12/12. Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, introduced S __, a bill that would extend for three months the sunsets on all of the expiring sections of the 2001 USA PATRIOT Act. The bill would also extend for three months the lone wolf FISA surveillance authority, which was enacted in 2004 as part of the Intelligence Reform and Terrorism Prevention Act.

On Thursday, December 8, 2005, Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, and Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, both announced that House and Senate conferees have completed work on a conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF].

The cosponsors of Sen. Leahy's bill include several Republicans: Sen. John Sununu (R-NH), Sen. Lisa Murkowski (R-AK), and Sen. Larry Craig (R-ID). The cosponsors also include Sen. John Rockefeller (D-WV), Sen. Edward Kennedy (D-MA), Sen. Carl Levin (D-MI), Sen. Richard Durbin (D-IL), Sen. Debbie Stabenow (D-MI), and Sen. Ken Salazar (D-CO).

In addition, last week, Sen. Russ Feingold (D-WI) stated that he would filibuster the conference report. See, story titled "Senate Opponents Say Conference Report Lacks Support in Senate" in TLJ Daily E-Mail Alert No. 1,269, December 9, 2005.

Sen. Leahy's (at right) proposal would provide another three months to revise the conference report.

The House is scheduled to vote on the conference report on either Wednesday, December 14, or Thursday, December 15. Sen. Specter stated last week that the Senate would then vote after the House.

Sen. Leahy stated on December 12 that "the Bush Administration and the Republican congressional leadership have squandered key opportunities to improve the PATRIOT Act. The House-Senate conference report filed last week by Republican lawmakers falls short of what the American people expect and deserve from us." He argued that a three month extension would provide time to improve the bill.

12/12. The Supreme Court denied certiorari, without opinion, in Dreamscape Design v. Affinity Network, No. 05-433. See, Order List [8 pages in PDF], at page 4.

This lets stand the judgment of the U.S. Court of Appeals (7thCir). On July 5, 2005, the Court of Appeals issued its opinion [18 pages in PDF] holding that federal law preempts state law claims of fraud and breach of contract that were related to rates for long distance telephone service.

Dreamscape Design, Inc. is a class action plaintiff. It filed a complaint in state court in Illinois against Affinity Network, Inc., an interexchange carrier, alleging, among other things, that it violated the Illinois Consumer Fraud Act (ICFA) by making misrepresentations about its rates for long distance telephone service.

Affinity removed the action to the U.S. District Court (CDIll), asserting that the state law claims are preempted by the Communications Act, and in particular, by the ancient filed rate doctrine. Hence, Affinity argued that there is federal question jurisdiction.

The District Court held that most of the claims are preempted by federal law. It also granted Affinity’s motion to compel arbitration in accordance with a clause in Affinity’s tariff mandating arbitration of disputes. The arbitrator dismissed the claims, but with leave to amend the complaint. Dreamscape filed an amended complaint. The Court dismissed, pursuant to Boomer v. AT&T Corp., 309 F.3d 404 (7th Cir. 2002). See, story titled "7th Circuit Upholds Mandatory Arbitration Clause in AT&T Consumer Contract" in TLJ Daily E-Mail Alert No. 531, October 21, 2002.

The Court of Appeals affirmed. It reasoned that "Although it may be tempting to view a filed tariff as simply another contract enforceable under state law, this court and others have recognized that tariffs are something more -- at least the equivalent of federal regulations or law -- so suits to challenge or invalidate tariffs arise under federal law."

"Under the filed tariff doctrine, courts may not award relief (whether in the form of damages or restitution) that would have the effect of imposing any rate other than that reflected in the filed tariff." The Court added that "This is so even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation."

"The mandatory aspect of the regulatory scheme came to an end following passage of the Telecommunications Act of 1996. ... Pursuant to the act, the FCC issued a series of orders mandating detariffing, and as of July 31, 2001, the tariff requirement was canceled altogether."

The Court of Appeals then reviewed the claims in the complaint in detail, and concluded, pursuant to these principles, that the claims are preempted by federal law. It affirmed the dismissal.

See also, story titled "7th Circuit Rules on Federal Preemption in Suit Involving Long Distance Telephone Rates" in TLJ Daily E-Mail Alert No. 1,169, July 7, 2005.

This case is Dreamscape Design, Inc. v. Affinity Network, Inc., Sup. Ct. No. 05-433, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit. The Court of Appeals case is App. Ct. No. 04-3035, an appeal from the U.S. District Court for the Central District District of Illinois, D.C. No. 02 C 2235, Judge Michael McCuskey presiding. Judge Kanne wrote the opinion of the Court of Appeals, in which Judges Rovner and Sykes joined.

