Email Privacy Act Reaches Milestone: Majority Support in the House

Yesterday, the Email Privacy Act (H.R.1852) reached a major milestone:  formal support from a bipartisan majority of House member—that’s 218 of the 435 members of the House, including a “majority of the majority” with 136 Republicans and 82 Democrats signing on as sponsors of the legislation.

At a time when there is little agreement in Washington, this stands out as a bipartisan priority to level the playing field for protection of electronic communications.

Updating this law is a position also recently endorsed by the White House, established as a priority recommendation in its recent Big Data Report to “ensure the standard of protection for online, digital content is consistent with that afforded in the physical world—including by removing archaic distinctions between e-mail left unread or over a certain age.”

The Email Privacy Act gives members of Congress an opportunity to advance critical privacy legislation by enacting this simple, meaningful and broadly supported privacy reform, which would require government agents to obtain warrants from a judge in order to force service providers to disclose the private email and documents they store online for their customers.

SIIA today is calling on the House to work with all deliberate speed to pass this bipartisan priority legislation.

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. Follow the SIIA public policy team on Twitter at @SIIAPolicy.

Digital Policy Roundup

NTIA Seeks Comment on “Consumer Privacy Bill of Rights”

Last week, the National Telecommunications & Information Administration (NTIA) released a Request for Comment on Big Data and Consumer Privacy in the Internet Economy, as directed by the recent Administration Big Data Report. In particular NTIA is seeking comment on the following:

  • how the principles in the Consumer Privacy Bill of Rights support innovations related to big data while also responding to potential privacy risks;
  • whether the Consumer Privacy Bill of Rights should be clarified or modified to better accommodate the benefits or risks of big data;
  • whether a responsible use framework should be used to address the challenges posed by big data; and
  • mechanisms to best address the limits of the “notice and consent” model for privacy protection noted in the big data report.

U.S.-EU Negotiate on Safe Harbor

Paul Nemitz, the chief European Commission negotiator for the Safe Harbor Framework, is in DC this week for negotiations with his U.S. counterpart, Commerce Department Deputy Assistant Secretary for Services Ted Dean. Both participated in a June 10 Center for Strategic & International Studies (CSIS) event called “The Safe Harbor Agreement: Data Protection or Protectionism.” The Commission issued 13 recommendations for improving the Safe Harbor Framework as part of its “Restoring Trust in EU Data Flows” effort in 2013. Dean and Nemitz have been negotiating based on those recommendations. Both negotiators signaled that they are close to agreement. However, Nemitz argued forcefully that recommendation 13 which calls for the national security exception to be invoked “only to an extent that is strictly necessary or proportionate” needs to be addressed satisfactorily. He called this recommendation the “elephant in the room.” What he meant was that there had to be some limits on bulk collection of data for intelligence purposes. Dean noted that his office within Commerce was not responsible for the national security related recommendations. However, he reminded the audience of President Obama’s January 17, 2014 speech which called for enhancing protections for non-U.S. persons, suggesting that progress could be made in this area as well.

The U.S.-EU Safe Harbor Framework is one way in which companies can transfer data from the European Union to the United States. The way it works is that companies self-certify to the Commerce Department that they maintain privacy practices included in the Framework. The Federal Trade Commission enforces compliance with Commerce administering the program. There are now over 3,000 companies enrolled in the Safe Harbor program. Many participants are small and medium sized enterprises. Much of the data transferred pursuant to this mechanism is human resources data. There is a 2009guide to self-certification.

Obama Administration announces 4th Big Data Workshop in DC

The fourth Big Data Workshop in DC is on the way. The White House Office of Science and Technology Policy (OSTP) is cohosting an event with the Georgetown University McCourt School of Public Policy’s Massive Data Institute, on June 19. The event titled “Improving Government Performance in the Era of Big Data: Opportunities and Challenges for Federal Agencies” will engage the public and experts in a discussion on the future of data innovation and policy. Those interesting in attending should RSVP promptly, as the event is expected to fill up.

