Morning Consult

FBI’s Top Lawyer Urges Congressional Action on Encryption

James Baker, the top lawyer at the Federal Bureau of Investigation, recommended that Congress take a more active role in legislating on US law enforcement’s limited access to encrypted data tied to a criminal investigation. “We don’t want this debate driven by some kind of catastrophe down the road,” Baker said. Baker, the FBI’s general counsel, appeared at an event to discuss a new encryption report issued by the Center for Strategic and International Studies. “The American people, through their elected representatives, have to make a value determination” regarding encryption, he said. “The world is moving forward, and doing nothing is an action, and will result in a particular state of affairs.” “I’m not sure that a commission is going to be able to come up with a kind of granular solution, [a] highly technical solution, promptly, that we can put in place to deal with this,” Baker said.

Rep Goodlatte: Electronic Privacy, Foreign Intelligence on Judiciary Agenda

House Judiciary Committee Chairman Bob Goodlatte (R-VA) said the panel’s top tech priorities consist of updating a 1986 electronic privacy law and reauthorizing a provision in the foreign intelligence statute that allows US spies to intercept communications abroad.

The Electronic Communications Privacy Act, which was authored long before the widespread use of email and social media, doesn’t require law enforcement agencies to obtain a warrant before inspecting emails stored for more than 180 days. That standard is based on a 1980s understanding of electronic messaging that assumed anything stored for that period of time has been abandoned. “This law is outdated and contains insufficient privacy protections for Americans’ email communications in today’s digital age,” Goodlatte said. Rep Kevin Yoder (R-KS) introduced a measure in Dec that would require law enforcement to obtain a warrant before investigating an individual’s online communications that have been stored in excess of 180 days or kept in a cloud storage service.

Sen Rounds Is Ready to Lead New Cybersecurity Subcommittee

Sen Mike Rounds (R-SD), chairman of the recently created Senate Armed Services Subcommittee on Cybersecurity, views cyberspace like any other battleground. “Cyberwar is more than simply stealing emails,” Chairman Rounds said. “Cyberwar is where you’re doing damage that, if it was done using a different weapon — a kinetic weapon, a bomb or a missile — everyone would say, ‘Look, you just damaged our infrastructure. You just messed up the New York Stock Exchange. You just blew up a dam.’”

In Chairman Rounds’ view, there is little difference between a missile attack on key US targets and a cyberattack that accomplishes the same kind of destruction. Chairman Rounds said the cybersecurity panel’s first task will be to help the Defense Department craft guidelines for responding to cyberattacks — particularly those perpetrated by hostile states — that mirror the way the Pentagon responds to bombs and bullets.

Trump’s Order on Regulations Doesn’t Affect Independent Agencies Like FCC and FTC

A new executive order that requires executive agencies to find at least two existing regulations to rescind for every new rule does not extend to independent agencies, according to the White House. “All independent agencies are not covered by the EO,” said Lindsay Walters, a White House spokeswoman. “Trump independent agencies that are headed by [Republican] commissioners or [Republican] appointees will want to comply,” said Amit Narang, a regulatory expert for the consumer group Public Citizen. That group includes the Federal Communications Commission and the Federal Trade Commission. White House Press Secretary Sean Spicer described the order as the most significant regulatory rollback effort since former President Ronald Reagan established the Office of Information and Regulatory Affairs in 1981.

An Economics Bureau for the FCC

[Commentary] The Federal Communications Commission needs some structural reform. In particular, it should create an Economics Bureau tasked with conducting economic analyses of proposed rules, mergers, and other important actions, much like the Bureau of Economics at the Federal Trade Commission.

This is not a radical proposal. In addition to the FTC’s Bureau of Economics (with 78 PhD-level economists), the Department of Justice has an Economic Analysis Group within the Antitrust Division and the Securities and Exchange Commission has a Division of Economic and Risk Analysis. The FCC has no such group, although it is largely concerned with competition and consumer protection and has a similar need for economic analysis to inform its decisions. By creating an Economics Bureau similar to the FTC’s, the commission can institutionalize the role of economics. The FCC leadership should ensure that its Economics Bureau is involved in all major issues, including significant enforcement actions, and can submit its analyses directly to the commissioners to be considered alongside the recommendations of the other operating bureaus. And the FCC should require that a preliminary cost-benefit analysis be completed and put out for public comment at the same time as the corresponding notice of proposed rulemaking. Executive branch agencies operate this way; there is no substantive reason independent agencies should behave differently.

[Lenard is senior fellow and president emeritus at the Technology Policy Institute]

Senate Bill Would Exempt Small ISPs From Open Internet Transparency Rules

Sen Steve Daines (R-MT) introduced bipartisan legislation (S 228) that would exempt small internet service providers from transparency requirements under the Federal Communications Commission’s Open Internet order. The Republican-led FCC has already said it won’t enforce the requirements for small ISPs, and suggested that it would revisit the rules as part of a broader re-examination of the 2015 Open Internet order. But providers want the exemption codified into law. The lack of enforcement could give senators time to work out the bill’s details with Democrats. As of Jan 24, Sen Joe Manchin (D-WV) was the only Democratic co-sponsor. The Senate Commerce Committee is not scheduled to vote on the measure, according to an aide to Sen Daines. S 228, would grant broadband providers with fewer than 250,000 subscribers a five-year exemption from FCC requirements that they provide enhanced technical and fee data to consumers. Smaller ISPs say the cost of collecting that data is onerous and would cut disproportionately into their business. The House passed a similar bill by voice vote earlier in January.

