|Senate Judiciary Committee Authorizes
Issuance of Subpoenas Directed at Bush Administration Regarding
6/21. The Senate Judiciary Committee (SJC)
held an executive business meeting at which it approved, on a roll call vote of 13-3, an
"Authorization of Subpoenas in Connection with Investigation
of Legal Basis for Warrantless Wiretap Program".
It states in full as follows: "Be it resolved that, pursuant to its authority
under Rules 25 and 26 of the Standing Rules of the Senate, the Senate Committee
on the Judiciary hereby authorizes its Chairman, in consultation with the
Ranking Member, to issue subpoenas to: 1) the Honorable Alberto Gonzales,
Attorney General of the United States, and 2) the Custodian of Records at the
Executive Office of the President, to provide the Committee with all documents
related to the Committee's investigation into the Administration's operation of a warrantless domestic surveillance program outside of the provisions of the
Foreign Intelligence Surveillance Act, and its legal analysis for this program."
The authorization does not extend to subpoenas directed to either
telecommunications carriers or internet service providers that are conducting or
facilitating surveillance programs.
Sen. Patrick Leahy (D-VT) wrote in his
statement, which he read at the meeting, that "For more than five years this
Administration intercepted conversations of Americans in the United States
without obtaining court orders under the Foreign Intelligence Surveillance Act (FISA).
This program became public in December 2005 and, soon after, the President
confirmed its existence. Since then, this Committee has sought information about
the authorization of and legal justification for this program time and again --
in letters, at hearings, and in written questions. Yet, this Administration has
rebuffed all requests."
Neither Sen. Leahy nor the SJC have released the text of any subpoenas, or drafts.
However, Sen. Leahy and Sen. Specter sent a letter to Attorney General Alberto Gonzales
dated May 21, 2007, which lists and describes documents that they seek.
This letter requests "all documents that reflect the President's
authorization and reauthorization of the warrantless electronic surveillance
program that you have called the Terrorist Surveillance Program, including any
predecessor programs, from 2001 to the present".
It also requests "all memoranda or other documents containing
analysis or opinions from the Department of Justice, the National Security
Agency, the Department of Defense, the White House, or any other entity within
the Executive Branch on legality of or legal basis for the warrantless
electronic surveillance program, including documents that describe why the
desired surveillance would not or could not take place consistent with the
requirements and procedures of FISA from 2001 to the present".
It also requests "all documents reflecting communications with
the Foreign Intelligence Surveillance Court (FISC) about the warrantless
electronic surveillance program or the types of surveillance that previously
were conducted as part of that program, that contain legal analysis, arguments,
or decisions concerning the interpretation of FISA, the Fourth Amendment, the
Authorization for the Use of Military Force, or the President's authority under
Article II of the Constitution, including the January 2007 FISC orders to which
you refer in your January 17, 2007 letter to us and all other opinions or orders
of the FISA court with respect to this surveillance".
Finally, the May 21 letter states that "If you do not consider
the surveillance program that was the subject of discussion during the hospital
visit and other events that former Deputy Attorney General James Corney
described in his May 15,2007 testimony before the Senate Judiciary Committee to
be covered by the requests made above, please provide all documents described in
those requests relevant to that program, as well."
Sen. Leahy wrote in his opening statement that "We are asking not for
intimate operational details".
He added that the "Administration is now asking Congress to make sweeping
changes to FISA", but that the SJC needs the requested documents to be able to
make "informed legislative decisions".
Sen. Arlen Specter (R-PA), the
ranking Republican on the SJC, stated that "I regret the necessity to issue
subpoenas". He said the the SJC should first move forward with subpoenas, and
then deal with claims of executive privilege when they arise.
Sen. Russ Feingold (D-WI) made one
reference to subpoenas directed at telecommunications carriers and other
companies. He said that the SJC cannot either write legislation, or decide to
grant immunity, when "most members of the Committee don't know what the immunity
Four members of the SJC --Sen. Feingold,
Sen. Dianne Feinstein (D-CA),
Sen. Sheldon Whitehouse (D-RI), and
Sen. Orrin Hatch (R-UT) -- are also
members of the Senate Intelligence Committee, and hence, have received more
information than other members of the SJC.
