Can We Make Congress Less Dumb About Technology?

from the one-can-hope! dept

Earlier this week, a bunch of organizations -- including Techdirt's own sister organization, the Copia Institute -- announced the launch of a new project, called Future Congress. It's a coalition of organizations, some of whom rarely agree on anything with some of the other members. It is made up of organizations with a variety of political viewpoints and policy ideas. But, this coalition does agree one one thing: we need to stop Congress from being so damn clueless about technology.

For many years, we've talked about the unfortunate decision by a Newt Gingrich-led Congress back in the mid-90s to dismantle the Office of Technology Assessment (or OTA). This was the organization that was a non-partisan, careful think tank focused on providing useful technology briefings to anyone in Congress who needed it. And yet, just as technology was becoming central to our every day lives, Congress defunded it (technically, the office still exists on the books, but it has no funding and no staff). Over the years there have been many calls to bring OTA back, and every so often someone in Congress floats a bill... which always gets shot down (the latest was just a few months ago).

The goal of the Future Congress coalition is to try to convince Congress to fix this -- for its own good. For many, many, many years now, we've highlighted how every time there's a hearing related to issues regarding technology, nearly all of our elected officials come off looking totally clueless to a degree that is outright embarrassing. They could easily fix this -- in a way that will both stop making them look clueless in front of the world and likely lead to better policy outcomes. Hopefully, they realize this.

I will note that last month there were some baby steps towards this, with Congress putting some language into an appropriations bill that fund a study of reviving the OTA while also moving to let the GAO take on some of the work that OTA used to do. It's unclear if this will actually survive or do very much, and Congress should be willing to step up and do much more. Hopefully, this Future Congress coalition will help make it clear to Congress why it should stop being so ignorant on technology -- especially when it has the means to better educate itself.

Filed Under: congress, future congress, gao, office of technology assessment, ota, tech literacy, technology

GAO Again Points Out That Terrible U.S. Broadband Maps Drive (Intentionally) Terrible Broadband Policy

from the round-and-round-we-go dept

We've made it pretty clear by now that U.S. broadband policy generally stinks because the nation's biggest broadband providers (and the politicians who adore their campaign contributions) want to keep the U.S. broadband market as it is: uncompetitive, expensive, and broken. There are myriad ways they accomplish this, from quite literally writing and lobbying for the passage of protectionist state laws, to convincing regulators like Ajit Pai to turn a blind eye to pretty much all of the worst habits of entrenched telecom mono/duopolies.

But at the heart of the problem sits the flawed form 477 broadband mapping data the FCC collects from broadband providers. With a vested interest in portraying a healthy market, ISPs have long submitted data that over-states broadband speed and availability. And, like a loyal servant to the industry it's supposed to hold accountable, the FCC (under both parties) rarely does much to actually verify that this data is accurate. This bad data then goes on to inform bad FCC policy.

Case in point: the GAO released a study last week noting that the FCC routinely overstates broadband availability in tribal areas, which in turn results in policy that doesn't do a good job fixing the problem. As the report (pdf) notes, the flimsy, unverified data the FCC collects is only compounded by odd FCC methodology decisions, like declaring an entire area "served" with broadband if just one home in a census tract has service:

The Federal Communications Commission (FCC) collects data on broadband availability from providers, but these data do not accurately or completely capture broadband access on tribal lands. Specifically, FCC collects data on broadband availability; these data capture where providers may have broadband infrastructure. However, FCC considers broadband to be “available” for an entire census block if the provider could serve at least one location in the census block. This leads to overstatements of service for specific locations like tribal lands. FCC, tribal stakeholders, and providers have noted that this approach leads to overstatements of broadband availability. Because FCC uses these data to measure broadband access, it also overstates broadband access—the ability to obtain service—on tribal lands.

