“Build Flexibility”: ALEC to Consider Cybersecurity Principles, NAAG Opposition, at Chicago Meeting | Communications Daily

The American Legislative Exchange Council will look at draft model legislation restricting warrantless cellphone tracking, following similar laws enacted in Maine and Montana (CD July 15 p7), at ALEC’s annual meeting in Chicago Aug. 7-9. The 40-year-old organization, which brings together state legislators and industry, will also consider revising past model legislation, propose a draft resolution objecting to certain potential Communications Decency Act (CDA) amendments and a statement of principles for cybersecurity. The group has attracted fierce criticism from such groups as Free Press (CD April 9 p11), but it remains committed to transparent policy discussions, its task force leaders told us.

ALEC counts many victories over the last several months. Legislation similar to its wireless facilities streamlining model was enacted in Washington state, North Carolina and Missouri this year. Several states also restricted state regulation of VoIP, as ALEC advocated for, bringing the total number of such jurisdictions up to 29, said John Stephenson, the group’s Communications and Technology Task Force director. “This is a huge success because ideas that we put together are becoming law,” he said. North Dakota is also “taking that up as we prepare for our next session,” with plans to look at VoIP restrictions following a move to study the topic recently, said Task Force Public Chairman Blair Thoreson, a North Dakota Republican state representative. Stephenson noted there have been conversations about IP interconnection but that there are “many different views” of it among his members. More direct ALEC action may be possible “as we get deeper into the weeds on the IP transition,” he said.

“We always need to build flexibility into the system,” said Task Force Private Chairman Bartlett Cleland, who works full-time as policy counsel for the Institute for Policy Innovation. State legislators operate “right at ground zero” and “wireless is broadband these days,” he said, noting the difficulties of burying cable in a state as rural as North Dakota.

At ALEC’s Chicago meeting, Thoreson will advance a draft resolution opposing a position from several attorneys general to amend section 230 of the CDA, amendments proposed in the name of preventing child sex trafficking. The National Association of Attorneys General sent a letter to Congress signed by 49 state and territorial attorneys general Tuesday with online advertising as the focus. “As it has most recently been interpreted,” the CDA “prevents State and local law enforcement agencies from prosecuting these companies,” the letter said (http://bit.ly/13hOjD9). “This must change. The undersigned Attorneys General respectfully request that the U.S. Congress amend the CDA so that it restores to State and local authorities their traditional jurisdiction to investigate and prosecute those who promote prostitution and endanger our children.” Such policy revisions “might have a chilling effect,” Thoreson said. “I don’t know if that’s the way we do things with the Internet and the economy it’s creating.”

ALEC is delving into the issue with think tank TechFreedom and Santa Clara University School of Law Professor Eric Goldman, both of whom also oppose the position of the attorneys general. Goldman outlined his objections in a July paper (http://bit.ly/15l8GDB) as did TechFreedom in a policy brief (http://bit.ly/12pW67K). “We are opening up a Pandora’s Box of state crimes that we’ve never had to think about on the Internet,” Goldman told us of the letter’s proposal. State attorneys general have gone after Craigslist and Backpage.com for the prostitution ads they have hosted for years, he added, emphasizing their desire to go after these bad actors. But state laws can be “incredibly broad and nettlesome,” and to make websites liable to state laws for third-party content could be “incredibly disturbing” for many websites, he said. He cited state criminal defamation laws as a key example. If the section was amended as the AGs want, “it would reshape the Internet, potentially,” he said. He praised CDA Section 230 as elegant and part of the “secret sauce” of the Internet.

The statement of cybersecurity principles ALEC is considering recognizes the international nature of the Internet and such cyberthreats, risk management challenges and focus on bad actors domestically and abroad, Stephenson said. An older ALEC model called for a chief information security officer, which ALEC had considered sunsetting as more states have established chief information officer positions, he said. But it was unclear who the CIO reported to, he said: “Does the CIO just spend money like water?” The proposed updates to the model include “clear lines of authority” in which the individual reports to the state governor.

“From the private sector, one thing we enjoy is a round of ‘future think,’” Cleland said, cautioning against focusing on the “tyranny of the immediate.” He reflected back to where communications were a decade ago, when wireless was growing but people typically lacked smartphones. Such forward-thinking discussion is helpful, Cleland said, referring to conversations from a couple years ago: “We all saw something like the current privacy challenges coming.” Thoreson and Cleland pointed to education and telemedicine as other potential focus areas. Cleland described medical situations involving doctors consulting over Skype in which “they have no way to bill for that,” he said. “We grew up in a world where face to face was the only option.” — John Hendel