Episode 2: Februrary 09, 2010

Episode 2 is done! Despite the blanket of snow falling outside, and the possibility we might lose power, everything went smoothly. Managed to find some music that was both free and legal to use. Slowly figuring out the different mic settings. With some luck it’ll all stabilize soon.

Show notes following the jump! Apologies for any mistakes, still getting use to this process.

Tech Policy Podcast

February 9, 2010


  • Show updates: Episode 1 is up, syndication in the bag, iTunes submitted, and the website is coming together.
  • Snowmageddon – Digging out but about to get buried again!


1) Missouri Senator Claire McCaskill backs usage-based internet pricing, possibly alluding to a rejection of net neutrality.

Missouri Senator Claire McCaskill has seemed to come out against net neutrality. Speaking before the progressive think tank Third Way, McCaskill stated her support for internet service providers to charge based on usage.

The Senator was quoted as saying ‘Does the guy with seven servers in his basement — should he pay more than my mother, who can’t even imagine wanting to play Bridge online?’  ‘Should those prices be the same? I think all of us realize they can’t be.’

On the recent FCC-Comcast lawsuit, McCaskill said ‘We’ve got money available, we’ve got regulatory uncertainty, and we’ve got [a] Congress that hasn’t demonstrated they really know what to do yet.’

At this same event the Senator also criticized the American Reinvestment and Recovery Act which created a broadband stimulus plan, saying it was quote  “dumb, really, really dumb” to have divided the responsibilities between the Departments of Agriculture and Commerce.

Calls to the Senators office to clarify her position on net neutrality were not returned. It is worth noting, though, that 3 of her largest contributors have a horse in the net neutrality race. Both Time Warner and Charter Communications have contributed heavily to her reelection campaign, as has the law and lobbying firm Bryan Cave which represents Comcast.

2) More discussion has emerged on the Comcast lawsuit against the FCC.

As we reported last week the FCC got its hat handed to it by the DC District Court in oral arguments over the FCC’s handling of the Comcast peer-to-peer throttling case. Lawyers monitoring the case have said the FCC’s net neutrality efforts will largely depend on how the court rules against it, whether on procedural or statutory grounds. Many expect the court to rule against the FCC but the question is which way.

If the court rules on a procedural ruling throwing out the 2008 order or sending it back for more work, would likely have less of an impact on FCC authority over how all ISPs treat content.

However a reversal by the Court of the order against Comcast could have wider-reaching effects.

A procedural reversal would mean the FCC likely would continue its net neutrality proceeding, with an eventual order codifying those four 2005 principles and perhaps others, said a commission official.

Rejecting the order on statutory grounds could directly impact the net neutrality proceeding if it saps FCC authority over broadband service, as it would in essence say the FCC lacked the legal authority to issue such an order against an Internet service provider.

The issue of net neutrality and nationwide broadband access appears to be coming to a head with the FCC’s proposed rulemaking notice last November, the Comcast appeal, and the National Broadband Plan due out any day now. We may be in for a huge clash of issues that could derail the President’s agenda.

3) Congresswoman Doris Matsui has introduced legislation that would create a broadband subsidy program for low-income Americans.

The legislation, the Broadband Affordability Act of 2009, would require the FCC to establish a broadband lifeline program enabling qualifying low-income customers residing in urban and rural areas to purchase broadband service at reduced charges by reimbursing providers for each such customer served.

The program would similar in structure to the Universal Services Fund Lifeline program for telephone customers, which provides discounts on telephone installation and monthly telephone service to qualifying consumers.

As well the program must promote competition from broadband service providers by using neutral technology.

4) Digging deeper into the Presidents 2011 budget reveals the inclusion of cloud computing and greater funding for data management.

In case you haven’t made it through the several hundred pages of the President’s budget yet, rest assured there is some good news for the technology sector. According to Google’s public policy blog, Harry Wingo, Policy Counsel notes the budget states:

“[T]he Administration will continue to roll out less intensive and less expensive cloud-computing technologies reduce the number and cost of Federal data centers; and work with agencies to reduce the time and effort required to acquire IT, improve the alignment of technology acquisitions with agency needs, and hold providers of IT goods and services accountable for their performance.”

