Latinos in Information Science and Technology Association (LISTA) and Alliance for Digital Equality (ADE) Announce Partnership to Further Digital Empowerment Initiatives.

LISTA and ADE partnership will work to facilitate digital advocacy, digital literacy,

job creation and economic development in regards to digital empowerment initiatives

Today, Latinos in Information Science and Technology Association (LISTA), the nation’s leading organization of Latino technology professionals and the Alliance for Digital Equality (ADE), a nonprofit organization that provides broadband solutions and broadband related services to underserved and un-served communities, are excited to announce a partnership to facilitate digital empowerment initiatives.

The strategic alliance of ADE and LISTA combines the collective skills, knowledge and experience of two diverse technology-based organizations, enabling them to work together to facilitate digital advocacy, digital literacy, job creation and economic development in regards to digital empowerment initiatives. In particular, the MSI Wireless Technology Act, the Workforce Investment Act, the American Recovery & Reinvestment Act (ARRA), among others.

“We are forming this partnership right now because this is a pivotal time in the race to close the digital divide. Access to affordable high-speed Internet and broadband technology is a stepping stone to the opportunities of economic prosperity,” said Julius H. Hollis, Chairman of ADE. “As we focus on turning our economy around, we must make sure that those Americans currently in un-served and underserved communities are not left behind and further marginalized in this economy.”

“Both  LISTA and ADE have worked hard individually to provide and enhance digital empowerment opportunities for communities of color, now as LISTA joins ADE’s Board of Directors we will combine our unique strengths and expand our reach,” said Jose Marquez, President and CEO of Latinos in Information Sciences and Technology Association. “This will strengthen our ability to make a difference. I am very excited to work with the ADE leadership team to further these important goals.”

Together, ADE and LISTA will pursue initiatives in order to increase Latino and African American employment opportunities within American based information sciences, telecommunication, and technology industries. The partners will target project opportunities that make technology applications available to communities of color for educational purposes, for job training and development, and to enable fuller participation in the learning, civic engagement and cultural opportunities afforded jointly or separately by ADE-LISTA utilizing online technologies.

“As part of the LISTA/ADE Partnership, we will conduct a series of surveys of African Americans and Latinos in the tech sector to measure which tech companies are leading the way in corporate responsibility relative to their Latino and African American inclusion in higher management within their company. While Latinos have made strides there are areas in the tech industry we still have little to no representation, boards, upper management and key decision making positions are still scarce at some of the most successful tech companies, we can’t ignore Latinos in high tech anymore, it is just bad business,” said Marquez.

###

About Latinos in Information Science and Technology Association (LISTA) (www.a-lista.org)

Latinos in Information Science and Technology Association (LISTA) promotes the utilization of the technology sectors for the empowerment of the Latino community. We are an organization that is committed to bringing various elements of Technology under one central hub to facilitate our partners, members and the community with the leverage and education they need to succeed in a highly advanced technologically driven society. LISTA Mission is to educate, motivate and encourage the use of technology in the Latino community and empowering them to bridge the digital divide.

About The Alliance for Digital Equality

 The Alliance for Digital Equality (ADE), headquartered in Atlanta, GA, is a national, non-profit consumer advocacy organization that serves to facilitate and ensure equal access to technology in underserved and un-served communities. The Alliance also serves as a bridge between policymakers and minority individuals in order to help the public understand how legislative and regulatory policies regarding new technologies can impact and empower their daily lives. For more information on The Alliance for Digital Equality, please visit www.alliancefordigitalequality.org

The Privacy and Security Challenges of Electronic and Personal Health Records: Is Your Business Prepared?

EVERY ADVANCE IN healthcare information technology presents a new challenge to a patient’s privacy. The recent initiatives promoting electronic health records (EHRs) and personal health records (PHRs) are no exception. While the use of these records could potentially revolutionize the way physicians treat patients and both patients and physicians manage medical data, they will also put unprecedented amounts of personal information at the fingertips of thousands of third parties. An increased number of individuals with access to health information will only increase the likelihood that, whether inadvertently or purposefully, data security will be breached. The federal Health Insurance Portability and Accountability Act (HIPAA), state health information privacy laws, and state security breach laws all aim to protect an individual’s data from various incidents in which personal information may be compromised. However, the mere existence of these laws does not mean that a person’s health data is necessarily safe. Scores of high profile security breaches have occurred over the past several years, including breaches resulting in unauthorized access to massive amounts of private data at pharmaceutical companies, major data brokers such as ChoicePoint, hospitals, and the Veteran’s Administration. In the dawning era of EHRs and PHRs, physicians, hospitals, insurers, claims processing companies, and various information technology entities must be ready to combat threats to electronic health information. The reality is that many are unprepared.

There is a growing tension between the rapid growth in the use of EHRs and PHRs and the tightening regulation of the security of personal information. In order to effectively navigate the emerging technology and opportunities afforded by EHRs and PHRs, entities conducting business involving such records must be equipped to prevent or mitigate any threat to personal data that may occur, as we will discuss in greater detail below.

