|House Passes Bill Regarding Attorney
Client and Work Product Privileges
11/13. The House passed HR 3013
| WW], the
"Attorney-Client Privilege Protection Act of 2007", without amendment, by voice
Rep. Bobby Scott (D-VA), the sponsor
of the bill, stated during House debate that "It is designed to prevent a
practice that has regrettably become too common in many of Federal Government's
recent investigations into corporate wrongdoing. I am specifically referring to
the government's use of what are called ``coercive waivers´´ to gain access to
privileged communications that otherwise would remain private and protected
under the constitutional doctrine of attorney-client privilege."
Rep. Scott (at right) He said
that the Department of Justice's (DOJ) policy
"exposes corporations to an increased risk of prosecution if they claim this
constitutionally protected privilege."
Rep. Bob Goodlatte (R-VA) stated that this
bill "bars Federal prosecutors from requiring corporations and individuals to waive their
attorney-client privilege as a condition of cooperation or for avoiding criminal charges.
H.R. 3013 would not prohibit a corporation from voluntarily waiving the
This bill would prohibit certain government tactics. For example, it would
provide that "In any Federal investigation or criminal or civil enforcement
matter, an agent or attorney of the United States shall not ... demand, request,
or condition treatment on the disclosure by an organization, or person
affiliated with that organization, of any communication protected by the
attorney-client privilege or any attorney work product".
Nor could the government "condition a civil or criminal charging decision relating to
a organization, or person affiliated with that organization, on, or use as a factor in
determining whether an organization, or person affiliated with that organization, is
cooperating with the Government ... any valid assertion of the attorney-client privilege or
privilege for attorney work product".
See also, story titled "Rep. Scott and Rep. Forbes Introduce Bill to Protect Attorney
Client Privilege" in TLJ
Daily E-Mail Alert No. 1,609, July 16, 2007, and story titled "House to Consider
Attorney Client Privilege Protection Act" in TLJ Daily E-Mail Alert No. 1,674, November
|House Passes Schultz Internet Crime
11/14. The House passed HR 3845
"Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children
Act of 2007" or "PROTECT Our Children Act", without amendment, by a vote of
415-2. See, Roll Call No. 1091.
This is a bill to authorize the appropriation of about a billion dollars over eight years
to support state and federal government efforts to protect children online.
For a summary of the bill, see story titled "Rep. Schultz Introduces Bill to Fund
Programs Related to Internet Crimes Against Children" in TLJ Daily E-Mail Alert No.
1,674, November 12, 2007.
Rep. Debbie Schultz (D-FL), the
sponsor of the bill, stated in the House debate that "The Internet has facilitated an
exploding multibillion dollar market for child pornography. Tragically, the demand for this
criminal market can only be supplied by graphic new images, and these can only be supplied
through the sexual assault of more children."
"It is clear that our current efforts
are not working. We need a national campaign", said Rep. Schultz (at right).
She offered this summary of the bill. It "will help provide the safety net we
so desperately need by creating statutory authority for these highly successful
ICAC task forces which support State and local law enforcement agencies. It will
supplement this local effort with hundreds of new Federal agents who will be
solely dedicated to crimes against children. It will also provide desperately
needed forensic crime and computer labs so agents can uncover troves of
electronic evidence, locate these perpetrators, and bring them to justice.
Finally, the bill will create a special counsel within the Department of Justice
who will be responsible for planning and coordinating our child exploitation
prosecution efforts across the Federal agencies."
This bill, and some of the other bills related to crime, the internet, pornography,
and/or children adopted by the House on November 13-15, 2007, did not follow normal
legislative procedure. Several received no hearing. Several were not reported by the
House Judiciary Committee (HJC), which has
jurisdiction over crime bills. Some bills were not introduced until last week.
No amendments for any of these bills were allowed to be offered to consideration
by the House.
Goodlatte (R-VA) (at left), a member of the HJC, complained during the House debate that
"the majority has decided to promote politics rather than fully protecting our Nation's
children. In its last-minute rush to bring bills to the floor, the majority has selected five
bills addressing the problem of sex offenders on the Internet and Internet safety for children.
These bills were never considered by the Judiciary Committee, never subject to legislative
hearings, and never brought through the markup process."
He argued that "the majority's bills ignore the needs of law enforcement".
Nevertheless, he did not vote against any of the bills.
Only Rep. Jeff Flake (R-AZ) and
Rep. Paul Broun (R-GA) voted against this bill.
|House Passes Bill to Remove Interstate
Element from CP Statutes
11/14. The House passed HR 4120
"Effective Child Pornography Prosecution Act of 2007", without amendment, by a vote
of 409-0. See, Roll Call No.
