4/29. President Obama announced his intent to nominate Mignon Clyburn to be a Commissioner of the Federal Communications Commission (FCC). See, White House news office release.

Her father is the House Majority Whip, Rep. Jim Clyburn (D-SC).

Clyburn (at right) is a member of the Public Service Commission of South Carolina. Previously, she was Publisher and General Manager of The Coastal Times, a weekly newspaper in Charleston, South Carolina.

She would replace Jonathan Adelstein, who Obama has selected to head the Department of Agriculture's (DOA) Rural Utilities Service (RUS).

Obama previously announced that Julius Genachowski is his selection to Chair the FCC. Michael Copps holds the third Democratic seat. See, story titled "Julius Genachowski" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2009.

Republican Robert McDowell remains an FCC Commissioner, while the other Republican seat remains empty.

FCC Chairman Copps stated in a release that he congratulates her. He added that "She is an excellent choice, and the experience she brings from her service on South Carolina’s Public Service Commission will be an invaluable asset as we address the many challenges and opportunities that are before us. I wish her a successful Senate confirmation and look forward to working with her over the coming months and years in serving consumers and the public interest."

FCC Commissioner McDowell stated in a release that he congratulates her. He added that her experience on the PSCSC "as her involvement in many professional and civic organizations gives her a strong background to tackle the many issues facing the Commission. I look forward to working with my colleagues as we grow towards a full Commission and I wish Commissioner Clyburn well in the confirmation process."

Similarly, the heads of various trade groups congratulated Clyburn, praised her experience, and expressed an interest in working with her. See, statement of Kyle McSlarrow, head of the National Cable and Telecommunications Association (NCTA), statement of Steve Largent, head of the CTIA, statement of David Rehr, head of the National Association of Broadcasters (NAB), and statement of Walter McCormack, head of USTelecom.

4/29. The U.S. District Court (WDMo) unsealed a 51 count indictment that charges Amir Ahmad Shah, Osmaan Ahmad Shah, I2O, Inc., Liu Guang Ming, and Paul Zucker with violation of the criminal provisions of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), which are codified at 18 U.S.C. § 1037, and criminal violation of the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030, in connection with their alleged e-mail address harvesting and of sending of unsolicited e-mail messages, in furtherance of fraudulent marketing campaigns.

The indictment, which was returned on April 23, 2009, also alleges criminal conspiracy in violation of 18 U.S.C. § 371.

The 59 page indictment, and a shorter Department of Justice (DOJ) release summarizing the indictment, explain a long running, complicated and large scale conspiracy spanning the U.S. and the People's Republic of China that targeted university students in the U.S.

The DOJ release states that "The federal indictment alleges that the spam e-mail scheme targeted colleges and universities" in the U.S. It further alleges that the Shahs "developed e-mail extracting programs, which they used to illegally harvest more than eight million student e-mail addresses from more than 2,000 colleges and universities. They allegedly used this database of e-mail addresses to send targeted spam e-mails selling various products and services to those students. They conducted at least 31 of these spam e-mail marketing campaigns directed at students ... selling more than $4.1 million worth of products."

The indictment details the technology based methods employed by the defendants to frustrate spam filters, as well as their brazenness. For example, it states that they would walk into university facilities, sit down at computers connected to university networks, and send out hundreds of thousands of spam messages at a sitting.

The two lead plaintiffs were based in the U.S. They have been arrested. Their property has been seized. However, they also relied upon servers and support in PR China.

Another significant aspect of this case is the use of § 1030, the computer hacking statute, to pursue spamming activities that are criminalized by § 1037.

§ 1030 is a long and vaguely worded statutory section. Members of Congress who drafted and voted for bills enacting and amending this section understood it to be directed at activities in the nature of computer hacking. However, as cases such as USA v. Lori Drew illustrate, as used by the DOJ, its reach is broad and undefined. It also fails to put potential defendants on notice as to what activities are prohibited.

TLJ spoke with DOJ employees regarding USA v. Shah who offered no elaboration on the history of bringing § 1030 cases against spammers, and no explanation for invoking § 1030 in this case.

The indictment contains numerous counts alleging violation of § 1037 (which contains the criminal provisions of the CAN-SPAM Act) in connection with sending spam.