Electronic health Records and Personal health Records: Overview and Trends

EHRs are typically defined as clinical patient health records in electronic format that are originated, managed and maintained principally by healthcare providers. They may include information about a patient such as medical history, lifestyle, demographics, any prescription medication, test results, and billing information, and in some instances, they are made accessible to patients.

EHRs have many attributes; if used effectively they can reduce medical errors and costs, as well as increase efficiency. Their advantages range from eliminating confusion resulting from a physician’s handwriting to enhanced searchability, making it easier for a provider to assess possible drug interactions or for a consistent pattern of symptoms. Depending on the platform, another advantage EHRs may offer is accessibility. If they can be transmitted outside of a particular entity’s local information system, they have the potential to be shared with providers and other healthcare entities throughout the world.

PHRs are clinical patient health records in an electronic format that are created by patients themselves, but are maintained by an outside vendor such as an HMO member site or an information technology entity such as Microsoft or Google. They are accessed principally by the patient, but in some formats can be accessed by providers and/or insurers depending on what level of access the patient provides to healthcare entities. PHRs have advantages similar to those of EHRs if a patient grants his or her providers full access to records.

Adoption of EHR platforms has been historically slow. In late 2006, approximately 11 percent of hospitals had a fully implemented EHR system, according to a survey conducted by the American Hospital Association.¹ In study by the Healthcare Financial Management Association in 2006, hospitals cited lack of national information standards and code sets, lack of funding, concern about physician usage, lack of interoperability and concerns about privacy as obstacles to EHR adoption.² Less than 30 percent of office- based physicians reported using EHR systems in a recent study by the National Center for Health Statistics, and only 12.4 percent used comprehensive EHR systems.³ However, the use of EHR systems by office-based physicians has increased over 50 percent in the past five years.⁴ A wave of recent local, state and federally-sponsored initiatives should help to increase the implementation rate of EHRs. New York State and New York City have been particularly active in encouraging expanded use of EHRs by healthcare providers. At the end of February 2008, Mayor Bloomberg announced that New York City was ready to equip 1,000 Medicaid providers with an EHR system by the end of 2008. Already more than 200 primary care doctors in New York City are using EHRs, and the city says it is on track to reach its goal of 1,000 providers serving more than a million patients by the end of the year.⁵ Furthermore, Mayor Bloomberg is collaborating with a coalition of House Democrats to help achieve the goal of linking 75 percent of the nation’s health care providers through an e-record system within a decade. On the state level, New York Governor David Patterson awarded $105 million in grants in late March 2008 to 19 community based health information technology projects to help build a statewide EHR system.⁶ Grant recipients include Regional Health Information Organizations (RHIOs) such as the Bronx Regional Health Information Organization and Brooklyn Health Information Exchange, which facilitate the exchange of health information electronically within a specific geographic area.

Last year, a groundbreaking bill was introduced in the Senate by U.S. Senator Kennedy that, if passed into law, would “recommend specific actions to achieve a nationwide interoperable health information technology infrastructure” and “make recommendations concerning standards, implementation specifications, and certification criteria for the electronic exchange of health information for adoption by the federal government.”⁷ The “Wired for Health Care Quality Act” would also authorize the Department of Health and Human Services (HHS) to award grants to facilitate the “widespread adoption of interoperable health information technology.”⁸ Essentially, it would serve to boost implementation of EHRs throughout the U.S. using a common platform. At the time of publication, the sponsors of this legislation were hopeful that the legislation would pass by unanimous consent in the coming weeks.

Various private entities are now offering their own versions of PHR platforms. These platforms would allow consumers to manage and access their health records online. It would also give consumers the option of giving providers and insurers access to their records as well. Microsoft (through its website HealthVault), Google and a variety of HMOs are all developing such platforms, with security and privacy controls tailored to the needs of the consumer. Additionally, the Medical Banking Project, a policy group that focuses on the integration of banking technology, infrastructure and credit with healthcare administrative operations, is also conceiving of a private PHR- type platform, which it calls “consumer-directed healthcare (CDH) platforms.” CDH platforms aim to go a step further than the PHR-platforms offered by Microsoft and Google, as they would not only give a consumer control of his or her health records, but also engage the consumer more fully in the financial aspects of his or her healthcare-related activities. A CDH platform would combine information from an individual’s health plan and personal health accounts such as Health Savings Accounts (HSAs) and Flexible Spending Accounts (FSAs). The main objective of a CDH platform would be “to provide a coordinated link between the healthcare and financial services systems to offer the most comprehensive consumer-directed solution.”⁹ Such a platform would also benefit from enhanced security from the banks that help to administer CDH platforms. Banks would protect health-related information much as they presently protect financial information.

