5/22. The House approved HR 1525 [LOC | WW], the "Internet Spyware (I-SPY) Prevention Act of 2007" by voice vote. The Senate has yet to approve this bill.

Rep. Zoe Lofgren (D-CA), the sponsor, stated in the House that "Spyware is becoming one of the biggest threats to consumers on the Internet. Thieves are using spyware and key loggers are harvesting personal information from unsuspecting Americans. It also affects the business community that is forced to spend money to block and remove it from their systems."

She continued that her bill "identifies the truly unscrupulous acts associated with spyware and subjects them to criminal punishment. This bill is the right approach because it focuses on behavior, not technology. It targets the worst forms of spyware without unduly burdening technological innovation."

Rep. Lofgren (at right) explained that "The bill imposes tough criminal penalties on those who use spyware in furtherance of another Federal crime or to defraud or injure consumers. It also funds the Attorney General to find and prosecute spyware offenders and phishing scam artists."

She did not expressly mention a competing bill within the jurisdiction of the House Commerce Committee (HCC), HR 964 [LOC | WW], the "Securely Protect Yourself Against Cyber Trespass Act", or "SPY ACT".

However, she said that "Focusing on bad actors and criminal conduct is preferable to an approach that criminalizes technology or imposes notice and consent type requirements. You know, bad actors don't comply with requirements. The more notices Internet users receive, in fact, the less likely they are to pay attention to any of them. Seventy-three percent of users don't read agreements, privacy statements or disclaimers on the Internet."

HR 1525 bill would amend the criminal code by adding a new section 1030A titled "Illicit indirect use of protected computers". 18 U.S.C. § 1030 is titled "Fraud and related activity in connection with computers".

The new § 1030A would contain two criminal prohibitions. First, the bill provides that "Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and intentionally uses that program or code in furtherance of another Federal criminal offense shall be fined under this title or imprisoned not more than 5 years, or both."

Second, the bill provides that,

"Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and by means of that program or code--
   (1) intentionally obtains, or transmits to another, personal information with the intent to defraud or injure a person or cause damage to a protected computer; or
   (2) intentionally impairs the security protection of the protected computer with the intent to defraud or injure a person or damage a protected computer;
shall be fined under this title or imprisoned not more than 2 years, or both."

See also, story titled "House Crime Subcommittee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 1,573, May 2, 2007.

Randall Rothenberg, head of the Internet Advertising Bureau (IAB), stated in a release that "We commend the House for its leadership in passing targeted, effective spyware legislation ... This is a strong message to individuals and organizations who attempt to steal consumers' sensitive information for illegitimate gain and serves as further assurance that those who seek to defraud consumers will suffer the consequences. ... We look forward to working with the Senate to enact a strong, sensible Federal anti-spyware law".

5/22. The Department of Justice (DOJ) filed a complaint [19 pages in PDF] in U.S. District Court (SDWV) against the Daily Gazette Company and MediaNews Group, Inc. alleging violation of Section 7 of the Clayton Act and Sections 1 and 2 of the Sherman Act in connection with the ownership and operation of newspapers.

The Daily Gazette Company owns a newspaper published in Charleston, West Virginia, titled "The Charleston Gazette". The MediaNews Group owns a second newspaper published in Charleston titled the "Daily Mail". In 2004 the two companies engaged in transactions in which the Daily Gazette Company acquired ownership of the Daily Mail.

The DOJ argues that the relevant markets are the sale of print newspapers to consumers in Charleston, West Virginia, and the sale of advertising space in these print newspapers to advertisers.

The DOJ's arguments do not reflect the declining sales and subscriptions, and declining advertising revenues of, city newspapers. Nor do they reflect the increasing competition from, and fungibility of, services and information provided by other media, including internet based, broadcast television and radio, and cable media.

The complaint alleges that "Most readers of local daily newspapers in the Charleston area do not consider weekly newspapers, radio news, television news, Internet news, or any other media to be adequate substitutes for the two local daily newspapers ..."

For example, the DOJ argues that "Readers also value other features of local newspapers", such as their "legal notices".

The complaint also alleges that "A substantial portion of advertisers seeking to reach Charleston area consumers do not consider other types of advertising, such as that in weekly newspapers, on radio, on television, or on the Internet to be adequate substitutes for advertising in a local daily newspaper."

The complaint alleges violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18.

This section provides that "No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital ... of another person ... where ... the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly."

