Lawmakers press FAA on modernization

The Federal Aviation Administration’s effort to modernize the national airspace system hasn’t moved fast enough, and now some in Congress are raising the prospect of pulling their support for the decadelong initiative and calling for a more fundamental restructuring of the agency.

During a hearing Tuesday, members of the House Committee on Transportation and Infrastructure’s Aviation Subcommittee expressed frustration with the progress made to date on the FAA’s Next Generation Air Transportation System program, known as NextGen, and left the door open to major changes in the FAA’s funding bill, which expires at the end of the year.

House Transportation and Infrastructure Committee Chairman Rep. Bill Shuster, R-Pa., said the lack of significant progress on NextGen during the last decade should lead lawmakers “to begin talking about significant restructuring of the FAA and potentially moving the air traffic control responsibilities out of government.” Despite progress on the technology front, many in Congress and industry have lost confidence in FAA’s ability to modernize, he said.

Rep. Michael Capuano, D-Mass., said after more than a decade and $5 billion in investment, NextGen hasn’t made a significant difference in Massachusetts, where testing is underway for surface operations at Logan International Airport. “I got to be honest … my support is significantly wavering,” Capuana said. “I don’t see much change for all the money and effort. Why should I continue to support throwing money at NextGen when I have yet to see enough bang for the buck?”

The challenge comes at a critical moment for the agency and the NextGen program. The FAA has been operating under a $63 billion funding bill originally passed in 2012. That funding is schedule to run out this year, with only five years to go before the 2020 deadline established by the 2012 FAA Reauthorization Act that requires aircraft operators to install NextGen-compatible avionics on aircraft.

FAA Administrator Michael Huerta told lawmakers the agency has been working on developing and deploying core infrastructure to support NextGen, and this year marks a significant turning point in the 20-year effort.

“The agency has been very focused on delivering the core infrastructure programs, such as the [Automatic Dependent Surveillance-Broadcast] program as well as the En Route Automation platform,” Huerta said. The ADSB program, which uses global positioning system data, was delivered on time and on budget, according to Huerta. The ERAM program was delayed but is recovering.

“Those create an important foundation,” Huerta said. “The technological infrastructure is now in place to begin transitioning away from a radar-based air traffic control system to a satellite-based network. We now have more satellite-based procedures in our skies than radar-based procedures.”

By the end of this month, FAA also plans to complete the upgrade of its En Route Automation Modernization. This system will accommodate the new technologies of NextGen. Huerta characterized it as “one of the largest automation changeovers in the history of the FAA” and said it would result in a more powerful air traffic system that can handle the challenges of the coming decades.

Huerta acknowledged “the skepticism that the industry and others in the system have had over many years,” but he pointed to the progress FAA has made working on industry’s priority areas including performance-based navigation, surface operations and the Data Communications program, which is running trials at two airports with plans for two more soon. The NextGen routes that are currently operational are showing signs of lower fuel costs, more predictable flights and fewer delays, he said.

UAS integration

After months of delays, the FAA last month issued its long-awaited framework of regulations for how it plans to integrate nonrecreational unmanned aerial systems into the national airspace. While lawmakers viewed the delays as a symptom of the agency’s larger modernization challenges, Huerta blamed the FAA’s limited authorities and budget for the time it has taken to grant exemptions and certify UAS operations.

Under the 2012 reauthorization bill, Congress gave FAA the authority to grant waivers to particular users of UAS systems. To date, the agency has received more than 450 applications for such waivers, but Huerta said the FAA’s authorities require it to process each application on an individual basis.

“The challenge that we have is that exemptions are granted to an individual or a company for a specific purpose. The agency has very limited ability to grant blanket exemptions to whole classes of users,” Huerta said. “And so what that means is that we have to evaluate each application on its own individual merits. Anything that we can do that would enable us to look at classes of operators that have substantially identical facts or very similar characteristics I think could be quite helpful.”

The lack of funding, however, has had an impact on the FAA’s UAS test sites and the ability of some U.S. manufacturers to get their UAS platforms tested and certified for flight.