However, despite the recent surge in EHR and PHR initiatives, efforts still remain highly fragmented. The available EHR and PHR frameworks are driven by different philosophies, potentially compete with each other, and appeal to different types of users, therefore creating different standards for privacy and security. The current lack of coordination between these various frameworks may lead to an increased risk of security breaches, as communication between multiple and possibly incompatible platforms could lead to data leaks and subsequent tampering with records by outside parties. The patchwork of state laws as well as the general lack of regulation in this area beg for federal legislation to set a uniform standard that will harmonize these efforts.

Security Breach Laws, HIPAA and Their Application to EhRs and PhRs

Because private PHRs such as those offered by Microsoft are not explicitly regulated under HIPAA, which governs the use and disclosure of an individual’s identifiable health information, health records created by consumers using these services would not be protected by HIPAA’s privacy and security provisions. HIPAA generally applies to “covered entities”, i.e. providers, health plans and clearinghouses, and breaches in the privacy and security of patient records by these entities result in significant penalties.¹⁰ However, when an entity such as Microsoft enters into an agreement with a consumer, it is not subject to the obligations of a covered entity; it would not even need to enter into a business associate agreement, which extends HIPAA protections from a covered entity to its business partners. Thus, without the protection of HIPAA, consumers may be left vulnerable and could potentially shift blame in any privacy breach situation to the providers viewing their PHRs (unless comparable state law protections extended to entities like Microsoft). While publicly-sponsored initiatives such as the ones in New York would be more strictly regulated (as they would be most likely subject to HIPAA indirectly through these public entities” activities as business associates of covered entities as well as other state privacy laws), questions remain about just how secure their EHR platforms are.

The Wired for Health Care Quality Act, described above, would have amended HIPAA so that “an operator of a health information electronic database” would essentially become a covered entity.¹¹ This would have resulted in entities that offer PHR platforms such as Microsoft becoming subject to HIPAA and would create a new class of businesses that would be required to adopt more stringent policies and procedures related to the privacy and security of certain health data. However, at the time of publication, an amendment authored by Senator Leahy significantly altering the privacy provisions of the bill had been accepted by Senator Kennedy in order to “ensure the privacy of individual protected health information.”¹² Senator Leahy stated in a recent press release that the amendment would prevent “operators of personal health information databases” from giving sensitive health records “to virtually anyone under the [HIPAA] Privacy Rule.”¹³ This amendment eliminates the requirement that operators of PHR databases would be automatically covered under HIPAA. Rather, it would require that HHS submit to the Senate recommendations for privacy and security protections for PHRs, including whether it is appropriate to apply certain privacy regulations promulgated under HIPAA to PHRs and “the extent to which the implementation of separate privacy and security measures is necessary.”¹⁴

Certain covered entities dealing with EHRs and PHRs must also be prepared for heightened scrutiny of their security policies and procedures related to HIPAA. Earlier this year, the Office of E-Health Standards and Services of the Centers for Medicare and Medicaid Services (CMS) distributed a sample Interview and Document Request list for HIPAA Security Onsite Investigations and Compliance Reviews.¹⁵ This list indicates that CMS may request that a covered entity which contracts with CMS produce evidence of policies and procedures that address prevention, detection, containment and correction of security violations as well as other technical documents that address security matters.

Regardless of whether an entity operating an EHR or PHR platform is a “covered entity,” all such entities would be subject to state security breach notification laws (currently enacted in 43 states, the District of Columbia and Puerto Rico) which require disclosure to consumers of any breach in their personal data. Under most states’ laws, “personal information” includes only basic identifying information, but under the amended California security breach notification law, breaches in health insurance information and medical information¹⁶ are also covered. Therefore, any entity that has clients or patients who reside in California would be subject to these heightened requirements. The Arkansas security breach notification law also has similar requirements regarding medical information. Regardless of which state security law(s) apply to a particular entity, the increased aggregation of data in EHR and PHR platforms as a result of the initiatives described above will leave more personal data vulnerable to security breaches.

An entity that deals with medical data should be prepared to adapt its policies and procedures to the changes in California law. If the entity has a national presence, it is more than likely to have customers or patients from California. Also, because California was the first state to codify a security breach notification law, and most states followed its lead, one could expect that other states will soon follow its example of including “medical information” in the definition of “personal information.”

The challenges in complying with California’s recently enacted amendments are already apparent. Even an advisory group affiliated with the California Office of Privacy Protection, which assists with the implementation and enforcement of the California security breach notification law, has struggled with formulating recommendations as to how best to comply with the new requirement that businesses and state agencies protect against and notify California residents of security breaches in medical information. Prior to being amended, the California breach notification law and related guidance was geared toward breaches affecting financial information. According to Joanne McNabb, Chief of the California Office of Privacy Protection, a breach of medical information is “a different kind of breach in a lot of ways . . . . The risk it poses is not the same” as a financial data breach.¹⁷ The advisory group found that there is not an obvious way to “flag” a person’s medical record in the same way a person’s financial records would be flagged in the event of a security breach. Still, the recommendations are likely to include suggestions that breach notices be as specific as possible, stating what types of records were breached. Pam Dixon, a member of the California Office of Privacy Protection advisory group, said that the amended California law “may drive the debate nationally toward a uniform system like the credit bureaus for medical information.”¹⁸

