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Privacy and Civil Liberties Board Considers Three Ways for Congress to Address Controversial Surveillance Program

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4 years ago

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WASHINGTON, June 1, 2019 – Congress needs a plan for how to proceed when certain provisions of the USA FREEDOM Act, including the controversial call detail records program, expires in December, said speakers at a public forum held by members of the Privacy and Civil Liberties Oversight Board on Friday.

According to Caroline Lynch, former chief counsel of the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, Congress has three options for moving forward. First, they could simply allow Section 215 (the provision involving call detail records) to expire, effectually repealing call detail authority.

However, this would also remove all legislative changes made to the Foreign Intelligence Surveillance Act since 2001, including the specific selection term requirement. Other important provisions that would expire include the roving wiretaps provision and the “lone wolf” amendment.

The second option would be for Congress to revisit the statute and repeal just the section dealing with call detail records, preserving selection term requirements and the relevancy standard. The challenge with this approach is that it would allow for amendments on a variety of other topics. That could be divisive and controversial, especially just before an election year.

Lynch recommended the third option: Straight re-authorization. This would keep the controversial call detail record program on the books. Although likely to be met with opposition, Lynch advised this as the “most politically expedient option.”

The board was established by the Implementing Recommendation of the 9/11 Commission Act of 2007. Although the measure calls for a five-member board, there are three current members: Chairman Adam Klein; Edward Felten a professor at Princeton; and attorney Jane Nitze. The board is responsible to make recommendations to Congress.

Some panelists disagreed with a straight re-authorization

Susan Landau, a cyber security and policy professor at Tufts University, took a different approach. She said it was important to evaluate the efficacy of the call detail program before even considering its impact on privacy. The technical advances and societal changes since 2001 make the program much less helpful today, she said.

One reason for this is that the main terrorist threat has shifted from Al Qaeda to ISIS. Whereas Al Qaeda had tight central control of terrorist attacks, providing training and direction, most ISIS-related attacks within the United States are not specifically coordinated by ISIS operators, making the call records much less relevant.

Additionally, there have been changes in communication modality, with messages increasingly being encrypted. This also makes call detail records less helpful. Landau supported removal that provision.

But George Mason University National Security Institute Executive Director Jamil Jaffer disagreed with this interpretation. Both Al Qaeda and ISIS still present a “huge” terrorist threat, he said. The fact that communication methods have changed highlights the need to “broaden our authorities,” he argued, recommending that Congress reauthorize the act and increase its scope.

Although the call record program has generated both public and congressional suspicion, Jaffer argued that the actual number of queries made is “fairly small,” thus causing minimal impact on the American people.

In all of the years that the USA FREEDOM Act has been in place, there has not been an instance of intentional abuse or misuse of the program, he said, and any mistakes that were made were quickly self-caught, self-reported, and self-corrected.

But the fact that there have been no intentional abuses does not mean that the program always works smoothly. Last year, technical difficulties led to the NSA collecting information that it was not authorized to hold. In response to this, the agency deleted all of their stored call detail records.

Some urge the call detail records program to ‘quietly die’

According to Cato Institute Senior Fellow Julian Sanchez, this unauthorized collection of information was one reason that the program should be allowed to “quietly die.” In addition, retaining large quantities of data for no purpose presents an inherent security risk.

One of the main questions discussed on Friday was why 19 million unique records were collected from just over 40 initial targets.

Lynch explained that the discrepancy between these figures is indicative of how individuals use telecommunication technologies today. The NSA is allowed to collect records for individuals up to two times removed from targets, creating exponential growth in the total number of records. Without this “two hops” rule, the effectiveness of the program would be “greatly diminished,” according to Jonathan Mayer, a professor of computer science and public affairs at Princeton University.

Jaffer suggested that the relatively low number of initial targets demonstrated the inability of the intelligence community to identify and investigate potential threats under the current laws, which he said should be “maintained and expanded.” He also assured board members that the large number of records collected should not be a cause for concern, as the records contain only metadata, which he termed “the most privacy protected” method of data collection.

