Higher Education, IT, and Public Policy (243364645)

Higher Education, IT, and
Public Policy
October 1, 2014
Jarret Cummings, Josh Ulman, and Jennifer Ortega

EDUCAUSE Policy
 Jarret Cummings, Director, Policy and
External Relations
 Policy/government relations advisors:
Josh Ulman and Jennifer Ortega
 Outside policy experts (e.g., telecom,
accessibility)
 Consult with IT GRC and Cybersecurity
(Joanna Grama, Valerie Vogel)
Major Policy Areas
 Cybersecurity and data privacy
 E-Learning (including accessibility)
 Copyright (e.g., Digital Millennium
Copyright Act, or DMCA)
 Telecommunications

Key Issues in 2014
 Network Neutrality
 TEACH Act (IT Accessibility)
 Network Funding/Porn Filtering Provision
 State Authorization for Distance
Education
 DMCA Notice-and-Takedown Process
Federal Communications Commission to Reinstate Open Internet Rules
Network Neutrality
The Basics
 2010 Open Internet Order
 No blocking
 No discrimination (e.g., paid prioritization)
 Transparency in network management
 January 2014: 2010 Order Struck Down
 No blocking, discrimination rules vacated –
too much like common carrier
 Transparency rule upheld
 May 2014: FCC votes to establish new rules
consistent with court’s findings
The Basics
 FCC Notice of Proposed Rule-Making
presents initial proposals, questions for input
 Legal authority: Section 706 of the
Telecommunications Act of 1996
 FCC authority to drive broadband development
 Key argument: “Virtuous cycle of innovation”
 Enhanced transparency rule
 More and clearer disclosures
 Focus on network management practices,
scope and quality of services
The Basics
 No blocking rule
 Some ISP/edge provider negotiation
 Based on minimum service level,
“commercially reasonable” practices
 Replace “no discrimination” rule
 Allow some individualized negotiation
 Bounded by “commercially reasonable” practices
 “Commercially reasonable” standard
 No practices that threaten “Internet openness”
 Clearly defined factors identifying what would
negatively impact “Internet openness”
EDUCAUSE in Action
 Partnered with ARL and ALA; later joined by
AAU, ACE, APLU, and others
 Met with FCC on NPRM proposals’ impact
on higher education and libraries
 Filed principles, comments, reply comments
on net neutrality’s importance
 10 associations signed onto the principles
 11 joined the comments, with 3 more
endorsing thru reply comments
 12 signed onto reply comments
EDUCAUSE in Action
 Key positions
 No paid prioritization, degradation,
blocking
 “Internet reasonable” standard to
determine if ISP practices violate rules
 Support FCC’s continuing distinction
between public and private networks
 Equal application of rules to both mobile
and fixed Internet access services
Looking Ahead
 FCC received 3.7 million comments
 Vast majority want stronger no blocking, no
discrimination than initial FCC proposals
 Great concern about paid prioritization
 Public roundtables thru next week –
EDUCAUSE panelist on legal roundtable
 FCC wants to publish final rules by the end
of the year
Legislation in Congress to Regulate Accessibility of Technology in Higher Ed
TEACH Act (IT Accessibility)
The Basics
 Goal: Ensure digital instructional materials,
related technologies are accessible
 Charge the U.S. Access Board to develop
voluntary “safe harbor” guidelines
 Can use non-compliant materials/IT if
“equally effective, equally integrated, with
substantially equivalent ease of use”
 Similar text in HEA reauthorization draft bill
introduced by Sen. Harkin (D-IA)
Supporters
 National Federation of the Blind and
Association of American Publishers
 Originally sponsored in House by Rep. Petri
(R-WI); now has 51 cosponsors
 Senators Hatch (R-UT) and Warren (D-MA)
introduced Senate companion; now has 4
cosponsors
Concerns
 EDUCAUSE supports improving instructional
materials/technologies accessibility
 This bill is not the answer
 U.S. Access Board:
 No higher education expertise
 No update in federal IT guidelines since 2000
 Can’t always meet TEACH standard, and no
flexibility = lawsuits or outdated guidelines?
 Chilling effect on higher education IT/
innovation (including accessibility)
The Debate
 ACE, EDUCAUSE, 18 others submit joint
HEA discussion draft comments
 NFB:
 Asserts brief remarks on TEACH section =
higher education dismisses issue
 Publishes highly critical blog post, op-eds
against ACE
 Claims TEACH reflects current law, creates
voluntary “safe harbor” guidelines
EDUCAUSE in Action
 ACE/EDUCAUSE Inside Higher Ed op-ed on
position (also ACE “letter(s) to the editor”)
 Higher education TEACH analysis posted
online; shows disconnects with current law
 Actively informing Congress of concerns on
TEACH and HEA reauthorization
 Working on alternatives for Congress to
consider; ready to work with NFB on process
Appropriations Committees Aim to Block Federally-Funded Research Projects
Involving Access to Porn
Porn Rider in the Appropriations Process
The Basics
 2014 Appropriations bill provision:
SEC. 528. (a) None of the funds made available in this Act may be
used to maintain or establish a computer network unless such network
blocks the viewing, downloading, and exchanging of pornography.
(b) Nothing in subsection (a) shall limit the use of funds necessary for
any Federal, State, tribal, or local law enforcement agency or any other
entity carrying out criminal investigations, prosecution, or adjudication
activities.
 Agencies prohibited from using federal funds to
maintain or establish networks unless they
block access to pornography