Lack of Preparedness and Increased Enforcement

While entities increasingly adopt EHR platforms and promote the use of PHRs, they may not be prepared to assume the security risks associated with these types of data systems. In a 2008 study conducted by Kroll Fraud Solutions/HIMSS Analytics to better understand the status of patient data security at hospitals, the hospitals surveyed reported an average level of preparedness to deal with a security breach of 5.88 on a one to seven ascending scale.¹⁹ Yet the same study indicated that only 56 percent of these hospitals had notified patients whose information was compromised as a result of a security breach.²⁰ 13 percent of the respondents to the survey reported that their organization had a security breach in the previous 12 months, with a patient’s name and high level patient information, such as diagnosis, most frequently compromised.²¹ Also, according to the Government Accountability Office (GAO), in 2004–2005, 47 percent of Medicare Advantage contractors, 42 percent of Medicare fee-for-service contractors, and 38 percent of TRICARE contractors reported experiencing a privacy breach.²² While hospitals and health plan contractors may have policies and procedures in place to combat security breaches, the Kroll survey and the GAO report would seem to indicate that the implementation of such policies and procedures is insufficient.

As healthcare institutions lag behind in their preparedness to deal with data security issues, HHS has stepped up its enforcement efforts to counter noncompliance with HIPAA. In 2007, the total number of resolutions of possible Privacy Rule and Security Rule violations totaled 7,176, compared with only 4,761 resolutions in 2004. Of those resolutions, there were 2,199 investigations in 2007, compared to just 1,392 investigations in 2004.23 HHS is clearly responding to the proliferation of data security incidents that occur with increasing frequency as more health records become digitized and thus susceptible to compromise.

The short history of enforcement of security breach notification laws on the state level has been quite robust. Unlike HIPAA, which puts the onus on a covered entity to come up with its own solution to mitigate a violation of the Privacy and Security Rules, security breach laws mandate disclosure to individuals and, in some instances, to law enforcement agencies. Companies found to have violated a notification law may face civil penalties, injunctive relief and attorney’s fees and costs.

Recommendations for Implementation, Prevention and Response

Businesses that retain individuals’ healthcare data, especially those that interface with EHRs and/or PHRs, should revisit their existing policies and procedures to ensure that they are not only compliant with existing federal and state law, but also to anticipate inevitable changes to the privacy and security regulations and increased enforcement activities. As individuals and healthcare providers become more comfortable with putting personal health information in electronic format, they will expect a heightened level of security to accompany this data. Businesses must be vigilant about protecting this data, as a security incident of any magnitude may cause substantial reputational damage. Providers, insurers, and any other businesses that possess personal health information should consider taking the following measures in order to smoothly transition to a work environment incorporating EHRs and PHRs:

• First, an entity should determine exactly what types of data it possesses (if it is a covered entity, it should inventory its protected health information). The entity should also assess whether sensitive information is encrypted and the level of accessibility of such data.
• Next, an entity should assess its vulnerability to a security breach. It should look across its organization to identify strengths and weaknesses, i.e. not only should an information technology department be prepared to deal with increases in electronic data and potential security threats, but also departments such as human resources, claims processing, and recordkeeping that view and use individuals’ health information.
• An entity should review its physical, technical and administrative safeguards. It should make sure that passwords, encryption, physical locks and barriers allow only authorized personnel access to sensitive data and equipment.
• After the steps outlined above, an entity should revise its policies and procedures to reflect any new information gained and processes developed through its own assessment. For example, if the entity determines that it is inadequately prepared to respond to a security breach, it should create or revamp any related guidelines and protocols, such as, with respect to an entity handling medical information of California residents, how to notify a California resident of a breach in his or her medical information.
• An entity should periodically train new and existing employees to effectively administer electronic data and comply with rules, regulations and policies and procedures. Existing employees should be required to attend “refresher” courses on policies and procedures related to privacy and security matters.
• A business should reevaluate its contracts that include provisions regarding healthcare data and assess what types of provisions it could incorporate into its agreements regarding potential security breaches—how it will coordinate with the other party to prevent and/or notify individuals of security breaches.
• Specifically with respect to EHRs and PHRs, providers and insurers should assess whether they wish to develop their own systems, contract with an outside vendor, or try to become part of a state or federal program that facilitates the use of electronic records.
• If a provider or insurer does not wish to adopt its own EHR system, it should weigh the risks and benefits of encouraging its patients to utilize a PHR web-based system such as Health Vault. The provider or insurer should be comfortable with uploading patient records to an accessible web site and ensure it obtains necessary authorizations from the patient before transferring health records. The provider or insurer should also be aware of the potential for out-of-date, incomplete or inaccurate records from other providers or insurers to be kept on an individual’s PHR account and plan accordingly for associated risks.

