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August 7, 2006, Alert No. 1,426.
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House Approves DOPA

7/26. The House approved HR 5319, the "Deleting Online Predators Act of 2006", a bill to require schools and libraries receiving e-rate subsidies to block access to social networking web sites and chat rooms.

Rep. Michael Fitzpatrick (R-PA) introduced this bill on May 9, 2006. The House Commerce Committee (HCC) held a hearing on this bill on July 11. However, there was no subcommittee or full committee mark up of the bill. The full House approved it on July 26, 2006, under suspension of the rules, by a vote of 410-15. See, Roll Call No. 405.

The Senate has yet to take any action on this bill.

Summary of HR 5319. This bill builds on the Children's Internet Protection Act (CIPA), which amended 47 U.S.C. § 254, the universal service section of the Communications Act. The Federal Communications Commission's (FCC) e-rate program, which taxes communications to subsidize telephone service, internet access, and internal wiring at schools and libraries, is based loosely on Section 254(h).

The CIPA, which is codified at Section 254(h)(5), added the requirement that schools receiving e-rate subsidies must, among other things, certify to the FCC that they are "enforcing a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are (I) obscene; (II) child pornography; or (III) harmful to minors", and that they are "enforcing the operation of such technology protection measure during any use of such computers by minors".

The bill would amend 47 U.S.C. § 254(h)(5)(B) to add the requirement that schools also certify that they are enforcing a policy that "protects against access to a commercial social networking website or chat room unless used for an educational purpose with adult supervision".

It would add the requirement that libraries also certify that they are enforcing a policy that "protects against access by minors without parental authorization to a commercial social networking website or chat room, and informs parents that sexual predators can use these websites and chat rooms to prey on children".

The bill then requires the FCC to conduct a rule making proceeding to define the terms "social networking website" and "chat room". It provides that the FCC shall consider whether the site:

  "(i) is offered by a commercial entity;
   (ii) permits registered users to create an on-line profile that includes detailed personal information;
   (iii) permits registered users to create an on-line journal and share such a journal with other users;
   (iv) elicits highly-personalized information from users; and
   (v) enables communication among users."

The bill would only affect schools and libraries currently receiving subsidies via the FCC e-rate program. School or libraries not receiving subsidies, or not receiving subsidies currently, would not be affected. Accessing of social networking sites from outside of subsidized schools and libraries would not be affected.

The bill does not regulate social networking sites. Nor does the bill regulate internet service providers.

While the DOPA builds on the CIPA, it is broader is several respects.

The CIPA is limited to "visual depictions", while the DOPA is not. It affects graphics, text, and other media.

The CIPA limits access only to content that is either obscene, child pornography (CP), or harmful to minors. The DOPA limits access to any content in the nature of a social networking web site or chat room, regardless of whether any content is obscene, CP, or harmful to minors.

The CIPA does not regulate speech or speakers. It only regulates certain access to that speech. That is, it limits listeners. The DOPA regulates both listeners and speakers. That is, certain students and library users are prevented from expressing themselves on social networking web sites and chat rooms.

House Debate and Vote. Rep. Fred Upton (R-MI), the Chairman of the HCC's Subcommittee on Telecommunications and the Internet, spoke in support of the bill. He said that "the bill before us today would require schools which receive e-rate funding, and I would note that I am a strong supporter of e-rate funding, to enforce a policy of Internet safety for minors that includes monitoring their online activities and the protection measures to protect against access to commercial social networking Web sites or chat rooms, unless used for an educational purpose with adult supervision."

Rep. Upton continued that "this bill would require libraries which receive e-rate funding to enforce a policy of Internet safety that includes the operation of a technology protection measure that protects against access by minors to commercial social networking Web sites or chat rooms unless they have parental authorization and the library informs parents that sexual predators can use those Web sites and chat rooms to prey on kids."

He added that "The approach taken by this legislation is not dissimilar to the approach taken by the Children's Internet Protection Act through which Congress requires schools and libraries that receive e-rate funding to impose filtering technology to protect kids from online visual depictions of an inappropriate sexual nature."

Rep. Ed MarkeyRep. Ed Markey (D-MA) (at left) stated that "This is an issue upon which Democrats and Republicans agree".

