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Privacy
Panel Wants Another Crack At Protecting Phone Data
by Andrew Noyes
The House Energy and Commerce Committee on Friday explored ways to thwart fraudulent access to consumer telephone records at a hearing that addressed what its chairman called a "problem that faces every American that has a phone."
Michigan Democrat John Dingell and a number of his colleagues urged swift action on a bill, H.R. 936, that would change FCC and FTC rules to curb a practice called "pretexting," which involves accessing the telephone records of others under false pretenses.
The panel unanimously approved the same bill in the 109th Congress, but "for some strange reason [it] mysteriously disappeared from the House floor schedule," he said. Congress did pass a measure criminalizing pretexting, which President Bush signed into law in January.
The call for action came after a 2006 corporate scandal involving Hewlett-Packard, which spied on employees and reporters as part of a probe into a news leak.
A chorus of committee members trumpeted the new bill during their opening remarks. Rep. Fred Upton, R- Mich., said the companies have a "duty to protect their customers," and lawmakers must close the legal loophole that allows anyone with "bad intentions and a few bucks" to obtain citizens' telephone call details.
Massachusetts Democrat Edward Markey, chairman of the Telecommunications and the Internet Subcommittee, said the sale of "the most intimate details of a person's life" can be dangerous. Rep. Bobby Rush, D-Ill, who chairs the Commerce, Trade and Consumer Protection Subcommittee, called the bill a "hard-hitting but deliberative response."
Lydia Parnes, director of the FTC's Consumer Protection Bureau, told the committee that aggressive enforcement is the key to safeguarding citizens, and the legislation would let her agency obtain civil penalties from the frauds, which it cannot do under current law.
FCC Wireline Competition Bureau Chief Thomas Navin said his agency takes consumer data breaches "very seriously" and is committed to strengthening rules to help ensure that carriers implement adequate privacy practices.
But Marc Rotenberg, who runs the Electronic Privacy Information Center, criticized the FCC's lack of action to improve the security of American consumers' calling data. Despite the commission's intent, he said there has been no final action to direct carriers to establish clear guidelines. Rotenberg supports the bill because he believes the one enacted last year "did not address the source of the problem."
Applying existing laws and strengthening penalties for "bad actors" is the best way to move ahead, U.S. Telecom Association President Walter McCormick said. He is concerned about a section of the measure aimed at expanding data protection through changes at the FCC.
That provision would neither increase customer security nor reduce the amount of marketing materials for customers, McCormick said. Customers may even see an increase in solicitations because carriers would have to take a more generic approach to marketing, he warned.
Steve Largent, who heads the wireless association CTIA, also questioned that section. New restrictions on sharing customer proprietary network information, or CPNI, with affiliates and partners would be burdensome and would not prevent pretexting, he said.
His industry is worried about inflexible proposals and urged the committee to adopt a narrowly targeted bill that responds to "actual problems" rather than theoretical possibilities.
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Civil Liberties
Misuse Of 'National Security Letters' Spurs Outcry
by Andrew Noyes
Problems with the FBI's use of a special subpoena power for terrorism suspects "must be addressed immediately," Attorney General Alberto Gonzales said Friday in response to a new report from the Justice Department's inspector general.
The paper criticized how the bureau has employed the power to issue "national security letters" under the 2001 anti-terrorism statute known as the USA PATRIOT Act. The law lets investigators obtain telephone, e-mail and financial records without judicial approval. The inspector general's audit found 22 possible breaches of internal FBI and Justice regulations, some of which were potentially illegal.
In a letter to Inspector General Glenn Fine, Gonzales said he had spoken with FBI Director Robert Mueller, who "already has taken specific steps to correct past mistakes" and to ensure the agency will use the power in "an appropriate manner in compliance with all applicable laws and internal policy requirements."
Gonzales further asked the department's national security division and privacy and civil liberties office to work with the FBI on corrective actions, and to determine whether more reforms are needed. Fine is to report back to Gonzales on the FBI's progress in four months.
Senate Judiciary Chairman Patrick Leahy, an outspoken critic of the Bush administration's secret monitoring, said the letters are "a powerful tool, and when they are misused, they can do great harm to innocent people."
The Vermont Democrat said in a statement that the violations "might all be continuing" if it were not for provisions in the law that require disclosures of how the letters are used. He said his panel will conduct "extensive hearings" on the report's findings, their significance and possible remedies. Mueller will be called to testify later this month, Leahy said.