“We have heard from many members of the unmanned aircraft community that since no funds were authorized for appropriation to the test sites, the test sites have turned to the testing itself as being the business model through which they support themselves,” Huerta said. “I’ve heard a story from [a small UAS manufacturer] of being charged a quarter of a million dollars for a week’s testing.”

Rung lays out IT-heavy agenda for procurement policy office

The Office of Federal Procurement Policy will prioritize its work around IT acquisition in the coming months, Administrator Anne Rung said Tuesday.

Speaking at an acquisition-focused event hosted by ACT-IAC, Rung delivered a keynote introducing several new OFPP initiatives and goals for the coming calendar year, heavily centered on category management through the General Services Administration’s Common Acquisition Platform.

Rung said that within three months, OFPP wants all IT contracts hosted on the platform, which she described as a collection of subject-matter-expert-managed category gateways “for government employees to find contract information, pricing tools, best practices and other data.” The Common Acquisition Platform, she said, breaks down “agency silos” and creates the “simplification and collaboration [that] will lead to improved performance and savings.”

Early IT acquisition moved government buying away from a centralized model led by GSA to give agencies more options in their procurements. But Rung said “the pendulum has now swung completely the other way with unprecedented levels of fragmentation in our buying and enormous proliferation duplicative IT contracts, creating huge inefficiency. Stated another way, the sheer complexity of our organizational framework for IT acquisition is a stranglehold on innovation and efficiency.”

The Office of Management and Budget, which housed OFPP, plans to hire an IT category manager who will work with newly appointed Federal CIO Tony Scott, GSA Assistant Commissioner for the Office of Integrated Technology Services Mary Davie and Rung to improve government’s buying of IT commodities, the OFPP administrator said. Likewise, GSA will hire an IT vendor manager “who will provide full-time focus on improving relationships with key types of vendors, especially those who have multiple contracts for similar goods and services,” she said.

In addition to category management, Rung presented numerous IT acquisition initiatives to keep an eye out for in coming months. To make sure concepts like category management and agile acquisition catch hold in federal government, she said, it’s necessary to strengthen the acquisition workforce.

“Equally important, we must find more effective ways of building that capacity to make sure it’s taking hold,” Rung said. “If we want to develop a digital capability and an agile mindset within the agencies we must ensure that everyone understands the approach and the many benefits.”

Rung said OFPP is partnering with the U.S. Digital Service and GSA “to develop programs to build digital and agile capabilities within the federal government.” In the next few weeks, the office will also issue a challenge on Challenge.gov to “help develop a program to certify contracting professionals in digital services acquisition strategy,” developing “cross-functional training for integrative product teams working on digital acquisitions,” she said.

Within the Common Acquisition Platform, OFPP is developing a TechFAR hub, which will help agencies looking to acquire more innovatively within the legal boundaries of the Federal Acquisition Regulation.

“This hub will be part of a larger hallway that will support the Federal Buyers Club and provide innovative strategies, case studies and resources for any type of procurements,” said Rung, who also plans to release podcast on “how government employees have successfully implemented strategies from the TechFAR and the Digital Services Playbook.”

Lastly, OFPP will introduce something called Acquisition 360 to improve IT acquisition.

“It’s the first ever transaction-based feedback tool that will allow agencies to identify strengths and weaknesses in their acquisition process with a focus on pre-award activities, contract execution and certain post-award activities such as briefings,” Rung said. “This initial effort will give us experience with such as toll and allow us to gain significant insight into where weak points are and where we’re doing well so we can share that with other partners.”

Rung has lofty goals for acquisition through calendar year 2016: more transparency, more data on governmentwide acquisition, and a reduction in procurement fragmentation. But these IT initiatives set a solid framework for improving and innovating acquisition, she said. “While there’s much left to be done, we are well on our way to building a much stronger foundation for delivering results.”

Hillary Clinton’s emails: Emblematic of larger issues?

Open government advocates say recent reports that Hillary Clinton conducted business as secretary of State using a personal email account could point to an intrinsic problem within the upper echelons of the federal government.

