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December 22, 2005, 8:00 AM ET, Alert No. 1,278.
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Senate Approves Six Month Extension of Sunsetted Provisions of the PATRIOT Act

12/21. The Senate approved S 2167, a short untitled bill to amend the USA PATRIOT Act, late on Wednesday, December 21, 2005. Section 224 of the PATRIOT sunsets 16 sections of the PATRIOT Act on December 31, 2005.

The substantive language of S 2167 provides that "Section 224(a) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (18 U.S.C. 2510 note) is amended by striking `December 31, 2005´ and inserting `July 1, 2006´."

This bill, which is sponsored by Sen. John Sununu (R-NH), would extend the debate over the sunsetted provisions of the PATRIOT Act for another six months. Also, it would delay enactment of numerous amendments to the PATRIOT Act that are contained within the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005". Moreover, this would leave unenacted the various provisions of the conference report that are unrelated to the PATRIOT Act, such as the methamphetamine bill.

This delay also places the final vote at a time when Representatives, and some Senators, will be engaged in election campaigns.

Sen. Larry CraigThe bill has 31 cosponsors, only one of which is a Republican, Sen. Larry Craig (R-ID) (at right). He issued a release on December 21 in which he stated that "It was never my intention to let the Patriot Act expire. President Bush needs the tools to fight terrorism and protect Americans. However, when we permanently authorize vast powers to the government, we must do it right. When a law will be on the books for decades, spanning Presidents and generations, we can't make assumptions that everyone will act with the integrity of the Bush Administration."

The House will meet at 4:00 PM on December 22 in pro forma session.

President Bush offered this response. "I appreciate the Senate for working to keep the existing Patriot Act in law through next July, despite boasts last week by the Democratic leader that he had blocked the Act. No one should be allowed to block the Patriot Act to score political points, and I am grateful the Senate rejected that approach. The terrorists want to attack our country again and inflict even greater damage than they did on September 11, 2001. The Patriot Act is a vital tool for America in the war on terror. The Act has torn down the wall between law enforcement and intelligence officials to help us connect the dots and prevent attacks. The work of Congress on the Patriot Act is not finished. The Act will expire next summer, but the terrorist threat to America will not expire on that schedule. I look forward to continuing to work with Congress to re-authorize the Patriot Act."

Sen. Patrick Leahy (D-VT) also released a statement. He said that "This is a victory for bipartisanship, for checks and balances, and for respecting Americans' civil liberties while protecting their security. I appreciate the willingness of the Republican leadership to listen at last to a bipartisan majority that has acted in good faith and in what we feel are the best interests of the nation. This is a reasonable step that will allow the Judiciary Committee time to examine better ways to strike the right balance."

Earlier in the day on Wednesday, December 21, Bush administration officials continued their efforts to influence opponents in the Senate by making public statements in support of the conference report.

President Bush gave a speech on the South Lawn of the White House. He said, "In order to protect America, the United States Senate must reauthorize the Patriot Act. The terrorists still want to hit us again. There is an enemy that lurks, a dangerous group of people that want to do harm to the American people -- and we must have the tools necessary to protect the American people."

"It has been an effective tool; it has worked." Bush continued that "And the same as we protected the American people using the Patriot Act, we've also protected their civil liberties. There is extensive oversight on this very important program. The Patriot Act tore down the wall between law enforcement and intelligence communities, which makes it easier to connect the dots before an attack. The Patriot Act also gave law enforcement tools to investigate terrorism that they have already got to investigate other types of crimes."

Bush said that "The Senate is still debating this issue. A majority of the United States Senate supports reauthorization; a minority of senators is filibustering and preventing the Senate from voting to renew the Patriot Act. The Senate Democratic Leader recently boasted about killing the Patriot Act. This obstruction is inexcusable. The senators obstructing the Patriot Act need to understand that the expiration of this vital law will endanger America and will leave us in a weaker position in the fight against brutal killers."

Attorney General Alberto Gonzales and Secretary of Homeland Security Michael Chertoff also held a news conference on the morning of December 21. See, transcript.

Gonzales said that "For the past four years, the tools of the Patriot Act have been extremely viable in allowing us to deter and prevent attacks, to prosecute terrorism, and to prosecute other kinds of crimes. In ten days 16 of the provisions of the Patriot Act are scheduled to expire. That would be bad for this country. It would have serious operational consequences for the Department of Justice, including the Federal Bureau of Investigation. Generally if we were to lose these tools, it would mean that certain authorities could no longer be used beginning January 1."