12/12. The Supreme Court denied certiorari, vacated the judgment of the Court of Appeals, and remanded, in US v. Matthews. This is one of several recent cases that involve the issue of the scope of Congressional authority to enact criminal statutes under the power to regulate interstate commerce. The present case goes to whether activity can be criminalized by the Congress, under the Commerce Clause, where the activity involves the use of a computer.

The Supreme Court issued no opinion. It merely wrote in its Order List [8 pages in PDF] of December 12, 2005, at page 1, that "The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Gonzales v. Raich, 545 U.S. ____ (2005)."

The Supreme Court issued its opinion [79 pages in PDF] in Gonzales v. Raich on June 6, 2005. This is another case regarding the authority of the Congress to enact criminal statutes under the Commerce Clause. The Court upheld a section of the Controlled Substances Act as a valid exercise of federal power. See, story titled "Supreme Court Upholds Broad Congressional Power to Enact Criminal Statutes Under Commerce Clause" in TLJ Daily E-Mail Alert No. 1,149, June 7, 2005.

Angel Raich, a California resident, grew rnarijuana at home, for personal use, for medicinal purposes, with a medical doctor's prescription, in a manner permitted under California law, but prohibited under federal law. She was not engaged in buying or selling, or other commercial activity. Nevertheless, the Supreme Court upheld the federal statute as a valid exercise of Commerce Clause authority.

In the present case, US v. Matthews, the U.S. District Court (NDAlab) and the U.S. Court of Appeals (11thCir) both held that the Congress lacked authority to enact the prohibition that is now codified at 18 U.S.C. § 2252A(a)(5)(B).

This section provides, in part, that "(a) Any person who ... (5) ... (B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, ... shall be punished ..."

The just released order of the Supreme Court is brief, and contains no explanation of legal principles. It merely grants certiorari, vacates, and remands. It instructs the Court of Appeals which opinion is controlling, Gonzales v. Raich. But, it does not instruct the Court of Appeals as to whether Gonzales v. Raich leads to the holding that the statute is a permissible, or impermissible, exercise of Commerce Clause authority.

However, to the extent that Gonzales v. Raich gives the Congress broad and nearly unlimited authority, and that the Courts of Appeals' opinion that is now vacated was issued before the Supreme Court issued its opinion in Gonzales v. Raich, it is likely that the Court of Appeals with now uphold the statute in question.

Raich is basically a throwback to the New Deal era case of Wickard v. Filburn, 317 U. S. 111 (1942). The Court, citing Wickard, wrote that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." The Court added that "Congress can regulate purely intrastate activity that is not itself ``commercial,´´ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity." And, the Supreme Court added that it will not engage in any significant review of the Congress' determination that something substantially affects interstate commerce.

The significance of this case lies not in what will become of Justin Matthews, or similarly situated perverts. This case goes to the authority of the Congress to criminalize individual conduct that involves use of computers, the internet, or communications. Much bad conduct is conducted by individuals sitting at home, who are not selling things in commerce. They are not engaged in interstate commerce in the literal sense of the term.

The plain language, and original understanding, of the Constitution is that the Congress has authority to enact legislation only on those topics enumerated in Article I. There is no general grant of criminal law making authority in the Constitution. Crime was a matter primarily left to state regulation.

There are a few express grants of criminal authority. For example, the Constitution provides that Congress has authority "to provide for the Punishment of counterfeiting the Securities and current coin of the United States".

There are also implied powers to enact certain criminal laws as "necessary and proper for carrying into Execution" other enumerated powers. See, Article I, Section 8, Clause 18. For example, the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Inventions" implies the power to criminalize the infringement of such an "exclusive Right".

However, today, there is a trend of enacting federal criminal statutes, including the one at issue in this case, under the authority of the Commerce Clause, even though the defendant's activity may not involve interstate commerce in the literal sense of the term. In cases such as Raich and Matthews the Supreme Court is allowing this trend to continue.

See also, petition for writ of certiorari filed by the Office of the Solicitor General (OSG) on August 12, 2005, and story titled "US Argues Congress Has Commerce Clause Authority to Criminalize Acts Involving Use of Computer" in TLJ Daily E-Mail Alert No. 1,195, August 15, 2005.

Also, on October 3, 2005, the Supreme Court granted certiorari, vacated, and remanded, in US v. Maxwell, another case involving 18 U.S.C. § 2252A(a)(5)(B) and the Commerce Clause. See, story titled "Supreme Court Vacates in US v. Maxwell" in TLJ Daily E-Mail Alert No. 1,227, October 5, 2005. This is Sup. Ct. No. 04-1382.

