Tech Law Journal Daily E-Mail Alert
January 18, 2007, Alert No. 1,522.
Home Page | Calendar | Subscribe | Back Issues | Reference
Gonzales Testifies Before Senate Judiciary Committee

1/18. The Senate Judiciary Committee (SJC) held a hearing titled "Oversight of the U.S. Department of Justice". The witness was Attorney General Alberto Gonzales.

The Department of Justice (DOJ) released two statements. First, there is Gonzales' long statement, which is twenty numbered pages when printed on paper. He did not read this at the hearing. Second, there is Gonzales' short statement, which reflects his opening remarks.

Terrorist Surveillance Program. Sen. Patrick Leahy (D-VT), the Chairman of the SJC), Sen. Arlen Specter (R-PA), the ranking Republican, and many of the Democrats on the Committee praised the Bush administration's announcement on January 17, 2006, that it would not renew the Terrorist Surveillance Program (TSP).

The Bush administration announced that the National Security Agency (NSA) will henceforth obtain approval from the Foreign Intelligence Surveillance Court (FISC) to conduct terrorism related electronic surveillance where one party is in the U.S. and one party is outside of the U.S.

See, January 17 letter [PDF] from the DOJ to the U.S. Court of Appeals (6thCir) , and story titled "NSA to Obtain FISA Authority for Disputed Electronic Surveillance" in TLJ Daily E-Mail Alert No. 1,521, January 17, 2007.

At the January 18 hearing, Gonzales wrote in his short statement that "Court orders issued last week by a Judge of the Foreign Intelligence Surveillance Court will enable the government to conduct electronic surveillance -- very specifically, surveillance into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization -- subject to the approval of the FISA Court."

Alberto GonzalesHowever, Gonzales (at right) declined to provide details about the FISC orders.

Gonzales' long statement contains a description of the TSP that appears to have been drafted prior to the January 17 announcement.

Sen. Leahy wrote in his opening statement, most of which he recited verbatim, that "This reversal is a good first step, but there are still several outstanding questions that remain. To ensure the balance necessary to achieve both security and liberty for our Nation, the President must also fully inform Congress and the American people about the contours of the Foreign Intelligence Surveillance Court order authorizing this surveillance program and of the program itself."

Data Retention Mandate. Gonzales wrote in his short statement that "I continue to hear from federal, state and local law enforcement that they need access to the information that will help us find online predators and child pornographers." He also repeated this line in his oral testimony.

Gonzales' long statement contains 14 paragraphs regarding online pornography and predators. However, it does not contain a request for new legislation.

Sen. Orrin Hatch (R-UT) raised the subject of child pornography. He first advocated the creation of a new commission to study the subject "with a particular focus on the internet". He added that "the internet is part of the problem".

AG Gonzales stated he would like to talk with Sen. Hatch about that. He added that "we need more resources".

Sen. Orrin HatchSen. Hatch (at left) also said that "You in the past have expressed the concern that investigators in child exploitation case sometimes hit dead ends because internet service providers have not kept data that would help determine the sources of images posted on the internet. How big a problem is this for law enforcement? And, is there something that Congress can do to help solve it?"

Gonzales responded, "Well it is a problem. You are right. We are engaged, we have encountered investigations, where the evidence is no longer available, because, there is no requirement to retain the data. Many ISPs do retain data for commercial purposes, and let me just say, most ISP companies are great partners for the law enforcement community, so I want to commend them for their efforts. However, for those few cases where we need that information, the question is, how do get, how do we maintain that evidence. And so, for that reason, I have had discussions with the ISP community, with victims' groups, with privacy groups, about whether or not it makes sense to have some kind of legislation to do data retention -- not data retained by the government, but data retained by ISPs -- that could be accessed with a court order, by the Department of Justice, from a court judge. And, I think, I would like to have a discussion with the Congress about that."

The DOJ sought legislation in the 109th Congress that would have imposed data retention mandates on internet services providers. Gonzales also gave several speeches on this subject. See for example, April 20, 2006, speech, and story titled "Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code" in TLJ Daily E-Mail Alert No. 1,357, April 25, 2006. See also, story titled "Gonzales Says Foreign Governments Should Have Access to Information Collected under Data Retention Mandate" in TLJ Daily E-Mail Alert No. 1,365, May 8, 2006.

However, while the DOJ and others are building support for legislation mandating data warehousing, any bill might have to move through the House Commerce Committee's (HCC) Subcommittee on Communications and the Internet. Its Chairman is Rep. Ed Markey (D-MA). See, story titled "Rep. Markey Advocates Data Destruction Bill" in TLJ Daily E-Mail Alert No. 1,429, August 10, 2006.

On the other hand, Rep. Diana DeGette (D-CO), a member of the HCC, is a data retention mandate proponent. See, story titled "House Commerce Committee Considers Data Retention Mandate" in TLJ Daily E-Mail Alert No. 1,365, May 8, 2006.