The bad data, and the FCC's unwillingness to do anything about it for the last twenty years, then has a cascading effect down the line, the GAO found:

Additionally, FCC does not collect information on several factors—such as affordability, quality, and denials of service—that FCC and tribal stakeholders stated can affect the extent to which Americans living on tribal lands can access broadband services. FCC provides broadband funding for unserved areas based on its broadband data. Overstatements of access limit FCC’s and tribal stakeholders’ abilities to target broadband funding to such areas. For example, some tribal officials stated that inaccurate data have affected their ability to plan their own broadband networks and obtain funding to address broadband gaps on their lands.

Of course this is certainly a problem for tribal areas, especially given the Pai FCC's decision to try and limit the broadband improvement subsidies that help expand broadband coverage to these areas (which is odd for a guy that prattles on endlessly about how fixing the digital divide is his top priority).

But this same problem is playing out everywhere in the country, as cable providers secure a growing monopoly over broadband thanks to telcos that refuse to upgrade aging DSL lines at any real scale.

Our $350 million broadband map does a fairly terrible job mapping broadband, but it does do a wonderful job perfectly illustrating the width and breadth of this problem. The map is supposed to "educate and inform" Americans as to broadband availability. But as we've pointed out repeatedly, the plan hallucinates both speeds and ISP availability, and fails to include any data at all on pricing (at ISP request). You can try it out yourself here, perhaps noting that most of the ISPs it claims are available at your address likely don't exist.

The end result is government regulators who look at one of the most broken markets in America through rose-colored glasses, resulting in our national broadband dysfunction never getting much better. And of course when somebody at the FCC does get the crazy idea of improving mapping and availability, ISP lobbyists quickly get to work killing those efforts. And, as you might suspect, the problem has only gotten worse under FCC boss Ajit Pai, who has taken steps to weaken the very definition of "competition" itself at incumbent ISP behest.

As such, keep in mind, when you see data highlighting how terrible U.S. broadband is, you can be fairly certain it's significantly worse than that. And the reason should be pretty obvious: if somebody were to accurately illustrate the monopoly Comcast, Charter, Verizon, and AT&T enjoy (and the impact this has on everything from pricing to net neutrality), somebody might just get the crazy idea to embrace policies that actually do something about it.

Filed Under: broadband, broadband map, competition, fcc, gao

Warrant Affidavit Shows How Easy It Is To Bilk The Government Out Of Excess Equipment

from the BUILD-YOUR-OWN-WAR-AT-HOME! dept

Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, happened across an extraordinary story -- told in warrant affidavit form -- of a man who faked up a research lab and started scoring himself truckloads of free equipment from the US government.

According to the allegations in the warrant [PDF], Patrick R. Budic discovered a nifty way to exploit government excess equipment giveaways, utilizing a nonexistent company to make off with nearly $11 million in equipment ranging from GPS units to aircraft radios to hospital beds. The figure might have been much, much higher. The affidavit shows Budic tried (but failed) to acquire aircraft on more than one occasion.

The setup echoes the sting operation the Government Accountability Office performed as part of its investigation of the Defense Department's 1033 program. The GAO set up a fake law enforcement agency and was able to obtain over $1 million in excess military gear before wrapping up its investigation. In that case, there appeared to be almost zero follow-up by the agencies in charge of disbursement. No one called. No one visited the fake address to verify the fake law enforcement agency's existence.

Some of that appears to have come into play here. Budic -- along with David G. Rosseau, a US Navy engineer -- allegedly set up a fake nonprofit called Northridge National Laboratories (NNL) in Wyoming. According to the state's Department of State, Wyoming does not engage in much regulation of registered nonprofits. No follow-up was done to ensure the nonprofit actually existed and the only verification the state required for its nonprofit status was… the declaration it was a nonprofit on the registration paperwork. However, the principal address for NNL was Milwaukee, Wisconsin, where Budic lived.

Budic also set up a for-profit company, PMR Research, and got it registered with the Government Services Administration's (GSA) award management system.

Using these two companies and some allegedly false claims about being a Defense Department contractor, Budic went to work. He began exploiting the GSA's surplus property program, which allows government agencies (at all levels) and their contractors to obtain excess equipment for little to no cost.