However, he continued that the House Republicans "decided to skip a subcommittee and a full committee markup. They opted to rewrite this bill without public input or consultation with the Democratic side, and they decided to rush it to the floor today. Not surprisingly, the bill continues to have several flaws. It remains overbroad and ambiguous. I continue to have reservations about utilizing the e-rate funding mechanism as the legislative hook for Federal involvement in this area. That is because the e-rate program was not designed to be a cop on the beat in the front lines battling child predators. Rather, it was designed to enhance Internet access and bridge the digital divide."

He also pointed out that "if the goal is protecting children and combating child exploitation, why should these requirements only apply in schools receiving e-rate funding? And this bill does nothing for families when the kids online are at home. If the goal is to address the issue of online predators, this bill proposes an ineffectual remedy."

Rep. Bart Stupak (D-MI) stated that "child predators are not the target of today's bill. This bill will not delete online predators. Rather, it will delete legitimate Web content from schools and libraries. Schools and libraries that serve students are the target of this legislation."

Rep. Bart StupakRep. Stupak (at right) continued that "The bill is an attempt to protect children in schools and libraries from online predators. It is important to note that during the six oversight hearings we had, hearing from 38 witnesses on the issue, there was not one mention of online child exploitation being a problem at schools or libraries. Perhaps this is because there is already a law on the books that requires schools and libraries who receive e-rate funding to monitor children's Internet use and to employ technology blocking children or preventing children from viewing obscene and harmful content. Many schools and libraries already block Web sites such as MySpace. This legislation is largely redundant and raises many constitutional concerns."

He added that "This legislation will actually drive children to go to unsupervised places, unsupervised sites to go online, where they will become more vulnerable to child predators."

However, Rep. Stupak voted for the bill.

Rep. Jay Inslee (D-WA) stated that this bill is "a good press release, but it is not effective legislation".

He argued that had this bill already been law it would not have saved a single child. He elaborated that very few abused children are online, and of the few who are, it is home access, rather than school access that leads to abuse.

He argued that, instead of the language in this bill, the Congress should do three things. "Number one, we have to give resources to law enforcement to prosecute these horrendous monsters. We had detective after detective come to our hearings and say, give us some money; we can prosecute these people. This doesn't give them a penny."

"Number two, we need to protect the data. What the detectives told us is that this data, once it disappears, they can't find the culprits. Now we could require the data to be maintained for a year or two, like we are trying to do. This bill doesn't do that." That is, he argues for a data retention mandate.

"Third, what this bill could do is provide some real meaningful tools for our schools to educate our children on how to avoid these monsters on the Internet. This doesn't do that", said Rep. Inslee.

But, he too voted for the bill.

Rep. John Dingell (D-MI) stated that "So here we are passing legislation, I suspect, to help some of my panicky Republican colleagues save themselves in a difficult election". He added that "It is, in a nutshell, Mr. Speaker, going to be as useful as side pockets on a cow in addressing the problem about which we are all deeply concerned".

But, he too voted for the bill.

Rep. Ron Paul (R-TX) voted for this bill.

There were only 15 votes against this bill. All were cast by Democrats. Rep. Zoe Lofgren (D-CA) and Rep. Mike Honda (D-CA), who represent Silicon Valley, both voted against the bill.

House Commerce Committee Hearing on HR 5319. In addition, the HCC held a hearing on this bill on July 11, 2006.

Greg Abbott, the Attorney General of Texas, wrote in his prepared testimony [PDF] that "The dangers to children created by social networking websites and chat rooms are very real." He said that "many of the sites also subject children to a world of predators, pedophiles and pornographers."

Greg AbbottAbbott (at right) said that "the great weight of the problem must be shouldered by the very creators and hosts of these networking sites and chat rooms that provide the previously non-existent opportunity for child predators. Social networking sites and chat rooms have created an environment in which predators target their next victim and plot their next attack. Predators use these web locations as a starting point for raping a child! The creators and hosts of these networking sites are not the predators who commit the crime, but they create the opportunity for the criminal to carry out his crime. ... The sites should be structured so that such material is not accessible without age verification."

Abbott also said that "I wish the solution to the growing problem was as easy as hitting a delete button. Unfortunately, it is much more complex."