“If it was something that Hillary Clinton did or was able to do, and wasn’t told to stop, then presumably a lot of others are doing it too,” John Wonderlich, policy director of the Sunlight Foundation, told FedScoop. “So, it’s something we need to worry about fixing.”

The New York Times first reported Monday that Clinton did not have a federal government email while she served at the helm of the State Department until 2013. Instead, she used her own email. Whether that account had any security protections attached remains unclear.

According to the report, Clinton staff had not moved to preserve the former secretary’s email records until two months ago.

“It wasn’t just a sideline route for a certain conversation or choosing not to put things in writing,” Wonderlich said. “It was opting out entirely of the official email channel in order presumably to persevere control of what got released — and how and when.”

Wonderlich, who wrote a blog post about the news, said Freedom of Information Act requests, inspector general investigations and congressional oversight require access to information, including emails.

Clinton is not the first to avoid using an official government email. The New York Times notes that her predecessor Secretary Colin Powell used personal email. Also, former EPA Administrator Lisa Jackson came under fire for using a private EPA email under the alias Richard Windsor. And also in the news was controversy surrounding the loss of emails sent to and from former IRS Exempt Organization Chief Lois Lerner.

In a release, the National Archives and Records Administration quoted Archivist of the U.S. David Ferriero’s testimony in September 2013, saying the agency “discourages the use of private email accounts to conduct Federal business, but understands that there are situations where such use does occur.” It also said it reached out to the State Department to ensure its records are properly managed.

At issue is compliance with the 1950 Federal Records Act, which requires agencies to preserve records that document their organization, procedures and essential transactions. The law was updated late last year to codify a 2013 guidance regarding the treatment of emails.

National Security Archive FOIA Project Director Nate Jones told FedScoop that even before the update to the Federal Records Act, Clinton’s records should have been archived.

“Even though there wasn’t guidance from NARA, the law is pretty clear that records of official business — which those are — should have been preserved by the agencies,” Jones told FedScoop. And using a private email is “certainly not a best practice,” he said.

At the same time, Jones suggested that a private email account might be better at keeping track of records than the federal government’s own systems. He said currently officials at many agencies print and file their critical emails for the National Archive’s records. Though, he noted that is changing as the National Archives continues to enact its Capstone program to immediately archive correspondence of key agency officials. National Archives did not reply to a request for the number of agencies taking advantage of that program.

Going forward, Wonderlich said he thinks all Cabinet secretaries will face questions about whether they use official email.

“Because if the answer is no, we’re going to have to figure out how to change that,” he said. He called for legislative reforms that give the National Archives stronger powers to make clear guidelines, and increase its investigative and enforcement authority.

Meanwhile, Wonderlich said he hopes the issue won’t be mired in partisan talk.

“There’s going to be a lot of political discussion,” Wonderlich said. “But I hope that political discussion is going to translate into the reform discussion we need.”

Is more data science in the stars for NASA?

The federal government’s love affair with data could be going interstellar.

According to a job posting on USAJobs.gov, NASA is looking to hire someone to oversee the agency’s use of data. While the post does not explicitly say the position is for a chief data officer (the title is “information technology specialist”), the description details job assignments that will cover the agency’s entire data strategy.

The job description reads:

“This position will define and develop Agency-wide strategy for Big Data, and data mining/analytics solutions that can have significant positive impact on NASA missions. The incumbent will be expected to communicate their conclusions clearly to a wide audience and expertly collaborate with the NASA scientific and engineering community.”

It continues:

“Serves as the agency’s expert on oversight of national data management programs with precedent setting issues. Formulates long-range policies and develops and implements strategies and management guidelines for complex and changing information technology systems. Presents policy project status briefings and recommendations concerning long-range IT plans to top level of management. Presents briefings on IT policy initiatives and project status, standards developed and solutions to critical issues and recommendations concerning long-range IT plans to top levels of management and special interest groups.”

When asked if the position was for a chief data scientist, a NASA spokesperson said “absolutely not,” saying only that the person would work under the Office of the Chief Information Officer.

The job description does explicitly say it’s looking for data scientists, listing the title, in all caps, as a selective factor in the hiring process.