It all began to fall apart when Budic started thinking big. He ran into problems trying to acquire a Learjet. Closer vetting apparently begins when the requested property runs into the millions of dollars per unit. The specialist assisting Budic couldn't find anything verifying Budic's claim NNL was a Defense Dept. contractor "working on top secret research." Budic admitted NNL wasn't a federal laboratory "yet," but was "on its way" to becoming one. "This is how you get there," he told the specialist.

Actually, this is how you get got.

The GSA Inspector General stepped in and made a recorded call to Budic. Budic claimed he needed the aircraft for Defense Dept. research, claiming he had research labs "all over the place," but principally operated out of Wisconsin.

Following that, Budic was interviewed by an undercover GSA agent and a Defense Criminal Investigative Service (DCIS) agent. Budic thought he was there to complain about the holdup on his aircraft order. The story started to change the more Budic talked. The million-square-foot lab Budic said NNL already owned in his earlier phone call became a lab NNL was trying to acquire. Asked where all the government equipment he already had obtained was, Budic said some was in Wisconsin but the rest of it was in California.

Based on this information, the agents were able to locate the Wisconsin storage unit. Talking to the unit's owner, the GSA discovered Budic was behind on his rent and was locked out. The owner also said Budic had "offered him a laptop" in an effort to get back into his storage space. According to the owner, the storage unit contained computers, a large printer, docking stations, more than a dozen servers, and "a lot of other stuff."

Undeterred by his inability to score an airplane, Budic next tried to acquire a 27' boat. He claimed in his request he was authorized to receive it under law and it would be used for "development projects pertinent to national security."

As the investigation continued, Budic became more evasive. He refused to divulge the location of his apparently fake lab, citing national security reasons. He did the same when asked for proof of the lab's ties to the DoD. When asked where the requested aircraft was headed, Budic said operational security prevented him from speaking about it. Those asking questions were told to take it up with other agencies. Budic called someone "Colonel" to imply he was close to DoD officials but couldn't provide a name.

The conversations -- many of them partly-transcribed in the warrant application -- are an amazing read. Budic dodged questions by stating he was on medication or replied with veiled threats more questioning would rain down DoD hell on the people standing between him and "his" aircraft.

Apparently, Budic was quite the bullshitter. For a brief period of time, he talked his way into office space on a military base. When not hauling away whatever the GSA would part with, Budic was going after the GSA for "unfairly" denying him millions of dollars worth of equipment, including a plane, a boat, and a $10 million supercomputer.

Among the things Budic was able to obtain were chemicals from a Defense Dept. chemical disposal facility, a seismograph from the Dept. of the Interior, and pharmacy equipment from Veterans Administration.

The entire affidavit reads like a spec script for an unmade blockbuster. Sadly, it also shows what someone can get away with using little more than some letterhead, a plausible backstory, and a decent knowledge of government acquisition programs.

Filed Under: gao, military surplus, patrick budic

There Is Simply No Scientific Backing For TSA's Behavioral Detection Program

from the hearsay-isn't-evidence dept

The Government Accountability Office has taken a run at the TSA's Behavioral Detection program in the past. Its findings were far from complimentary. Specially-trained "Behavior Detection Officers" (BDOs) were basically human coin flips. Deciding whether or not someone was a threat came down to a lot of subjective readings of human behavior, rather than proven principles.

In response to this report, the TSA started trimming back the number of BDOs it deployed, converting about 500 of them back into regular TSA officers. But the TSA still believed there was something to its pseudoscience patchwork, so it's still sending out 2,600 BDOs to covertly stare at travelers' throats and eyes (no, really) until terrorism reveals itself.

The GAO's second report focuses on the TSA's stubborn insistence that the Behavior Detection program is worth what we're paying for it. It has made claims to oversight that this program is scientifically-backed and scientifically-based. The GAO's investigation [PDF] finds almost nothing that backs these assertions.