This bill, which was introduced on November 8, 2007, by
Rep. Nancy Boyda (D-KS) and
Rep. Judy Biggert (R-IL), would amend
18 U.S.C. § 2252 and
18 U.S.C. § 2252A, the provisions of the criminal code pertaining to child
pornography (CP) and sexual exploitation of minors.
It would remove from the criminal prohibition of sending or receiving CP the requirement
that the CP be sent or received interstate. It would also remove from the criminal prohibition
of possession of CP the requirement that the CP was sent or received interstate.
It is in part a response to the opinion of the
U.S. Court of Appeals (10thCir) in
U.S. v. Schaefer.
Rep. Bob Goodlatte (R-VA)
praised the bill, but added that it does not go far enough. He argued that the
Congress should also set a mandatory minimum sentence for possession of CP.
|House Passes Bill Regarding Internet
Monitoring for Convicts
11/14. The House passed a substitute version of HR 719
"Keeping the Internet Devoid of Sexual Predators Act of 2007" or "KIDS Act",
by a vote of 417-0. See,
Roll Call No. 1092.
This bill was introduced by Rep. Earl Pomeroy
(D-ND) in January of 2007. As introduced, it would have amended the Sex Offender Registration
and Notification Act to provide that sex offenders must also register "Any electronic
mail address, instant message address, or other similar Internet identifier the sex offender
used or will use to communicate over the Internet". It also criminalized failure to do
so. It also required the Department of Justice to "maintain a system allowing a commercial
social networking website to compare the database of registered users of that commercial
social networking website to the list of electronic mail addresses, instant message addresses,
and other similar Internet identifiers of persons in the National Sex Offender Registry".
And then, these web sites could "screen new users or
compare its database of registered users to the list".
The House Judiciary Committee (HJC) held no
hearing or markup of the bill. Rather, the
House Democratic leadership sent to the floor a different bill, with the same number. The
bill approved by the House received no HJC hearing of mark up either.
Rep. John Conyers
(D-MI) (at left), the Chairman of the HJC, offered an explanation for deleting the original
provisions. He said that "a sex offender can change his user name and IP address
in about two seconds, so we didn't feel that was particularly helpful".
The bill that the House considered and approved authorizes the appropriation
of $30 Million over six years to "evaluate computer internet filtering,
monitoring and other programs and devices that are designed to filter access to
certain web sites, permit monitoring of the use by persons under supervision of
internet, and related purposes" and to hire and train probation officers.
The bill as passed also authorizes federal judges to require as a condition of
probation that a convicted sex offender cooperate with the installation of
internet filtering and monitoring systems.
The bill as passed also adds an amendment to the federal criminal statute
regarding laundering of monetary instruments. It adds electronic and digital
currencies and stored value cards to the "monetary instruments" covered by the
statute. See, story in this issue titled "House Bill Adds Digital Currencies and
Stored Value Cards to Money Laundering Statute"
Rep. Conyers stated on the House floor that this bill "addresses the problems of
convicted sex offenders infiltrating the Internet to contact and prey on minors."
|House Bill Adds Digital Currencies and
Stored Value Cards to Money Laundering Statute
11/14. The House passed a substitute version of HR 719
WW], the "Keeping
the Internet Devoid of Sexual Predators Act of 2007" or "KIDS Act", by a vote
of 417-0. See, Roll Call No. 1092.
The House Democratic leadership sent to the House floor a substitute version
of the bill that received no committee hearing or markup. Most of the bill
pertains to internet filtering and monitoring for convicted sex offenders.
However, it also includes a provision amending money laundering law that
will affect many areas of activity other than sex offenses.
The bill as passed amends
18 U.S.C. § 1956, regarding "Laundering of monetary instruments".
This statute provides, in part, that "Whoever, knowing that the property involved
in a financial transaction represents the proceeds of some form of unlawful activity, conducts
or attempts to conduct such a financial transaction which in fact involves the proceeds of
specified unlawful activity ... knowing that the transaction is designed in whole or in part
... to conceal or disguise the nature, the location, the source, the ownership, or the control
of the proceeds of specified unlawful activity; or ... to avoid a transaction reporting
requirement under State or Federal law... shall be sentenced ..."
The statute defines "financial transaction" as "involving one or more
monetary instruments". The statute, in turn, provides a definition of "monetary
instruments" that includes coin, currency, checks, money orders, negotiable instruments,
and many other things.
This bill adds to the list. It adds "electronic
or digital currencies, and the corresponding monetary value of any associated
account" and "stored value cards or similar devices".
