Tag Archives: transparency

Access to Text Provides Meaningful Transparency

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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Today’s theme is Transparency and Representation: Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Transparency is critical in understanding what laws may be created that will affect the public. For years, the United States has been involved in negotiated trade agreements in secret, without giving the public ample opportunity to make comments and engage in a meaningful way.  ARL has blogged about the concerns around the lack of transparency in trade negotiations many times in the past, noting that this is a primary failing of the negotiations of the Trans-Pacific Partnership Agreement (TPP), Trans-Atlantic Trade and Investment Partnership (TTIP) and other agreements, resulting in a lack of democratic process.  Although USTR has claimed transparency due to the opportunities to provide stakeholder presentations at various negotiations round, the secrecy of the negotiating texts and proposals made it impossible to actually give meaningful engagement.  Unlike the EU, for example, in the TTIP negotiations, USTR has not released draft textual proposals.

In 2016, ARL joined a coalition making critical recommendations for the United States Trade Representative Open Government Plan.

  1. Publish U.S. textual proposals on rules in ongoing international trade negotiations: USTR should immediately make available on its website the textual proposals related to rules that it has already tabled to its negotiating partners in the context of the TTIP, TiSA, and any other bilateral, regional, or multilateral trade negotiation it undertakes.
  2. Publish consolidated texts after each round of ongoing negotiations: USTR should impose as a prerequisite to any new or continuing trade negotiations that all parties agree to publish consolidated draft texts on rules after each negotiating round.
  3. Appoint a “transparency officer” who does not have structural conflicts of interest in promoting transparency at the agency.

These are the critical steps that USTR should take in negotiating trade agreements, whether the government is negotiating new agreements or, as President-elect Trump has promised to do, revisiting old agreements. The textual proposals are key to understanding what is being negotiated. While fact sheets may be useful, they are no substitute for the actual language of the texts which are highly technical and nuanced. As noted in ARL’s analysis of the final TPP text, there were significant improvements in the text from earlier proposals. Some of these improvements may have been made possible through the input of civil society and academics, but these comments were only possible due to access to leaked text.

Meaningful Transparency is Needed in Trade Negotiations

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “Transparency: Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.

Transparency in government is fundamental to a democratic society and meaningful participation.  Without access to information about the laws and policies being considered, the public is unable to substantively comment and address potential areas of concern or challenge and influence public policy.

The negotiations of the Trans-Pacific Partnership Agreement (TPP) which took place over the course of more than five years before a final agreement was reached in October 2015, highlight a poor exercise in transparency.  Over the course of the lengthy negotiations, the official text was never released nor was it released when the trade ministers of the twelve negotiating parties announced conclusion of the agreement.  It was not until December 2015 that any of the parties released the text for the public to view.  While there were several leaks of various portions of the agreement, including quite a few leaks of the intellectual property chapter, relying on leaks is a poor substitute for official releases of text.  By the time a trade agreement reaches its conclusion, it is very difficult, if not impossible to change the text (particularly given the number of negotiating parties in the case of the TPP) and it is therefore important that the public is engaged at an earlier date.

Throughout these negotiations, USTR and other negotiating governments often made claims that the process was a transparent one.  They touted the fact that they provided information about the locations of negotiating rounds and invited stakeholders to give presentations on a “stakeholder engagement” session and attend briefings by the chief negotiators.  However, this form of engagement is not a substitute for seeing the actual text.  Furthermore, the last time stakeholders were provided an official opportunity to present to the negotiators was in August 2013, despite the fact that negotiations continued for more than two years after.

On October 27, 2015, the White House its Third Open Government National Action Plan which sets forth a number of initiatives designed to create a more open government.  One plan initiative regarding access to information reads:

Increase Transparency of Trade Policy and Negotiations. In September 2015, the Administration appointed a Chief Transparency Officer in the Office of the United States Trade Representative who will take concrete steps to increase transparency in trade negotiations, engage with the public, and consult with Congress on transparency policy. This work builds on previous steps to increase stakeholder engagement with trade negotiators, expand participation in trade advisory committees, and publish more trade information online. To further increase public access to U.S. trade policy and negotiations, the Office of the United States Trade Representative will also continue to promote transparency and public access to international trade disputes in the World Trade Organization and under regional trade agreements, and encourage other countries to similarly increase transparency in this regard. The Office of the United States Trade Representative will also continue to encourage posting video of trade dispute hearings to give the public insight into these processes.

