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July 22, 2005, 9:00 AM ET, Alert No. 1,180.
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House Approves PATRIOT Act Extension Bill

7/21. The House amended and approved HR 3199, the "USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005". This bill permanently extends 14 of the 16 sections of the PATRIOT that are scheduled to sunset at the end this year. It provides for a further 10 year sunset for  206 (regarding roving wiretaps) and  215 (regarding access to business records, including library records, under the FISA).

The Senate has yet to approve this bill, or a related bill. However, on July 21, the Senate Judiciary Committee amended and approved S 1389, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, story titled "Senators Introduce Bill to Extend Expiring Provisions of PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,175, July 15, 2005.

The final vote in the House was 257-171. The vote broke down largely along party lines. Republicans voted 214-14, while Democrats votes 43-156. See, Roll Call No. 414.

The Congress enacted the USA PATRIOT Act immediately after the terrorist attacks of September 11, 2001.  224 of the PATRIOT Act sunsets sixteen sections of Title II of the Act at the end of this year. These sixteen provisions pertain mostly to surveillance, searches, and seizures by the Federal Bureau of Investigation (FBI).

Many of the sections of Title II pertain to wiretapping in traditional telecommunications, surveillance in new internet protocol based services, and accessing stored electronic data. The full House approved the version of the bill [PDF] reported by the House Rules Committee (HRC) on July 20, along with 17 amendments.

Most of the amendments approved by the House do not pertain to the 16 sunsetting provisions of the PATRIOT. Most are related to combatting terrorism. However, a few are not anti-terrorism provisions. The House Rules Committee (HRC) did not make in order numerous proposed amendments that would have addressed the sunsetted provisions. The HRC did, however, permit this bill to be used as a vehicle for enactment of unrelated proposals.

Amendments Related to Searches, Seizures and Surveillance. Six of the amendments approved by the House pertain to searches, seizures and surveillance.

The full House approved one symbolic amendment regarding 215 and orders to produce business records under the FISA, and one amendment regarding  206 and roving wiretaps.

The House also approved one amendment regarding national security letters (NSLs). The PATRIOT Act contained provisions related to NSLs, but these were not sunsetted by the PATRIOT Act, and are not in Title II. However, NSLs are a method by which the FBI seizes records.

The House also approved an amendment regarding delayed notice of search warrants.  213 of the PATRIOT Act amended the law on this subject. However, the PATRIOT Act did not sunset this section.

The House also approved an amendment expanding the list of offenses that may serve as a predicate for the issuance of a wiretap order.

Finally, the House approved a amendment regarding data mining. Specifically, this relates to what the government does with data that it obtains, rather than searches, seizures or surveillance to obtain that data.

The House approved by a vote of 402-26 an amendment [PDF] offered by Rep. Jeff Flake (R-AZ) that would require that the Director of the Federal Bureau of Investigation (FBI) must personally approve any request for records from a library or bookstore by the FBI under  215. This is largely symbolic, because it is likely that the FBI will rarely, if ever, use this authority with respect to a U.S. person. All of the no votes were cast by Republicans. See, Roll Call No. 403.

The House approved by a vote of 406-21 an amendment [PDF] offered by Rep. Darrell Issa (R-CA) regarding  206 and roving wiretaps. It would increase the oversight over the use of roving wiretaps by requiring an applicant to notify the issuing judge within a reasonable time, as determined by the court but not more than 15 days, of the change of surveillance from the initial facility or place to a new one. It would also require the applicant to specify the total number of electronic surveillances that have been or are being conducted. All of the no votes were cast by Republicans. See, Roll Call No. 404.

The House approved by a vote of 394-32 an amendment [14 pages in PDF] offered by Rep. Flake that pertains to national security letters (NSLs). 28 of the no votes were cast by Republicans. See, Roll Call No. 406.

This amendment provides that the recipient of a NSL may consult with an attorney, and filed a petition challenging the NSL in federal court. The amendment would authorizes the court to grant the petition "if compliance would be unreasonable or oppressive" to the recipient of the NSL. The amendment would also allows the recipient to challenge the non-disclosure requirement, and permit the court to modify or remove the non-disclosure requirement "if it finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." The amendment would modify the non-disclosure requirement to allow recipients to disclose to individuals whom they work in order to comply with the request. The amendment would also require reporting to the Congress on the exercise of NSL authority.

The House rejected by voice vote a hastily drafted amendment [PDF] offered by Rep. Maxine Waters (D-CA) that would have placed substantial limitations upon the government's ability to enforce the non-disclosure requirements associated with national security letters, and with  215 orders for the production of business records.

