TLJ News from April 1-5, 2013

House Subcommittee Approves Bill Regarding Promoting a Global Internet Free from Government Control

4/10. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) approved by voice vote HR __ [LOC | WW | PDF], a yet to be introduced bill that states that "It is the policy of the United States to promote a global Internet free from government control and to preserve and advance the successful multistakeholder model that governs the Internet."

Several Democrats have expressed concerns about this bill. SCT Chairman Rep. Greg Walden (R-OR) and SCT ranking Democrat Rep. Anna Eshoo (D-CA) agreed that members and staff will meet before the full Committee mark up to attempt to develop compromise language.

Rep. Walden said at the April 11 mark up that "There still appears to be a misunderstanding about what this legislation does. ... What I heard Ranking Members Waxman and Eshoo and their colleagues say in their opening statements yesterday is that this legislation would require the FCC to strike down its network neutrality regulations. I respectfully disagree. We know how to draft legislation requiring the FCC to strike the network neutrality regulations. We drafted and passed through the House last Congress a resolution of disapproval to do just that."

He wrote in his statement that "This legislation does not require the FCC to strike its network neutrality regulations. As a matter of law, a statement of policy does not impose statutorily mandated responsibilities on an agency, and this legislation neither requires nor authorizes the FCC to take any action with respect to its network neutrality regulations or any other rules. The FCC knows this well. It is the reason the D.C. Circuit threw out the Commission’s attempt to sanction Comcast for its network management of Internet traffic."

The U.S. Court of Appeals (DCCir) issued its opinion [36 pages in PDF] in Comcast v. FCC on April 6, 2010, vacating the August 2008 order [67 pages in PDF] of the Federal Communications Commission (FCC) that asserted authority to regulate the network management practices of broadband internet access service providers. The Court held that the FCC lacks statutory authority to do this. See also, story titled "Court of Appeals Vacates FCC's Comcast Order" in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.

Rep. Walden continued that "The FCC had claimed it was authorized to do so by another policy statement already in the Communications Act. The appeals court disagreed. And just as a policy statement cannot authorize the FCC to adopt network neutrality regulations, it cannot require the FCC to strike them if the agency otherwise has authority to impose them in the first place as the FCC claims in the current appeal of its rules."

See also, HCC release and story titled "House Commerce Subcommittee Begins Mark Up of Internet Freedom Resolution" in TLJ Daily E-Mail Alert No. 2,549, April 10, 2013.

House Intelligence Committee Marks Up Cyber Security Bill in Secrecy

4/10. The House Intelligence Committee (HIC) held a closed meeting at which it amended and approved HR 634 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or CISPA.

The HIC met in secret in the bowels of the Capitol Building on short notice. It did release the text of any of the amendments approved or rejected at this meeting until April 11.

Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersberger (D-MD), the Chairman and ranking Democrat on the HIC, offered characterizations of some of these amendments at a news conference on April 8. See, story titled "House Intelligence Committee to Mark Up CISPA" in TLJ Daily E-Mail Alert No. 2,548, April 9, 2013.

Rep. Janice Schakowsky (D-IL), who offered three amendments that were rejected by the HIC, and who voted against the bill, released a statement.

Rep. Adam Schiff (D-CA), who offered an amendment that was rejected by the HIC, and who voted against passage of the bill, also released a statement.

He wrote that "I call upon on the House Leadership to ensure that we have a full and open debate and that my amendment, and others to make a real difference in protecting privacy and civil liberties, receives an up or down vote on the House floor."

The HIC is mischaracterizing the nature of its process as open and transparent when in fact it is closed and secretive.

Its web site stated before the meeting that this would be an "open" meeting. The HIC web site still stated as of publication of this article that the meeting was "open". In fact, the meeting was closed. The author of this article was present outside the meeting room, but denied access.

The HIC web site also contains a link that purports to access a webcast of the meeting. In fact, there was no webcast.

There are opponents of the CISPA. By keeping secret the proposed legislative language, the HIC prevented opponents from criticizing the proposed language. This makes the task of lobbying against legislative proposals, and generating grass roots lobbying by members' constituents, much more difficult.

There is a logic to the HIC's secrecy. Several of the opposition groups have online followings, and have demonstrated in prior legislative battles that they are adept at informing voters, and incenting them to contact their Representatives and Senators.

