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December 23, 2005, 8:00 AM ET, Alert No. 1,279.
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House and Senate Approve Five Week Extension of Sunsetted Sections of PATRIOT Act

12/22. The House and Senate approved a bill to extend the date upon which 16 sections of the USA PATRIOT Act sunset, from December 31, 2005, to February 3, 2006. The bill is S 2167, a short untitled bill that merely extends the sunset date.

Late on December 21, the Senate approved a version of the bill with a six month extension -- until July 1, 2006. However, Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee and the floor manager of the huge conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", refused to support the six month extension.

When the House met at 4:00 PM, he offered an amendment that substituted the date "February 3, 2006" for "July 1, 2006". The House approved the amendment, and then the bill as amended, without roll call votes. (Few members of the House or Senate are still in Washington DC.)

Thursday night the Senate approved the bill with the five week extension, by unanimous consent. Sen. John Warner (R-VA) was present to conduct the formality.

Many of the Senate opponents of the conference report have argued that they need more time to debate the bill. However, the five week extension approved by the Congress will allow little opportunity for debate. First, the extension is only five weeks.

Second, most members of the House and Senate are already away from Washington for the Christmas and New Year's break. The Senate will not formally convene for the 2nd Session of the 109th Congress until January 18, 2006. See, 2006 Senate calendar. The House will not formally convene for the 2nd Session until Tuesday, January 31, 2006. See, Majority Whip's calendar.

Third, the Senate committee that would hold any hearings would be the Senate Judiciary Committee (SJC). Yet, it is committed to holding hearings on the nomination of Judge Sam Alito to be Justice of the Supreme Court beginning on Monday, January 9. Moreover, three of the leading opponents of the conference report are members of the SJC, Sen. Patrick Leahy (D-VT), Sen. Russ Feingold (D-WI), and Sen. Dick Durbin (D-IL).

Moreover, Sen. Arlen Specter (R-PA), the Chairman of the SJC, previously stated that the SJC would take up the asbestos bill after the Alito nomination. See, story titled "Sen. Specter Outlines Schedule for Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,269, December 9, 2005.

If Senate Democrats were to use time during the Alito hearings to criticize the PATRIOT Act, it would be at the cost time spent criticizing Alito.

Rep. James SensenbrennerRep. Sensenbrenner (at right) stated in a release on December 22 that "Eight days ago, a bipartisan majority of the House, including 44 Democrats, voted for the PATRIOT Act conference report. Last night, the Senate ignored the will of the bipartisan majority of the House, a majority of the PATRIOT Act House-Senate conferees, and a clear majority of Senators by failing to consider the PATRIOT Act conference report. Instead, the Senate chose to punt the issue to next year by passing a six-month extension of the PATRIOT Act that contains none of the important civil liberties safeguards carefully negotiated by House and Senate conferees and included in the PATRIOT Act conference report."

"A key reason given for agreeing to last night's Senate deal was that Senators needed more time to fully debate the conference report. Today, the House addressed this concern by passing an extension of the PATRIOT Act until February 3, 2006. I'm pleased today's House passage and the Senate's expected passage later today of this five-week extension will give the Senate enough time to fully debate and consider the conference report."

"I will take Democratic Senators at their word that they do not want the PATRIOT Act to expire, Senator Reid's boast of 'killing the PATRIOT Act,' notwithstanding. I also hope Democratic Senators will evaluate this vital national security issue on its merits, and not view it as a Washington power struggle, as evidenced by Senator Feingold's comment yesterday, 'They lost the game of chicken.' The security of the American people must not be held hostage to the partisan brinksmanship of a minority of obstructionist Senators. It is imperative that the House-passed PATRIOT Act conference report be considered and passed by the Senate in a timely manner to ensure that our Nation's law enforcement and intelligence communities are provided the tools necessary to detect and defeat terrorist threats."

Bush stated in a release early on December 22 that "I appreciate the strong commitment by the majority of the House and of the Senate to re-authorize the Patriot Act. The terrorists are determined to strike America again and inflict even greater damage than they did on September 11, 2001. The Patriot Act is essential to protecting the American people against the terrorists. The Act tore down the wall between law enforcement and intelligence officials so that they can share information and work together to help prevent attacks. The Senate Democratic leader boasted last week that the Senate Democrats had "killed the Patriot Act." Our Nation's security must be above partisan politics. The Patriot Act has helped us disrupt terrorist plots and break up cells here in the United States. I will work closely with the House and Senate to make sure that we are not without this crucial law for even a day.