While increased transparency is always welcome, in the case of the TPP, this goal comes too late.  Furthermore, the initiative may also be too little as the specifics of the plan reveal that the government is not committing to the transparency necessary for the public to engage in informed debate.  While increased stakeholder engagement with negotiators would certainly be welcomed, there is no commitment to releasing the actual negotiating texts.  Furthermore, the “expand[ed] participation in trade advisory committees” may not be that useful given that under the current rules of the trade advisory committees, individuals are required to sign non-disclosure agreements.

The text of the copyright provisions of the TPP improved over the course of the negotiations.  Many areas of concerns raised by critics of the agreement once leaked text was available were addressed, possibly because of the outcry over these provisions.  Yet, again, relying on the availability of leaked text is risky and the public should be given an opportunity to comment on issues that will affect them, within a timeframe where such criticisms can be addressed. Backdoor policymaking has no place in a democratic society.

As the TPP negotiations have concluded (though it must still be signed and ratified by each of the negotiating parties), attention will turn to another regional trade agreement: the Trans-Atlantic Trade and Investment Partnership (TTIP) with the European Union.

The EU has made steps toward increased transparency in the negotiations.  In November 2014, the European Commission announced that it would publish the dates, locations, names and organizations it meets with and the topics of its discussions. Specifically, the Commission agreed that with respect to the TTIP it would make public the negotiating texts it shares with Member States and Parliament, provide all Members of the European Parliament the TTIP texts, make less negotiating documents classified, and publish a public list of TTIP documents that have been shared with the European Parliament and Council.

The EU has already started to fulfill its promise to enhance transparency and “negotiat[e] TTIP as openly as possible.” On January 7, 2015, the EU released its negotiating texts that had been shared with US negotiators as well as position papers for areas which it had not yet developed and proposed text. The EU’s position paper on intellectual property revealed the intended architecture of the chapter including 1) a list of international intellectual property agreements signed by the EU and US; 2) shared principles that are based on existing rules and practices; 3) binding commitments (specifically referencing two copyright issues: resale rights for visual artists and public performance and broadcasting rights); and 4) areas where the EU and US can work together on areas of shared interests. The fact sheet specifically states that because the EU and US already have detailed enforcement provisions in their laws, “we wont negotiate rules on things like penal enforcement [and] internet service provider liability.”

The United States should improve its commitments to increased transparency in trade negotiations and make their proposals public.  Descriptions about negotiating texts and engagement with stakeholders are no substitutes for the ability to view and comment on the actual texts.  Often, the language included in these agreements are highly technical and commentary and concerns can change based on the exact text.  The goal of increasing transparency should be applauded, but meaningful transparency must be achieved.

 

Coalition Asks President Obama to Pledge to Veto Cybersecurity Information Sharing Act (CISA)

Congress is currently considering the Cybersecurity Information Sharing Act of 2015 (CISA, S. 754), a bill that has serious implications for privacy and civil liberties.  While the bill purportedly is designed to strengthen cybersecurity, it contains significant flaws.  On Monday, July 27, ARL joined a coalition of organizations and security experts in sending a letter to President Obama asking for a pledge to veto CISA due to these concerns:

  • CISA fails to protect personal information.  CISA allows the sharing of vast amounts of personal data to be shared with government agencies.  It allows the sharing of personal and identifying information as a default measure.
  • CISA allows the use of information in investigations unrelated to cybersecurity.  CISA also allows for governments to use cyber threat indicators to investigate a wide range of crimes, including those that are not related to cybersecurity, such as robbery, arson, or trade secret violations.
  • CISA fails to maintain civilian control of domestic cybersecurity.  CISA would permit companies that operate in the civilian sector to share cyber threat indicators with any agency of the federal government, raising serious privacy concerns.
  • CISA permits countermeasures that could damage networks.  CISA would allow companies to deploy “defensive measures” or “countermeasures” that could damage networks that belong to innocent bystanders, even when they would otherwise be illegal under the Computer Fraud and Abuse Act.
  • CISA raises additional transparency concerns.  CISA would create a new exemption to the existing list of nine exemptions under the Freedom of Information Act (FOIA).