The Basics
 Provision included in the 2014
Appropriations packages for:
 Commerce, Justice, Science, and Related
Agencies
 Department of Homeland Security
 Departments of Labor, Health and Human
Services, and Education, and Related
Agencies
 Military Construction and Veterans Affairs,
and Related Agencies
EDUCAUSE in Action
 NIH released a notice alerting award
recipients about provision
 EDUCAUSE contacted congressional,
association, agency sources on scope
 NIH: Provision only applies to funds directly
awarded for establishing/managing networks
 Would not include overhead funds
 NIH stated it would contact affected grantees
and contractors directly

Current State of Affairs
 No implementation requirements or
compliance issues from any other
department or agency
 Some departments have had the provision
attached to their appropriations for at least
the last two fiscal years
 Continue to monitor in case substantive
concerns emerge down the road
Education Department Tries to Regulate the State Authorization Process for
Distance Education Programs
State Authorization for Distance Education
The Basics
 2010: Dept. of Education (ED) rule—distance
education providers need state authorization
in each state in which they operate
 2012: Rule struck down by federal appeals
court
 Feb 2014: ED negotiated rule-making on
student aid regulations, including distance
education state authorization
 April 2014: ED released its draft proposal
The Proposal
 No exemptions based on accreditation, years of
service, or other “comparable exemptions”
 To exempt providers, states must implement a
complaint process, and review:
 fiscal viability, refund policy, programs offered, tuition and
fees, complaint process, and history
 Regulation triggered if >30 students will complete at
least 50% of degree via distance education
 Student notification mandated if licensure program
would not meet state licensure requirements
 Exemption for active military and their families

Education Department on its Own
 Panel voted down the proposal in May,
allowing ED to draft a new rule on its own
 Expected to include language from ED’s
original draft proposal
 WCET, UPCEA, and the Online Learning
Consortium (aka Sloan-C) submitted a letter
to ED on draft proposal concerns
 ED attempting to release final regulations at
the end of October
Changes to the Notice-and-Takedown Process Being Explored by USPTO & NTIA
through Multi-Stakeholder Forums
DMCA Notice-and-Takedown Process
The Basics
 USPTO and NTIA began a multi-
stakeholder process
 Focus: Voluntary improvements to DMCA
notice-and-takedown procedures
 Held a series of stakeholder forums on
simplifying the process
 Working on a voluntary, standardized
takedown notice
EDUCAUSE in Action
 Analyzed first forum transcript
 Recruited member observers to attend
second forum
 Determined that process did not have
implications for higher education
 Continue to monitor process for shifts
that might raise community concerns
Questions? Contact us:
Jarret Cummings
[email protected]
Josh Ulman
[email protected]

Jennifer Ortega
[email protected]