DHS Releases Continuous Monitoring RFQ:  In cybersecurity news, DHS, working through GSA, released a final RFQ this week seeking bids to meet requirements  of the new Continuous Diagnostic and Mitigation program and for continuous monitoring as-a-service.  The BPA includes 15 tools and 11 task areas aimed at improving DHS’s IT security.  The BPA has an estimated value of $6 billion and responses are due January 28, 2013. Federal News Radio has the details.

PSIG Members Featured in 10^th Anniversary of the E-Gov Act Event:  This week marked the 10^th anniversary of the E-Gov Act and SIIA PSIG Members Doug Bourgeois of VMware, Mark Forman of Government Transaction Services and David Mihalchik of Google all were featured prominently in the event marking the anniversary.  Other SIIA members were included as well, including Dan Chenok of IBM and former Congressman Tom Davis, now of Deloitte.  C Span covered the event, which focused on the advances made in government technology since passage of the E-Gov Act.  See the video here.

 Appian Receives FISMA Moderate Certification from GSA:  Appian announced this week that it had received FISMA moderate certification from the General Services Administration for a major business process management application, built on Appian Cloud.  Appian Cloud is built on Amazon Web Services.  See the press release for more information.

Federal News Radio to host live chat with CBP CIO:  Our friends at Federal News Radio are hosting a live chat on January 3^rd at 11am with DHS Customs and Border Protection CIO Charlie Armstrong and are encouraging interested parties to submit questions in advance.  See the link for more details.

Michael Hettinger is VP for the Public Sector Innovation Group (PSIG) at SIIA. Follow his PSIG tweets at @SIIAPSIG.

The Right to Resell: A Ticking Time Bomb Over Digital Goods (paidContent)
With a conflict brewing over consumers’ rights to use platforms like ReDigi to resell their books, music and other digital property, libraries and companies are joining together to lobby for Digital First Sale rights.

Alibaba Group’s Taobao Removed From “Notorious Markets” List by U.S. (TechCrunch)
The U.S. government announced that it has removed China’s Taobao Marketplace from its yearly list of the world’s most “notorious markets,” a distinction Taobao earned for being rampant with pirated and counterfeit goods.

Anti-Piracy Chief Patents “Pay Up or Disconnect” Scheme (TorrentFreak)
One of the top executives of the U.S.-based anti-piracy outfit Digital Rights Corp has submitted a patent application for a system that will demand a fee from Internet users caught downloading copyrighted material.

U.S. Report Slams Russia’s VKontakte Over Copyright Infringement (RT)
A USTR report has accused Russia’s largest social network site of copyright infringement, claiming the site allows users to access and share copyright-protected content without right-holders’ permission.

Finishing up a very busy year on the privacy front, the Federal Trade Commission (FTC) today announced that it is initiating a study on the “Data Broker Industry’s Collection and Use of Consumer Data.” The Commission issued orders requiring nine “data brokerage companies” to provide the agency with information about how they collect and use data about consumers, and it will use the responses it receives to prepare a study and to make recommendations on whether, and how, the data broker industry could improve its privacy practices.

And the Commission announced that the much-anticipated revisions to the COPPA Rule, providing regulations for Internet sites and services directed towards children, will be released tomorrow. Stay tuned.

Data Broker Briefing Reveals Complex Data Ecosystem

Last week, in a briefing convened by the Congressional Privacy Caucus, co-chairs Ed Markey (D-MA) and Joe Barton (R-TX) explored the roles of “data brokers,” along with two chief regulators from the FTC, Chairman Jon Leibowitz and Commissioner Julie Brill. The briefing and discussion was wide-ranging, and if anything, it seemed to raise more questions than provide answers.

If there was one single over-arching takeaway for me, it was that there exists a very complex data ecosystem that includes consumers, businesses and governments, and it’s increasingly difficult to label entities for purposes of creating new laws and regulations. I have written a blog post summarizing the key themes I took out of this briefing at the SIIA Digital Discourse blog.

SIIA Calls for Legislation to Fight Patent Trolls

Last week, SIIA joined with several other trade associations to issue a formal call on Congress to enact legislation that provides more safeguards to prevent the economic and consumer harm caused by abusive patent lawsuits.

Although the America Invents Act was an effective first step in addressing the problem of abusive patent litigation by trolls, patent trolls continue to damage the economy, hurt America’s tech industry, and threaten innovation. In calling on Congress to do more, SIIA has outlined a specific proposal, which was articulated in the joint letter to congressional leaders, for legislation that would help address this problem. Read more on SIIA’s Digital Discourse Blog.