The indictment also alleges violation of § 1030(a)(5)(A)(i) for the same conduct. This subsection provides that "whoever ... knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer ... shall be punished ..."

§ 1037 does not criminalize e-mail address harvesting. (The CAN-SPAM Act only provides civil liability for harvesting.) But, the indictment charges violation of § 1030(a)(2)(C) for using "a computer program known as an email extractor to harvest student email addresses from approximately two thousand (2,000) universities". (Parentheses in original.)

§ 1030(a)(2)(C) provides that "whoever ... intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer ... shall be punished ..." This subsection is directed at, and used against, criminals who hack into computer systems to steal credit card and other valuable information.

By also invoking § 1030 the DOJ has elevated email harvesting from a civil to a criminal offense. It has also increased the number of counts.

§ 1030 and § 1037 are similar in sentencing, although § 1030 provides slightly high maximum sentences. Both also provide for forfeiture of property.

There is one notable difference. § 1030, but not § 1037, is a predicate offense for the issuance for wiretap orders. 18 U.S.C. § 2516, regarding "Authorization for interception of wire, oral, or electronic communications", contains a list of offenses that may serve as a predicate offense for the issuance of a wiretap order by a federal judge at the request of the DOJ. This list includes § 1030.

This case is U.S.A. v. Amir Shah, et al., U.S. District Court for the Western District of Missouri, Western Division, D.C. No. 09-00141-01.

4/28. On February 11, 2009, Sen. Patrick Leahy (D-VT) and others introduced S 417 [LOC | WW], the "State Secrets Protection Act".

S 417 was assigned to the Senate Judiciary Committee (SJC). This bill is on the SJC's agenda for its executive business meeting of May 7, 2009.

This bill is a reintroduction of S 2533 [LOC | WW] from the 110th Congress. The SJC approved that bill on August 1, 2008. However, the full Senate did not take it up. The House did not pass it.

The cosponsors of S 417 are Sen. Arlen Specter (D-PA), Sen. Ted Kennedy (D-MA), Sen. Russ Feingold (D-WI), Sen. Claire McCaskill (D-MO), Sen. John Tester (D-MO), and Sen. Sheldon Whitehouse (D-RI).

Sen. Leahy (at right) stated that "During the Bush administration, the State secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits. It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans." See, Congressional Record, February 11, 2009, at Page S2155.

Sen. Leahy and the other cosponsors of S 417 are all Democrats. Sen. Leahy did not disclose that the Obama administration's Department of Justice (DOJ) continues to assert the state secrets privilege in the same manner as did the Bush administration's DOJ, in the cases Mohamed v. Jeppesen Dataplan and Jewell v. NSA.

Sen. Leahy continued in his February 11 floor statement that "The State secrets privilege serves important goals where properly invoked. But there are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct. For the aggrieved parties, it means that the courthouse doors are closed forever regardless of the severity of their injury. They will never have their day in court. For the American public, it means less accountability, because there will be no judicial scrutiny of improper actions of the executive, and no check or balance."

Sen. Leahy explained his bill. He said that it "will help guide the courts to balance the Government's interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government's ability to assert the privilege in appropriate cases. Rather, the bill would allow judges to look at the actual evidence the Government submits so that they, neutral judges, rather than self-interested executive branch officials, would render the ultimate decision whether the State secrets privilege should apply. This is consistent with the procedure for other privileges recognized in our courts."

4/28. The U.S. Court of Appeals (9thCir) issued its opinion [26 pages in PDF] in Mohamed v. Jeppesen Dataplan, reversing the judgment of the District Court, which dismissed the complaint pursuant to the state secrets privilege.

Introduction. The complaint, brought pursuant to the alien tort statute, which is codified at 28 U.S.C. § 1350, contains allegations regarding rendition to foreign countries, "spook flights", nasty flight service, and vicious foreign interrogation tactics. These are not technology related.

However, the same state secrets privilege is currently being invoked by the federal government to seek to terminate litigation brought by Americans alleging violation of 4th Amendment rights in connection with warrantless communications wiretaps under the former operation titled "Terrorist Surveillance Program". This is technology related.

