Digital Policy Roundup: Senate Cmte. Passes Communications Privacy, Looks to Mobile Privacy, Trade Talks Continue on TPP

Senate Cmte. Passes Communications Privacy, Looks to Mobile Privacy This Week

Last week, the Senate Judiciary Committee passed Chairman Leahy’s (D-VT) ECPA reform legislation (Electronic Communications Privacy Act) with strong bipartisan support. The revised proposal passed with minimal amendments, in what was a huge victory for SIIA members and a wide range of supporters, as it was the first official strong bipartisan showing of support for legislation to level the playing field for access to remotely-stored email and electronic communications. While the next step for the legislation is uncertain in the waning days of the 112th Congress, at minimum it provides an excellent starting point for enacting legislation next year.

Continuing to move forward with targeted privacy proposals, Chairman Leahy has scheduled a markup of the Location Privacy Protection Act of 2011 (S.1223), legislation that would require app providers to seek affirmative “opt-in” consent from consumers before using their location information. This is another proposal that is unlikely to advance this year, but it is likely to draw broad support and put additional pressure on the NTIA-led multistakeholder discussions that have been ongoing since July.

Major Trade Talks Continue with Little Fanfare, Overshadowed by World Telecom Conference

While much of the world is focused on the World Conference on International Telecommunications (WCIT) taking place in Dubai this week, the 15th round of the Trans-Pacific Partnership (TPP) talks launched yesterday, where officials from the 11 countries participating in the negotiations will try to move toward the goal set by some TPP leaders last month of completing the deal by the end of next year. Intellectual property rights are one of the key issues of interest to the technology community during the ongoing trade talks.

Additionally, in the multilateral arena, World Trade Organization members this week will engage on a wide range of topics, including government procurement, the status of the Doha round and the race to select a new WTO chief. Current Director-General Pascal Lamy will step down next September, and Dec. 1 marked the date WTO members could begin formally submitting names for candidates to succeed him.

SIIA Internet Governance Event This Week

Just a reminder, this Thursday, Dec. 6, SIIA is cosponsoring an event with GW University and several other groups to examine how countries use trade policy to advance cross border information flows, and how these trade discussions could impact Internet freedom. SIIA’s Mark MacCarthy will moderate a panel on the challenges associated with IPR, Privacy and Internet Freedom.


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.

SIIA Digital Policy Roundup: Look ahead on Privacy, IP, Cybersecurity and Net Governance

With Election Day and the Thanksgiving break in the rearview mirror, the next four weeks are looking to be action packed in Washington. And while the “fiscal cliff” discussions are expected to suck a lot of air out of the town, there’s a lot going on in the tech policy world, with a significant focus on privacy, intellectual property protection, cybersecurity and Internet Governance. Here’s a look forward in these areas:

Busy Weeks Ahead on the U.S. Privacy Front

First up for privacy is the Senate Judiciary Cmte. makup of ECPA reform legislation (Electronic Communications Privacy Act) this Thursday. In advance, Chairman Pat Leahy (D-VT) released a revised managers amendment last night, which makes significant improvements from previous drafts from the Chairman that proposed to substantially weaken the underlying legislation. Still, there is much uncertainty around the level of support among Committee members and potential amendments.

Next is the 6th NTIA multistakeholder meeting on Friday, where discussions will continue on industry-led proposals regarding “short form notices” and a comprehensive code of conduct. Hopes are that the progress initiated at the October Meeting will continue to move the discussions forward.

Finally, the FTC will hold a workshop on “Practices, Privacy Implications of Comprehensive Collection of Web Data,” an all-day event that will bring together consumer groups, academics, industry representatives, privacy professionals, and others to “examine the technological landscape, benefits and risks, consumer knowledge and attitude, and the future of comprehensive data collection.”

This heavy dose of privacy focus by legislators and regulators will end 2012 similar to how it began, and could possibly also include final revisions to the COPPA Rule, expected to be released by the FTC at some point in the near future.

Developments in the Patent Policy World

After a rousing speech last week that provided a strong defense of the US patent system, USPTO head David Kappos yesterday formally announced his resignation effective at the end of January. In what now looks to be his swansong, Kappos listed a number of improvements USPTO is making to deal with issues such as patent quality and clarity, including third party submissions on prior art and the post grant review process.

Despite the turnover at the PTO, there remains a persistent heavy focus on patent policy. Notably, the FTC and DOJ will be jointly hosting a workshop on Dec. 10th, focused on Patent Assertion Entity Activities. And as announced by Kappos last week, the PTO will hold a roundtable on Jan. 11th (details TBD), on requiring disclosure of the real party in interest for published applications and issued patents — a critical issue for dealing with patent quality and patent trolls.

