|House and Senate Leaders Release
Draft FISA Reform Bill
6/19. House and Senate leaders announced the negotiation of a bill to reform
the Foreign Intelligence Surveillance Act (FISA). See, draft of
[114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2008".
Immunity. The bill provides immunity, including retroactive immunity,
from civil suits for carriers and other service providers who cooperate, and who
cooperated in the past, with government intelligence agencies.
Title VII of the bill pertains to "Protection of Persons
Assisting the Government". It provides that "Notwithstanding any other provision
of law, a civil action may not lie or be maintained in a Federal or State court
against any person for providing assistance to an element of the intelligence
community, and shall be promptly dismissed, if the Attorney General certifies to
the district court of the United States in which such action is pending that"
any of five circumstances is present.
These five circumstances would give the Attorney General broad
power to compel the dismissal of a wide range of civil suits against carriers
and other companies.
One such circumstance is that a directive was issued under the
Protect America Act of 2007, which was enacted in August of 2007, and in effect
until February of 2008.
Another is that there was "an intelligence activity involving
communications" that was "authorized by the President during the period
beginning on September 11, 24 2001, and ending on January 17, 2007".
Another is that there was a "certification in writing" under
18 U.S.C. § 2511(2)(a)(ii)(B) or
18 U.S.C. § 2709(b).
Or, the Attorney General could compel dismissal by certifying
that "the person did not provide the alleged assistance".
It should be noted that this gives the carriers and other
companies no remedy or recourse. Only the Attorney General can compel dismissal.
This may give the Department of Justice some leverage over carriers.
This extends to any "electronic communication service provider",
which the bill defines to include communications carriers, a provider of
"electronic communication service" within the meaning of
18 U.S.C. § 2510, a provider of a "remote computing service" within the
18 U.S.C § 2711, and "any other communication service provider who has
access to wire or electronic communications either as such communications are
transmitted or as such communications are stored".
The bill also allows for removal of all state actions to federal
court. It provides that "A civil action against a person for providing
assistance to an element of the intelligence community that is brought in a
State court shall be deemed to arise under the Constitution and laws of the
United States and shall be removable under section 1441 of title 28, United
The bill also broadly preempts state laws.
Comments Senators and Representatives.
Rep. Steny Hoyer (D-MD) (at right), the
House Majority Leader, stated in a
release that "his bipartisan bill
balances the needs of our intelligence community with Americans' civil liberties, and
provides critical new oversight and accountability requirements ... It is the result of
compromise, and like any compromise is not perfect, but I believe it strikes a sound balance.
Furthermore, we have ensured that Congress can revisit these issues because the legislation
will sunset at the end of 2012."
Rep. Roy Blunt (R-M) stated in this release
that "For months, leaders of both parties in both the House and the Senate have been
working to find middle ground on FISA. Both sides have had to compromise".
He continued that "House Republicans have long believed that the Senate FISA bill
was the best way forward -- and do not believe that the courts should hold the ultimate
decision over how and when terrorist communications are monitored overseas."
Rep. Blunt also said that "we all worked from the very basic premise that
we had to find a way to modernize FISA to ensure that our intelligence
community has the tools it needs to continue monitoring foreign-based,
terrorist communications, while maintaining the protections of individual
liberties contained in the existing FISA law. I believe we have accomplished
that in this bill."
Sen. Jay Rockefeller (D-WV)
stated that this draft bill reflects a "historic, bipartisan agreement".
Sen. Kit Bond (R-MO) stated that "we
reached a bipartisan solution that will put the intelligence community back in
In contrast, Sen. Patrick Leahy (D-VT) stated in
a release that "is not
a bill I can support". He elaborated that "This bill would dismiss ongoing cases
against the telecommunications carriers that participated in that program
without allowing a judicial review of the legality of the program. Therefore, it
lacks accountability measures that I believe are crucial."
Reaction. Leslie Harris, head of the
Center for Democracy and Technology (CDT), stated in a
release that "Congress
has had ample opportunity to ensure that the civil liberties of Americans are
protected and it failed"
"Congress could have given intelligence agencies the necessary authority to
domestically collect the communications of targets abroad while preserving
privacy protections for Americans", said Harris. "Instead, under this flawed
bill, intelligence agencies can authorize themselves to conduct surveillance.
Meanwhile, court review of surveillance procedures will often be too little and
too late to provide meaningful protection."