 

Senate to Move Ahead with Vote on Fast-Track Legislation

On June 23, 2015, the U.S. Senate cleared the procedural hurdle of attaining 60 votes on a motion for cloture to move ahead with a vote on Trade Promotion Authority (TPA), also known as “fast-track” legislation.  Under “fast-track,” Congress grants the President the authority to sign trade agreements and Congress can only approve or reject these agreements in a straight up-down vote, meaning that it must take the agreement as a complete package and cannot amend the agreement.  As noted in a February 5, 2015 letter from the Library Copyright Alliance (LCA), fast-track authority limits Congress’ ability to meaningfully weigh in on an agreement, particularly given the lack of transparency in trade negotiations.  Notably, no trade agreement presented to Congress under fast-track legislation has ever been rejected.  TPA has been seen as critical in concluding negotiations of the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties.

Today, the Senate voted 60-37 to proceed with a vote on TPA.  While the Senate had passed TPA in an earlier vote in May, that bill packaged fast-track legislation with Trade Adjustment Assistance (TAA), legislation that reduces the negative impacts of imports on certain sectors in the U.S.  On June 12, 2015, the House of Representatives took separate votes on TPA and TAA, voting to pass the TPA portion of the bundled package by a vote of 219-211 but rejecting TAA by 302 to 126.  The House then voted to separate the package and passed TPA in a standalone bill on June 18, with the intention of scheduling a vote on TAA at a later date.  Because the Senate had packaged TPA and TAA, the TPA went back to the Senate.  Although some critics expressed concerns over the separation of the two bills and suggested that TPA could not pass without TAA, the Senate reached its 60 vote threshold to move ahead with the vote which will likely occur later this week.

 

 

Library Copyright Alliance Expresses Concerns Over “Fast Track” Trade Promotion Authority

On February 5, 2015, ARL, together with ALA and ACRL, sent a letter to Senators Hatch (R-UT) and Wyden (D-VT) expressing concerns over “fast track” trade promotion authority.  Under “fast track,” Congress grants the President authority to sign trade agreements and Congress is only able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend this agreement.  Such a process limits Congress’ ability to meaningfully weigh in on the agreement.

Using the Trans-Pacific Partnership Agreement (TPP) as an example, the letter highlights the inequities surrounding access to information about the substance of the agreements.  While the negotiations are conducted in secrecy and the general public is not permitted to see text, cleared advisors are permitted to view proposals and make substantive comments through “trade advisory committees.”  Members of the intellectual property trade advisory committee represent large corporate interests; current members include, for example, representatives from the Recording Industry Association of America (RIAA) and the Copyright Clearance Center (CCC).  Past representatives include Time Warner, the Association of American Publishers (AAP) and the Motion Picture Association of America (MPAA).  While these corporate interests are well represented, the general public has had to rely on leaks in order to view text.  The letter points out, “Policy should not be made in secret, with the general public kept in the dark about what effects the agreement will have.”

The letter also notes concerns that the comprehensive intellectual property chapter included in the TPP could contain provision requiring changes to current law, or locking-in undesirable provisions of U.S. law which would make it difficult to amend the law without violating the agreement.  One such harmful provision is the U.S. copyright term of life plus seventy years, which was recently reported as the term of protection TPP negotiators have agreed to.  This lengthy term has been problematic, contributing to the orphan works problem and hampering the public domain.

The letter concludes:

Given the impacts that agreements like the TPP and TTIP will have, Congress should ensure that it does not delegate its authority to the Executive Branch. Congress must be an active participant in reviewing these agreements before accepting their content and should not grant fast track authority, at least with respect to intellectual property provisions in these agreements. Alternatively, if legislation on fast track does include language on intellectual property, this language must protect the careful balance that exists in US law. Libraries, and the vast public we serve, depend on a balanced copyright system, including important limitations and exceptions such as fair use and the first sale doctrine. Any language granting fast track authority implicating intellectual property must recognize the importance of limitations and exceptions.

