An NCSL newsletter from the Communications, Technology and
Interstate Commerce Committee

Contents

COMMITTEE UPDATE

At the Communications, Technology and Interstate Commerce Committee meeting December 6-9th in Chicago, the agenda included hearings on universal service and local franchising authority, and sessions on do-not-call, streamlined sales tax, telecommunications taxation and digital archiving.  The Committee also sponsored a pre-conference seminar on radio frequency identification (RFID).  And, the Committee held a tour and briefing at Motorola corporate headquarters in Schaumburg, Illinois where they learned about the latest mobile broadband and RFID technologies.  See the Committee web page and the RFID seminar page for handouts. 

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Mark your calendars for the next Committee meeting, April 5-8, 2006 in Washington, D.C.  For more information about the Committee, contact Neal Osten in Washington, D.C., (202-624-5400),  or Jo Anne Bourquard in Denver,  (303-364-7700) or see the Committee web page.

45 states offer broadcasts, and in 38 of those states, audio or video broadcasts are available on the Internet. 

Information Technology

Captioning of Legislative Broadcasts for the Hearing Impaired

State legislatures have embraced live broadcasts of proceedings —via the Internet or TV—as a way of providing citizens with immediate and easy access to the legislative process.   45 states offer broadcasts, and in 38 of those states, audio or video broadcasts are available on the Internet. 

A continuing challenge, however, is to make the legislative process accessible to those with disabilities.  Several states have taken the lead by providing closed captioning of legislative broadcasts for hearing impaired citizens.  Minnesota, New York, Oregon, and South Carolina offer closed captioning of some or all proceedings broadcast on television.  Rhode Island plans a pilot project for the 2005 legislative session.  Nevada, the New York Assembly, and the South Carolina Senate offer closed captioning of Internet broadcasts.  However, costs associated with closed captioning can be prohibitive, especially for Internet broadcasts.

In Nevada, the legislature normally provides a sign language interpreter at committee meetings only upon request of a hearing impaired person.  The legislature has adopted the same policy for closed captioning of Internet broadcasts, even though the cost for Internet captioning can be up to five times as expensive.  In South Carolina, funds came from a portion of a fee the state adds to telephone bills to fund programs for the hearing impaired community.  In Oregon, a federal grant, matched by state funds, allows the public broadcasting station to do closed captioning of television broadcasts. 
 

 - Submitted by Pam Greenberg

As interest in these miniscule devices continues to grow, states are finding ways to support this emerging technology. 

Nanotechnology Update

As interest in these miniscule devices continues to grow, states are finding ways to support this emerging technology.  In many ways, the definition alone is a problem.  Many states have set up funds to help entice new industry.  Other states have set up advisors and planning committees. 

Nanotechnology is a broad term that can cover a large range of topics.  In Arkansas, Ark. Code Ann. § 15-4-2103 defines it as “the materials and systems whose structures and components exhibit novel and significantly improved physical, chemical, and biological properties, phenomena, and processes due to their nanoscale size”.  Other states have tried to include nanotechnology in existing categories: Massachusetts defines it as an emerging technology industry (Mass. Gen. Laws ch. 23G, § 27) and New York places it in the category of enabling sciences, which are “those science disciplines which may be directly applied to life science research” (NY Cons. Laws Exec. § 209).  Florida has included a special niche for the Florida Space Authority Board of supervisors, including space-related nanotechnology in their definition of “space industry” (Fla. Stat. § 331.308).

Several states have granted money towards specific projects, such as Illinois’s grants to the Argonne National Laboratory for the Nanotechnology Institute and Northwestern University (PUBLIC ACT 93-587) and Ohio’s assistance to several state universities (OH SB 189).  In other states, such as Indiana, Kansas, Massachusetts, New Jersey, New York, Oregon, South Carolina, and Texas, funds or accounts have been established or modified to include nanotechnology.  Using another approach, Arkansas has a tax credit allowance to attract nanotechnology related businesses (see Ark. Code Ann. § 15-4-2104).

