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

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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.)

Congress

With Congress Debating Trillions, a Community Guide to Federal Broadband Funding

Muninetworks.org has put together a handy overview of broadband programs – current and pending.

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Photo from office of Rep. Dan Newhouse, R-Wash.

September 30, 2021 – In response to the Covid-19 pandemic, Congress and the Biden Administration passed two federal stimulus relief packages with historic levels of funding for programs devoted to advancing digital equity – the American Rescue Plan Act and the Consolidated Appropriations Act.

In early August, legislators in the U.S. Senate passed the Infrastructure Investment and Jobs Act, a $1.2 trillion infrastructure package which continues many of the federal programs started by previous relief packages and includes $65 billion more for expanding high-speed Internet infrastructure and connectivity. Members of Congress returned from their summer break on September 20th and U.S. House Representatives are expected to vote on the infrastructure relief bill, which enjoys bipartisan support, on September 30th.

This guide consolidates the different funding opportunities made available through various relief packages to assist communities interested in accessing federal funds to expand broadband infrastructure and digital inclusion services. It updates ILSR’s Community Guide to Broadband Funding released in April of 2021, which describes programs established under ARPA and CAA in more detail, provides additional resources and answers FAQs.

Important upcoming deadlines are bolded throughout this guide.

Infrastructure Investment and Jobs Act – Pending 

Though the legislation is pending in Congress, the version of the Infrastructure Investment and Jobs Act passed by the U.S. Senate in August of 2021 includes $65 billion for expanding Internet access and digital inclusion initiatives. The Senate bill takes a more holistic approach to addressing the digital divide than previous relief packages, as it includes historic levels of funding for digital skills training. Of the $65 billion:

  • $42.5 billion is being issued as block grants to states to fund the deployment of broadband infrastructure in “unserved” and “underserved” parts of the country. Funds can also be utilized to deploy affordable networks to low-income, multi-dwelling units (MDUs). Block grants of at least $100 million are reserved for all states.
  • $14.2 billion is devoted to extending and making permanent the Emergency Broadband Benefit Program established under the Consolidated Appropriations Act. The name of the program will change to the Affordable Connectivity Program, the monthly stipend offered will be reduced to $30 a month maximum in most cases, and eligibility for the program will increase to include households within 200 percent of the poverty line.
  • $2.75 billion will go to NTIA to establish programs promoting digital inclusion initiatives for communities which lack the skills, technologies and support necessary to take advantage of Internet connections. Of the $2.75 billion, $1.25 billion ($250 million a year for 5 years) is allocated for a competitive grant program, $60 million is for state planning grants, and $1.44 billion is for state implementation grants.
  • $2 billion will extend the Tribal Connectivity Program administered by NTIA, established under the Consolidated Appropriations Act.
  • $2 billion for USDA’s ReConnect Loan and Grant Program to deploy broadband to rural areas.
  • $1 billion will go to NTIA to create a grant program to expand access to middle-mile infrastructure.
  • $600 million will finance private activity bonds to fund broadband projects in partnership with the private sector.

As this legislation is pending, the rules and deadlines for these programs have yet to be established. A bipartisan federal infrastructure package is expected to pass Congress in the next two months. In the meantime, check out ILSR’s recent piece deciphering broadband provisions in the U.S. Senate infrastructure bill, Broadband Infrastructure Bill: The Good, The Bad & The Ugly.

Resources:

American Rescue Plan Act – Enacted March 2021

With the American Rescue Plan Act, the federal government specifically recognized and began to address critical infrastructure and connectivity needs across the country, and provided billions to states, municipalities, and counties to expand broadband infrastructure. The federal broadband programs introduced under the Rescue Plan required eligible projects to deliver higher-speed Internet connections than the federal government has required in the past, and also placed an emphasis on funding futureproof fiber infrastructure for the first time. The American Rescue Plan appropriated:

1. $350 billion to the Coronavirus State and Local Fiscal Recovery Fund – aid sent directly to states, counties, local municipalities and Tribal governments eligible to be used to make necessary investments in water, sewer, and broadband infrastructure.

Funding Guidance:

  • Eligible broadband projects are expected to be designed to deliver Internet service that reliably meets or exceeds symmetrical upload and download speeds of 100 Mbps. In areas where the geography makes this speed benchmark impractical to obtain, projects are expected to deliver Internet service that reliably meets or exceeds 100 Mbps download and between at least 20 Mbps and 100 Mbps upload speeds.

Deadlines:

  • Communities have a relatively long window of time to expand broadband infrastructure with these funds. Though communities must allocate the funds by December 2024, broadband projects do not have to be completed until December 2026.
  • The first payment was distributed to localities earlier this summer. The U.S. Treasury is required to distribute the second payment 12 months after the first.

Resources:

2. $10 billion to the Coronavirus Capital Projects Fund – aid issued in the form of state block grants to states, territories, and Tribes to cover the costs of capital projects like broadband infrastructure, and provide funding for connectivity devices and equipment. The focus of the Capital Projects Fund is confronting the need for improved broadband connectivity which was exposed during the pandemic. Capital projects must focus on enabling work, education, and health monitoring, including remote options.

Funding Guidance:

  • The guidelines for this program urge states to pursue “projects that involve broadband networks owned, operated by or affiliated with local governments, nonprofits and cooperatives — providers with less pressure to generate profits and with a commitment to serving entire communities.”
  • Although this is not a competitive grant program, states, territories, and freely associated states must submit an Application and a Grant Plan for their allocation of the Capital Projects Fund through the Treasury Submission Portal; for Tribal Governments, the Application also serves as their Grant Plan.
  • $9.8 billion is available to states through the Capital Projects Fund; $100 million is available to Tribes; $100 million is available to freely associated states.
  • Although local governments are ineligible to be direct recipients of these grants, states can suballocate a portion of their award to local governments, nonprofits and private entities.
  • Read more about eligible projects and grant processes here [pdf].

