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Higher Education, IT, and

Public Policy

October 1, 2014

Jarret Cummings, Josh Ulman, and Jennifer Ortega

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Major Policy Areas

Cybersecurity and data privacy

E-Learning (including accessibility)

Copyright (e.g., Digital Millennium

Copyright Act, or DMCA)

Telecommunications

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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

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Federal Communications Commission to Reinstate Open Internet RulesNetwork Neutrality

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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

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The Basics

FCC Notice of Proposed Rule-Makingpresents 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

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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” 

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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 moreendorsing thru reply comments

12 signed onto reply comments

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EDUCAUSE in Action

Key positions No paid prioritization, degradation,

blocking

“Internet reasonable” standard todetermine 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

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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 endof the year

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Legislation in Congress to Regulate Accessibility of Technology in Higher EdTEACH Act (IT Accessibility)

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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)

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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

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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)

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The Debate

 ACE, EDUCAUSE, 18 others submit jointHEA 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 

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EDUCAUSE in Action

 ACE/EDUCAUSE Inside Higher Ed op-ed onposition (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 toconsider; ready to work with NFB on process

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 Appropriations Committees Aim to Block Federally-Funded Research Projects

Involving Access to Porn

Porn Rider in the Appropriations Process

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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 theyblock access to pornography

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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

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EDUCAUSE in Action

NIH released a notice alerting awardrecipients 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

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Current State of Affairs

No implementation requirements orcompliance issues from any other

department or agency

Some departments have had the provisionattached to their appropriations for at least

the last two fiscal years

Continue to monitor in case substantiveconcerns emerge down the road

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Education Department Tries to Regulate the State Authorization Process for

Distance Education Programs

State Authorization for Distance Education

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The Basics

2010: Dept. of Education (ED) rule—distanceeducation providers need state authorization

in each state in which they operate

2012: Rule struck down by federal appealscourt

Feb 2014: ED negotiated rule-making on

student aid regulations, including distance

education state authorization

 April 2014: ED released its draft proposal

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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 andfees, complaint process, and history

Regulation triggered if >30 students will complete at

least 50% of degree via distance education

Student notification mandated if licensure programwould not meet state licensure requirements

Exemption for active military and their families

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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

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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

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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

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Questions? Contact us:

Jarret Cummings

 jcummings@edcause.edu 

Josh Ulman josh@ulmanpolicy.com 

Jennifer Ortega jennifer@ulmanpolicy.com