The House approved by a vote of 407-21 an amendment [PDF] offered by Rep. Flake regarding  213 and delayed notice of search warrants. The procedure is also referred to by its critics as sneak and peak. This amendment would require the Administrative Office of the United States Courts to report annually to the Congress on the number of delayed notice search warrants. All 21 no votes were cast by Republicans. See, Roll Call No. 408.

The House approved by a voice vote an amendment [PDF] offered by Rep. Dan Lungren (R-CA) that expands the predicate offenses for wiretap orders. That is, wiretap orders are issued by a judge upon a finding of probable cause. They are not available for the investigation of any crime. The Criminal Code lists those offenses that may serve as a predicate for the issuance of a wiretap order. This amendment further expands an already long list offenses.

Finally, the House approved by a vote of 261-165 an amendment [PDF] offered by Rep. Howard Berman (D-CA). It would require the Department of Justice (DOJ) to report to the Congress on the development and use of data mining technology by departments and agencies of the federal government. The amendment defines data mining, requires an annual report on data mining activities by federal agencies, and specifies the contents of the report.

Rep. Berman and Rep. William Delahunt (D-MA) offered a very similar data mining amendment during the House Judiciary Committee (HJC) mark up on July 11. Chairman Sensenbrenner stated that it was not germane, and Rep. Berman withdrew the amendment. However, Rep. Sensenbrenner also stated at that mark up that he supports the concept, and wants to see the Congress enact data mining related legislation as part of a separate bill. He voted for this amendment, along with 61 other Republicans. Democrats voted 198-0 for this amendment. See, Roll Call No. 409.

Other Amendments. Another eleven amendments approved by the House do not pertain either to the sunsetted provisions, or to searches, seizures or surveillance.

The House approved by a vote of 362-66 an amendment [PDF] offered by Rep. Shelley Capito (R-WV) regarding terrorist attacks on railroad and other transportation systems. 65 of the 66 no votes were cast by Democrats. See, Roll Call No. 405. The House also approved by voice votes an amendment [PDF] offered by Rep. Adam Schiff (D-CA) that would criminalize to use a vessel to smuggle terrorists or dangerous materials, and an amendment [PDF] offered by Rep. Pete Sessions (R-TX) pertaining to aircraft.

The House also approved by a vote of 418-7 an amendment [PDF] offered by Rep. Delahunt that would make a definitional change in the forfeiture statute. See, Roll Call No. 407.

The House approved by voice vote an amendment [PDF] offered by Rep. Henry Hyde (R-IL) that would make narco-terrorism a crime.

The House approved by voice vote an amendment [PDF] offered by Rep. Nita Lowey (D-NY) regarding the way the federal government provides grant funding to first responders.

The House approved by voice vote an amendment [PDF] offered by Rep. John Carter (R-TX) that would apply the death penalty or life imprisonment for a terrorist offense that results in death.

The House approved by voice vote an amendment [PDF] offered by Rep. Melissa Hart (R-PA) that would increase the penalties for activities constituting terrorism financing from $11,000 to $50,000 per unlawful transaction and criminal sentences from 10 to 20 years.

The House approved by voice vote an amendment [PDF] offered by Rep. Sheila Lee (D-TX) that would amend 18 U.S.C. 981, the federal civil forfeiture statute, to allow the attachment of property, and the enforcement of judgment, against a judgment debtor who has engaged in planning or perpetrating any act of domestic or international terrorism.

The House approved by voice vote an amendment [PDF] offered by Rep. Ron Paul (R-TX) that expresses the sense of the Congress that no American citizen should be the target of a federal investigation solely as a result of that person's political activities.

And finally, the House approved by voice vote an amendment [PDF] offered by Rep. Howard Coble (R-NC) pertaining to the Contraband Cigarette Trafficking Act and smokeless tobacco.

Reaction. President Bush released a statement: "I commend the House for voting to reauthorize provisions of the Patriot Act that are set to expire this year. The Patriot Act has enhanced information sharing between law enforcement and intelligence personnel, updated the law to adapt to changes in technology, and provided critical tools to investigate terrorists that have been used for years in cases against organized crime and drug dealers. The Patriot Act is a key part of our efforts to combat terrorism and protect the American people, and the Congress needs to send me a bill soon that renews the Act without weakening our ability to fight terror."

Attorney General Alberto Gonzales stated after the House vote that "I am pleased that the House of Representatives has decided to renew the vital provisions of the USA PATRIOT Act. After measured deliberation and a public debate, the House has again provided the brave men and women of law enforcement with critical tools in their efforts to combat terrorism and protect the American people. Given the strong bipartisan support reflected in today's vote, I look forward with great optimism to the Senate's consideration of the USA PATRIOT Act and its ultimate renewal."