California Guidance on Meaningful Privacy Policy Statements

California Attorney General Kamala D. Harris recently released guidance, Making Your Privacy Practices Public: Recommendations on Developing a Meaningful Privacy Policy, which includes recommendations on the new DNT disclosures called for by the 2013 law, AB 370, requiring web site operators to disclose how they are responding to a “Do Not Track” browser signal. To help members understand the new law, SIIA held awebcast briefing on Feb. 6. This guidance not only provides companies more detailed information the compliance expectations, but it also broadly encourages companies to craft privacy policy statements that address significant data collection and use practices, use plain language, and are presented in readable format.

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. Follow the SIIA public policy team on Twitter at @SIIAPolicy.

Digital Policy Roundup

SIIA Submits Statement on Copyright First Sale for the House IP Subcommittee Hearing

Yesterday, as part of its copyright policy review hearings, the House Judiciary Committee’s Intellectual Property Subcommittee held a field hearing in New York City to address the copyright law’s first sale defense. Testifying at the hearing were Stephen M. Smith, representing SIIA-member John Wiley & Sons, Inc.. Also testifying were Jonathan Band for the Owner’s Rights Initiative; Greg Cram for the New York Public Library; Matthew Glotzer; John Ossenmacher for ReDigi; Ed Shems for edfredned illustration & design; Emery Simon for BSA; Sherwin Siy for Public Knowledge and Professor John Villasenor, of the UCLA Luskin School of Public Affairs. In addition to Chairman Goodlatte and Ranking Member Nadler, only four other members made the trip to New York for the hearing (Reps, Holding, Chaffetz, Deutch and Jeffries). The general consensus view from both the witnesses and the members present was that a legislative change to the first sale defense is not necessary or appropriate. To the extent there is a “first sale problem,” that problem has more to do with managing customer expectations and improved customer education and changes in the way new technologies enable marketing of copyrighted works, and not with the legislative language language or policy underlying the copyright law’s first sale defense as codified in Section 109. For more information on the issue, see SIIA’s statement for the hearing record and blog.

SIIA Submits Comments to ICANN on How to Improve ICANN Accountability

Our submitted suggestions for enhancing accountability focus on predictability in the bylaws governing ICANN; transparency, especially in obtaining information on the rationale for decisions; inclusiveness, including for non-traditional ICANN stakeholders; responsiveness to stakeholder inquiries; conflict-of-interest avoidance as ICANN revenues continue to increase; independent review, perhaps an independent Inspector General; redress including a review of the Independent Review Process function; and, public accessibility to the Board, perhaps at the Internet Governance Forum. We look forward to a robust discussion with other stakeholders on these ideas. SIIA also supports full funding for the Commerce Department’s National Telecommunications & Information Administration (NTIA) to manage the Internet Assigned Names Authority (IANA) transition. The Information Technology Industry Council and the Internet Association also come out in favor of full funding. (Note: There are bills in Congress to withold some funding from NTIA to prevent its evaluating proposals for the IANA transfer.)

New America Foundation Hosts McKinsey for Globalization Discussion

McKinsey has published an interesting report called “Global flows in a digital age: How trade, finance, people, and data connect the world economy.” The consulting firm offers a new framework with which to view the digital age by constructing a “Connectedness Index.” The Index estimates to what extent countries are connected through flows of goods, services, financial transactions, people, and data/communications. McKinsey finds that Germany is the most “connected” country with the United States coming in at third place. The firm also finds that these flows contribute between 15% to 25% of global GDP growth. So-called knowledge-intensive flows account for about half of these flows, underscoring the importance of strong intellectual property rights systems. Clearly, data flows accompany the other flows in McKinsey’s Connectedness Index. The question, which McKinsey acknowledges, is to what extent one can measure the economic value of data flows. As McKinsey points out, between 2005 and 2012, cross-border Internet traffic grew 18-fold, but that does not mean that the economic value of those flows grew 18-fold. Nonetheless, data is clearly a fundamental underpinning of modern economies and trade, and data’s importance is undoubtedly growing. Measuring the economic importance of data flows, and understanding the policy parameters needed to promote those flows, will be increasingly important in coming years.

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. Follow the SIIA public policy team on Twitter at @SIIAPolicy.