Entities involved with all sectors of the healthcare industry information. should start strategizing now about how they can best coordinate their operations in anticipation of either adopting an EHR or PHR platform or merely interacting with consumers or other entities that use EHRs or PHRs now. Understanding how privacy and security laws affect a business in connection with EHRs and PHRs is crucial, as most healthcare operations deal with patient records at some point or another and will inevitably deal with EHRs and PHRs in the future. Preparedness is key. Making sure your business is in full compliance with existing privacy and security laws and anticipating changes to relevant laws are necessary steps to effectively navigate the increasingly regulated environment of digital healthcare information.

Linda A. Malek is a partner at Moses & Singer LLP, chair of the firm’s Healthcare practice group and co-chair of the firm’s Privacy practice group. Jay D. Meisel is an associate in the firm’s Healthcare and Privacy practice groups. Moses & Singer counsels a variety of entities in the healthcare industry and other industry sectors on matters related to privacy and security. For more information on this topic, please contact Linda A. Malek at lmalek@mosessinger.com or 212-554-7814 or Jay D. Meisel at jmeisel@mosessinger.com or 212-554-7823. For further information about Moses & Singer LLP, please visit www.mosessinger.com.

¹American Hospital Association. “Continued Progress: Hospital Use of Information Technology” (2007) at 3.

²Health Financial Management Association. “Overcoming Barriers to Electronic Health Record Adoption” (2006) at 2.

³National Center for Health Statistics. “Electronic Medical Record Use by Office-Based Physicians: United States 2005” at http://www.cdc.gov/nchs/products/pubs/pubd/hestats/electronic/electronic.htm.

⁴Id.

⁵Mayor Bloomberg And Commissioner Frieden Unveil State-Of-The-Art Electronic Health Record Technology (Feb. 25, 2008) available at http://www.nyc.gov/html/doh/html/pr2008/mr064-08.shtml

⁶American Medical News. “New York awards $105 million in health IT projects” at http://www.ama-assn.org/amednews/2008/4/28gvsc0428.htm.

⁷Wired for Healthcare Quality Act, S. 1693, 110th Cong. (2007).

⁸Id.

⁹Achim Welter. An Overview of Consumer-Directed Healthcare Platforms. The International Journal of Medical Banking. Volume 1 (2008).

¹⁰See 45 C.F.R. § 160.103 for the definition of “Covered entity.”

¹¹S. 1693.

¹²Amendment No.__ to S. 1693.

¹³Press Release. U.S. Senator Patrick Leahy, Leahy Announces Agreement On Privacy Provisions In Health IT Bill (May 14, 2008).

¹⁴Amendment No.__ to S. 1693.

¹⁵This document is available at: http://www.cms.hhs.gov/Enforcement/Downloads/InformationRequestforComplianceReviews.pdf.

¹⁶Medical information may include medical history, diagnosis, policy number, subscriber number, and claims and appeals histories.

¹⁷Laura Mahoney. Advisory Group Struggles to Pen Guidance On California’s Medical Breach Notice Law. BNA’s Privacy and Security Law Report. Volume 7 Number 18 (2008).

¹⁸Id.

¹⁹2008 HIMSS Analytics Report: Security of Patient Data (Commissioned by Kroll Fraud Solutions), Apr. 2008, 21.

²⁰Id. at 4.

²¹Id.at 19.

²²Government Accountability Office, Domestic and Offshore Outsourcing of Personal Information in Medicare, Medicaid and TRICARE (GAO-06-676, Sept. 2006).

²³Department of Health and Human Services, Office of Civil Rights. Compliance and Enforcement – Enforcement Results by Year at http://www.hhs.gov/ocr/privacy/enforcement/data/historicalnumbers.html.

Moses & Singer LLP ( Disclaimer Viewing this article or contacting Moses & Singer LLP does not create an attorney-client relationship. This article is intended as a general comment on certain recent developments in the law. It does not contain a complete legal analysis or constitute an opinion of Moses & Singer LLP or any member of the firm on the legal issues herein described. This article contains timely information that may eventually be modified or rendered incorrect by future legislative or judicial developments. It is recommended that readers not rely on this general guide in structuring or analyzing individual transactions but that professional advice be sought in connection with any such transaction. Attorney Advertising It is possible that under the laws, rules or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation. )

Census: Internet Use in the United States – 2009

Internet Use in the United States: 2009 — Census released today Tables with national- and state-level data showing who is accessing the Internet, cross-tabulated by age, sex, race, Hispanic-origin, educational attainment and employment status.

State data show Internet usage at home versus use at other locations. Also included is whether people are using broadband or dial-up for Internet access.

Commissioned by the National Telecommunications and Information Administration, the data come from the Current Population Survey.

To view information CLICK on link below:
http://www.census.gov/population/www/socdemo/computer/2009.html

LISTA Joins 23 Natational Organizations to Address Minority Inclusion in Media by FCC to Chairman Genachowski

The FCC’s Civil Rights Record & Overdue Section 257 Triennial Report to Congress

Dear Chairman Genachowski:

As you know, in Section 257 of the Communications Act, Congress requires the Commission   to submit triennial reports “identifying and eliminating Émarket entry barriers for entrepreneurs and other small businesses….” The Commission submitted the required reports for 1997, 2000, 2003, and (several months late) 2006, but the Commission has not yet submitted its 2009 Report.