Advisory programs have been set up in a number of states to help coordinate business and governmental interests.  California has the Economic and Workforce Development Program (Cal. Ed. Code § 88500).  The North Carolina Rural Internet Advisory Authority (N.C. Gen. Stat. § 143B-437.44) is set up to develop telecommunications and information network technology, including nanotechnology.  Also, there is the Oklahoma Center of the Advancement of Science and Technology (Okla. Stat. Ann. tit. 74, § 5060.1a).  In Texas, efforts to attract technology industries are coordinated through the Texas Economic Development and Tourism office (Tex. Gov't Code § 481.0296).  Virginia has established a Secretary of Technology to help planning and budgeting for technology programs, including nanotechnology.  (Va. Code Ann. § 2.2-225). 
 

- Submitted by Ricardo Ochoa

A May 2005 study by Proofpoint found that more than one-third of private-sector companies employ staff to read or analyze outbound email and many of those companies who don't monitor employee email soon will.

E-mail Privacy in the Workplace

Recent media reports of large-scale breaches of personal financial information have once again put the spotlight on issues of electronic privacy and online security. While much of the attention has focused on the general public and protecting vulnerable consumers from spam and viruses, relatively little attention has been paid to the rights of private-sector companies in monitoring the content of outbound email from employees. 

A May 2005 study by Proofpoint found that more than one-third of private-sector companies employ staff to read or analyze outbound email and many of those companies who don't monitor employee email soon will. Companies estimate that almost one-quarter of outgoing emails contains content that poses a legal, financial or regulatory risk. These statistics confirm the growing concerns of companies that employees could be exposing confidential information inadvertently through the use of web-based email or, even worse, they could be sharing or selling insider information knowingly over corporate email accounts.

The practice of monitoring private sector electronic transmissions has raised questions about the appropriate balance between employees' right to privacy in the workplace and the right of companies to protect sensitive proprietary information. Federal laws have generally given private sector companies significant discretion in monitoring employee email communication. Some courts have also ruled that privacy rights in electronic transactions do not extend to employees using company-owned computer systems, even in situations where employees have password-protected accounts.

The lack of a definitive law or court rulings governing email privacy at the workplace has prompted some calls for states to enact laws requiring companies to set up email access policies. Connecticut and Delaware have passed laws (§ 31-48d and § 19-7-705) requiring employers to give notice to employees prior to monitoring email communications or Internet access. In 2005 Massachusetts introduced a similar bill (HB 3803) but no further action has been taken.  Experts recommend that companies establish clear guidelines for workplace email and Internet usage and communicate those guidelines to employees. 

 -Submitted by Andrew Barwig

Millions of vehicles on the road today are equipped with event data recorders or "black boxes" that can record the speed of a vehicle, safety belt use, and other vehicle safety information. 

Event Data Recorders ("Black Boxes") in Vehicles Raise Privacy Concerns

Millions of vehicles on the road today are equipped with event data recorders or "black boxes" that can record the speed of a vehicle, safety belt use, and other vehicle safety information.  The National Highway Traffic Safety Administration (NHTSA) defines black boxes as "a device installed in a motor vehicle to record technical vehicle and occupant information for a brief period of time (seconds, not minutes) before, during and after a crash."  The use of these devices can allow researchers to obtain accurate and reliable crash data to improve vehicle and traffic safety.  The National Transportation Safety Board has recommended that NHTSA require the installation black boxes in all newly manufactured light-duty vehicles, once standards for event data recorders are developed.

However, many car owners are not aware that their cars contain these devices, and some state lawmakers are concerned about the privacy ramifications of this technology, such as who owns the information that has been recorded, who can obtain the information, and for what purposes the information can be used.

In 2004, California became the first state to enact legislation (Calif. Vehicle Code § 9951) requiring manufacturers to disclose to customers when event data recorders are installed in vehicles.  The law also prohibits download of data without the owner's permission or a court order. Five other states passed legislation similar to California's in 2005--Arkansas, Nevada, New York, North Dakota, and Texas.  NCSL's Web site has a summary of legislation introduced in 2005. 

 - Submitted by Pam Greenberg

In 2005, Colorado and New Jersey passed measures regulating unsolicited facsimiles. 

