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March 19, 2008, Alert No. 1,733.
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GAO Issues Report on IP Enforcement Trends

3/18. The Government Accountability Office (GAO) released a report [89 pages in PDF] titled "Intellectual Property: Federal Enforcement Has Generally Increased, but Assessing Performance Could Strengthen Law Enforcement Efforts".

The report covers trends in intellectual property (IP) enforcement at five federal agencies over the fiscal years 2001 through 2006. It finds that IP enforcement activity has increased. However, the report contains no breakdowns for IP enforcement by industry sectors, such as software, movies, music, video games, drugs, and so forth.

The report examines the enforcement activities of the Department of Homeland Security's (DHS) Customs and Border Patrol (CBP), which seizes infringing items at borders, the DHS's Immigration and Customs Enforcement (ICE), which investigates IP crimes, the Federal Bureau of Investigation (FBI), which also investigates IP crimes, the Food and Drug Administration (FDA), which investigates counterfeit versions of the products it regulates, and the Department of Justice (DOJ), which prosecutes IP crimes.

The report finds that "Federal IP enforcement activity generally increased from fiscal year 2001 through 2006, but agencies have not taken key steps to assess their IP enforcement achievements."

It adds that "The number of IP prosecutions by DOJ for fiscal years 2001 through 2005 hovered around 150 cases before increasing to about 200 cases in fiscal year 2006."

The report also finds that "IP enforcement activities are generally a small part of these agencies’ much broader missions, and, according to agency officials and documents, IP enforcement is not the top priority for these agencies. However, within their IP enforcement activities, these agencies have given enforcement priority to IP crimes that pose risks to public health and safety, such as counterfeit pharmaceuticals, batteries, and car parts."

Software, digital media, and consumer electronics fall outside of these health and safety areas of concern.

The report contains some information about the DOJ's Computer Hacking and Intellectual Property (CHIP) units. It states that "The number of staff dedicated to IP enforcement has grown in recent years. For example, DOJ’s CHIP units, first created in February 2000, grew from 13 units as of 2002 to 25 units as of 2007. Most of the CHIP units have approximately two or more attorneys who focus on prosecuting IP and high-technology crimes, with as many as eight in at least one of the units. As the number of units has grown, so has the number of attorneys assigned to working IP cases. As of July 2007, DOJ had 101 Assistant U.S. Attorneys assigned to CHIP units."

The report adds that "Another 122 Assistant U.S. Attorneys have been specially trained to prosecute computer crime and IP offenses, with at least one such CHIP prosecutor located in every U.S. Attorney’s Office" and that the DOJ's Computer Crime & Intellectual Property Section (CCIPS) has another "14 attorneys working on IP enforcement".

However, the report adds that "officials from the U.S. Attorney’s Offices we visited noted that, over the past few years, their offices have experienced high turnover and have been generally understaffed, with vacant positions left unfilled."

FCC Delays Location Tracking Compliance Deadline

3/12. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) issued an Order [2 pages in PDF] in the proceedings titled "In the Matter of: Wireless E911 Location Accuracy Requirements; Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems; Association of Public-Safety Communications Officials-International, Inc. Request for Declaratory Ruling; 911 Requirements for IP-Enabled Service Providers".

This bureau level order provides for a stay of "the September 11, 2008 compliance date specified in Section 20.18(h)(2)(i) of the Commission’s rules, as adopted in the September 11, 2007 Report and Order, for a term of six (6) months, until March 11, 2009." (Footnote omitted.)

The FCC adopted the underlying order on September 11, 2007, and released the text on November 20, 2007. See, story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. This September order is FCC 07-166. The just released order is DA 08-557. Both pertain to PS Docket No. 07-114, CC Docket No. 94-102, and WC Docket No. 05-196.

AT&T, Verizon Wireless, T-Mobile, Sprint-Nextel, and the Rural Cellular Association have sought a stay. See, Rural Cellular Association and T-Mobile USA v. FCC and USA , U.S. Court of Appeals (DCCir), App. Ct. Nos. 08-1069, 08-1070, and 08-1076. See also, story titled "FCC Files Opposition to Stay in Challenge to Its Latest Wireless E911 Location Tracking Mandates" in TLJ Daily E-Mail Alert No. 1,729, March 11, 2008.