From your eloquent letter of January 5, 2010 to Henry Rivera, Chair of the Advisory Committee on Diversity for Communications in the Digital Age, we know that you share our concern for the fact that minority ownership and employment in our industries are de minimis and in many respects nearing extinction. Minority television ownership has decreased by 50% since 1999. Minority radio ownership has declined by 9% just within the last three years. Minority wireless and cable system ownership levels are near zero. Finally, minority radio journalism employment has plummeted to less than 1%, a level not seen since 1950.

It is therefore unfortunate that, in 2009, the Commission failed to vote on any of the dozens of pending proposals to advance minority ownership and participation in the industries the Commission regulates, including proposals endorsed by the Advisory Committee on Diversity for Communications in the Digital Age (http://www.fcc.gov/DiversityFAC/). The following examples illustrate the Commission’s shortcomings in areas of concern to us. The FCC has failed:

• To adopt any of the two dozen proposed noncontroversial initiatives that would give minority businesses an opportunity to acquire FCC-licensed assets.
• To restore minimal enforcement of the broadcast Equal Employment Opportunity (EEO) Rule, and to assign a compliance officer to the 2007 Advertising Nondiscrimination Rule which, if it were enforced, could restore to minority broadcasters the approximately $200 million every year that they forego because of racial discrimination by advertisers.
• To hold a hearing on Arbitron’s “Portable People Meter” (PPM) audience measurement technology.
• For the fifth straight year since Hurricane Katrina – to act on the Spanish Radio Association/United Church of Christ/MMTC petition to provide for the multilingual broadcasts of emergency information. The September 8,2009 “FCC Preparedness for Major Public Emergencies” Report did not even mention this critical issue.
• To repeal the 2006 Designated Entity rules that have decimated minority wireless ownership: of the $19 billion fair market value of licenses sold in Auction 73 last year, minorities acquired $5 million, or less than three-hundredths of one percent of the total value of those licenses.
• To include even a mention of minorities or minority business enterprises in the December 2009 National Broadband Plan Framework Ð ignoring the transcripts from four staff workshops and two field hearings at which the witnesses focused on minority cyberpreneurship.
• To support the only remaining federal initiative aimed at promoting minority and women media and telecom ownership Ð the Telecommunications Development Fund. Nowhere in the Commission’s 2009 legislative recommendations was support for this vital initiative mentioned. In fact, on January 28, the Administration Ð without consulting with diversity advocates Ð proposed a budget that would eliminate the Fund entirely. The budget narrative suggested that a proposed loan program and, even more implausibly, the USF are adequate substitutes for this equity fund for new entrants.

To advance the civil rights objectives of the agency and the administration, we would be glad to assist the Commission with a comprehensive review of what can be done in 2010 to promote minority ownership and equal employment in the telecommunications sector. We specifically ask that you place on the agenda of the Commission’s A pril 2010 public Commission meeting a Report and Order adopting several of the dozens of long-pending, fully briefed and virtually unopposed proposals to advance media and telecom ownership diversity.

Sincerely,

Asian American Justice Center

Black College Communication Association

The Hispanic Institute

Hispanic Technology and Telecommunications Partnership

International Black Broadcasters Association

Latinos in Information Sciences and Technology Association

Lawyers’ Committee for Civil Rights Under Law

League of United Latin American Citizens

Minority Media and Telecommunications Council

National Association of Black Owned Broadcasters

National Association of Black Telecommunications Professionals

National Association of Latino Independent Producers

National Association for the Advancement of Colored People

National Black Coalition for Media Justice

National Coalition on Black Civic Participation-Black Women’s Roundtable National Congress of Black Women, Inc.

National Council of La Raza

National Puerto Rican Coalition

National Urban League

Rainbow PUSH Coalition

Spanish Broadcasters Association

United States Hispanic Chamber of Commerce

UNITY: Journalists of Color

cc: Senator Robert Menendez

Congressman Bobby L. Rush

Congressman Edolphus Towns

Congressman G.K. Butterfield

Delegate Donna M. Christensen

Hon. Michael J. Copps, Commissioner, FCC

Hon. Robert McDowell, Commissioner, FCC

Hon. Mignon Clyburn, Commissioner, FCC

Hon. Meredith Attwell Baker, Commissioner, FCC

Hon. Calvin Smyre, Presid ent, National Black Caucus of State Legislators Hon. Iris Martinez, President, National Hispanic Caucus of State Legislators Hon. Robin Read, President, National Foundation of Women Legislators

Hon. Sharon Weston-Broome, President, National Organization of Black Elected

Legislative Women

Hon. Robert Steele, President, National Association of Black County Officials Hon. Sergio Rodriguez, President, Hispanic Elected Local Officials

Hon. Samuel Audwin, President, National Black Caucus of Local Elected Official Hon. George Grace, President, National Conference of Black Mayors

Blacks, Latinos and Women Lose Ground at Silicon Valley Tech Companies.