With Cyber Ball in the President’s Court , Congress still focused on Cyber Funding

Shortly after returning from the election recess, the U.S. Senate vote to proceed with comprehensive cyber legislation once again came up hort. The failed vote officially puts the ball in the President’s court, where the Administration continues to explore opportunities of an Executive Order to strengthen protection of the Nation’s critical infrastructure and improve cyber information sharing. In the meantime, with extensive Federal budget cuts potentially on the horizon as part of the looming budget deal, there has been broad recognition in Congress and the Administration that funding for cybersecurity should not be impacted.

Internet Governance

All eyes around the World are still on Dubia for the upcoming World Conference on International Telecommunications (WCIT) Conference, where government officials from around the world will gather to revise a treaty that could have a major effect on the future of the Internet. The Hill provided a thorough overview of the key issues and what’s at stake.

On December 6, SIIA is sponsoring an event with GW University and several other groups to examine how countries use trade policy to advance cross border information flows, and how these trade discussions could impact Internet freedom.

And on the ICANN front, there were several developments over the last 10 days relating to the program to roll out of new domain names, including: (1) the ICANN Board of Directors issued a resolution directing ICANN’s CEO to launch a new effort to re-examine the purpose of collecting, maintaining and providing access to gTLD registration data in the Whois database; (2) discussions around potential changes to Rights Protection Mechanisms (RPMs), and (3) the Government Advisory Committee (GAC), which provides advice to ICANN on issues of public policy, filed 242 individual “Early Warnings” on 200 new gTLD applications which account for 162 unique strings.


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.

FTC Settles Web Tracking Case, SIIA Testifies on Personalized Learning and Rebuts Cloud Enviro Criticisms

The FTC Announces Settlement with Web Tracking Company

The FTC announced yesterday that it has settled a case filed against market research company Compete, Inc., on the grounds that it deceived consumers and failed to safeguard consumers’ sensitive data. If accepted, the settlement would resolve a Federal Trade Commission complaint charging Compete with deceiving users by failing to reveal its broad data collection practices, and it would hold Compete from misrepresenting its data collection and security practices in the future and lock the company into biennial audits for the next 20 years.

FTC’s settlement outlines the charges against Compete for distributing software, including a browser toolbar, that offered users the chance to learn about the Web sites they visited, without providing a fair and full disclosure of “the full extent of data collected through tracking software.” In bringing the case, the FTC alleged that the collection of data such as credit card numbers, security codes, expiration dates, SSNs, and other information entered by consumers at various web sites , without adequate notice, constitutes a “deceptive” practice and therefore covered by the Commissions Sec. 5 authority. The case also charged Compete on a range of data security failures, including failure to remove PII before transmitting and failure to provide reasonable and appropriate data security and failure to design and implement reasonable safeguards to protect consumers’ data; and failed to use readily available measures to mitigate the risk to consumers’ data.

As always, FTC settlements provide parameters for companies regarding practices that are NOT acceptable to federal privacy regulators under current law.

SIIA Testifies Before NY Education Reform Commission, Calls for Personalized Learning through Technology

On Oct. 16, Mark Schneiderman testified before the New NY Education Reform Commission, a group appointed by NY Governor Andrew Cuomo to study and make recommendations for the reform and improvement of the state’s education system. In his testimony, Mark submitted a comprehensive vision for redesigning education to personalize learning through technology and made dozens of recommendations around each of the Commission’s seven proposed objectives. In general, SIIA agrees with the Commission that, Future generations of students cannot compete unless we dramatically reform our education system. Read more on SIIAs Digital Discourse Blog.

SIIA Rebuts NYT Enviro. Criticism of Cloud Computing Data Centers

Last week SIIA provided a rebuttal to James Glanz’s recent New York Times series on the perceived energy waste of data centers. The rebuttals focused on three key reasons why cloud computing is actually good for the environment. First, large data centers are more efficient than distributing the same computing power over many more small or medium-sized centers. Second, the transition to tablets and smartphones equipped with cloud computing access means less energy needs for devices. Finally, companies like Oracle, Adobe, and IBM are devoting their considerable resources to sustainable computing practices, and this trend will only increase as they continue to work to make data centers more efficient and clean. While green practices must be taken into consideration as our society becomes increasingly dependent on technology, pointing the finger at data centers is looking at cloud computing from the wrong perspective. Read more on SIIAs Digital Discourse Blog.

