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States
Maine Leads Charge Against National ID Standards
by Michael Martinez
State lawmakers in Maine might not be willing to wait on the federal government to issue pending standards for state compliance with a contentious law mandating nationwide rules for identification cards. Some of them already have seen enough of the so-called REAL ID Act that imposed the mandate.
The Homeland Security Department has delivered proposed rules for REAL ID to the White House Office of Management and Budget, but the details have remained secret.
Even though it is still not known what compliance with the law by a May 2008 deadline would entail for states, state Senate Majority Leader Libby Mitchell and state Rep. Scott Lansley have drafted proposals to prohibit Maine from complying with REAL ID.
The bill by Lansley, a Republican, would instruct Maine's secretary of State not to comply with the law. Mitchell, a Democrat, has penned a resolution that would preclude the secretary of State from spending money on REAL ID compliance without specific legislation directing him to do so. Mitchell has not yet formally unveiled her proposal.
In a telephone interview, Lansley said he expects enough political will in Maine to rebel against REAL ID, regardless of what the pending rules say or when they are made public.
Critics of the law have said that it will cost states at least $11 billion over six years to comply and that it creates a backdoor national ID system. "This is a dangerous thing," Lansley said of the act.
Secretary of State Matthew Dunlap said he is concerned that Homeland Security lacks the expertise to develop guidance on driver's licenses. Dunlap was part of a negotiated rulemaking committee established by a 2004 intelligence law to develop federal standards for driver's licenses and ID cards. That panel was disbanded in May 2005 when REAL ID became law.
Sens. Daniel Akaka, D-Hawaii, and John Sununu, R-N.H., introduced legislation late last year to repeal REAL ID and reinstate the previous rulemaking process. Dunlap said that proposal, which both lawmakers are expected to reintroduce in the 110th Congress, offers a sound solution.
Regardless of what happens on Capitol Hill, the seeds for a multi-state REAL ID rebellion in 2007 already have been planted. Anti-REAL ID legislation has been pre-filed in Georgia. Bills also have been introduced in Montana and Washington. And New Hampshire state Rep. Neal Kurk, the author of an anti-REAL ID bill that came a few votes short of passage last year, intends to revive his proposal.
Legislation also could appear in several other states, including Kansas, New Mexico and Vermont, where committee hearings have been held.
Dunlap said state and federal lawmakers must consider the state budget impact of REAL ID, as well as whether it will provide security without jeopardizing privacy.
He said the law's weaknesses demonstrate the problems that some lawmakers have created by lumping identity security and immigration into national security policy -- issues that he said "have as much to do with each other as yard dye, goat cheese and roof singles."
"They can impact each other, I admit that," Dunlap said. "But when you lump them all together it's like stepping on a balloon."
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Lobbying
Tech Groups Form Council To Promote RFID Devices
by Heather Greenfield
Eight technology associations have established an RFID Technology Council to support the Senate Radio-Frequency Identification Devices Caucus formed last year.
Sens. John Cornyn, R-Texas, and Byron Dorgan, D-N.D., co-chair the caucus that was created to work with government agencies, research institutions, nonprofits and corporations to better understand how to use RFID devices.
Kara Calvert, director of government relations at the Information Technology Industry Council that co-founded the new council, said the goal is to have up to five roundtables a year focusing on RFID issues like privacy, the technology and risks associated with it.
Calvert said the hope is to educate members of Congress, especially freshmen, and create a dialogue around RFID. The devices are now used on everything from ID cards to tracing store inventory and even vehicles going through toll roads.
"It's important to band together to educate Congress on how transformative this is and what some of the issues are before the issues come up," said Marc-Anthony Signorino, director and counsel of tech policy at the tech group AeA, which is a member of the council's steering committee.
Signorino said RFID and "smart card" technology is much like looking at the ocean, seeing all the water and realizing that what you see is just on top. "The applications are enormous," Signorino said. "It just boggles the mind how it's already being used."
The steering committee hopes to recruit more members to the RFID council -- from users of the devices like Wal-Mart to industry experts who make RFID. There is no cost to join.