Later it stated “Adoption of a cloud computing model is a major part of the strategy to achieve efficient and effective IT. After evaluation in 2010, agencies will deploy cloud computing solutions across the Government to improve the delivery of IT services.”

Wingo also notes CIO Vivek Kundra will control a $35 million fund to set up innovative tech pilot projects, though that’s just a fraction of the governments $79.4 billion dollar IT budget.

5) Regulations.gov gets a much needed upgrade!

Right on the heals of USAjobs.gov the site Regulations.gov has received a much needed upgrade. The redesigned site features a dashboard of regulatory documents, A-Z index categorized by topic, instructional videos, improvements to the search functions, and better access to videos and images. If you’re interested in what the executive branch is doing with the laws passed by congress then this would be the place to go.

6) Senators turn up the heat on China’s telecom connections..

Senator Dick Durbin of Illinois has written to 30 US telecom companies asking them to provide detailed reports on their operations and human rights practices in China. Companies include Apple, Facebook, Skype, and Twitter. According to a press release from the Senators office, Durbin, as Chairman of the Judiciary Subcommittee on Human Rights and the Law, the Senator plans to hold a follow-up hearing on global internet freedom next month.  The hearing will feature testimony from Google and other companies about their business practices in internet-restricting countries, as well as from high-ranking Obama Administration officials about the Administration’s efforts to promote Internet freedom.

Also the Congressional-Executive Commission on China, which monitors human rights violations there, will hold a hearing tomorrow, February 10th, on Internet policies in China.

All of these actions follow the announcement by Google last month that it would stop censoring search results for users in China, and Google’s claim that persons working on behalf of the Chinese government hacked into Google’s GMAIL system in search of the identities of human rights activist opposed to the Chinese government.

This issue has been heated to near boiling recently. On February 4th, The Washington Post had a story which claimed Google and the National Security Organization are joining forces in the name of cybersecurity. The agreement, which has not been finalized, the National Security Agency would help Google analyze a major corporate espionage attack that the firm said originated in China and targeted its computer networks.  So in this case we have an American company asking the worlds largest electronic surveillance organization for help in figuring out what went wrong and how they can correct those problems.

Government and private telecom companies have been working together for decades, so this should be no surprise, but critics are lining up to take shots at the deal. As the Washington Post reported, Ellen McCarthy, president of the Intelligence and National Security Alliance, said

“The critical question is: At what level will the American public be comfortable with Google sharing information with NSA?”

The Post’s sources of the arrangement, speaking on the condition of anonymity, said the alliance is being designed to allow the two organizations to share critical information without violating Google’s policies or laws that protect the privacy of Americans’ online communications. The sources said the deal does not mean the NSA will be viewing users’ searches or e-mail accounts or that Google will be sharing proprietary data.

Google’s public position on privacy has moved around a bit over the past year. Most people don’t know that Google’s informal motto is “Don’t Be Evil” something they have made a central pillar of their identity, and part of their self-proclaimed core values. However this, as expected, was criticized when Google went into China back in 2006 with self-censorship (on behalf of the Chinese government). This led to Google CEO Eric Schmidt to say that pillar has been replaced by an “evil scale” balancing system, saying to not serve those users, despite the censorship, would be more evil than to serve them with censorship.

However the Google CEO raised many eyebrows in a December 2009 interview with CNBC. Mr. Schmidt was asked if people should treat Google like a trust friend. He responded by saying:

“If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place. If you really need that kind of privacy, the reality is that search engines — including Google — do retain this information for some time and it’s important, for example, that we are all subject in the United States to the Patriot Act and it is possible that all that information could be made available to the authorities.”

