12/17. The Senate began consideration of S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007". However, the Senate Democratic leadership ended consideration. The Senate may again take up the bill in January of 2008, after the year end recess. This legislation also addresses immunity of carriers. The current amendments to the FISA, which were enacted in August of this year in S 1927 [LOC | WW], the "Protect America Act", expire in February of 2008.

12/10. Securities and Exchange Commission (SEC) Commissioner Kathleen Casey gave a speech at an American Institute of Certified Public Accountants (AICPA) conference in Washington DC in which she discussed Section 404 of the Sarbanes Oxley Act, GAAP, IFRS, and the convergence of accounting standards, and making financial data interactive with eXtensible Business Reporting Language (XBRL)

She said that "There is an interesting parallel between the work to converge accounting standards and the work to implement XBRL. While the IASB, FASB and other standard setters are working to converge international accounting standards, the U.S. GAAP and IFRS taxonomy teams are working to ensure that their taxonomies are aligned."

She continued that "In a future in which companies file their financial statements in XBRL, preparers and users of financial data should not need to build separate technologies for different accounting systems. XBRL will be especially useful here as it offers a way to compare disclosures under U.S. GAAP and IFRS and highlight differences. Independent of each other, XBRL and convergence efforts have the potential to reduce accounting complexity and help improve the usefulness of financial data for investors. Used together, they can be even a more powerful force."

Also, on December 5, 2007, the SEC's recently created Office of Interactive Disclosure (OID) announced the release of its Beta release 1.0 of the "US GAAP Taxonomies and Documentation", a standard list of codes, or taxonomy, for tagging data for financial reporting.  See also, SEC release.

The deadline to submit comments is April 4, 2008.

12/14. The U.S. Court of Appeals (9thCir) issued its opinion [16 pages in PDF] in US v. Betts, a case regarding sentencing following a plea of guilty to conspiracy under 18 U.S.C. § 371. The ruling regarding sentencing is not technology related.

However, the underlying facts of the case may bear upon to the accuracy of large electronic databases containing personally identifiable information, and the reliance placed upon these databases by businesses and government agencies.

The defendant, Marcus Betts, worked for TransUnion, a data aggregator. He took payments to make changes to the credit records of 654 persons. The Court of Appeals wrote that he "took bribes" as part of a "private sector ticket-fixing scheme". The Court added that his activities caused "around a million dollars in losses to lenders who got stuck with the bad risks".

The Court's opinion does not address the prevalence of this practice at data aggregation entities. Nor does it address the extent to which databases used for identification, immigration, law enforcement, national security, and/or other purposes are similarly compromised.

This case is US v. Marcus Betts, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-50205, an appeal from the U.S. District Court for the Central District of California, D.C. No. CR-04-00172-DOC 3, Judge David Carter presiding. Judge Andrew Kleinfeld wrote the opinion of the Court of Appeals, in which Judges Ronald Gould and Milan Smith joined.

12/14. The U.S. Court of Appeals (11thCir) issued its opinion [13 pages in PDF] in US v. King, a case regarding the 4th Amendment and warrantless remote searches of laptop computers connected to networks. The Court of Appeals upheld a warrantless government remote search in a sloppily worded opinion that may leave attorneys, judges, and policy makers frustrated by its vagueness.

Introduction. The Court of Appeals affirmed a conviction that followed from evidence obtained in a remote search of a privately owned laptop computer located in a dormitory room. The government did not have either the permission of the owner/defendant or a warrant. The Court of Appeals held that this search did not violate the defendant's 4th Amendment rights.

The opinion is hard to assess because it is lacks clarity and specificity at several points. However, the Court of Appeals held that, for the purpose of analyzing the defendant's 4th Amendment privacy right, "The contents of his computer’s hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public".

This opinion could be far reaching because people tend to use computers, and to attach them to networks.

The likely impact of this opinion is uncertain. First, the Court of Appeals failed to recite key facts. The opinion states that King accessed a network; it does not state who owned and/or operated the network. The opinion states that King was a "civilian contractor"; it does not state for whom he worked or contracted. The opinion states that King "understood that as a user of the base network, his activities on the network were subject to monitoring"; it does not state the source of this, what was subject to monitoring, or by whom.