The DOJ's complaint alleges that the effect of the transaction between the Daily Gazette Company and MediaNews Group "has been and is likely to continue to be to lessen competition substantially and to tend to create a monopoly in interstate commerce in the sale of local daily newspapers and advertising in those newspapers in the Charleston, West Virginia, area".

The complaint also alleges violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. It provides, in part, that "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal."

The complaint also alleges violation of Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2. It provides, in part, that "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished ..."

Thomas Barnett, the Assistant Attorney General in charge of the DOJ's Antitrust Division, stated in a release that "When Daily Gazette Company acquired the Daily Mail with the aim of shutting it down, readers in the Charleston area, and the advertisers who value access to them, were denied the benefits of competition ... The Department's investigation saved the Daily Mail from this unlawful termination, and this action seeks to remedy the competitive damage already done and to prohibit the parties from resuming an anticompetitive course in the future."

The Federal Communications Commission (FCC), which maintains several sets of rules regulating media ownership, likewise does not take into account the proliferation of new media, and increasing abundance of news and information services.

This case is U.S.A. v. Daily Gazette Company and MediaNews Group, Inc., U.S. District Court for the Southern District of West Virginia, Charleston Division, D.C. No. 2:07-0329.

5/22. The U.S. Court of Appeals (5thCir) issued its opinion [28 pages in PDF] in Texas v. Soileau, an 11th Amendment immunity case. It affirmed the judgment of the District Court and Bankruptcy Court.

Geraldine Soileau filed a Chapter 7 petition in the U.S. Bankruptcy Court (SDTex). She sought a discharge of debts owing to the state of Texas as a result of state court judgments against her for defaulting on surety bail bonds. Texas argued a particularly expansive interpretation of 11th Amendment immunity to evade the effects of this bankruptcy proceeding.

Perhaps it should also be noted here that the state of Texas also has a history of abusing 11th Amendment immunity to evade money judgments against it for infringement of intellectual property rights.

The Bankruptcy Court and U.S. District Court (SDTex) both rejected Texas' 11th Amendment immunity argument. The Court of Appeals affirmed.

It wrote that "The State’s challenge is grounded exclusively in Eleventh Amendment sovereign immunity, and the bankruptcy court and district court ruled on that ground alone. As the Supreme Court’s decisions in Central Virginia Community College v. Katz and Tennessee Student Assistance Corp. v. Hood establish that the discharge of a debt like Soileau’s is not barred by such immunity, the bankruptcy court had jurisdiction. We therefore affirm the denial of the State's dismissal motion." (Footnotes omitted.)

The holding of the just released opinion was to be expected, especially in light of the Supreme Court's January 23, 2006, opinion [60 pages in PDF] in Katz, 546 U.S. 356, another bankruptcy case regarding state sovereign immunity. See also, story titled "Supreme Court Rules in State Sovereign Immunity Case" in TLJ Daily E-Mail Alert No. 1,295, January 24, 2006.

Nevertheless, the state of 11th Amendment immunity law remains unsettled. The Supreme Court's 5-4 opinion in Katz (in which the Court held that the Congress could abrogate state sovereign immunity in the context of bankruptcy law) cannot be reconciled with the Supreme Court's 5-4 opinion in Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999) (in which the Court held that Congress cannot abrogate state sovereign immunity in the context of intellectual property law).

The Supreme Court has not considered 11th Amendment immunity since Justice Sam Alito joined the Court.

5/14. Rep. Bennie Thompson (D-MS), Chairman of the House Homeland Security Committee (HHSC), and Rep. James Langevin (D-RI), Chairman of the HHSC's Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology, sent a letter to Dale Klein, Chairman of the Nuclear Regulatory Commission (NRC) regarding cyber security at nuclear power plants.

The two wrote about an "incident that occurred on August 19, 2006, at the Brown’s Ferry Unit 3 facility, which was manually scrammed following a loss of both of the recirculation pumps. After conducting a review of the event, the licensee determined that the root cause of failure was the malfunction of the variable frequency drive (VFD) controller due to ``excessive traffic´´ on the plant’s computer network."

They added that "In accord with current regulations, NRC staff decided against investigating the failure as a ``cybersecurity incident´´ because 1) the failing system was a ``non-safety´´ system rather than a ``safety´´ system, and 2) it was determined by the licensee that the incident did not involve an external cyber attack on the system."

The two Representatives expressed their concern about "regulatory shortfalls exposed by this recent incident", and particularly that "current NRC regulations fail to comprehensively proscribe adequate cybersecurity protections of both safety and non-safety systems".

The NRC is currently conducting a rulemaking proceeding. The letter also propounds numerous questions to the NRC.