We reviewed and categorized all 178 sources that, as of April 2017, TSA cited as providing support for specific indicators in its revised list of behavioral indicators to identify the extent to which they present valid evidence. We defined valid evidence as original research that meets generally accepted research standards and presents evidence that is applicable in supporting TSA’s specific behavioral indicators.

[...]

Of the 178 total sources TSA cited, we determined that 137 are news or opinion sources, and we took no further action because these do not meet our definition of valid evidence. We determined that 21 of the 178 sources are reviews of studies— sources that rely on the source author’s assertion of support for the indicator rather than original analysis, methods, or data that can be independently used as valid evidence.

Of the 178 sources cited by the TSA (with great confidence, one imagines), only 20 met the GAO's definition of valid evidence.

The TSA claims its BDOs have the ability to sniff out terrorism by looking for behavioral indicators. There are long lists of indicators to look for but, again, the TSA has nothing in the way of evidence to back these up.

In our review of all 178 sources TSA cited in support of its revised list, we found that 98 percent (175 of 178) of the sources do not provide valid evidence applicable to the specific indicators that TSA identified them as supporting. In total, we found that TSA does not have valid evidence to support 28 of its 36 revised behavioral indicators, has one source of valid evidence to support each of 7 indicators, and has 2 sources of valid evidence to support 1 indicator.

In fact, it appears the TSA may just be Googling for indicators, as its supporting "evidence" is extremely scattershot.

For example, among other sources, TSA cited four separate news articles that provide eyewitness accounts of a single 2005 suicide bombing incident at an Israeli bus station as support for 2 behavioral indicators. In another example, TSA cited a 2004 newsletter published by the New Hampshire Police Standards and Training Council as support for 11 behavioral indicators.

A partial snapshot of the chart created by the GAO shows the utter failure of the TSA's behavioral "science."

The individual breakdown of the scientific "support" for behavioral indicators is even more damning.

As a result of our analysis, we determined that TSA does not have valid evidence supporting 28 of its 36 revised behavioral indicators. Specifically, every source TSA cited in support of these 28 indicators is a news or opinion source, a review of studies source, or an original research source that either does not meet generally accepted research standards or is not applicable to the behavioral indicator it was provided to support. For example, TSA cited 105 sources to support the use of indicator number 11, which involves BDOs identifying individuals who seem to be attempting to conceal their normal appearance. However, we found that none of the 105 sources present original research that meets generally accepted research standards. In another example, TSA cited 63 sources to support the use of indicator number 5, which involves BDOs identifying individuals who seem to be sweating heavily. While we found that one of the 63 sources cited is original research that meets generally accepted research standards, we also found that this source does not present evidence that is applicable as support for this indicator.

To which is appended this footnote:

Some reviews of studies sources TSA cited as support for behavioral indicators present conflicting information on whether the use of behavioral indicators and behavior detection more generally is useful in identifying individuals who may pose a threat to security. For example, one article states that indicators of suicide bombers “are drawn from multiple sources and have not been formally or empirically validated.” Another states that indicators used by law enforcement to identify potential suicide bombers are “vague, contradictory, and so broad as to be useless.”

The DHS responded to the GAO's draft by claiming it still had plenty of research and science justifying the deployment of BDOs. More "evidence" was submitted and found to be just as useless as everything the GAO had already examined.

[I]n its letter, DHS cited passages from a 2013 RAND report as providing support for TSA’s use of behavior detection. However, the report DHS cited does not clearly support TSA’s use of behavior detection. As DHS noted, the RAND report states that there is value and unrealized potential for using behavioral indicators as part of a system to detect attacks. However, the indicators reviewed in the RAND study could not be used in real time in an airport environment, as we reported in 2013. Further, the RAND report refers to behavioral indicators that are defined and used significantly more broadly than those used by TSA. For example, the RAND report includes indicators such as mobile device tracking, monitoring online activity, and changes in lifestyle patterns.

The DHS also said the program was justified because trained BDOs also sometimes saw things even untrained non-professionals might be able to spot.

