Digital Policy Roundup

Data Analytics Event This Thursday

Join SIIA for lunch and exciting technology presentations on how big data is being employed to empower and protect citizens. The lunch workshop, “Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention,” will take place Thursday, July 17 from 12-1:30pm in Room G11 of the Dirksen Senate office building.RSVP HERE

Executive Director Marjory Blumenthal of the President’s Council of Advisors on Science and Technology (PCAST) will open the event with discussion of the Administration and PCAST reports on Big Data and Privacy released in May. In addition, the SIIA workshop will provide for Q&A and discussion about key policy considerations to maximize data-driven innovation. For more information, or to register, click here!

Patent Troll Demand Letter Bill Passes House Subcommittee

Last Thursday, the House Energy and Commerce Committee’s Subcommittee on Commerce, Manufacturing and Trade passed the Targeting Rogue and Opaque Letters Act (TROL Act) by a vote of 13-6. The bill attempts to crack down on demand letters sent by patent trolls by giving the Federal Trade Commission (FTC) the authority to seek penalties when patent licensing demand letters make false or misleading statements. The bill has been widely criticized and even its sponsor, Rep. Lee Terry of Nebraska, has conceded that the bill needs to be further amended to address these concerns. The real question seems to be whether amendments can fix the bill or whether it is fatally flawed. Contentious provisions in the bill include provisions that would: (i) create an affirmative defense that applies if the sender can show that the statements made in the letter were made in good faith or that the sender usually sends letters that are not misleading; (ii) preempt state laws dealing with demand letters; (iii) compromise the FTC’s ability to get an injunction under Section 5 of the FTC Act, which allows it to police deceptive business practices.

Potential PTO Director Nominee Withdrawn

Back in late June rumors swirled that the Obama Administration had planned to name Phil Johnson, a pharmaceutical executive for Johnson & Johnson, as head of the U.S. Patent and Trademark Office. Given Johnson’s very public stance against patent troll litigation reform legislation, the potential appointment was met with significant criticism. In response, last week, the Administration apparently backtracked on the appointment and has withdrawn Johnson’s name from consideration. It is unclear who or when the Administration will name someone to head the PTO in lieu of Johnson.

European Parliament’s International Trade Committee (INTA) Chairman Pushes for Less Ambitious TTIP

Inside U.S. Trade reports that the new Chair, Bernd Lange (member of the Socialists & Democrats group) would like to conclude TTIP by the end of 2015, not the end of 2014 which was the original plan. He would like a more “classic” agreement focused on tariffs, some non-tariff barriers, and government procurement. Regulatory cooperation and Investor State Dispute Settlement (ISDS) would be left out under this scenario. Lange’s comments illustrate how unpopular trade agreements are on the other side of the Atlantic, as well as in the United States. Regulatory cooperation is arguably the most important component of the TTIP given the ambition, often stated in both the United States and the European Union, for the TTIP to serve as a model for the rest of the world. The role of parliament is significant on trade. In 2012 the parliament rejected the Anti-Counterfeiting Trade Agreement (ACTA), which the European Commission (the European Union’s executive branch) had invested significant political capital to conclude. As a result, the Commission has to take parliament’s views seriously.


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 Event to Explore Real-World Impact of Big Data & Policy Implications

Join SIIA for lunch and exciting technology presentations on how big data is being employed to empower and protect citizens. The lunch workshop, “Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention,” will take place on July 17 from 12-1:30pm in Room G11 of the Dirksen Senate office building. RSVP HERE.

Executive Director Marjory Blumenthal of the President’s Council of Advisors on Science and Technology (PCAST) will open the event with discussion of the Administration and PCAST reports on Big Data and Privacy released in May. In addition, the SIIA workshop will provide for Q&A and discussion about key policy considerations to maximize data-driven innovation. For more information, or to register, click here.

WIPO Considers Copyright Exceptions for Libraries and Archives

Discussion continued at the World Intellectual Property Organization during the 28th meeting of its Standing Committee on Copyrights and Related Rights on the need for exceptions and limitations for libraries and archives. The US and EU opposed a new treaty, noting that countries had flexibility to craft their own national exceptions to allow libraries to fulfill their public mission, subject to internationally recognized constraints. Blocks of other countries urged the need for a treaty to overcome coordination difficulties. The US urgedwork on principles and objectives to guide national legislation and the EU did not object. SIIA weighed in with a statement supporting the US position and encouraging further productive discussion. The meeting adjourned without a resolution of the issue. They will be taken up again at the next meeting of the SCCR in December.

Garnering Considerable Attention, European Commission VP and Commissioner Kroes Delivers Speech on Copyright

On July 2 the outgoing Commissioner, Nellie Kroes, delivered a speech in Amsterdam entitled: “Our single market is crying out for copyright reform.” Kroes said she wanted to see reform “now,” which would include more possibilities to access content online cross-border, harmonized exceptions, and flexibility. She strongly suggested that she would favor a copyright exception covering text and data mining. She mentioned that in 2009 Japan adopted a copyright exception covering text and data mining, including for commercial use. Kroes also referred to the two Communications the Commission issued on July 1 to better enforce Intellectual Property Rights (IPRs).