Almost immediately after the Washington Post story broke, the Electronic Policy Information Center submitted a Freedom of Information Act request for records involving communication between Google and the National Security Agency. And yesterday they pushed the point further saying that request must be expedited because ‘it pertains to a matter about which there is an urgency to inform the public about an actual or alleged federal government activity.’  The Center also noted that as of 2009 Gmail had more than 140 million monthly users, noting that  ‘all of whom would be affected by any relationship between the NSA and Google.’

This issue just keeps getting bigger…

In another very intense government-technology sector:

7) The Federal government is taking a bite out of child pornography but obstacles still remain…

Two years after major legislation passed by congress to give law enforcement better tools for fighting child pornography, progress is made but problems still exist. Last Thursday the National Telecommunications and Information Administration held a meeting of their Online Safety and Technology Working Group and things got a little heated between law enforcement officials and private telecoms.

Frank Kardasz, who investigates Internet crimes against children for the Phoenix Police Department, suggested some Internet providers have been less than helpful in providing data his officers have sought as part of various investigations. He said “Some ISP staff ‘are the unsung heroes who provide important puzzle pieces that we need to solve crimes. Sadly, in other cases ISPs are slow to respond and are silent, unwitting facilitators to felony offenses, totally nonresponsive.’

Christopher Bubb, assistant general counsel at AOL, cut Kardasz off mid-remarks responding that he found those comments to be very offensive, declaring that he does “not in any way, nor does AOL facilitate any child pornography. Period.’

The SAFE Act, Securing Adolescents From Exploitation-Online Act of 2007, was a bill pulled together from multiple proposals from Senators Schumer and McCain, Representative Nick Lampson, as well as then Senator Biden.

At issue for some law enforcement are the smaller internet service providers. These smaller firms can be hesitant to report suspicious material for fear of lawsuits, and because they are small they sometimes lack the resources to assist law enforcement with tracking down illegal content. Also noted by law enforcement the data retention rates for ISPs need improving, as they may get a report of suspicious material but by the time they’ve walked back the cat to the source ISP the data trail evaporates.

This raises several very important questions about data privacy and how law enforcement looks at suspicious material. Internet advocates have expressed concern about the tools given to law enforcement to investigate cybercrime, particular crimes against children, because those tools have a tendency to bleed over to other areas of law enforcement.

It’s one thing if the FBI or local law enforcement trace you themselves, which is not hard in a local or state setting, established the probably cause and evidence existence. But it’s another thing if the ISPs are the ones keeping an eye over your shoulder, collecting records of your internet use for long periods of time, and then allowing law enforcement to view those records.

Internet traffic is not individual bits and pieces. Through your internet pipe goes every keystroke, website, password and all the information displayed in your browser. Can law enforcement be trusted to parse that data appropriately and not use other information they find against you? It may sound a tad Orwellian but the mere accusation of child pornography can send you into a deep dark hole and allow the government complete and total access to your data, guilty or innocent, regardless of the validity of the accusations.

8) Congress takes a look at E-Commerce Taxation

As we all know it’s only a matter of time before the federal government finds its way into the middle of any new opportunities for taxation, but this one is very complicated, discovered at hearing Friday in the House Judiciary Subcommittee on Commercial and Administrative Law.

At issue is whether or not out-of-state retailers would have to pay sales tax if any of their affiliated business partners reside or operate in that state, the conditions of which are known as a “nexus”.

Let me give you an example of what they mean: Amazon.com has an Associates program whereby affiliates put Amazon ads on their websites and are then paid by the company for purchases made by visitors they refer to Amazon. So if you click on an affiliates Amazon ad, and purchase something, Amazon would have to pay the sales tax for the state where that affiliate resides or operates, according to whatever local sales tax they have imposed.

Amazon thought this would create such a headache that last year they cut ties with associate program members in Hawaii, North Carolina, and Rhode Island in order to avoid paying sales tax there.

This issue has also hit Overstock.com as they had advertising feeds from California affiliates which they turned off after the legislature approved a bill taxing that. The feeds were only turned back on after Governor Schwarzenegger vetoed the bill and a personal call from his office.