State Department Refutes Global Cloud Myths, Defends U.S. Providers

In early December, U.S. Ambassador to the European Union, William Kennard, addressed Forum Europe’s 3rd Annual European Data Protection and Privacy Conference, and responded to the myth that the U. S. system of government access to information is a threat to the privacy rights of citizens of the other countries. He was especially effective in rebutting concerns directed at cloud computing, where the misconception has developed that information stored in cloud computing servers can be accessed by the U.S. government without any effective privacy controls. This very welcome effort to refute false barriers to U.S. cloud providers was also accompanied the release of State Department white paper that dispels the misconceptions about the U.S. legal system and government access to information. While SIIA is a leading proponent of policy changes to better enable U.S. cloud providers to compete around the world, this strong defense of current U.S. policies and practices of U.S. cloud providers is a very helpful for alleviating many of the misperceptions that currently serve as a barrier in global markets. Read more on SIIA’s Digital Discourse Blog.

If there was one single over-arching takeaway for me, it was that there exists a very complex data ecosystem that includes consumers, businesses and governments, and it’s increasingly difficult to label entities for purposes of creating new laws and regulations. Following is a summary of key themes I took out of this briefing:

(1) There’s no broad agreement on the definition of “data broker.” The discussion did not include a clear articulation of what the lawmakers and regulators believe to be a data broker definition of exactly what is a “data broker,” which seems to be the key question before deciding on new policies. The best articulation was “an entity that collects data but which has no intersection w/ consumers directly.” While this may make sense on the surface, it quickly breaks-down when moving forward to craft rules for data brokers, because it clearly leaves open a wide range of entities that openly characterize themselves as brokers but also provide for direct interaction with consumers.

I wish we could put any discussion about new policies on hold until we can at least clearly know what we’re talking about as a “data broker.”

(2) It’s the “use” stupid. I was constantly reminded of the old refrain, “it’s the economy, stupid,” the now infamous phrase that explained ultimately why Bill Clinton would ultimately be elected President in 1992. If there is one thing that seems to enjoy broad agreement around data privacy, it’s that it is more important — and useful— to look at how a data is used, and the potential for harm, than it is to single out ill-defined entities and try to craft specific legal and regulatory roadmaps for their behavior. While, this was my takeaway and was surely shared by many other present at the briefing, it is the opposite of what leading lawmakers and regulators are thinking.

(3) The FTC will maintain a steady focus on “data brokers.” Regardless of the challenge in clearly defining data brokers, the FTC is sure they don’t like ‘em. As clearly articulated by Commissioners Leibowitz and Brill, the FTC will maintain a heavy focus on “data brokers” – as was a unanimous recommendation from the FTC’s Privacy Paper issued earlier this year. While they did recognize there are significant benefits provided by “data brokers,” they made the following pronouncements: (1) much more needs to be done on the transparency front, (2) industry needs to do more to articulate existing transparency mechanisms; and (3) the Commission is exploring “what can and should be done beyond merely enforcement” of existing laws.

(4) Reps. Markey and Barton will focus this conversation on children, then expand – As the bipartisan team leaders for increased privacy protection for consumers, Reps. Markey and Barton reiterated their commitment to continue moving forward with all deliberate speed in the next Congress, reintroducing their Do Not Track Kids Act (H.R. 1895) and promising to sign-on even more than the 45 cosponsors from the current bill. . While that is surely no surprise to anyone, they went further to effectively outline their strategy to use the conversation on children’s privacy, expand the current age qualification in COPPA, and use this as a gateway to adopting privacy laws more broadly beyond children.

(5) Transparency and industry leadership are key – Another theme that keeps coming up is the need for greater transparency and industry leadership in this area. Similar to the ongoing discussions regarding “mobile transparency,” industry can and will surely continue to improve practices in this area, or we’ll be building the case for regulators and legislators to step in.

His intervention is a welcome attempt to set the record straight before these erroneous beliefs become widespread and entrenched.  It was accompanied the release of State Department white paper that dispels the misconceptions about the U.S. legal system and government access to information.

The fact is that the U.S. has a well-developed and established system to protect individual liberties from government intrusion.  We have a general distrust of a powerful government and are suspicious of anything that advances the growth of government power.  Our bias is in favor of a limited government that lets people chose their own good in their own way.  As a result we are far less tolerant of government intrusion into our private lives than other countries, and have set up a system whereby the U.S. extends privacy protections to non-U.S. citizens as well.

