State of the Union Preview: White House Communications Priorities for 2015

In the days leading up to Tuesday's State of the Union address, President Obama has been previewing his Administration’s communications and technology priorities for 2015, including calling for an end to state laws that restrict municipal broadband deployments and new steps to promote cybersecurity.

Broadband Proposals

With a visit to Cedar Falls, Iowa and a letter submitted to the Federal Communications Commission (FCC), the President announced several steps to help more Americans get access to fast and affordable broadband, highlighting the experiences of Cedar Falls, Iowa; Chattanooga, Tennessee; Kansas City, Missouri; and Lafayette, Louisiana—each of which have access to Internet speeds 100 times faster than the national average.

The most controversial proposal urges the FCC to “utilize its authority to address barriers inhibiting local communities from responding to the broadband needs of their citizens,” and references laws in 19 states that the Administration argues have “held back” broadband access. The proposal comes at a time when the Commission is set to consider at its February meeting petitions from Chattanooga's Electric Power Board and the City of Wilson, North Carolina that seek FCC pre-emption of state municipal broadband laws.

In response, FCC Chairman Wheeler and Democratic Commissioners Rosenworcel and Clyburn expressed support for President Obama’s proposal, while Republican Commissioners Pai and O'Rielly criticized it. Opinions on the President’s proposal also split along party lines in Congress, where Democrats touted the benefits of competition and broadband expansion while Republicans highlighted the benefits of private investment and states’ rights to limit municipal broadband.

The President’s broadband expansion plans also include:

• Calling for the Federal Government to remove all unnecessary regulatory and policy barriers to broadband build-out and competition and establishing a new Broadband Opportunity Council of over a dozen government agencies to solicit public comment on regulatory barriers to the expansion of broadband access and to promote greater coordination with the aim of addressing barriers within its scope of permitted action.
• Hosting a Community Broadband Summit of mayors and county commissioners from around the country at the White House to discuss broadband solutions and economic revitalization. The efforts are intended to build upon the US Ignite partnership.
• Launching a new Commerce Department initiative—Broadband USA—to promote broadband deployment and adoption by offering online and in-person technical assistance to communities, hosting a series of regional workshops around the country, and publishing guides and tools to help communities address broadband infrastructure financing, construction, and operations.
• Opening applications for the Department of Agriculture's Community Connect broadband grant program, and reopening a revamped broadband loan program, which finances eligible carriers that invest in rural broadband networks.

In the wake of the recent high-profile attack on Sony Pictures and government social media sites, the White House has also announced a series of proposals to update and revise our nation’s cybersecurity laws. The President’s cybersecurity legislative package contains three primary components: (1) resurrected cybersecurity information-sharing legislation; (2) updated cybercrime legislation; and (3) a national data breach reporting law.

The first proposal encourages cyber-threat information sharing between government agencies and private sector-developed and operated Information Sharing and Analysis Organizations (ISAOs)—which will enjoy liability protections. The National Cybersecurity and Communications Integration Center (NCCIC) within the Department of Homeland Security (DHS) will serve as the nexus for this information-sharing effort. The proposal requires ISAOs to meet certain privacy and data security standards in order to qualify for information sharing privileges with NCCIC, including removing unnecessary personal information before sharing threat information and safeguarding information that is retained. The plan requires DHS and the Attorney General to develop government guidelines for the retention and use of information.

The second proposal updates law enforcement’s tools for prosecuting cybercriminals. The proposal would allow prosecution for the sale of botnets; criminalize overseas sales of stolen US financial information; expand law enforcement’s authority to deter the sale of spyware; permit courts to shutdown botnets engaged in criminal activity; expand the Computer Fraud and Abuse Act (CFAA) to clarify that it can be used against organization insiders; and expand the Racketeering Influenced and Corrupt Organizations Act (RICO) to apply to cybercrimes.

The third proposal would enact a national data breach reporting requirement to simplify and standardize the existing patchwork of 46 state/territorial data breach laws.

While legislators on both sides of the aisle are generally supportive of the President’s proposals, public interest groups have criticized the proposals for not going far enough to protect citizens’ privacy. Ultimately, these bills have a greater chance of passage than past, unsuccessful efforts to enact robust cybersecurity and data security legislation, but it’s unclear at this time what any final legislation will look like. The attorneys at Kelley Drye are tracking developments in this area and will update this blog with any major announcements.

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