Federal Government

Ed note: This piece is from the official blog for the telecom practice of Kelley Drye & Warren LLP.

In the wake of a number of high-profile cybersecurity events — from the Heartbleed bug to the Target breach — cybersecurity has become a red-hot issue in Washington, D.C. Earlier this month, in a major address delivered at the American Enterprise Institute, Federal Communications Commission Chairman Tom Wheeler announced a new cybersecurity initiative to create a “new paradigm for cyber readiness” in the communications sector.

As described by Wheeler, the FCC’s cybersecurity initiative will be led by the private sector, with the Commission serving as a monitor and backstop in the event that the market-led approach fails. In particular, the FCC will “identify public goals, work with the affected stakeholders in the communications industry to achieve those goals, and let that experience inform whether there is any need for next steps.” Chairman Wheeler stressed that the new paradigm must be dynamic, more than simply new rules, and the Commission will rely on innovation by the private sector.

The Commission’s efforts will be guided by four principles, including commitments to:

1. preserving the qualities that have made the Internet an unprecedented platform for innovation and free expression, so that Internet freedom and openness is not sacrificed in the name of enhanced security;
2. privacy, i.e., enabling personal control of one’s own data and networks;
3. cross-sector coordination, e.g., among regulatory agencies; and
4. the multi-stakeholder approach to global Internet governance and an opposition to any efforts by international groups to impose Internet regulations that could restrict the free flow of information in the name of security.

Expect FCC staff actions to be organized around the following elements:

(1) Information Sharing and Situational Awareness. The Commission is looking into legal and practical barriers to effective sharing of information about cyber threats and vulnerabilities in the communications space. Specifically, the Chairman noted that “companies large and small within the Communications communications sector must implement privacy-protective mechanisms to report cyber threats to each other, and, where necessary, to government authorities.” Moreover, where a cyberattack causes degradations of service or outages, the Chairman stated that “the FCC and communications providers must develop efficient methods to communicate and address th[e] risks.” To that end, the Chairman noted that the FCC is actively engaged with private sector Information Sharing and Analysis Organizations, and with other federal agencies, to improve threat information sharing and situational awareness.

(2) Cybersecurity Risk Management and Best Practices. Noting the work of the Communications Security, Reliability and Interoperability Council (CSRIC) in developing voluntary cybersecurity standards, Chairman Wheeler called upon communications providers to work with the Commission to set the course for years to come regarding how companies in that sector communicate and manage risk internally, with their customers and business partners, and with the government. In addition, the Commission will be seeking information to measure the implementation and impact of the CSRIC standards.

(3) Investment in Innovation and Professional Development. Chairman Wheeler has asked the FCC Technological Advisory Council (“TAC”) to explore specific opportunities where “R&D activity beyond a single company might result in positive cybersecurity benefit for the entire industry.” Specifically, the FCC will “identify incentives, impediments, and opportunities for security innovations in the market for communications hardware, firmware and software.” Further, the FCC will work with NIST and academia to “understand the current state of professional standard and accountability,” as well as “where the FCC might positively contribute toward further professionalization of the workforce.”

This initiative could have significant impact on telecommunications and technology companies. Cybersecurity already is a top priority for CSRIC. A new working group was established within CSRIC and work is underway to update the industry’s cybersecurity best practices. The primary goal is to align the industry’s cybersecurity activities with the National Institute of Standards and Technology’s (NIST) Cybersecurity Framework Version 1.0 released in February 2014. Industry members are encouraged to participate in the process. Based on the current timeline, CSRIC will vote to approve the new best practices in March 2015.

Kelley Drye & Warren’s attorneys recently presented a webinar discussing cybersecurity updates and considerations for the telecommunications and technology industries. To listen to a recording of The Cybersecurity Review webinar, please click here.

As Lincoln said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

It’s a familiar enough idea. You see it in both Macbeth and the genesis story of just about every Marvel supervillan. It’s true, I think, not just of people but also of institutions. Like governments.

Just about every time I go to federal court for a sentencing hearing — where it seems the AUSA is fighting for each additional month in prison like it will take a point off his mortgage — I think about this quote from Nietzsche:

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This should be a no-brainer.

– President Barack Obama, who once profited from ridiculous tuition rates, after signing a memorandum expanding a program to cap student loan repayments at no more than 10 percent of what borrowers actually earn in the workplace. The President’s comment was directed at a related bill in Congress to allow student borrowers to refinance their loans at lower rates.


Justice Stephen Breyer

On Friday, the National Archives unsealed a fifth batch of Clinton Administration presidential papers. The documents were originally released by the William J. Clinton Presidential Library in Little Rock. Let’s get these pesky papers out of the way before Hillary Clinton, author of a new memoir (affiliate link), launches her presidential bid.

The latest papers contain some juicy tidbits for legal nerds. For example, as noted in Morning Docket, then-Judge Stephen Breyer got dissed as a “rather cold fish” while being considered for a Supreme Court seat (the seat that ultimately went to Justice Ruth Bader Ginsburg).