While the HIC does conduct hearings on the activities and operations of federal intelligence agencies, and their work product, that should be conducted in secret, there is no legitimate rationale for withholding amendments to bills that are destined to become public law.

The purpose served by the April 10 closed mark up, and the withholding of amendments, was to frustrate public understanding of, and participation in, the legislative process.

Also, while the HIC has successfully circumvented the organization of opposition, it has also limited participation by the businesses that the bill seeks to incent to share cyber security information. This closed process may thus have the affect of limiting public support for the bill. Also, without the input and participation from the businesses targeted by the bill that would transpire in an open legislative process, the bill, if enacted into law, may lack provisions that would maximize the incentives to share cyber security information.

Rep. Blackburn Introduces SECURE IT Act

4/10. Rep. Marsha Blackburn (R-TN) introduced HR 1468 [LOC | WW | PDF], the "Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act of 2013" or "SECURE IT".

This 128 page bill addresses numerous cyber security related matters. Title I would incent the sharing of cyber threat information, from private sector entities to government, and between private sector entities.

Title II would revise the Federal Information Security Management Act (FISMA).

Title III would amend the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030. It would also create a new section, to be codified at 18 U.S.C. § 1030A, titled "Aggravated damage to a critical infrastructure computer".

Title IV would address cyber security research and development.

Title V would set information security requirements, and create a federal data breach notification regime.

Rep. Marsha BlackburnRep. Blackburn (at right) stated in a release that her bill "is a conservative, incentive-based framework that opens up collaboration between the government and the private sector while also providing safeguards to citizens when their sensitive data is compromised." See also, her bill summary [2 pages in PDF].

She added that "President Obama's heavy-handed Executive Order" is "a losing proposition".

On February 13, 2013, President Obama signed an Executive Order (EO) that begins the process of creating a federal cyber security regulatory regime. See, story titled "Obama Signs Cyber Security Order and Policy Directive" in TLJ Daily E-Mail Alert No. 2,525, February 19, 2013.

She concluded that "Instead of playing politics and pushing top-down mandates on the victims of cyber attacks, I’m focused on creating a consensus approach that balances the interests of American citizens and businesses while holding the federal government more accountable."

Rep. Blackburn cosponsored a related bill in the 112th Congress, HR 4263 [LOC | WW], also titled the "SECURE IT Act". See, story titled "Rep. Mack and Rep. Blackburn Introduce SECURE IT Act" in TLJ Daily E-Mail Alert No. 2,367, April 10, 2012.

GAO Report Finds Network Operators Have Reported No Cyber Incidents to FCC or DHS

4/10. The Government Accountability Office (GAO) released a report [45 pages in PDF] titled "Communications Networks: Outcome-Based Measures Would Assist DHS in Assessing Effectiveness of Cybersecurity Efforts". It finds that network operators are not reporting cyber incidents to federal agencies.

This report states that while both the Federal Communications Commission (FCC) and Department of Homeland Security (DHS) have reporting mechanisms, "No cyber incidents affecting the core and access networks have been reported by communications networks owners and operators through three established reporting mechanisms from January 2010 to October 2012." (Footnote omitted.)

It also states that "of the over 35,000 outages reported to FCC during this time period, none were related to traditional cyber threats (e.g., botnets, spyware, viruses, and worms)." (Parentheses in original.)

It adds that "Officials within FCC and the private sector attributed the lack of incidents to the fact that the communications networks provide the medium for direct attacks on consumer, business, and government systems -- and thus these networks are less likely to be targeted by a cyber attack themselves."

House Commerce Subcommittee Begins Mark Up of Internet Freedom Resolution

4/10. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology began its mark up of HR __ [LOC | WW | PDF], a yet to be introduced bill that states that "It is the policy of the United States to promote a global Internet free from government control and to preserve and advance the successful multistakeholder model that governs the Internet." This mark up will continue on April 11 at 2:15 PM.

This resolution recites in its findings that "it is essential that the Internet remain stable, secure, and free from government control."

It references "international regulatory bodies", and states that "The proposals would attempt to justify increased government control over the Internet and could undermine the current multistakeholder model that has enabled the Internet to flourish and under which the private sector, civil society, academia, and individual users play an important role in charting its direction."

The Congress passed a similar resolution late in the 112th Congress, SConRes 50. See, stories titled "House Passes Internet Governance Resolution" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2013, "Senate Foreign Relations Committee Approves Internet Governance Resolution" in TLJ Daily E-Mail Alert No. 2,452, September 20, 2012, and "House Approves Resolution Opposing International Internet Regulation" and "Ambassador Kramer Addresses Upcoming WCIT" in TLJ Daily E-Mail Alert No. 2,420, August 4, 2012.

