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ADMINISTRATION: Investigating The Investigators

Telecommunications
Martin Says FCC May Act Against Telecom Firms
     FCC Chairman Kevin Martin told a packed hearing in Cambridge, Mass., earlier this week that his agency may take action to keep telecom giants from acting as gatekeepers of the Internet. "The commission is ready, willing and able to step in if necessary," Martin said at an agency field hearing. He seemed particularly concerned that some broadband operators are not disclosing their network management practices to customers.
      The agency has received complaints that Comcast has been slowing the traffic of the file sharing service BitTorrent. Network management "does not mean [providers] can arbitrarily block access. ... These are very significant issues and we don't take these allegations lightly," Martin said. Officials from Comcast and Verizon Communications insisted they are only conducting normal management of network traffic -- for example, by delaying some bandwidth-intensive forms of traffic at times of peak demand. But open-Internet advocates said the companies' actions are anti-competitive and threaten innovation and free speech on the Internet. FCC Commissioners said they are open to taking regulatory action that would require better disclosure of company practices and nondiscriminatory network management.

Telecommunications
NTIA Chief To Leave As Criticism Mounts Over DTV Shift
     For the second time in four months, a top Commerce Department official overseeing the nation's shift to digital television transmission is stepping down, raising fresh concerns about the Feb. 17, 2009 switchover. National Telecommunications and Information Administration chief Meredith Baker will exit amid mounting criticism of the agency's implementation of a $1.5 billion coupon program aimed at helping analog-dependent households make the switch. Former NTIA head John Kneuer left in November after less than a year at the helm. Baker, who has been with NTIA for four years and was named acting chief in late November, has not set a date for departure. An NTIA spokesman said Baker had been talking about leaving for several months and insisted that the voucher program is on track. House Energy and Commerce Chairman Dingell said in a statement that he was pleased Baker "is committed to remaining at NTIA until a replacement is confirmed." Senate Commerce Committee member Claire McCaskill, D-Mo., said in an e-mail that Baker "is doing a good job and it would be a loss to have her leave." Still, Baker has faced criticism for NTIA's decision not to require that converter boxes display analog signals. As a result, most coupon-eligible boxes lack analog capability. Thousands of low-power broadcasters in rural and inner-city areas will continue to transmit in analog beyond the February cut-off. News of Baker's departure broke on the same day that Consumer Electronics Association President Gary Shapiro, a key architect of the transition, declared it would not be significant if analog-dependent TV viewers temporarily lose reception. Shapiro struck some as unconcerned about people who cannot afford digital sets or subscription service, or live in areas where pay TV is not an option. Declared McCaskill: "We're talking about people's ability to receive important safety information in times of emergency. I think the government has an obligation to make sure Americans' TVs don't go dark."

Telecommunications
Markey Wireless Bill Draws Mixed Reviews
     Legislation floated by House Energy and Commerce Telecommunications and the Internet Subcommittee Chairman Edward Markey, D-Mass., that would revamp the nation's wireless telecommunications laws has drawn mixed reactions from cellular providers and Republican lawmakers. The measure includes provisions to beef up consumer protections, such as reducing fees for the early termination of contracts and requiring more disclosure about service coverage and charges. It also would preempt the growing patchwork of state regulations with nationwide federal rules, a move sought by wireless carriers. Multiple sources said the measure is likely to serve as a marker for a more serious legislative push in 2009, although one source expects Markey to issue a second draft soon with the goal of moving it this year. At a hearing before Markey's subcommittee, former Rep. Steve Largent, R-Okla., president and CEO of the wireless association CTIA, applauded Markey for seeking to curb state oversight but complained about provisions that would allow states to enforce national standards. Ranking subcommittee member Fred Upton, R-Mich., said the bill goes too far in "requiring the FCC to micromanage the relationships between wireless carriers and their consumers." Another flashpoint is language clarifying that municipalities can offer broadband and other telecom services. The provisions are opposed by the U.S. Telecom Association and four rural telecom groups, whose members stand to lose business when governments operate broadband systems.