The penalties are severe: up to $500,000 per transaction, and up to twenty years in prison.
Rep. Bob Goodlatte (R-VA) stated in the House
that "The key to combating the commercial child pornography industry is to cut it off at
its source: money. Virtual money is now the payment method of choice. It is imperative that
our law enforcement tools keep pace with changing technologies."
However, the bill does not limit this amendment to commercial child pornography. This
provision would affect financial transactions associated with other types of illegal conduct,
such as illegal internet gambling, online piracy of copyrighted works, and failure to report
online transactions for state sales tax purposes.
|House Passes Broadband Data, Mapping and
11/13. The House passed HR 3919
the "Broadband Census of America Act of 2007", without amendment, by voice vote.
The bill authorizes the appropriation of $335 Million over three years. $60 Million would
go to mapping current broadband availability. $275 Million would go to a grant program to be
run by the National Telecommunications and Information Administration (NTIA).
The bill provides that the "NTIA shall establish a grant program to create and
facilitate the work of local technology planning entities that represent a broad cross-section
of their community, including representatives of business, telecommunications
labor organizations, consumer organizations, elementary and secondary education,
health care providers, libraries, higher education, community-based
organizations, tribal organizations, and local government."
Rep. Ed Markey (D-MA) stated during the House
debate that "This bill represents an indispensable first step in developing an
overarching blueprint for broadband policy in the United States." It requires the Federal
Communications Commission (FCC) to collect "data from providers of broadband service
capability throughout the country, and with developing a series of tiers for categorizing the
speeds of such services."
He continued that "The data collected will be disclosed to the public in an annual
report that will include: one, the actual number of residential and business subscribers
within each five-digit ZIP code with a list of the broadband technologies present in each
ZIP code: and, two, the actual number of residential and business subscribers, correlated to
each broadband speed tier identified by the FCC on a statewide basis."
Rep. Markey stated that "This bill also encompasses a broadband mapping effort as
well as community organization initiatives for unserved and underserved areas to increase
knowledge of where, what type, and what speed of broadband service may be available."
Finally, "The legislation also includes authorizations for grants to local planning
entities and communities around the country. These grants are designed to increase broadband
availability and usage in local communities through so-called ``demand side´´ identification
and other initiatives." See, Congressional Record, November 13, 2007, at Page
Rep. Fred Upton (R-MI) stated in the House that
"We were quite fortunate to learn from the successful statewide broadband mapping plan
in Kentucky called Connect Kentucky." He added that
Connect Kentucky "demonstrated perfectly
how a public/private partnership can work with industry in a nonregulatory manner that benefits
not only consumers, but also provides a catalyst to greater broadband investments."
See also, story titled "House Commerce Committee Approves Broadband Mapping
Bill" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007.
|House Passes VOIP 911 Bill
11/13. The House passed HR 3403
WW], the "911
Modernization and Safety Act of 2007", without amendment, by a vote of 406-1. See,
Roll Call No. 1084.
This bill, which is sponsored by Rep. Bart Gordon
(D-TN), requires interconnected VOIP service providers to provide 911 and E911 services.
The Federal Communications Commission (FCC) already mandated
this by rulemaking in 2005. This
bill affirms, revises, and further defines the legal framework.
For a summary of the bill, see story titled "House Commerce Committee Approves
911 VOIP Bill" in TLJ Daily E-Mail Alert No. 1,667, November 1, 2007.
Rep. Ed Markey (D-MA) stated during
floor debate that this bill "is designed to ensure that a consumer calling 911
in an emergency from an Internet phone, using so-called ``Voice over Internet
Protocol,´´ or VoIP service, can do so with a degree of confidence matching that
of traditional phone service and wireless service."
He explained that "The bill seeks to achieve this goal through two key
provisions: The first provision extends liability protections to VoIP service
providers. The Federal Communications Commission lacks authority to grant
liability protection to VoIP service providers, and, therefore, Congress must
take action to achieve this policy objective. This is similar to action this subcommittee
took in 1999 when such liability protection was accorded to wireless providers."
Secondly, said Rep. Markey, "the bill establishes the right of VoIP providers
to access the parts of the 911 infrastructure they need in order to complete 911
calls for consumers. This is an important provision because while the FCC has
acted to require VoIP providers to meet enhanced 911 service obligations, the
commission did not order that such VoIP providers had a legal right to the
components of the 911 infrastructure they would need to fulfill their E-911
obligations under the commission's own rules."
Only Rep. Paul Broun (R-GA) voted against the
|Washington Tech Calendar
New items are highlighted in red.
|Friday, November 16
The House will not meet. It will next meet on
Tuesday, December 4, 2007, at 2:00 PM. See, HConRes 259.