Carriers have sought, but not yet received, any Congressional grants of immunity.
The SJC vote on authorizing subpoenas was 13-3. All of the Democrats on the
SJC voted yes (with some voting yes by proxy). In addition, Sen. Specter,
Sen. Orrin Hatch (R-UT), and
Sen. Charles Grassley (R-IA) voted
yes. All other Republicans voted no or pass, by proxy.
The Center for Democracy and Technology
(CDT) opposes Bush administration's proposals to revise the FISA, and supports
Congressional efforts to obtain information about surveillance programs.
On June 20, 2007, it released a
surveillance related documents [PDF] that it would like the administration to
release, and a
list of questions [PDF] that it would like the administration to answer.
Neither of these CDT documents addresses carriers. However, the CDT's Jim
Dempsey stated at a news conference on June 20 that subpoenas "probably could
and should be directed at the carriers. Although, immediately the carriers are
going to defer to the administration ..."
He added that "it would be
interesting if the carriers have internal documents of their own. I am sure
there were some, although probably limited. My guess is that a lot of this was
oral, and it was high level, and not a lot of paper was generated. Although,
again, if I were a prosecutor, I would certainly ask."
The CDT's Greg Nojeim stated at the June 20 press briefing that the Congress
should investigate before it legislates. He further argued that rather than
approaching surveillance issue by issue on a committee by committee basis, the
Congress should examine surveillance "holistically", by holding a joint inquiry
that includes not only House and Senate judiciary committees, but also both the
House and Senate intelligence committees.
Nojeim stated that the administration's proposal for amending the FISA "is
about expanding warrantless surveillance" and "writing judges out of the
process". Instead, he praised S 1114 [LOC |
"Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007",
introduced on April 16, 2007, Sen. Feinstein and Sen. Specter.
|Supreme Court Rules in Tellabs
6/21. The Supreme Court issued
[33 pages in PDF] in Tellabs v. Makor, a case regarding the
heightened pleading requirements of the Private Securities Litigation Reform Act
(PSLRA). The 106th Congress passed the PSLRA,
which was Public Law No. 104-67, and is codified at
15 U.S.C. § 78u-4 and
§ 78u-5, to insulate defendants, and especially information and biotech
companies, from abusive class action law suits. The PSLRA creates both a safe
harbor for forward looking statements, and a heightened pleading requirement.
Plaintiffs must "state with particularity facts giving rise to a strong
inference that the defendant acted with the required state of mind." See, 15
U.S.C. § 78u-4(b)(2). However, this language is vague, and its meaning has
perplexed lower courts. This opinion, written by Justice Ruth Ginsberg, vacates
and remands to the Court of Appeals. It reduces the uncertainty
regarding the pleading standard. The opinion will make it harder for plaintiffs'
class action lawyers' complaints to survive Rule 12(b)(6) motions to dismiss.
Justice Antonin Scalia indicated at oral argument, and in his concurring opinion, that he
favored a stricter pleading standard. This case is Tellabs, Inc. and Richard
Notebaert v. Makor Issues & Rights, Ltd., et al., Sup. Ct. No. 06-484, a petition
for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No.
04-1687. See also, Supreme Court
intends to publish a more detailed story in a forthcoming edition.
|People and Appointments
6/21. The Senate Judiciary Committee (SJC)
held an executive business meeting. The agenda again included consideration of the nomination
of Leslie Southwick to be a Judge of the U.S.
Court of Appeals (5thCir). However, the SJC did not take up this item.