The papers contain candid assessments of Justices Breyer and Ginsburg, as well as other fun nuggets. Here are some highlights:

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The Friday before the long Memorial Day weekend is either a desert of regulatory activity or – as last week – a cornucopia in need of distillation. Three highlights warrant note, though many rules were published, placed on inspection, or otherwise released. The United States Court of Appeals for the District of Columbia Circuit vacated a Federal Energy Regulatory Commission (FERC) electric distribution pricing rule while the United States District Court for the District of Columbia vacated a Department of Health and Human Services (HHS) orphan drug pricing rule. Look now for the next round of economic mischief by regulation in the Office of Management and Budget (OMB) under-the-radar release of the Spring 2014 Unified Agenda. And lest we forget ….

Electric Power Sales: The D.C. Circuit vacated as ultra vires a FERC final rule incentivizing retail customers to reduce electricity consumption when economically efficient because the rule exceeded FERC’s statutory authority to regulate wholesale and interstate electricity distribution by regulating intra-state retail sales – the province of state public utility commissions (PUCs) – in Electric Power Supply Assoc. v. FERC.

double red triangle arrows Continue reading “Regulatory Review: Electric Power Sales; Orphan Drugs Other Uses; Spring 2014 Unified Agenda & Memorial Day, 2014″

Do you know where your data is? According to the Federal Trade Commission, the answer is “no.”

The agency wants Congress to intervene against data brokers – companies that collect personal information and resell it, mainly for marketing purposes. The FTC released a report on Tuesday of the top nine data brokers in the US and how most Americans don’t know that their personal information is being collected.

According to the Chronicle of Data Protection,

the FTC states that consumers may benefit from increased transparency into the operations of data brokers. It notes that data brokers collect and store billions of data elements covering nearly every U.S. consumer, in many cases without consumers’ knowledge. The FTC recommends that Congress consider enacting legislation to make data broker practices more visible to consumers and to give consumers greater control over the handling of their information by data brokers.

The data collected by firms like Acxiom, Datalogix and Corelogic range from the innocent (what sports you follow) to the personal (health and financial information) and everything in between (what kind of car you drive and general shopping habits).

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Edward Snowden returned to the news this week when NBC aired an hour-long interview with him, the first on American TV. Anchor Brian Williams met with Snowden in a Moscow hotel. The 30-year-old former computer systems administrator described his motives for releasing an unprecedented payload of classified information about NSA surveillance.

Snowden is vexing. As a person, he seems a mix of likeable and unlikeable traits. He appears earnest, convinced of the rectitude of his choices even if, as he told NBC, “Sometimes, to do the right thing you have to break the law.” Yet he bristles at Obama Administration characterizations of him as a low-level employee, a high-school dropout. (For example, the president told reporters last year, “No, I’m not going to be scrambling jets to get a 29-year-old hacker.”) Even if Snowden is right to resist the connotations of those labels, listening to him defend himself in the interview can be painful. He insists he was “trained as a spy” who lived under an assumed identity and was a powerful operator. He sounds like a young man with a bruised ego. The last thing one wants to have to worry about in a situation of this great national and international importance, though, is one young man’s ego.

Snowden’s case is more important and more vexing. NSA’s surveillance programs are deeply troubling….

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It’s springtime in D.C., and we all know what that means. No, we’re not talking about the cherry blossoms; that was last month. We’re talking about the spinning of the revolving door.

We have some interesting moves to mention taking place in the nation’s capital. One top government lawyer is returning to private practice; one top Biglaw partner is going back to government, perhaps for good; and one major law firm, potentially party to a high-profile merger, is losing some partners to a rival — after holding them prisoner for a while….

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Kristina Marlow

Ed. note: This is the latest installment in a series of posts on lateral moves from Lateral Link’s team of expert contributors. Kristina Marlow is a Director with Lateral Link’s D.C. office who brings almost 20 years of experience in the Washington legal market to her work with associate and partner candidates. Prior to joining Lateral Link, Kristina spent a decade at Gibson Dunn, first as a litigation associate and then as the D.C. office’s hiring manager. A Michigan native, Kristina earned her J.D., cum laude, from Georgetown University Law Center’s evening program and a B.A. in Journalism from Michigan State University, where she was named “Outstanding Senior.” She also worked as an appellate clerk, as an economic analyst for the federal government, and as a reporter for the Chicago Tribune.

The job seeker had done (almost) everything right: Graduated with honors from a top law school, clerked for an appellate court, practiced at an “A-List” firm, and then went to a government agency to top off his experience and make him partnership material. Imagine his shock when I advised him that landing a general litigation position in Biglaw now that he was 12 years out of law school would be tough without a book of business. After all, he had seen the “revolving door” in Washington; how could it be shut now, he wondered? I conceded that many attorneys in D.C. do move with ease between government and private practice, but that the ones he read about in the Washington Post were high-level officials who firms know will bring in business. “And I’m just a worker bee,” he acknowledged….

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As Chief Judge Alex Kozinski recently wrote, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

But judges need to know about prosecutorial misconduct in order to do anything about it. The public needs to be made aware of this important issue as well.

Last week, I interviewed Sidney Powell, a former federal prosecutor who has written a new book — a book that pulls no punches when it comes to her former colleagues at the U.S. Department of Justice….

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