For example, they ask, "As time passes, more and more safety systems will be networked and accessible online. How will future NRC regulations address the rise of networked safety systems?"

5/23. The Copyright Office (CO) announced that it will hold four days of hearings on July 23 through July 26, 2007, regarding the operation of, and continued necessity for, the cable and satellite statutory licenses under the Copyright Act. June 15, 2007, is the deadline to submit written or e-mail notifications of intent to testify at the CO's hearings. July 2, 2007, is the deadline for persons who are scheduled to testify to submit copies of their prepared testimony. See, notice in the Federal Register, May 23, 2007, Vol. 72, No. 99, at Pages 28998-29000. Location: Copyright Office Hearing Room, 4th Floor, Madison Building, 101 Independence Ave., SE.

5/23. The Federal Communications Commission (FCC) published a notice in the Federal Register that sets the comment deadlines for its Notice of Proposed Rulemaking (NPRM) [38 pages in PDF] in its proceeding titled "In the Matter of High-Cost Universal Service Support Federal-State Joint Board on Universal Service". This NPRM seeks public comments on the Federal-State Joint Board on Universal Service's recommendation that the FCC impose an interim, emergency cap on the amount of high cost support that competitive eligible telecommunications carriers (ETCs) may receive. Initial comments are due by June 6, 2007. Reply comments are due by June 13, 2007. See, Federal Register, May 23, 2007, Vol. 72, No. 99, at Pages 28936-28939. This item is FCC 07-88 in WC Docket No. 05-337 and CC Docket No. 96-45.

5/17. The Senate Banking Committee reported the nomination of Mario Mancuso to be Under Secretary of Commerce for Export Administration. See, Congressional Record, May 21, 2007, at Page S6399.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

The Senate will meet at 10:00 AM. It will resume consideration of S 1348, a bill related to immigration and other matters.

9:00 AM - 1:00 PM. The Department of Homeland Security (DHS) will host an event titled "Privacy Impact Assessments at DHS -- A Tutorial on How to Write PIAs". See, notice in the Federal Register, May 11, 2007, Vol. 72, No. 91, at Page 26821. Location: GSA Regional Headquarters Building, 7th and D Streets, SW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Communications, Taxation and Federalism". The witnesses will be James White (Director of Tax Policy and Administration, GAO), Annabelle Canning (Verizon), Jeff Dircksen (National Taxpayer Union Foundation), David Quam (National Governors Association), and Harley Duncan (Federation of Tax Administrators). See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Science Committee (HSC) will meet to mark up bills. See, notice. Location: Room 2318, Rayburn Building.

10:45 AM. The U.S. and the People's Republic of China will continue the second meeting of the Strategic Economic Dialogue (SED). The U.S. delegation will hold a news conference at 11:30 AM. Location: Environmental Protection Agency, East Building, 1201 Pennsylvania Ave., NW.

3:00 - 5:00 PM. Day one of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 385, Russell Building, Capitol Hill.

TIME? The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee (COMSTAC) will meet. Location: FAA, Headquarters Building, 800 Independence Ave., SW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committee (YLC) will host an event titled "End of the YLC Year Party". For more information, contact Chris Fedeli at 202-973-4274 or chrisfedeli at dwt dot com. Location: Karma, 1919 I St., NW.

Extended deadline to submit reply 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, FCC's notice of extension [PDF] (DA 07-72), and notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3776-3777.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its rules governing wireless licenses in the 698-806 MHz Band (700 MHz Band). See, notice in the Federal Register, May 2, 2007, Vol. 72, No. 84, at Pages 24238-24253. The FCC adopted its Report and Order and FNPRM [170 pages in PDF] on April 25, 2007, and released it on April 27, 2007. This FNPRM is FCC No. 07-72 in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the National Exchange Carrier Association (NECA), the Interstate Telecommunications Relay Service (TRS) Fund Administrator, annual payment formula and fund size estimate for the Interstate TRS Fund for the period July 2007 through June 2008. See, public notice (DA 07-1978) and notice in the Federal Register, May 16, 2007, Vol. 72, No. 94, at Pages 27570-27571. This proceeding is CG Docket No. 03-123.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

8:30 AM - 5:00 PM. Day two of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda, which the SJC rarely follows, includes consideration of several judicial nominees: Leslie Southwick (to be Judge of the U.S. Court of Appeals for the 5th Circuit), Liam O’Grady (U.S. District Court for the Eastern District of Virginia),  Janet Neff (U.S.D.C. for the Western District of Michigan), and Paul Lewis Maloney (U.S.D.C. W.D. Michigan). Location: Room 226, Dirksen Building.