The goal is to focus the first roundtable discussion early this spring on competitiveness issues associated with RFID.
"America's competitive advantage continues to be early implementation of technologies like RFID that stimulate innovation and job growth," said Phil Bond, president and CEO of the Information Technology Association of America. "The Senate caucus is well-positioned to foster RFID innovation. We look forward to working with the caucus to achieve that goal."
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Security
White House Eyes Action On Borders, Electronic IDs
by Winter Casey
White House officials are hoping that legislation targeting immigration issues such as border enforcement and electronic identification cards will gain congressional approval this year.
"We are very much looking to pass a bill in Congress" that is workable and can be implemented, Greg Jacob, special assistant to the president for domestic policy, said during the second day of an annual homeland security conference sponsored by the American Bar Association.
Ryan Bounds, chief of staff at the Justice Department office of legal policy, said the United States has doubled its funding for border support and enforcement in recent years. When illegal aliens enter the United States, it contributes to identity theft and national security concerns, he said.
"One of the principle improvements we are seeking is a mandatory employer electronic system," Bounds noted.
The official also said the Bush administration is interested in the creation of a biometric-based, tamper-proof identification card and supports increased penalties for employing illegal aliens. Additionally, the White House has launched task forces to curtail illegal immigration rings, Bounds said.
Randy Johnson, a vice president at the U.S. Chamber of Commerce, said the group supports a new employment verification system.
Officials also discussed how to curb the incentive for illegal aliens to enter the United States and how to get them to come out of the dark without rewarding them. Another issue is how to fulfill the talent needs that U.S. companies seek and the appropriate way to allow foreigners, in some cases, to fill any industry voids.
During a Thursday session, Philip Perry, general counsel at the Homeland Security Department, said substantial congressional activity can be expected on the immigration front this year. He specifically mentioned issues related to border security, workplace enforcement and a temporary worker program.
Legislation "is not going to be easy to implement," Perry said.
On Friday, C. Stewart Verdery from the Monument Policy Group said it is hard to imagine that Congress will adjourn without passing an immigration law.
Both Jacob and Verdery, a former assistant Homeland Security secretary for border and transportation security policy and planning, said immigration reform is particularly challenging because it has so many challenging facets.
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Lobbying
Progress And Freedom Foundation Outlines Agenda
by Heather Greenfield
A market-oriented think tank that studies the digital revolution released its technology agenda for the 110th Congress on Friday.
"Technology is bringing unprecedented benefits for consumers, but vigorous competition is the engine or key to those benefits," Progress and Freedom Foundation President Daniel Caprio said. "Government should avoid regulatory interventions unless there is a market failure."
Of its list of 10 priorities, half are essentially requests for either inaction on pending issues, avoiding regulations or rolling back regulations.
PFF asks the new Congress to avoid network neutrality legislation and data-retention mandates, to ensure that outdated telecommunications regulations do not hamper innovation, to "resist the urge to pass laws that interfere with markets for copyrighted goods," and to lift restrictions on media ownership.
"We believe there is competition in the broadband market," Caprio said when talking about net neutrality, a mandate that high-speed Internet firms treat like content equally. "Without evidence of harm, the legislation would have dramatic unintended consequences."
That argument could face more difficulty with the Democratic-led Congress. Senate legislation to block broadband providers from charging more to preferred providers for faster service already has been reintroduced.
The bill, S.215, was referred to the Senate Commerce Committee earlier this month. One of the biggest arguments of bill proponents is that small Internet firms could not afford the higher fees that an AT&T or Verizon Communications might charge. The fear is that innovators starting garage-based Internet businesses might not succeed if they are competing against companies with faster Internet service and could not afford the higher fees to get a level playing field.
While PFF supports the concept of innovation, Caprio said it is always best to let the marketplace decide the winners and losers. He would not like to see Congress block proposed marketplace changes that broadband providers want to make by creating speed lanes on the Internet.
When it comes to modern media providers, PFF wants to ensure that they have the same level of First Amendment protection as their media competitors. The group said Congress should avoid imposing content regulations on new media platforms like mobile services, Web logs and social-networking sites.