Deadlines:

  • The Treasury Portal for the fund opened on September 24. Applicants will have the ability to apply through December 24, 2021. Once funds are awarded, eligible entities will be able to use them through December 31, 2026.

Resources:

3. $7.17 billion to the FCC’s Emergency Connectivity Fund – federal program to assist schools and libraries as they transition to remote learning by partially funding the cost of Internet services and eligible equipment.

Deadlines:

  • The initial ECF Program application filing window closed on August 13. Due to demand, a second filing window will open on September 28 and run until October 13.

Resources:

Consolidated Appropriations Act – Enacted December 2020

The Consolidated Appropriations Act directed the FCC to establish the Emergency Broadband Benefit Program and directed NTIA to implement three new broadband grant programs. The federal government addressed broadband affordability for the first time with this relief package. CAA appropriated:

1. $3.2 billion to FCC’s Emergency Broadband Benefit Program – federal program providing $50 to $75/month subsidies for monthly Internet service to eligible households. Internet plans regularly costing less than $50 per month will be free to eligible subscribers. If the participating ISP chooses to provide devices, eligible households can also receive a one-time discount of up to $100 to purchase a laptop, desktop computer, or tablet from providers.

Deadlines:

  • Enrollment for the program began in May of 2021. Funding for the program has not run out and eligible households can continue to access the program today. Learn how to apply here.
  • The program will be indefinitely extended if the pending infrastructure package passes Congress.

Resources:

2. $268 million to NTIA’s Connecting Minority Communities Pilot Program – grants available to Black colleges and universities (HBCUs), Tribal colleges and universities (TCUs), Minority-serving institutions (MSIs), and consortiums led by an HBCU, TCU, or MSI including a minority business enterprise or a nonprofit organization in the surrounding community. Eligible equipment includes Wi-Fi hotspots, modems, routers, laptops, tablets, and other Internet-connected devices.

3. $300 million to NTIA’s Broadband Infrastructure Program – grants available to partnerships between states, local jurisdictions, and ISPs to expand fixed broadband service in unserved areas.

4. $980 million to NTIA’s Tribal Broadband Connectivity Program – grants available to Tribal governments and organizations to improve broadband infrastructure.

  • The initial application filing window closed on September 1. The timeline for the program may be extended if the pending federal infrastructure package passes Congress.
  • See NOFO here.
  • NTIA Program Overview Webpage

Editor’s Note: This piece was authored by Jericho Casper, a reporter for the Institute for Local Self Reliance’s Community Broadband Network Initiative. Originally appearing at MuniNetworks.org on September 28, 2021, the piece is republished with permission.

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Congress

House Democrats Fight Against Anti-Crypto Measures in Senate-Passed Infrastructure Bill

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Rep. Anna Eshoo, D-Calif.

August 20, 2021 – Pro-crypto House Democrats pushed back against the Senate Infrastructure Investment and Jobs Act’s inclusion of crypto regulatory language, seeking to make it less broad.

The additions of cryptocurrency taxes aim to generate revenue to pay for part of the infrastructure spending. Its authors intended to reduce fraud in reports to the IRS.

Democratic California Reps. Ro Khanna, Eric Swalwell, and Anna Eshoo joined cryptocurrency enthusiasts Rep. Bill Foster, D-Illinois, and Rep. Darren Soto, D-Fla., in urging to amend the infrastructure bill in the House.

In a letter released on August 12, Eshoo advocated to Pelosi that the House should “amend the problematic broker definition,” describing the existing language as “imposing unworkable regulations.”

But there is some feeling that amendments to the bill in the House may not be necessary. According to a Treasury Department official, the agency plans to clarify its definition of a “broker” to be more specific.

Any amendments to the House would force the infrastructure measure back to the Senate.

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Digital Inclusion

Senators Reintroduce Bipartisan Digital Equity Act

Sen. Murray re-introduces bi-partisan that would provide grants to states pushing for digital equity.

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Patty Murray, D-Washington

June 14, 2021– Three Senators have introduced legislation that would provide grants to states that create digital equity plans.

The proposed legislation, reintroduced on Thursday by Patty Murray, D-Washington, Rob Portman, R-Ohio, and Angus King, I-Maine, would set-aside $60 million to establish a State Digital Equity Capacity Grant within the Department of Commerce that would “promote the achievement of digital equity, support digital inclusion activities, and build capacity for efforts by States relating to the adoption of broadband by residents of those States.”

The funds from the Digital Equity Act in the Senate would be made available to all states, foundations, corporations, institutions, or agencies. The bill was first introduced by Murray in 2019.

Each state will receive a different grant amount depending on a formula that includes population and access to broadband across the state, to be spent within 5 years of receipt.

In addition to funding for states, the bill creates a  $125-million Digital Equity Competitive Grant Program. This program is also for state agencies and institutions but is more specifically geared toward those that are responsible for “adult education and literacy activities.”

Infrastructure portion

A final pillar of the bill is to create more infrastructure and resources for future development of policies that will continue to promote a bridging of the digital divide.

During a press conference on the bill, Murray told the Broadband Breakfast that she believes the bill will be successful because it gives states and local communities the ability to decide what their needs are. “We cannot dictate that in D.C.,” she remarked.

When asked why the bill will create more permanent solutions, she stated that it, “Provides for the diversity of needs that are going to continue to be out there.”

The senators co-sponsoring the bill said they are confident it will make its way into any infrastructure legislation passed by Congress.

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