Those applying will need to have a firm basis in open source coding. The description calls for applicants to be well versed in Java, Python, Hadoop, and Apache’s Hive and Pig programming languages.

High-ranking data officers have grown extremely popular within the government, with a host of federal agencies either looking for or hiring chief data officers in the past few months. Last month, the White House named DJ Patil as the nation’s first federal chief data scientist.

NASA has long been a federal government leader in open data. Data.nasa.gov was launched shortly after President Barack Obama’s 2010 Open Government Initiative and uploads hundreds of terabytes to more than 500 data sets every day.

The agency has also turned to the public’s help with open data challenges, including ones launched within the past year dedicated to asteroid detection and processing climate data.

The position also comes with a nice six-figure salary, from $126,245 to $158,700 per year.

VA officials misused millions in funding for new IT system — IG

Editor’s Note: This story was updated on March 4 to reflect additional reporting, including the identification of the former chief business officer at the Veterans Health Administration implicated in the recent inspector general report.

Two former officials who were in charge of the Veterans Health Administration’s Chief Business Office violated federal appropriations law by channeling $92.5 million in medical support funding toward the development of a new health care claims processing system, according to a report released Monday by the Department of Veterans Affairs inspector general.

Acting on an anonymous hotline tip, the IG found that the last two officials responsible for the CBO for Purchased Care did not seek funding for the development of a new Health Care Claims Processing System, or HCPS, to improve the timeliness and accuracy of medical claims filed from outside the VA medical system. Instead, the two former deputy CBO officials — both of whom were allowed to retire from VA — deliberately used medical support funding in an effort to avoid competing with other VHA IT projects for funding, the IG report states.

One of the officials, former Deputy Chief Business Officer for Purchased Care Patricia Gheen, retired in May 2012 after a VA IG investigation found that she attempted to steer more than $2 million in contracts to a firm that employed her former boss. Gheen also received nearly $35,000 in bonuses while employed at VA.

Cyndi Kindred, the most recent deputy chief business officer at VHA — who is implicated but not named in the IG report — retired from VA in November, according to VA officials.

Lori Amos is currently serving as the acting CBO at VHA, according to a VA spokesperson.

Gheen committed $21.3 million from the medical support and compliance account to the development of the new claims processing system, and Kindred allowed another $71.2 million to be taken from funding earmarked for the administration of medical, hospital, nursing home, domiciliary, construction, supply and research activities.

The IG recommended that the VA strip all medical support and compliance funding from the HCPS program. VA’s Interim Undersecretary for Health Carolyn M. Clancy said the agency agreed with the IG’s findings, had developed action plans for identifying IT funding lines for the new claims processing system, and is referring the matter to VA’s Office of Accountability Review for potential administrative action against Gheen and other VHA officials involved in the violations.

House Veterans Affairs Committee Chairman Rep. Jeff Miller, R-Fla., called the report “deeply troubling” and said it demonstrates a glaring lack of budget oversight at the agency.

“It is also disturbing that the two VA employees directly responsible for these activities were allowed to retire with full benefits, while the inspector general refused to name them in its report,” Miller told FedScoop. “In light of that, the IG owes the public an explanation regarding why no charges were filed and why it is protecting the identity of the employees at the heart of this illegal activity. Additionally, VA leaders must outline the steps they are taking to hold those responsible for overseeing VA’s budget and the Chief Business Office accountable,” he said.

An HCPS is being developed to replace VHA’s Fee Basis Claims System, which processes non-VA medical claims. The pilot efforts for the new HCPS began in late 2009 and were focused on eliminating more than $500 million in improper payments stemming from duplication and manual entry errors.

GSA drafts Network Services 2020 RFP

The General Services Administration released a draft request for proposals over the weekend for the telecommunications and network system framework to succeed its Networx contract vehicle.

GSA’s Office of Integrated Technology Services introduced the draft RFP for its anticipated Network Services 2020 Enterprise Infrastructure Solutions, or EIS, contract Saturday afternoon “that will make it easier for Agencies to acquire telecommunications and IT infrastructure services.”