Trade, Transparency and Democratic Values

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Transparency: Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.”

Tomorrow, intellectual property negotiators will begin meeting in secret to discuss the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States. As noted in last year’s post for Copyright Week’s Transparency Day, transparency in policymaking is essential to upholding democratic ideals. Without access to information about the negotiations and texts, the public is unable to substantively comment and address areas of concerns.

Despite the fact that the TPP has been negotiated for the past five years, none of the negotiating parties has officially released proposals or text. The only texts that have been made available resulted from leaks, the most recent occurring on October 16, 2014. There have been many areas of concern with respect to the copyright provisions in the TPP. While the most recent leak shows improvements in some areas (such as eliminating the three-year rulemaking procedure for creating exemptions to anti-circumvention laws), it also revealed new potential issues (such as possibly preventing the reintroduction of copyright formalities for the last twenty years of copyright protection in the United States). Yet the public is only alerted to these potential problems by relying on leaks, which do not occur on a regular basis.

Furthermore, while governments made information about earlier rounds of negotiations public and stakeholders were invited to give presentations or interact with negotiators, recent meetings have become more secretive. The last time stakeholders were provided the opportunity to present was in August 2013 even though negotiations have continued on a regular basis since then. The website of the Office of the United States Trade Representative does not give any details or even acknowledge the meetings that will take place over the course of the next two weeks.

As the TPP is reportedly in its final stages, it appears that negotiations with the European Union on a regional trade agreement known as the Trans-Atlantic Trade and Investment Partnership (TTIP) seems to be quickly advancing. After several rounds of negotiations, texts have already been proposed in some areas. Unlike the negotiations in the TPP, however, much more information has been publicly released on the TTIP.

In November 2014, the European Commission announced that it would publish the dates, locations, names and organizations it meets with and the topics of its discussions. Specifically, the Commission agreed that with respect to the TTIP it would make public the negotiating texts it shares with Member States and Parliament, provide all Members of the European Parliament the TTIP texts, make less negotiating documents classified, and publish a public list of TTIP documents that have been shared with the European Parliament and Council.

The EU has already started to fulfill its promise to enhance transparency and “negotiat[e] TTIP as openly as possible.” On January 7, 2015, the EU released its negotiating texts that had been shared with US negotiators as well as position papers for areas which it had not yet developed and proposed text. The EU’s position paper on intellectual property reveals the intended architecture of the chapter including 1) a list of international intellectual property agreements signed by the EU and US; 2) shared principles that are based on existing rules and practices; 3) binding commitments (specifically referencing two copyright issues: resale rights for visual artists and public performance and broadcasting rights); and 4) areas where the EU and US can work together on areas of shared interests. The fact sheet specifically states that because the EU and US already have detailed enforcement provisions in their laws, “we wont negotiate rules on things like penal enforcement [and] internet service provider liability.”

Secrecy is a poor model for policymaking. Even when an agency or government asserts that it is transparent because it has released statements or described what proposals have been made, as noted in a letter commenting on proposed text in the TPP, “informed commentary is possible only with respect to actual text, not descriptions of text.” The specific language, structure and details of a proposal are critical in understanding the potential impacts. USTR should consider following the lead of the EU and release its negotiating proposals in the TTIP as they become available.

Similarly, TPP countries should agree to release the negotiating texts to allow for informed participation. Releasing the negotiating texts of trade agreements has precedent; the text of the Free Trade Area of the Americas was released and the US government solicited comment on the negotiating text.  Library associations noted their appreciation for the open process for commenting on the Free Trade Area of the Americas.  Participation in the democratic process is dependent on access to information; without being able to read the texts these values are threatened.

Of course, even if the TPP text is released, another danger remains: Congress may choose to give the Obama Administration “trade promotion authority” also known as “fast track authority.”  If “fast track” is approved Congress will not have the ability to change the agreement and can only approve or reject the agreement on a straight up-down vote, meaning that it cannot amend the agreement.  Agreements that have reached Congress through fast track authority have never been rejected.  This delegation of authority further threatens democratic principles by reducing the ability of elected officials to meaningfully address concerns that may arise from portions of the agreement.

Copyright Week!