FCC Commissioner Jonathan Adelstein issued a statement [PDF] regarding the just released order. "The release of a bureau-level order today to stay the September 11, 2008 E911 location accuracy compliance deadline adopted in the Report and Order in this proceeding serves as proof positive of the failure to get these rules right the first time. As I stated then, I am concerned that the majority’s insistence on plowing forward with compliance benchmarks without a full record, rather than conducting this proceeding in a more thoughtful and deliberate manner, does not truly advance E911. Instead, we find the advancement of our public’s safety entangled in legal uncertainties. Today’s action by the Public Safety and Homeland Security Bureau is nothing more than a temporary band aid that does not cure the underlying deficiencies embedded in the Report and Order." (Footnote citing September order omitted.)

Amicus Groups Argue that Significant Purpose Standard for FISA Surveillance Orders Violates 4th Amendment

3/14. The Electronic Frontier Foundation (EFF), Center for Democracy & Technology (CDT) and other groups filed an amicus curiae brief [PDF] with the U.S. Court of Appeals (9thCir) in Brandon Mayfield v. USA, a case involving abuse of the Foreign Intelligence Surveillance Act (FISA) powers by the federal government.

The District Court held in its September 26, 2007, opinion [44 pages in PDF] that the FISA, at 50 U.S.C. § 1804 and 50 U.S.C. § 1823, violates the 4th Amendment of the Constitution. See, story titled "District Court Holds Parts of FISA Violate 4th Amendment" in TLJ Daily E-Mail Alert No. 1,646, September 26, 2007.

The 4th Amendment 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."

In so doing, the District Court rejected the reasoning of the Foreign Intelligence Surveillance Court of Review (FISCR) in In re Sealed Case. See, opinion in In re: Sealed Case No. 02-001, 310 F.3d 717 (F.I.S. Ct. Rev. 2002).

Section 218 of the USA PATRIOT Act amended Section 1804 of Title 50 to provide that "(a) Each application for an order approving electronic surveillance ... shall include ... (7) a certification ... (B) that a significant purpose of the surveillance is to obtain foreign intelligence information". Previously, the standard was "primary purpose".

Section 218 of the PATRIOT Act also amended Section 1823 of Title 50 to provide that "significant purpose" is also the standard for FISA orders for "a physical search".

The USA PATRIOT Act is the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was enacted after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

These changes enable criminal prosecutors to obtain FISA search and surveillance orders, and to use evidence obtained thereby in domestic cases, provided that they can articulate a foreign intelligence or terrorism connection.

At the time the PATRIOT Act was being considered in late 2001 critics of Section 218 argued that it could be abused. That is, they argued that FISA orders would be used to collect information in criminal cases, but without the procedural safeguards that are associated with Title III warrants.

Title III is a reference to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. It is codified at Chapter 119 of Title 18 of the U.S. Code, 18 U.S.C. §§ 2510-2522. It requires, among other things, probable cause, a warrant, and notice. These are not required for FISA orders.

The EFF/CDT brief states that "The Mayfield case highlights the dangers of allowing the Executive branch to rely on foreign intelligence procedures where its primary intent is criminal prosecution. Brandon Mayfield -- a U.S. citizen, a former Army officer with an honorable discharge, and a practicing Oregon lawyer -- found himself, his wife and their three children under extraordinarily intrusive surveillance by federal agents. The agents secretly entered their family home, recorded their most intimate conversations, and followed them to and from the children's school, Mr. Mayfield's law office, family activities, and their place of worship. The FBI secretly and repeatedly entered Mr. Mayfield's home and law office, inspected, copied, and seized personal documents, legal files, computer hard drives, even the children’s homework. On one occasion one of the Mayfield children cowered in a bedroom closet while federal agents searched the home."

The amicus brief continues that "The government's primary -- perhaps even exclusive -- purpose in monitoring the Mayfield family was to criminally prosecute Mr. Mayfield. Did the FBI have criminal probable cause? No. Did the FBI have a traditional criminal warrant? No. Did the FBI ever give notice? No. The Mayfields are not alone. Today the government claims the unprecedented right to subject any number of Americans to secret and invasive searches of their homes, offices, personal belongings, telephone calls, and e-mails, without criminal probable cause, notice, or a traditional criminal warrant."

The brief argues that "The FISA's less protective standards are plainly not constitutional with respect to investigations whose primary purpose is to gather evidence of criminal activity."

This case is Mayfield et al. v. USA, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-35865, an appeal from the U.S. District Court for the District of Oregon, D.C. No. 04-1427-AA, Judge Ann Aiken presiding.