Second, the Court issued a broad holding regarding computers connected to networks without specifying that its holding is limited to any specific circumstances of the case. Third, the Court of Appeals did not distinguish, compare, or even cite other key cases involving the 4th Amendment and information technologies.

This opinion may be a setback for proponents of 4th Amendment and/or privacy rights in the context of information technologies, and a boon for aggressive federal investigators and prosecutors who seek erosion of Constitutional and privacy rights associated with new technologies.

4th Amendment and Katz. The 4th Amendment to the Constitution provides, in full, that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Supreme Court issued its landmark opinion in Katz v. U.S. in 1967. It is reported at 389 U.S. 347. In that case the FBI conducted a warrantless wiretap of a public telephone booth used by the defendant, and introduced the product of those wiretaps into evidence in a criminal trial.

The Supreme Court held that warrants based upon probable cause are required for telephone wiretaps, even when the call is placed from a public phone booth. Stewart wrote that "the Fourth Amendment protects people, not places."

Current 4th Amendment analysis builds on former Justice Harlan concurring opinion, in which he used the phrase "constitutionally protected reasonable expectation of privacy". He elaborated that "My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ``reasonable.´´" (Parentheses in original.)

The Congress followed up on the Katz opinion when it enacted the Omnibus Crime Control and Safe Streets Act of 1968, which is Public Law No. 90-351. It included the Wiretap Act, which is now codified at U.S.C. §§ 2510-2522. Two decades later the Congress extended meaningful statutory protection to electronic communications, including stored communications.

However, the present opinion only involves a 4th Amendment challenge. There was no statutory challenge.

Similar Cases. There are relatively few circuit court opinions regarding application of the 4th Amendment to privacy rights in new information technologies. Hence, the few opinions take on greater importance than most other opinions. While there are some cases regarding application of the 4th Amendment to search and seizures involving new technologies, the Court of Appeals cited none of these. Three such cases are Warshak, Heckenkamp and Simons.

The U.S. Court of Appeals (6thCir) issued its opinion [20 pages in PDF] in Warshak v. U.S. on June 18, 2007. That case concerned the 4th Amendment and government access to e-mail held by internet service providers (ISPs). The Court of Appeals held that "individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP". Hence, the 4th Amendment's requirement that the government must obtain a warrant based upon probable cause applies to certain stored e-mail.

Both Warshak and the present case involve a warrantless government search of data stored on a computer. In Warshak, the data was on the server of a third party ISP used by the defendant. In the present case the data was on the personal laptop of the defendant.

See, story titled "6th Circuit Holds That People Have a Reasonable Expectation of Privacy in E-Mail Stored With, or Sent or Received Through, an ISP" in TLJ Daily E-Mail Alert No. 1,597, June 19, 2007.

That case is Steven Warshak v. United States of America, U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 06-4092, an appeal from the U.S. District Court for the Southern District of Ohio, at Cincinnati, D.C. No. 06-00357, Judge Susan Dlott presiding. Judge Boyce Martin wrote the opinion of the Court, in which Judges Martha Daughtrey and William Schwarzer (USDC/NDCal sitting by designation) joined.

The U.S. Court of Appeals (9thCir) issued its opinion [13 pages in PDF] in U.S. v. Heckenkamp in April of 2007. That case involved seizure of data from a computer owned by a student (Heckenkamp) that was located in his dormitory room. The government used evidence seized to obtain a conviction for violation of 18 U.S.C. § 1030. The issue was the admissibility of evidence acquired in a warrantless remote search of the student's hard drive by a university network administrator who was acting in association with the FBI.

Heckenkamp prevailed on the issue of whether he held a reasonable expectation of privacy in the contents of his computer. The Court added that "privacy expectations may be reduced if the user is advised that information transmitted through the network is not confidential and that the systems administrators may monitor communications transmitted by the user." But, "In the instant case, there was no announced monitoring policy on the network."

However, Heckenkamp lost on another issue -- the special needs exception to the warrant and probable cause requirement. That is, the Court of Appeals held that the search was permissible because the network administrator had an independent concern about the security of the university's own computers.

Both Heckenkamp and the present case involve a warrantless government remote search of a computer of the defendant located in the defendant's dormitory room.

See also, story titled "9th Circuit Constrains Computer Privacy" in TLJ Daily E-Mail Alert No. 1,563, April 10, 2007.