Digital Policy Roundup

FTC Calls for Legislation to Regulate Data Brokers

On Tuesday, the Federal Trade Commission (FTC) released its long-awaited report resulting from an extensive study of “data brokers.” The report, entitled “Data Brokers, a Call for Transparency and Accountability,” presents the findings of the study, and provides recommendations for both legislation and industry best practices. Among the legislative recommendations, the Report calls for substantial transparency requirements to be placed on both first and third party companies, and requirements for consumers to be able to access the correct their records, and to opt-out entirely. In response to the Report, SIIA issued a statement expressing support from increased transparency and consumer access, but cautioned a legislative approach in favor of industry-led self-regulation. SIIA’s statement follows related advocacy, including recent comments to the FTC regarding “alternative scoring” and a 2013 white paper, highlighting the effectiveness of the current Fair Credit Reporting Act regulatory framework to prevent harm to consumers.

Surveillance Reform Legislation Passes House After Key Amendments

Last Thursday, the House passed the USA Freedom Act by a vote of 303-121, but only after several last minute amendments that limited the amount of transparency able to be provided by businesses and expanded a critical definition that, instead of entirely blocking the government’s ability to collect bulk amounts of Internet user’s data, the new bill could potentially allow federal agents to gather information broadly. The measure now moves to the Senate, where Judiciary Chairman Patrick Leahy has promised to make changes to strengthen these areas. While the legislation represents a significant step forward in the efforts to reform the National surveillance laws, there will be continued debate in the weeks ahead on these key details. In response to the bill’s passage, SIIA issued a statement affirming that surveillance reform legislation is an essential part of restoring the public trust and providing support for U.S. businesses internationally, and committing to ensure that the bill does not inadvertently provide for bulk collection of user data on the Internet.

White House Calls for Voluntary Cyber Action, Not Regulation

In a blog last week, White House Cyber Czar Michael Daniel declared that no new cybersecurity regulations are needed at this time, instead stating that “existing regulatory requirements, when complemented with strong voluntary partnerships, are capable of mitigating cyber risks to our critical systems and information.” Specifically, the Administration’s internal review by several key agencies – DHS, HHS and EPA – reached the conclusion that existing laws and regulatory authority are sufficient, particularly in light of the voluntary framework. Earlier this year, SIIA hailed the NIST Cybersecurity Framework for creating a voluntary approach to cybersecurity that would preserve IT innovation and technology neutrality, contrasting this with an inflexible regulatory approach, and we applauded the recent Administration conclusion last week.

House adds DOTCOM Bill to National Defense Authorization Act

On May 21, 228 Republican and 17 Democrats voted in favor of the DOTCOM bill with 177 members opposed. The Bill would oblige the GAO to provide a study to Congress within one year of the Commerce Department receiving a proposal on how to transition the Internet Assigned Names Authority (IANA) functions to a multistakeholder managed group, thereby relinquishing the last vestige of U.S. government “control” of the Internet. Currently, the Internet Corporation for Assigned Names and Numbers (ICANN) is contractually responsible (with Verisign doing the work) to the Commerce Department for managing these functions. The study would oblige the GAO to write a report on the following topics:

[Read more...]

White House Cyber Review Calls for Voluntary Action, Not Regulation

Earlier this year, SIIA hailed the NIST Cybersecurity Framework for creating a voluntary approach to cybersecurity that would preserve IT innovation and technology neutrality, contrasting this with an inflexible regulatory approach.  We are therefore very pleased today that the Administration’s review by several key agencies—DHS, HHS, EPA—reached the same conclusion.  In a blog this afternoon, White House Cyber Czar Michael Daniel concluded that no new regulations are needed at this time, instead stating,

“existing regulatory requirements, when complemented with strong voluntary partnerships, are capable of mitigating cyber risks to our critical systems and information.”

We couldn’t agree more.  SIIA and our members remain committed to promoting the Framework which leverages industry-led standards, and creates effective, flexible best practices for cybersecurity preparedness.

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. Follow the SIIA public policy team on Twitter at @SIIAPubPolicy.