FTC Issues Consent Order Regarding Restrictions on Web Publication of Real Estate Listing Agreements

3/13. The Federal Trade Commission (FTC) filed an administrative complaint [5 pages in PDF] against Multiple Listing Service, Inc. (MLS Inc.), a Milwaukee, Wisconsin area group of real estate professionals, alleging violation of Section 5(a) of the FTC Act, which is codified at 15 U.S.C. § 45(a), in connection with the MLS Inc.'s adoption of a rule that limits the publication of certain listing agreements for the southeast Wisconsin region on real estate web sites. The MLS Inc. and FTC simultaneous settled.

The complaint alleges that "MLS, Inc. adopted a rule that limits the publication of certain listing agreements on popular internet real estate websites, in a manner that limits the ability of real estate brokers to use Exclusive Agency Listings to offer unbundled brokerage services at a lower price compared to the full service package. This rule deprives such brokers and the home sellers they represent of a significant benefit afforded by the MLS."

It adds that "Consumers are harmed by this rule because it inhibits a lower cost option to sellers and increases search costs to buyers."

The FTC and MLS entered into an Agreement Containing Consent Order, in which MLS admitted no wrongdoing. The FTC released its Decision and Order [6 pages in PDF].

It provides the MLS, Inc. "shall forthwith cease and desist from adopting or enforcing any policy, rule, practice or agreement of MLS, Inc. to deny, restrict or interfere with the ability of Participants to enter into Exclusive Agency Listings or other lawful listing agreements with the sellers of properties, including but not limited to any policy, rule, practice or agreement to", among other things, "prevent Participants from publishing information concerning listings offered pursuant to Exclusive Agency Listings on Approved Websites".

See also, March 13, 2008, letter [PDF] from the FTC to the National Association of Realtors (NAR), which previously submitted a comment for the FTC's record.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, March 19

The House will not meet.

The Senate will not meet.

9:30 AM. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting. Location: FCC, Commission Meeting Room, 445 12th St., SW.

4:00 - 6:30 PM. The New America Foundation (NAF) will host a panel discussion titled "Can Online Investing End Poverty? MicroPlace's Innovative Microfinance Strategy". The speakers will include Jamie Zimmerman (NAF), Tracey Turner (MicroPlace), Shari Berenbach (Calvert Foundation), Robert Mosbacher (P/CEO of the Overseas Private Investment Corporation), Kate McKee (Consultative Group to Assist the Poor), Ellen Seidman (NAF). See, notice. Location: Rotunda, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

Thursday, March 20

The House will not meet.

The Senate will not meet.

11:00 AM. Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), will hold a media teleconference. For more information, contact Brian Dietz at 202-222-2350.

Friday, March 21

Good Friday.

The House will not meet.

The Senate will not meet.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch titled "Understanding Satellite Technology and Spectrum Allocation". The speakers will be Tom Tycz (Goldberg Godles) and Bob Nelson (Chief of the FCC's International Bureau's Satellite Division). For more information, contact Christy Hammond at chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 10th floor conference room, 1750 K St., NW.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its negotiation of "an anti-counterfeiting trade agreement to strengthen international cooperation, enforcement practices, and participants' legal frameworks to address counterfeiting and piracy". See, notice in the Federal Register, February 15, 2008, Vol. 73, No. 32, at Pages 8910-8911.

Sunday, March 23


Monday, March 24

The House will not meet.

The Senate will not meet.

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations of individuals to serve on the USPTO's National Medal of Technology and Innovation Nomination Evaluation Committee. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4182.

Deadline to submit reply comments to the Copyright Office (CO) regarding its proposed rules changes regarding the recordation of notices of termination and related matters. The CO stated that these proposed changes "would communicate the Office's practices as to notices of termination that are untimely filed; clarify the fact that a notice of termination is not legally sufficient simply because it has been recorded; update the legibility requirements for all recorded documents, including notices of termination; make minor explanatory edits to the fee schedule for multiple titles within a document (adding notices of termination as an example); and create a new mailing address to which notices of termination should be sent." See, notice in the Federal Register, January 23, 2008, Vol. 73, No.15, at Pages 3898-3900.