6/21. President Bush named John Emling to be Deputy Assistant to the
President for Legislative Affairs. He was Special Assistant to the President for
Legislative Affairs. See, White House
6/20. The U.S. Patent and Trademark
Office (USPTO) published a
notice in the Federal Register that announces that it requests nominations
for membership on its Patent Public Advisory Committee (PPAC) and its
Trademark Public Advisory Committee (TPAC). Nominations are due by Saturday,
September 1, 2007. See, Federal Register, June 20, 2007, Vol. 72, No. 118, at
6/19. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS), which regulates exports, published a
notice in the Federal Register that announces, describes, recites, and sets
the effective date (June 19, 2007) for, its amendments to the Export
Administration Regulations (EAR) pertaining to exports and reexports to the
People's Republic of China (PRC). These rules changes affect, among other
things, computers, software, telecommunications, and encryption. See, Federal
Register, June 19, 2007, Vol. 72, No. 117, at Pages 33646-33662.
6/19. The Copyright Office (CO) published a
notice in the Federal Register that announces that it is extending the
deadline to submit reply comments in response to its Notice of Inquiry (NOI)
regarding the operation of, and continued necessity for, the cable and
satellite statutory licenses under the Copyright Act. The deadline for reply
comments was September 13, 2007. The new deadline for reply comments is October
1, 2007. The deadline for initial comments remains July 2, 2007. See, just released
notice of extension in the Federal Register, June 19, 2007, Vol. 72, No.
117, at Pages 33776-33777. See also, original
notice in the Federal Register, April 16, 2007, Vol. 72, No. 72, at Pages
19039-19055, and technical correction
notice in the Federal Register, April 24, 2007, Vol. 72, No. 78, at Page 20374.
6/19. The Copyright Office (CO)
notice in the Federal Register that announces, describes, recites, and sets
the effective date (July 1, 2007) for, its final rule establishing a lower basic
registration fee of $35 for copyright claims submitted electronically.
This notice states that "This fee applies to all
registrations where the application is submitted electronically, including those
registrations where the deposit materials cannot be sent electronically together
with the application. At the same time, the Office is retaining its current fee
of $45 for processing paper applications for basic copyright registration of a
copyright claim." See, Federal Register, June 19, 2007, Vol. 72, No. 117, at
6/15. The Copyright Office (CO)
notice in the Federal Register that contains a list of stations listed in
affidavits sent to the CO in which the owner or licensee of the station attests
that the station qualifies as a specialty station. This pertains to the cable
compulsory license codified at
17 U.S.C. S 111. A cable operator may carry the signal of a television
station classified as a specialty station at the base rate rather than at the
higher 3.75% rate that is incurred for the carriage of a
non-permitted signal. The deadline to submit comments to the CO is July 16,
2007. See, Federal Register, June 15, 2007, Vol. 72, No. 115, at Pages
|Senate Judiciary Committee Amends
Patent Reform Act
6/21. The Senate Judiciary Committee (SJC)
held an executive business meeting at which it approved, by unanimous consent, an
amendment [51 pages in PDF] in the nature of a complete substitute to S 1145
"Patent Reform Act of 2007". However, the SJC did not consider the bill
further. The SJC did not consider any amendments to the bill as amended. Nor did the SJC
approve the bill as amended. Further consideration of S 1145 is on the agenda for the
SJC's next executive business meeting on Thursday, June 28, 2007. TLJ intends to
publish a more detailed summary of this amendment in a forthcoming edition.
|Washington Tech Calendar
New items are highlighted in red.
|Friday, June 22
The House will meet at 9:00 AM for legislative business. It will consider
HR 2771, the FY 2008 legislative branch appropriations bill. See, Rep. Hoyer's
weekly calendar [PDF].
The Senate will meet at 10:00 AM for morning business.
10:00 AM. The House Commerce
Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a
hearing titled "Images Kids See on the Screen". The witnesses will be Dan
Glickman (Motion Picture Association of America), Donald
Shifrin (American Academy of Pediatrics), Kyle McSlarrow
(National Cable and Telecommunications Association),
Cheryl Healton (American Legacy Foundation),
Jon Rand (broadcaster), Patti Miller (Children
Now), Adam Thierer (Progress and Freedom Foundation),
and Mary Sophos (Grocery Manufacturers/Food Products Association). The hearing will be
webcast by the HCC. Location: Room 2123, Rayburn Building.