Beth Yoke of the American Library Association (ALA) wrote in her prepared testimony [9 pages in PDF] that the ALA has three concerns with the bill: "1) that the broad scope of this legislation will limit access to essential Interactive Web applications; 2) that the legislation would widen the digital divide by limiting access for people who use library and school computers as their primary conduits to the Internet; and 3) that education and parental involvement are and have always been the best tools to keep kids safe online and to ensure that they can make the right decisions."

Chris Kelly of Facebook, a social networking web site, wrote in his prepared testimony [5 pages in PDF] that "any Congressional action should encourage the deployment of technology to protect children and be very conscious of avoiding discouragement of the pro-social aspects of online sites."

See also, prepared testimony [5 pages in PDF] of Amanda Lenhart (Pew Internet and American Life Project), prepared testimony [5 pages in PDF] of Ted Davis (Fairfax County Public Schools), prepared testimony [65 pages in PDF] of Parry Aftab (, and prepared testimony [PDF] of David Zellis (Office of the Bucks County District Attorney).

Senate Appropriations Committee Approves Website Labeling Mandate

7/13. The Senate Appropriations Committee (SCC) amended and approved HR 5672, the appropriations bill for science, the Departments of State, Justice, and Commerce, and related agencies, for the fiscal year ending September 30, 2007.

The SCC added an amendment that criminalizes the operation of a web site that contains "sexually explicit material" (SEM) without warning labels. The Federal Trade Commission (FTC) would write rules for these warning labels; one purpose would be to facilitate web site filtering. The amendment defines SEM as "material that depicts sexually explicit conduct" (SEC).

This amendment also criminalizes the embedding of "words, symbols, or digital images into the source code of a website with the intent to deceive another person into viewing material that is obscene".

The mandatory labeling amendment provides that "It is unlawful for the operator of a website that is primarily operated for commercial purposes knowingly, and with knowledge of the character of the material, to place sexually explicit material on the website unless -- (i) the first page of the website viewable on the Internet does not include any sexually explicit material; and (ii) each page or screen of the website that does contain sexually explicit material also displays the matter prescribed" by the Federal Trade Commission (FTC).

The amendment then requires the FTC to "promulgate regulations establishing clearly identifiable marks or notices to be included in the code, if technologically feasible, or on the pages or screens of a website that contains sexually explicit material to inform any person who accesses that website of the nature of the material and to facilitate the filtering of such pages or screens."

However, this prohibition does not "apply to any website access to which is restricted to a specific set of individuals through a password or other access restriction mechanism".

The amendment also exempts any person or entity that is "a telecommunications carrier", "engaged in the business of providing an Internet access service", or "engaged in the transmission, storage, retrieval, hosting, formatting, or translation of a communication made by another person, without selection or alteration of the content (other than by translation or by lawful selection or deletion of matter)". (Parentheses in original.)

The amendment provides that "sexually explicit material" is "material that depicts sexually explicit conduct (as defined in section 2256(2)(A) of section 2256 of title 18, United States Code), unless that depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters."

18 U.S.C. § 2256(2)(A) provides that "Except as provided in subparagraph (B), ``sexually explicit conduct´´ means actual or simulated ..." It goes on to enumerate certain activities, which if quoted here, would cause some e-mail filters to block delivery of this issue of the TLJ Daily E-Mail Alert.

The reference to "subparagraph (B)" is significant. § 2256(2)(B) provides a slightly different definition of SEC for the context of child pornography (CP). For the purposes of CP, SEC also must also be "graphic". § 2256(10) then clarifies that a component of "graphic" is visual observation. That is, by using a definition that clarifies that SEC must be visual for the purpose of CP, but not for other purposes, this amendment provides that SEM, for the purposes of the mandatory labeling requirement, includes not only visual media, but also non-visual media, such as text and audio.

In other words, not only pictures and video, but also discussion of sexually explicit conduct in the text of a web site subjects the operator of that web site to the mandatory labeling requirements of this amendment.

Finally, the amendment provides that violation of this mandate is punishable by fine, or "imprisonment for not more than 5 years, or both".

The Senate Commerce Committee (SCC) approved an amendment toTitle VIII of HR 5252, the huge communications reform bill, on June 28, 2006, that contains a similar mandate. There are also several stand alone bills with a similar mandate.