The CDT's Greg Nojeim stated that "By granting telecom immunity, the bill
will provide relief to telecoms today, but create enormous uncertainty for
companies in the future ... What happens when a future President asks them to
assist with unlawful surveillance?"
Other Bills. On March 14, 2008, the House approved an amended version
of HR 3773 [LOC
the "Responsible Electronic Surveillance That is Overseen, Reviewed, and
Effective Act of 2007" or "RESTORE Act", by a vote of 213-197. See,
Roll Call No. 145.
President Bush promised to veto the bill on Thursday, March 13. See, story
titled "Bush Announces He Will Veto Latest House Democratic FISA Proposal" in
TLJ Daily E-Mail
Alert No. 1,730, March 12, 2008. The Senate did not take up that bill.
The Senate approved its bill, S 2248 [LOC |
the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", on
February 12, 2008, by a vote of 69-29. Twenty Senate Democrats voted for that
Roll Call No. 20. However, House Democrats refused to take up that bill.
S 1927 [LOC
the "Protect America Act", the temporary act enacted in August of 2007 to revise
and expand federal wiretap, surveillance, and related authorities, expired on
Saturday, February 16, 2008. President Bush favored that bill. However, both the
House and Senate declined to make it permanent.
|Rep. Barton Asks Yahoo for Information
Regarding its Advertising Agreement with Google
6/18. Rep. Joe Barton (R-TX), the
ranking Republican on the House
Commerce Committee (HCC), sent a
letter [4 pages in PDF] to Jerry Yang, CEO of Yahoo, in which he asked for
information about Yahoo's recently announced advertising agreement with Google.
Yahoo stated in a
release on June 12, 2008, that "it has reached an agreement with Google"
regarding search and advertising. See, story titled "Google and Yahoo Announce Search
and Advertising Agreement" in TLJ Daily E-Mail Alert No. 1,779, June 13, 2008.
Rep. Barton (at left) wrote,
"Given the consolidation within the online advertising industry, and with three
companies dominating the U.S. online search market, I am concerned about how this
collaboration will impact competition within the online search advertising
He added that "I am also concerned about how the relationship between Google
and Yahoo! will affect the collection, storage, and use of data relating to an
individual's online activity."
The letter then propounds numerous interrogatories that relate to competition
or privacy issues.
|11th Circuit Addresses Commingling
of §271 and §251 Elements
6/18. The U.S. Court of Appeals
(11thCir) issued its
[12 pages in PDF] in Nuvox Communications v. BellSouth, a case
regarding CLEC access to UNEs of ILECs under 47 U.S.C. § 251, competitive
checklist items listed in
47 U.S.C. § 271,
and the Federal Communications Commission's (FCC) implementing rules. In
particular, this case involves commingling of §271 items with §251 UNEs.
The Court of Appeals affirmed the judgment of the District Court, which held
that BellSouth, as an ILEC, is required to commingle §271 elements with §251 UNEs.
BellSouth Communications, which now AT&T, is an incumbent local exchange
carrier (ILEC) and regional Bell operating company (RBOC) in the state of
Florida within the meaning of the Communications Act. Nuvox Communications and
Xspedius Communications are competitive local exchange carriers (CLECs). They
sought access to BellSouth's facilities.
47 U.S.C. § 251
provides the interconnection requirements of all telecommunications carriers.
§251(c) provides additional interconnection requirements for ILECs. §251(c)(3)
addresses unbundled network elements (UNEs).
It states that ILECs have "The duty to provide, to any requesting
telecommunications carrier for the provision of a telecommunications service,
nondiscriminatory access to network elements on an unbundled basis at any
technically feasible point on rates, terms, and conditions that are just,
reasonable, and nondiscriminatory in accordance with the terms and conditions of
the agreement and the requirements of this section and section 252 of this
title. An incumbent local exchange carrier shall provide such unbundled network
elements in a manner that allows requesting carriers to combine such elements in
order to provide such telecommunications service."
Prior to enactment of the Telecommunications Act of 1996, the RBOCs were
prohibited from offering long distance services.
47 U.S.C. § 271
established a process by which RBOCs could petition the FCC on a state by state
basis to obtain authority to provide long distance service.
§271 further provided that for RBOCs to obtain this long distance authority,
they must implement of a "competitive checklist" of services and facilities that
the RBOC must make available to CLECs operating in the state. The §271 checklist
overlaps the §251 UNEs list.