NS2020, in support of the Digital Government Strategy, is GSA’s acquisition strategy “to become the federal government’s strategic sourcing center for network-based and network-enabled services,” according to the extensive RFP.

EIS is at the center of NS2020 with the goal of making “the resulting contracts as flexible and agile as possible to meet and satisfy the widely differing requirements of the federal agencies both now and for the next decade and beyond.” The plan is for EIS to be broad in scope “and include a wide range of pre-defined commonly procured items to enable one-stop shopping.”

According to the draft RFP, the following services will be mandatory under the EIS:

• Virtual Private Network Service
• Ethernet Service
• Voice
• Managed Network Services

Networx, which 136 federal agencies use to buy their network services currently, is still a booming business for GSA. Last year, agencies spent $1.53 billion using the contract vehicle, up 13 percent from 2013. GSA published a strategy for the transition from Networx to NS2020 in April 2014.

GSA wants comments from potential contractors and agencies on the NS2020 EIS draft RFP by March 31.

Are student privacy laws hurting students?

In simpler times, school administrators in Louisiana didn’t worry about posting the Student of the Month’s name on a billboard outside, or showing football players’ names, numbers, height and weight on a screen during games.

That was before student privacy concerns swept the state.

Districts have been scrambling to comply with a strict new law that went into effect this school year that prohibits schools from collecting, without parental consent, more than two pieces of personally identifiable information “that separately or when linked together can be used to reasonably ascertain the identity of the person.”

“How are you going to have a yearbook?” asked Wes Watts, superintendent of West Baton Rouge parish schools. “It’s ridiculous. Everybody is kind of on edge.”

The effects of the Louisiana bill, signed into law by Gov. Bobby Jindal last summer, offers a window into a national hot-button issue that has attracted interest from politicians on both sides of the aisle. Since Jan. 1, about 38 states have introduced 129 bills that deal with student privacy, an increase in the number of bills introduced in all of 2014, according to the Data Quality Campaign.

The exploding concerns that private companies could access sensitive student information, and the dizzying number of different bills introduced in state legislatures, has even prompted the federal Department of Education to issue guidance on the matter.

Officials last week released recommendations on how to secure student data and a video that explains which online educational services and companies best protect information from improper disclosure.

“Reading and understanding terms of service agreements is tough, even for lawyers. We hope this guidance will help school officials identify privacy-friendly apps and online services and avoid providers that might abuse student information,” Kathleen Styles, the Department of Education’s chief privacy officer, said in a press release.

“This guidance will help schools and districts evaluate potential agreements and offer direction regarding terminology frequently used in these agreements,” she continued. “By understanding commonly used provisions in these agreements, schools and districts will be better able to decide whether to consent to the terms for online educational services and applications.”

A student privacy test case

Louisiana passed two separate privacy bills: one sponsored by Republican Rep. Barry Ivey that mandates school districts to post on their websites contracts with vendors that require student data, and another crafted by Republican Rep. John Schroder that strengthens language around privacy and gives parents more control over who sees their kids’ data.

Schroder said his bill was driven by parents after concerns arose that new, standardized Common Core tests could lead to breaches of their kids’ information in the hands of third-party educational vendors. Parents were also worried about Louisiana’s participation in inBloom, a student information warehouse that has since shuttered.

The bill requires parents to sign annual permission forms to allow their children’s data to be collected to take school photos, given to companies like Scholastic to track reading progress and sent to a state financial aid program that awards scholarships for college.

“If a parent doesn’t send that letter back, or doesn’t give us permission, then their child could lose out on opportunities for financial aid,” Watts said. “Just the thought of that makes me cringe.”

The Schroder bill also requires that the state Department of Education create an anonymous identifier system by May 1 that does not use students’ Social Security numbers, and the new codes must be assigned by June 1. The state will no longer be able to access students’ names, date and place of birth, Social Security number, mother’s maiden name, and other information to use for assessment and accountability purposes.

If someone violates the law, which Schroder says is the strictest in the country, the offender faces up to a $10,000 fine or three years in prison, or both.

Several school leaders said in interviews with FedScoop that they have devoted countless hours tracking down hundreds of vendors to sign privacy addendums; posting the vendor contracts on their websites; and reaching out to parents to sign and return consent forms.