Europe Announces Public Consultation on Regulation of Children's Use of Mobile Phones

7/25. The European Commission (EC) announced a public consultation regarding possible regulation of "the use of mobile phones by children and young people". See, EC release.

Viviane RedingViviane Reding (at right), the EC's Commissioner for Information Society and Media, stated that "protection of minors in mobile communications is the responsibility of all actors: industry, child safety associations and public bodies. The more efficient self-regulation can become, the less the need for State intervention."

The EC stated that "The consultation aims to gather factual information and views from different stakeholders on the types of risks faced by children in their use of mobile content services, the technical and regulatory solutions that exist and the scope for further action, in particular at European level."

The EC seeks comments "linked to content and behaviour, such as access to harmful or illegal content, bullying (e.g. distribution of abusive or compromising messages and photos amongst children), grooming (e.g. strangers ``making friends´´ with children with a view to meeting them), risks to the privacy of children, and the risk of unexpectedly high expense." (Parentheses in original.)

The deadline to submit comments is October 16, 2006.

Sen. Bond Introduces Crime Bill That Would Affect Unauthorized Disclosures of Certain Surveillance Programs

8/2. Sen. Kit Bond (R-MO) and eleven other Republican Senators introduced S 3774, an untitled bill that would amend Title 18 to prohibit the unauthorized disclosure of classified information.

It provides, in part, that "Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information to a person (other than an officer or employee of the United States with authorized access to classified information) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than 3 years, or both." (Parentheses in original.)

Sen. Bond stated in the Senate that "Over the past year, there has arisen an apparent absence of fear of punishment in regard to arbitrary divulging of classified information. These are individuals who took solemn vows to protect our Nation. In taking a vow to protect classified information, one should acknowledge that being privy to it establishes a solemn trust."

Sen. Bond did not identify any leaks with specificity. However, he made vague reference to the disclosures of the National Security Agency (NSA) programs involving electronic surveillance and databasing of telephone call records.

He added that "Time and time again, we have witnessed leaks that told our enemies not only that we were watching them and listening to them but how and whom we are cooperating with and how we are getting the information."

He noted that this bill "only affects Government employees and contractors who have signed a nondisclosure agreement. It doesn't affect the media, businesses, or private citizens."

This bill was referred to the Senate Judiciary Committee (SJC). Sen. Orrin Hatch (R-UT), Sen. Jon Cornyn (R-TX), and Sen. Saxby Chambliss (R-GA), who are members of the SJC, are cosponsors.

CDT Argues That Social Networking and Web Site Labeling Bills Threaten Free Speech

8/3. The Center for Democracy & Technology (CDT) held a news briefing on the Senate Appropriations Committee's (SCC) web site labeling mandate in HR 5672 (an appropriations bill), HR 5319, the "Deleting Online Predators Act of 2006", and other topics.

It argued that these bills threaten freedom of speech online. The speakers were Leslie Harris and John Morris of the CDT.

Harris said that "we have enjoyed about ten good years since the Supreme Court struck down the Communications Decency Act" in 1996 in a 9-0 opinion. However, "we see a growing threat to online free speech".

Harris and Morris stated that in addition to the two pending Congressional bills, there is the long running litigation over the Constitutionality of the COPA,  the "Child Online Protection Act". They noted that the Supreme Court's most recent opinion was merely a 5-4 opinion, and two new Justices have been appointed since.

They also stated that there are threats to online speech in various pending state legislative proposals. They named Utah House Bill 260.

They also stated that the convergence of media now places threats on online free speech. They argued that as media converge, the different standards that govern different media platforms will collide. Harris argued that broadcast should end up eventually under the internet free speech standard. And, the CDT may get involved in broadcast indecency matters. The CDT does not want to see the internet end up under the FCC's current broadcast indecency standard.

Harris added that "this is the silly season", when legislators push bills for the purpose of election campaigning.

Mandatory Web Site Labeling. Morris argued that the mandatory labeling bill is both bad policy and unconstitutional. He said that the definition of sexually explicit material is extraordinarily broad, and would affect some PG-13 movies and textual material. He said that it also constitutes compelled speech.

He also argued that this is "a fairly clunky and overbroad" government mandate that will "interfere with voluntary labeling schemes that are already underway".

He argued that the Motion Picture Association of America's (MPAA) rating of movies is voluntary, and that if the government were to mandate such a scheme, it would probably be held unconstitutional.