Bush stated in a speech on the South Lawn of the White House at 2:25 PM, before the House approval of its version of the bill, that "It appears to me that the Congress understands we've got to keep the Patriot Act in place, that we're still under threat, there's still an enemy that wants to harm us and they understand the Patriot Act is an important tool for those of us here in the executive branch to use to protect our fellow citizens. The Senate extended the Patriot Act by six months."

Sen. Leahy stated in a release, after Congressional approval of the February 3 extension, that "It is encouraging that Senate leaders, then the President and now House leaders have eventually come to agree with us about the value of taking more time to make the PATRIOT Act better. The amount of time is less important than the good faith effort that will be needed in improving the PATRIOT Act to strike the right balance in respecting Americansí liberty and privacy, while protecting their security."

The ACLU's Caroline Fredrickson stated in a release, "Regardless of the length of the extension into next year, the most important issue is the need to reform the secret powers expanded by the Patriot Act to protect the privacy and liberty of ordinary Americans. A bipartisan majority of the Senate already agrees that the conference report that the House and the White House are pushing does not protect our most fundamental constitutional rights."

EU Seeks More Money and Disclosures from Microsoft

12/22. The European Commission (EC) issued a Statement of Objections, and releases, pertaining to its ongoing antitrust proceeding against Microsoft.

Back in March of 2004, the EC announced its decision mandating that Microsoft remove certain code from its products sold in the Europe, and that it license certain proprietary technology and intellectual property rights to its competitors. The EC also fined Microsoft 497 Euros in 2004.

See, stories titled "European Commission Seeks 497 Million Euros and Code Removal from Microsoft" in TLJ Daily E-Mail Alert No. 863, March 25, 2004, and "European Commission Releases Microsoft Decision" in TLJ Daily E-Mail Alert No. 883, April 23, 2004.

The EC's present Statement of Objections asserts that Microsoft has failed to comply with the March 2004 decision, and seeks more money and disclosures from Microsoft. See, EC release. The EC stated in another release that the fine would be "less than Ä2 million per day".

The U.S. Department of Justice's (DOJ) Antitrust Division has frequently criticized the EC's 2004 decision. At bottom, the US and the EC take vastly different approaches to the application of competition law to single firm conduct. See, for example, September 10, 2004 speech in Tokyo, Japan, by former Assistant Attorney General Hewitt Pate titled "Securing the Benefits of Global Competition". See also, stories titled "Pate Criticizes EC Decision Regarding Microsoft" in TLJ Daily E-Mail Alert No. 869, April 5, 2004; "Pate Addresses US EU Differences on Antitrust, Microsoft, and IPR" in TLJ Daily E-Mail Alert No. 913, June 8, 2004; and "Pate Addresses US Competition Law And Differences With EU" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

Also, the Antitrust Division and the Federal Trade Commission (FTC) will hold hearings on single firm conduct early next year. See, story titled "Antitrust Division and FTC to Hold Hearings on Single Firm Conduct" in TLJ Daily E-Mail Alert No. 1,262, November 30, 2005.

The EC elaborated on December 22 that the 2004 decision "found Microsoft to have infringed the EC Treaty rules on abuse of a dominant position (Article 82) by leveraging its near monopoly in the market for PC operating systems onto the markets for work group server operating systems and for media players. One of the remedies imposed by the decision was for Microsoft to disclose complete and accurate interface documentation which would allow non-Microsoft work group servers to achieve full interoperability with Windows PCs and servers. The Statement of Objections indicates that the Commissionís preliminary view, supported by two reports from the Monitoring Trustee ..., is that Microsoft has not yet provided complete and accurate specifications for this interoperability information. After giving Microsoft an opportunity to reply to the Statement of Objections, the Commission may impose a daily penalty."

Brad SmithBrad Smith (at right), SVP and General Counsel of Microsoft, stated in a release that "We believe today's Statement of Objections is unjustified. The Commission has issued this Statement regarding technical documentation we submitted last week, even though by its own admission neither it nor the Trustee have even read or reviewed these new documents."

He continued that "We revised the technical documents last week at the Commission's request, responding to new feedback raised with us only six days before. In the interest of due process, we think it would have been reasonable for the Commission and the Trustee at least to read and review these new documents before criticizing them as being insufficient."

He added that "We are fully committed to comply with the Decision. We've shipped a new version of Windows, we've paid an historic fine, and we've provided unprecedented access to Microsoft technology to promote interoperability with other industry players. In total, we have now responded to more than 100 requests from the Commission. We continue working quickly to meet the Commission's new and changing demands. Yet every time we make a change, we find that the Commission moves the goal post and demands another change."