Blacks, Latinos and Women Lose Ground at Silicon Valley Tech Companies. By Mike Swift, mswift@mercurynews.com

The unique diversity of Silicon Valley is not reflected in the region’s tech workplaces — and the disparity is only growing worse.

Hispanics and blacks made up a smaller share of the valley’s computer workers in 2008 than they did in 2000, a Mercury News review of federal data shows, even as their share grew across the nation. Women in computer-related occupations saw declines around the country, but they are an even smaller proportion of the work force here.

The trend is striking in a region where Hispanics are nearly one-quarter of the working-age population — five times their percentage of the computer work force — and when dual-career couples and female MBAs are increasingly the norm.

It is also evident in the work forces of the region’s major companies. An analysis by the Mercury News of the combined work force of 10 of the valley’s largest companies — including Hewlett-Packard, Intel, Cisco Systems, eBay and AMD — shows that while the collective work force of those 10 companies grew by 16 percent between 1999 and 2005, an already small population of black workers dropped by 16 percent, while the number of Hispanic workers declined by 11 percent. By 2005, only about 2,200 of the 30,000 Silicon Valley-based workers at those 10 companies were black or Hispanic.

The share of women at those 10 companies declined to 33 percent in 2005, from 37 percent in 1999. There was also a decline in the share of management-level jobs held by women.

“It’s just disappointing,” said Shellye Archambeau, the African-American CEO of MetricStream, a Palo Alto-based company that provides governance, risk and compliance support to global corporations such as BP and Pfizer. “The valley is a very strong place, but the fact that we are so lacking in female leadership, in African-American leadership, and frankly in Latino leadership in tech, you just sit there and say, ‘Imagine what it could be.’ ”

With the number of white computer workers also dropping after 2000, Asians were the exception. They now make up a majority of workers in computer-related occupations who live in Silicon Valley, although they hold only about one in six of the nation’s computer-related jobs.

Among the findings:

* Of the 5,907 top managers and officials in the Silicon Valley offices of the 10 large companies in 2005, 296 were black or Hispanic, a 20 percent decline from 2000, according to U.S. Department of Labor work-force data obtained by the Mercury News through a Freedom of Information request.

In 2008, the share of computer workers living in Silicon Valley who are black or Latino was 1.5 percent and 4.7 percent, respectively — shares that had declined since 2000. Nationally, blacks and Latinos were 7.1 percent and 5.3 percent of computer workers, respectively, shares that were up since 2000, according to the U.S. Census Bureau.

The share of managers and top officials who are female at those 10 big Silicon Valley firms slipped to 26 percent in 2005, from 28 percent in 2000.

Cisco Systems is among companies that say they are taking steps to improve diversity by forming diversity councils and employee resource groups and by tapping organizations such as the National Society of Black Engineers for job candidates. Cisco declined to released its most recent race data in detail, but said the number of black and Hispanic workers had “remained stable”
since 2005, when about 6 percent of its local work force was either black or Hispanic.

“Cisco believes an inclusive culture promotes creativity, innovation and drives collaboration,” said Ken Lotich, a company spokesman.

The reasons Silicon Valley lags the nation in hiring — and perhaps in retention — of African-Americans and Latinos are varied and complex, researchers and observers say.

A company’s commitment to diversity can waver, particularly in tough economic times, said Palo Alto venture capitalist Alberto Yépez, a former executive at Apple and Oracle. While Hewlett-Packard, for one, is consistent in its efforts, “I think companies that do not necessarily fare as well have issues, and it’s the consistency that drives” successful diversity efforts.

Other reasons, experts say, include a history of valley companies hiring well-trained tech workers from the Pacific Rim, a weak pipeline of homegrown candidates, and a hypercompetitive business environment that leaves little time to develop workers.

“This is like ‘top gun’ school for techies. Basically, that’s one difference between Silicon Valley and the other tech centers,” said Vivek Wadhwa, a researcher at the University of California-Berkeley, Duke and Harvard who has studied the work-force dynamics of tech centers around the U.S. The intense premium on education “inherently gives Asians an advantage, because they tend to be stronger in math and science.”

But social research has shown that innovation can flower from differences.

“If everybody around the table is the same, the same ideas will tend to come up. If you have a diversity of race, gender, age, educational and different life experiences, people will attack a problem from different perspectives, and that will lead to innovation,” said Caroline Simard, research director for the Anita Borg Institute for Women and Technology. “In an industry that thrives on innovation, like high tech, it’s especially important.”

First-person account

Many minority tech workers are keenly aware of the numbers, because they live them every workday.

“I was the only African-American in every IT job I’ve ever had, ” said Derek Anderson, a 24-year valley veteran who has worked at Adobe Systems, Cisco and other companies.

Like Anderson, San Jose State University computer science student Vicente De La Cruz describes a feeling of isolation — of being “the only one.”