In an effort to streamline some of this, the Streamlines Sales Tax Project was formed in 2000 to simplify and modernize sales and use tax collection and administration. For this they came up with the Streamlined Sales and Use Tax Agreement. The agreement simplifies the process for out-of-state internet retailers to collect a tax, which is now in law in 23 states including DC and Puerto Rico, though the amount collected varies by state.

If a company, like Amazon, wants to pay the tax, rather than try to workout how much tax they owe for each locality, they can use one of four Certified Service Providers, which the agreement directs states to provide advantages to those retailers who use the CSP’s. Four companies have been designated thus far as CSP’s by the Streamlined Project.

Now why is Congress getting involved… Well since Congress has the exclusive authority to regulate interstate commerce, there is a concern among retailers and the likes that a nationwide patchwork of taxation not only interferes with congress’s authority but creates an unnecessary burden on business. The Subcommittee Chairman, Rep. Steve Cohen of Tennessee says this is a “classic situation” of states wanting more revenue and businesses not wanted to be interfered with. The Committee’s Ranking Member, Rep. Trent Franks of Arizona said he is wary of encroaching on state jurisdiction but said the justifications for applying remote taxation has been inconsistent.

The Direct Marketing Association said in submitted testimony that estimates of uncollected remote-sales taxes are ‘grossly exaggerated,’ largely based on a University of Tennessee study that came up with $45 billion in lost revenue in 2006 and which was subsequently revised to $24 billion. The study rests on ‘faulty assumptions,’ namely over representing the share of consumer e-commerce relative to e-commerce between businesses that is already taxed, and doesn’t include U.S. government data.

The SSUTA has done little to simplify taxes for businesses, which are still subject to 7,000 jurisdictions, state-by-state audits, and have no ‘uniform vendor compensation’ scheme, DMA said.

Other big names such as the Consumer Electronic Association and the Motion Picture Association of America also weighed in on the issue.

9) The House passed the Cybersecurity Enhancement Act (HR-4061) Thursday, 422-5, following a short but heated debate over costs and 25 approved amendments that dragged on all of Wednesday.

The bill, sponsored by Rep. Daniel Lipinski (D-Ill.), aims to bolster federal cybersecurity research and development and stimulate the growth of a cybersecurity workforce in the U.S. The legislation was culled together from discussion drafts approved by the House Science and Technology Committee’s Research and Innovation Subcommittee last November, and authorizes $959 million through FY 2014 for new and existing cybersecurity programs at the National Science Foundation, National Institute of Standards and Technology, and Networking and Information Technology Research and Development program.

According to Mark Bregman, Chief Technology Officer at Symantec Corp in e-mailed comments to reporters,

“This bill will help improve the security of cyberspace by ensuring federal investments in cybersecurity are better focused, more effective,”

“HR 4061 represents a major step forward towards defining a clear research agenda that is necessary to stimulate investment in both the private and academic worlds.”

10) Programs to create ‘open textbooks’ that can be shared and customized freely on the    Internet would get funding, under a bill by Rep. David Wu, D-Ore.

The Open College Textbook Act (HR-4575) would authorize the secretary of education to give grants to institutions of higher education, professors and organizations that produce open textbooks, who would submit plans for ensuring accuracy of content, wide availability, marketing, and tracking ‘formal adoptions’ of the textbooks. About $15 million would be authorized for FY 2010 and ‘such sums as are necessary’ for the following five years. Curricula and textbooks created through federal grants, such as through the National Science Foundation, would be converted to open licenses, ‘notwithstanding any other provision of law.’ The NSF director would work with the education secretary to develop peer review processes for grant recipients. The bill was referred to the House Education and Judiciary committees.

Events in and Around Washington

There are none. We’re all snowed in and it’s going to get worst.


If you enjoyed the show, drop me a line at jon@techpolicypodcast.com – if you hated it, thought something needed correcting, could be done better, or have any other thoughts, comments, or suggestions, send it along.

Visit the website: http://www.techpolicypodcast.com

Stay warm.

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