SIIA Comments on the Use of Data Analytics to Promote Social and Economic Opportunity

Today SIIA filed comments in the Federal Trade Commission’s Workshop on “Big Data: A Tool for Inclusion or Exclusion?” The workshop was held on September 15 and usefully framed important developments in the use of data analytics for providing services to low income and underserved consumers and provided a forum for discussion of the possibility of unfair or discriminatory use of data analytics.

I participated on the workshop’s second panel relating to new developments in data analytics.  SIIA’s comments summarize the discussion in that panel and contain additional reflections on the issues raised by the workshop. The main points of the comments are:

  • SIIA members are industry leaders using analytics to promote social and economic opportunity through, for example, alternative credit scoring models, cognitive computing in health care, predictive analytics in education, and detecting discrimination.
  • Adequate and appropriate due diligence and transparency requirements already apply in regulated eligibility contexts such as lending, insurance, housing and employment.
  • Due diligence and transparency mandates should not be applied to new contexts absent a showing that they are needed to prevent tangible harms.
  • Trade secrets and business confidentiality should continue to protect algorithms from disclosures.  Such disclosures do not accomplish any meaningful public policy objective.
  • The focus of policy concern should be on the uses of algorithms, not on the algorithms themselves.
  • The FTC should continue the dialogue and discussion with other expert agencies and stakeholders to promote the positive use of data rather than seek additional laws or regulations.

Stakeholders should continue their discussions on these important issues.  The objective should be for government, industry, academics, and advocates from all sides to gain a shared understanding of how business and other organizations should use the powerful new analytics tools at their disposal to promote inclusion and economic opportunity.

Mark MacCarthy, Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology.

Electronic Signatures Get a Shot-in-the-arm

After more than a decade, could electronic signatures be poised to take off within the Federal Government?  Yes, and it’s about time!

Last week, the Small Business Administration (SBA) issued a procedural notice to encourage greater use of electronic signatures.  This comes only weeks after legislation was introduced to accomplish this purpose, and policymakers in Congress began pressing the Obama Administration for answers.

As the SBA notice acknowledges, streamlining the lengthy and complicated loan application process is crucial for small businesses to secure the capital they need to get their products or services to market; and electronic signatures are critical to that process.

For many years now, within the Federal Government, electronic signatures have served the same purpose as handwritten signatures.  This policy was established back in 1998, when Congress passed the Government Paperwork Elimination Act (GPEA, Pub. L. 105-277) requiring that, when practicable, Federal agencies use electronic forms, electronic filing, and electronic signatures to conduct official business with the public by 2003.

This was followed by adoption of the Electronic Signatures in Global and National Commerce Act (the ESIGN Act), which removed a myriad of anachronistic and inconsistent state and federal requirements for paper and ink documents and signatures in the private sector. In so doing, the ESIGN Act eliminated many of the legal uncertainties that have surrounded the use of electronic signatures and records in commerce and enabled businesses and consumers to more fully realize the cost savings possible through all-electronic transactions.

Suffice it to say, for over a decade the policy and technical frameworks have been in place for electronic signatures to be the “wave of the future” for Federal and state governments as well as the private sector.  For those ready to realize the benefits of electronic signatures, the guidance was updated just last year.

Here’s hoping that the future has finally arrived!

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.

Intellectual Property Roundup

UK High Court Orders ISPs to Block Trademark-Infringing Sites (Securing Industry)
A landmark ruling has been handed down in the UK that establishes the right of trademark owners to secure court orders blocking websites that sell counterfeit products.

German Publishers Capitulate and Let Google Post News Snippets (PC World)
German publishers said they are bowing to Google’s market power, and will allow the search engine to show news snippets in search results free of charge, at least for the time being.

Embedding is Not Copyright Infringement, EU Court Rules (Torrent Freak)
The Court of Justice of the European Union handed down a landmark verdict, ruling that embedding copyrighted videos is not copyright infringement, even if the source video was uploaded without permission.

