Digital Policy Roundup: 2013 Begins with Focus on Patents, EU Cyber Strategy Pending, and CFAA Reform Gaining Steam

Patent Policy Starts 2013 on Front Burner

Out of the gate in 2013 there has been a heavy focus on patent policy in Washington. Beginning with a rare joint statement, the U.S. Justice Department and the Patent and Trademark Office on Jan. 8th spoke out against lawsuits over standards-essential patents as a threat to competition and a harm to consumers. The statement was targeted at the International Trade Commission (ITC), which considers requests from companies to block products from the market over patent infringement and has a legal mandate to consider the effects on the public. According to the agencies, the Commission could deny a request or delay an order to give companies more time to negotiate a license agreement if they perceive potential harm to the public interest.

And on Monday, President Obama signed into law H.R. 6621, which amends provisions of the America Invents Act enacted in September 2011. While the America Invents Act was an effective first step in addressing the problem of abusive patent litigation by trolls, SIIA joined with other leading technology groups late last year warning that patent trolls continue to damage the economy, hurt America’s tech industry, and threaten innovation. In the letter, SIIA formally called on Congress to enact legislation that provides more safeguards to prevent the economic and consumer harm caused by abusive patent lawsuits. Read more on SIIA’s Digital Discourse Blog.

Europe Preparing to Launch Cybersecurity Strategy and Legislation

While we await an expected executive order on cybersecurity from President Obama in the near future, the EU is seeking to release a Cybersecurity Strategy and Directive to harmonise cybersecurity across Member States. The cyber proposal, which the EC hopes to release in late January, would require increased preparedness and improved cooperation among States, and require operators of critical infrastructure and public administrations to adopt common guidelines to manage security risks and report serious threats.

Although the Directive recognizes that Member States will ultimately be responsible for their own cybersecurity, it would establish a common high level of protection across all the Member States through the proposal of specific, EU-level activities to enhance the EU’s overall performance. Similar to U.S. proposals, the EC drafts made available are ambiguous with respect to specific definitions of critical infrastructure and baseline security requirements, but the proposal is likely to raise similar concerns from companies for being too prescriptive and stifling cybersecurity innovation.

CFAA Reform Gets Boost from Schwartz Suicide

An issue that already had momentum in the last Congress, efforts to reform the 1986 the Computer Fraud and Abuse Act (CFAA) has received increased attention in the wake of Aaron Schwartz’ recent suicide. Schwartz was facing charges under the CFAA for unauthorized access to the MIT website, where he downloaded academic articles from its online archive, called JSTOR, and made them publicly available. The CFAA was the subject of several proposed legislative reforms in 2012, and SIIA has been engaged, seeking to preserve the ability of SIIA members to use the CFAA to deter and prevent unauthorized access to or misuse of databases, subscription services and cloud services. While we knew this issue was going to remain ripe for debate again in 2013, Swartz’ recent suicide has likely increased support among policymakers to reform the CFAA sooner, rather than later.

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David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy.

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