PFF also would like to see patent reform that keeps in mind the principle to do no harm. "There is a need for litigation reform and improvement in patent quality," Caprio said.
As the former chief privacy officer for the Commerce Department, Caprio is concerned about privacy risks if businesses are forced to retain data for long periods. When it comes to data security and privacy proposals, he would like them to undergo "careful benefit-cost analysis."
Caprio said he is not worried about framing conservative issues before a more liberal Congress because he believes Democrats share some of the goals.
"Political affiliation aside, there is a belief in markets and maximizing consumer welfare, and those incentives still exist," he said.
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Intellectual Property
Music Industry Wins Battle Against XM Satellite
by Andrew Noyes
A federal judge in New York on Friday denied XM Satellite Radio's motion to dismiss a copyright-infringement case brought against it by major recording labels.
The case, which targets portable receivers that record live content, has been closely watched by the content and consumer electronics sectors.
U.S. District Judge Deborah Batts said XM's argument that it is protected from such lawsuits by a 1992 change to copyright law did not pass muster. The music companies claim that giving consumers the ability to make high-quality digital copies harms their industry.
The May 2006 complaint, filed by Atlantic Recording, BMG Music, Capitol Records and others, sought $150,000 in damages for every song copied by XM customers using devices marketed as "XM + MP3" players.
In her decision, Batts said the labels consented to XM's use of their material only for the purpose of providing a digital satellite broadcasting service. By storing the content, the judge said XM is changing the rules of the game.
Steven Marks, general counsel for the Recording Industry Association of America, said he is pleased that the court rejected XM's attempt to find a legal loophole to distribute sound recordings to subscribers. The company is a broadcaster and a distributor but is only paying to be a broadcaster, he said. XM is competing with companies like Napster and iTunes without obtaining the proper licenses.
"XM remains confident that the lawsuit filed by the record industry is without merit and that we will prevail," the company said in a statement. XM believes the court's ruling was based on "false characterizations" made by the plaintiffs and "the real facts strongly support our view."
Art Brodsky, a spokesman for Public Knowledge, which advocates "fair use" of copyrighted works, said the decision is "disappointing" but does not end the case. "We are confident XM and consumers will ultimately come out the winners," he said.
The case sparked a lengthy argument between panelists at a Consumer Electronics Show session on copyright law in Las Vegas last week. Marks accused XM of "trying to turn a performance service into a distribution service" but XM's Jeff Blattner called his claims "malarkey."
Public Knowledge President Gigi Sohn said the service is "very much unlike a download" because the recorded songs cannot be extracted from the devices. XM has noted that the content is only available to users for the duration of their subscriptions.
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Intellectual Property
Rep. Boucher To Resurrect Bill On Digital Copyrights
by Andrew Noyes
Legislation that would repeal a ban against circumventing anti-piracy technologies on digital content will be introduced before the end of February, Rep. Rick Boucher said this week.
The bill, which failed in the 109th Congress and in previous sessions, has been championed by the Consumer Electronics Association, Electronic Frontier Foundation, Public Knowledge and other advocates for "fair use" of copyrighted material. Movie studios and music labels have lobbied against the measure.
Boucher, D-Va., said in an interview that he is "considering some modifications" to the bill and has not arrived at a final draft. Despite minor changes, the measure would still "empower the purchasers of digital media to make fair use of the media that they lawfully acquire," he said.
The measure would uphold the landmark Betamax ruling of the Supreme Court from more than two decades ago, Boucher said. The court found that devices with substantial non-infringing uses shall not be the basis for holding manufacturers legally accountable if others use the technology to infringe copyrights.
"That decision has stood the test of time, and I think it's important that it be codified," he said. Boucher expects the same groups who supported his bill in prior sessions will rally behind it again. The fierce opposition also will remain, he predicted.
But the climate in Congress has changed for the better since last year, Boucher said. The Democrats' takeover of both chambers "creates some new opportunities for us" in the months ahead, he said.