This case is US v. Justin Wayne Matthews, Sup. Ct. No. 05-59, a petition for writ of certiorari to the U.S. Court of Appeals for the 11th Circuit. The Court of Appeals number is 04-11052. The U.S. District Court for the Northern District of Alabama number is 02-00549 CR-S-M.

12/12. The Supreme Court issued an order in Texaco v. Dagher and Shell v. Dagher. The Court wrote that "The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of respondents for divided argument is denied." See, Order List [8 pages in PDF], at page 2. This case involves the application of antitrust law to lawful joint ventures. Oral argument is scheduled for Tuesday, January 10, 2005. See, story titled "Supreme Court Grants Certiorari in Dagher" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005, and story titled "Verizon Seeks Reversal in Texaco v. Dagher" in TLJ Daily E-Mail Alert No. 1,232, October 12, 2005. See also, Supreme Court docket. This case is Texaco, Inc. v. Fouad N. Dagher, et al., Sup. Ct. No. 04-805, and Shell Oil Company v. Fouad N. Dagher, et al., No. 04-814, petitions for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 02-56509. The Court of Appeals heard an appeal from the U.S. District Court (CDCal), D.C. No. CV-99-06114-GHK.

12/12. The Supreme Court denied certiorari in Memorex Products v. SanDisk. See, Order List [8 pages in PDF], at page 4. This lets stand judgment of the U.S. Court of Appeals (FedCir). The Court of Appeals issued its opinion [27 pages in PDF] on July 8, 2005. This is a patent infringement case involving flash EEprom technology. SanDisk is the holder of U.S. Patent No. 5,602,987. SanDisk filed a complaint in U.S. District Court (NDCal) against Memorex and others alleging patent infringement. The District Court granted summary judgment of non-infringement. The Court of Appeals vacated and remanded. It concluded that the District Court "misread the claims at issue, and erred in finding a prosecution disclaimer in support of its reading". It also rejected the contention that judicial estoppel forecloses SanDisk's claim construction arguments on appeal. This case is Memorex Products v. SanDisk, Sup. Ct. No. 05-456, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit. The Court of Appeals case is App. Ct. Nos. 04-1422 and 04-1610, appeals from the U.S. District Court for the Northern District of California, Judge Vaughn Walker presiding.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider numerous non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

The Senate will meet at 11:00 AM for morning business.

9:00 AM. The Cyber Security Industry Alliance (CSIA) will host a news conference titled "Cyber Security 2006". For more information, contact Jan Baker at 781 876-6269  Location: Lisagor Room, National Press Club, 529 14th St. NW, 13th Floor.

10:00 AM. The Electronic Privacy Information Center (EPIC) will hold a news conference titled "Release of Documents Concerning PATRIOT Act Renewal". See, notice. For more information, contact Marc Rotenberg at 202 483-1140 ext. 106 or rotenberg at epic dot org. Location: Fund for Constitutional Government, 122 Maryland Ave., NE (across the street from the Supreme Court).

TIME CHANGE. 10:30 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Deborah Tate and Michael Copps to be members of the Federal Communications Commission (FCC). Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. See, notice. Location: Room 106, Dirsksen Building.

11:00 AM. The Federal Trade Commission (FTC) will hold a news conference to announce an against against, and settlement of, a violator of the FTC's Do Not Call Rule. See, notice. Location: FTC main, Room 432, 600 Pennsylvania Ave., NW.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Safety of Imported Pharmaceuticals: Strengthening Efforts to Combat the Sales of Controlled Substances Over the Internet". The witnesses will include Karen Tandy, Administrator of the Drug Enforcement Administration (DEA), and Jayson Ahern, Assistant Commissioner of Customs and Border Patrol (CBP). The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

2:00 PM. The Senate Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on The Department of Homeland Security's (DHS) US-VISIT program. Jim Williams, Director of US-VISIT, will testify. Location: Room 124, Dirksen Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 106, Dirsksen Building.

5:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will meet to mark up HR 1956, the "Business Activity Tax Simplification Act of 2005". See, story titled "House Subcommittee Holds Hearing on State Business Activity Taxes" in TLJ Daily E-Mail Alert No. 1,223, September 28, 2005. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. The meeting will be webcast by the HJC. See, notice. Location: Room 2141, Rayburn Building.

