Jimm Phillips

Industry participation remains critical to the success of the National Institute of Standards and Technology-facilitated (NIST) Cybersecurity Framework, federal officials said Friday during a USTelecom event. The federal government’s focus in the three months since NIST’s February release of the “Version 1.0” framework has shifted toward encouraging critical infrastructure entities to use the framework and tailoring the framework to sector-specific uses, officials said. The FCC is in the process of determining what role it can play in the communications sector’s voluntary use of the framework as a risk management tool, said Public Safety Bureau Chief Counsel Clete Johnson. USTelecom Vice President-Industry and State Affairs Robert Mayer told us he believes the commission will and should continue to allow the private sector to drive the process of determining the FCC’s role in that process.

The Senate Intelligence Committee’s draft Cybersecurity Information Sharing Act (CISA) has support among industry executives we spoke with, while major privacy advocates who opposed the House-passed Cyber Intelligence Sharing and Protection Act (CISPA) said they also have significant concerns about CISA. That bill, which Senate Intelligence leaders had been working on since last year, tracks with many aspects of CISPA (HR-624) but has what proponents believe are improved privacy protections (CD April 30 p19).

The FCC violated the Americans with Disabilities Act and the Administrative Procedure Act when it created rules last year meant to curb misuse of the Internet Protocol Captioned Telephone Service (IP CTS), Sorenson and subsidiary CaptionCall said, urging a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit Tuesday to strike down the rules. The agency contends it acted within the bounds of ADA and APA, though at least two of the three judges said they had concerns.

The Department of Justice “has properly withheld” docket information from Freedom of Information Act (FOIA) disclosures to the American Civil Liberties Union for prosecutions in which the government had obtained cellphone tracking data without a warrant and the defendant had been either acquitted or had the charges dismissed, the U.S. Court of Appeals for the D.C. Circuit ruled Friday (http://1.usa.gov/1kXq2Lw). The court had said in its original 2011 decision in the case that Justice needed to disclose the docket information to the ACLU in cases in which the defendant was convicted (CD Sept 7/11 p6). The court’s 2011 decision did not touch on whether DOJ needed to also disclose that information when the cases ended in acquittal or dismissal. The court now believes Justice could withhold that information in those cases “given the substantial privacy interest individuals have in controlling information concerning criminal charges for which they were not convicted,” said Judge David Tatel in the majority opinion for the three-judge panel. Judge Janice Rogers Brown dissented, noting in her opinion that “the right to be left alone, once forfeited, is gone for good. An individual who is indicted and tried has no privacy interest that can protect the public record of prosecution from disclosure -- even if the ultimate outcome was acquittal or dismissal.” The ACLU believes the D.C. Circuit erred in its majority opinion, said ACLU of the Nation’s Capital Legal Director Arthur Spitzer, who argued the case. “The idea that someone who’s been publicly indicted in federal court has any real privacy interest in that fact seems unrealistic to us,” he said, noting that docket information in those cases is easily searchable over the Internet.

The Senate Judiciary Committee again postponed its markup of the Patent Transparency and Improvements Act (S-1720) Thursday amid stakeholder perceptions that time is running out for the bill. Committee Chairman Patrick Leahy, D-Vt., did not mention S-1720 during a committee meeting Thursday, but in a statement said he’s “continuing work with other members of the committee to address constructive comments from both sides” on a compromise manager’s amendment to the bill. Leahy had planned to release the manager’s amendment in late April after what had been viewed as significant progress in negotiations over the recess (CD April 29 p6). Negotiations have since been bogged down over several controversial provisions, an industry lobbyist said. The committee will need to act on S-1720 soon to get it through the full Senate, the lobbyist said, saying there’s a limited pre-summer window to get legislation through before the midterm election campaign slows further action. CEA criticized the committee’s latest delay Thursday, with Senior Vice President-Government Affairs Michael Petricone saying in a statement that “every week the committee waits to take action, patent trolls siphon off another $1.5 billion from the U.S. economy.”

The Department of Homeland Security views improved cybersecurity workforce training as one of its top cyber priorities, said Phyllis Schneck, DHS deputy undersecretary-cybersecurity, during a Senate Appropriations Homeland Security Subcommittee hearing Wednesday. Subcommittee Chairwoman Mary Landrieu, D-La., and several industry witnesses also highlighted the need for more rigorous cybersecurity workforce training, but said they believe DHS needs to delineate specific training requirements. Secretary of Homeland Security Jeh Johnson has emphasized cybersecurity education since he took over DHS in late December, and brought Schneck on his first cyber recruiting trips to Georgia Tech and Morehouse College, she said. DHS is working to improve cyber training by identifying necessary skills, current cybersecurity curricula and introducing scholarships involving federal cybersecurity service, Schneck said.