Gonzales' long statement offers a description of the online activities of pornographers and predators. It states that "the Internet is increasingly used by sexual predators and abusers as a tool for exploiting and victimizing our children through both child pornography and cyberenticement."

"The Internet has contributed to a significant increase in the proliferation and severity of such images. It provides deviants with an easily accessible and seemingly anonymous means of accumulating and distributing vast collections of images of child sexual abuse."

It adds that "As the Internet and related technologies have grown and evolved, children are also increasingly at risk of being sexually solicited online by predators. Law enforcement is uncovering an escalating number of ``enticement´´ cases, where perpetrators contact children in chat rooms or through instant messaging and arrange to meet at a designated location for the purpose of making sexual contact."

Gonzales' long statement also contains some prosecution data. It states that "In 2006, federal prosecutors charged 1,638 defendants with child pornography or cyberenticement. Of these, 1,242 were sentenced to prison. This is up from 715 defendants charged in 2000. Over the last ten years, the FBI’s Innocent Images National Initiative has gone from 68 defendants charged and convicted as a result of their efforts to 1,018 in 2006."

Internet Drug Sales. Gonzales wrote in his short statement that "I hope we can discuss an emerging problem -- the abuse of prescription drugs purchased over the Internet -- and the things we can do together to address this issue. Prescription drug abuse is now the second largest form of drug abuse in the United States and the only rising category of abuse among youth. Feeding this abuse is the proliferation of illicit websites that offer controlled substances for sale, requiring little more than a cursory online questionnaire and charging double the normal price. Make no mistake: these illicit websites are not about getting necessary medicine to those in need."

He added that "We must preserve legitimate access to medications over the Internet while preventing online drug dealers from using cyberspace as a haven for drug trafficking. I look forward to working with Congress to ensure that controlled substances are dispensed over the Internet only for legitimate medical purposes."

He also read this language verbatim at the hearing.

Intellectual Property. Gonzales' long statement reviews recent DOJ activities to enforce intellectual property rights (IPR). It also contains a statement regarding legislative proposals for the 110th Congress.

It states that "We will continue to seek legislation that would, among other things, increase penalties for intellectual property crimes, clarify that registration of a copyright is not required for a criminal prosecution, make attempts to commit copyright infringement a crime and increase the tools investigators have at their disposal to track potential intellectual property crimes."

Other Issues. Sen. Jon Kyl (R-AZ) praised the DOJ for prosecuting internet gambling cases.

Sen. Leahy, Sen. Specter, and criticized the practice of issuing Presidential signing statements. Gonzales defended the practice.

Sen. Dianne Feinstein (D-CA) complained, and asked questions, about the selection process for U.S. Attorneys.

Sen. Charles Grassley (R-IA) wrote in his opening statement that he wants "assurances that the Department of Justice is doing all it can to enforce antitrust laws". However, while he wrote that the DOJ's Antitrust Division should be "pro-active" in all industries, his main concern is agribusiness consolidation.

Several members raised the subjects of habeas corpus, sentencing guidelines, rendition, the anthrax investigation, and/or violent crime.

Some members of the SJC, such as Sen. Ted Kennedy (D-MA), focused on issues largely unrelated to the jurisdiction of the SJC, such as going to war with Iran. Gonzales said that he was unaware of any plans to go to war with Iran.

Richard Hertling and William Moschella sat immediately behind AG Gonzales at the hearing.

People and Appointments

Mario Mancuso1/18. President Bush nominated Mario Mancuso to be Under Secretary for Export Administration at the Department of Commerce's Bureau Industry and Security (BIS). The BIS, among other things, regulates the export of dual use items, such as computers, microprocessors, software and encryption products. He is currently Deputy Assistant Secretary of Defense for Special Operations and Combating Terrorism at the Department of Defense (DOD. Before that, he was Special Counsel to the DOD's General Counsel. He previously worked for the law firm of Ropes and Gray. See, White House release and release.

More News

1/18. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech [5 pages in PDF] at the Association of National Advertisers Advertising Law and Business Affairs Conference in New York City.

1/18. Federal Communications Commission (FCC) adopted and released an order [10 pages in PDF] that forbears from applying certain Universal Service and Telecommunications Relay Service requirements to calls placed by armed forces personnel stationed or deployed outside the United States to their families or friends at home.

Washington Tech Calendar
New items are highlighted in red.
Friday, January 19

The House will meet at 10:00 AM for legislative business. It will consider HR 475, the "House Page Board Revision Act of 2007 ". See, Majority Leader's calendar [PDF].

The Senate will not meet.

10:30 AM. Rep. Nancy Pelosi (D-CA) and Sen. Harry Reid (D-NV) will give speeches. The National Press Club (NPC) states that this event is "For credentialed reporters, National Press Club members and invited guests only." Location: NPC, 529 14th St. NW, 13th Floor.

