SIIA Digital Policy Roundup

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SIIA Submits Comments on U.S. Department of Commerce Green Paper
On Friday, SIIA submitted comments to the Internet Policy Task Force in response to its request for public remarks on its Copyright Green Paper. Addressing a majority of the Task Force’s questions, SIIA’s response focused in on the Task Force’s examination of the first sale defense in the digital environment. In summary, SIIA is concerned that potential application of the first sale doctrine to licensed material, or other undue restrictions that may be placed on either the ability of publishers to license or the manner in which publishers license, will make it more challenging for publishers to recoup the investment they have made to develop new products and update existing ones and to widely distribute their products and services to the public in the manner that consumers enjoy today.

President’s Privacy and Surveillance Announcement a Mixed Bag
On Friday, the President announced the outcomes of a broad-ranging review of U.S. intelligence programs. Mark MacCarthy attended this event in person on behalf of SIIA. The President’s speech followed the release by SIIA and ITI on Thursday of Global Principles for Governments Engaged in Surveillance Activities. In conjunction with his speech, the President issued a Presidential Policy Directive (PPD) that “lays out new principles that govern how we conduct signals intelligence collection, and strengthens how we provide executive branch oversight of our signals intelligence activities.” The President also provided a fact sheet that provides a general overview of his recommendations and next steps.

In general, the President’s recommendation represent a step in the right direction, including several of our recommendations, such as a call for greater transparency, the creation of a special advocate to participate in FISC proceedings, a commitment to centralize and improve the Mutual Legal Assistance Treaty (MLAT) process, and extension of meaningful human rights protections to non-U.S. persons. SIIA issued an immediate statement citing this as a positive step forward, expressing our disappointment about the lack of detailed transparency improvements and pledging to engage on the “big data review.” In addition to using the opportunity to conflate government surveillance with consumer privacy issues, the President did NOT express any support for reforming of the Electronic Communications Privacy Act (ECPA).

Trade Talks with Europe Continue with Consultation on Investor-to-State Dispute Settlement
On January 22, EU Trade Commissioner Karel De Gucht announced his decision to consult the public on the investment provisions of the Transatlantic Trade and Investment Partnership (TTIP). In early March, he will release proposed text for the protection of investments and investor-to-state dispute settlement (ISDS) and allow the EU public three months to comment. The focus of the Commission’s concern appears to be ISDS and the need to protect the national right to regulate in the public interest. The Commission has come under criticism from some civil society groups who say that ISDS would undermine the EU’s regulatory prerogatives. The consultation reflects the Commission’s strong desire to demonstrate that it is taking into account civil society, as well as business, input into TTIP. But the TTIP negotiations themselves are going forward as USTR officials have clarified. Moreover, the EUpress releaseon the subject states: “No other part of the negotiations is affected by this public consultation and the TTIP negotiations will continue as planned.” SIIA members interested in providing views on ISDS should send comments to Senior Director for International Public Policy Carl Schonander at

NIST Provides Update on Cyber Framework, Privacy Methodology
Last week, the National Institute of Standards and Technology (NIST) provided an update regarding the development of the Cybersecurity Framework. Among the changes, NIST announced its intention to substitute the proposed methodology for privacy and civil liberties in Appendix B by incorporating the alternative methodology, supported by SIIA and others in the business community, into the “How To Use” section of the final Framework with additional context on privacy derived from comments and public input. NIST also indicated that it will continue to consider privacy standards and best practices as an area of focus for future work and in the next version of the Framework. NIST is still expecting to publish the Cybersecurity Framework (Version 1.0) on Feb. 13, 2014. The Framework is intended to be a “living document,” and NIST intends to continue updating and refining the Framework based on lessons learned through use as well as integration of new standards, guidelines, and practices that become available.

David David LeDuc is Senior Director, Public Policy at SIIA. He focuses on e-commerce, privacy, cyber security, cloud computing, open standards, e-government and information policy. Follow the SIIA public policy team on Twitter at @SIIAPolicy.