The Senate will meet at 8:30 AM. It will consider S
2340, a bill pertaining to Iraq.
9:00 AM - 2:00 PM. Day one of a four day meeting of the
Architectural and Transportation Barriers Compliance
Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory
notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages
61827-61828. Location: National Science Foundation (NSF),
4121 Wilson Boulevard, Stafford Place II, Room 555, Arlington, VA.
TIME CHANGE. 9:00 AM. Ambassador Richard Russell, head of the U.S. Delegation
to the World Radiocommunication Conference (WRC), will hold a news conference by
teleconference. The dial in number is 1-800-857-4133; the pass code is 14808; Anne Jillson
is the Department of State's call leader.
1:00 - 2:00 PM. The Federal
Communications Bar Association's (FCBA) Engineering and Technical Practice Committee
will host an event titled "Tour of XM Satellite Radio". See,
registration form [PDF].
Location: XM Programming Center and Corporate Headquarters, 1500 Eckington
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 GSP program, for petitions that request
competitive need limitation (CNL) waivers. See,
notice in the Federal Register, May 21, 2007, Vol. 72, No. 97, at Pages 28527-28528.
Day five of a five day closed meeting of the
National Institute of Standards and Technology's
(NIST) Judges Panel of the Malcolm Baldrige National Quality Award. See,
notice in the Federal Register, October 23, 2007, Vol. 72, No. 204, at Page 60004.
Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.
Deadline to pre-register to attend the Department of Justice's
(DOJ) Antitrust Division's symposium titled
"Voice, Video and Broadband: The Changing Competitive Landscape and Its Impact on
Consumers" on November 29, 2007. See, DOJ
notice in the Federal Register, October 17, 2007, Vol. 72, No. 200, at Pages 58885-58887.
For more information, contact Ashley Becker at 202-514-5835 or Carl Willner at
Deadline to submit reply comments to the Federal
Communications Commission (FCC) in response to its Notice of Proposed Rule Making
(NPRM) regarding transmitters operating on an unlicensed basis in the 57-64 GHz
frequency range. The FCC adopted this item on May 25, 2007, and released the text on
June 1, 2007. This item is FCC 07-104 in ET Docket No. 07-113. See,
notice in the Federal Register, July 19, 2007, Vol. 72, No. 138, at Pages
Deadline to submit to the Office of the U.S.
Trade Representative (OUSTR) petitions for competitive need limitation (CNL) waivers
in connection with the 2007 Generalized System of Preferences (GSP) Annual Review. See,
notice in the Federal Register, September 6, 2007, Vol. 72, No. 172, at
Deadline to submit comments to the
Office of the U.S. Trade Representative (OUSTR) the U.S.
complaint to the World Trade Organization (WTO) regarding
the protection and enforcement of intellectual property rights in the People's
Republic of China. See,
notice in the Federal Register, October 10, 2007, Vol. 72, No. 195, at
Deadline to submit comments to the
National Institute of Standards and Technology's (NIST)
Computer Security Division (CSD) regarding its
SP 800-55 Revision 1 [84 pages in PDF] titled "Draft Performance
Measurement Guide for Information Security".
|Monday, November 19
10:00 AM - 1:00 PM. The Department of State's (DOS) Telecommunication
Advisory Committee (ITAC) will meet as ITAC-T to prepare advice on U.S. positions for
the meetings of the Advisory Group of the International Telecommunication Union --
Telecommunication Standardization Sector (ITU-T). See,
notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at
Page 63951. Location: undisclosed.
12:15 - 1:30 PM. The Federal Communications
Bar Association's (FCBA) Intellectual Property Practice Committee will host a brown bag
lunch titled "Copyright Issues at the FCC and the FTC". See,
registration form [PDF]. The
speakers will be Matt Schruers (CCIA), Michael Petricone (CEA), Seth Greenstein (Constantine
Cannon), Bruce Byrd (AT&T), Gigi Sohn (Public Knowledge), Fritz Attaway (MPAA), and Steve
Marks (RIAA). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.
|Tuesday, November 20
9:30 AM. The
U.S. Court of Appeals (DCCir) will hear oral argument in Robert
Biggerstaff v. FCC, App. Ct. No. 06-1191, a petition for review of the
FCC's unsolicited fax rules. See, FCC's
brief [65 pages in PDF]. Judges Ginsburg, Rogers and Griffith will
preside. Location: 333 Constitution Ave., NW.
1:00 - 3:00 PM. The Architectural
and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic
and Information Technology Advisory Committee will meet by teleconference. See,
notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages
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