DHS also stated that there are certain common-sense indicators that TSA cannot reasonably ignore, with or without valid evidence. Specifically, DHS highlighted the indicator “unusual exposed wires or electrical switches on a person.”

Of course, these could (MAYBE) be detected by normal screeners, not specially-trained officers costing the taxpayers millions each year. The GAO agrees BDOs should ignore common sense. But much of what the DHS considers to be "common sense indicators" are highly-subjective takes on normal human behavior.

We recognize DHS’s position that certain common-sense indicators of mal-intent should not be ignored. However, TSA’s revised list of 36 behavioral indicators also includes indicators that are subjective, such as assessing the way an individual swallows or evaluating the degree to which an individual’s eyes are open.

Finally, the DHS protests it should be able to do it because other agencies (CBP, FBI) and other countries do it. The GAO patiently responds that behavioral detection may work for others, but the point is the TSA has yet to prove it works when it does it and can offer no solid evidence to back its claims.

The TSA's Behavioral Detection program isn't dead yet, but a few more nails have been driven into the coffin. If the regular TSA screening procedures are security theater, the BDOs are the mimes. A whole lot of moving around, but in the end, there's really nothing there.

Filed Under: behavioral detection, dhs, gao, research, scientific basis, security theater, studies, tsa

Watchdog Stings Defense Dept., Obtains $1.2 Million In Military Gear With A Fake Cop Shop

from the 1033-open-air-bazaar dept

The Defense Department's 1033 program allows local law enforcement agencies to buy military equipment. Often, the purchases are made easier with sizable grants, meaning agencies can load up on assault rifles, grenade launchers, armored vehicles, and extra ammo at nearly no cost. (They can also get computers, office furniture, etc. through these grants, but if that were the extent of the program, there would be zero controversy.)

The 1033 program is supposed to be tightly controlled and every acquisition vetted to prevent high-powered military gear from falling into the wrong hands. We've already noted local agencies aren't performing much in the way of oversight, resulting in several agencies receiving suspensions for failing to account for the whereabouts of purchased gear.

The problem, however, isn't just on the receiving end. The Defense Department isn't doing much in the way of due diligence when adding new agencies to the list of military gear purchases. The Government Accountability Office (GAO) performed a sting operation, setting up a fake law enforcement agency to see if it could acquire used military gear. By the end of it, the fake agency had obtained $1.2 million in gear, all without ever having to speak directly with anyone at the Defense Department. From the GAO's report [PDF]:

[O]ur investigators, posed as authorized federal law enforcement agency officials of a fictitious agency, applied and were granted access to the LESO [Law Enforcement Support Office] program in early 2017. In late 2016, we emailed our completed application to the LESO program office. Our application contained fictitious information including agency name, number of employees, point of contact, and physical location. We also created mail and e-mail addresses, and a website for our fictitious law enforcement agency using publicly available resources. All correspondence, including follow-up questions regarding our application, was conducted by email with LESO officials.

The first application was sent back for fixes. The revised application -- still loaded with fake info -- sailed through. It even included fake legal authorization.

LESO officials also emailed us to request confirmation of our agency’s authorizing statute; in response, our investigators provided fictitious authorizing provisions presented as a provision in the U.S. Code. At no point during the application process did LESO officials verbally contact officials at the agency we created—either the main point of contact listed on the application or the designated point of contact at a headquarters’ level—to verify the legitimacy of our application or to discuss establishing a MOU [Memorandum of Understanding] with our agency.

Not only were there no phone calls, there was no attempt by LESO officials to physically verify the existence of this fictitious law enforcement agency.

LESO’s reliance on electronic communications without actual verification does not allow it to properly vet for potentially fraudulent activity. For example, DLA [Defense Logistics Agency] did not require supervisory approval for all federal agency applications, or require confirmation of the application with designated points of contact at the headquarters of participating federal agencies. Additionally, at the time we submitted our application, DLA officials did not visit the location of the applying federal law enforcement agency to help verify the legitimacy of the application.