Harris also argued that the government is making inconsistent arguments. The mandatory labeling bill is based on the assumption that the warning labels will enable filters to block access to content. It rests upon the assumption that filtering works. However, in the COPA litigation, the DOJ is arguing that the requirements contained in the COPA are necessary because filtering does not work.

See also, CDT letter [3 pages in PDF] to the Senate Commerce Committee regarding mandatory labeling, and letter [3 pages in PDF] to Senate Appropriations Committee regarding mandatory labeling.

DOPA. Morris and Harris argued that the DOPA is also unconstitutional. They said that while it has some similarities to the Children's Internet Protection Act (CIPA), which has been upheld, it has several Constitutionally significant differences.

For example, the CIPA only regulates access to speech that is appropriate to block -- obscenity, CP, and material that is harmful to minors. In contrast, most of what is on social networking sites and in chat rooms is legal.

Also, the CIPA does not regulate speakers. It only blocks certain person's access to certain speech. In contrast, the DOPA not only blocks access to speech, but also regulates speakers. Students in school, and library users, will be prevented from engaging in speech.

They also argued that the bill is bad policy because it would exacerbate the digital divide. That is, rich kids with broadband access at home would not be affected in their home use of social networking sites, while students whose only access is at school or in libraries would not be able to participate in any social networking sites or chat rooms.

Other groups have also recently expressed views on HR 5319. For example, William Archey, head of the American Electronics Association (AeA), sent a letter on August 2, 2006, to Sen. Bill Frist (R-TN) and others regarding HR 5319, the DOPA.

He wrote that the "AeA is concerned that H.R. 5319 takes the wrong approach to safeguarding the Internet for our children by restricting minors’ use of certain Web sites in libraries and schools that receive e-rate funds. The bill would ultimately cause the blocking of any 'social networking' or 'chat' sites, whether they contained inappropriate material or not. These same technologies that are being targeted are changing and influencing the Web in new and exciting and perfectly legitimate ways. AeA believes that a more productive way to address this issue would be to further educate consumers on how to use these beneficial sites in a safe and appropriate way.  Just as parents teach their kids how to stay safe in public parks, the same approach should be taken within the online environment."

The American Library Association (ALA) wrote a letter to House members on July 26, 2006, regarding HR 5319, the DOPA.

It wrote that the "DOPA would restrict access to technology in the communities that need public access most. H.R. 5319 still, as presently drafted, would require libraries and schools receiving E-rate discounts through the Universal Service Program to block computer users from accessing Interactive Web applications of all kinds, thereby limiting opportunities for those who do not have Internet access at home. This unfairly denies the students and library users in schools and libraries in the poorest communities from accessing appropriate content and from learning how best to safely manage their own Internet access in consultation with librarians and teachers." This letter is also in the Congressional Record, July 26, 2006, at Pages H5885-6. See also, ALA release.

Also, Adam Thierer of the Progress and Freedom Foundation (PFF) has written in opposition to HR 5319, the DOPA. See, May piece and June piece.

Washington Tech Calendar
New items are highlighted in red.
Monday, August 7

The House will next meet at 2:00 PM on Wednesday, September 6. See, Republican Whip Notice.

The Senate will next meet at 11:00 AM on Tuesday, September 5.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in, Inc. v. Furnace Brook, LLC, a patent case involving personal jurisdiction. Furnace Brook bought a patent at a bankruptcy auction. It did not practice it. It sent cease and desist letters to other companies, alleging infringement, and seeking licensing fees. One recipient,, filed a complaint in U.S. District Court (DUtah) seeking a declaration that it did not infringe the patent. The Federal Circuit has held that sending a cease and desist letter into a state does not give rise to personal jurisdiction over the sender in that state. The District Court dismissed for lack of personal jurisdiction. However, the District Court also held that Furnace Brook is a "patent troll". See, opinion [PDF]. This is App. Ct. No. 2006-1121, and D.C. No. 2:05-CV-00679 PGC. Location: Courtroom 201, 717 Madison Place, NW.

2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a discussion of the book titled " Spoiling for a Fight: The Rise of Eliot Spitzer" [Amazon]. The speakers will be Brooke Masters (author), Michael Greve (AEI), and Judge William Pryor (U.S. Court of Appeals for the 11th Circuit). See, notice. Location: 12th floor, 1150 17th St., NW.