Today is the start of Copyright Week,  a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

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Stay tuned the rest of this week for posts on technological protection measures, fair use, transparency in policymaking, and the importance of the public domain!

 

ARL Joins Letter to TPP Trade Ministers Asking for Release of Negotiating Texts

On Thursday, December 11, 2014, ARL joined a diverse coalition of forty-eight organizations and individuals in submitting a letter to the trade ministers of the twelve countries involved in the negotiations of the Trans-Pacific Partnership Agreement (TPP) calling for enhanced transparency and the release of the negotiating text.  This letter comes on the heels of the European Commission’s statement agreeing to increased transparency in its current negotiations in a trade agreement with the United States.

Currently, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States are involved in the negotiations of the TPP, a large regional trade agreement. The agreement has been negotiated for the past five years and covers a trading area that comprises forty-percent of the world’s GDP; eventually it is intended to cover the entire APEC region. The final text of the TPP will bind all members to the agreement and make any changes extremely difficult. Even where the United States’ proposals do not seek changes to current law, some provisions could lock in standards and prevent reform.

The negotiations of the TPP have been conducted largely in secret and there has not been an official release of the negotiating text or proposals. While there have been several leaks of various chapters, including three leaks of the intellectual property chapter, these leaks have been fairly infrequent and have not reflected the most current state of the text. Furthermore, while full rounds of negotiations previously included stakeholder events, there is little information about where and when TPP negotiations are currently taking place.

Without transparency, it can be difficult to provide meaningful presentations or commentary when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other trade agreements, transparency is critical in the ability to comment on the negotiating text and “ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments were invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.

In contrast to the TPP negotiations in which all negotiating parties have agreed to keep the texts secret, the European Commission recently agreed to publish the dates, locations, names and organizations it meets with and the topics of its discussions. With regard to the Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations, the Commission intends to put forward the following actions:

  • Making public more EU negotiating texts that the Commission already shares with Member States and Parliament;
  • Providing access to TTIP texts to all Members of the European Parliaments (MEPs), not just a select few, by extending the use of a “reading room” to those MEPs who had no access to restricted documents so far;
  • Classifying less TTIP negotiating documents as “EU restricted”, making them more easily accessible to MEPs outside the reading room;
  • Publishing and updating on a regular basis a public list of TTIP documents shared with the European Parliament and the Council.

In its statement announcing enhanced transparency, the Commission noted that, “For people to regain trust in Europe, we have to open the windows wide and be more transparent about the way we work . . . The Commission intends to lead by example on transparency matters.”

The letter to TPP trade ministers, signed by organizations and individuals from across the TPP region, calls for the TPP negotiating countries to follow the lead of the European Commission and release the negotiating texts of the TPP:

The end of TPP negotiations now seems to be coming into focus. They have come down to high-level political decisions by negotiating countries, and the text is largely completed except for some resolutions on remaining landing zones. At this point, we know that there is a draft of the TPP that is mostly agreed upon by those negotiating the deal.

Today, we strongly urge you to release the unbracketed text and to release the negotiating positions for text that is bracketed, now and going forwards as any future proposals are made. The public has a legitimate interest in knowing what has already been decided on its behalf, and what is now at stake with our various countries’ positions on these controversial regulatory issues.

We call on you to consider the recent announcement from the European Commission as a welcome precedent to follow, thereby re-affirming your commitment to fundamental principles of transparency and public participation in rule making. The negotiations in Washington DC this week would provide the perfect opportunity for such a ground-breaking accord to be announced.

Senator Leahy Introduces New Version of USA FREEDOM Act, Includes Significant Improvements Over House Version

On July 29, 2014, Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act, co-sponsored by Senators Lee (R-UT), Durbin (D-IL), Heller (R-NV), Franken (D-MN), Cruz (R-TX), Blumenthal (D-CT), Udall (D-NM), Coons (D-DE), Heinrich (D-NM), Markey (D-MA), Hirono (D-HI), Klobuchar (D-MN), and Whitehouse (D-RI). ARL supports this version, which includes major improvements over the version passed in the House (H.R. 3361) on May 22, 2014, including more effective language to end bulk collection and protect civil liberties and strengthened transparency provisions. ARL has signed on to two letters supporting the new version of the USA FREEDOM Act, including one that focuses on the enhanced transparency provision and one that addresses the bill more comprehensively. Both letters urge Congressional leadership to act swiftly and pass the new version, without any dilution or amendment.