FCC rules provide that elements that are required to be made available only
under §271 -- unlike elements required under §251 -- need not be provided in
combined, prepacked form. The U.S. Court of Appeals (DCCir) affirmed these rules in 2004
opinion [62 pages in PDF] in USTA v. FCC, 359 F.3d 554. (Although,
the Court of Appeals overturned other rules in that opinion.)
The Court of Appeals wrote that "The FCC also eliminated its
general ban on ``commingling, ´´ defined as combining loops or loop-transport
combinations obtained as unbundled network services with services obtained at
wholesale from an incumbent LEC. ... The FCC’s commingling requirement contains
the statement: ``[A]n incumbent LEC shall permit a requesting telecommunications
carrier to commingle an unbundled network element or a combination of unbundled
network elements with wholesale services obtained from an incumbent LEC.´´"
Nuvox and Xspedius and BellSouth did not reach an agreement. Nuvox and
Xspedius filed a petition for arbitration with the
Florida Public Service Commission (FPSC),
under procedure set forth in 47 U.S.C. § 252. The FPSC held that the FCC did not
intend for its commingling requirement to apply to §271 elements.
Nuvox and Xspedius then filed a complaint in
U.S. District Court (NDFl) seeking
judicial review of the FPSC ruling. The District Court reversed. It held that
the FCC’s commingling requirements mandated that BellSouth combine facilities
provided under §271 with those that must be provided under §251.
BellSouth then brought the present appeal. The Court of Appeals affirmed the
This case is Nuvox Communications, Inc. and Xspedius Communications, LLC
v. BellSouth Communications, Inc., U.S. Court of Appeals for the 11th
Circuit, App. Ct. No. 07-13028, an appeal from the U.S. District Court for the
Northern District of Florida, D.C. No. 06-00308 CV-4-SPM-WCS.
|Free Press and Public Knowledge Allege
More ISP Bad Behavior
6/18. Robert Topolski, Chief Technology Consultant for the Free Press and Public Knowledge,
wrote a paper [18 pages
in PDF] titled "NebuAd and Partner ISPs: Wiretapping, Forgery and Browser
It states that NebuAd is a "targeted behavioral
advertising company" that has "struck a deal" with
Charter Communications, which is a provider of
broadband internet access services.
Topolski's paper asserts that "NebuAd’s advertising hardware monitors, intercepts
and modifies the contents of Internet packets using Transmission Control Protocol on Internet
Protocol (TCP/IP). In doing so, NebuAd commandeers users’ Web browsers and collects uniquely
identifying tracking cookies to facilitate its advertising model. Apparently, neither the
consumers nor the affected Web sites have actual knowledge of NebuAd’s interceptions and
Free Press and
Public Knowledge (PK) are groups
that advocate the imposition of network neutrality mandates by the Congress and
Federal Communications Commission (FCC). This paper is
another in a series of FP and PK complaints, reports, and allegations regarding
business practices that the two groups assert warrants government intervention.
Gigi Sohn, head of the PK, stated in a
release that “Once again, it shows
that ISPs are putting themselves where they don’t belong -- inserting themselves between
consumers and Web sites ... Inserting unwanted information and advertising under false
pretenses violates every concept of an open and free Internet."
Also, Rep. Joe Barton (R-TX), the ranking
Republican on the House Commerce Committee
(HCC), and Rep. Ed Markey (D-MA), the Chairman of
the HCC's Subcommittee on Telecommunications and the Internet, sent a
letter [PDF] on May 16, 2008, to Neil Smit, P/CEO of Charter Communications,
requesting that "you do not move forward on Charter Communications' proposed
venture with NebuAd until we have an opportunity to discuss with you issues
raised by this proposed venture."
Topolski's report further states that "NebuAd exploits several forms of ``attack´´
on users’ and applications’ security ... including browser hijacking, cross-site scripting
and man-in-the-middle attacks. These practices -- committed upon users with the paid-for
cooperation of ISPs -- violate several fundamental expectations of Internet privacy,
security and standards-based interoperability."
Moreover, writes Topolski, "NebuAd
violates the Internet Engineering Task Force (IETF) standards that created
today’s Internet where the network operators transmit packets between end users
without inspecting or interfering with them. For example, the TCP protocol would
normally not accept code from a source that is a third party from the
client-server connection. NebuAd engages in packet forgery to trick a user’s
computer into accepting data and Web page changes from a third party like NebuAd."
