Northwest Indian Law & Business Advisor : Northwest Indian & Tribal Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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On November 17, 2011, the Senate Committee on Indian Affairs is conducting an oversight hearing to discuss the future of tribal Internet gaming. There are several witnesses from government regulatory agencies, tribal governments and gaming associations, and the gaming industry who will offer testimony regarding the use of the Internet to serve tribal gaming operations in the future. The Internet is a largely unregulated medium which has seen increased use by commercial interests to conduct business operations and exchanges. Recently, in the case of Comcast v. FCC, the federal Court has held that the FCC lacks the ability under the FCC’s ancillary authority in the Communications Act, to regulate Internet Service Providers like Comcast. In the Comcast case, the FCC attempted to prevent Comcast from using network management operations which allegedly excluded non-Comcast applications from its Internet network. Comcast challenged the assertion of FCC authority in regard to regulating the Internet under the Communications Act. Prior to this case, the FCC classified the Internet as an informational service as opposed to a common carrier like a traditional telephone company. Under the Communications Act and FCC regulations, a common carrier is subject to a wider range of FCC regulation than is an informational service. The decision by the Court in Comcast upheld the classification of the Internet as an informational service and as a result, the Court determined that the FCC had no authority to regulate the Internet, such that it could impose punitive action against an Internet Service Provider such as Comcast.

On a similar front, states are generally allowed a minimal role in regulation of the Internet. States are permitted to regulate the Internet only so far as the action to be regulated occurs entirely within the state and the action does not involve interstate commerce. Thus, many tribes are not subject to state regulatory jurisdiction when it comes to the Internet. A question which may be raised as a part of the discussion about to occur in the Senate this week should involve the ability of the states to regulate gaming if it occurs over the Internet on an Indian Reservation or gaming facility. The push to regulate Internet gaming may also raise questions about the Communications Act and whether it will have to be amended to allow federal agencies an expanded role in regulating the Internet. There are no Internet Service Providers who appear to be testifying at the upcoming Senate hearing and it would likely be prudent at some point to include them in future discussions. After all, it is the Internet Service Providers who will provide gaming operations with the connectivity to the Internet, service the Internet connections to ensure reliability and speed, and most importantly, provide the necessary Internet security to prevent cyber attacks or the loss of customer personally identifiable information.
 

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In July 2011, the Department of Defense (DOD) announced a broad strategy for operating within cyberspace. The DOD cyberspace strategy now recognizes that cyberspace is another platform that will play host to warfare and that the warrior in this battlefield may not have to utilize an expensive, gigantic system to deliver a devastating blow to critical infrastructure. While the high level of devastation to critical infrastructure may increase in today’s attack, the small-scale technologies behind these attacks may have an impact which is disproportionate to their size. In its strategy, the DOD has acknowledged that DOD and Defense Industrial Base networks suffered cyber attacks and that information and systems were compromised as a result. The DOD also acknowledged that there may be malicious code or activities on DOD systems which have not yet been detected and thus, pose a national security risk to sensitive and classified networks in both the government and private sectors.

The strategy announced by the DOD is squarely focused upon five strategic initiatives that may provide opportunities to tribal businesses, tribal entrepreneurs and tribal members interested in a career in cyber security. In particular, Strategic Initiative 3 calls for the DOD to partner with other agencies and tribal governments to ensure a whole-of-government approach to cyber security. Under Strategic Initiative 5, the DOD recognizes and embraces that it will have to develop small businesses, entrepreneurs and people to pursue new technology and innovations in cyber security and defense. With the large number of attacks to DOD systems, the DOD remains focused upon building and leveraging the technological prowess of the public and private sectors through investments in people, research and technology. The Section 8a program may be an avenue for tribal businesses and entrepreneurs to explore this emerging national security industry sector. The tribal governmental and educational sectors may be able to direct the investment of DOD resources to the development of tribal people who will be the next generation of cyber warriors protecting our nation’s critical infrastructure from a catastrophic attack.
 

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Nationally, the internet and communications infrastructure is an essential tool for ensuring the reliability of our emergency services to coordinate efforts, our financial system to complete transactions, and our economy to maintain business operations. Disruption to this infrastructure would wreak havoc on our population and require a monumental commitment of resources to recover from disruptive effects. Currently, the Department of Homeland Security is largely responsible for protective and responsive actions to cyber threats that face the Federal Executive Branch civilian networks. The authorities which outline the DHS role and responsibility for cyber security are in the Homeland Security Act of 2002 and the Federal Information Security Management Act of 2002. Homeland Security Presidential Directives (HSPD) further focus DHS’s role. HSPD 7 compels DHS to operate a central point for coordination of cyber security across federal departments and agencies, state and local governments, and the private sector. In response to HSPD 7, DHS created the U.S. Computer Emergency Readiness Team (US-CERT) to serve as the central point for responding, reporting, and analyzing cyber security issues.