5:30 PM. The House Rules Committee will meet to adopt a rule for consideration of the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF]. Location: Room H-309, Capitol Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 1: Copyright, Trademark and Internet Update". The speakers will include Brian Banner (Banner & Witcoff), Beckwith Burr (Wilmer Cutler), and Terence Ross (Gibson Dunn & Crutcher). The price to attend ranges from $70-$125. For more information, call 202 626-34638. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

The House will meet a 10:00 AM for legislative business. It may consider the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF]. See, Republican Whip Notice.

10:00 AM. The Securities and Exchange Commission (SEC) will hold an open meeting. See, agenda. Location: SEC, Room L-002, 100 F St., NE.

11:00 AM. The Senate Finance Committee will hold a hearing on several nominations, including those of David Spooner to be Assistant Secretary of Commerce for Import Administration, and David Bohigian, to Assistant Secretary of Commerce, Market Access and Compliance. Location: Room 215, Dirksen Building.

6:00 -8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "2005 Intellectual Property Law Review Series, Part 2: Patent Law Update". The speakers will include Bradley Wright (Banner & Witcoff) and Eric Wright (Morgan & Finnegan). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Day one of a two day conference hosted by Comptel titled "COMPTEL Executive Business & Policy Summit". FCC Chairman Kevin Martin will give a luncheon address on December 14. See, notice. Location: Washington Capital Hilton.

The House will meet a 10:00 AM for legislative business. It may consider the conference report on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See, full text of the conference report [219 pages in PDF]. See, Republican Whip Notice.

10:00 AM. The Senate Commerce Committee will hold a business meeting. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 106, Dirksen Building.

10:00 AM. The Internal Revenue Service (IRS) will hold a public hearing on its notice of proposed rulemaking (NPRM) regarding the source of income derived from international communications activity. See, notice in the Federal Register, September 19, 2005, Vol. 70, No. 180, at Pages 54859 - 54878. Location: Auditorium, Internal Revenue Building, 1111 Constitution Ave., NW.

Day two of a two day conference hosted by Comptel titled "COMPTEL Executive Business & Policy Summit". See, notice. Location: Washington Capital Hilton.

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

9:00 - 11:00 AM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will meet. The agenda includes discussion of "E911 issues, final recommendations for next generation E911 architectures and transition issues, new best practices for improving the reliability of E911 networks and services, target network architectures for communications with emergency services personnel, and best practices for network security". See, FCC notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.

The House may meet for legislative business. See, Republican Whip Notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding its rules affecting Wireless Radio Services. This item is FCC 05-144 in WT Docket Nos. 03-264. The FCC adopted this item on July 22, 2005. It released the text [67 pages in PDF] on August 9, 2005. See, notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at Pages 60770 - 60781.

Deadline to submit comments to the Securities and Exchange Commission (SEC) regarding improving the draft RFP [154 pages in PDF] for remaking the SEC's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) Platform. See also, SEC release, draft RFP cover letter [PDF], and story titled "SEC Seeks Contractor to Remake EDGAR" in TLJ Daily E-Mail Alert No. 1,259, November 23, 2005.

12/12. The Government Accountability Office (GAO) released a report [62 pages in PDF] titled "Electronic Wastes: Strengthening the Role of the Federal Government in Encouraging Recycling and Reuse".

The report states that "Available research suggests that the volume of used electronics is large and growing and, if improperly managed, can harm the environment and human health. While data and research are limited, some data suggest that over 100 million computers, monitors, and televisions become obsolete each year and that this amount is growing."

It states that "These obsolete products can be recycled, reused, disposed of in landfills, or stored by users in places such as basements, garages, and company warehouses. Data we reviewed suggest that most used electronics are probably stored, and therefore have the potential to be recycled or reused, disposed of in landfills, or exported overseas."

"If ultimately disposed in landfills, either in the United States or overseas, valuable resources, such as copper, gold, and aluminum, are lost for future use." But, the report adds, "costs associated with recycling and refurbishing outweigh the revenue received from recycled commodities or refurbished units".

The report also states that "some research shows that certain toxic substances with known adverse health effects, such as lead, have the potential to leach into landfills. Although one study suggests that leaching is not a concern in modern U.S. landfills, it appears that many of these products end up in countries without modern landfills or environmental regulations comparable to those in the United States."

The report recommends that the Environmental Protection Agency (EPA) "develop a legislative proposal that addresses some of the economic and regulatory factors discouraging recycling and reuse of used electronics. In addition, we are recommending that the agency take several administrative steps to (1) increase federal agency participation in promising EPA electronics recycling programs and (2) help ensure that used electronics exported overseas are destined for reuse, as intended, and not disposed of improperly."

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