See also, floor statement by Rep. Sensenbrenner.

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Washington Tech Calendar
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Friday, July 22

The House will meet at 9:00 AM for legislative business. See, Republican Whip Notice.

The Senate will meet at 10:00 AM. It will resume consideration of S 1042, the defense authorization bill.

10:00 AM. The Senate Foreign Relations Committee will hold a hearing on several nominations, including that of Josette Shiner to be Under Secretary of State for Economic, Business, and Agricultural Affairs. Location: Room 419, Dirksen Building.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Data Security and Privacy Protection: What is the Public Sector's Role?". The speakers will include Orson Swindle (former Federal Trade Commission (FTC) Commissioner), Howard Beales (former Director of the FTC's Consumer Protection Bureau), Paul Rubin (Emory University), David Cavicke (Chief Counsel to the House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection), Marc Rotenberg (Electronic Privacy Information Center), and Tom Lenard (PFF). See, notice and registration page. Lunch will be served. For more information, contact Andrea Knutsen at 202 289-8928 or aknutsen at pff dot org. Press contact: Patrick Ross at 202-289-8928 or pross at pff dot org. Location: Room B-369, Rayburn Building, Capitol Hill.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice [10 pages in PDF] regarding video news releases (VNRs). This notice is FCC 05-84 in MB Docket No. 05-171.

Monday, July 25

12:00 NOON. The Senate Judiciary Committee (SJC) may hold a hearing on the nomination of Timothy Flanigan to be the Deputy Attorney General. The SJC frequently cancels hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

EXTENDED TO SEPTEMBER 9. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of second further proposed rulemaking regarding horizontal and vertical cable ownership limits. The FCC adopted this Second Further NPRM on May 13, 2005, and released it on May 17, 2005. This item is FCC 05-96 in MM Docket No. 92-264. See, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33679 - 33687. See, notice of extension of deadlines, in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38848 - 38849.

Tuesday, July 26

9:00 AM - 5:00 PM. Day one of a two day roundtable hosted by the Copyright Office on orphan works. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39341 - 39343. Location: Room 188, Russell Building, Capitol Hill.

9:30 AM. The Senate Judiciary Committee may hold a hearing on immigration law reform. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.

12:15 - 1:30 PM. The Chamber of Commerce will host a luncheon program titled "The Wireless Revolution: Enriching the Global Economy with Mobile Broadband and Smart Devices". The speaker will be Irwin Mark Jacobs, Chairman of Qualcomm. The price to attend ranges from free to $145. For more information, contact Natalie Safertal at 202-463-5500. See, notice. Location: Chamber of Commerce, 1615 H Street, NW.

2:15 PM. The Senate Foreign Relations Committee will hold a business meeting. The agenda includes consideration of ratification of the Council of Europe Convention on Cybercrime, which was signed by the U.S. on November 23, 2001. Location: Room S-116, Capitol Building.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Intellectual Property has scheduled another hearing titled "Perspective on Patents: Harmonization and Other Matters". The SJC frequently cancels hearings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154.Location: Room 226, Dirksen Building.

2:30 PM. The Senate Environment and Public Works Committee's Subcommittee on Superfund and Waste Management will hold a hearing on electronics waste. Location: Room 406, Dirksen Building.

Wednesday, July 27

9:00 AM - 5:00 PM. Day two of a two day roundtable hosted by the Copyright Office on orphan works. See, notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39341 - 39343. Location: Room 2237, Rayburn Building, Capitol Hill.

9:00 AM. Day one of a two day meeting of the Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda includes "Department of Energy's uses of High Performance Computers", "Ethernet Technology Trends" and "Nanotechnology Update". Part of the meeting will be close to the public. See, notice in the Federal Register, July 11, 2005, Vol. 70, No. 131, at Pages 39720 - 39721. Location: Room 3884, Department of Commerce, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM. The Senate Judiciary Committee may hold a hearing on the Federal Bureau of Investigation (FBI). Location: Room 226, Dirksen Building.

10:00 AM. The House Ways and Means Committee's Subcommittee on Health will hold a hearing titled "Health Care Information Technology". See, notice. Location: Room 1100, Longworth Building.