“I’ve already had teachers make home visits to get signatures,” said Lacey Bueche, supervisor of technology for Pointe Coupee parish schools. “The biggest problem school administrators have had is not parents saying ‘no,’ it’s parent’s not returning the form. That’s an automatic denial.”

District leaders said the amount of time spent on revamping their privacy procedures has come at the expense of students’ educations.

“How about our core business of teaching and learning?” Tresa Webre, assistant superintendent of the 10,000-student St. Charles parish, said when asked where she would rather focus her time.

“It’s taking away from things we really could be doing,” added Watts. “I think it’s hurting kids in the long run.”

Working out the “kinks”

Schroder defended his bill as a “model piece of legislation” – but admitted he’s meeting with stakeholders Monday to “work out any kinks.”

“There are some areas that are causing some concern because of interpretations of the law,” he said last week in an interview with FedScoop. “We have to somehow clarify and give school districts certainty on what they can do with data. If the law is so restrictive that you can’t hang a piece of art on the wall in the hallway with a student’s name on it, or you can’t put a newsletter out with any students’ names, that’s ridiculous. That’s not the intent of the law.”

Paige Kowalski, vice president of policy and advocacy for the Data Quality Campaign, a nonprofit advocacy organization, said lawmakers should listen to local stakeholders to craft bills that will work for their states.

“I don’t think these are easy bills to write,” she said. “It’s a new frontier. There’s going to be some trial and error. If you’re working on language that doesn’t work with your stakeholders, it may backfire.”

Webre said she would welcome changes to make the law less restrictive.

“We are hoping for addendums to the law so it will be more realistic,” she said. “We all agree that we probably need to be more cautious about the information we share with others, and we’re all about protecting data, but the devil is in the details.”

While school districts have been struggling to adjust to the changes, vendors that provide educational services said the new law has presented a headache when it comes to renegotiating contracts.

Lifetouch, a professional photography company, serves about 600 schools in Louisiana – gathering students’ names, graduation years and other information.

Laurie Dechery, associate general counsel for the company, said schools can’t provide a “one-size-fits-all” contract to vendors anymore because they have to include more specific language tailored to the company about data retention policies and security breach protocols.

“We’re going to be seeing more case-by-case contracts in Louisiana,” Dechery told FedScoop. “Some contracts are not made for school photography, but they’re presented as take-it-or-leave-it.”

Still, she added, “I have not heard that it’s preventing us from doing school photography” in Louisiana schools.

Creating a student identifier system

School district leaders say they’re worried about enacting the next piece of the legislation – the student identifier system – and that they are waiting for guidance from the state Department of Education.

State officials said they have selected a vendor to create the new system, and are hoping to finalize details in the next couple of weeks before releasing the name.

They are also focusing on revamping their processes to comply with the law; instead of simply handing over student data to the Office of Student Financial Assistance, they need to make sure students provide signed consent forms to be eligible for scholarships.

“Protecting student privacy and creating a unique student identifier system is a priority for the Department,” a spokesman wrote in an email.

In the meantime, Louisiana’s nearly 100 school districts are left navigating uncharted territory. Watts boiled the policy down to a puzzle he has been trying to solve.

“We have to identify our students without identifying them,” he said.

Alissa Johnson moves into health care info security position

Alissa Johnson, the former deputy chief information officer at the White House, has accepted a position as chief information security officer at Stryker Corp., a multibillion-dollar medical technology firm based in Kalamazoo, Michigan.

“They offer a diverse array of innovative medical technologies, including reconstructive, medical and surgical, and neurotechnology and spine products to help people lead more active and more satisfying lives,” Johnson wrote in an email to friends and colleagues obtained by FedScoop.

“My role as CISO leads and oversees activities relating to Information Security across the company as well as the standards and governance around information security related to products. At Stryker, I will lead and manage information security initiatives globally and will work closely with the different businesses Information Security leaders and regional infrastructure heads to ensure security policy or strategy is implemented in a consistent way,” she said. “I am so excited for the opportunity to apply all of my rich experience to the healthcare industry and I am thrilled to be joining Stryker with the great work that they do helping others.”