The version that passed the U.S. House of Representatives represented a significantly watered down version after changes were made by the House Rules Committee on the eve of the floor vote on the bill. Although the House passed the bill, half of the original House co-sponsors to the USA FREEDOM Act withdrew their support and opposed the weakened version because it did not go far enough in curtailing the Government’s ability to conduct bulk collection and failed to protect privacy and civil liberties in the same manner as prior versions. Organizations that originally supported the USA FREEDOM Act withdrew support for the House version and urged the Senate to ensure meaningful reform.

Leahy’s version narrowly defines a “specific selection term” in an effort to effectively curb bulk collection. It clearly prohibits the collection of broad swaths of information under Section 215—the provision known as the “business records” or “library records” provision—such as all information related to a broad geographic region (such as a city, state, zip code or area code). It also enhances minimization procedures, requiring the government to delete data it has collected on individuals that are not targets of the investigation or contacts of such individuals and limits the purpose for which call detail records may be generated.

The new version of the bill would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties. It would also require disclosure of FISC opinions of “new construction or interpretation of the term ‘specific selection term.’” It provides further protections by providing for a Special Advocate position charged with protecting privacy and civil liberties and requires that the Office of the Special Advocate has access to relevant legal precedent and materials necessary to participate in FISC proceedings.

Finally, Leahy’s new version improves on the House version through enhanced transparency provisions. It requires the government to report on the number of U.S. persons whose information was collected and number of searched conducted under Section 215. It reduces the time a company must wait after receiving a FISA order before reporting on it from two years to one year.

A detailed comparison between the House-passed version and Senator Leahy’s new version is available through the Center for Democracy and Technology.

Broad Coalition Opposes Cyber Information Sharing Act of 2014

On June 26, 2014 the Association of Research Libraries joined with thirty-four other organizations opposing the Cyber Information Sharing Act of 2014 (CISA). This broad coalition sent a letter to Majority Leader Harry Reid (D-NV), Minority Leader Mitch McConnell (R-KY), U.S. Senate Select Committee on Intelligence Chairman Dianne Feinstein (D-CA), and U.S. Senate Select Committee on Intelligence Vice Chairman Saxby Chambliss (R-GA) expressing concerns that the bill would create a loophole in existing privacy laws and does not prevent the government from requesting “voluntary” cooperation from private companies in sharing information, including content of communications.

The letter raises a number of concerns, including threats the bill poses to whistleblowers and transparency. Additionally, with respect to specific privacy concerns, the letter notes that the bill creates a “danger of a potential end-run around the Foreign Intelligence Surveillance Act (“FISA”), the Electronic Communications Privacy Act (“ECPA”), the Fourth Amendment and other crucial privacy protections [which] is compounded by the potentially broad immunity conferred on sharing ‘in accordance’ with the act, and the additional absolute defense when sharing occurs in violation of the act but in ‘good faith’ reliance on the mistaken belief that the sharing is lawful.”

This letter makes several specific recommendations:

  • Ensure that DHS is the custodian of cybersecurity information voluntarily shared by the private sector, and has the authority to prevent sensitive information from being transmitted to the intelligence community and military without appropriate privacy protections;
  • Ensure that information shared is “reasonably necessary” to describe a cybersecurity threat;
  • Restrict the use of information received under the sharing authority to actual cybersecurity activities, the prosecution of cybercrimes, the protection of individuals from imminent threat of physical harm or death, or to protect children from serious threats;
  • Limit FOIA restrictions to those provided by 6 U.S.C. §§ 131-34 (2012).14
  • Require public disclosure of annual reports from relevant inspectors general describing what information is received, how it is used, who gets it and how it is treated to protect privacy.
  • Include a sunset provision in the bill keyed to these reports, which will allow the measure to expire if abuse or misuse is disclosed;
  • Allow individuals harmed by inappropriate sharing to sue the government if it intentionally or willfully violates the law.