12:00 NOON - 2:00 PM. The Progress &
Freedom Foundation (PFF) will host a panel discussion titled "The Effect of
Supreme Court Decisions on Patent Reform Legislation". The panel will address
eBay v. MercExchange, MedImmune v. Genentech and KSR v. Teleflex. The
speakers will include John
Duffy (George Washington University Law School), Andy Culbert (Microsoft), Phillip
Johnson (Johnson & Johnson), John Squires (Goldman Sachs), and John Whealan (USPTO,
currently working for the Senate Judiciary Committee). Lunch will be served. See,
Location: Room B369, Rayburn Building, Capitol Hill.
5:00 PM. Deadline to submit to the Office
of the U.S. Trade Representative (OUSTR) petitions to modify the list of products
that are eligible for duty free treatment under the Generalized System of Preferences
(GSP) program. See,
notice in the Federal Register, May 21, 2007, Vol. 72, No. 97, at Pages
Deadline to submit comments to the
U.S. Patent and Trademark Office (USPTO) on a wide
range of patent issues. The USPTO seeks comments on various priority of invention issues,
the prior art effective date of a published application or granted patent, the scope of
prior art effect of published patent applications, the one year grace period, geographical
restrictions that limit the definition of prior art, the public use or on sale bar, the
experimental use exception to prior art, prior user rights, assignee filing of
applications, and the 18 month publication of patent applications. See,
notice in the Federal Register, May 3, 2007, Vol. 72, No. 85, at Pages
24566-24569. The deadline to submit comments is June 22, 2007.
Deadline to submit applications for membership on the
Department of Homeland Security's (DHS)
Homeland Security Information Network Advisory Council (HSINAC). See,
notice in the Federal Register, May 8, 2007, Vol. 72, No. 88, at Page
|Monday, June 25
9:00 AM - 5:00 PM. The
President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda
includes "presentations on applications of nanotechnology, with specific examples of
nanotechnology-based innovation and commercialization across a range of
products and industries". See,
notice in the Federal Register, June 6, 2007, Vol. 72, No. 108, at Pages
31326-31327. Location: Room 1235, National Science Foundation, 4201 Wilson
Boulevard, Arlington, VA.
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in Verizon v. Vonage, App. Ct. No.
2006-M830. See, story titled "Federal Circuit Issues Stay of Injunction in Verizon
v. Vonage" in TLJ Daily E-Mail Alert No. 1,569, April 24, 2007. Location: Courtroom
11:00 AM. The National Cable &
Telecommunications Association (NCTA) will host a technology demonstration event titled
"OpenCable Showcase". Kyle McSlarrow (head of the NCTA) will speak. Lunch
will be served afterwards. For more information, contact Brian Dietz at 202-222-2358 or
bdietz at ncta dot com. Location: NCTA, 25 Massachusetts Ave., NW.
12:15 - 1:30 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag
lunch titled "Introduction to Satellite Regulation". The speakers will be
Jennifer Manner (Mobile Satellite Ventures), Diane Cornell (Inmarsat), Susan Eid (DirecTV),
Joslyn Read (SES New Skies), Jennifer Warren (Lockheed Martin), and Tony Lin
(Pillsbury Winthrop Shaw Pittman). For more information, conntact Chris Fedeli
at chrisfedeli at dwt dot com or Carolyn Roddy at croddy at sia dot org.
Location: Wiley Rein, 1776 K St., NW.
|Tuesday, June 26
10:00 AM. The
Senate Commerce Committee (SCC) will hold a hearing titled "Impact
of Media Violence on Children". See,
notice. Location: Room 253, Russell Building.
10:00 AM - 12:00 NOON. The Department of State's (DOS)
Telecommunication Advisory Committee (ITAC) will meet regarding U.S. positions for a
meeting of the Organization of American States Inter American Telecommunication Commission
(CITEL) Permanent Consultative Committee II (Radiocommunication) which will prepare for the
International Telecommunication Union World Radiocommunication Conference (WRC07). See,
notice in the Federal Register, May 30, 2007, Vol. 72, No. 103, at Page
30045. Location: undisclosed.
10:30 AM. The
U.S. District Court (DC) will hold a status conference in U.S. v.