Michigan Rep. Pete Hoekstra, the top Republican on the House Intelligence Committee, called the breach "a major failure by Justice to uphold the law" and said he was angry that Congress was not properly notified of nearly 4,600 letter requests that have been issued.
The committee's chairman, Texas Democrat Silvestre Reyes, said in a statement that the report presents "a highly troubling picture of mismanagement, lack of effective controls and shoddy record-keeping." He said his committee also plans to hold hearings.
The Electronic Frontier Foundation, a San Francisco-based high-tech watchdog, urged lawmakers to take "aggressive" action on the issue. Staff Attorney Marcia Hofmann said Congress "must use its investigative power to find out what's really going on at the FBI" and rein in the bureau's investigative authority to a pre-PATRIOT Act level.
The inspector general's revelations came as "no surprise" to Anthony Romero, executive director of the American Civil Liberties Union. He also was not shocked that Gonzales seemed "eager to blame the FBI" for the abuses. "The attorney general and the FBI are part of the problem, and they cannot be trusted to be part of the solution," Romero said.
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Campaigns
Connecticut's Call For Campaign Crackdown Panned
by Michael Martinez
Now that Connecticut has switched to a public campaign-financing system, some of its lawmakers are pushing a proposal to hold candidates accountable for how they use the taxpayers' money to campaign, including expenditures for online efforts.
A campaign reform measure sponsored by a group of Democrats in the state Senate would require candidates to identify themselves in all advertising, direct mail and automated telephone calls, and they would have to support the facts cited in those venues with documented citations.
The bill, S.B. 547, also would prohibit candidates from using public money to create Internet videos containing content altered or fabricated for the purposes of defeating one of their opponents.
"We think that in exchange for public financing, there also needs to be more accountability for what the public is paying for," said state Senate President Pro Tempore Donald Williams.
Other lawmakers who have signed onto the bill include Senate Majority Leader Martin Looney and Sens. Bill Finch and Gayle Slossberg. A hearing on the legislation was held last week.
The proposal has some critics online. Some authors of Web logs fear that it would curb their ability to participate directly in the Democratic process.
Matt Waggner of the Democratic blog My Left Nutmeg said the bill appears to actually target political bloggers and to regulate the kinds of relationships they maintain with campaigns. "It'd certainly regulate how we do things around here, and political bloggers in [Connecticut] would at the least be wise to consult a lawyer should this proposal become law," he said.
Markos Moulitsas Zuniga of Daily Kos also described the proposal as "so unconstitutional it's laughable."
Bloggers played a key role in last year's Nutmeg State election. Liberal online activists declared a victory in August when former telecommunications executive Ned Lamont defeated U.S. Sen. Joseph Lieberman in a Democratic primary. But Lieberman continued the race as independent candidate and retained his seat.
Controversy erupted shortly before the primary when Jane Hamsher of the Firedoglake blog posted to the Web a doctored photograph of Lieberman in blackface. Hamsher had been traveling with Lamont's campaign but was not the payroll. She also helped him to produce his first video blog last summer. She pulled the blackface image offline at the request of the Lamont campaign.
But Williams said only bloggers on campaign payrolls would be affected by the law. He said the bill was crafted carefully so as not to limit constitutionally protected political speech.
"We're talking about paid advertising here," Williams said. "Their speech isn't going to be regulated by this."
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Cyber Security
Officials Admonish Industry To Better Protect Systems
by Heather Greenfield
Greg Garcia, the Homeland Security Department's cyber czar, is looking at incentives to encourage businesses to better protect their networks and sensitive information, and he hopes Congress does the same.
In response to questions at a two-day Visa Security Summit this week, Garcia said he likes the idea of a "Good housekeeping seal of approval" for cyber security. "I think we need to get ourselves to a point where we have some sort of third-party validation of security," he said noting that it could be by sector because a broad standard would conflict with different business models.
Garcia said any good security seal of approval "needs to be vetted in a sector so we can say this is the standard and we call all be accountable."
Commerce Undersecretary for Technology Robert Cresanti said he understands the need for businesses to make every nickel spent on security count. He said businesses that do invest will weather cyber threats better than competitors, and he believes businesses are "profoundly motivated" to make sure they address problems.
Former Federal Trade Commissioner Orson Swindle, now a senior policy advisor at Hunton & Williams, had his own motivational speech for the audience of mostly bankers and retailers.
"If data security breaches continue, the government is going to step in and regulate," Swindle said. "If we don't solve these problems, the government will attempt to solve them, and they're not very good at it."