Mobile App. Transparency Discussion Moves to Substance

As we had anticipated and hoped, the NTIA-led multistakeholder discussion on mobile app. transparency did indeed take a turn to substantive discussion after months of talking around the edges and broad disagreement between consumer groups and industry. In what was stark contrast to previous meetings, the discussion last Tuesday led to significant agreement around process and foundation for defining what types of information collection require transparency, beginning a discussion based on existing examples of what a “short form” notice might look like, and even a tentative agreement on what a “mobile app.” means in this context. Of course, it was just one meeting, and the agreement was around mainly process and vague examples and definitions, but it was quite encouraging none the less. SIIA is continuing actively participating on the working groups on behalf of members and the industry.


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.

SIIA Testimony to NY Education Reform Commission Calls for School System Redesign to Personalize Learning through Technology

I had the opportunity yesterday to provide invited testimony to the “New NY Education Reform Commission” appointed by NY Governor Andrew Cuomo to study and make recommendations for the reform and improvement of the state’s education system. My submitted written testimony describes a comprehensive vision for redesigning education to pesonalize learning through technology, and then makes dozens of reccommendations around each of the Commission’s seven objectives.

My October 16 oral testimony is provided below and video archived (at 02:02:40):

On behalf of the Software & Information Industry Association (SIIA) and our 500 high-tech companies, thank you for inviting me today. I am Mark Schneiderman, SIIA’s senior director of education policy.

SIIA agrees with the Commission that, “Future generations of students cannot compete unless we dramatically reform our education system.”

Our industrial-age education practices are largely unchanged over a century or more:
- Too many students are disengaged, not due to lack of technology, but from undifferentiated resources, rote one-to-many instruction, and lack of attention to 21st century skills.
- Time and place are constants, but learning is variable.

Instead, our education system must be fundamentally reengineered from a mass production, teaching model to a student-centered, personalized learning model to address the dramatic change in student daily lives, diversity and expectations.

The mandate is not for marginal change, but for: redesign to free learning from the physical limitations of time, place and paper; and instead customize instructional resources, strategies, and schedules to dynamically address each student’s unique abilities, interests and needs.

The redesign of education can take place without technology and digital learning, but not at scale.  Technology is a teaching force multiplier and a learning accelerator.

This doesn’t mean computers replace teachers, or that all learning takes place online.

It does mean that we use the technology:
1. to collect and analyze extensive student learning data to a degree not otherwise possible;
2. to provide a differentiation of interactive, multimedia teaching and learning resources and student creativity and collaboration tools not possible from one teacher, book or classroom; and
3. to free teacher time from rote and administrative activities to redirect to more value-added instruction.

The result is a more effective teacher, a more highly engaged and better performing learner, and a more productive system.

SIIA’s 2012 Vision K-20 Survey of 1,600 educators found that interest in digital learning is high at about 75%, but only about 25% rate actual technology access and use as high by their peers and institutions.

Here are 10 SIIA recommendations to the Commission and state:

1. Eliminate the Carnegie unit (credit for seat time) as the measure of learning and replace it with a competency-based model that provides credit, progression and graduation based upon demonstrated mastery and performance.

2. Eliminate fixed, agrarian-age definitions of the hours of the school day and the days of the school year and instead provide flexibility for 24/7/365 learning as needed for student mastery.

3. Ensure all teachers have access to a minimum slate of digital tools and supports provided to other professionals, including instructional technology coaches and virtual peer learning networks.

4. Ensure all educators have the skills needed to personalize learning and leverage technology, including by updating the curriculum of teachers colleges as well as teacher licensure and certification requirements.

5. Encourage and support a shift from print-only curriculum to instead provide students with anytime, everywhere access to interactive digital content and online learning.

6. Create a statewide online learning authority for approval and oversight of virtual learning providers to New York students and schools, and loosen arbitrary limits.

7. Invest to ensure equity of technology and digital learning access to change the education cost-curve and provide opportunity to learn, while providing increased local flexibility in the use of state grant funds to meet unique local needs.

8. Set minimum expectations for school/teacher electronic communication with parents and families and support home access to student performance data, assignments and curriculum.

9. Support more flexible higher education policies that end seat-time requirements, allow students to demonstrate prior learning and complete course modules that fit their learning gaps, and receive student aid for study toward skills certifications valued in the job market.

10. Finally, recognize the role of the private sector, which invests hundreds of millions of dollars each year to develop and deliver educational technologies and digital learning. Support public-private research partnerships, and reform the RFP process to enable the private sector to share their expertise, vision and innovative business models.

Our nation’s continued success will require that our educational system adopt modern methods and means to remain not effective and relevant in the 21st century.

