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June 21, 2007, Alert No. 1,599.
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Senate Judiciary Committee Authorizes Issuance of Subpoenas Directed at Bush Administration Regarding Surveillance

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 opening 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 is for".

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 list of 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 | WW], the "Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007", introduced on April 16, 2007, Sen. Feinstein and Sen. Specter.

Supreme Court Rules in Tellabs v. Makor

6/21. The Supreme Court issued its opinion [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 docket. TLJ 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 release.

More News

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 Pages 33981-33982.

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) published a 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 Pages 33690-33692.

6/15. The Copyright Office (CO) published a 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 33251-33252.

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 [LOC | WW], the "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, notice. 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 28527-28528.

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 26138.

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 203.

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) International 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, notice. 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, registration form [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 [LOC | WW] the "Truth in Caller ID Act of 2007", and S 1650 [LOC | WW], the "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 [PDF | LOC | WW], the "Patent Reform Act of 2007". The SJC rarely follows its published agenda. See, notice. 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". See, 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 Square.

Saturday, June 30

Trade promotion authority expires.

Events Outside of Washington DC

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. See, FCC release [PDF] and agenda [PDF]. Location: Portland High School, 284 Cumberland Ave., Portland, Maine.

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