Johnson announced her departure in January. She served in the White House since March 2012, helping modernize the Executive Office of the President’s IT systems, using cloud services and virtualization, employing new cybersecurity strategies, and chairing the OCIO Investment Review Board and Government and Contractor Project Review Boards. Johnson was also active in DigitalGov, the collaborative office within the General Services Administration that pushes federal agencies to embrace social networks.

Recently, Johnson receivied a FedScoop 50 award for her visionary work in “leading government into a new technology landscape with innovative ideas.” She was also part of a panel at FedScoop’s FedTalks that created #SmartIsBeautiful, a movement aimed at encouraging women to enter STEM fields.

Former FOIA officer worries new bill poses IT challenges

A House bill that aims to strengthen the federal Freedom of Information Act ombudsmen may generate some IT headaches, a former FDA FOIA official told lawmakers.

Frederick Sadler, a former FOIA officer for the Food and Drug Administration, told members of the House Oversight and Government Reform Committee during a hearing Friday that while the bill introduced earlier this month would improve some processes within the Office of Government Information Services, it could create difficulties for other federal agencies.

The bill, introduced by former committee chairman Darrell Issa, R-Calif., and senior Democrat Rep. Elijah Cummings of Maryland, would establish a single online portal for FOIA requests. Currently, no such portal exists, although several large government units, including the Environmental Protection Agency, General Services Administration and the U.S. Navy, use the FOIAonline portal to track FOIA requests.

Sadler said the requirement for the universal portal is “laudable,” though fraught with complications. To name a few: The volume of requests to a central portal would be so large that it could require a new division. He also said individuals who are requesting their own records may need to include an original signature, not a duplicate.

He added that some request letters might not be able to be included in the portal because requesters included medical data or their Social Security number, particularly within Social Security Administration or Department of Veterans Affairs requests.

“There’s an issue about when these would be disseminated and how that database, if it transmits information to the federal government, how that would feed back to a central repository for posting,” said Sadler, who’s worked in government for 40 years.

But National Security Archive’s FOIA Project Director Nate Jones told FedScoop many of Sadler’s arguments did not hold water.

“A lot of Fred’s concerns have already been overcome by other FOIA agencies,” said Jones, who did not testify at the hearing. “It’s just up to the lower-achieving agencies to catch up.”

He said FOIAonline is “working well,” and its members post requests and releases online. And he pointed to the State Department and the FBI, which also post FOIA releases. “It’s possible to do what he says is impossible,” Jones said. Jones added that GSA’s 18F was working on streamlining the FOIA request process and that he has not heard it suggested that the universal portal would require a new division.

If it passes, the bill would require agencies to frequently post information online in a public accessible format — a move that would codify an existing requirement.

But during the hearing, Sadler discussed how posting FOIA documents would make it difficult to adhere to the Americans with Disabilities Act, which requires that records on agencies’ websites are in a software that would allow the information to be “verbalized” for the blind. While he noted government records are often already in that form, agencies would have to convert records that are submitted to them.

He pointed to a situation during his career when the agency had to post a letter in a Word document that referenced “allergy-enduing ingredients.”

“Unfortunately, the phrase ‘allergy-inducing ingredient’ was mistranslated by the optical scanner as ‘orgy-inducing ingredient,’ which was publicity the firm couldn’t buy,” he said.

The document had to come down immediately, he said. Unless there are more resources for IT and FOIA programs, “I don’t see how they can keep up,” he said.

But Jones said Word documents are already digitally readable and compliant with that provision of the act. He added that agencies often use the ADA as an excuse not to post documents online.

“It’s a red herring,” Jones said.

Will courts cut down Net Neutrality in its tracks?

In the past month, two things became certain with regard to net neutrality: The Federal Communications Commission was going to protect the open Internet by invoking privileges under Title II of the Communications Act and big telecom companies were going to take the rules to court.