Senders of Unsolicited Faxes Beware

At least seven states regulate unsolicited faxes. In 2005, Colorado and New Jersey passed measures regulating unsolicited facsimiles.  Georgia, Minnesota, New Mexico, Rhode Island and Tennessee also regulate unsolicited faxes.  The Colorado act (H.B. 1059, Chapter No. 133) adds an exemption, similar to exemptions in many state do-not-call acts,  to the prohibition against sending an unsolicited fax.  The exemption is for an existing business relationship or for a non-profit organization that sends a fax in furtherance or the organization’s purpose.  The New Jersey act (A.B. 669, Chapter No. 114) prohibits transmission of certain unsolicited fax advertisements over the telephone.  The act also provides for civil penalties for violations.

- Submitted by Bob Boerner

As a result of a 2005 Supreme Court decision, providers of broadband service are not subject to the regulations that govern telecommunication providers.

U. S. Supreme Court Upholds Federal Communications Commission Ruling

In a 6-3 decision, the Supreme Court in June upheld a 2002 Federal Communication Commission ruling that classified broadband cable modems as information services under the Telecommunications Act of 1996. National Cable & Telecommunications Association v. Brand X Internet Services, No. 04-277, and FCC v. Brand X Internet Services, No. 04-281.

As a result of the ruling, providers of broadband service are not subject to the regulations that govern telecommunication providers. The ruling permits cable Internet service providers—such as Comcast and Cox Communications— to avoid the legal requirement that they open their transmission lines to competitors.

According to Justice Thomas, because the Telecommunications Act of 1996  was ambiguous over whether a cable modem service was an unregulated information service or a regulated telecommunications service, the San Francisco-based 9th U.S. Circuit Court of Appeals should have deferred to the FCC’s 2002 declaratory ruling on the subject. In his opinion, he cited the classic 1984 case, Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837.

"If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute even if the agency’s reading differs from what the court believes is the best statutory interpretation," Justice Thomas wrote. Joining him were Chief Justice William H. Rehnquist, Justices John Paul Stevens, Sandra Day O’Connor, Anthony M. Kennedy and Stephen G. Breyer. Justice Antonin Scalia filed a dissent, joined in part by Justices David H. Souter and Ruth Bader Ginsburg. 

 - Submitted by Bob Boerner

The number of 911 calls placed by the public using wireless telephones has more than doubled since 1995.

Wireless 911 Services – An Update on State Laws

The number of 911 calls placed by the public using wireless telephones has more than doubled since 1995, to over 50 million a year.  Public safety organizations estimate that 30 per cent of the 911 calls they receive are placed from wireless telephones and this percentage is growing. 

The ability to call 911 for help in an emergency is one of the main reasons that many Americans own a wireless telephone.  However, while wireless telephones can be a critical public safety tool, they also create unique challenges for emergency response organizations and for the wireless service providers.

The Federal Communications Commission (FCC) has adopted both basic and enhanced wireless 911 rules.  The rules are aimed at improving the reliability of wireless 911 services and identifying the location of wireless 911 callers.  The rules apply to all cellular licensees including broadband personal communications service licensees and certain specialized mobile radio licensees.

The basic FCC rules require wireless carriers to transmit all 911 calls to a Public Safety Answering Point (PSAP) regardless of whether the caller subscribes to the carrier’s service or not.  Phase I of the Enhanced 911 Rules requires wireless carriers, within six months of a valid request by a PSAP, to provide the PSAP with the telephone number of the originator of a wireless 911 call and the location of the cell site transmitting the call.  Phase II Rules require wireless carriers, within six months of a valid request by a PSAP, to begin providing more precise location information to PSAPs including the latitude and longitude of the caller.  The information must be accurate to within 50-300 meters.

While basic 911 service is now offered in virtually every community, not all areas of the country are served by the enhanced wireless 911 service.  At least 18 state legislatures considered a variety of wireless 911 measures in 2005.  At least 12 measures were passed into law.  For example, Connecticut S.B. 1276 (Public Act No. 181) implements recommendations of the state E911 commission.  New Mexico H.B. 174 (Chapter No. 203) creates a surcharge and fund for the financing of emergency 911 services.  And, Virginia S.B. 171 (Chapter No. 167) provides for the collection and dissemination of money in the Wireless E-911 Fund. 

- Submitted by Bob Boerner