That case is U.S.A. v. Heckenkamp, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 05-10322 and 05-10323, appeals from the U.S. District Court for the Northern District of California, D.C. Nos. CR-03-20041-JW and CR-00-20355-JW, Judge James Ware presiding. Judge Sidney Thomas wrote the opinion of the Court of Appeals, in which Judges William Canby and Michael Hawkins joined.

The U.S. Court of Appeals (4thCir) issued its opinion [16 pages in PDF] in U.S. v. Simons on February 29, 2000. It is reported at 206 F.3d 392. The Court of Appeals found that the Simons lacked a reasonable expectation of privacy in the contents of a computer hard drive. However, he was a CIA employee, who used a CIA computer, at the CIA, while there was in effect a CIA policy of auditing computer usage. Simons proceeded to use his CIA computer to download porn. He was caught and prosecuted. The Court of Appeals held that he had no reasonable expectation of privacy.

Both Simons and the present case involve a warrantless government search of a computer used by the defendant. However, in Simons the government owned the computer, while King owned his. (The opinion describes it as "his personal laptop".) Moreover, the opinion in Simons is clear that there was a monitoring policy in place; it recites the wording of the policy; it finds that the language of the policy covered the search in question; and, it states that this served as the basis for the authority to conduct a warrantless search. In contrast, the present opinion makes only one brief reference to "monitoring" in the recitation of facts, and nothing further.

That case is U.S. v. Simons, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 99-4238, an appeal from the U.S. District Court for the Eastern District of Virginia, Judge James Cacheris presiding, D.C. No. CR-98-375.

Holding in the Present Case. The Court of Appeals applied the two part 4th Amendment test discussed in Katz. (Although, it did not site Katz.) It first held that King satisfied the first prong of the test. That is, King held a subjective expectation of privacy in the contents of his laptop. It wrote that "His experience with computer security and the affirmative steps he took to install security settings demonstrate a subjective expectation of privacy in the files ..."

However, it held that King failed to satisfy the second prong. That is, he did not hold an expectation in privacy that society is prepared to recognize as legitimate.

It wrote that "the threshold issue in this case is whether King had a legitimate expectation of privacy in the contents of his personal laptop computer when it was connected to the base network from his dorm room".

It added that "rather than analyzing the military official’s actions as a search of King’s personal computer in his private dorm room, it is more accurate to say that the authorities conducted a search of the military network, and King's computer files were a part of that network".

It concluded that "The contents of his computer's hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public." Moreover, "Because his expectation of privacy was unreasonable King suffered no violation of his Fourth Amendment rights when his computer files were searched through the computer’s connection to the base network."

The Court of Appeals cited no information technology related cases. Instead, it relied exclusively upon two 11th Circuit cases regarding real property -- one involving common areas of apartment buildings, and the other regarding discarded garbage.

Unanswered Questions. The section of the opinion (at pages 6-8) that articulates the holding as to the 4th Amendment does not reference any monitoring policy.

However, the incomplete recitation of facts (at page 2) states that "King understood that as a user of the base network, his activities on the network were subject to monitoring."

The opinion leaves unanswered whether or not the holding applies only in situations where there is notice of a monitoring policy.

Also, the opinion does not state who owned and/or operated the network, or what was the source and extent of the authority to monitor users. For example, was there a contract, written policy, or something else? Who was authorized to monitor? Did the policy authorize remote searches of users' hard drives? And, does it matter? Does government authority to search flow automatically from a company's authority? If not, can a company with a monitoring policy authorize the government to conduct a search?

The Court of Appeals opinion uses the term "network", but does not elaborate on the meaning this term, or whether different 4th Amendment analysis might apply to different types of networks. For example, does this holding apply only in the case of closed networks operated by or for the military or government? Does it apply only to closed networks? Does it apply to any network, including accessing the internet with a laptop at a coffee shop Wi-Fi hot spot, or accessing the the internet with a smart phone via a carrier's wireless network?

One might interpret this as a workplace monitoring case. However, this would be problematic because the opinion does not state that it is a workplace monitoring or privacy case. Also, the opinion does not even identify King's employer, or whether the network owner and his employer were the same entity. Moreover, workplace monitoring generally involves use of company computers in company offices on company time. King used his own computer in his dormitory room. Moreover, workplace monitoring cases are usually disputes between private sector employers who monitor their employees. There is no government action in these cases, and hence, no 4th Amendment issue. State laws regarding contract and employment control. The present case is a 4th Amendment case involving a law enforcement search.