However, that resolution was passed with reference to the proposals being considered at the World Conference on International Telecommunications (WCIT), held in Dubai, United Arab Emirates, in December of 2012.

In contrast, the present bill is relevant not only to the International Telecommunications Union (ITU), but also to open proceedings at the U.S. Federal Communications Commission (FCC), such those related to the network management practices of broadband internet access service providers (also known as the open internet and network neutrality proceeding), and AT&T's internet protocol (IP) transition proceeding. See, story titled "AT&T Files Petition for Rulemaking Regarding Trial Replacement of TDM with IP" in TLJ Daily E-Mail Alert No. 2,470, November 6, 2012.

Also, SConRes 50 was a sense of the Congress resolution, while the present item is a bill that states "the policy of the United States".

Rep. Greg Walden (R-OR) said in his opening statement that last year's "resolution emboldened more than 50 nations to join the United States in opposing proposals to drag the Internet within the ambit of the International Telecommunication Union, a U.N. agency. Unfortunately, that was the start, not the end, of international efforts to regulate the Internet. And just as international opponents of an Internet free from government control are redoubling their efforts so, too, must we."

Rep. Fred Upton (R-MI) wrote in his opening statement that "we are taking the language from last year that unanimously passed the House twice and the Senate once and converting it from a sense of Congress about a specific treaty negotiation to a general statement of U.S. policy. This is an important step in showing our nation’s resolve and it will send an important signal to the international community. If we really meant what we said last year, there’s no reason not to enshrine it in law. We were all in agreement last year, and we should continue to stand in agreement today."

Rep. Doris MatsuiIn contrast, Rep. Doris Matsui (D-CA) (at right) stated that "This bill has nothing to do with ITU, but is about questioning the FCC's Net Neutrality Rules and authority to implement IP transition. By changing a Sense of Congress resolution into an official policy statement of the United States, this bill will have many unintended consequences on domestic telecom policy, including undermining the laudable efforts of the FCC to transition and reform the Universal Service Fund from telephone service to broadband, among others."

The Computer and Communications Industry Association (CCIA) sent a letter to the HCC in which it stated that the "CCIA is steadfast in support of the multi-stakeholder model of global Internet governance", but that "we are concerned that legislation in this area may be vulnerable to misuse and misinterpretation in the domestic context, and potentially counterproductive to our united front and constructive approach in international debates".

The CCIA added that "Pending legislation could cause fracturing of our current posture because it would be seen by some as compromising existing statutory mandates on universal access to advanced communications services. We and many others believe FCC authority over end user access to the open Internet is critical for empowerment of our own citizens and businesses. We also understand the desire for other nations to adopt similar protections for their people, and should be wary of proscribing domestic policy for other sovereign nations."

The New America Foundation (NAF) and Center for Democracy and Technology (CDT) sent a letter to the HCC "to express our serious concerns with the proposed bill to affirm the policy of the United States on Internet governance"

They wrote that the Congress "should not curtail its own ability to address domestic issues through well-considered national legislation developed by a democratically elected Congress and subject to review by courts"

More News

4/10. Rep. Michael McCaul (R-TX) and Rep. Robert Andrews (D-NJ) introduced HConRes 29, a concurrent resolution regarding Taiwan. It expresses the sense of Congress that "the President should abandon the fundamentally flawed `One China Policy´ in favor of a more realistic `One China, One Taiwan Policy´ that recognizes Taiwan as a sovereign and independent country, separate from the undemocratic Government of the People's Republic of China in Beijing", that "the President should begin the process of resuming normal diplomatic relations with Taiwan", and that "the President, the Permanent Representative of the United States to the United Nations, and other relevant United States officials should aggressively support Taiwan's full participation in the United Nations and any other international organization of which the United States is a member, and for which statehood is a requirement for membership". It was referred to the House Foreign Affairs Committee.

Fair Search Files Complaint with EC About Google Mobile Practices

4/9. The Fair Search (FS) announced in a release that it filed a complaint with the European Commission (EC) "laying out Google's anti-competitive strategy to dominate the mobile marketplace and cement its control over consumer Internet data for online advertising as usage shifts to mobile". The FS did not release the text of its complaint.

