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May 13, 2008, Alert No. 1,765.
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Rep. Price Introduces Bill to Increase Transparency in Intelligence Contracting

5/6. Rep. David Price (D-NC) and Rep. Janice Schakowsky (D-IL) introduced HR 5973 [LOC | WW], the "Transparency and Accountability in Intelligence Contracting Act of 2008", a bill to require a slight increase in transparency and accountability within the intelligence community for activities performed under federal contracts.

This bill would require the Director of National Intelligence (DNI) to submit an annual assessment to the Congress regarding the use of private contractors and private contractor personnel. Although, this assessment would only contain summary data. For example, it would not, with exceptions, require the disclosure of the names of the contractors, or the subject matter of the contracts.

The bill requires further reporting to the Congress on the use of private contractors to perform intelligence activities. The bill defines this to include the "Conduct of electronic or physical surveillance or monitoring of United States citizens in the United States", as well as "Intelligence collection" and "Intelligence analysis".

The reference to US citizens in the US might be interpreted to exclude from the scope of the bill all electronic surveillance for intelligence agencies, including those where US citizens in the US are a party to the surveilled communications.

The vaguely worded bill does not expressly require the disclosure of the names of the contractors, or the purpose of the contracts. However, it does require "an identification of contracts where the contractor is providing a substantially similar functions to a Government employee".

Otherwise, the DNI must provide assessments of "costs" and "the appropriateness of using contractors", and analyses of "attrition", "accountability mechanisms", and "oversight".

This vaguely worded bill is unclear as to what specificity would be required in these DNI reports about contracts with communications, internet, software, or information technology companies.

This bill was referred to the House Intelligence Committee, House Armed Services Committee, and House Judiciary Committee. Neither Rep. Price nor Rep. Schakowsky is a member of any of these Committees. They are members of the House Appropriations Committee and House Commerce Committee, respectively.

Reps. Matheson and Terry Introduce Video Game Regulation Bill

5/7. Rep. Jim Matheson (D-UT) and Rep. Lee Terry (R-NE) introduced HR 5990 [LOC | WW], the "Video Games Ratings Enforcement Act".

Rep. Jim MathesonRep. Matheson (at right) stated in a release that "Too many children are spending too much time playing inappropriate video games that most parents would find shocking and objectionable ... As a parent, I know that Iím the first line of defense against my kids playing Mature-rated video games. But parents can't be everywhere monitoring everything and some reasonable, common sense rules ought to be in place to back parents up."

Rep. Terry stated in a release that this bill "would require all retailers to check identification for any children trying to buy or rent M-rated (Mature) or AO-rated (Adult Only) games. It also requires that ratings system explanations be posted in stores so that parents can make the best decisions for their family about which games children can purchase or rent."

Bill Summary. First, this bill would impose a ratings label requirement. It provides that "It shall be unlawful for any person to ship or otherwise distribute in interstate commerce, or to sell or rent, a video game that does not contain a rating label, in a clear and conspicuous location on the outside packaging of the video game, containing an age-based content rating determined by" the Entertainment Software Ratings Board (ESRB).

Second, this will would prohibit the sale or rental of adult rated video games to minors. It provides that "It shall be unlawful for any person to sell or rent, or attempt to sell or rent -- (1) any video game containing a content rating of `Adults Onlyī (as determined by the Entertainment Software Ratings Board) to any person under the age of 18; or (2) any video game containing a content rating of `Matureī (as determined by such Board) to any person under the age of 17." (Parentheses in original.)

Then, the bill would give rulemaking and civil enforcement authority to the Federal Trade Commission (FTC).

The bill would require that the FTC "shall", within 180 days of enactment, "promulgate rules requiring all retail establishments engaged in the sale of video games to display, in a clear and conspicuous location, information about the content rating system of the Entertainment Software Ratings Board. Such rules shall prescribe the information required to be displayed concerning the basic age-based content ratings of such Board."

The bill would provide that the FTC shall treat violations of either the ratings label requirements, or the sale to minors prohibition, as "a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B))."

The bill was referred to the House Commerce Committee (HCC).