Homeland Security
Bush Plan To Boost Cyber Security Raises Many Questions
     House Homeland Security officials were grilled this week over the Bush administration's new, largely classified plan to ramp up security of government computer networks, with members expressing doubts about leadership, privacy and resource allocation for achieving real-time intrusion detection. "Who is in charge? What are the metrics for success? Who is accountable?" Homeland Security Chairman Thompson asked Homeland Security Department National Protection and Programs Directorate chief Robert Jamison and his deputy, Chief Information Officer Scott Charbo. "Thus far I have been extremely disappointed in the administration's efforts in cybersecurity," Thompson added. The concerns center on the proposed expansion of the government's automated process for collecting and sharing security information known as "Einstein" and an effort to reduce the number of federal connections to the Web to allow for easier monitoring.
     Jamison said cybersecurity is one of his department's top priorities and Bush's proposed FY09 budget reflects that. Bush's IT budget request for FY09 includes $7.3 billion for cybersecurity across a number of agencies. But at a 2007 hearing, Charbo exposed what some considered a breakdown in federal intelligence sharing when he said he did not receive intelligence reports about hacking incidents. "I'm sitting here with my mouth open," said Rep. Jane Harman, D-Calif., who heads the Homeland Security Intelligence, Information Sharing and Terrorism Risk Assessment Subcommittee. "The fact that you don't have threat information and you're working on projects that will take years to complete is absolutely shocking." Harman and Rep. Paul Broun, R-Ga., were skeptical about Homeland Security's ability to coordinate while protecting citizens' privacy. Jamison said his agency puts a premium on safeguarding civil liberties and said privacy impact assessments were conducted for Einstein.

Homeland Security
Border Patrol Chief Harshly Criticizes Virtual Border Fence
     U.S. Border Patrol Chief David Aguilar told lawmakers this week that he is "absolutely not" satisfied with virtual fencing along the southern border, adding that inadequate detection rates leaves his agents at risk. The virtual fence, dubbed Project 28 or P28, is part of the department's so-called SBInet program to use technology, such as cameras, radars and sensors, to secure the U.S.-Mexico border. Last week, the department announced it was accepting Project 28, which was built by Boeing Integrated Defense Systems, even tough Homeland Security officials acknowledged it has less than a 95 percent detection rate. Aguilar's statement at a hearing prompted House Homeland Security Chairman Thompson to question why Homeland Security accepted Project 28 from Boeing and said he wanted to review contract documents to determine if Boeing failed to meet required specifications. Other members of the committee presented a united front in criticizing the department and Boeing over problems with Project 28. Homeland Security Border Subcommittee ranking member Mark Souder, R-Ind., lashed out at the Bush administration, saying it has not provided answers about when border security programs will be in full working order and how much they will cost. DHS now estimates it will take until 2011 to deploy initial technology along the borders. "The administration as a whole does not understand that this issue is on fire across the country," Souder said. Jayson Ahern, deputy commissioner for Customs and Border Protection, and Roger Krone, president of Boeing's Network and Space Systems, countered that progress is being made to secure the borders and they have learned lessons from Project 28 that will be applied to other efforts.

Homeland Security
Democratic Leaders Weigh Options On FISA Bill
     Senior Democratic and Republican lawmakers met late this week with Bush administration officials to discuss legislation dealing with electronic eavesdropping. Republicans said afterward that the meeting was not a negotiating session but a chance for lawmakers to ask questions of the top lawyer from the office of National Intelligence Director Mike McConnell. But the meeting might give House Democratic leaders the political cover they need to advance the legislation that would overhaul the Foreign Intelligence Surveillance Act by saying they held a high-level meeting with Republicans and administration officials over FISA. "Our meeting was productive, and a step forward in Congress's effort to craft legislation that both protects our nation and our citizens' civil liberties," Majority Leader Hoyer said in a statement. Hoyer plans to bring FISA legislation to the floor next week, one of his aides said, but it has not been decided what bill will move. One option under consideration is to break the Senate's bill in two, with separate votes on the first title, authorizing electronic surveillance activities, and the second title, which would grant retroactive legal immunity to telecommunications companies that assisted the administration with eavesdropping. Such a move is viewed as a way for Democratic leaders to give an out to lawmakers opposed to the retroactive immunity provision. But it remains to be seen if it will placate liberal Democrats who adamantly oppose giving in on the immunity issue.

Employment
Business Groups Pushing For Needs In Immigration Bill
     Amid speculation that an enforcement-only immigration bill could obtain enough co-sponsors to force a House floor vote, the business community is lobbying heavily to make sure that such legislation includes language to make it easier to obtain guest-worker visas and employment-based green cards. Industry lobbyists have met with dozens of congressional offices over the last several weeks playing defense against an enforcement bill. "An enforcement measure should be considered with a broader bipartisan package," said Information Technology Association of America Government Affairs Vice President Cindy Jimenez. ITAA is part of the Compete America coalition of high-tech groups advocating for an increase in the cap on H-1B visas for skilled foreigners. Rep. Brian Bilbray, R-Calif., who heads the Immigration Reform Caucus and favors the enforcement-only approach, is teaming up with some in the Blue Dog Coalition of moderate-to-conservative Democrats to advocate an enforcement bill. The measure, sponsored by Rep. Heath Shuler, D-N.C., would require employers to verify the eligibility of all workers and establish a birth and death registration system among other things. The Congressional Hispanic Caucus, which is negotiating with Bilbray and Shuler on a bill, is pushing for temporary visas for illegal immigrants. Bilbray, who has described such a provision as a nonstarter, said he would be willing to consider some provisions for guest-worker visas, "but it would have to be very limited." A bill without provisions for illegal immigrants is unlikely to pass muster with Democrats, even if it gives some relief to the business community clamoring for green cards and guest-worker visas for their workers.