Since the DoD didn't perform any sort of prerequisite checks, it comes as no surprise it paid little attention to who was receiving the 1033 handouts.

Our independent testing of DLA’s internal controls also identified deficiencies in the transfer of controlled property, such as DLA personnel not routinely requesting and verifying identification of individuals picking up controlled property or verifying the quantity of approved items prior to transfer.

[...]

Using fictitious identification and law enforcement credentials, along with the LESO-approved documentation, our investigator was able to pass security checks and enter the Disposition Service warehouse sites. Personnel at two of the three sites did not request or check for valid identification of our investigator picking up the property.

From the GAO's description, acquiring controlled items appears to be no more difficult than shopping on Amazon.

Our investigators, after being approved to participate in the LESO program, obtained access to the department’s online systems to view and request controlled property. We subsequently submitted requests to obtain controlled property, including non-lethal items and potentially-lethal items if modified with commercially available items. In less than a week after submitting the requests, our fictitious agency was approved for the transfer of over 100 controlled property items with a total estimated value of about $1.2 million. The estimated value of each item ranged from $277 to over $600,000, including items such as night-vision goggles, reflex (also known as reflector) sights, infrared illuminators, simulated pipe bombs, and simulated rifles.

And, to top everything off, the DLA managed to ship this fake agency more items than it actually requested.

Furthermore, although we were approved to receive over 100 items and the transfer documentation reflects this amount, we were provided more items than we were approved for. The discrepancy involved one type of item—infrared illuminators. We requested 48 infrared illuminators but onsite officials at one Disposition Services site provided us with 51 infrared illuminators in 52 pouches, of which one pouch was empty.

The report goes on to note the DLA has never performed its own fraud audits, suggesting it has almost no interest in ensuring military gear only ends up in the hands of approved and thoroughly-vetted law enforcement agencies. Yes, all of this appears to be changing going forward, but considering the 1033 program has transferred billions of dollars of equipment already, there's really no telling how many others have obtained equipment with fictitious entities or simply ended up with a bunch of items they never ordered. That the weapons obtained were only simulators is of little comfort. They're simply modified versions of the real thing which could be made operable again with items obtained from non-government entities.

It's not that the DoD is only a few steps away from being logistically-bulletproof either. The GAO report notes the systems and controls used aren't even adequate -- which would be the minimum needed to ensure control of potentially-dangerous items. When presiding over the distribution of military gear, the DoD needs to implement controls far surpassing "adequate." So far, it can't even meet this very low bar.

Filed Under: 1033, controls, defense department, dod, gao, law enforcement, military gear, surplus

Ridiculously Stupid: 4 State Attorneys General File Totally Bogus Lawsuit Against Internet Transition

from the make-it-stop dept

Okay, this is really dumb. What is it about state attorneys general making totally bullshit claims? It seems to happen with fairly consistent frequency. The latest is that four state AGs (from Arizona, Texas, Oklahoma and Nevada) have filed a lawsuit to stop the IANA transition. If you don't recall, we've written about this a bunch. A bunch of people are up in arms over something they don't seem to understand. The IANA transition is a good thing. It's not the US government handing over the internet to Russia and China as you may have heard. It's the Commerce Department severing an almost entirely symbolic link between it and a very specific internet governance capability concerning top level domains. And it's important to complete the transition because other countries (including Russia and China) keep pointing to this symbolic link as a reason for why they should have more say in internet governance. Getting rid of the link keeps the internet functioning as it has for decades -- and takes away a weapon from Russia and China. More importantly, going back on the transition now actually gives even more ammo to Russia and China, allowing them to point to unilateral actions by the US gov't to block a process that everyone had agreed upon earlier.

Anyway, to the actual lawsuit. It's dumb. It's really dumb. If you live in Arizona, Texas, Oklahoma or Nevada, you should be embarrassed for your Attorneys General. Elect better ones next time, please. First of all, they have no standing whatsoever to file this lawsuit. The IANA/top level domain system is not those states' property. They have no claim here other than "HEY LOOK! POLITICAL FOOTBALL THAT WE CAN GRANDSTAND OVER!" That does not give them standing. The best they can come up with for claiming standing is... uh... "hey, we have some websites." No, really.