News Data SHows More Signs that Patent Troll Suits are in Decline (Ars Technica)
A new report published by Unified Patents notes a drop-off in recent patent lawsuits, the second recent indication that there may be a decline in suits following this summer’s US Supreme Court decisions.

Apple Defeats GPNE’s $94M Patent-Infringement Claim (CNET)
Apple last week defeated GPNE in a patent-infringement trial, with a jury determining the electronic giant’s devices didn’t infringe mobile technology owned by the nonpracticing entity.

Judge Refuses to Block Aereo’s DVR Functions (GigaOM)
A federal judge in New York slapped Aereo with an expected injunction, but also hinted how the service might survive in the future, a ruling that could open the door to Aereo operating as a cloud-DVR service.

Google Algorithm Change Hits Streaming, Torrent Sites Hard (Ars Technica)
Video streaming and torrent sites have dropped precipitously in Google rankings after the company altered its algorithm.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

A Way Forward on Data Flow Trade Discussions in TTIP

“I fully agree with that,” was the response by Antonio de Lecea, Minister of the EU Delegation to the United States.  IBM’s Steve Stewart had just expressed the view that an EU –US trade agreement resulting from the negotiations on the Transatlantic Trade and Investment Partnership (TTIP) would be an effective place to create a good template for binding rules on cross border data flows.

Stewart added that it would be possible to use the GATs framework in understanding how to have data flow principles in a trade agreement like TTIP while still respecting the right of sovereign countries to set their own privacy rules. He noted that this framework allowed countries to set their own privacy regimes, but contained a restriction that the implementation of privacy laws should not amount to a disguised restriction on trade and that enforcement had to be the least restrictive of trade possible.

At this point de Lecea expressed his agreement, and noted that it was important that trade agreements incorporate the ideas of proportionality and necessity. He added that for Europe privacy amounts to protection not protectionism.

The occasion was a public discussion on October 22 hosted by the Brookings Institution on the release of their report on transatlantic data flows.  Steve Stewart and Antonio de Lecea joined International Trade Commission Commissioner Meredith Broadbent and Brookings study author Joshua Meltzer in a spirited discussion of the extent of the electronic relationship between the world’s two largest economic communities.

This shared understanding between business representatives and the EU on how to incorporate data flow principles and privacy in a trade agreement is significant.  Several years ago the US and the EU signed an agreement on non-binding principles governing trade in information and communications technology.  Incorporating something like these principles seems like an achievable goal for the TTIP. They would have to be made binding and extended to sectors of the economy outside ICT, but they embody the right policy.

Another limitation on the ICT principles is that they exempted data protection from their scope.  But the GATs framework shows us how to integrate privacy and data flow provisions in a trade agreement.

These principles might not be absolutely essential to permit the continued flow of data between the US and Europe.  But they have the virtue of clarity.  And they send a good message to the rest of the world, where countries including China, India, Russia, Vietnam, and Malaysia have either proposed or adopted data localization rules, despite WTO commitments that indirectly forbid this.  Making data flow principles explicit in TTIP would send the message that the US and the EU intend to keep their markets open for data flows and the rest of the world should too.

Mark MacCarthy, Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology.

Intellectual Property Roundup

Publishers File Appeal in Lawsuit Against Used eBook Website (The Digital Reader)
The legal woes of the used ebook site Tom Kabinet continued as publishers filed an appeal of the July injunction which declared the site legal.

Publishers Win Reversal of Court Ruling That Favored ‘E-Reserves’ at Georgia State U. (The Chronicle of Higher Education)
The 11th Circuit Court of Appeals issued its long-awaited ruling in the Georgia State e-reserve case, in which the court reversed a lower court’s fair use finding and remanded the case with instructions for further consideration.

Google Imposes New Penalty on Pirate Sites in Search Results (GigaOM)
Google is taking new measures to punish sites that host pirated content by pushing them further down its search listings.

