The report begins with an overview of U.S. science and technology policy, followed by explanations on who makes the policy, what organizations provide information on policy, and the challenges that policymaking presents.

CRS No. RL34454, April 22, 2008.

From the Report’s Summary:

Several organizations, when requested by the federal government or Congress,
provide formal science and technology policy advice: federal advisory committees,
congressionally chartered honorific organizations, and federally funded research and
development corporations. In addition, many other organizations and individuals —
international intergovernmental organizations, policy institutes/think tanks, the
public, professional organizations, disciplinary societies, universities and colleges,
advocacy, special interest, industry, trade associations, and labor — also provide their
thoughts. These organizations may agree on the scientific and technical knowledge
regarding an issue, but disagree on what actions to take in response, as their values
on a proposed policy may differ. Policymakers may be overwhelmed with an
abundance of information from these organizations.

Does the new FISA bill authorize wholesale interception of all communications to and from the US, or does it only authorize the interception of the communications of particular individuals?

In either case, the legislation affects Americans, because some of the intercepted communications of persons abroad will be with people in the United States. Also, in either case, the legislation dispenses with the normal Fourth Amendment standard of probable cause and FISA’s requirement that at least one party to the communication being monitored be a terrorist or spy or other “agent of a foreign power.” And, in either case, the legislation creates a unique procedure whereby a judge approves procedures for conducting surveillance, but Executive Branch officials authorize the surveillance itself and issue directives compelling communications carriers to assist. All these are huge departures from traditional surveillance practice.

But does the legislation authorize the vacuum cleaner approach (by which I mean the interception or recording on a wholesale basis for later analysis of any calls available from within the US where one of the parties is reasonably believed to be located outside the United States) or does it require a more targeted approach – the particularized interception of the communications of certain individuals (albeit with the particularity decision made by intelligence analysts, not judges, and on a very low standard of “reasonably believed to be located outside the US”)?
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A judge ruled this week that the Office of Administration (OA), part of the Executive Office of the President (EOP), is exempt from Freedom of Information Act requests because it is not an “agency” under the law.

The ruling adds to the inconsistent and somewhat arbitrary set of determinations on what is and what is not an FOIA agency. In this case, the OA had been responding to FOIA requests (65 last year alone) and even had a FOIA Officer, but didn’t want to respond to this one request and was able to opt-out of the law. This raises questions over how the definition of “agency” will be construed by the Bush Administration as it draws to a close; more importantly, how the next administration will approach this and other issues affecting the public’s right to know.

The OA case was filed back in May 2007 by Citizens for Responsibility and Ethics in Washington (CREW), a non-profit group, seeking information on missing White House e-mail records. Public reports revealed that close to 5 million e-mails were lost or deleted between March 2003 and October 2005 in apparent violation of record preservation laws. The OA initially agreed to process the CREW request but changed its decision, arguing that it was not required to comply with FOIA.
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From the report’s summary:

Building upon the Clinger-Cohen Act, the E-Government Act serves as the
primary legislative vehicle to guide evolving federal IT management practices and
to promote initiatives to make government information and services available online.
In doing so, it also represents a continuation of efforts to realize greater efficiencies
and reduce redundancies through improved intergovernmental coordination, and by
aligning IT investments. The law contains a variety of provisions related to federal
government IT management, information security, and the provision of services and
information electronically. One of the most recognized provisions involves the
creation of an Office of Electronic Government (OEG) within the OMB. The OEG
is headed by an Administrator who is responsible for carrying out a variety of
information resources management (IRM) functions, as well as administering the
interagency E-Government Fund authorized by the law.

Although Senator Lieberman raised the question of public availability of CRS reports at the hearing on E-Government Reauthorization last year, there is no mention within the report of making CRS reports freely available or other Legislative Branch openness issues.

Isn’t it about time for the U.S. wake up and fall in line with the rest of world when it comes to placing restrictions on certain kinds of speech? Why, in a world so volatile and fraught with religious and ethnic tension, does the U.S. stand alone in providing a safe harbor for speech that oozes with hate, incitement and contempt?