One might interpret this as a national security case, since the opinion states that the network was associated with a Saudi military base located in Saudi Arabia. However, this would be problematic because the opinion does not state that national security concerns justified the warrantless search. In contrast, the opinion states that the government searched King's laptop because an informant told them that he had files "of a pornographic nature" on it. This is not national security.

One might interpret this as an authorized monitoring case, because of the one brief reference to "monitoring". However, this would be problematic because the opinion fails to state that the warrantless authority is limited to situations involving monitoring policies.

One might interpret this as a closed network case. However, this would be problematic because the opinion does not state so much. The opinion does not even state whether or not the network was closed.

Finally, one might interpret this as a broad holding that any government search of a computer connected any network does not require a warrant. This would be a literal interpretation of the holding section of the opinion. However, this would be problematic because it would be hard to reconcile this with the 4th Amendment and other federal cases.

First, the Heckenkamp opinion clearly provides that absent a policy in effect that permits the person conducting the search to conduct the search without a warrant, searches are not permissible. Second, it would be a stretch to conclude that there is no legitimate expectation of privacy in any computers attached to networks. Third, this conclusion, combined with the holding in Warshak, would lead to the anomalous result that e-mail stored on a third party service provider's server is protected, but e-mail stored on one's own personal laptop is not.

Aggressive government investigators and prosecutors may assert that this case stands for the broad proposition that any computer attached to any network, including internet access, is subject to warrantless government searches. Advocates for 4th Amendment and privacy rights may assert that holding is limited to some specific circumstances, such as a monitoring policy being in place, or a national security nexus.

Alternatively, one might argue that the Court of Appeals simply failed to draft its opinion with clarity sufficient to put attorneys on notice of what the holding is.

This case is U.S. v. Michael David King, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 07-11808, an appeal from the U.S. District Court for the Middle District of Alabama, D.C. Docket No. 05-00301-CR-WHA. The three judge panel was comprised of Judges Anderson, Carnes, and Pryor. It issued a per curiam opinion.

The Senate will meet at 10:00 AM. It will begin consideration of S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007".

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. Votes will be postponed until at least 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for the week, and schedule for Monday.

8:30 AM - 5:00 PM. Day one of a two day workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Closed Circuit Television: Developing Privacy Best Practices". See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63918-63919. Location: Gallery Ballroom, Hilton Arlington Hotel, Arlington, VA.

9:00 AM. The Securities and Exchange Commission (SEC) will host an event titled "International Financial Reporting Standards in the U.S. Roundtable". Location: SEC, Auditorium (Room L-002), 100 F St., NE.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM on May 31, 2007, and released text [75 pages in PDF] on July 12, 2007. It is FCC 07-109 in EB Docket No. 04-296. See, notice in the Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62195-62198. See also, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See, notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

The Senate will meet at 10:00 AM. It is scheduled to consider HR 2764, [LOC | WW] the omnibus appropriations bill.

8:30 AM - 12:30 PM. Day two of a two day workshop hosted by the Department of Homeland Security's (DHS) Privacy Office titled "Closed Circuit Television: Developing Privacy Best Practices". See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63918-63919. Location: Gallery Ballroom, Hilton Arlington Hotel, Arlington, VA.

9:00 AM - 12:30 PM. The Heritage Foundation will host an event titled "Taiwan's United Nations Bid: Domestic Democracy or International Crisis?". The event will include a speech by Jaushieh Joseph Wu (Taipei Economic and Cultural Representative's Office) and two panel discussions. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on several Department of Justice (DOJ) nominees, including Ondray Harris (to be Director of the Community Relations Service), David Hagy (to be Director of the National Institute of Justice), and Nathan Hochman (to be an Assistant Attorney General in charge of the Tax Division). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Federal Communications Commission's (FCC) and the National Telecommunications and Information Administration's (NTIA) Joint Advisory Committee on Communications Capabilities of Emergency Medical and Public Health Care Facilities will hold a meeting. See, FCC notice [PDF]. Location: AT&T, North Tower, Suite 1000 (10th Floor), 1120 20th St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "Copyright and User Generated Content". The speakers will be Johanna Shelton (Policy Counsel & Legislative Strategist, Google) and Rick Lane (SVP Government Affairs, Newscorp). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing on HR 4175 [LOC | WW], the "Privacy and Cybercrime Enforcement Act of 2007". See, notice. Location: Room 2141, Rayburn Building.