EXTENDED TO APRIL 7. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding pole attachments and 47 U.S.C. § 224. The FCC adopted this NPRM on October 31, 2007, and released the text [40 pages in PDF] on November 20, 2007. This NPRM is FCC 07-187 in WC Docket No. 07-245. See, notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at Pages 6879-6888, and story titled "FCC Sets Comments Deadlines for Pole Attachments NPRM" in TLJ Daily E-Mail Alert No. 1,714, February 8, 2008. See, notice of extension in the Federal Register, February 12, 2008, Vol. 73, No. 29, at Page 8028.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance Under Section 10 of the Communications Act of 1934, as Amended". The FCC adopted this NPRM on November 27, 2007, and released the text [25 pages in PDF] on November 30, 2007. This item is FCC 07-202 in WC Docket No. 07-267. See, notice in the Federal Register, February 6, 2008, Vol. 73, No. 25, at Pages 6888-6895, and story titled "FCC Sets Comments Deadlines for Forbearance NPRM" in TLJ Daily E-Mail Alert No. 1,714, February 8, 2008.

Tuesday, March 25

The House will not meet.

The Senate will not meet.

8:00 - 10:00 AM. The Federal Communications Bar Association (FCBA) will host a breakfast and tour of the Newseum. Prices vary. See, registration form [PDF]. Registrations and cancellations are due by 5:00 PM on March 17. Location: 555 Pennsylvania Ave., NW.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) FCC Enforcement and International Telecommunications Practice Committees will host a brown bag lunch titled "Birds, Back-up Power and RF Safety: New Challenges in Antenna and Cell Site Compliance and Enforcement". The speakers will be Jeff Steinberg (FCC's Wireless Bureau), Bob Curtis (RF Check), and Christopher Guttman-McCabe (CTIA). For more information, contact Julia Pontecorvo at jpontecorvo at harriswiltshire dot com. Location: Verizon, Suite 400 West, 5th floor, 1300 I St., NW.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

Wednesday, March 26

The House will not meet.

The Senate will not meet.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) HLS/Emergency Communications Committee will host a brown bag lunch titled "The 700 MHz D-block Auction: Where Do We Go From Here?" The speakers will be Jessica Zufolo (Medley Global Advisors). Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.

6:30 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact: Stefanie Zalewski at sazalewski at mintz dot com, Chris Bjornson at crbjornson at mintz dot com, Angela Collins at afcollins at mintz dot com, Tarah Grant at tsgrant at hhlaw dot com. Location: Bar Louie, 701 7th St., NW.

Day one of a three day conference of the ABA Section of Antitrust Law. See, conference web site and brochure [3 MB in PDF]. Locations: JW Marriott Hotel and National Press Club.

Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the meaning of the Copyright Act's term "cable system", and issues related to the phantom signal phenomenon. See, notice in the Federal Register, December 12, 2007, Vol. 72, No. 238, at Pages 70529-70540, and story titled "Copyright Office Issues Notice of Inquiry Regarding Cable Systems" in TLJ Daily E-Mail Alert No. 1,688, December 13, 2007.

People and Appointments

3/19. President Bush named Heather Ann Hopkins to be Special Assistant to the President and Senior Director for Legislative Affairs in the National Security Council. See, White House release.

More News

3/17. The U.S. Court of Appeals (5thCir) issued its opinion [PDF] in Logix Communications v. Texas PUC, an interconnection case involving unbundled network element declassification by wire center. The Court of Appeals affirmed the District Court's summary judgment for AT&T. This case is Logix Communications v. Public Utilities Commission of Texas, et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 06-51697, an appeal from the U.S. District Court for the Western District of Texas.

3/17. The Copyright Office (CO) published a notice in the Federal Register that announces, recites, and sets the effective date (March 17, 2008) for changes to its rules that change royalty rates for satellite carriers based upon changes in the Consumer Price Index (CPI). See, Federal Register, March 17, 2008, Vol. 73, No. 52, at Pages 14183-14185.

3/17. Paul Atkins, a Commissioner of the Securities and Exchange Commission (SEC), gave a speech at a conference on mutual funds in Phoenix, Arizona. He said that "Investors are willing and able at the click of a mouse to send their money across the world in search of diversification, service, innovation, and higher returns." Therefore, regulators must facilitate this internationalization of the financial markets. He also discussed, among other issues, internet distribution for mutual fund prospectuses.

3/14. Ben Bernanke, Chairman of the Federal Reserve Board (FRB) gave a speech in Washington DC titled "Fostering Sustainable Homeownership". He stated, among other things, that "advances in information technology" and other developments "have significantly increased access to mortgage credit".

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