He asserted that "This is not a choice between civil liberties and the Patriot Act. The Patriot Act includes many protections for liberties, and that's why the Department of Justice has been outstanding these past four years. The conference bill includes 30 additional safeguards of civil liberties. If you look at what some people consider the most controversial provisions, section 215, business records provision, and national security letters, under the conference bill it is now clear that you can consult an attorney when you receive one of these orders, or letters. It is now clear that you can challenge these in court."

Michael ChertofChertoff (at left) said that "Many of the tools which we are talking about using in the patriot act against terrorists are tools that have been used for years in the decades against drug dealers, or people involved in white collar crime. And they've been used effectively and they've been used without there being a significant impact on civil liberties."

"The question I ask myself when I hear people criticize roving wiretaps, for example, is, why is this something that we use successfully and prudently in the area of dealing with marijuana importers, but yet a tool that people want to deny us in the war against people who want to import chemical weapons or explosives."

Chertoff continued that "Why is it, for example, that delayed notification search warrants, which again, we use in all kinds of garden variety criminal cases, with the supervision of a judge, why should that tool be denied to our investigators when they're seeking to go into a house with a search warrant to see if there are explosives there, or other kinds of weapons that can be used against Americans."

The House approved the conference report on December 14, 2005, by a vote of 251-174. See, story "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, December 15, 2005.

The Senate rejected a motion to invoke cloture on the conference report, by a vote of 52-47, on Friday, December 16, 2005. See, story titled "Cloture Motion on PATRIOT Act Extension Bill Defeated in Senate" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005.

See also, story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act", and story titled "Reaction to NSA Intercepts", both in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

USPTO Seeks Comments on Subject Matter Eligible for Patents

12/21. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register requesting comments regarding revisions to the guidelines used by USPTO personnel in their review of patent applications to determine whether the claims in a patent application are directed to patent eligible subject matter.

The USPTO seeks comments on, among other topics, "claims that perform data transformation" and "claims directed to a signal per se". With respect to the later, the USPTO asks "If claims directed to a signal per se are determined to be statutory subject matter, what is the potential impact on internet service providers, satellites, wireless fidelity (WiFi [reg]), and other carriers of signals?"

The deadline to submit comments is June 30, 2006. See, Federal Register, December 20, 2005, Vol. 70, No. 243, at Pages 75451 - 75452.

The notice states that the USPTO seeks comments on several specific topics.

For example, it seeks comments on claims that perform data transformation. It states that "While the Patent Subject Matter Eligibility Interim Guidelines explain that physical transformation of an article or physical object to a different state or thing to another establishes that a claimed invention is eligible for patent protection, Annex III to the Patent Subject Matter Eligibility Interim Guidelines explains that identifying that a claim transforms data from one value to another is not by itself sufficient for establishing that the claim is eligible for patent protection. Therefore, claims that perform data transformation must still be examined for whether there is a practical application of an abstract idea that produces a useful, concrete, and tangible result."

The USPTO asks, "Is the distinction between physical transformation and data transformation appropriate in the context of the Patent Subject Matter Eligibility Interim Guidelines? If not, please explain why and provide support for an alternative analysis."

The USPTO notice also seeks comments on the 1998 opinion of the U.S. Court of Appeals (FedCir) in State Street Bank & Trust v. Signature Financial Group, which is reported at 149 F.3d 1368.

It asks, "Is the USPTO interpretation of" in State Street "as holding that if there is no physical transformation, a claimed invention must necessarily, either expressly or inherently, produce a useful, concrete, and tangible result (rather than just be ``capable of´´ producing such a result) either too broad or too narrow? If so, please suggest an alternative interpretation and reasons therefor." (Parentheses in original.)

The USPTO notice also seeks comments on claims to signals per se. It states that "Annex IV to the Patent Subject Matter Eligibility Interim Guidelines explains why the USPTO considers claims to signals per se, whether functional descriptive material or non-functional descriptive material, to be nonstatutory subject matter."

It then asks, "Does the USPTO analysis represent a reasonable extrapolation of relevant case law? If not, please explain why and provide support for an alternative analysis. If claims directed to a signal per se are determined to be statutory subject matter, what is the potential impact on internet service providers, satellites, wireless fidelity (WiFi [reg]), and other carriers of signals?" (Parentheses and brackets in original.)

Also, the USPTO notice raises the subject of Laboratory Corp. of America v. Metabolite Laboratories. See, June 8, 2004 opinion [PDF] of the Court of Appeals (FedCir), and August 26, 2005, amicus curiae brief of the Office of the Solicitor General (OSG) opposing the petition for writ of certiorari. The Supreme Court granted certiorari on October 31, 2005. See, story titled "Supreme Court Grants Certiorari in LabCorp v. Metabolite" in TLJ Daily E-Mail Alert No. 1,244, November 1, 2004.