The Federal Communications Commission (FCC) will conduct a mock auction for Auction 66. This is the auction of Advance Wireless Services (AWS) licenses in the 1710-1755 MHz and 2110-2155 MHz (AWS-1) bands. See also, notice in the Federal Register, June 2, 2006, Vol. 71, No. 106, at Pages 32089-32091.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its Draft Special Publication 800-100 [huge Zipped PDF] titled "Information Security Handbook: A Guide for Managers".

Tuesday, August 8

10:00 AM. Federal Communications Commission (FCC) Commissioner Robert McDowell will host an event titled "briefing for members of the media". RSVP to Clyde Ensslin at clyde dot ensslin at fcc dot gov or 202-418-0506. Location: Conference Room 5, 8th Floor, FCC Headquarters, 445 12th St., SW.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "End of Summer Happy Hour". For more information, contact Chris Fedeli at cfedeli at crblaw dot com or 202-828-9874, or Micah Caldwell at mcaldwell at fw-law dot com or 202-939-7901. Location: Capitol City Brewing Company -- Capitol Hill, 2 Massachusetts Ave. NE.

Deadline to submit to the Internal Revenue Service (IRS) outlines of topics to be discussed at the IRS's public hearing on August 29, 2006, regarding its notice of proposed rule making pertaining to the application of 26 U.S.C. § 199, which provides a deduction for income attributable to domestic production activities, to certain transactions involving computer software. See, notice in the Federal Register, June 1, 2006, Vol. 71, No. 105, at Pages 31128-31129.

Wednesday, August 9

The Federal Communications Commission (FCC) will commence Auction 66. This is the auction of Advance Wireless Services (AWS) licenses in the 1710-1755 MHz and 2110-2155 MHz (AWS-1) bands. See also, notice in the Federal Register, June 2, 2006, Vol. 71, No. 106, at Pages 32089-32091.

Day one of a three day continuing legal education (CLE) seminar hosted by the American Intellectual Property Law Association (AIPLA) titled "Practical Patent Prosecution for New Lawyers". See, notice [PDF]. For more information, call 703-415-0780. Location: Hilton Crystal City, 2399 Jefferson Davis Highway, Arlington, VA.

Thursday, August 10

Day two of a three day continuing legal education (CLE) seminar hosted by the American Intellectual Property Law Association (AIPLA) titled "Practical Patent Prosecution for New Lawyers". See, notice [PDF]. For more information, call 703-415-0780. Location: Hilton Crystal City, 2399 Jefferson Davis Highway, Arlington, VA.

Friday, August 11

Day three of a three day continuing legal education (CLE) seminar hosted by the American Intellectual Property Law Association (AIPLA) titled "Practical Patent Prosecution for New Lawyers". See, notice [PDF]. For more information, call 703-415-0780. Location: Hilton Crystal City, 2399 Jefferson Davis Highway, Arlington, VA.

5:00 PM. Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [11 pages in PDF] of Special Publication 800-96, titled "PIV Card / Reader Interoperability Guidelines".

Senate Committee Holds Hearing on Cyber Security

7/28. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Federal Financial Management, Government Information, and International Security held a hearing titled "Cyber Security: Recovery and Reconstitution of Critical Networks".

The Government Accountability Office (GAO) released a report [81 pages in PDF] titled "Internet Infrastructure: DHS Faces Challenges in Developing a Joint Public/Private Recovery Plan". See also, GAO written testimony [23 pages in PDF].

It report states that "Several federal laws and regulations provide broad guidance that applies to the Internet, but it is not clear how useful these authorities would be in helping to recover from a major Internet disruption. Specifically, the Homeland Security Act of 2002 and Homeland Security Presidential Directive 7 provide guidance on protecting our nation's critical infrastructures. However, they do not specifically address roles and responsibilities in the event of an Internet disruption. In addition, the Defense Production Act and the Stafford Act provide authority to federal agencies to plan for and respond to incidents of national significance, such as disasters and terrorist attacks. However, the Defense Production Act has never been used for Internet recovery and the Stafford Act does not authorize the provision of resources to for-profit companies -- such as those that own and operate core Internet components. The Communications Act of 1934 and the National Communications System authorities govern the telecommunications infrastructure and help ensure communications during national emergencies, but they have never been used for Internet recovery. Thus, it is not clear how effective they would be in assisting Internet recovery."