The first Communication is an Action Plan involving ten actions, many involving more stakeholder consultation. The Commission makes clear that it wants to act against commercial-scale IPR infringer, not individual “consumers” of infringing materials. Clearly influenced by voluntary stakeholder agreements in the United States, the Commission wants to pursue a “follow-the-money” approach to curb commercial-scale infringements. The second Communication lays out a Strategy for dealing with enforcement of IPRs in third countries. The Communication does not really announce anything new, although the Commission wants to conduct regular surveys to identify a list of “priority countries” for focused EU efforts, which is similar to the Special 301 process the U.S. government engages in every year.


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.

SIIA Announces Event to Explore Real-World Impact of Big Data & Policy Implications

You’re invited! Join SIIA for lunch and exciting presentations on how big data is being employed to protect citizens. The lunch workshop titled “Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention,” will take place on July 17 from 12-1: 30pm in Room G11 of the Dirksen Senate office building. RSVP HERE

Executive Director Marjory Blumenthal of the President’s Council of Advisors on Science and Technology (PCAST) will open the event with discussion of the Administration and PCAST reports on Big Data and Privacy released in May.

Featured Presentations include:

  • “Big Data Analytics for Financial Regulation” IBM.
  • “Harnessing the Power of Data to Help Small Businesses Access the Funding Sources They Need to Grow” Intuit QuickBooks Financing.
  • “Using Identity-Based Filters to Prevent Tax Fraud, Waste and Abuse” LexisNexis Risk Solutions.
  • “Using Data to Combat Fraud in Government Programs” SAS.
  • “Utilizing Data to Help Recover Missing and Exploited Children” Thomson Reuters.

As data-driven innovation changes consumers’ lives, policymakers around the world are continuing to assess big data to maximize the benefits while calculating potential harm.  To help bring light to the real-world impact of data-driven innovation and to inform policymakers, SIIA will host a series of presentations that explore how data is creating economic and social value.  In addition, the SIIA workshop will feature an in-depth discussion about key policy considerations when maximizing data-driven innovation.

WHO: The Software & Information Industry Association (SIIA)
WHAT: Big Data at Work for Citizens: Applying Data Analytics for Empowerment and Fraud Prevention
WHEN: Thursday, July 17, 2014 at 12 pm – 1:30 pm
WHERE: Dirksen Senate Office Building, Room G11

To learn more about the event, and to RSPV click here.


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 Testifies at Joint Congressional Subcommittee Hearing on Student Privacy

SIIA’s Mark MacCarthy delivered testimony on the issue of student data privacy in a joint hearing Wednesday before subcommittees of the Committee on Education and the Workforce and the Committee on Homeland Security. The hearing titled “How Data Mining Threatens Student Privacy” featured three witnesses in addition to SIIA: Fordham University’s Professor Joel R. Reidenberg, Idaho Department of Education CIO Joyce Popp, and Alliance for Excellent Education’s Digital Learning Director Thomas Murray. SIIA advised committee members that “no new federal legislation is necessary at this time,” citing a three part system of protection – federal law (FERPA, COPPA), contracts, and industry best practices.

Alice Corp v. CLS Bank Ruling

On June 19th, the Supreme Court decided the business method patent case of Alice Corp v. CLS Bank Corp, unanimously holding that implementing an abstract idea through a general purpose computer is Ineligible for patent protection under section 101 if the Patent Act. The case involved a method for reducing the risk that the parties to a transaction will not pay what they owe. The Court has long held that abstract ideas are not patentable subject matter. Writing for the Court, Justice Thomas said that “merely requiring generic computer implementation… fails to transform the abstract idea into a patent-eligible invention.” The decision would seem to have limited applicability to software patents as the term “software” does not appear in the decision and Justice Thomas acknowledges in the decision that “many computer-implemented claims are formally addressed to patent-eligible subject matter.”

OECD Committee for Digital Economy Policy (CDEP) Meets June 16-20 in Paris

CDEP is of interest because its work on digital economy issues is influential. For instance, the OECD’s 2011 Internet Policymaking Principles (IPP) and the revised 2013 OECD Privacy Guidelines are documents that are often consulted in other fora and are considered generally helpful by industry, including SIIA. The CDEP also works on Internet governance, big data, measuring the digital economy, the relationship between technology and jobs, and intellectual property. The work on intellectual property is often considered more controversial, and SIIA works to make it balanced.

Last week’s meeting focused particularly on the 2016 OECD Ministerial which will be held in April or May of 2016 in Cancun, Mexico. The Ministerial is important to the head of the organization, Angel Gurria, who is Mexican and reportedly interested in seeking a third term as Secretary-General of the OECD. The CDEP is currently considering “Digital Innovation Transforming our Societies” as the title for the Ministerial. The OECD has ambitious plans for the Ministerial and hopes to attract ministers responsible for labor and education, as well as ministers responsible for the ICT sector. The OECD has five themes for the Ministerial:

  1. Fostering new sources of growth spurred by converging networks, services and data analytics.
  2. Analyzing the effects of the digital economy on growth, jobs and skills.
  3. Developing recommendations and building evidence for Internet policy and governance.
  4. Managing the digital risks and enabling trust for continued prosperity.
  5. Looking to the future.

SIIA will be engaged in advocacy with a view to influencing work documents and the 2016 Ministerial, especially in the areas of growth, jobs and skills: Internet governance; privacy; and data analytics.


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.

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.

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