Former Google Lawyer Lee Nominated to Run Patent Office (Bloomberg Businessweek)
Former Google lawyer Michelle Lee is being nominated to run the U.S. Patent and Trademark, after having left Google in 2012 to run the patent office’s Silicon Valley outpost and being elevated to deputy director of the full agency in January.

Getty Fails to Get Injunction on Microsoft Image Widget (Reuters)
Getty Images failed to convince a federal judge to halt Microsoft Corp’s Bing Image Widget, which it said enabled massive copyright infringement, because the software company had already taken it down voluntarily.

What Happens to Tech Policy if Republicans Take the Senate? (The Washington Post)
A look at how a change in power in the Senate could shake up the tech policy landscape.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA. Follow Keith on Twitter at @keithkup and sign up for the Intellectual Property Roundup weekly newsletter here.

Brookings Describes Critical Role of U.S.-EU Data Flows

Data flows between the U.S. and Europe are significant drivers of trade and investment.  For this reason, it is critical that leaders on both sides of the Atlantic get data flow policy right – adopting measures that promote data flows while ensuring that privacy, cybersecurity, law enforcement and national security equities are respected.

Today, the Brookings Institution is hosting an event to highlight a new report authored by Joshua Meltzer on “The Importance of the Internet and Transatlantic Data Flows for U.S. and EU Trade and Investment.”

This discussion is both vitally important and timely. Critical components of the effort to improve the data flows framework are represented in a number of ongoing U.S.-EU dialogues, including but not limited to the U.S.-EU Safe Harbor Framework, Mutual Legal Assistance Treaty reform, Transatlantic Trade and Investment Partnership negotiations, and the U.S.-EU umbrella agreement negotiations on law enforcement cooperation.

As these and other efforts progress, transatlantic policymakers should pay close attention to the five principal takeaways from the Brookings report.

First, data flows are mutually beneficial.  In 2012, the United States exported $140.6 billion in digitally-deliverable services to the European Union.  That same year, the EU exported to the U.S. $106.7 billion worth of digitally-deliverable services.

Second, the U.S. and the EU are globally competitive exporters of digitally-deliverable services.  In 2012, the European Union ran a $168 billion trade surplus with the world in this category.  The U.S. trade surplus was $150 billion.

Third, data flows between the United States and the European Union are so significant that the two partners have it within their power to influence how data flows will be considered all over the world.  This opportunity should be seized as data flows are a source of badly needed economic growth.

Fourth, “the majority of growth in transatlantic data flows will be generated by commercial and research needs.”  Indeed, already today almost 40% of data flows between the U.S. and EU are over business and research networks.  European firms such as BMW, Dassault Systems, and SAP are examples of this phenomenon.

Fifth, the potential for growth is particularly strong as the Internet of Things increasingly becomes a reality.  Given the EU’s $125 billion trade surplus with the U.S. in goods, data flows originating from Europe will likely increase.

Brookings has made an important contribution to our understanding of the economics of data flows.  It is our hope that this report and today’s event will help policymakers understand the mutual importance of those flows and guide their leadership in setting policy.

Carl Schonander is Director of International Public Policy at SIIA.

SIIA Applauds Move to Bring Permanent Leadership to PTO with Nomination of Michelle Lee

SIIA today welcomed the nomination of Michelle Lee to be the director of the U.S. Patent and Trademark Office (PTO). SIIA Vice President of Public Policy Mark MacCarthy issued the following statement:

“We are very thankful that the PTO is now likely to get permanent leadership, which is essential to meeting the multitude of challenges facing the business community.  Intellectual property issues are increasingly vital to the software and digital content industries, and critical to making certain America continues to be the world’s leading innovator. Lee is a well-regarded IP professional who will bring intelligence and needed leadership to this important role. We look forward to her successful confirmation by the Senate and to working closely with her in her new position.”

Sabrina Eyob is the Public Policy Coordinator at SIIA. Follow the Policy team on Twitter @SIIAPolicy.

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