On behalf of SIIA and our member high-tech companies, I look forward to working with the Commission to further identify and advance a reform plan for New York education.


Mark SchneidermanMark Schneiderman is Senior Director of Education Policy at SIIA.

FTC Announces Online Privacy Workshop on Consumer Data, U.S. Internet Governance Delegation Formed, Update on Proposed Net Traffic Proposal, and more

FTC Announces Online Privacy Workshop on Consumer Data

The Federal Trade Commission announced on Monday that it will host a workshop in December to explore the practices and privacy implications of comprehensive collection of data about consumers’ online activities. The Workshop follows up on the FTC’s March 2012 report, Protecting Consumer Privacy in an Era of Rapid Change, which called on companies handling consumer data to implement recommendations for protecting consumers’ privacy, including privacy by design, providing simplified privacy choices to consumers, and greater transparency to consumers about data collection and use. The FTC is encouraging consumer protection organizations, academics, business and industry representatives, privacy professionals, and other interested parties to attend, and has solicited input for specific topics and requests to participate in panels. SIIA will submit a request to participate in this workshop.

U.S. Internet Governance Delegation Formed, Update on Proposed Net Traffic Proposal

The U.S. has fully formed its delegation to the World Conference on International Telecommunications (WCIT), consisting of 100 members from government, industry and civilians, with representatives from the Defense and Commerce departments, the FCC, FTC and NTIA, he said. Industry representatives come from both the telecom and Internet industries. Mark MacCarthy, Vice President of Public Policy at SIIA and adjunct professor in Georgetown University’s Communication, Culture and Technology Program, has been named to serve as a member of the U.S. Delegation to the WCIT.

Other recent announcements from WCIT Ambassador Kramer include an update that the European Telecommunications Network Operators’ Association (ETNO) is likely to withdraw its controversial Internet traffic compensation proposal, but is now considering another proposed revision to the International Telecommunication Regulations (ITRs) that would, among other things, establish a “sender-party-pays” model for Internet traffic compensation that could require the sender of any Internet content to pay for its transmission.

Publishers, Google Settle Book Dispute

On October 4th, several book publishers (McGraw-Hill, Pearson Education, Penguin Group, John Wiley & Sons, and Simon & Schuster) and Google announced that they had settled their seven-year dispute over copyright infringement issues relating to Google’s book search program. While the announcement says that Google “acknowledges the rights and interests of copyright-holders,” it is silent as to the terms of the settlement, and more specifically Google’s views on whether unauthorized scanning and indexing of works constitutes fair use. The announcement did state that, under the settlement, a publisher may opt to have Google remove its works from the Google Book Search database and those publishers that choose to keep their works in the database may request copies of electronic versions of their works from Google. It is unclear if there was any payment made by either party as the terms of the agreement are confidential, and because the deal is a private settlement, there will be no public settlement document. The announcement also said that the settlement need not be approved by the court. Although the publishers have now settled, the Authors Guild has continued their suit against Google as a class action suit.

Senate Leader Confirms Cyber Will Again Come up in Nov.

Senate Majority Leader Harry Reid (D-NV) confirmed over the weekend [ http://thehill.com/blogs/hillicon-valley/technology/261891-reid-vows-fresh-bid-to-pass-stalled-cybersecurity-bill ] that the Senate will again consider cybersecurity legislation (The Cybersecurity Act, S. 3414) when it returns for its “lame duck” session in November. The legislation failed to garner the necessary 60 votes to advance in August, but supporters appear optimistic that the less politicized environment and looming threat of the Administration’s executive order on cybersecurity will help garner additional support from Republicans. Of course, any speculations about the outcome of that process should be held until after the elections, as changes in administration or congressional leadership in either body could have a significant effect on the lame duck strategy.

SIIA Federal Cloud Survey Goes Live

Last week SIIA’s Public Sector Innovation Group launched its inaugural Federal Cloud Survey, seeking to aggregate data on the federal government’s progress in adopting cloud computing, mobile technologies, and data center consolidation. Federal government IT professionals are encouraged to have their voice heard by responding to the survey, which can be found here. The findings of the survey will be published as part of SIIA’s Cloud/Gov Conference in Washington, DC on February 12, 2013. Learn more about Cloud/Gov here.

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.

Supreme Court to Review Data Access, White House Still Moving towards Cyber EO, and NTIA Mobile Privacy Meeting Next Week

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.


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.

In the Cloud: Euro Strategy and Senate Bill Unvelied, SIIA Calls for Copyright Protection for Domain Names and Continues to Press on China’s Trade Practices

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.


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.