However, Mayer cited his own 2016 study on the privacy properties of telephone metadata to refute this claim. The study collected telephone records of several individuals and utilized machine learning algorithms and manual analysis to match identities to phone numbers as well as making “remarkably precise inferences” about many aspects of the subjects’ lives.

Mayer also discussed a potential issue with the current call detail records program, explaining that certain numbers disproportionately communicate with other individuals. These numbers are unlikely to produce helpful information, but could potentially contain a large volume of sensitive records. Mayer highlighted the importance of finding a way to avoid collecting data from this type of number.

Former General Counsel for the House Intelligence Committee Michael Bahar pointed out that in the past five years, the potential dangers of misusing personal data have become more readily apparent, and that technology has advanced to the point where “disparate pieces of information can be readily put together to form whole pictures of individuals.”

He said that the value of call detail records to intelligence agencies is going down even as the potential risks of collecting this information increase. The publicity surrounding the USA FREEDOM Act means that terrorists likely know to communicate through several degrees of separation or through encrypted applications.

(Photo of the Privacy and Civil Liberties Oversight Board meeting by Emily McPhie.)

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Reporter Em McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for the student newspaper. In addition to agency and freelance marketing experience, she has reported extensively on Section 230, big tech, and rural broadband access. She is a founding board member of Code Open Sesame, an organization that teaches computer programming skills to underprivileged children.

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Congress

New Congress Faces Key Decisions About Broadband Funding, Infrastructure Priorities and Privacy Law

Broadband access and privacy policies present opportunities for bipartisan collaboration, Broadband Breakfast panelists agreed.

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2 months ago

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February 9, 2023

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WASHINGTON, February 9, 2023 — The 118th Congress will have critical opportunities to impact technology policy by reforming the Universal Service Fund, guiding infrastructure priorities and passing federal privacy legislation, said industry experts at a Broadband Breakfast Live Online event last week

Broadband policies present a promising opportunity for bipartisan collaboration, said Marissa Mitrovich, vice president of public policy for the Fiber Broadband Association. “These are the issues that impact every single American, and they’re not a partisan issue — everyone needs access to affordable, reliable broadband.”

The most significant upcoming development to the national connectivity landscape will likely be the infusion of funding from the $42.5 billion Broadband Equity, Access and Deployment Program, expected to be allocated to the states by June 30. Many state entities have raised concerns about the national broadband map that will determine BEAD distribution, with several claiming they lacked the necessary time and resources to adequately challenge the map’s inaccuracies.

“The challenge process is important, but keep in perspective that this first go-around is really for state allocations — it is not the round that will really then determine where it is that’s unserved and underserved,” said Shirley Bloomfield, CEO of NTCA–The Rural Broadband Association.

Bloomfield also cautioned against becoming overly distracted by the “shiny new toy” of federal funding, noting the importance of reforming existing programs to ensure that new networks being built can be sustained and will remain affordable.

“If at the end of the day consumers can’t access and afford those networks, I’m not sure how far we’ve moved the ball forward,” she said.

One key program in need of reform is the Universal Service Fund, a multi-billion-dollar fund that subsidizes basic telecommunications services for low-income households and rural communities. The USF will likely run out of money during 2024, with some even predicting that this will happen during the first quarter of the year, said Grant Spellmeyer, president and CEO of ACA Connects.

Panelists at the Broadband Breakfast Live Online session on February 1, 2023.

“That means that we’re 12 months away from a real problem…There are 16 million households, 55 million Americans relying on that program right now,” Spellmeyer added.

With the future of the program — and the connectivity it provides to millions of people — in jeopardy, Congress may have the chance to play a crucial role in extending the program, Bloomfield said. “All Americans, regardless of where they live, should have access to comparable and affordable services.”