Plaintiffs operate multiple websites, including those that use the .gov and .com generic top level domains, to conduct their business and communicate with their citizens.

Yeah. That's not enough to get standing here, buckos. Also, in filing a lawsuit they don't allege any actual harms. That's kind of a big no no when filing a lawsuit. Instead, they sorta maybe kinda speculate that maybe possibly there could (sorta, maybe) be some (possible, maybe, not really) harm in the theoretical future. Maybe.

Second, the entire crux of the lawsuit is that the authoritative root zone file and the internet domain name system itself are somehow "property" of the federal government, and that this transition is, in effect, the giving away of government property without an act of Congress, violating the Property Clause of the Constitution. Except, as we just discussed recently, the Government Accountability Office studied this issue earlier this month and came to the conclusion that "nope, it's not property." In case you missed it then:

It is unlikely that either the authoritative root zone file—the public “address book” for the top level of the Internet domain name system—or the Internet domain name system as a whole, is U.S. Government property under Article IV. We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.

Others have walked through some of the other charges and find them all totally lacking. A judge is set to review this request for an injunction later today, and you never know how any individual judge might rule. So it's entirely possible that this will muck up the timing of the transition, but long term, this filing is not just a joke, but it's an embarrassment and a waste of taxpayer money in those four states.

Filed Under: arizona, congress, gao, iana, iana transition, internet governance, nevada, oklahoma, property, standing, texas
Companies: icann

Government Accountability Office Study Confirms: Patent Office Encouraged Examiners To Approve Crappy Patents

from the so-that's-just-great dept

This shouldn't be a surprise. All the way back in 2004, in Adam Jaffe's and Josh Lerner's excellent book about our dysfunctional patent system, Innovation and Its Discontents, one of the key problems they outlined with the system was the fact that there was strong incentives for patent examiners at the US Patent Office to approve shit patents. That's because they were rewarded for how "productive" they were in terms of how many patent applications they completed processing. Now, you might think that shouldn't encourage approvals -- except that there's no such thing as a true "final rejection" from the patent office (they have something called a final rejection, but it's not -- applicants can just make some changes and try again... forever). So rejecting a patent, inevitably, harms your productivity rates as an examiner. Approving a patent gets it off your plate and is considered "done." Rejecting it means having to spend many more hours on that same patent when the inventor comes back to get another chance.

After Jaffe and Lerner made that criticism clear, it seemed like the Patent Office started to take the issue to heart and they actually started changing some of how examiners were rated. And, for a few years, it seemed like things were heading in the right direction. But then, once David Kappos took over, he noticed that a lot of patent holders were complaining that it took too long to get patents approved. Apparently ignoring all of the evidence that pushing examiners to review patents quickly ends up in disaster, Kappos put back in place an incentive structure to encourage examiners to approve more patents. He kept focusing on the need to get through the backlog and speed up the application process, rather than recognizing what a disaster it would be. Of course, some of us predicted it and were mocked in the comments by patent lawyers who insisted we were crazy to suggest that the USPTO would lower its standards.

Of course, an academic study a few years ago found that was absolutely happening and now, to make the point even clearer, the Government Accountability Office, which tends to do really fantastic work, has written a report that agrees. It blames the Patent Office's focus on rapidly approving patents for the flood of low quality patents and the resulting patent trolling epidemic:

Examiners are rated largely on their production, auditors said, and they are given different times to complete reviews based on the experience of the examiner and the technical level of the field. For example, someone working on an artificial intelligence review gets an average of about 31 hours to complete it, while an application for exercise devices takes an average of 17 hours.

Timeliness and production produce bonuses: From fiscal 2009 to fiscal 2013, examiners who met these goals got an extra $6,000 a year, GAO said, citing the inspector general's office.

But they are not rated for quality work. Examiners work fast, creating “an environment where patents may be granted that do not fully meet patentability standards,” GAO found.