The funding of DHS cyber security initiatives is risk driven and not threat driven, as stated by DHS Secretary Napolitano at a recent hearing before the subcommittee of the House Committee on Appropriations regarding DHS Appropriations for 2010. In that hearing, tribal cyber security issues were discussed and Congressman Steven Kirk asked whether there was any specific threat or risk information for cyber attacks related to tribal governments. Secretary Napolitano acknowledged that she did not have a specific report detailing the cyber threats which confronts tribal governments. Herein lies the challenge for Indian country: there is a constant threat of attacks to internet and communications systems, which tribal governments, businesses, and people utilize every day. However, there is no specific report or centralized point where the threat or the attack by cyber warriors is catalogued, categorized, and compiled. The $15 million set aside in the DHS 2010 appropriations bill may not be enough to manage the threat and it may not be geared toward truly protecting against the attacks to critical tribal infrastructure. It is not clear whether or not US-CERT has even provided access to its services by tribal governments who largely partner with other governments including the federal government when it comes to preparedness and response actions under HSPDs.

The time is now to develop the capacity and the expertise in tribal communities to identify, manage, respond, and recover from cyber attacks. The price of not doing so could result in the next cyber attack being launched from tribal computers or servers without the knowledge that hackers have hijacked tribal resources to carry out these attacks. The risk is there and it should be addressed at some level without creating a new bureaucracy to oust existing DHS or tribal government agencies who may be in a prime position to implement the EINSTEIN and its progeny into tribal systems. Tribes must be included in the National Infrastructure Protection Plan and the related Sector-Specific Plans when it comes to protection of the internet and communications systems.
 

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CourtReporter.net

The Northwest Indian Law & Business Advisor was recently named a Top Industry In House Counsel Blog for 2010 by Court Reporter. The award recognizes blogs in the legal profession that provide valuable insight and relevant information within a specific branch of law.

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The National Center for American Indian Enterprise Development ("NCAIED") has selected Williams Kastner tribal practice attorney, Quanah M. Spencer, as one of their 2010 "Native American 40 Under 40 Recipients." 

The Native American 40 Under 40 recipients are "outstanding young Native American who have shown excellence in community and/or profession."  The winners will be recognized at a special reception that will be held prior to the Indian Progress in Business Awards Banquet (INPRO 2010), on October 21, 2010 at the Hard Rock Hotel & Casino in Albuquerque, New Mexico.  For more information, please visit the NCAIED website.

 Client Ryan Craig (left) of
 the award-winning Rezhogs,
 with Quanah Spencer.

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Seattle member Debora Juarez will be presenting "Defining our Future - Tribal Sovereignty," at the 7th Annual Women's Leadership Forum and Enduring Spirit Awards sponsored by the Native Action Network, Sept. 27 & 28.

For more information about this event please visit the Native Action Network website.

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Federal Communications Commission Chairman Julius Genachowski, recently conducted meetings with many industry and advocacy groups regarding the pending reclassification of the Internet for regulatory purposes under the Communications Act of 1934. It is likely that these meetings were in response to the recent decision in Comcast v. FCC, where the FCC was found to lack ancillary jurisdiction to regulate the network management actions of an internet service provider. The FCC asserted it possessed the ability to regulate the Internet based upon its ancillary jurisdiction. Therefore, the FCC could require Comcast to grant it the authority regarding the creation of Comcast network management policies so as not to impede access to the Internet by non-Comcast applications. The D.C. Court of Appeals determined the FCC lacked the ancillary jurisdiction to regulate the Internet because the FCC assertion was based solely upon policy statements contained within the Communications Act of 1934 and not specific statutory power contained within the Act. The ruling rejected the FCC’s claim to have authority to regulate the Internet through policy pronouncements and specific congressional approval contained within legislation. FCC network neutrality policy after the Comcast decision was found to be without support or authority.

It is likely that Chairman Genachowski’s meetings were intended to predict political climate which might result if the FCC pursues a reclassification of the Internet. Currently, the Internet is classified as an information service as opposed to a common carrier. Common carriers, are subject to more detailed regulation when it comes to topics such as rates charged for utilizing the communication system, universal service, accessibility, and other network management issues.

It is uncertain if Native American Tribes or Tribally owned telecommunications companies have been included in Chairman Genachowski meetings. Although the policy and legal discussion will still be sent back to Congress for consideration before the FCC can proceed with the reclassification of the Internet, the initial salvo has already begun in important Senate and House Committees. In mid-June, a letter sent from Senator Dorgan to Senator Inouye expressed concern that someone may seek to attach a rider to the 2010 appropriations measure which would severely restrict the FCC’s authority when it comes to network neutrality. In the letter, Dorgan specifically states that the FCC “must move forward to ensure solid legal footing” for policies which reform universal service to support broadband and connectivity to Native Americans on tribal lands among other issues. Tribal interests in the future of the Internet have already been sidelined in favor of large corporate interests because large businesses have established platforms which now control access to the internet, which has become an important part of daily life. Tribal governments and tribally owned telecommunications companies should be focused upon engaging with both the FCC and Congress on the future of the Internet and Network Neutrality.
 