And, he said, "Of particular concern is the Commission's latest demand that the internal workings of Windows be documented and licensed, which can open the door to the production of clones of parts of the Windows operating system. During the September 3, 2004 hearing with President Vesterdorf, the Commission clearly stated this was not within the scope of its decision. Yet the Commission confuses disclosure of the source code with disclosure of the internals and insists that it will fine the company if it fails to address this."

Publication Schedule
There will be no issue of the TLJ Daily E-Mail Alert on Monday, December 26, 2005, or Tuesday, December 27, 2005.
Washington Tech Calendar
New items are highlighted in red.
Friday, December 23

The House will not meet.

The Senate will not meet.

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.

Friday, December 30

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding a petition for rulemaking of 13 hearing impairment related entities. Their petition requests that the FCC initiate a rulemaking proceeding to mandate captioned telephone relay service and to approve internet protocol captioned telephone relay service. The FCC's Public Notice [PDF] states that "Captioned telephone service is a form of telecommunications relay service (TRS) that permits persons to simultaneously both listen to what the other party is saying and read captions of what the other party is saying on the same device. Presently the service is eligible for compensation from the Interstate TRS Fund (Fund), but is not mandatory. The petition asks the Commission to initiate a rulemaking for the purpose of making captioned telephone service a mandatory form of TRS and approving Internet Protocol (IP) captioned telephone service as eligible for compensation from the Fund." (Footnotes omitted). This notice is DA 05-2961 in CG Docket No. 03-123. See also, notice in the November 30, 2005, Vol. 70, No. 229, at Pages 71849 - 71850.

NIST Seeks Applications for EE and IT Lab Grants

12/23. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register that announces, describes, and sets the deadlines for applications in, various of its FY2006 small grants programs. The notice lists nine grant programs, including the "Electronics and Electrical Engineering Laboratory Grants Program" (EEELGP) and "Information Technology Laboratory Grants Program" (ITLGP).

EEELGP grants cover "development of fundamental electrical metrology and of metrology supporting industry and government agencies in the broad areas of semiconductors, electronic instrumentation, radio-frequency technology, optoelectronics, magnetics, video, electronic commerce as applied to electronic products and devices, the transmission and distribution of electrical power, national electrical standards (fundamental, generally quantum-based physical standards), and law enforcement standards."

EEELGP grant applications are due by 5:00 PM EST on June 30, 2006.

ITLGP grants cover "the broad areas of mathematical and computational sciences, advanced network technologies, and information access. Specific objectives of interest in these areas of research include: Quantum information theory, computational materials science, computational nanotechnology, mathematical knowledge management, visual data analysis, verification and validation of computer models, software testing, human-robot interaction, human factors in voting systems, security for the IPv6 transition from and coexistence with IPv6, and device mobility among heterogeneous networks."

ITLGP grant applications are due by 5:00 PM EST on September 30, 2006. However, the NIST adds that "Proposals received between July 1, 2006 and September 30, 2006 will be processed and considered for funding under this solicitation, but if selected, proposals may be funded in the next fiscal year, subject to the availability of funds."

See, Federal Register: December 23, 2005, Vol. 70, No. 246, at Pages 76241 - 76252.

More News

12/22. The Government Accountability Office (GAO) released a letter to Rep. Frank Wolf (R-VA) regarding "Information Technology: Responses to Subcommittee Post-hearing Questions Regarding the FBIís Management Practices and Acquisition of a New Investigative Case Management System". Rep. Wolf is Chairman of the House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies. The FBI is a unit of the Department of Justice.

12/22. The Government Accountability Office (GAO) released a report [29 pages in PDF] titled "Homeland Security: DHS Needs to Improve Ethics-Related Management Controls for the Science and Technology Directorate".

12/21. The Progress and Freedom Foundation (PFF) release a paper [9 pages in PDF] titled "Should the Patent Office be an Independent Corporation? Pros and Cons". The author is the PFF's Solveig Singleton. She concludes that "Restructuring the PTO to make it in some respects more responsive to market forces may ultimately prove to be necessary, if more incremental reforms to the patent office fail. At the present time, the patent system is working well enough in the United States that restructuring may do more harm than good. However, if the reputation of U.S. patents continues to suffer internationally, and policymakers determine that there is fire where there is smoke, the balance might well tip the other way." See also, S 507 (105th Congress), the "Omnibus Patent Act of 1997", and HR 400 (105th Congress), the "21st Century Patent System Improvement Act". Title I of both bills, as introduced, provided for the creation of the "United States Patent and Trademark Organization" as a government corporation. Like so many other proposals for reforming the patent system over the years, this proposal did not become law.

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