Industry experts disagree over whether fiber should be prioritized

The BEAD program’s prioritization of fiber over other broadband technologies has drawn both praise and criticism. Proponents tout fiber’s superior speeds and longevity, while others argue that emerging technologies should be given a chance to develop.

In November, the National Telecommunications and Information Administration — the Commerce Department agency responsible for administering the BEAD program — came under fire for its stated preference for fiber, which a group of Republican senators said was in “stark contrast to Congress’s tech-neutral intent.”

“Tech neutrality is critical… There are benefits of fiber, fixed wireless, satellite and traditional mobile,” said David Grossman, vice president of regulatory affairs for the Consumer Technology Association, at the Broadband Breakfast event.

“It’s going to take every tool,” Bloomfield agreed, noting that the best technology for any given area would depend on a broad range of factors. However, she emphasized the benefits of deploying fiber when possible. “We have this opportunity, and frankly, shame on us if we don’t actually put in future-proof technology the first time around.”

Fiber infrastructure will also support the rapidly growing demand for symmetrical gigabit speeds, Bloomfield added.

Spellmeyer pointed to a new ACA Connects study making state-by-state predictions for BEAD funding allocation and outlining two national deployment scenarios: a “baseline fiber” approach and a “maximum fiber” approach.

“It’ll be up to governors to decide how they want to approach the allocation of funding, but I think a whole lot of governors can deliver a whole lot of fiber,” Spellmeyer said. “And then there will be opportunities… in very high-cost areas for wireless to play a role as well.”

Mitrovich strongly supported fiber prioritization, noting that “what might be a little bit more investment on the front end is going to really save money in the long run — and create opportunity, whether it’s through jobs, access to healthcare, access to education.”

“We believe fiber is really the most important connectivity technology for consumers and how we’re going to connect America — and the only way this happens is if government and industry work together,” Mitrovich said.

Bipartisan privacy legislation may still have a chance

Although many policy proposals may struggle to gain traction in a politically divided Congress, Grossman was optimistic about the prospect of bipartisan privacy legislation.

“It’s something everybody can relate to, both sides of the aisle, and I think that that was reflected in the fact that we got to a ‘three corners’ bill last year,” he said, referring to the bipartisan House support and Republican Senate support garnered by the American Data Privacy and Protection Act toward the end of 2022.

The primary hurdle that stalled the ADPPA’s passage was its preemption provision, which was fiercely opposed by lawmakers from states with strong preexisting privacy legislation.

Tech associations and industry groups have been generally supportive of state preemption. “It’s very clear that a patchwork of 50 state laws is not workable — it’s burdensome, particularly for startups, [and] confusing for consumers,” Grossman said.

Bloomfield agreed, emphasizing the importance of “a national standard and uniform approach that really treats all online data consistently… so consumers know what their expectations are.”

Another contentious privacy debate at the heart of the ADPPA is whether individuals should be able to sue companies for infractions. The bill’s final version included a narrow private right of action — the product of significant bipartisan compromise.

However, Grossman rejected this agreement, arguing that “private right of action is hugely, hugely detrimental to the industry and to innovation.”

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, February 1, 2023, 12 Noon ET – What Will the 118th Congress Do on Broadband and Big Tech?

Hampered by a new partisan divide, what will the 118th Congress be able to accomplish in terms of broadband and technology policy? In particular, what do broadband and technology industry groups see as realistic policy priorities under divided government? Many members of Congress want to sharply curb the power of Big Tech, including through a potential national TikTok ban. Another issue left unresolved from last Congress was the state of information privacy legislation. These developments take place against a backdrop of the largest federal investment in broadband ever. Will Congress have anything new to say about infrastructure investment, wireless communication or network neutrality?