At the same time, the U.S. is more tolerant of the use of information for innovative and productive use by businesses than other countries, to our great advantage in the race for economic growth, business development and job creation.  Our system of protecting the individual privacy in the business context shows that this can be done while maintaining strong and effective protections for consumer privacy. This system also respects the rights of non-U.S. consumers established in other privacy regimes.

None of this means that the U.S. system is perfect.  We think that steps can be taken to improve the consumer privacy system for mobile app notifications and are actively working with the U.S. Commerce Department and other stakeholders on a voluntary code of conduct and an effective system of screen notices.  We have joined with others in the Digital Due Process Coalition to modernize the 1986 U.S. Electronic Communications Privacy Act, which needs updating to fit the realities of email and document storage in the cloud.

But the need for these reforms does not suggest that the current U.S. system is a threat to privacy or justifies a move away from cloud computing as a way to avoid government scrutiny.  Ambassador Kennard is to be commended for his strong defense of the U.S. approach to privacy in the cloud.

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. Follow the SIIA Public Policy team on Twitter at @SIIAPolicy

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. Follow the SIIA Public Policy team on Twitter at @SIIAPolicy

Hurt Pirates by Targeting Their Ad Money, Says Rock Star (paidContent)
David Lowery, lead singer of the rock band Cracker, says the best way to fight piracy is to hurt the pirates in the pocket book by cutting off their ad money, and specifically by naming and shaming the advertisers who allow the pirates to make money.

Google: Copyright Removal Requests Spike to 2.5 Million Per Week (The Hill)
Google announced that the number of requests it receives each week to remove links to allegedly infringing websites has risen from 250,000 per week to more than 2.5 million per week over the past six months.

Content Delivery Booms: Outbrain Buys Firm that Brings Media to Brands (paidContent)
The way content is being passed around the internet is changing, with companies like Outbrain that are making it possible for businesses to access and host content without engaging in costly licensing negotiations or piracy.

BRICs Score Lowest on IP Protection Index (Reuters)
A new U.S. Chamber of Commerce index intended as a tool for U.S. policymakers to push for tough protections of U.S. intellectual property gave Brazil, Russia, India and China the worst scores for protecting intellectual property.

Abusive patent lawsuits from patent trolls are a tremendous blight innovation and entrepreneurship in our country. With The America Invents Act, Congress took an effective first step in addressing the problem of abusive patent litigation by trolls. Despite this important initial effort, patent trolls continue to damage the economy, hurt America’s tech industry, and threaten innovation. We’re calling on Congress to continue its work on this vital issue by enacting legislation that protects legitimate companies and innovators from misuse of the patent system.

SIIA has outlined a specific proposal, which was articulated in the joint letter to congressional leaders, for legislation that would help address this problem. Under today’s system, the patent troll business model is to make litigation as expensive and disruptive as possible, forcing legitimate and law-abiding companies to settle regardless of the merits of the case. The troll requests millions of documents through the discovery process–much of which is entirely irrelevant to the suit.  Because the patent troll has few, if any, documents to produce in discovery, they can do this with impunity.

The point of the troll’s action is not to achieve legal justice, but simply to  place an enormous burden on legitimate companies and give them little choice but to settle the case. SIIA’s proposed legislation would address this imbalance by shifting the discovery burden to the patent troll for any information over and above the core documentation that is essential to the merits of the case. By doing so, SIIA’s proposal will help protect legitimate companies from being bullied into settlements when patent trolls request millions of documents that are not actually needed in a patent lawsuit.

This proposal will disrupt a damaging and expensive litigation tactic: the abusive use of discovery to drive up litigation costs for the purpose of forcing settlements. Meanwhile, it will do nothing to curtail the rights of legitimate patent holders that are seeking to have their day in court.

Ken Wasch is President of SIIA.

Amidst broad expectations of a looming vote to finalize proposed revisions to COPPA. The basic conclusion of the Report is the lack of significant progress in addressing privacy concerns for children, which coincided with the Commission’s announcement that it has opened investigations into whether some of the apps had violated the law. Together, the pending COPPA Rule revision, the new Report and formal launch of investigations should serve as a very clear warning that the FTC will aggressively police the children’s app market.

And last week, the FTC held its long-anticipated Workshop on “comprehensive data collection,” an event that went well beyond looking at privacy issues around behavioral advertising, stretching the focus to much more complex data uses, going as far as to explore deep packet inspection. As articulated by FTC Commissioner Bill in her opening keynote, the Workshop’s goal was largely for the FTC to explore whether the Internet “data collection ecosystem” is “just a continuum, or are there bright lines that differentiate some from others.”