Thursday served more as a net neutrality bullet point than an end point. How this plays out in the courts and the greater tech space will take months to figure out. We talked with Julio Avalos, GitHub’s chief legal officer, to see what this means for innovation, what the courts may or may not decide, and if Congress can do anything to change the current net neutrality landscape.

_____________________________________________________________________________________________________________

FedScoop: So we can say with a high degree of certainty that telecom companies are going to go to court over the new net neutrality rules. What hurdles or speed bumps will we see moving forward?

Julio Avalos: The most obvious speed bumps will be constitutional objections and litigation. I think that the FCC, from a legal standpoint, has been put in a tough corner. Historically, Congress has acted to change the rules around common carriers as technologies develop. Whether it’s under Title II with telecom companies or railway companies or Title VI when cable started coming into vogue in the ’60s, there really hasn’t been a commensurate action on the part of Congress to capture broadband Internet that has exploded over the last 15 to 20 years. The strongest possible argument the FCC has under Title II is broad enough to capture broadband, but I also think from a legal tenability standpoint, it would be on stronger footing if Congress could have legislated to account for the Internet.

FS: How will this affect innovation in the short- and long-term?

JA: There was sense of unease with respect to what was going to happen, and any kind of clear, unambiguous position by the FCC is a step in the right direction. Notwithstanding the legal objection, I think companies that are interested in entering data-rich, data-intensive spaces — audio, video, streaming, etc. — can maybe move forward with a little bit of clarity.

If the courts and the FCC are unable to come to some agreement, eventually it will begin to have an impact on innovation to the extent that startups are aware of these issues. If they are trying to move into these data-intensive technologies, then it would start to have a negative impact. Anything that happens from here on out should be done mindfully and done with this idea that a group of developers that have a good idea for product and are unsure whether to launch it because of any instability that’s happening in the courts, that’s bad for business, that’s bad for people and that’s bad for the economy.

FS: The opposition says these new rules regulate 21st century products under antiquated laws. Does that hold any weight? Do we need a law specifically for broadband?

JA: If you look at Title II and the way that the FCC has been reading Title II, I think it is broad enough to capture future technologies. Like anything else that legal-related, we always look at precedent and court opinions that were law 100 or 200 years ago that’s still good law today. You can’t just say, “This is an opinion that came out 100 years ago, somehow it’s inapplicable.” The reasoning either applies or it doesn’t. The basic reasoning and justification behind Title II is completely in sync and appropriately applied to looking at broadband technology as common carriers. Now, could it be cleaner? I think if Congress created a new title for broadband, I think certainly. That doesn’t seem to be a possibility. I think [Title II] is strong enough.

The fact that we have gone to Title II, the system has worked for telecom companies. AT&T and Ma Bell did okay. This idea that somehow an industry is going to have a modicum score of regulation and it’s going to have some disastrous impact on that business, I think that history teaches the opposite. The real change to the status quo would have been to adopt this fast lane, tiered hierarchy, pay-to-play situation that would ultimately have spread out industry into a strange place and would’ve had unintended consequences for future generations.

FS: What if this gets overturned again? Is congressional action the only path forward?

JA: If this gets overturned in the courts, everyone is going to back to business as usual, and the FCC will try to craft new rules, and it will continue on and on. Whether or not congressional intervention is the only real next step, I think it’s logical. As a community, we’ve primarily been focusing on Title II, and lobbying Congress or calling your local senator and trying to get some additional title added for broadband, that conversation hasn’t really happened. I think there is untapped territory to start focusing on this as a ballot issue and something that voters, at least in areas where they rely on e-commerce, should be looking to Congress for in the future. That would be a move in the right direction

FS: So this issue, regardless of court cases, isn’t going to simmer down.

JA: I still believe we need to think about the Internet and where we’re at as the dawn of this age. We’ve only been working with these issues for the past 15 to 20 years. We should proceed with caution before making changes that could impact the Internet on a structural, long-term level. To me, Title II is a somewhat conservative move, which is using a playbook that worked in the early part of the 20th century, worked in the mid-part of the 20th century for cable. So let’s apply this to broadband instead of using something that’s completely new and that we can’t really predict the impact of.

This transcript was edited for clarity and conciseness.