The notice states that "The USPTO also notes that the U.S. Supreme Court has granted certiorari ... The USPTO expects that a decision in LabCorp will be rendered sometime before the end of June 2006. Since the Court's decision in LabCorp may impact the broader question of patent subject matter eligibility under 35 U.S.C. 101, the USPTO is extending the period for public comment on the USPTO's Patent Subject Matter Eligibility Interim Guidelines until June 30, 2006."

It adds that "The USPTO will publish a notice further extending the period for public comment on the USPTO's Patent Subject Matter Eligibility Interim Guidelines if necessary to permit the comments to take into account the Court's decision in LabCorp."

Copps and Tate Confirmed

12/21. The Senate confirmed Michael Copps and Deborah Tate to be Commissioners of the Federal Communications Commission (FCC). There remains one Republican vacancy on the FCC. See also, story titled "Senate Commerce Committee Holds Hearing on Nominations of Tate and Copps" in TLJ Daily E-Mail Alert No. 1,272, December 14, 2005.

Washington Tech Calendar
New items are highlighted in red.
Thursday, December 22

The House will meet at 4:00 PM in pro forma session.

The Senate may at 8:00 PM.

Friday, December 23

Informal deadline to submit comments to Rep. Lee Terry (R-NE) and/or Rep. Rick Boucher (D-VA) regarding their discussion draft [31 pages in PDF] of a bill to be titled the "Universal Service Reform Act of 2005". See, story titled "Reps. Terry and Boucher Propose New Internet Taxes" in TLJ Daily E-Mail Alert No. 1,257, November 21, 2005.

Sunday, December 25


Hanukkah begins at sundown.

Monday, December 26

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays.

There will be no issue of the TLJ Daily E-Mail Alert.

Tuesday, December 27

There will be no issue of the TLJ Daily E-Mail Alert.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether its roaming requirements for commercial mobile radio service (CMRS) providers should be modified, expanded, or eliminated. This NPRM is FCC 05-160 in WT Docket Nos. 05-265 and 00-193. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Pages 56612 - 56620.

Deadline for Broadband Radio Service (BRS) licensees in the 2150-2160/62 MHz band to file with the Federal Communications Commission (FCC) site and technical data. See, FCC Public Notice dated November 30, 2005, and numbered DA 05-3126. See also, notice in the Federal Register, December 14, 2005, Vol. 70, No. 239, at Pages 74011 - 74014.

Thursday, December 29

Deadline to submit comments to the National Archives and Records Administration (NARA) regarding its draft NARA guidance for implementing Section 207(e) of the E-Government Act of 2002, which is now Public Law 107-347. This statute requires the NARA to adopt "policies and procedures" that provide that federal archive statutory requirements "are applied effectively and comprehensively to Government information on the Internet and to other electronic records". See, notice in the Federal Register, November 14, 2005, Vol. 70, No. 218, at Pages 69165 - 69168.

FCC Report to Congress on More Spectrum for ERPs Suggests Use of Commercial Services

12/21. The Federal Communications Commission (FCC) released a report [72 pages in PDF] titled "Report to Congress on the Study to Assess Short-Term and Long-Term Needs for Allocations of Additional Spectrum Portions of the Electromagnetic Spectrum Spectrum for Federal, State and Local Emergency Response Providers". The report not only assesses the need for reallocation of spectrum; it also concludes that "there may now be a place for commercial providers to assist public safety".

Section 7502 of the Intelligence Reform and Terrorism Prevention Act of 2004 required that this report be written. This huge bill was S 2845 in the 108th Congress. It is now Public Law No. 108-458, and is codified at 6 U.S.C. § 413.

Section 7502 requires the FCC, in consultation with the Department of Homeland Security (DHS) and the National Telecommunications and Information Administration (NTIA), to "conduct a study to assess short-term and long-term needs for allocations of additional portions of the electromagnetic spectrum for Federal, State, and local emergency response providers, including whether or not an additional allocation of spectrum in the 700 megahertz band should be granted by Congress to such emergency response providers."