The FS is a group that represents Expedia, Microsoft, Nokia, Oracle, TripAdvisor and other mostly U.S. companies in seeking to induce antitrust regulators around the world to regulate Google's business practices.

The EC is already investigating Google search related business practices. The just filed complaint introduces allegations regarding tying the Android mobile operating system to other Google products.

The FS is shopping its complaints to multiple fora. It has already complained to, but failed to obtain significant redress from, the U.S. Federal Trade Commission (FTC). See, story titled "FTC Concludes Its Investigation of Google" in TLJ Daily E-Mail Alert No. 2,504, January 7, 2013.

The EC has demonstrated in other proceedings that it is willing to take enforcement actions against U.S. technology companies following complaints from other U.S. technology companies. It has also demonstrated that it is willing to take actions that are inconsistent with the prior determinations of U.S. antitrust regulators.

The EC derives substantial revenues from the huge fines that it imposes on U.S. technology companies. Also, EC based lawyers and lobbyists derive much income from representing U.S. companies in their internecine antitrust disputes.

Thomas Vinje of the Brussels office of the law firm of Clifford Chance stated in the FS release that "Google is using its Android mobile operating system as a `Trojan Horse´ to deceive partners, monopolize the mobile marketplace, and control consumer data".

He continued that "We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google's Android operating system."

The FS release states that the complaint alleges that "Google achieved its dominance in the smartphone operating system market by giving Android to device-makers for `free.´ But in reality, Android phone makers who want to include must-have Google apps such as Maps, YouTube or Play are required to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone ..."

The FS release adds that "Google's predatory distribution of Android at below-cost makes it difficult for other providers of operating systems to recoup investments in competing with Google's dominant mobile platform".

People and Appointments

4/9. The Senate confirmed Patty Schwartz to be a Judge of the U.S. Court of Appeals (3rdCir) by a vote of 64-34. See, Roll Call No. 93. All of the no votes were cast by Republicans. Schwartz was blocked by filibuster in the 112th Congress. See, statement by Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), praising Schwartz.

4/9. Janet Lute, Deputy Secretary of Homeland Security, announced that she will leave the Department of Homeland Security (DHS).

More News

4/9. Sen. Bill Nelson (D-FL) and others introduced S 676 [LOC | WW], a bill regarding tax related identity theft and tax fraud. It was referred to the Senate Finance Committee (SFC).

4/9. The Cato Institute released a paper [28 pages in PDF] titled "Regulatory Protectionism: A Hidden Threat to Free Trade". The authors are the Cato's William Watson and Sallie James. The paper states that "domestic industries continue to find ways to use the power of government to protect themselves from foreign competition. The practice of using domestic environmental or consumer safety regulation as a way to disguise protectionist policy has become a serious and growing problem in the United States. This regulatory protectionism harms the U.S. economy and violates our trade obligations." This paper cites numerous examples. However, none involve information or communications technologies. The Cato Institute will host a panel discussion on this topic on April 18 at 12:00 NOON. See, notice.

House Intelligence Committee to Mark Up CISPA

4/8. The House Intelligence Committee (HIC) announced that it will mark up HR 634 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or CISPA at 2:00 PM on Wednesday, April 10, 2013.

This mark up will be held in Room HVC-304 of the Capitol Visitor Center, and will be open to the public. See, notice. A collection of groups sent a letter to the HIC on April 3 urging it to hold its mark up in public session.

The CISPA is directed at incenting cyber threat information sharing, in part by providing immunities to private sector entities. CISPA would not create a new government regulatory regime.

The House passed another version of the CISPA in the 112th Congress, on April 26, 2012. See, HR 3523 [LOC | WW], also titled CISPA. The vote on final passage was 248-168. See, Roll Call No. 192. See also, story titled "House Passes CISPA" and story titled "Amendment by Amendment Summary of House Consideration of CISPA" in TLJ Daily E-Mail Alert No. 2,380, April 25, 2012.

President Obama threatened to veto the CISPA in the 112th Congress. He has not yet threatened to veto HR 634.

Instead, President Obama has sought legislation that would give the federal government broad and open ended authority to regulate business practices under the rubric of promoting cyber security. Neither the House, Senate, nor any committee has passed such a bill.

See also, stories titled "Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime" in TLJ Daily E-Mail Alert No. 2,473, November 14, 2012, and "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

On February 13, 2013, President Obama signed an Executive Order (EO) that begins the process of creating a federal cyber security regulatory regime. See, story titled "Obama Signs Cyber Security Order and Policy Directive" in TLJ Daily E-Mail Alert No. 2,525, February 19, 2013.