The Electronic Frontier Foundation's Derek Slater said he is eager to see the bill because it would bring "meaningful reform" to the anti-circumvention provisions of the Digital Millennium Copyright Act. The Copyright Office's approval last November of six exemptions to digital copyright law was "a step in the right direction," but more needs to be done, he said.
California Democrat Howard Berman, who will chair the House Judiciary Courts, the Internet and Intellectual Property Subcommittee, wants to give attention to the parameters of fair use this session. Slater, who sees Berman as someone "well-known for defending Hollywood's interests," is unsure what his leadership means for Boucher's bill.
Michael Petricone, CEA's vice president of government affairs, said Berman is "fair, open-minded and process-oriented," and has "always had an open door to us." He represents the content constituency but is also "aware of the value of innovation, and he's somebody we can work with," Petricone said.
Patrick Ross, a senior fellow for the Progress and Freedom Foundation, is not optimistic that the bill would be "any more market-friendly" than previous versions. He called the legislation "hazardous to competition."
Boucher is "inclined to use the power of the federal government to mandate terms he would like to see in the digital content industry instead of letting consumers demand through the market what they would like to see," Ross said.
A Recording Industry Association of America spokeswoman said the bill would "legalize hacking tools, undermine efforts to fight piracy and diminish respect for copyright."
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E-Government
Web Access To Public Meetings May Become Popular
by Aliya Sternstein
When New York Gov. Eliot Spitzer mandated the broadcasting of all state public meetings over the Internet earlier this month, he raised the profile of a public service that many local government agencies also are beginning to offer.
Spitzer's move marks the first top-down approach to open government via the Web, said Tom Spengler, the CEO of the streaming-media service provider Granicus, which works with state and local governments.
Spitzer's executive order said the decision is necessary for the people to remain informed and retain control over their public servants, and because the majority of New Yorkers are unable to attend public meetings. "The governor is just really trying to set a precedent," Spengler said.
Granicus currently broadcasts and archives the proceedings of the Arizona Legislature and the California Public Utilities Commission. California started streaming with Granicus three years ago, Spengler noted.
"There's certainly been a trend" in the United States of putting public meetings online.
He said his company met with the governor's office in New York last year, during the tenure of Republican Gov. George Pataki.
Spengler believes "the broad reach of broadband" now is a major contributor to the acceptance of opening public meetings to the Web.
"The limiting factor hasn't been cost as much as the availability of broadband," especially in the remote rural areas that could hugely benefit from attending meetings online, he said. "I would not be surprised to see other states adopt similar policies [to New York's]."
New York has not decided whether to stream audio and video with in-house technology or contract out the work. The executive order states that every agency and public authority must submit a plan for airing meetings over the Internet by March 1.
Brad Maione, a spokesman for the governor, said New York has some capabilities in-house that it may use but the details are unclear. The state will wait to review the agencies' plans before seeking a commercial provider for technology support.
"We have an office of technology that will assist the other agencies in putting this together," he said. The state's Chief Information Officer Council also will provide guidance.
In Spitzer's inaugural address, he cited tech issues among his priorities and called for a universal broadband initiative.
"YouTube is a good example of more and more people going online for video," Spengler said of the video-sharing site that gained popularity last year. "The individual in society now has a lot of power because they have this communications channel."
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On The Hill
New Tech Bills Cover Privacy Protection And Politics
by Brittany R. Ballenstedt and Theresa Poulson
Lawmakers this week introduced technology-related legislation aimed at strengthening the privacy protections of Americans. The action came as the Bush administration announced that it would begin seeking approval from a secret court for a controversial surveillance program.
Sen. Daniel Akaka reintroduced a bill, S. 332, that would give the chief privacy officer of the Homeland Security Department authority to ensure that new technologies and information-gathering methods do not erode privacy.
"We need to consider the effects of intelligence- and information-gathering now that new government powers threaten to erode our most cherished freedoms, and technological advances appear to outpace our ability to protect personal information," said Akaka, D-Hawaii.