Intellectual Property
PTO Grilled Over Patent Application Backlogs
     House Judiciary Courts, the Internet and Intellectual Property Subcommittee members grilled Patent and Trademark Office Director Jon Dudas this week about the growing backlog of patent applications and the increasing amount of time it takes overburdened examiners to process those claims. By late 2007, more than 760,000 applications were waiting to be reviewed and the average time it took to address those filings ranged from 25 months to more than 32 months, Subcommittee Chairman Howard Berman, D-Calif., said. A patent's value is tied to the creator's ability to exclude others from using the invention and Berman said the time it takes for examiners to act "cuts into the time the inventor has to make commercial use of the invention." Dudas painted a rosier picture of the PTO. Over two years, the PTO increased patent production by more than 21 percent, hired 2,400 patent examiners and cut attrition rates for first-year examiners by half. But subcommittee ranking member Howard Coble, R-N.C., said he has heard there may be "troubles on the horizon." Veteran examiner and PTO union President Robert Budens said years of inadequate funding and hiring restrictions have left the agency understaffed and examiners "angry" and "stressed out." In other intellectual property-related news, the Bush administration's IP czar, Chris Israel, is leaving his post to launch a government relations firm. Among the potential successors is Wayne Paugh, his deputy for international enforcement.

People
FTC Chief To Depart Next Month
     FTC Chairwoman Deborah Platt Majoras' departure next month will leave the commission with two Republicans, one Democrat and an independent, and an unclear timeline for a replacement. The remaining FTC members include Republicans William Kovacic and Thomas Rosch; Democrat Jon Leibowitz; and independent Pamela Jones Harbour. Of them, Kovacic stands the best chance of succeeding Majoras as chairwoman, sources said, but that decision is up to the White House. Senate Judiciary Antitrust Subcommittee Chairman Herb Kohl, D-Wis., called Majoras, who is leaving for a job at consumer products giant Procter & Gamble, "an able and dedicated public servant" whose commitment to her agency's mission of protecting competition and safeguarding consumers was highly commendable. During her nearly four-year tenure, Majoras focused on ensuring data security and protecting citizens against technology-fueled fraud such as identity theft, computer spyware and deceptive commercial e-mail. She also worked on children's health issues and increasing the efficiency and transparency of U.S. merger review processes.

Antitrust
EU Imposes Huge Fine Against Microsoft
     The European Commission announced this week that it was imposing a $1.35 billion fine against Microsoft for failing to fully comply with the commission's March 2004 antitrust decision. The commission, the European Union's regulatory arm, said the company had been charging "unreasonable prices" for access to information other firms need to develop software that works with Windows-based personal computers and servers. The March 2004 decision required Microsoft to disclose such information at a "reasonable price." Microsoft did not address the commission's concerns about the prices it wanted to charge other companies for the interface information until October, and so the commission's fine covers the three years during which the company continued "the behavior confirmed as illegal" by an EU court, the commission said. "Microsoft was the first company in 50 years of EU competition policy that the commission has had to fine for failure to comply with an antitrust decision," said EU Competition Commissioner Neelie Kroes. Microsoft noted in a statement that the commission told the firm in October that it was in "full compliance" with the 2004 decision. "So these fines are about past issues that have been resolved," the firm said.

Trade
Ways And Means Panel Weighing Action Against China
     House Ways and Means Chairman Rangel says his panel is still discussing how to react to what many members see as China's unfair trade practices and might not take legislative action at all. "We're really sensitive to the state of the economy and what, if any, impact introduction of the bill would do," Rangel said. "But we're going to do something, even if it falls short of legislation." Many Democrats and Republicans from manufacturing states have been pushing party leaders to move on legislation dealing particularly with China's currency manipulation and with import safety and intellectual property rights. Rep. Timothy Ryan, D-Ohio, has introduced legislation with 70 co-sponsors from both sides of the aisle that would define currency manipulation as a trade subsidy and allow the Commerce Department to impose retaliatory duties. Ryan pointed to a the Commerce Department's recent report that the trade gap with China grew 10 percent to a record $256 billion last year in arguing for his bill. Other Ways and Means Democrats such as Reps. Joseph Crowley of New York and Jim McDermott of Washington have said the issue should be handled diplomatically and negotiated between the two countries and the World Trade Organization, a view shared by the Bush administration and business groups. In the Senate, both the Banking and Finance committees have reported out currency measures, but Senate Majority Leader Reid would rather not have to side with one committee over the other, sources said. The preferred option would be for the Senate to take up a House-passed bill, which would be open for amendment in the Senate.