Digital Policy Roundup

Student Privacy: SIIA Releases Policy Guidelines at CA Testimony; Markey-Hatch Discussion Draft

It’s been another busy week for student privacy. SIIA took the opportunity of its invited testimony before a joint hearing of the California Assembly Education and Select Privacy Committees to release its new “Policy Guidelines for Building a Student Privacy Trust Framework.” The SIIA guidelines outline principles and considerations to ensure policies are appropriately targeted to enhance student confidentiality while limiting unintended or unnecessary barriers to school operations or digital learning opportunities. The guidelines address the definition of student information; transparency/governance/capacity; use of information; deletion; and access and correction, among other areas. SIIA intends for the guidelines to inform not only state legislatures, but also federal efforts such as the discussion draft introduced by U.S. Senators Markey (MA) and Hatch (UT) to amend FERPA.

Petrella v. MGM Copyright Case Ruling

On Monday, in a 6-3 majority opinion, the U.S. Supreme Court decided the Petrella v. MGM copyright case, ruling that the equitable defense of laches cannot be invoked as a bar to the plaintiff’s claim for damages brought within the Copyright Act’s three-year statute of limitations. The doctrine of laches is an equitable doctrine used by courts to prevent and/or limit claims when the plaintiff has waited an unreasonable length of time to file the suit, and the delay has caused prejudice to the defendant. The case involved a dispute over the 1980 Oscar-winning movie “Raging Bull” and whether the screenwriter’s daughter waited too long (18 years) to sue the defendants, MGM and Fox, over the renewal of copyright under the equitable doctrine of laches.

The case will now go back to the lower court where Petrella will seek damages back to 2006 (three years before the filing of her lawsuit). Although Petrella’s delay did not bar her suit, the Supreme Court did specify that the district court take into account Petrella’s delay in commencing the suit when determining what damages should be awarded as well as determining the appropriate injunctive relief. SIIA had joined an amicus brief drafted by the Motion Picture Association of America (MPAA) in support of Metro-Goldwyn-Mayer Inc. and Twentieth Century Fox unsuccessfully arguing that laches should be a defense to a copyright claim even when it is brought within the statute of limitations.

FCC Proposal for Open Internet Invites Comment, Draws Broad Criticism

[Read more...]

Digital Policy Roundup

Administration Releases Long-Awaited Study on “Big Data” and Privacy

On May 1, the White House released its long-awaited report on “big data and privacy.” The report, entitled “Big Data: Seizing Opportunities, Preserving Values,” is the result of a 90 day study directed by President Obama in January. Overall, the report captures the great opportunities presented by data-driven innovation, and it highlights a wide range of conclusions and makes concrete recommendations for Administration attention and policy development in a few key areas. As highlighted by the study’s lead, John Podesta, the report represents a starting point for an increased focus on policy issues related to big data by the Obama Administration.

In response to the study, SIIA released a press statement welcoming the report and highlighting the effectiveness of current legal and regulatory framework to accommodate privacy and security concerns associated with big data. SIIA also supports the specific proposals in the report about maximizing the educational benefits of data and making an important contribution to the International discussion.

SIIA is thoroughly reviewing the White House study, as well as a related study issued by the President”s Council of Advisors on Science and Technology (PCAST), which takes a more detailed and “technological perspective” on big data and privacy. We will provide a detailed summary and analysis of the reports for members in the near future.

President Obama and Chancellor Merkel Repeat Positions on Privacy/Surveillance

At a May 2 press conference the President reiterated that he had “taken the unprecedented step of ordering our intelligence communities to take the privacy interests of non-U.S. persons in everything they do, something that’s not been done before and most other countries in the world do not do.” Obama also said that the United States was committed to a “cyberdialogue” with Germany. He was firm, however, that there would be no “no spy” agreement between the two countries.

The Chancellor said: “Under the present conditions, we have, (after all ?), possibilities, as regards differences of opinion, to overcome these differences in the medium term and in the long term.” She mentioned the U.S.-Germany cyberdialogue, the U.S.-EU Safe Harbor Framework negotiations, and the Eu’s proposed General Data Protection Regulation. Chancellor Merkel also called for more cooperation between parliaments, i.e. the U.S. Congress and the European Parliament. The German leaders mentioned “proportionality” as one issue still dividing the United States and Germany. What that means is that from the German perspective, national security-related privacy exceptions must be “proportional” to the national security risk at hand.

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. Follow the SIIA public policy team on Twitter at @SIIAPubPolicy.

Curated By Logo