The GAO says that even in the last few years (after Kappos left), when the USPTO said it was focusing more on quality, there's little evidence that's actually happening:

But GAO noted that patent officials, to improve quality, still are focusing too much on the timeliness of reviews, customer service and “process or production goals” rather than quality. And they have not tied bonuses and performance reviews to quality, which needs definition. Is a good patent broad, or clearly defined? How does it prove that the invention is novel, useful, not obvious and clearly described?

The amazing thing is that, in approving crappy patents, the Patent Office actually makes its own job harder, because more crappy patents will lead to more and more people applying for crappy patents, knowing they might get through. Want to crack down on the massive backlog of patent applications? STOP APPROVING BAD PATENTS. That will wake patent lawyers up to the fact that they shouldn't be submitting so many crappy patents, as it'll be a total waste of time and money.

Filed Under: gao, patent quality, patent trolls, patents, uspto

The FCC Is Pushing A 'Nutrition Label' For Broadband Connections

from the 70%-fat dept

A report last year by the GAO (pdf) found that most consumers have no real idea what kind of a broadband connection they're buying. The report argued that caps, interconnection squabbles, throttling, and other line limitations make it virtually impossible for many consumers (especially the more Luddite-inclined among us) to understand what they're buying, or compare it with competing services. As a result, the FCC this week proposed a new "nutrition label" (pdf) for broadband that would include not only connection speed -- but any network management, latency, usage caps, overage fees, or other conditions impacting the line.

They should, according to some samples provided by the FCC, look a little something like this:Interestingly, the FCC"s push for improved labeling includes some renewed attention on the disclosure of sneaky, below-the-line fees, which many ISPs use to jack up the advertised rate post sale. We've noted how many of these fees are simply pulled out of thin air and are pure profit, a practice the FCC (after fifteen years of apathy) is now showing some interest in:

"The FCC receives more than 2,000 complaints annually about surprise fees associated with consumers’ Internet service bills. The actual prices paid for broadband-related services can be as much as 40 percent greater than what is advertised after taxes and fees are added to a bill, according to consumer complaints to the Commission. With the average monthly cost of broadband service ranging between $60 and $70, consumers deserve to know what they are going to get for their money."

While well intentioned, it's not exactly clear if ISPs will actually use the new labels. According to the FCC announcement, the labels are only "recommended" by the agency for ISPs concerned that they're not meeting the FCC's transparency requirements, which were part of last year's still-contested net neutrality rules:

"The FCC’s Open Internet transparency rules require broadband Internet access service providers to disclose this information to consumers in an accurate, understandable and easy-to-find manner. These formats, while not mandated by the agency, are recommended by the Commission and will serve as a “safe harbor” to meet those requirements."

Knowing ISPs as most of you do, you'll probably know their definition of "accurate, understandable and easy to find" may not exactly match your own. The labels have the approval of the FCC's Consumer Advisory Committee, which includes companies like Verizon and CenturyLink. That these two companies find the labels acceptable could very well mean they have no intention of actually using them (possibly pointing to their existing website structure as good enough). Both companies also are busy trying to scrap the FCC's net neutrality rules entirely, which if successful would mean a quick death to the rules -- and these labels.

Another problem is that the use of hidden, manufactured fees to jack up the advertised price is considered false advertising and fraud by many. Many ISPs are so un-frightened of regulatory enforcement on this front they're barely trying any more. CenturyLink, for example, charges millions of its DSL customers a $2 "Internet Cost Recovery Fee" that its website explains as such:

"This fee helps defray costs associated with building and maintaining CenturyLink's High-Speed Internet broadband network, as well as the costs of expanding network capacity to support the continued increase in customers' average broadband consumption."

And here you were thinking that's what your advertised existing monthly broadband bill was for. As such, given the obvious fraud on the hidden fee front, it may take a little more than a few labels to meaningfully improve ISP behavior and transparency.

Filed Under: broadband, fcc, gao