Panelists:

  • Shirley Bloomfield, CEO, NTCA–The Rural Broadband Association
  • Grant Spellmeyer, President & CEO, ACA Connects
  • Marissa Mitrovich, Vice President of Public Policy, Fiber Broadband Association
  • David Grossman, Vice President of Regulatory Affairs, Consumer Technology Association
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources

Shirley Bloomfield is CEO of NTCA–The Rural Broadband Association, the premier association representing nearly 850 independent telecommunications companies that are leading innovation in rural and small-town America. With more than 30 years of experience representing the country’s smallest telecom operators, Bloomfield is an expert on the role of federal communications policies in sustaining the vitality of rural and remote communities and the benefits rural broadband networks bring to millions of American families, businesses and the national economy. Bloomfield has a strong track record of leadership in aligning strategic partnerships among rural telecom companies, their larger counterparts, other rural utilities and federal agencies, advancing digital equity and economic opportunities for rural Americans.

Grant Spellmeyer oversees the daily operations and affairs of ACA Connects-America’s Communications Association, a 700-member, non-profit advocacy association dedicated to serving smaller- and medium-sized, independent broadband, phone and video businesses that serve more than 10 million broadband customers nationwide. ACA Connects represents its Members and advocates their concerns before Congress, the Federal Communications Commission, and other agencies in Washington, D.C. Prior to joining ACAC, Grant was vice president of government affairs for US Cellular where his primary duties included directing the federal and state legislative and regulatory efforts across the company’s 21-state operating territory on all policy matters.

Marissa Mitrovich is the Fiber Broadband Association’s vice president of public policy, leading their efforts before Congress, the White House and regulatory agencies in Washington, D.C. She brings more than two decades of experience in governmental affairs and telecom, including previous roles as the vice president of federal legislative affairs for Frontier and vice president of public policy for Verizon, where she interfaced with the administration and worked on state government affairs issues and corporate responsibility initiatives. Mitrovich also brings experience in workforce development and public-private partnerships from her time as vice president of program development for the Wireless Infrastructure Association.

David Grossman serves as vice president of regulatory affairs for the Consumer Technology Association, where he is responsible for representing the association before the FCC, FTC and other government agencies, with a focus on broadband, spectrum policy, cybersecurity and online competition. David spent nearly a decade in public service, including serving as Chief of Staff to FCC Commissioner Mignon Clyburn, Legislative Director and Senior Advisor for Technology Policy to Rep. Anna Eshoo of Silicon Valley, and as Technology Counsel to the U.S. House Small Business Committee under the leadership of Rep. Nydia Velázquez.

Drew Clark (moderator) is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

Graphic courtesy of Digital Trends Media Group

WATCH HERE, or on YouTube, Twitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook. 

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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China

New Leadership and Priorities for Republican-Led Energy and Commerce Committee

The new chair renamed three subcommittees, hinting at the GOP’s goals for the coming term.

Published

2 months ago

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January 27, 2023

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Photo of Rep. Cathy McMorris Rodgers in 2018 by Gage Skidmore, used with permission

WASHINGTON, January 27, 2023 — Rep. Cathy McMorris Rodgers, R-Wash., recently named chair of the House Energy and Commerce Committee, announced on Wednesday the new Republican leadership and membership of each subcommittee, giving insight into which members of Congress will be at the forefront of key technology decisions over the coming term.

McMorris Rodgers also announced changes to the committee’s structure, renaming three subcommittees and shifting some of their responsibilities. The changes aim to “ensure our work tackles the greatest challenges and most important priorities of the day, including lowering energy costs, beating China and building a more secure future,” McMorris Rodgers told Fox News.

Rep. Frank Pallone, Jr., D-N.J. — now the committee’s ranking member after serving as chair for the past four years — announced on Friday each subcommittee’s Democratic membership and leadership, and named Rep. Kim Schrier, D-Wash., as the vice ranking member for the full committee.

Rep. Kelly Armstrong, R-N.D., who will serve as the committee’s vice chair, is a vocal critic of Big Tech. In 2021, he was one of several Republicans who championed major reforms to Section 230 of the Communications Decency Act.

