Supreme Court to Review Access to State Data
At a time when there are overwhelming reports citing the opportunities of data to revolutionize how we do business, communicate and live our lives, there is a major battle taking place in the courts regarding access to state public records information. As surprising as it may seem, the case of McBurney v. Young promises to determine whether a state may preclude citizens of other states from accessing public records that the state affords its own citizens. Last Friday, the Supreme Court agreed to hear an appeal of the case. In August, SIIA joined with a Coalition of companies and association in filing a brief urging that a state’s restriction of access to public data is violation of Constitution’s commerce clause and would have a chilling effect on the flow of critical public records data and the innovation that can be derived from them. Read more on SIIA’s Digital Discourse Blog.

White House Reportedly Moving Forward with Cyber EO
In a meeting with key Senate Committee staff last Friday, Administration officials discussed the potential for moving forward with a cybersecurity executive order (EO) to establish standards or guidelines for critical infrastructure providers. As previously reported, the most likely approach is to require regulatory agencies, such as the Federal Energy Regulatory Commission, to actively help develop standards, possibly making them mandatory in cases where regulation is authorized.

While continuing to stress that an EO would not alleviate the need for comprehensive privacy legislation, the meeting provided an opportunity for the Administration to begin seeking input from Congress and the private sector. Senate proponents of cybersecurity legislation, including Majority Leader Harry Reid (D-NV) and Sen. Joseph Lieberman (I-CT) and others have signaled support for this approach, while also reiterating that it doesn’t alleviate the need for legislation. While the timing and details are clearly still under consideration, it seems more a matter of “when and how” the Administration will proceed with an EO, rather than “if” they will do so.

NTIA to Convene Fourth Mobile Privacy Meeting Next Week
Several months into the ongoing multistakeholder discussions to develop a code of conduct for mobile transparency, NTIA has kept true to its commitment to be a hands-off convener, steering clear of substantive engagement in the process. Since a declaration in late August that the third meeting would mark a “turn to substance,” there have been a series of briefings that looked at the issue from a high level, and fell short of substantive discussion many engaged stakeholders have been seeking. However, the biggest shift to substance so far came in the form of a discussion draft for a mobile app transparency code of conduct circulated by Venable LLP at one of the September briefings. So while the discussions on substance have yet to take place, there’s still hope that the long awaited “shift to substance” will take place at the meeting next week.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.

In the Cloud: Euro Cloud Strategy Released, U.S. Senator Drops Bill
Last week, the European Commission (EC) released its long-awaited cloud strategy “Unleashing the Potential of Cloud Computing in Europe,” a mixed-bag for cloud computing in the EU. On one hand it is a pro-cloud declaration, highlighting the EC’s recognition of cloud computing’s opportunities to help policymakers come to grips with the policies needed to foster this new development. However, some parts of the Commission’s communication continue to conflict with what SIIA warned against in its Guide to Policymakers last year, treating cloud computing as a discrete entity that is potentially subject to specific government regulation in many key areas. Read more on SIIA’s Digital Discourse Blog.

On the U.S. front, Sen. Klobuchar (D-MN) introduced cloud computing legislation that has been in the works for years as well. The bill, introduced just prior to Congressional recess, is scaled-down from working drafts circulated over the last couple years. The primary thrust is to address unauthorized access to cloud computing services. Additional provisions in the bill would encourage negotiations among the U.S. and other countries to establish consistent laws for privacy and cross-border data flows, and require federal agencies to regularly provide IT and cloud procurement forecasts to Congress.

Similar to the EU Strategy, the draft legislation draws an unnecessary and unhelpful legal distinction around “cloud computing,” threatening to create an environment where “cloud computing” enjoys different — in this case strong — protection than other IT offerings not meeting the definition.

SIIA Calls for More Trademark and Copyright Protections for New Domain Names
In comments filed with ICANN (Internet Corporation for Assigned Names and Numbers) last week, SIIA called for more intellectual property (IP) safeguards before any new generic top level domain (gTLD) applications are approved. Under the new program, trademark and copyright owners will be forced to expend significant resources and time to protect their intellectual property on thousands of new domains. Specifically, SIIA continues to stress the need for registries (the gTLD applicants) that are approved by ICANN put in place greater safeguards to protect against piracy and counterfeiting — this is especially true for domain names that are targeted toward software and information products and brands. Establishment of a clear process for complaints and systems for ensuring that domain information is accurate and publically available are the minimum levels of protection that rights holders deserve under this new program. Read more on SIIA’s Digital Discourse Blog.

SIIA Continues on China’s Trade Practices at Issue at USTR
Last week, SIIA filed comments with the United States Information Technology Office (USITO) in China, in the annual review of China’s compliance with its accession commitments to the World Trade Organization (WTO). As a follow-up, SIIA Public Policy VP Mark MacCarthy will be testifying on behalf of SIIA and USITO at the USTR’s hearing on these issues on October 3rd, focusing on the issues of intellectual property enforcement, utility model patents, services invention remuneration and Internet regulation. His oral testimony is here.