It also requires the DHS, in consultation with the FCC and NTIA, to "conduct a study to assess strategies that may be used to meet public safety telecommunications needs, including (1) the need and efficacy of deploying nationwide interoperable communications networks (including the potential technical and operational standards and protocols for nationwide interoperable broadband mobile communications networks that may be used by Federal, State, regional, and local governmental and nongovernmental public safety, homeland security, and other emergency response personnel); (2) the capacity of public safety entities to utilize wireless broadband applications; and (3) the communications capabilities of all emergency response providers, including hospitals and health care workers, and current efforts to promote communications coordination and training among emergency response providers."

The just released report addresses the short-term and long-term needs needs of government emergency response providers for more spectrum, the need for a nationwide interoperable broadband mobile communications network, and the use of commercial wireless technologies for public safety communications.

That is, this report goes beyond the requirements set for the FCC by Section 7502 of the intelligence reform bill. However, that bill was written before hurricanes Katrina and Rita.

The report concludes, "with respect to the short-term and long-term needs for allocations of additional portions of spectrum for federal, state and local emergency response providers, the Commission has undertaken a series of initiatives to free up additional public safety spectrum in the short term, and continues to evaluate public safety’s spectrum needs in the long-term. To this end, and at the urging of public safety, the Commission will expeditiously examine and analyze whether certain channels within the current allocation of twenty-four megahertz of public safety spectrum in the 700 MHz band could be modified to accommodate broadband communications."

The report also concludes that "as to the operation and administration of a potential nationwide interoperable broadband mobile communications network based upon input from federal, state, local and regional emergency response providers, emergency response providers would benefit from the development of an integrated, interoperable nationwide network capable of delivering broadband services throughout the country."

And, the report concludes, "as to the use of commercial wireless technologies, while commercial wireless technologies and services are not appropriate for every type of public safety communication, there may now be a place for commercial providers to assist public safety in securing and protecting the homeland."

In addition, the report states that "public safety entities generally oppose reliance upon commercial services", while commercial entities tend to support the idea.

The report goes on to discuss some of the advantages of using commercial services. For example, it states that "smart radios are capable of operating on multiple frequencies in multiple formats so that different systems can connect with each other. IP-based systems are capable of enabling communications between diverse radio systems and frequencies without requiring the replacement of existing radios. These systems interconnect emergency personnel and other resources across existing radio networks and other communications networks, and thus can achieve immediate interoperability of existing push-to-talk radio systems operating in separate spectrum bands as well as commercial voice and broadband systems."

In addition, "Wi-Fi and Wi-Max technologies permit emergency response providers to communicate information between offices and the field, which is especially helpful in non-mission critical situations. Other commercial wireless services, including Wireless Priority Service (WPS), as well as cellular technologies that enable easy one-to-one and one-to-many half-duplex communications (e.g., ``Push-to-Talk´´) also may further the ability of emergency response providers to effectively communicate with each other."

The report also states that "the incorporation of commercial satellite services into either a private public safety or commercial interoperable network that also includes terrestrial wireless systems would help to ensure that effective communication services are available to emergency response providers."

More News

12/21. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, and sets comment deadlines for, its Notice of Proposed Rulemaking (NPRM) [24 pages in PDF] regarding amendments to its unsolicited facsimile advertising rules and the established business relationship (EBR) exception to the rules. The FCC adopted and released this NPRM on December 9, 2005. It is FCC 05-206 in CG Docket No. 02-278. See, Federal Register, December 19, 2005, Vol. 70, No. 242, at Pages 75102 - 75110. Initial comments are due by January 18, 2006. Reply comments are due by February 2, 2006.

12/14. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, and sets comment deadlines for, its Notice of Proposed Rulemaking (NPRM) [26 pages in PDF] regarding Section 621(a)(1)'s directive that local franchising authorities (LFAs) not unreasonably refuse to award competitive franchises. The FCC adopted this NPRM on November 3, 2005, and released it on November 18, 2005. It is FCC 05-189 in MB Docket No. 05-311. See, Federal Register, December 14, 2005, Vol. 70, No. 239, at Pages 73973 - 73980. See also, story titled "FCC Adopts NPRM Regarding Local Franchising of Video Services" in TLJ Daily E-Mail Alert No. 1,247, November 4, 2005. Initial comments are due by February 13, 2006. Reply comments are due by March 14, 2006. (Section 621 of the Communications Act of 1934, as amended by the Cable Television Consumer Protection and Competition Act of 1992, is codified at 47 U.S.C. § 541.)

12/22. The Department of Agriculture's Rural Utilities Service (RUS) published a notice in the Federal Register that lists the recipients of grant awards in FY 2005 under the Distance Learning and Telemedicine Grant Program. See, Federal Register, December 22, 2005, Vol. 70, No. 245, at Page 76021 - 76022.

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