Also on the privacy front, Rep. Jo Ann Davis, R-Va., introduced a bill that would increase the security of sensitive data maintained by the federal government. The measure, H.R. 516, would require that all sensitive data be secured with the strongest encryption standard recognized by the National Institute of Standards and Technology.
Rep. John Doolittle, R-Calif., introduced two bills aimed at political campaigns. The first measure, H.R. 479, would direct the FTC to revise the do-not-call rules against unwanted telemarketing so people can opt out of receiving certain politically oriented telephone calls.
The legislation would enable individuals to register phone numbers with the FTC to prohibit calls that promote or solicit donations for or against candidates. Automated "robocalls" on behalf of candidates stirred controversy in last year's election.
The second bill, H.R. 481, would require all individuals wishing to vote in elections for federal offices to show government-issued photo identification.
On another front, Sen. John Sununu, R-N.H., introduced a measure that would provide access to unassigned or unused "white spaces" of broadcast spectrum. "By removing barriers that prohibit access to white spaces, there is enormous potential for entrepreneurs to bring products to market that are now beyond imagination," Sununu said of his bill, S. 337.
The legislation also would hold the FCC accountable for recent action taken on white spaces and would address any uncertainty or legal proceedings that may occur regarding authority over them.
Other technology-related measures introduced this week were:
-- S. 315, which would establish a digital and wireless technology program for minority-serving institutions;
-- S. 321, which would offer incentives for home health agencies to utilize home monitoring and communications technologies;
-- H.R. 555, which would require the FCC to prescribe rules regulating inmate phone rates;
-- H.R. 561, which would expand, on a probationary basis, the program that waives visa requirements for visitors from U.S.-friendly countries;
-- H.R. 534, which aims to provide security and safety for rail and transit systems;
-- And S. 330, which calls for secure borders and comprehensive immigration reform.
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Today's Feature:
Executive Summary
The Bush administration this week announced that it would begin getting permission from a secret court charged with handling requests for surveillance warrants on U.S. soil.
Every Friday, read the Executive Summary by K. Daniel Glover.
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E-briefs
Crime: Former Rep. Bob Ney has been sentenced to serve two-and-a-half years in prison for his fraud and false statements related to trips funded by lobbyists. The 30-month sentence is longer than the 27 months prosecutors requested after Ney, R-Ohio, pled guilty to the charges in October. He is the only congressman to be convicted in the Jack Abramoff lobbying scandal. In his plea document, Ney admitted taking numerous lobbyist-paid trips, including a $160,000 golfing trip to Scotland in 2002. Ney also will pay a $6,000 fine and perform 100 hours of community service. The sentence comes a day after the Senate passed ethics legislation that would curb lavish gifts, meals and trips from lobbyists and require members to pay for corporate jet travel. Earlier this month, the House passed an ethics package with many of the same reforms.
On The Hill: The House on Friday voted unanimously to overhaul the board that supervises the congressional page program, seeking to close the book on a sordid cyber-sex scandal that became a campaign issue in November. The bipartisan resolution would create an eight-member board with an equal number of lawmakers from each party, a former page and the parent of a current or former page. The board also would have to meet regularly. Former Rep. Mark Foley, R-Fla., resigned his seat last September after news accounts revealed how he became acquainted with male pages while they worked in Congress, and then sent them sexually explicit instant messages. The sponsors of the resolution are Reps. Dale Kildee, D-Mich., and Shelley Moore Capito, R-W.Va., two members of the page board who said they never were told about the Foley messages.
On The Hill: Seeking to dampen the impact of the State of the Union address that President Bush will give Tuesday, House Speaker Nancy Pelosi on Friday addressed some key issues that might be raised. They included innovation and high-speed Internet access. CongressDaily reports that Pelosi, D-Calif., pledged during a National Press Club speech to double federal funding for basic research and development in the physical sciences, and to modernize and expand the research and development tax credit. "We will bring broadband access to every American within five years, creating millions of jobs," she vowed, adding that innovation also requires federal grants to universities to spark more breakthroughs in science and technology. Pelosi spoke of trying to help create "a new America that seizes the future and forges 21st-century solutions through discovery, creativity and innovation, sustaining our economic leadership and ensuring our national security."