Swindle said government has already made a mess in some ways because rules for the banking agencies on data protection are not consistent with those from the FTC and Securities and Exchange Commission.
Oliver Ireland, a law partner at Morrison & Foerster, helps clients that have had security breaches meet the requirements of different state laws. He said that instead of finding ways to prevent the problem, more than 30 states have passed laws requiring that consumers be notified of the loss of their sensitive information.
Ireland said in practice that means he focuses on fulfilling the requirements of a few of the more different state laws -- Connecticut, North Carolina and North Dakota -- to make sure his clients are covered legally. He said it is unfair that those states decide how a company handles a breach regardless of what the Florida or New York legislatures put into their legislation.
"We need to arrive at a consistent [national] standard one way or another," Ireland said.
Last Congress, several different House committees offered competing data-security bills. Mike Quaranta, the chief of staff for Rep. Michael Castle, R-Del., said Castle wants the legislation that emerges this session to clearly outline who pays for the impact of data breaches, who is responsible and who communicates with consumers.
Quaranta said Castle has asked the Government Accountability Office to examine data breaches over the past few years to see "who was truly harmed." "It's important to understand the context of the size of the problem so we don't go too far in over-regulating," he said.
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Intellectual Property
Schools See Anti-Piracy Tools As Costly, Ineffective
by Aliya Sternstein
Some universities are installing anti-piracy technology to stop students from downloading illegal music on their networks, but other colleges say such technologies are not effective enough and too expensive.
On Thursday, the House Judiciary Courts, the Internet and Intellectual Property Subcommittee held the fourth hearing in four years on the issue of piracy on university networks. Witnesses from the technology industry, recording industry and academia all agreed that more work must be done to change the behavior of college students, with research showing that more than half of them download music and movies illegally.
"It doesn't have to be like this," testified Cary Sherman, president of the Recording Industry Association of America. "[B]ut far too many [schools] have yet to step up and take responsibility for their students on their networks."
He added that products, like software made by witness Gregory Marchwinski of Red Lambda, "are promising as effective and comprehensive solutions that maintain the integrity, security and legal use of school computing systems without threatening student privacy."
Red Lambda, developed at the University of Florida to combat illegal file-sharing there, identifies only the method of online sharing -- not the content of the music or video -- thereby protecting the user's privacy. The program is "enemy number one to illegal file-sharers and best friend to privacy rights advocates," Red Lambda CEO Marchwinski said.
In addition, the tool lets the university permit legal, peer-to-peer activity at its discretion. The National Aeronautics and Space Administration and the National Science Foundation are among the growing number of research institutions using file-sharing to exchange information.
RIAA just began a new anti-theft initiative, sending 400 settlement letters to 13 universities that said the RIAA plans to file copyright-infringement lawsuits against their students. The students will be able to avoid such suits for music theft by settling at a discounted rate before litigation. Some of the major violators included North Carolina State University (37 letters), Syracuse University (37) and the University of Nebraska at Lincoln (36).
Syracuse University spokesman Kevin Quinn said the school does not have piracy-prevention technology because some of its faculty and students participate in legal file-sharing as part of their academic work. He added that "we are continually evaluating the current issues and potential options surrounding these matters."
North Carolina State University spokesman Keith Nichols said, "It's our belief that there is not a technology available that would prevent illegal downloading." A new higher education task force is working with the entertainment industry and technology vendors on requirements for network filtering that would give schools greater control over unauthorized distribution of content.
At the University of Nebraska at Lincoln, spokeswoman Kelly Bartling said network filters created by Packeteer have curbed illicit bandwidth use in residence halls.
"It does appear to us, however, that this isn't an educational problem any longer," she said. "Many students arrive on campus engaging in this practice for many years; they are well aware of the issues, and our policies, and the consequences. There seems little opportunity to engage them in 'teachable moments,' although we continue to try."
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On The Hill
Lawmaker Seeks To Suspend Visa-Waiver Program
by Theresa Poulson
While senators fought over security legislation on the floor this week, a House lawmaker sought to suspend the visa-waiver program on the grounds that it could put national security at risk.
Rep. Phil Gingrey, R-Ga., introduced a measure, H.R. 1342, that would stop the program until a machine-readable, tamper-resistant, biometric system for screening immigrants is in place.
The program currently lets citizens of 27 U.S.-friendly countries enter the United States without applying for visas. Gingrey said it "trusts the security of our nation to the background checks and passport procedures of foreign countries."