CANCELLED. 12:00 NOON - 1:00 PM. The Progress and Freedom Foundation (PFF) will host a press briefing by conference call. PFF fellows will outline their tech priorities for 110th Congress. The call in number is 1-800-423-1988. The participant code is 1024423. RSVP to Amy Smorodin at asmorodin at pff dot org or 202-289-8928.

Deadline to submit comments to the President's Identity Theft Task Force (ITTF). See, FTC's request for comments [14 pages in PDF], and SEC release.

Monday, January 22

The Senate will meet at 1:00 PM. It will resume consideration of HR 2, the "Fair Minimum Wage Act of 2007".

9:30 AM. The Center for Democracy and Technology (CDT) will host a news conference to release its legislative recommendations regarding surveillance and national security, consumer privacy, copyright, free expression on the internet, and other issues. Breakfast and coffee will be provided. RSVP to David McGuire at dmcguire at cdt dot org or 202-637-9800 x106. The call in number is 800-377-8846. The passcode is 38076715#. Location: CDT, 11th floor, 1634 I St., NW.

EXTENDED TO APRIL 23. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Effects of Communications Towers on Migratory Birds". This NPRM [40 pages in PDF] is FCC 06-164 in WT Docket No. 03-187. The FCC adopted this NPRM on November 3, 2006. It released it on November 17, 2006. See, notice of extension [PDF].

Tuesday, January 23

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Blogging for Lawyers: How Practicing Lawyers Are Using Blogs to Find Clients, Fortune and Fame and How You Can Too". The speakers will include Amy Howe (, Marc Mayerson (, Scott Hodes (, and Carolyn Elefant ( The price to attend ranges from $20 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch and fee based continuing legal education (CLE) seminar titled "Federal Computer Crimes". The speaker will be Eric Wenger, a Trial Attorney in the Department of Justice's (DOJ) Criminal Division's Computer Crime and Intellectual Property Section (CCIPS). The price to attend ranges from $25 to $60. The deadline for registrations and cancellations is 5:00 PM on January 19. See, registration form [PDF]. Location: Wiley Rein & Fielding, 1776 K Street, NW, Main Conference Center.

Wednesday, January 24

10:00 - 11:00 AM. The U.S. Chamber of Commerce (USCC) will host a news briefing regarding its "No Trade in Fakes Supply Chain Tool Kit: Protecting Businesses, Consumers, and Brand Integrity". The speakers will describe ways that businesses can protect their supply chains and consumers from counterfeiters and pirates. The speakers will be Caroline Joiner (Executive Director of the USCC's Global Anti-Counterfeiting and Piracy Initiative), Brad Huther (USCC), Stephen Jacobs (Deputy Assistant Secretary for Trade Agreements and Compliance at the Department of Commerce's International Trade Administration), and Aaron Graham (Purdue Pharma). The USCC states that "Credentialed members of the media are invited to attend". Location: USCC, 1615 H St., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Global Trademark Portfolio Part I: Clearance and Registration". The speakers will include Thomas Brooke (Holland & Knight), Jennifer Elgin (Wiley Rein & Fielding), and Leigh Ann Lindquist (Sughrue Mion). The price to attend ranges from $15 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

Thursday, January 25

8:00 AM - 4:30 PM. The Federal Trade Commission (FTC) will hold a workshop on online marketing of negative options. See, FTC release and notice [PDF] to be published in the Federal Register. Location: FTC satellite building conference center, 601 New Jersey Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument, en banc, in Boehner v. McDermott. See also, story titled "Court of Appeals Holds that Rep. McDermott Violated Wiretap Act" in TLJ Daily E-Mail Alert No. 1,339, March 30, 2006. Location: 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch.

1:30 - 2:45 PM. The Telecommunications Industry Association (TIA) will host a news briefing via teleconference to announce the findings of the "TIA's 2007 Telecommunications Market Review and Forecast". The speakers will be Grant Seiffert (head of the TIA) and Arthur Gruen (principal author).  To obtain call-in information contact Terry Lane at 703-907-7723 or tlane at tiaonline dot org, or Neil Gaffney at 703-907-7721 or ngaffney at tiaonline dot org. The TIA states that this event "is available to credentialed media only".

Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its 7th Further Notice of Proposed Rulemaking in its proceeding titled "Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service". This item proposes a new DTV Table of Allotments providing all eligible stations with channels for DTV operations after the DTV transition. The FCC adopted this item on October 10, 2006, and released it on October 20, 2006. See, story titled "FCC Adopts NPRM Proposing New DTV Table of Allotments" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. This item is FCC 06-150 in MB Docket No. 87-268. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66591-66631. See, notice of extention [2 pages in PDF] (DA 07-38).

Friday, January 26

2:00 - 3:00 PM. The Information Technology Association of America (ITAA) will host a webcast event titled "ITAA Tech Law: The new Federal e-Discovery Rules. Are You Ready? Privacy and Data Protection Series with Venable LLP". The speaker will be Damon Wright (Venable). See, ITAA notice.

About Tech Law Journal

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.