“I’m typically the only Latino, the only Mexican-American, in my class,” said De La Cruz, a 34-year-old with a quiet demeanor. During a recent internship at the software company SAP in Palo Alto, he saw “maybe five other Latinos on the SAP campus. I’ve learned to adjust to it. You have to get used to it; it’s a major motivation of mine to keep working in this field.”

The Mercury News originally sought federal employment data for the valley’s 15 largest companies through the Freedom of Information Act in early 2008. Following an appeals process that stretched over nearly two years, five of those companies — Google, Apple, Yahoo, Oracle and Applied Materials — convinced federal officials to block public disclosure. Data from 2005 was the most current available when the Mercury News made the request.

Between 1999 and 2005, Hispanics were a declining share of the work force in a majority of the 10 large Silicon Valley companies analyzed by the Mercury News — slipping to 5.2 percent of all workers at the 10 companies in 2005, from 6.8 percent in 1999. The black share of the work force at the 10 companies dropped to 2.1 percent, from 2.9 percent.

Even an organization as elite as Stanford’s computer science department felt the need to revamp its curriculum this year, amid concerns that declining overall enrollment was causing the number of women, blacks and Latinos to dwindle even more.

As computer science enrollment dropped, “the percentage of women declined more than the overall percentage,” said Mehran Sahami, a professor who led the curriculum reform. For the few women and minorities left, “suddenly it feels much more isolated” — yet another deterrent.

Women’s prospects

Despite a few high-profile figures like Yahoo CEO Carol Bartz and Google search chief Marissa Mayer, labor department and other data suggest women are climbing the corporate ladder in Silicon Valley at a slower rate than men.

Over a recent lunch at the Women’s Community Center at Stanford, gender researchers Simard and Andrea Henderson were recounting some gloomy statistics for a room of female computer science students.

In Silicon Valley companies, men and women in technical careers are equally likely to hold mid-level jobs, but men are 2.7 times more likely than women to be promoted to a high-ranking tech jobs such as vice president of engineering, or senior engineering manager, Simard and Henderson found in a 2009 study.

The researchers found a series of clues from the water cooler to the living room. Men are more likely to develop informal professional networks, like taking coffee breaks with colleagues — networks that often lead to career opportunities.

The valley’s married male tech employees are more likely to follow the traditional model of having a man working full time, with a woman who stays home with the kids, than are male professionals nationally, perhaps because of the high salaries paid in tech. By contrast, tech women are overwhelmingly in dual-career couples, and many face an either-or choice — parenthood or career advancement.

“We expected a difference,” Simard told the glum-looking students at Stanford, “but this is kind of like the 1950s.”

Still work ahead

Simard and other researchers are convinced that valley companies do value diversity.

Take eBay, for example. While the San Jose company declined to make its executives available for an interview, or to share its most up-to-date employment information, eBay said it believes workplace diversity is crucial.

But the numbers don’t reflect that.

As eBay’s local work force swelled to accommodate the online retailer’s growth between 2000 and 2005, eBay added 366 managers to its Silicon Valley offices. That net increase included just five additional black managers and no Hispanics.

At a time when eBay was headed by one of the few high-profile female CEOs in Silicon Valley, Meg Whitman, the share of the company’s managers and top officials who were female declined to 30 percent in 2005, from 36 percent five years earlier, according to federal employment data.

“No global company today can stay competitive without persistently recruiting, retaining and developing a diverse work force “… eBay believes workforce diversity is critical to achieving our growth objectives and serving our millions of customers globally,” the company said in a statement.

Some critics blame the government for allowing powerful Silicon Valley companies to rely so heavily on foreign-born workers on H-1B visas, which they contend has boosted the numbers of Asians in the tech workforce at the expense of other groups.

“The reason Silicon Valley is different is that those standards have traditionally been enforced in other industries,” said John Templeton, whose “Silicon Ceiling” report details the lack of blacks and Latinos in Silicon Valley. “If you go to a bank IT department, or a cable television IT department, it reflects the community around it. But somewhere, government dropped the ball.”

Others point to the public education system, noting that recent achievement test scores for black and Latino students have been even lower in Santa Clara and San Mateo counties than for the state overall.

“It certainly is a self-reinforcing cycle,” said AnnaLee Saxenian, dean of the school of information at UC-Berkeley.

Aristotle Saunders, a 32-year-old Marvell engineer, volunteers with school kids in Oakland, dissecting iPods to interest them in a tech career. He thinks the lack of visible middle-class minority neighborhoods in Silicon Valley makes it even tougher to recruit minorities to tech jobs here.

“I sort of have that chameleon feel where I can fit in anywhere, but I can see where people raised in a black neighborhood would feel really uncomfortable,” said Saunders, whose parents are African-American and Filipino and who grew up in a predominantly white neighborhood in Southern California. “Even though Silicon Valley is based on a principle of meritocracy, where they value people based on their skills rather than their class or ethnic background, I think it’s still a challenge.”

Contact Mike Swift at 408-271-3648. Follow him on Twitter at Twitter.com/swiftstories.