On April 8, Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersberger (D-MD), the Chairman and ranking Democrat on the HIC, held a joint news conference regarding the CISPA, followed by a joint news conference conducted by Republican and Democratic HIC staff.

The two Representatives announced and described several amendments that would be offered on April 10. However, they did not release the texts.

One amendment will eliminate what some have described as the "hacking back provision". Rep. Rogers said that it had never been their intent to give companies the authority to hack other companies' networks. However, critics of the bill had argued that the bill would have created private hack back authority.

The actual language is as follows: "No civil or criminal cause of action shall lie or be maintained in Federal or State court against a protected entity, self-protected entity, cybersecurity provider, or an officer, employee, or agent of a protected entity, self-protected entity, or cybersecurity provider, acting in good faith -- (A) for using cybersecurity systems to identify or obtain cyber threat information or for sharing such information in accordance with this section; or (B) for decisions made based on cyber threat information identified, obtained, or shared under this section." (See, page 9 of PDF version of bill as introduced.)

The argument of critics was that creating immunity for all "decisions made based on cyber threat information" authorized the decision to hack back.

Rep. Rogers said that another amendment will "strike the national security use language from the bill". He added that there has been the "widest misunderstanding" of this provision, but it will nevertheless be taken out.

The relevant language is as follows: "The Federal Government may use cyber threat information shared with the Federal Government ... (E) to protect the national security of the United States." (See, pages 10-11 of the PDF version of the bill as introduced.)

Rep. Ruppersburger said that other amendments will mandate government minimization of information received from the private sector, and provide for oversight by the Privacy and Civil Liberties Oversight Board (PCLOB).

The two said that there has been dialogue with "the White House", but Rep. Ruppersburger added that "the White House is not behind our bill".

Rep. Rogers said that "we are wide open to further suggestions to clarify the bill".

Both said that there have been "perception" issues with the CISPA. Rep. Ruppersburger added that "there is a lot of false information that is out there".

One HIC staffer said that "I can imagine that Chinese intelligence services would not be happy about this bill."

People and Appointments

4/8. The Senate confirmed Mary Jo White to be Chairman of the Securities and Exchange Commission (SEC) for the remainder of the term expiring on June 5, 2014. The Senate confirmed her without debate, and by unanimous consent. See, Congressional Record, April 8, 2013, at Pages S2439 and S2474.

4/8. President Obama nominated Brian Deese to be Deputy Director of the Office of Management and Budget (OMB). See, White House news office release. President Obama announced his intent to nominate Deese on April 1.

4/8. Margaret Thatcher, former Prime Minister of the United Kingdom, died. President Obama praised her in a statement as an "unapologetic supporter of our transatlantic alliance".

4/8. Federal Communications Commission (FCC) Commissioner Robert McDowell released a statement regarding Margaret Thatcher. "The passing of former British Prime Minister Margaret Thatcher marks a sad loss not only for the United Kingdom, but for the United States and everyone who cherishes freedom across the globe. She rose from humble but proud roots to become not only one of the most influential women in world history, but one of the greatest global leaders of all time. Through her steely resolve, unparalleled intellect and inexhaustible energy, she stared down sexism, skepticism, statism and Communism. At the same time, she promoted freedom and prosperity while strengthening the sovereignty of the individual. It was a profound honor to have met her. She set a standard of statesmanship I hope is emulated for centuries to come."

More News

4/8. The Department of Commerce (DOC) published a notice in the Federal Register (FR) that announces that it will lead a legal services trade mission to the People's Republic of China (PRC). The FR notice states that the purpose of this mission is "to introduce U.S. law firms without a presence in China to the Chinese market, to market U.S. legal services to Chinese companies and individuals, to raise awareness about the U.S. legal and business climate to Chinese companies interested in doing business in the U.S. market, and to further an ongoing dialogue with Chinese authorities on opening the Chinese legal services market to expanded practice by U.S. firms". This trade mission will be on September 16-18, 2013. See, FR, Vol. 78, No. 67, April 8, 2013, at Pages 20893-20896.

4/8. Federal Communications Commission (FCC) Commissioner Ajit Pai gave a speech in Las Vegas regarding AM radio revitalization.

Go to News from April 1-5, 2013.