pai, Alexander Okuliar September 06, 2015

With the adoption of the Open Internet Order, the Federal Communications Commission has potentially waded into areas that have historically been within the Federal Trade Commission’s jurisdiction. How are privacy, consumer protection, and technology policy issues currently being handled by the agencies – do their actions complement each other or are they creating regulatory tension and uncertainty? If there is a turf war going on, will Congress step in or will the courts decide? How does it impact competition policies and consumer protection? Join FCC Commissioner Ajit Pai and FTC Commissioner Maureen Ohlhausen as they engage in a moderated discussion about these and other issues relating to the respective roles of their agencies.


  • Hon. Maureen K. Ohlhausen, Federal Trade Commission
  • Hon. Ajit V. Pai, Federal Communications Commission
  • Moderator: Alexander Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP

September 2, 2015
Washington, DC

The FTC and FCC: Regulatory Overlap - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Joshua D. Wright May 15, 2015

With the Federal Communications Commission's recent net neutrality regulations, the FCC has potentially entered into the Federal Trade Commission's regulatory arena in the area of antitrust regulation and consumer protection. Are the FCC's net neutrality rules an impermissible intrusion on the FTC's portfolio, or is the regulatory tension between the FTC and FCC merely an accident of overlapping jurisdiction provided by Congress in the respective statutes creating each agency?

  • Hon. Joshua D. Wright, Commissioner, United States Federal Trade Commission