E-Government: Federal election officials on Thursday received recommendations from the National Institute of Standards and Technology to accredit two testing laboratories for e-voting equipment. NIST has recommended that the Election Assistance Commission accredit iBeta Quality Assurance and SysTest Labs under its new certification and laboratory accreditation program. The commission will conduct further reviews of both labs before voting on the accreditation, as recommended by NIST. The testing of e-voting machines has drawn increased scrutiny this month in light of an article in The New York Times disclosing that the commission had temporarily barred the Colorado firm Ciber Inc. from testing equipment.
On The Hill: Rep. Rick Boucher plans to reintroduce a bill to shield journalists against having to reveal confidential sources. Boucher, D-Va., said in an interview this week that the measure, co-authored by Indiana Republican Mike Pence, "didn't even see the light of day" last session in the House Judiciary Committee chaired by Wisconsin Republican James Sensenbrenner. He is hopeful that the panel will be more receptive under Michigan Democrat John Conyers. The measure, which Boucher said is aimed at the tenet of "preserving the public's right to know," will help facilitate "reports on government corruption and misdeeds." A Senate companion bill was introduced in the 109th Congress. Currently 31 states and the District of Columbia have enacted shield laws, according to the Reporters Committee for the Freedom of the Press.
Civil Liberties: An Arizona court has blocked a Massachusetts-based real-estate developer from unmasking the identity of a Web site operator who had criticized him anonymously over the Internet. The Superior Court of Arizona in Maricopa County on Thursday denied an attempt by Paul McCann to subpoena the identity of the person behind PaulMcCann.com, a site where users have posted negative information about their business dealings with McCann. According to the court, McCann failed to provide evidence of wrongdoing that would outweigh the site operator's constitutional right to anonymity. The watchdog group Public Citizen represented the defendant. "This victory is a win for the First Amendment right of free speech on the Internet," Public Citizen Attorney Greg Beck said in a release. "The court correctly recognized that people's right to speak anonymously online should not be violated without good cause."
Antitrust: Plaintiffs in an Iowa class-action antitrust lawsuit against Microsoft claim they have uncovered information that shows the software company is violating its four-year-old agreement with the Justice Department. AP reports that the alleged misconduct involves Microsoft's duty to share software that lets disparate programs work together. The plaintiffs' legal team has alleged that Microsoft did not disclose certain components to other programmers who want to make their products compatible with its software. Attorney Roxanne Conlin asked the judge in the case for permission to tell Justice and the Iowa attorney general what her side knows. Microsoft attorney Rich Wallis said he doubts the case revealed any information that would surprise the federal government and its independent experts who monitor the 2002 antitrust settlement.
E-Government: Illinois earlier this month issued its 100,000th digital certificate as part of an initiative to standardize how state agencies manage the authentication and encryption of applications. The state hit the milestone Jan. 3. More than 40 state agencies have adopted the public-key infrastructure solution deployed to the state by Entrust. Company officials lauded the state for taking the lead on e-government initiatives. "Their continued success -- as demonstrated by the issuance of their 100,000th digital ID -- should serve as a blueprint to other governments and organizations on how to implement a secure, efficient infrastructure for citizens, customers and clients," Entrust CEO Bill Conner said in a release.
E-Government: U.S. Archivist Allen Weinstein and a commercial online archive of historical documents are working together to digitize select records from the holdings of the National Archives. For now, the public must subscribe to view the images on the Web site, which is called Footnote, or visit a National Archives research room to see the digitized materials for free. In five years, all of the selected images will be accessible for free on the National Archives Web site. "It will immediately allow much greater access to approximately 4.5 million pages of important documents that are currently available only in their original format or on microfilm," Weinstein said. The original papers posted so far include the letters of John Hancock from the Continental Congress, civil war photographs shot by Mathew Brady and investigative case files on suspected German spies belonging to the FBI's precursor -- the Bureau of Investigation.
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