NTIA Seeks Comments on the Federal Role in IoT

The National Telecommunications and Information Administration (NTIA) announced a new federal inquiry seeking public comment on the current technological and policy landscape for the Internet of Things (IoT), with an eye toward issuing a “green paper” that would identify possible roles for the federal government in this area. The Request for Comments broadly covers a wide range of issues that could be relevant to the interests and operations of companies in a variety of market segments that are poised to drive IoT growth, including, among others, markets for consumer goods, unmanned aircraft systems, eHealth, smart transportation (connected cars), energy distribution (smart grids), smart cities, public safety, industrial and manufacturing, agricultural and resource management, and big data analytics. The Request poses 28 questions on IoT for consideration. Comments by interested stakeholders are due May 23rd.

The new inquiry is part of the U.S. Department of Commerce’s Digital Economy Agenda, which seeks to create a coordinated, strategic framework for the Department’s Internet-related work. NTIA will use the input it receives to build on the Department’s broader agenda promoting economic growth and opportunity to help develop an approach that will foster IoT innovation. Specifically, after if receives comments, NTIA will publish a green paper identifying key issues affecting deployment of these technologies, highlighting potential benefits and challenges, and outlining possible roles for the federal government in fostering the advancement of IoT technologies in partnership with the private sector. A “green paper” is a tentative government report on policy proposals for discussion without a commitment to action; final policies are released in a “white paper.”

Why Businesses Should Care

NTIA’s inquiry is poised to shape federal policy responses on IoT. The private sector should engage in this proceeding because NTIA activity is likely to shape emerging domestic and international regulatory and policy issues in IoT. Because there is no uniform federal policy in IoT, or in privacy and security generally, thought-leadership by non-regulatory agencies like NTIA will fill a void and could be particularly influential.

NTIA, in the Department of Commerce, is an Executive Branch agency charged with advising the President on telecommunications and information policy issues. Among its many activities, NTIA develops “policy on issues related to the Internet economy, including online privacy, copyright protection, cybersecurity, and the global free flow of information online.” It does this in part by seeking public comment, and through multistakeholder proceedings to evaluate issues. A major recent NTIA focus has been on privacy and security. Examples include facial recognition privacy practices, considerations related to unmanned aerial systems, and mobile applications, to name just a few.

NTIA’s papers are influential internationally, because NTIA is often seen overseas as the U.S. “Ministry” of communications, despite being a relatively small agency. NTIA is the sole U.S. agency that oversees ICANN/domain name issues, and the IoT item specifically requests comment on whether there are domain name issues implicated in the IoT. Further, NTIA administers federal use of spectrum, and coordinates with the Federal Communications Commission (FCC) on commercial allocations, which will impact the reach of IoT innovation.

NTIA’s analysis and advocacy play an increasingly influential role in raising the profile of issues, and providing support for regulatory proposals. One recent example is a major Privacy NPRM issued by the FCC, which directly relies on “best practices regimes, including those proposed by the FTC and the National Telecommunications and Information Administration (NTIA).” The FCC is drawing from NTIA efforts to develop a Short Form Notice Code of Conduct to Promote Transparency in Mobile App Practices, among other third party efforts, agency guidance and reports. NTIA work has driven best practices and policy on varied technology law and policy issues.

Private industry should engage in NTIA efforts, which will drive legal, regulatory and policy decisions affecting IoT. Activities at NTIA and other non-regulatory agencies can impact federal policy but are not governed by administrative law and are not subject to judicial review; private participation is therefore critical to ensure full consideration.

A brief summary of the Request is provided below. At a high level, the Request seeks comment on the challenges and opportunities arising from IoT; the technological issues that could hinder IoT development, such as spectrum availability, interoperability, and the availability of network infrastructure; cybersecurity, privacy, and other consumer protection concerns; the appropriate role for government in these issues; and international engagement on IoT.

Summary of Request for Comments

NTIA seeks public comment on the following IoT issues:

General. NTIA generally seeks public comment on whether the challenges and opportunities arising from IoT are similar to those that governments have previously addressed with other technologies. NTIA also asks how it should define IoT in light of several competing definitions, and whether there are ways to divide or classify the IoT landscape to improve the precision with which public policy issues are discussed. Finally, NTIA seeks comment on current or proposed laws, regulations, or policy positions on IoT that strike an appropriate balance between fostering growth and protecting users, and whether there have been any significant studies of the IoT policy landscape or whether any future studies are planned.

Technology. Recognizing that technology is the heart of IoT, NTIA asks what technological issues may hinder the development of IoT. The Request specifically highlights interoperability, insufficient/contradictory/proprietary standards/platforms, spectrum availability and potential congestion/interference, and the availability of network infrastructure. NTIA also asks what governments can do to help mitigate these technical issues, and whether government/private sector partnerships may be beneficial.

Infrastructure. NTIA seeks comment on how IoT will place demands on existing infrastructure architectures or business models, and whether there are ways to prepare for or minimize IoT disruptions to these infrastructures. NTIA also asks what role governments could play in bolstering and protecting the availability and resiliency of these infrastructures to support IoT.

Economy. Positing that IoT already has begun to alter the U.S. economy, NTIA asks how the government should quantify and measure the IoT sector; what impact the proliferation of IoT will have on industrial practices; and what impact the growth of IoT will have on the U.S. workforce.

Policy Issues. NTIA seeks comment on the main policy issues that affect or are affected by IoT, and how the government should address or respond to these issues. The Request particularly highlights cybersecurity, privacy, and other consumer protection concerns.

International Engagement. The Request notes that efforts already are underway in foreign jurisdictions, standards organizations, and intergovernmental bodies to explore the potential of, and develop standards, specifications, and best practices for IoT. Given this, NTIA seeks input on how best to monitor and/or engage in various international fora on IoT issues. NTIA specifically asks if there are Internet governance issues now or in the foreseeable future specific to IoT and whether there are factors that could impede the growth of IoT outside the U.S., such as data or service localization requirements or other barriers to trade.

Additional Issues. Finally, NTIA asks whether there are IoT policy issues that could be appropriate for multistakeholder engagement, similar to the NTIA-run processes on privacy and cybersecurity, and how the government and the private sector should collaborate to ensure that infrastructure, policy, technology, and investment are working together to best fuel IoT growth.

Wiley Rein attorneys are available to provide guidance about the NTIA process and to assist those interested in submitting comments or otherwise engaging the government process. For further information on these issues and related oportunities, please contact Scott D. Delacourt, Megan L. Brown, Anna M. Gomez, Umair Javed, or Madeleine Lottenbach *.

*District of Columbia Bar (Pending, supervised by principals of the firm)