Related Bills. Many bills related to video games have been introduced in this and earlier Congresses. See for example:

  • HR 2958 [LOC | WW], the "Children Protection from Video Game Violence and Sexual Content Act", introduced by Rep. Joe Baca (D-CA) and others on July 10, 2007. See also, story titled "Rep. Baca Introduces Bill to Require Studies of Video Games" in TLJ Daily E-Mail Alert No. 1,611, July 18, 2007.
  • HR 1531 [LOC | WW], the "Video Game Decency Act of 2007" introduced by Rep. Fred Upton (R-MI) and Rep. Bobby Rush (D-IL) on March 15, 2007.
  • S 948 [LOC | WW], the "Children and Media Research Advancement Act" or the "CAMRA Act", introduced by Sen. Joe Lieberman (D-CT) and others on March 21, 2007. This bill would authorize federal funding to study the role and impact of electronic media in the development of children
  • S 568 [LOC | WW], the "Truth in Video Game Rating Act" introduced by Sen. Sam Brownback (R-KS) February 13, 2007.

Litigation. The video game industry has been successful in obtaining judicial relief against legislative regulation of video game sales.

For example, on March 17, 2008, the U.S. Court of Appeals (8thCir) issued its opinion [8 pages in PDF] in Entertainment Software Association v. Swanson, affirming the District Court's permanent injunction against enforcement of a statute of the state of Minnesota that prohibits minors from purchasing or renting certain video games.

Minnesota enacted a statute titled "Minnesota Restricted Video Games Act", which is now codified at Minnesota Statutes Section 325I.06, that provides that a person under the age of 17 may not knowingly rent or purchase a video game rated AO or M by the ESRB, and that violation is subject to a civil penalty of up to $25.

The Entertainment Software Association (ESA) and Entertainment Merchants Association (EMA) filed a complaint [PDF] in U.S. District Court (DMinn) against Lori Swanson, in her capacity as Attorney General of Minnesota seeking an injunction on constitutional grounds. The District Court enjoined enforcement of the statute. It reasoned that the video games a protected speech, and that strict scrutiny analysis is applicable. This order [PDF] is reported as Entertainment Software Assín v. Hatch, 443 F. Supp. 2d 1065 (2006).

Minnesota appealed. The Court of Appeals affirmed. See also, story titled "8th Circuit Affirms Injunction of State Regulation of Violent Video Games" in TLJ Daily E-Mail Alert No. 1,732, March 18, 2008.

Similarly, on November 28, 2006, the U.S. Court of Appeals (7thCir) issued its opinion in ESA v. Blogojevich, a constitutional challenge to the Illinois Sexually Explicit Video Game Law (SEVGL). The Court of Appeals affirmed the judgment of the District Court that the statute violates the First Amendment.

The Court of Appeals held that there are numerous constitutional infirmities with the statute. It held that the state's criminalization of the sale of "sexually explicit" video games to minors is overbroad, not narrowly tailored, and is not the least restrictive alternative. It also held that the state's mandating of labels on games and signs in stores constitutes impermissible compelled speech.

See also, story titled "7th Circuit Holds Illinois Video Game Law Unconstitutional" in TLJ Daily E-Mail Alert No. 1,495, November 29, 2006.

Sens. Specter and Lieberman Introduce Bill Regarding Foreign Forum Shopping Libel Actions

5/6. Sen. Arlen Specter (R-PA) and Sen. Joe Lieberman (D-CT) introduced S 2977 [LOC | WW], the "Free Speech Protection Act of 2008", a reaction to litigation in foreign courts directed at suppressing Constitutionally protected speech in the United States.

This bill, as introduced, is substantially identical to HR 5814 [LOC | WW], as introduced, which is also titled the "Free Speech Protection Act of 2008". These bills would provide relief to speakers and publishers in the US who find themselves subjected to libel litigation in foreign countries for speech that is protected by the First Amendment in the US.

See also, story titled "Rep. King Introduces Free Speech Protection Act" in TLJ Daily E-Mail Alert No. 1,756, April 29, 2008.

The risk of distant foreign litigation is heightened by internet publication of speech in digital format, and by internet based sales of hard copies.