12:00 NOON - 2:00 PM. The New Republic will host a panel discussion titled "Updating America's Telecommunications Laws: What's In It For Us?" The speakers will be Sen. Mark Pryor (D-AR), Sen. John Kerry (D-MA), Sen. Joe Lieberman (D-CT), Michael Crowley (Senior Editor of The New Republic), Kim Anderson (National Education Association), Harry Alford (National Black Chamber of Commerce), George Kohl (Communications Workers of America), and Clyde Prestowitz (Economic Strategy Institute). Lunch will be served. For more information, contact Joan Daly at 703 407-3204 or jdaly at tnr dot com. Location: Room 11, Dirksen Building, Capitol Hill.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. See, notice in the Federal Register, July 12, 2005, Vol. 70, No. 132, at Page 40052.

2:30 PM. The Senate Commerce Committee will hold a hearing on S 1372, the "Fairness, Accuracy, Inclusivity, and Responsiveness in Ratings Act of 2005", a bill to regulate television ratings services. The witnesses will be George Ivie (Media Rating Council), Susan Whiting (Nielsen Media Research), Ceril Shagrin (Univision), Pat Mullen (Tribune Broadcasting), Kathy Crawford (MindShare Worldwide), and Gale Metzger. See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov Location: Room 253, Russell Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) regarding advancing the date on which all new television receiving equipment must include the capability to receive over the air DTV broadcast signals from July 1, 2007, to a date no later than December 31, 2006. The FCC adopted and released this item on June 9, 2005. This item is FCC 05-121 in ET Docket No. 05-24. See, notice in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38845 - 38848. See also, story titled "FCC Adopts Order and NPRM Regarding Its Digital Tuner Rules" in TLJ Daily E-Mail Alert No. 1,153, June 14, 2005.

Thursday, July 28

9:00 AM. Day two of a two day meeting of the Bureau of Industry and Security's (BIS) Information Systems Technical Advisory Committee. The agenda includes "Department of Energy's uses of High Performance Computers", "Ethernet Technology Trends" and "Nanotechnology Update". Part of the meeting will be close to the public. See, notice in the Federal Register, July 11, 2005, Vol. 70, No. 131, at Pages 39720 - 39721. Location: Room 3884, Department of Commerce, 14th Street between Constitution and Pennsylvania Avenues, NW.

9:30 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels meetings without notice. The agenda includes S __, the "Personal Data Privacy and Security Act of 2005", S 751, the "Notification of Risk to Personal Data Act", and S 1326, the "Notification of Risk to Personal Data Act". The SJC rarely follows its published agenda. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154.

10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up S 1408, the "Identity Theft Protection Act". See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov. Location: Room 253, Russell Building.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, March 25, 2005, Vol. 70, No. 57, at Page 15316. See also, notice in the Federal Register, July 6, 2005, Vol. 70, No. 128, at Pages 38928. Location: FCC, 445 12th Street, SW, Commission Meeting Room (TW-C305).

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the Americas Regional Preparatory Meeting for the World Telecommunication Development Conference (WTDC-06) in Lima, Peru, from August 9-11, 2005. See, notice in the Federal Register, June 22, 2005, Vol. 70, No. 119, Page 36224. Location: DOS, Room 2533A.

10:30 AM -12:30 PM. The Internet Governance Project and others will host a panel discussion titled "Regime Change on the Internet? Internet Governance After WGIG". See, notice. See also, the United Nation's (UN) Working Group on Internet Governance (WGIG). Location: Syracuse University's Paul Greenberg House, 2301 Calvert Street, NW.

2:00 - 5:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Do Legal Research on the Internet: Find It Fast and Free". The speakers will be Carole Levitt and Mark Rosch of Internet for Lawyers. The price to attend ranges from $80-$135. For more information, call 202-626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 - 4:00 PM. The Department of tate's (DOS) International Telecommunication Advisory Committee's (ITAC) U.S. Study Group A will meet to prepare positions for the next meeting of ITU-T's Study Group 3 (tariff and accounting principles for international telecommunication services), which will be on September 12-16, 2005, in Geneva, Switzerland. To participate by teleconference, contact minardje at state dot gov. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: AT&T, Suite 210, 1133 21st Street, NW.

2:30 PM. The Senate Commerce Committee will hold a hearing titled "Issues Related to MGM v. Grokster". See, notice. Press contact: Melanie Alvord (Stevens) (202) 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Andy Davis (Inouye) at 202 224-4546 or Andy_Davis at commerce dot senate dot gov Location: Room 253, Russell Building.

Friday, July 29

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Defying Classification: Can the Information Services/Telecommunications Services Regulatory Dichotomy Survive in an IP World?". No RSVP requested. For more information, contact Phil Marchesiello at pmarchesiello at akingump dot com or 202 887-4348 or Natalie Roisman natalie at roisman at fcc dot gov. Location: Akin Gump, 1333 New Hampshire Ave., NW, 10th Floor.