Discussions throughout the day revealed broad agreement among academics, industry representatives and regulators that data presents significant opportunities for businesses and users, and that policies should be technology neutral and harm must be better defined. But there were also very significant disagreements and open questions about the need for new policies and the role of regulators. The FTC opened the door on this discussion when it released its comprehensive Privacy Report earlier this year. With this workshop, they demonstrated that the door is wide open.

Hill Continues to Consider Location Privacy and Talk “Data Brokers”

The Senate Judiciary Committee last week postponed voting on a bill require app providers to seek affirmative “opt-in” consent from consumers before using their location information. Committee Chairman Patrick Leahy (D-VT) is planning to resume consideration of the bill, the Location Privacy Protection Act of 2011 (S.1223), this Thursday with the hopes of amendments that could garner bipartisan support. In anticipation of the Committee action last week, SIIA released a call to lawmakers to give the ongoing voluntary multistakeholder process more time to address needed transparency in mobile privacy.

Meanwhile, on the House side, the bipartisan Privacy Caucus will hold a briefing on Thursday morning on “data brokers,” with expected participation from FTC Commissioner Julie Brill and a wide range of industry representatives.

Administration Patent Conference Highlights

The FTC and DOJ held a joint workshop yesterday on the impact of patent trolls on the economy, where FTC Chairman Jon Leibowitz made it clear that he fully understands the damaging effect of PAE’s (aka patent trolls) and is concerned with their impact on competition and American innovation. The Chairman went so far as to say that we may be driving off a patent cliff that could stifle intellectual property innovation and competition. In response to the Workshop, SIIA issued a statement of support, expressing our concern about the “patent cliff” and applauding Chairman Leibowitz for making such a strong statement about the significance of the problem.

While there were no direct outcomes of the Workshop, SIIA and other key stakeholders can remain hopeful that coming out of the workshop, all parties–including the FTC, DOJ and Congress–will work together for sensible changes that allow America’s technology industry to thrive.

EU Announces Copyright Initiative. Endorses Digital Freedom Strategy

On December 5, the European Commission announced that it would begin an initiative to modernize European copyright for the digital economy. The initiative has two parallel processes. The first is a series of stakeholder meetings to begin in early 2013 which will focus on “six issues where rapid progress is needed: cross-border portability of content, user-generated content, data- and text-mining, private copy levies, access to audiovisual works and cultural heritage.” The second process focuses on the medium term and will result in a decision on whether to table legislative reforms in 2014. It will focus on four issues: “mitigating the effects of territoriality in the Internal Market; agreeing appropriate levels of harmonisation, limitations and exceptions to copyright in the digital age; how best to reduce the fragmentation of the EU copyright market; and how to improve the legitimacy of enforcement in the context of wider copyright reform.” Some informative reactions from different interested parties can be found here.

More detail on the proposed topics of the review can be found in this background document.

And today, the European Parliament endorsed by a large majority the first Digital Freedom Strategy in EU foreign policy, setting out concrete points of action to be incorporated in EU trade and development policies. The measure contains a large number of policy statements ranging from net neutrality to digital arms embargoes. It specifically endorses the flow of information across borders as a goal of EU trade policy, thereby potentially putting this issue on the table for EU-US trade negotiations. You can find the report here.

White House Shoots Key Message during Heart of Global Internet Conference

During the World Conference on International Telecommunications (WCIT) in Dubai that began last week, the United Arab Emirates, Russia and China announced their intention to introduce a proposal that would explicitly give the ITU authority over the Internet, a move that the US delegation, civil society and business groups oppose. An ITU spokesperson later announced that the proposal had been withdrawn. Similar proposals are possible before the WCIT conference ends Friday. Today the White House released a blog post urging that the “WCIT should be about updating a public telecommunications treaty to reflect today’s market-based realities — not a new venue to create regulations on the Internet, private networks, or the data flowing across them.”

FTC Chairman Leibowitz made it clear that he fully understands the damaging effect of PAE’s and is concerned with their impact on competition and American innovation. The Chairman went so far as to say that we may be driving off a patent cliff that could stifle intellectual property innovation and competition. We share the ‘patent cliff’ concern and applaud Chairman Liebowitz for making such a strong statement about the significance of the problem.

SIIA has been a leading advocate for patent reform, and we believe a vital step forward was made in 2011 with the America Invents Act. But the fact is, patent trolls continue to damage the economy, hurt America’s tech industry and threaten innovation. Today’s workshop is important for drawing attention to the problem and we encourage the FTC and DOJ to continue to spotlight the harmful effects of patent trolls. We are hopeful that, coming out of the workshop, all parties – including the FTC, DOJ and Congress – will work together for sensible changes that allow America’s technology industry to thrive.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.