In the global race to place restrictions hate speech the U.S. runs dead last, owing to its dogged allegiance to the principle of free expression. Is it possible, in today’s post-9/11 world, that dedication to the ideology of free speech is still prudent?

You bet it is. But not everyone agrees.
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In Philadelphia today I attended the oral argument in the seemingly-never-ending case in which the “Child Online Protection Act” (COPA) has repeatedly been found to be unconstitutional. Chris Hansen, lead counsel in the case for the ACLU, presented an superb argument to the U.S. Court of Appeals for the Third Circuit (as detailed more fully below). Although one can never predict the outcome of any court case, the questions posed by the three judges make clear that they have serious doubts about the validity of the law.

The background on this case goes back ten or even twelve years. In 1996, both CDT and the ACLU led legal challenges to the “Communications Decency Act” (CDA); I was privileged to be one of the lead counsels in the CDT-led half of the case. We were successful, and in 1997 the U.S. Supreme Court unanimously decided that the CDA was unconstitutional, in the landmark Reno v. ACLU decision. A year later – in 1998 – Congress made minor changes to the overturned CDA statute, and passed COPA. Chris Hansen and the ACLU returned to court, and immediately got a preliminary injunction blocking COPA. Over the past ten years, the case has twice been up to the Supreme Court, which upheld the preliminary injunction and sent the case back the district court for a full trial. Judge Lowell Reed of the Eastern District of Pennsylvania conducted that trial in 2006, and issued in March 2007 a very thorough, careful opinion finding that COPA is unconstitutional. The Department of Justice (DOJ) appealed the case, and the appeals court heard argument in the appeal today.

The DOJ attorney, Charles Scarborough, argued first and faced a very skeptical court. The biggest hurdle for the DOJ is Judge Reed’s excellent trial court decision. Court of Appeals Judge Thomas Ambro today said that he “cannot conceive of any judge being more comprehensive” than Judge Reed had been. Judge Ambro made clear that the prior Supreme Court rulings in the case, when combined with the careful trial court decision, made DOJ’s appeal a very hard one to carry – the judge observed to Scarborough: “You are marching up San Juan Hill.” The other two judges were harder to read, but none of the three hinted that they were leaning in favor of the government.
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CDT’s recent paper on digital watermarks and privacy got some positive reviews here and here; however, it also prompted criticism from Timothy Lee on ars technica. Lee argues that the paper “misses the point” because it does not come out and say that individualized watermarks — watermarks that correspond to individual users, devices, or transactions — pose an “inherent threat to privacy” and should be avoided.

Certainly it is true that the simplest way for a company to steer clear of privacy issues is to refrain from using individualized watermarks in the first place. If a company would rather avoid the effort and hassle of working through the list of our proposed privacy principles, it can limit itself to what the paper terms “generic” watermarks — watermarks that are not specific to individual copies of the content. (The same point applies to other areas where CDT has worked on privacy best practices; for example, if you don’t want to wrestle with the privacy questions relating to RFID, you can always avoid the technology altogether.)
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Political affiliation and rhetoric aside, there is an undeniable excitement underlying this election cycle. The political process has finally found the alchemy of the Internet that has eluded all previous attempts and found a way to draw in voters.

The Internet is largely responsible for putting a sense of empowerment for people back into the political process and that comes not from just being an active part of the whole process but from a sense of being able to drive it, mold it, and actually impact the end game. That’s heady stuff for what has been an apathetic electorate.

We often take the Internet for granted. In a short time, it has become a powerful engine for innovation, economic growth and democratization. The Internet has changed the way we “do” politics. Ordinary Americans are making their voices heard and organizing online. Political candidates are building networks of supporters, raising unprecedented funds from small donors, and educating the public on their policies and visions.

That’s why it’s vital that our political leaders and lawmakers pay attention to the challenges—both domestic and international—confronting the Internet today.
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