Topolski's use the term "wiretapping" may be intended as a metaphor, rather
than as an allegation of violation of the federal wiretap statute, which is
codified at 18 U.S.C.
§ 2511. Similarly, his use of the term "forgery" may not be intended as an
allegation of violation of either state or federal forgery statutes, such as
those codified in
Chapter 47 of Title 18 of the U.S. Code.
Topolski also wrote a declaration in support the
pages in PDF] filed with the FCC by the PK and FP on November 1, 2007, titled "Formal
Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly
Degrading Peer-to-Peer Applications".
That complaint alleged that Comcast was "degrading peer-to-peer protocols" by
inserting forged reset packets into communications between peers in peer to peer (P2P)
communications that terminate those communications, which had the affect of interfering with
BitTorrent. See, story
titled "Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005
Policy Statement" in TLJ
Daily E-Mail Alert No. 1,669, November 5, 2008.
Comcast and BitTorrent subsequently announced that they reached an accord on this subject.
See, story titled "Comcast and BitTorrent Reach Accord on Network Management
Practices" in TLJ Daily
E-Mail Alert No. 1,738, March 27, 2008.
|Washington Tech Calendar
New items are highlighted in red.
|Friday, June 20
schedule for week of June 16 states that "no votes are expected in the
10:00 AM. The Senate
Homeland Security and Governmental Affairs Committee will hold a hearing on the
nomination of Elaine Duke to be Under Secretary for Management at the
Department of Homeland Security (DHS). See,
notice. Location: Room 342, Dirksen Building.
12:00 NOON - 1:30 PM. The Federal
Communications Bar Association (FCBA) will host a lunch. The speaker will be
Rep. Ed Markey (D-MA), Chairman
of the House Commerce Committee's
(HCC) Subcommittee on Telecommunications and the Internet. See,
notice and registration page. The price to attend is $70.00. Location: Mayflower Hotel,
1127 Connecticut Ave., NW.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
its Second Further Notice of Proposed Rulemaking (2ndFNPRM) regarding reauctioning the
D block of the 700 MHz auction
No. 73). The FCC adopted this item on May 14, 2008. See, story titled "FCC
Announces NPRM for D Block Auction" in TLJ Daily E-Mail Alert No. 1,766, May 14, 2008.
The FCC later released the
[101 pages in PDF]. It is FCC 08-128 in WT Docket No. 06-150 and PS Docket No.
06-229. See, notice in the
Federal Register, May 21, 2008, Vol. 73, No. 99, at Pages 29581-29623.
|Saturday, June 21
Deadline to submit replies to oppositions to the Federal Communications
Commission (FCC) regarding a
petition for reconsideration [42 pages in PDF] in the FCC's universal service and access
charge reform proceedings (CC Docket No. 96-45, CC Docket No. 96-262, and WC Docket No.
06-122). See, notice in the
Federal Register, May 27, 2008, Vol. 73, No. 102, at Page 30393.
|Monday, June 23
12:15 - 1:45 PM. The
New America Foundation (NAF) will host a panel
discussion titled "Developing a National Broadband Strategy to Keep the U.S.
Prosperous in the 21st Century". The speakers will be FCC Commissioner
Michael Copps, FCC Commissioner
Jonathan Adelstein, Jane Patterson
(e-NC Authority), Jim Baller (Baller Herbst Law Group), Diana Oblinger (Educause), Stan
Fendley (Fiber to the Home Council), Michael Calabrese (NAF). Lunch will be served. See,
registration page. Location: Room 902, Hart Building, Capitol Hill.
|Tuesday, June 24
9:30 AM. The House
Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will
hold a hearing titled "The Future of Universal Service: To Whom, By Whom, For What,
and How Much?" This hearing will be webcast by the HCC. Location: Room 2123,
10:00 AM. The Senate
Finance Committee (SFC) will hold a hearing titled "Oversight of
Trade Functions: Customs and Other Trade Agencies". See,
Location: Room 215, Dirksen Building.
11:30 AM. The House
Judiciary Committee's (HJC) Subcommittee on Crime will hold a hearing titled
"Online Pharmacies and the Problem of Internet Drug Abuse". See,
hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.
1:00 PM. The House
Judiciary Committee's (HJC) Subcommittee on Administrative Law will hold a
hearing on HR 5267 [
LOC | WW],
the "Business Activity Tax Simplification Act of 2008". See,
notice and story
titled "Boucher and Goodlatte Again Introduce BAT Bill" in
TLJ Daily E-Mail Alert No.