Microsoft, D.C. No. 98-1232 (CKK). Location: Courtroom 28A, Prettyman
Federal Courthouse, 333 Constitution Ave., NW.
2:00 PM. The House
Financial Services Committee (HFSC) will hold a hearing at which the five Commissioners
of the Securities and Exchange Commission (SEC)
will testify. See,
The hearing will be webcast by the HFSC. Location: Room 2128, Rayburn Building.
Deadline to submit reply 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.
|Wednesday, June 27
12:00 NOON. The Federal Communications
Bar Association (FCBA) will host its annual luncheon. The speaker will be
Federal Trade Commission (FTC) Chairman Deborah Majoras.
The price to attend ranges from $50 to $125. Registrations and cancellations are due by
12:00 NOON on Friday, June 22. See,
[PDF]. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.
2:30 PM. The Senate
Commerce Committee (SCC) will meet to mark up several bills, including S 704
"Truth in Caller ID Act of 2007", and S 1650 [LOC |
"Max Cleland Minority Serving Institution Digital and Wireless Technology
Opportunity Act". See,
notice. For more information, contact Jenilee Keefe at 202-224-7824.
Location: Room 253, Russell Building.
|Thursday, June 28
9:30 AM - 12:00 NOON. The Center
for Public Integrity (CPI) and Progress & Freedom
Foundation (PFF) will host an event titled "Conference on Broadband
Statistics". The first panel
is titled "What Do We Know About Availability and Use of Broadband in the United
States?". The speakers will be Joseph Waz (Comcast), Derek Turner (Free Press),
Robert Atkinson (Information Technology & Innovation Foundation), John Horrigan
(Pew Internet & American Life Project), Kenneth Flamm (University of Texas at Austin),
and Dennis Weller (Verizon Communications). The moderator will be Drew Clark (CIP). The
second panel is titled "What Kinds of Broadband Data Collection Policies Should
the U.S. Employ?" The speakers will be Beth Shiroishi (AT&T), Mark Lloyd (Center
for American Progress), Drew Clark (CPI), Laura Taylor (ConnectKentucky), Clair Kaye
(Cumberland Internet Inc.), and Colin Crowell (office of Rep. Ed Markey (D-MA)). The
moderator will be Scott Wallsten (PFF). For more information, contact Steve Carpinelli
(CPI) at 202-481-1225 or Brooke Glass (PFF) at 202-969-2952. Location: National Academy
of Sciences, 2100 C St., NW.
10:00 AM. The
Senate Judiciary Committee (SJC) may hold an
executive business meeting. The agenda again includes consideration of S 1145
| LOC |
"Patent Reform Act of 2007". The SJC rarely follows its published agenda.
Location: Room 226, Dirksen Building.
1:00 PM. The Fiber to the
Home Council (FTTH) will host a web seminar titled "Content
and the Future of Broadband".
6:00 - 8:00 PM. The DC Bar Association
will host a panel discussion titled "Meet the FTC and FCC Legal Advisors".
notice. For more information, call 202-626-3463. The price to attend ranges from
$10-$15. Location: City Club of Washington at Franklin, 1300 I St., NW, McPherson
|Saturday, June 30
Trade promotion authority expires.
|Events Outside of Washington
Thursday, June 28. 4:00 - 11:00 PM. The Federal
Communications Commission (FCC) will hold an event titled "Open Meeting".
It will conduct a hearing regarding broadcast localism. It will also consider a
Third Further Notice of Proposed Rulemaking regarding standards to ensure bidirectional
compatibility of multichannel video programming distribution systems and consumer
electronics equipment. This proceeding is CS Docket No. 97-80 and PP Docket No. 00-67.
release [PDF] and
[PDF]. Location: Portland High School, 284 Cumberland Ave., Portland, Maine.
|About Tech Law Journal
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