Sen. Arlen SpecterSen. Specter (at right) stated in the Senate that "American journalists and academics must have the freedom to investigate, write, speak, and publish about matters of public importance, limited only by the legal standards laid out in our First Amendment jurisprudence, including precedents such as New York Times v. Sullivan. Despite the protection for free speech under our own law, the rights of the American public, and of American journalists who share information with the public, are being threatened by the forum shopping of defamation suits to foreign courts with less robust protections for free speech." See, Congressional Record, May 6, 2008, at Page S3793.

The Supreme Court's landmark opinion in New York Times v. Sullivan is reported at 376 U.S. 254 (1964).

He continued that "These suits are filed in, and entertained by, foreign courts, despite the fact that the challenged speech or writing is written in the U.S. by U.S. journalists, and is published or disseminated primarily in the U.S. The plaintiff in these cases may have no particular connection to the country in which the suit is filed. Nevertheless, the U.S. journalists or publications who are named as defendants in these suits must deal with the expense, inconvenience, and distress of being sued in foreign courts, even though their conduct is protected by the First Amendment."

He reviewed litigation in English and U.S. courts involving Rachel Ehrenfeld and her book [Amazon] titled "Funding Evil: How Terrorism Is Financed -- and How to Stop It". See also, stories titled "2nd Circuit Affirms in Ehrenfeld v. Mahfouz" and "New York Senate Passes Libel Terrorism Protection Act" in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008.

He then summarized his bill. He said that "This legislation creates a Federal cause of action and Federal jurisdiction so that Federal courts may determine whether there has been defamation under U.S. law when a U.S. journalist, speaker, or academic is sued in a foreign court for speech or publication in the U.S. The bill authorizes a court to issue an order barring enforcement of a foreign judgment and to award damages."

People and Appointments

5/8. The Senate confirmed William Burns to be Under Secretary of State (Political Affairs). See, Congressional Record, May 8, 2008, at Page S3986.

5/12. Berin Szoka joined the Progress & Freedom Foundation (PFF) with the title of "Visiting Fellow". He previously worked in the Washington DC office of the law firm of Latham & Watkins. Before that, he worked for the Washington DC law firm of Lawler Metzger Milkman & Keeney. The PFF stated in a release that Szoka will "study a number of Internet policy issues at PFF, including privacy, intermediary immunity and online taxation". See also, Szoda's LinkedIn page.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, May 13

The House will meet at 12:30 PM for morning hour debate, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of May 12, and schedule for May 13.

The Senate will meet at 10:00 AM. It will resume consideration of S 2284 [LOC | WW], the flood insurance bill.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "DTV Consumer Education Requirements: FCC Form 388 and Beyond". The speakers will be Eloise Gore (FCC) and Ann Bobeck (National Association of Broadcasters). Location: NAB, 1771 N St., NW.

Wednesday, May 14

The House will meet at 10:00 AM for legislative business. Rep. Hoyer's schedule for week of May 12.

9:30 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". The agenda may include a Second Further Notice of Proposed Rulemaking related to the failed D Block component of Auction No. 73 (700 MHz auction), and a Fourth Memorandum Opinion and Order on narrowbanding. See, notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.

RESCHEDULED FROM APRIL 21. 10:00 AM. The Securities and Exchange Commission (SEC) will meet. The agenda states that the SEC "will consider whether to propose amendments to provide for corporate financial statement information to be filed with the Commission in interactive data format, and a near- and long-term schedule therefor." See, notice of postponement. Location: SEC,  Room L-002, 100 F St., NE.

CANCELLED. 12:30 - 2:00 PM. The Progress & Freedom Foundation (PFF) will host an event titled "The Future of Broadcast Regulation: Markets or Mandates?".

Thursday, May 15

The House will meet at 10:00 AM for legislative business. Rep. Hoyer's schedule for week of May 12.

10:00 AM. The Senate Commerce Committee will hold a business meeting. The agenda includes consideration of of the nomination of Lily Claffee to be General Counsel of the Department of Commerce. See, notice. Location: Room 253, Russell Building.

10:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

11:00 AM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing on HR 5546 [LOC | WW], the "Credit Card Fair Fee Act of 2008". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON. The Heritage Foundation will host an event titled "U.S. International Broadcasting on the Frontlines of Freedom". The speakers will be James Glassman (Chairman of the Broadcasting Board of Governors) and Helle Dale (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Alliance for Public Technology (APT) and The Children's Partnership (TCP) will host a brown bag lunch titled "Information Technology Making a Difference in Children's Lives". The speakers will be Joy Howell, Laurie Lipper, and Ken Kelly. Location: APT, 10th floor, 919 18th St., NW.