1,715, February 11, 2008. Location: Room 2237, Rayburn Building.
1:00 - 4:00 PM. The
House Science Committee's (HSC)
Subcommittee on Investigations and Oversight will hold a hearing titled "American
Decline or Renewal? Part 2 -- The Past and Future of Skilled Work". The
witnesses will be John Russo (Youngstown State University), Frank Morgan
(White & Case), Howard Rosen (Peterson Institute for International Economics),
Jeanie Moore (Rowan-Cabarrus Community College), and Thomas Palley (Economics
for Democratic & Open Societies Project). The HSC will webcast this hearing.
Location: Room 2318, Rayburn Building.
TIME? The U.S.
District Court (DC) will hold a status hearing in U.S. v. Microsoft.
See, June 17, 2008, pleading
[17 pages in PDF] titled "Joint Status Report on Microsoft's Compliance with the
Final Judgments". This case is D.C. No. 98-1232 (CKK) and D.C. No. 98-1233,
|Wednesday, June 25
9:30 AM. The Senate
Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing
titled "Laptop Searches and Other Violations of Privacy Faced by Americans
Returning from Overseas Travel". Sen.
Russ Feingold (D-WI) will preside. Location: Room 226, Dirksen Building.
|Thursday, June 26
10:00 AM. The
Senate Judiciary Committee (SJC) may hold an executive business meeting.
includes consideration of four judicial nominees: Paul Gardephe (to be a Judge
of the U.S. District Court for the Southern District of New York), Kiyo
Matsumoto (E.D.N.Y.), Cathy Seibel (S.D.N.Y.), and Glenn Suddaby (N.D.N.Y.).
The SJC rarely follows its published agenda. Location: Room 226, Dirksen
11:00 AM - 12:30 PM. The Heritage
Foundation will host a panel discussion titled "Homeland Security, Privacy
and Civil Liberties: A Five Year Review". The speakers will be
Chertoff (Secretary of Homeland Security),
(Officer for Civil Rights and Civil Liberties, DHS),
Hugo Teufel (Chief
Privacy Officer, DHS), Peter
Swire (Ohio State University law school), Kevin Lanigan
(Human Rights First), and
(Heritage). See, notice.
Location: Heritage, 214 Massachusetts Ave., NE.
12:00 NOON. The Cato Institute will
host a panel discussion titled "Trade Facilitation: The New Wave of International
Trade Liberalization?". The speakers will be
Steven Creskoff (Creskoff
& Doram), Michael Finger, Bill Lane (Caterpillar, Inc.), John Wilson (World Bank),
and Dan Ikenson (Cato). Cato will
webcast this event. Lunch will be served after the program. See,
notice and registration
page. Location: Cato, 1000 Massachusetts Ave., NW.
4:00 - 5:45 PM. The American Enterprise
Institute (AEI) will host a discussion of the
[Amazon] titled "Termites in the Trading System: How Preferential Agreements
Undermine Free Trade", by Jagdish
Bhagwati. The speakers will be Bhagwati, Brian Hindley
(European Centre for International Political Economy),
Philip Levy (AEI), and Claude Barfield (AEI). See,
notice. Location: AEI, 12th floor, 1150 17th St., NW.
|Friday, June 27
9:00 AM - 4:00 PM. The Federal Communications Commission's
(FCC) Consumer Advisory Committee will meet. See,
notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th St., SW.
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 fee of $50 for
filing a request for reconsideration on paper of an examining attorney's final refusal,
whereas no fee would be required for a request for reconsideration filed through the
Trademark Electronic Application System (TEAS). See,
notice in the Federal Register,
April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to
its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the eligible
telecommunications carrier (ETC) obligation to provide monthly digital television (DTV)
transition notices to low income subscribers should be expanded to require the provision of
such notices to all subscribers, and whether multichannel video programming distributors
(MVPDs) should be required to provide on air DTV transition education on their systems. This
[30 pages in PDF] is FCC 08-119 in MB Docket No. 07-148. See also,
correction [PDF]. See,
notice in the
Federal Register, May 28, 2008, Vol. 73, No. 103, at Pages 30591-30596.
|About Tech Law Journal
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
P.O. Box 4851, Washington DC, 20008.
dba Tech Law Journal. All rights reserved.