11:30 AM. The Senate Foreign Relations Committee will hold an executive business meeting. The agenda includes consideration of the nomination of James Glassman to be a member of the Broadcasting Board of Governors, for a term expiring August 13, 2007, and to be its Chairman. Location: Room S-116, Capitol Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "Are Civil Liberties at Risk in the War on Terror?". The speakers will be Andrew McCarthy (Foundation for Defense of Democracies' Center for Law & Counterterrorism), Bruce Fein (American Freedom Agenda), and Timothy Lynch (Cato). See, Cato notice. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a lunch titled "A Discussion on Carterfone in the Wireless World". The speakers will be Michael Altschul (CTIA), Christopher Libertelli (Skype Communications), Mary Beth Richards (Deputy Director of the FTC's Bureau of Consumer Protection). The price to attend is $15. See, registration form [PDF]. Registrations and cancellations are due by May 22. Location: Latham & Watkins, 10th Floor, 555 11th St., NW.

Rep. Hoyer's weekly calendar [PDF] states that "no votes are expected in the House".

8:30 AM - 12:30 PM. Day three of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 385, Russell Building, Capitol Hill.

Deadline to submit comments to the Privacy and Civil Liberties Oversight Board (PCLOB) regarding its interim final rule that establishes procedures for the public to obtain information from the PCLOB under the federal Freedom of Information Act (FOIA). The comment deadline and the effective date are both May 25. See, notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17789-17792.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding installation of smaller antennas by Fixed Service (FS) operators. This NPRM is FCC 07-38 in WT Docket No. 07-54. See, notice in the Federal Register, April 25, 2007, Vol. 72, No. 79, at Pages 20494-20499.

Memorial Day.

The House will not meet on Monday, May 28 through Friday, June 1, due to the Memorial Day District Work Period. See, House 2007 calendar.

The House will not meet on Monday, May 28 through Friday, June 1, due to the Memorial Day District Work Period. See, Senate 2007 calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103.

2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will hold an organizational meeting. See, notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages 27309-27310. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

Deadline to submit comments to eight federal regulatory agencies in response to their joint notice of proposed rulemaking (NPRM) regarding implementation of the privacy provisions of the Gramm Leach Bliley Act. This NPRM proposes a safe harbor model privacy form that financial institutions may use to provide disclosures under the privacy rules. The eight agencies are the Department of the Treasury's Office of the Comptroller of the Currency (OCC), Office of Thrift Supervision (OTS), Federal Reserve System (FRS), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Commodity Futures Trading Commission (CFTC). See, notice in the Federal Register, March 29, 2007, Vol. 72, No. 60, at Pages 14939-15000.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its request to update the record in its equal access and nondiscrimination proceeding. The FCC issued its original Notice of Inquiry (NOI) in February of 2002. See, notice in the Federal Register, March 28, 2007, Vol. 72, No. 59, at Pages 14554-14555. This proceeding is CC Docket No. 02-39. See also, Public Notice (DA 07-1071) [PDF] released on March 7, 2007.

2:00 - 4:30 PM. The National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet. It will hear recommendations of its Subcommittee on Technical Sharing Efficiencies; it will discuss its Spectrum Sharing Test-Bed Proposal; it will hear a report from its Subcommittee on Operational Sharing Efficiencies; and, it will hear public comment. See, notice in the Federal Register, May 15, 2007, Vol. 72, No. 93, at Pages 27294-27295. Location: Department of Commerce, Hoover Building, Room 4830, 1401 Constitution Ave., NW.

5:00 PM. Deadline to submit to the Bureau of Industry and Security (BIS) requests to make presentations at the BIS' Deemed Export Advisory Committee's (DEAC) meeting on June 19, 2007, from 8:30 AM to 12:30 PM, in Boston, Massachusetts. See, notice in the Federal Register, May 21, 2007, Vol. 72, No. 97, at Page 28467. The BIS regulates exports of dual use products, including computers, components, software and encryption products. Deemed exports include employment practices of companies that make dual use products.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its rules governing wireless licenses in the 698-806 MHz Band (700 MHz Band). See, notice in the Federal Register, May 2, 2007, Vol. 72, No. 84, at Pages 24238-24253. The FCC adopted its Report and Order and FNPRM [170 pages in PDF] on April 25, 2007, and released it on April 27, 2007. This FNPRM is FCC No. 07-72 in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86.

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