The report adds that the "DHS has begun a variety of initiatives to fulfill its responsibility for developing an integrated public/private plan for Internet recovery, but these efforts are not yet complete or comprehensive."

It also states that "Key challenges to establishing a plan for recovering from an Internet disruption include (1) innate characteristics of the Internet (such as the diffuse control of the many networks that make up the Internet and the private-sector ownership of core components) that make planning for and responding to disruptions difficult, (2) lack of consensus on DHS's role and when the department should get involved in responding to a disruption, (3) legal issues affecting DHS's ability to provide assistance to entities working to restore Internet service, (4) reluctance of many in the private sector to share information on Internet disruptions with DHS, and(5) leadership and organizational uncertainties within DHS. Until these challenges are addressed, DHS will have difficulty achieving results in its role as a focal point for helping to recover the Internet from a major disruption."

See also, prepared testimony [PDF] of George Foresman (Virginia's Under Secretary for Preparedness), prepared testimony [PDF] of Richard Schaeffer (NSA's Director of Information Assurance), prepared testimony [PDF] Karen Evans (OMB), prepared testimony [PDF] of Tom Noonan (ISS), prepared testimony [PDF] of Roberta Bienfait (AT&T), prepared testimony [PDF] of Michael Aisenberg (Verisign), and prepared testimony [PDF] of Karl Brondell (State Farm, for the Business Roundtable).

People and Appointments

8/4. The Senate Commerce Committee (SCC) approved the nomination of Jay Cohen to be Under Secretary for Science and Technology at the Department of Homeland Security (DHS). See, SCC release.

8/4. The Senate Commerce Committee (SCC) approved the nomination of Nathaniel Wienecke to be an Assistant Secretary of Commerce. See, SCC release.

8/4. Mary Jo Graves was named Chief Assistant Attorney General for the Criminal Law Division of the state of California's Department of Justice. She replaces Robert Anderson, who was named Chief Deputy Attorney General for Legal Affairs. Anderson replaces Richard Frank, who will take a position as head of the California Center for Environmental Law and Policy at UC Berkeley's Boalt Hall School of Law. See, release.

8/3. The Senate confirmed Troy Eid to be the U.S. Attorney for the District of Colorado for the term of four years.

8/3. The Senate confirmed Alexander Acosta to be the U.S. Attorney for the Southern District of Florida fo the term of four years.

8/3. The Senate confirmed Karl Hess, Thomas Taylor, Richard Thompson, Mark Abbott, John Bruer, Patricia Galloway, and Jose-Marie Griffiths to be members of the National Science Board, National Science Foundation. Hess was confirmed for a term that ends on May 10, 2008. The others' terms expire on May 10, 2012.

More News

8/4. The American Intellectual Property Law Association (AIPLA) will relocate its offices on Friday, August 11. Effective August 12, its new address will be 241 18th Street, South Suite 700, Arlington, VA, 22202. Its main telephone number will remain 703-715-0780.

8/3. The Senate Judiciary Committee held an executive business meeting. It once again did not take up many items on its agenda, including consideration of S 2453, the "National Security Surveillance Act of 2006", S 2455, the "Terrorist Surveillance Act of 2006", S 2468, a bill to provide standing for civil actions for declaratory and injunctive relief to persons who refrain from electronic communications through fear of being subject to warrantless electronic surveillance for foreign intelligence purposes, S 3001, the "Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006", S 2831, the "Free Flow of Information Act of 2006", and S 1845, the "Circuit Court of Appeals Restructuring and Modernization Act of 2005".

8/3. Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT) introduced S 3818, the "Patent Reform Act of 2006". See, Sen. Leahy's release, floor statement, and bill summary. Sen. Hatch's floor statement is published in the Congressional Record, August 3, 2006, at Pages S8829-31.

7/28. Rep. Sue Kelly (R-NY) and Rep. Nancy Johnson (R-CT) introduced HR  5971, the "HIT for Small Business Health Care Providers Act of 2006". This bill would create a Health Information Technology Loan Program in the Small Business Administration. It was referred to the House Small Business Committee.

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