Trade
Senate Clears Andean Trade Preferences Bill
     The Senate cleared a 10-month extension of trade preferences for Andean nations this week, sending the measure to President Bush's desk before it was set to expire today. The House passed the measure earlier this week. The delay gives lawmakers time to develop a longer-term solution for the Andean program as well as expiring preference programs for Caribbean and other developing countries. Senate Finance Chairman Baucus, who like House Ways and Means Chairman Rangel favored a longer extension, called the program "an investment in mutual prosperity and regional stability." Established in 1991 to wean Peru, Colombia, Ecuador and Bolivia away from illicit drug production and develop their economies, the program allows duty-free access to U.S. markets for agricultural goods, apparel, flowers and other products from those nations. The White House supports extending the program, and backers in the Andean countries applauded final approval. Senate Finance ranking member Charles Grassley, R-Iowa, allowed the measure to go through despite his concerns about the behavior of the governments of Ecuador and Bolivia.

Politics
Feinstein Plans Action On Bill To Limit Political Robocalls
     Senate Rules Chairwoman Feinstein said this week she expects to move legislation regulating political "robocalls" out of her committee within the next several weeks despite concerns that it might violate the First Amendment. The bill, which would not take effect until the next election cycle, would limit robocalls 30 days before a primary and 60 days before a general election. It would ban robocalls between 9 p.m. and 8 a.m., prohibit more than two calls per organization to the same telephone number a day, require that the group identify itself and identify the call as a recorded message at its beginning and ban organizations from blocking the caller identification number. Violators could be fined by the Federal Election Commission under the bill. At a hearing on the bill, James Bopp, general counsel for The James Madison Center for Free Speech, argued that the bill was unconstitutional because it would limit free speech rights. But Rules ranking member Robert Bennett, R-Utah, argued that "calling people in the middle of the night is stupid, and I don't have a problem with government regulating that."

Politics
Internet Law Expert Rules Out Bid For Congress
     Stanford University Law School Professor Lawrence Lessig announced early this week that he would not run for the seat of the late Rep. Tom Lantos, D-Calif., after disclosing last week that he was weighing such a bid. The special open primary to fill Lantos' seat is April 8, and Lessig said he did not think he could win the Democratic nomination with six weeks of campaigning. Shortly before his death from cancer earlier this month, Lantos, who had previously announced he would not seek re-election, endorsed former state Sen. Jackie Speier as his successor. In his video, Lessig lauded Speier for her 30 years in "extraordinary [public] service" and said he was confident that he would "lose in a big way" to his fellow Democrat. Speier is a onetime aide to the late Rep. Leo Ryan, D-Calif., and was badly wounded in the 1978 Jonestown massacre in which Ryan was killed; she went on to serve on the San Mateo County Board of Supervisors as well as the California Assembly and the state Senate. Lessig has long been a well-known name within the Internet community and has bumped heads with the entertainment industry on intellectual property issues. But as he acknowledged, he currently has little recognition among rank-and-file voters in the heavily Democratic district, which includes parts of San Francisco and its southern suburbs. Speier is now strongly favored to win election to fill the remainder of Lantos' term, in addition to capturing a full two-year term in the November election.

Porn
Tech, Telecom Firms Tapped For Online Child Protection Effort
     High-tech and telecommunications giants who have been pressured by members of Congress to enhance online child protection capabilities have joined a task force to identify and develop Web safety tools. The idea was hatched last month by the social-networking firm MySpace and attorneys general from 49 states and the District of Columbia. America Online, AT&T, Comcast, Facebook, Google, Microsoft, Verizon, Yahoo and others will take part in the initiative. The House Energy and Commerce Oversight and Investigations Subcommittee spent much of the 109th Congress addressing online threats and child protection issues. The topic inspired a flurry of bills last year and several have already passed the House. Rep. Steve Chabot, R-Ohio, co-chairman of the Congressional Missing and Exploited Children's Caucus, said "the private sector is on the front lines and best positioned to lead the battle." Policy watchdogs like the Center for Democracy and Technology and the Progress and Freedom Foundation have signed onto the project alongside the Family Online Safety Institute, the National Center for Missing and Exploited Children, and other organizations aimed at protecting children. The task force will evaluate a range of existing and emerging online safety technologies, including a review of authentication tools to help sites enforce minimum age requirements for certain Web sites. CDT President Leslie Harris said she will participate "with a healthy dose of skepticism" because those technologies "put Internet companies in the role of gatekeeper, raise a host of legal and policy questions. The task force will be chaired by John Palfrey, executive director of the Berkman Center for Internet & Society at Harvard Law School.