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 61827-61828.

2:00 - 3:45 PM. The Department of State's (DOS) Advisory Committee on International Economic Policy will meet. The agenda includes discussion of free trade agreements with Korea and other nations. See, notice in the Federal Register, December 6, 2007, Vol. 72, No. 234, at Page 68947. Location: Room 1107, DOS, 2201 C St., NW.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed rules changes that would require that export and reexport license applications, classification requests, encryption review requests, License Exception AGR notifications and related documents be submitted to the BIS via its Simplified Network Application Process (SNAP-R) system. See, notice in the Federal Register, October 19, 2007, Vol. 72, No. 202, at Pages 59231-59238.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding post-reconfiguration 800 MHz band plans for the U.S.-Canada border regions. This FNPRM is DA 07-4489 in WT Docket No. 02-55. See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63869-63871.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Judge Mark Filip to be the Deputy Attorney General. See, Sen. Patrick Leahy's (D-VT) release and SJC notice. Location: Room 226, Dirksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "2007 Intellectual Property Law: Year in Review Series - Part I". Part I will address developments in copyright, trademark, and internet law. The speakers will be Brian Banner, Justyna Burr, and Terence Ross. The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding ancillary terrestrial components (ATC), which allow mobile satellite service (MSS) operators to integrate terrestrial services into their satellite networks in order to augment coverage in areas where their satellite signals are largely unavailable due to blocking, by re-using their assigned MSS frequencies. This item is FCC 07-194 in IB Docket No. 07-253. See, notice in the Federal Register, November 19, 2007, Vol. 72, No. 222, at Pages 64979-64980.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare advice on U.S. positions on the restructuring of the Radiocommunication Sector of the International Telecommunication Union (ITU-R). See, notice in the Federal Register, December 7, 2007, Vol. 72, No. 235, at Page 69279. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

1:00 PM. The National Science Foundation's (NSF) National Science Board's (NSB) Public Service Award Committee will hold a closed meeting by teleconference. See, notice in the Federal Register, November 30, 2007, Vol. 72, No. 230, at Page 67761. Location: NSF, 4201 Wilson Blvd., Arlington, VA.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "2007 Intellectual Property Law: Year in Review Series - Part II". Part II will address developments in patent law. The speakers will be Bradley Wright and Eric Wright. The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for the week.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding hearing aids and wireless handsets. This item is FCC 07-192 in WT Docket No. 07-250. See, notice in the Federal Register, November 21, 2007, Vol. 72, No. 224, at Pages 65494-65508. See also, story titled "FCC Releases 2nd Report and Order and NPRM on Hearing Aids and Wireless Handsets" in TLJ Daily E-Mail Alert No. 1,672, November 8, 2007.

Deadline to submit comments to the Office of the US Trade Representative (OUSTR) regarding the US complaint to the World Trade Organization (WTO) regarding the People's Republic of China's (PRC) trade barriers and market access restrictions affecting movies and audio recordings. See, notice in the Federal Register, November 8, 2007, Vol. 72, No. 216, at Pages 63211-63213.

12:00 NOON. Deadline to submit initial comments to the Office of the US Trade Representative (OUSTR) regarding compliance with telecommunications trade agreements. See, notice in the Federal Register, November 19, 2007, Vol. 72, No. 222, at Pages 65109-65111.

All federal executive branch departments and agencies will be closed. See, Executive Order of December 6, 2007.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Rules of Practice in Trademark Cases to require a description of the mark in all applications to register a mark not in standard characters. See, notice in the Federal Register, October 25, 2007, Vol. 72, No. 206, at Pages 60609-60611.

Effective date of the Federal Communications Commission's (FCC) Second Report and Order regarding video franchising. This item is FCC 07-190 in MB Docket No. 05-311. See, notice in the Federal Register, November 23, 2007, Vol. 72, No. 225, at Pages 65670-65677. See also, story titled "FCC Adopts 2nd Report and Order on Video Franchising" in TLJ Daily E-Mail Alert No. 1,668, November 2, 2007.

Christmas.

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.