He added: "Terrorists operate in all countries. Why are we ignoring important security procedures because someone's passport is British, French or Canadian?"
Other measures aimed at addressing security issues were:
-- H.R. 1314, which would require federal government and financial institutions to only accept certain forms of identification;
-- H.R. 1392, which would require homeland security grant recipients to submit reports on grant expenditures;
-- H.R. 1401, which aims to improve the security of railroads and other public transportation; S. 763, which aims to provide resources to protect public transportation from terrorism;
-- And H.R. 1413, a bill that would direct the Transportation Security Administration to address vulnerabilities in aviation security.
Other tech-related measures introduced this week were:
-- S. 761, which calls for government investments in innovation and education to improve U.S. competitiveness (see separate story);
-- S. 804 and H.R. 1381, which would require all electronic votes to have paper receipts (see separate story);
-- H.R. 1309, which aims to strengthen the Freedom of Information Act (see separate story);
-- H.R. 1326, which seeks to strengthen FOIA by creating a broader definition of "news media" and establishing a system so individuals can track their requests;
-- H.R. 1368, which would create financial incentives to encourage the adoption and use of interactive personal health records;
-- H. Res. 224, which would encourage corporate owners of Web sites that share user-posted videos to remove footage containing terrorism propaganda;
-- S. 806, which aims to give consumers tools to protect themselves from identity theft by allowing them to prevent unauthorized access to credit reports;
-- S. 780, which would prohibit the unlawful acquisition of telephone records;
-- H.R. 1383, which would penalize the misuse of automated "robocalls";
-- S. 781, which would extend FTC authority to collect do-not-call registry fees;
-- H.R. 1320, which aims to protect existing television band devices in the unassigned, non-licensed television channels from the interference of new devices;
-- S. 760, which calls for giving certain counties reception to the television broadcast signals of their choice;
-- S. 785, which would limit the state income tax of nonresident telecommuters;
-- And H.R. 1405, which would establish an information network on international wildlife to combat the threat of diseases such as bird influenza.
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Culture
All This Technology And No Power Outlet In Sight
by Winter Casey
Anyone who has needed to use a laptop computer at a policy conference is acutely aware of one major limit of the technology revolution: battery power. Even in an age when laptops can be equipped with wireless Internet access, the owners still need to be near outlets to recharge.
"The more wireless Internet has become available just about everywhere you go, the more people are using their computers, and the more people are using their computers, they are using their battery supply pretty quickly," said Timothy Humphrey, director of battery technology at the computer maker Lenovo. The battery loss is even faster with the newer, energy-sucking screens and additional hardware features of the latest computers, he added.
"Industry as a whole, to really defeat the problem, is going to have to have a technology breakthrough in the area of charging," Humphrey said, and Lenovo is constantly evaluating new technologies to get more battery life.
Many conference attendees or frequent airport travelers these days can point to the gravitational pull of traditional power outlets to people with laptops. Even at the Progress and Freedom Foundation's annual summit in Aspen, Colo., with the world's "most prominent business leaders, probing thinkers and influential policymakers" likely carrying the latest in technology, power remains a "big, big issue," said Jane Creel, PFF's director of finance and operations.
Creel said all of the conference's classrooms are set up on risers with electrical outlets strategically placed so people can use their laptops without the fear of the blinking battery lights warning of blank, black screens. Creel noted that in her airport travels, she has sat on the floor to connect to a wall outlet.
Other tech challenges at conferences include the lack of wireless Internet access and cellular telephone coverage in the rooms where events are held, according to conference attendees.
At the St. Regis hotel in Aspen, home to the PFF event, no wireless access is offered on the underground ballroom level, Creel noted.
But companies are aware and spending plenty of energy toward keeping computers alive at least from breakfast through lunch, according to David Weinberg, general counsel of the Portable Rechargeable Battery Association. The batteries used in laptops did not exist 15 years ago, Weinberg noted, and the technology has made portable computers possible.
He said most laptop battery power these days ranges from 1.5 hours to three or four hours. "The holy grail is for portable computers and similar products to be able to have quite long run times," Weinberg said.
All battery manufacturers listed on PRBA's membership list have major research and development programs under way aimed at extending battery life, he noted. While many battery companies and startups look to create batteries with longer life and energy density, he added that "the device manufacturers are looking to make the devices more efficient."
Humphrey said one of Lenovo's strategies is to have more controls built into computers for people to use the available power more efficiently.