SIIA Urges Advertisers to Move Forward on Do Not Track
As the World Wide Web Consortium (W3C) prepares to meet this week to continue discussing the key technical details of what a “Do not Track” (DNT) flag should mean and how web site and advertising operators should respond to it, there are considerable questions about whether the current disagreements among stakeholders will be resolved. As customers should be told clearly what they can expect from DNT, SIIA is urging the Digital Advertising Alliance (DAA) to take action to break the logjam at that is threatening to derail the promising initiative that is DNT. Read more on SIIA’s Digital Discourse Blog.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.

SIIA Comments to FTC: COPPA Rulemaking Goes Far Beyond Congressional Intent; Will Harm American Innovation

SIIA filed with the FTC on Monday in response to the Revised Notice of Proposed Rulemaking (NPRM) regarding the COPPA rule issued in early August. While many SIIA members operate outside the scope of COPPA because of its narrow application of sites and services “directed to children,” the new proposed rule presents a significant expansion of COPPA, resulting in a broad regulatory framework that could stifle innovative Internet-based offerings, not just for sites and services directed at children under 13, but much more broadly to affect all SIIA members.

Our comments convey these concerns and make recommendations regarding the proposal’s inappropriately broad expansion of the statute’s definition of “personal information,” combined with the increasingly broad definitions of “operator” and “web site or online service directed to children,” along with the new “reason to know standard” and requirement for “child-friendly mixed audience” sites and services to age screen. Read more.

SIIA Weighs in on China’s Trade Practices at Issue at USTR

Also Monday, SIIA filed the comments with the United States Information Technology Office (USITO) in China, in the annual review of China’s compliance with its accession commitments to the World Trade Organization (WTO). The review is held by the United States Trade Representative (USTR), providing USITO and its members an effective means to recognize areas where progress has been made, to raise issues of concern and suggest approaches to resolve areas of disagreement with China’s government over implementation of its WTO agreements.

The comments cover a broad range of concerns on the part of the US tech industry aimed at improving trade and investment in China, including China’s indigenous innovation policies, intellectual property rights, market access and technical barriers to trade, national treatment, communications services and commercial Internet regulations. In conjunction with the comments, SIIA Public Policy VP Mark MacCarthy will be testifying on behalf of SIIA and USITO at the USTR’s hearing on these issues on October 3rd. Read more.

China’s Utility Model Patent System: A Perfect Storm for Patent Trolls

In testimony before the House Subcommittee on IP last week, Victoria Espinel, the US Intellectual Property Enforcement Coordinator highlighted “unexamined utility model patents” as a problem in the Chinese patent system.

Chairman Bob Goodlatte also raised the issue in his opening statement, noting that it is “problematic” when “a country grants many low-quality or “junk” patents to local companies, so that they can sue American companies and get rich quick. Many of these are utility model patents that go through minimal review and lack real inventiveness.”

It is good news that the Administration and the Congress are focusing on this. A recent Washington Post story highlights the problem. It looks as if China is about to recreate the patent troll problem we are struggling with here in the United States. The Post story puts the problem this way: “Small companies that take on bigger firms in questionable patent cases have become known here as “patent cockroaches,” a play off the U.S. term “patent trolls,” used to describe companies that make money primarily by hoarding flimsy patents and suing others.” Read more.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.

The 112th Congress is moving quickly this week to adjourn to the campaign trail. Therefore there are only a couple days left before the “lame duck” session following the election when Congress is expected to revisit major tax and budget issues. For now, the Hill will see one last flurry around issues of interest to SIIA members:

Cybersecurity ball officially in Administration’s Court
On the cybersecurity front, high expectations for legislation to advance at the beginning of the year have given-in to the increased likelihood that the ball is now in the President’s court. While the congressional recess doesn’t mark the official death of cybersecurity legislation for 2012 or beyond, indications are that the White House will use an executive order as the next step and leave open the possibility for continued legislative talks on cybersecurity legislation to fill in the gaps that exceed the President’s authority.

Specifically, a letter made available late last week from U.S. National Security Adviser John Brennan confirmed that the White House is “determined to use existing executive branch authorities” to accomplish key cybersecurity goals. In the letter, Brenan also confirmed the direction that the Administration is “exploring an Executive Order to direct executive branch departments and agencies to secure our nation’s critical infrastructure by working with the private sector.”

While continuing to voice support for legislation to address cyber info. sharing between the government and private sector and reform FISMA, the door has been left open for legislative talks to continue, just not any time soon.

House to Explore Int’l IP Enforcement
This Thursday, the House Judiciary Committee will hold as its final hearing, a session exploring “International IP Enforcement: Opening Markets Abroad and Protecting Innovation.” The hearing will feature testimony and Q&A with White House IP Enforcement Coordinator Victoria Espinel, and is expected to focus on the continuing IPEC efforts to increase enforcement against copyright infringement both through direct law enforcement and through voluntary cooperation among industry players. The state of patent and copyright enforcement in China is also expected to be reviewed.