What Commerce Dept Nominee Ross Said About Tech Policy During Confirmation Hearing

President-elect Donald Trump’s pick for commerce secretary, Wilbur Ross, testified before the Senate Commerce Committee, touching on tech subjects ranging from wireless spectrum to broadband deployment. The Commerce Department has broad responsibilities in the tech field, including jurisdiction over the federal government’s airwaves, the US Patent and Trademark Office and national science labs. Most notably, Ross said he would push to get government agencies to free up unused spectrum, a longstanding goal of Commerce Committee Chairman John Thune (R-SD). “We need more spectrum in the private sector, and I will try my best to help convince those government agencies that have spectrum and don’t really need it to permit it to be commercialized,” he told the committee.

Ross also said he would work to balance privacy protections and data protectionism in data-transfer agreements such as the EU-US Privacy Shield pact. Later, he said there would need to be a balance between national security and freeing up airwaves. He also said government airwaves could “help extend broadband to more rural communities and other segments that are underserved.” Transition of the Internet Assigned Numbers Authority will remain in place, Ross said. “As I understand it, there is no real alternative on the table to the ICANN situation. So, for the moment, there’s nothing else to consider,” Ross said. Sen Ted Cruz (R-TX), who was opposed to the transfer of power, pressed Ross further on the issue. Ross said that if he found “a realistic alternative,” he would explore it.

Data-Sharing With EU Could Change Under New Commerce Secretary

The Secretary of Commerce in the next administration will be responsible for a data-sharing agreement with the European Union that is worth billions to the US tech industry. President-elect Donald Trump’s choice for that post, Wilbur Ross, said he would uphold the deal, but he hinted that it might change in the future. There should be a “balance” between data protectionism and privacy, he said.

His comments at his confirmation hearing came the same day that an electronic privacy group requested that the next administration strengthen the privacy protections in the deal, fearing that US intelligence activities will hinder the free flow of data between the two continents. The United States currently has an agreement with the EU, dubbed “Privacy Shield,” that allows US-based businesses to send data to Europe without fear of running afoul of stronger European privacy laws. Privacy concerns continue to loom over it, however. At his hearing before that committee, Ross said he would commit to keeping Privacy Shield intact because it already exists and then added a cryptic comment about the future of balancing privacy and data localization laws.

House Passes Bills on Small ISP Exemption, Data Efficiency

The House passed two bills on unanimous voice votes Jan 10 — one that would waive certain transparency requirements for small internet service providers and one that encourages data efficiency in the federal government. The Small Business Broadband Deployment Act (HR 288), would exempt ISPs with fewer than 250,000 subscribers from transparency requirements that were mandated under the Federal Communications Commission’s controversial Open Internet order. An identical bill passed the House in March before it stalled in the Senate. Both measures were introduced by House Commerce Committee Chairman Greg Walden (R-OR). The Federal Communications Commission had a temporary exemption for ISPs with fewer than 100,000 subscribers, but it expired in December after commissioners failed to agree on an acceptable threshold for the waiver. The requirements won’t take effect until Jan. 17 due to a delay at the Office of Management and Budget. Republican FCC commissioners have promised small providers that the agency won’t enforce the requirements once they take over the FCC on Jan. 20.

The House also passed the Energy Efficient Government Technology Act (HR 306). Sponsored by Rep Anna Eshoo (D-CA), it would require federal data centers to employ energy efficient technologies. That bill also passed the House in March but was not taken up by the Senate. In a statement, Chairman Walden said he hopes the Senate will “expeditiously” act on these bills.

The Next National Infrastructure Push Must Be Powered by Broadband

[Commentary] It’s been more than 60 years since President Dwight D. Eisenhower, fresh from World War II Europe and its front-row seat to the efficiency of the German autobahn, vowed to create our nation’s interstate highway system. Now, President-elect Donald Trump is pledging to invest upwards of $1 trillion in a long-overdue upgrade of U.S. infrastructure.

A new administration and Congress present an opportune moment to take a fresh look at how we build for the future. This includes determining what from the past we must let go. Many believe a major push on infrastructure holds out the greatest hope for meaningful, bipartisan progress. It is essential that this push include broadband. Shoring up aging brick-and-mortar infrastructure is essential to maintaining our country’s safety and economic health. But only by smartly connecting the dots between this largely analog effort and U.S. digital infrastructure can we achieve national outcomes that are truly transformative.

[Jonathan Spalter is president and CEO of USTelecom, the nation’s leading trade association representing broadband service providers and suppliers for the telecom industry.]