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Clarification
A story in Monday's PM Edition stated that Google Apps Education includes up to 10 gigabytes of Gmail storage. Google clarified that the free Google Apps Education edition provides 2 gigabytes of storage. The Google Apps Premier Edition, which is not free, offers 10 gigabytes of storage.
Today's Feature:
Executive Summary
Smaller Internet radio stations don't appear likely to get their wish when it comes to royalties.
Every Friday, read the Executive Summary by K. Daniel Glover.
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E-briefs
Security: Unable to bridge their differences over pending amendments, senators on Friday delayed a final vote on a homeland security bill. Among others, aides said the amendments set to be voted on Tuesday would: create a national Internet-enabled emergency communications network; alter data-mining requirements in the bill; require the Senate Homeland Security and Intelligence committees to report on intelligence reform and congressional intelligence oversight; ensure the fiscal integrity of grants awarded by the Homeland Security Department; prohibit the use of a peer-review processes in determining allocation of grants for high-risk urban areas; allow public-safety agencies to use certain security grants to cover personnel costs; and sunset every provision in the bill at the end of 2012, in order to ensure that Congress reviews them.
Competitiveness: Sen. Norm Coleman on Friday filed legislation that would make the research and development tax credit permanent, give businesses a 50 percent tax break on employee technology training, and award $500,000 to the top five primary and secondary schools that improve their mathematics and science test scores. "We need to do what is necessary to keep the U.S competitive, starting with research and development and a better educated workforce," said Coleman, R-Minn. The bill also would increase Pell grants for college and increase allowable charitable contributions that corporations can make for math and science education programs. "We believe that investing in the American workforce is absolutely essential toward keeping the U.S. globally competitive," said Roger Cochetti, the public policy director for the Computing Technology Industry Association. "This bill, particularly its provisions on IT training and R&D, goes a long way in that direction."
Telecom: FCC Chairman Kevin Martin on Friday highlighted the importance of women and minorities having equal opportunities in the telecommunications arena. Speaking at the America Women in Radio and Television annual conference, he said the approach the commission has taken to help women and minorities is through aid targeted at a people's economic status. In late 2006, some members of the FCC's re-chartered diversity committee raised the possibility of a tax incentive to help give socially and economically disadvantaged people and businesses equal access to modern technology. During the meeting Martin noted the importance of ensuring that all people -- especially women and minorities -- have access to modern communications. He said that supporting diversity is one of the FCC's core objectives. On another front, Martin said it would be helpful if people could lease programming streams without having to buy towers in order to broadcast programs.
Cyber Security: Most small businesses think that data security is important and that they have good security, but they do not, according to Dan Danner, executive vice president of the National Federation of Independent Business. Danner released the results of an NFIB survey at the Visa Security Summit. It found that 52 percent of companies handle sensitive personal data, but 57 percent do not believe security required formal planning and 39 percent said they rely on "common sense" to keep data safe. For 84 percent, one of the common-sense tactics is to require a password to access customer information. But Danner said 65 percent of the sensitive data is stored on computers accessible by the Internet, and 61 percent said they had never sought information on handling and storing customer information. Danner said that in response to the survey, NFIB is launching an educational campaign with regional summits and Web seminars.
Intellectual Property: The U.S. Federal Circuit Court of Appeals this week announced that an appeal of MedImmune v. Genentech, a patent battle between two biotechnology firms, has been reinstated on its docket. The Supreme Court ruled in January that MedImmune could challenge a Genentech patent even though it had licensed the rights to use it. The Patent and Trademark Office last month issued a final rejection in the re-examination of the Genentech patent at the heart of the dispute, but the company plans to fight the decision. The appeals court has not decided whether it will rehear the case itself or remand it to a trial court, Foley & Lardner attorney Harold Wegner said in an e-mail.
Broadband: In a letter to Maryland state Delegate Herman Taylor on Friday, assistant state Attorney General Kathryn Rowe said a network neutrality proposal that Taylor has crafted would not be pre-empted by federal law. Her letter clarified a response written last month to questions by Delegate Mary Ann Love. The bill in question would require Internet service providers to provide certain information about their businesses to the state Public Service Commission. It is designed to ensure that network operators do not charge premium rates for high-speed access. Rowe said the previous letter was intended to answer whether portions of Taylor's proposal would be pre-empted by federal law if it were considered regulatory language. Because those portions of the bill only were stated as "findings" of the legislature and would not impose regulatory requirements, they would not be pre-empted, Rowe said.
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