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On June 28, President Obama signed an executive memorandum which commits the government to expand the amount of broadband spectrum available for wireless communications. This follows on the release of the National Broadband Plan by the Federal Communications Commission and the Department of Commerce earlier this spring. The Plan will serve as the basis for the continued development and expansion of wireless communications. The F.C.C. issued action items within the National Broadband Plan which calls for the availability of 500 MHz of spectrum for broadband use within the next ten years. Approximately 300 MHz of the 500 MHz is in the high value spectrum between 225 MHz and 3.7 GHz where mobile use is prevalent. The time frame for making the high value spectrum available for commercial use is within the next five years.

Tribal economies are becoming increasingly dependent upon access to wireless communications such as cellular phones and wireless internet connectionsfor daily business operations. Greater access to broadband spectrum will be essential in providing more avenues for business transactions and economic growth. Wireless communication and internet service providers profit from broadband spectrum as it determines the rates which they can impose upon customers.

Currently, the National Broadband Plan allows for the creation of a Native Nations Broadband Task Force, Office of Native American Affairs, and an increase in mobile communication opportunities within tribal communities. Both this Plan and the Communications Act lack a clear and defined strategy to develop broadband capabilities within tribal communities. One way for tribal entities to increase their bidding power is by utilizing the Tribal Lands Bidding Credits available to them. This tool grants significant discounts to companies bidding on radio spectrum who will be providing improved telecommunications. Without more credits, however, the level of broadband penetration within tribal communities will likely fall by the wayside similar to the manner in which telephone service failed to reach a majority of Native American people. Tribal governments and tribal entrepreneurs have an opportunity here to persuade Congress to adopt tribal prerogatives when it comes to the development and expansion of broadband. The Plan will inevitably be considered by Congress in the near future and tribal broadband advocates should be in a position to influence future legislation. It may be advantageous for tribal governments and tribal entrepreneurs to advance the position that the F.C.C. should make certain spectrum available for sole source bidding by tribal governments and small and disadvantaged business concerns. This position would be similar to preferences in contracting awarded under the Section 8a program.

While consultation with the F.C.C. regarding the Plan is an aspirational goal, the compressed time frame for the auctioning of high value spectrum will force tribal governments and tribal entrepreneurs to bid on spectrum without the F.C.C. having had ample time to develop a clear and defined policy under the Plan for Native Americans. When it comes to the regulation of broadband and net neutrality, tribes should be wary of the F.C.C. overreaching its regulatory authority. In the Comcast v. F.C.C. decision, the court of appeals held that the F.C.C. lacked the ancillary jurisdiction to regulate and impose punitive measures upon an internet service provider when it engages in network management over internet communications. Therefore, logic dictates that tribal governments and tribal entrepreneurs are the most informed and best suited advocates for the use of broadband spectrum within tribal communities.
 

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Washington Senate campaign launches a Dash for Cash. With the entrance of Dino Rossi as the Republican candidate into Washington state’s Senate race against incumbent Democratic Senator Patty Murray on May 26, the ground has been set for the ensuing battle which will be influenced on a national level. The Democrats and Republicans both view the Washington Senate campaign as a skirmish where the balance of power may shift away from the Democratic majority in Congress. Both parties have observed that the mood of this year’s electorate is shaped by mounting budget deficits, lackadaisical employment numbers and an administration which is struggling to cobble together a unified strategy to address the Gulf Coast oil debacle. Campaign contributions will also flavor the tone, pace and results of this fall’s elections because of the decision reached by the Supreme Court when its verdict was announced in the Citizens United v. FEC case. In the Citizens United decision, the Supreme Court overruled the ban which prevented corporations from using funds from their general treasury to make independent expenditures and electioneering communications in federal elections.

The Supreme Court determined that a ban based upon the identity of the speaker was impermissible because it sought to restrain political speech without a justifiably compelling interest, particularly when it involved a prohibition directly levied on corporate political speech. After the decision, the Federal Election Commission stated that it would not enforce statutory provisions or its regulations that had prohibited corporations or labor organizations from making independent expenditures and electioneering communications. The Court’s decision and the FEC’s position together mean that corporations and labor organizations are free to pay for political tools essential for candidates reaching and persuading the electorate via media communications. This freedom to pay for communications may prove to be the difference between the electorate choosing Dino Rossi or Patty Murray to represent Washington in the U.S. Senate for the next six years.

In a recent statement, it was declared that the Rossi campaign had raised $600,000 from individual donors in the wake of his entrance into the race on May 26. The figure quoted by the Rossi campaign is dwarfed by the $5.47 million on hand for the Murray campaign as of the last report filed with the FEC at the end of March 2010. Both the Rossi and the Murray campaigns will likely experience a surge in donations from individuals, corporations and labor organizations as the end of the race gets closer, the rhetoric gets deeper, and the price of political ads gets steeper. The price tag for the 2010 election cycle in Washington State just went up and it will likely be influenced by out-of-state donors as the share of in-state donors reaches contribution limits. The voice that interested parties will exercise in the electoral process is directly attributable to the impact that the funding of independent expenditures and electioneering communications have upon a candidate’s cause.