Senate Follows House Lead on Internet Governance
On Wednesday, the Sen. Foreign Relations Committee will consider a bipartisan resolution sponsored by Marco Rubio (R-FL) condemning efforts by various countries to control the Internet and urging the Obama administration to oppose these actions. The resolution mirrors a similar resolution sponsored by Rep. Mary Bono Mack (R-CA) that passed the House earlier this year by a vote of 414-0, and is on an inside track to be adopted by the Senate in the near future.

Senate Judiciary Cmte. to Consider ECPA Amendment
And at the final markup for the Senate Judiciary Committee, Chairman Patrick Leahy (D-VT) intends to offer an amendment to video privacy legislation that would level the playing field for access to information stored electronically by amending the Electronics Communication’s Privacy Act to require the government to obtain a warrant in order to compel service providers to disclose the content of emails, texts or other private material stored by the service provider on behalf of its users. While the outlook for both the underlying bill and the ECPA amendment are unclear, this is another step forward in the ongoing campaign to update ECPA to accommodate cloud computing.

The DPR has been on a hiatus the last couple weeks for August vacation. Despite summer vacations, congressional recess and now the Republican Convention, much work continues on IP and Privacy fronts:

FTC Extends COPPA Comment Deadline Two Weeks

The FTC announced yesterday that it will extend the comment deadline on proposed changes to the Children’s Online Privacy Protection Act (COPPA) rule from Sept. 10th to Sept. 24th. As we reported at the beginning of the month, the FTC released a Supplemental Notice of Proposed Rulemaking (NPRM) on August 1st, highlighting additional changes from the NPRM released in 2011. SIIA commented on the initial rulemaking and we are reviewing and seeking member input for our comments on this recent NPRM.

Senate Still Working on Cyber Compromise, While Obama Administration Considers Administrative Action

The collapse of the cybersecurity legislative process at the beginning of August has left the hopes of cybersecurity legislation dim for 2012. However, discussions have continued throughout the month between Senators and key congressional staff. With only a handful of legislative days left in the 112th Congress next month, followed most certainly by a yet to be determined “lame-duck” session in December, time is of the essence. So while cybersecurity legislation is not to be completely ruled out, there are still many unresolved issues that need to be addressed in a short amount of time.

Meanwhile, the Obama administration is reportedly mulling the option of pursuing the issue via executive orders to advance priority items such as voluntary critical infrastructure protection, reforms to FISMA, implementation of cyber R&D programs, and to provide incentives for enhanced public private information sharing. However, there remain significant hurdles and a lack of authority in many key areas that continue to make cyber a longshot.

Two Main Goals Announced for NTIA Privacy Meeting Tomorrow

On Tuesday the NTIA is proceeding with the third meeting in its multistakeholder process to develop a voluntary code of conduct for mobile app transparency will have its third meeting. In advance of the meeting, NTIA Privacy Initiatives Director John Verdi blogged today about the two main goals of the meeting that cover both process and substance: (1) stakeholders will develop an initial priority list for substantive elements that might be included in a code of conduct for mobile application transparency, and (2) stakeholders will propose concrete procedural steps that the group can take to implement the top priority substantive elements.

PTO Publishes Final Patent Reform Rules

Earlier this month the PTO published final rules to implement various provisions of the America Invents Act (AIA), which will become effective on September 16, 2012. The rules address numerous topics, including: (1) inter partes review proceedings and post-grant review proceedings; (2) inventor’s oath or declaration provisions; (3) supplemental examination provisions of the AIA and reexamination fees; (4) PTO patent trial practice guide; (5) rules of practice for trials before patent trial and appeal board and judicial review of decisions, and (6) transitional program for covered business method patents and definitions of covered business method patent and technological invention. These follow other previously published final rules implementing other AIA provisions.

USTR Seeks Comments on “Notorious Markets” for Pirated and Counterfeits Goods

On August 14th, the Office of the U.S. Trade Representative (USTR) issued a notice seeking public comment for its review of “notorious markets” that violate U.S. intellectual property rights. The notorious markets review lists examples of Internet and physical markets that have been the subject of enforcement action or that may merit further investigation for possible intellectual property infringements. The deadline for submitting written comments is September 14th. Last December USTR identified 34 markets as prominent examples of sites in which pirated or counterfeited goods were available. This is the third straight year that USTR is conducting the notorious markets review as an “Out of Cycle Review” separate from its annual Special 301 report (the list had previously been part of the annual Special 301 report).

SIIA Submits Comments to IPEC on Joint Strategic Plan

Earlier this month, SIIA submitted comments to the Intellectual Property Enforcement Coordinator (IPEC), in response to a request for input on the new Joint Strategic Plan on Intellectual Property Enforcement. SIIA’s comments include an analysis of the threat posed by IP violations on the U.S. economy and recommendations for improving the U.S.Gov. IP enforcement efforts.

For SIIA policy updates including upcoming events, news and analysis, subscribe to SIIA’s weekly policy email newsletter, Digital Policy Roundup.

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