12/10. Kenneth Wainstein, the Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD), gave a speech [5 pages in PDF] in Washington DC regarding export controls.

He said that the cold war threat posed by communist countries has been replaced by the war on terror, "which is a war mainly against terrorist groups that are not foreign governments". He noted that Hizballah has attempted to export from the U.S. night vision goggles, thermal imaging camera equipment and GPS modules. However, most of the actual illegal efforts to obtain U.S. military and dual use technologies that he discussed involve nation states.

He repeatedly referred to the People's Republic of China (PRC). He said that the Department of Homeland Security's (DHS) Immigration and Customs Enforcement (ICE) "has launched more than 540 investigations of illegal technology exports to China since 2000 and the Defense Criminal Investigative Service has opened 143 such investigations in the past year alone."

He said that one problem is that others seek U.S. technologies, including know how, data, and components. He added that "foreign experts are methodically searching out trade secrets to send back to their home countries".

He some outlined some of the methods used by others to circumvent technology transfer controls laws. These include entering into joint ventures with U.S. companies, attending trade fairs, using internet based intrusions to obtain sensitive data, and using diplomats.

He said that "we also see foreign governments using official delegations as platforms for illegal collection. In fiscal year 2005 alone, delegations from the few countries that are the most flagrant violators requested a total of over 3000 official visits to military bases and/or defense industry facilities."

He also said that other nations are sending "students who come to study in high-tech fields and thereby get exposure to our sensitive technologies". He elaborated that "it's no coincidence that several of the countries that send the most students happen to be the most active and determined collectors of our technology".

Wainstein said that the DOJ is accelerating its enforcement efforts, expanding training of field prosecutors, establishing joint task forces, and increasing the "coordination between our national security prosecutors at DOJ and the export licensing officials at the State Department’s Directorate of Defense Trade Controls and the Commerce Department’s Bureau of Industry and Security."

However, he said that "this initiative does not mean new regulations".

12/17. Lance Kotschwar was named Republican General Counsel for the House Commerce Committee (HCC). He replaces David Cavicke, who was named Republican Chief of Staff in August. Kotschwar previously worked for the law firm of Foley & Lardner. Before that, he worked for the House Agriculture Committee, and for the Department of Agriculture. He does not have a background in communications or information technology issues.

12/15. Rep. Julia Carson (D-IN) died. See, statement by Rep. Steny Hoyer (D-MD), the House Majority Leader, and statement by President Bush.

12/17. The Supreme Court released no orders list on Monday, December 17, 2007. It held no weekly conference on Friday, December 14. Its next scheduled conference is on Friday, January 4, 2007.

12/17. The U.S. Court of Appeals (11thCir) issued its opinion [18 pages in PDF] in Welding Services v. Foreman, affirming the summary judgment of the District Court of infringement of service marks in violation of the Lanham Act, 15 U.S.C. § 1125(a). This case is Welding Services, Inc. v. Terry Forman, Welding Technologies, Inc., et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. No. 06-13174, an appeal from the U.S. District Court for the Northern District of Georgia, D.C. Docket No. 05-00096-CV-WCO-2.

12/17. The U.S. Court of Appeals (5thCir) issued its opinion [37 pages in PDF] in Navigant Consulting v. Wilkinson, affirming in part the judgment of the District Court in this case regarding fiduciary duty, breach of contract, and misappropriation of trade secrets. The defendants, Wilkinson and Taulman, were employees of the plaintiff, Navigant Consulting, Inc. The two managed the claims administration practice in Navigant's Dallas office, specializing in complex class action settlements. They also were bound by noncompete, nonsolicitation, and confidentiality agreements. Nevertheless, they engaged in a brazen attempt to sell Navigant's claims administration practice to its competitors. They provided competitors with confidential information about Navigant's practice, without notifying Navigant, in an effort to sell the practice (including their services, other employees, and the clients). Payment was to be made to a company owned by the two defendants. Navigant learned of the scheme when a computer technician in the Dallas office alerted corporate headquarters that he had been instructed to transfer data to a non-Navigant server. Navigant prevailed in the District Court. The Court of Appeals affirmed as to liability and damages, but reversed as to attorneys fees. This is a diversity case to which Texas law was applied. This case is Navigant Consulting, Inc. v. John Wilkinson and Sharon Taulman, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 06-11071, an appeal from the U.S. District Court for the Northern District of Texas.

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