2:00 PM. The Senate Committee on Foreign Relations will hold a hearing titled "U.S. China Relations in the Era of Globalization". The witnesses will be John Negroponte (Deputy Secretary of State), Richard Haass (Council on Foreign Relations), Kurt Campbell (Center for a New American Security), and Harry Harding (George Washington University). See, notice. Location: Room 419, Dirksen Building.

2:00 PM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia will hold a hearing titled "National Security Bureaucracy for Arms Control, Counterproliferation, and Nonproliferation Part I: The Role of the Department of State". See, notice. Location: Room 342, Dirksen Building.

TIME CHANGE. 3:30 PM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 2913 [LOC | WW], the "Shawn Bentley Orphan Works Act Of 2008", and S 1738 [LOC | WW], the "Combating Child Exploitation Act". S 2913 degrades the remedies available to copyright owners in civil actions for infringement of copyright. S 1738 would, among other things, provide for more Department of Justice (DOJ) regional computer forensic laboratories, and provide that "crimes against children" are predicate offenses for the issuance of wiretap orders to state law enforcement agencies. The agenda also includes consideration of the nomination of Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir). See, notice. The SJC rarely follows its published agendas. All three of these items were held over from the May 8 meeting. Location: Room 226, Dirksen Building.

Friday, May 16

Rep. Hoyer's schedule for week of May 12 states that "no votes are expected in the House".

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure. See, notice in the Federal Register, April 11, 2008, Vol. 73, No. 71, at Page 19904. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

12:00 NOON - 2:00 PM. The DC Bar Association will host panel presentation titled "Arbitration of Antitrust Claims in the U.S. and Europe". The speakers will be Daniel Margolis, Mark Joelson, Donald Baker (Baker & Miller), and Gordon Blanke (SJ Berwin). The price to attend ranges from $5 to $30. For more information, contact 202-626-3463. See, notice. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

Monday, May 19

9:00 AM - 12:45 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau will host an event titled "Promoting an Effective Emergency Alert System on the Road to a Next Generation EAS". The FCC will webcast the event. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the Recommended Decision of the Federal State Joint Board on Universal Service, released on November 20, 2007, regarding comprehensive reform of high cost universal service taxes and subsidies. The FCC adopted this NPRM on January 15, 2008, and released the text on January 29, 2008. It is FCC 08-02 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11587-11591. See also, notice [PDF] of extension (DA 08-674).

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Notice of Proposed Rulemaking (NPRM) regarding the use of reverse auctions to determine the amount of high cost universal service subsidies provided to eligible telecommunications carriers serving rural, insular, and high cost areas. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-05 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11591-11602. See also, notice [PDF] of extension (DA 08-674).

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the FCC's rules governing the amount of high cost universal service subsidies provided to competitive eligible telecommunications carriers (ETCs). This NPRM also tentatively concludes that the FCC should eliminate the existing identical support rule, which is also known as the equal support rule. The FCC adopted this NPRM on January 9, 2008, and released the text on January 29, 2008. It is FCC 08-04 in WC Docket No. 05-337 and CC Docket No. 96-45. See, original notice in the Federal Register, March 4, 2008, Vol. 73, No. 43, at Pages 11580-11587. See also, notice [PDF] of extension (DA 08-674).

Tuesday, May 20

10:00 AM - 4:15 PM. The U.S.-China Economic and Security Review Commission will hold a hearing titled "China's Proliferation Practices and the Development of its Cyber and Space Warfare Capabilities". See, notice in the Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 23005-23006. Location: Room 562, Dirksen Building, Capitol Hill.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireline and International Practice Committees will host a brown bag lunch titled "Functional Separation proposals under the European Commission review of the European Unionís Framework Directive". The speakers may include Sheba Chacko (BT), Wolfgang Jakubek (Deutsche Telecom), Scott Harris (Harris Wiltshire & Grannis), and Don Stockdale (FCC). For more information, contact Nick Alexander at Nicholas dot Alexander at fcc dot gov. Location: Akin Gump, 1333 New Hampshire Ave, NW.

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