The committee’s new names hint at some of the ways that the committee’s priorities may shift as Republicans take control. The former Consumer Protection and Commerce Subcommittee is now titled the Innovation, Data and Commerce Subcommittee and will be chaired by Rep. Gus Bilirakis, R-Fla., alongside Ranking Member Jan Schakowsky, D-Ill.

Bilirakis and McMorris Rodgers have already announced the subcommittee’s first hearing, which will focus on U.S. global technology leadership and competition with China.

The Communications and Technology Subcommittee, now led by Chair Bob Latta, R-Ohio, and Ranking Member Doris Matsui, D-Calif., also emphasized competition with China in the announcement of a hearing on the global satellite industry.

Latta has previously spoken out against the total repeal of Section 230, but he has also expressed concerns about the extent to which it protects tech companies. In an April 2021 op-ed written jointly with Bilirakis, Latta accused social media platforms of engaging in “poisonous practices… that drive depression, isolation and suicide.”

The Environment, Manufacturing and Critical Minerals Subcommittee, formerly known as the Environment and Climate Change Subcommittee, will be led by Chair Bill Johnson, R-Ohio and Ranking Member Paul Tonko, D-N.Y.

The Energy Climate, and Grid Security Subcommittee, formerly known as the Energy Subcommittee, will be led by Chair Jeff Duncan, R-S.C., and Ranking Member Diana DeGette, D-Colo.

The Health Subcommittee will be led by Chair Brett Guthrie, R-Ky., and Ranking Member Anna Eshoo, D-Calif. The Oversight and Investigations Subcommittee will be led by Chair Morgan Griffith, R-Va., and Ranking Member Kathy Castor, D-Fla.

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Digital Inclusion

CES 2023: Congressional Oversight, Digital Equity Priorities for New Mexico Senator

Sen. Lujan once again voiced concern that the FCC’s national broadband map contains major inaccuracies.

Published

3 months ago

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January 6, 2023

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Photo of Sen. Ben Ray Lujan, D-N.M., in February 2018 by Keith Mellnick used with permission

LAS VEGAS, January 6, 2023 – Sen. Ben Ray Lujan on Friday endorsed “oversight at every level” of executive agencies’ broadband policies and decried service providers that perpetuate digital inequities.

Lujan appeared before an audience at the Consumer Electronics Show with Sen. Mark Warner, D-Va., and Sen. Jacky Rosen, D-Nev., to preview the tech-policy priorities of the 118th Congress.

Among Washington legislators, Senators had CES 2023 to themselves: Representatives from the House of Representatives were stuck in Washington participating on Friday in the 12th, 13th and 14th votes for House Speaker.

Congress allocated $65 billion to broadband projects in the Infrastructure Investment and Jobs Act of 2021, the bulk of which, housed in the $42.45 billion Broadband Equity, Access, and Deployment program, is yet to be disbursed. The IIJA funds are primarily for infrastructure, but billions are also available for digital equity and affordability projects.

Several federal legislators, including Sen. John Thune, R-S.D., have called for close supervision of Washington’s multitude of broadband-related programs. At CES on Friday, Warner argued that previous tranches of broadband funding have been poorly administered, and Lujan once again voiced concern that the Federal Communications Commission’s national broadband map, whose data will be used to allocate BEAD funds, contains major inaccuracies.

Affordable, high-speed broadband is now a necessity, stated Warner. Lujan argued that policy must crafted to ensure all communities have access to connectivity.

“The [Federal Communications Commission] is working on some of the digital equity definitions right now…. I don’t want to see definitions that create loopholes that people can hide behind to not connect communities,” the New Mexico senator said, emphasizing the importance of “the digital literacy to be able take advantage of what this new connection means, so that people can take advantage of what I saw today [at CES].”

At a Senate hearing in December, Lujan grilled executives from industry trade associations over allegations of digital discrimination.

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