Changing trends in the way consumers use digital media are prompting telcos and programmers to retool many aspects of their business models, executives from AT&T, Qualcomm and Turner Broadcasting said Friday at a Brookings Institution event. The event coincided with Brookings’ release of a paper by Darrell West, founding director of its Center for Technology Innovation, that reports digital media’s biggest area of growth has been video streaming, particularly over mobile devices. The paper also noted growth in the number of smart devices and the Internet of Things (IoT) and the ongoing IP transition, as major factors in digital media changes (http://bit.ly/1ob3ZV6).

NAB CEO Gordon Smith should “withhold final judgment” on the FCC’s treatment of broadcasters in the TV incentive auction rules “until he sees what the final rules are and he hears from his own members and others in the broadcast industry” about the order, said CTIA Vice President-Government Affairs Jot Carpenter on an upcoming episode of C-SPAN’s The Communicators. The interview will be available online Friday and will run on C-SPAN2 Monday. Smith said during a speech at the NAB Show in April that “ours is the only industry the auction can actually harm,” saying later “it is at best an open question” whether the FCC has balanced the aims of freeing up more spectrum and protecting the broadcasters.

The Senate Judiciary Committee appears unlikely to have final language ready on a compromise manager’s amendment to the Patent Transparency and Improvements Act (S-1720) in time to mark up the bill Thursday, several industry observers told us Wednesday. Negotiations on the compromise language continued Wednesday, a Senate Judiciary aide told us. A markup of S-1720 remained on the agenda for the committee’s executive business meeting Thursday, which is to begin at 10 a.m. in 226 Dirksen. Chairman Patrick Leahy, D-Vt., had hoped to release the text of the manager’s amendment as soon as the Senate returned from recess Monday (CD April 29 p6). Work on the manager’s amendment has been complicated in part by the Supreme Court’s rulings Tuesday in two patent cases on the application of fee-shifting rules, two industry lobbyists told us. The two cases -- Highmark v. Allcare Health Management System and Octane Fitness v. ICON Fitness & Health -- collectively loosened fee-shifting rules, which patent revamp advocates said the U.S. Court of Appeals for the Federal Circuit was applying too stringently. The rulings drew praise from several patent revamp advocates, including the Computer and Communications Industry Association (CCIA) and the Internet Association. The rulings are a “bump in the road” because “they're in the same sandbox as the legislation,” said Cathy Sloan, CCIA vice president-government relations, in an interview. “As drafters of the legislation, you have to adjust for that. They're not big changes, but you can’t just pretend the new precedent isn’t there. You have to draft around it a little bit.”

Supreme Court justices spent much of Wednesday’s oral argument on Limelight Networks’ appeal of a patent infringement case brought by Akamai Technologies discussing whether their own ruling would have any real finality. The U.S. Court of Appeals for the Federal Circuit had ruled in favor of Akamai and the Massachusetts Institute of Technology (MIT) in August 2012. The appeals court said Akamai could argue that Limelight’s and its customers’ collective use of Akamai’s business method patent constituted “divided” or “inducing infringement,” meaning a company could infringe a patent by inducing a third party to take the final step that leads to infringement (CD Sept 4/12 p16). Limelight’s appeal of the case drew support from the Obama administration, along with technology companies like Cisco, which say the induced infringement argument would open them up to more lawsuits from patent assertion entities. The U.S. government believes the appeals court was wrong to find induced infringement because neither Limelight nor its customers’ actions alone constituted direct infringement, and incorrectly applied existing Supreme Court precedent in its ruling on Akamai’s induced infringement argument, said Ginger Anders, assistant to the solicitor general, during oral argument. Limelight’s appeal argues that “two or more people can divide up and perform the steps of any method claim, however drafted, without liability,” said Akamai counsel Seth Waxman of WilmerHale. Whether a ruling in the case would stick, since the appeals court had not ruled on Akamai’s alternate argument that the Limelight actions constituted direct infringement, was the question for several justices Wednesday. Justice Elena Kagan argued that the appeals court could later decide the case on the direct infringement argument, rendering the Supreme Court’s ruling on this appeal “a nullity” and that she was unsure its ruling “would be relevant for any case.” Justice Samuel Alito also questioned what the court’s role should be in the case. There is always “a potential that the prior rule might later be disturbed,” said Limelight counsel Aaron Panner of Kellogg Huber. Justice Stephen Breyer can “think of so many different kinds of situations with so many different steps in method patents where so many rights and wrongs of it are differently at play that I become worried about setting forth any rule,” he said.