The 110th Congress enacted legislation that granted retroactive immunity, from civil suits for carriers and other service providers who cooperated with government intelligence agencies. This resulted in the termination of litigation against these companies. See, stories titled "House and Senate Leaders Release Draft FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008; "House Approves FISA Reform Bill" and "Attorney General and DNI Praise FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,783, June 19, 2008; and "Senate Passes and Bush Signs FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,792, July 10, 2008.

However, this legislation did not terminate litigation against the government.

The government now seeks to use the state secrets privilege to terminate litigation regarding rendition and surveillance at the outset. The Court of Appeals held in this rendition case that unless a complaint is predicated on the existence of a secret agreement between the plaintiff and the government, this is not how the privilege operates. It is an evidentiary privilege. It can only be invoked to avoid producing specified evidence during pretrial discovery, and to preclude the admission of specified evidence.

The case goes back to the District Court. This is a setback for the government.

District Court. The foreign plaintiffs allege that Jeppesen Dataplan, a wholly owned subsidiary of Boeing, was involved in the transportation aspects of their renditions.

The U.S. intervened, and moved to dismiss the complaint. Michael Hayden (at right), who at the time was Director of the Central Intelligence Agency (CIA), filed declarations in support.

The District Court dismissed the complaint. It held that "The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case; and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense."

Court of Appeals. The foreign plaintiffs brought the present appeal.

Andrew McBride filed an amicus curiae brief, on behalf of the Foundation for Defense of Democracies (FDD), urging affirmance of the judgment of the District Court. McBride is also a partner in the Washington DC office of the law firm of Wiley Rein. He represents clients in the communications and information technology sectors.

The Court of Appeals reversed and remanded.

It rejected the District Court's and the government's "very subject matter" interpretation of the privilege. Following a lengthy review of prior opinions, it concluded that this interpretation is "unsupported by the case law".

It analyzed the Supreme Court's opinion in Totten v. U.S., 92 U.S. 105 (1875), its opinion in U.S. v. Reynolds, 345 U.S. 1 (1953), as well as lower court opinions.

The Court of Appeals also wrote that the government's interpretation "forces an unnecessary zero-sum decision between the Judiciary's constitutional duty ``to say what the law is,´´ Marbury v. Madison, ... and the Executive's constitutional duty ``to preserve the national security´´".

See, Chief Justice John Marshall's 1803 Supreme Court opinion in Marbury v. Madison, 5 U.S. 137, which held that "It is emphatically the province and duty of the judicial department to say what the law is." And see, the Supreme Court's 1982 opinion in U.S. v. Valenzuela-Bernal, 458 U.S. 858, on national security.

The Court of Appeals then concluded with this. "Unlike Totten, the Reynolds framework accommodates these division-of-powers concerns by upholding the President’s secrecy interests without categorically immunizing the CIA or its partners from judicial scrutiny. The structural elements in the Constitution, including the principles of separation of powers and judicial review, therefore strongly favor a narrow construction of the blunt Totten doctrine and a broad construction of the more precise Reynolds privilege. Accordingly, we conclude that if a lawsuit is not predicated on the existence of a secret agreement between the plaintiff and the government, Totten does not apply, and the subject matter of the suit is not a state secret. Here, plaintiffs have not sued the government to enforce an alleged secret agreement between themselves and the Executive Branch. The subject matter of this action therefore is not a state secret, and the case should not have been dismissed at the outset."

The Court of Appeals then rejected the government's next argument, that the case must be dismissed because privileged information would be essential for plaintiffs to prove their claims.

The Court reasoned that "the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret."

That is, the Court of Appeals distinguished between "the litigation of allegations" and "discovery of evidence". The privilege can only bar the latter.

It continued that "the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial."

Moreover, "a court may determine that evidence is subject to the Reynolds privilege because it contains secret information; nevertheless, the privilege applies to prevent discovery of the evidence itself and not litigation of the truth or falsity of the information that might be contained within it."

Mohamed and the other plaintiffs can proceed with their case, and attempt to prove their allegations with non-privileged evidence. And then, "dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff's allegations or a valid defense that would otherwise be available to the defendant".

Finally, the Court of Appeals rejected the government's argument that since there is no probability that the plaintiffs can establish a prima facie case, or that Jeppesen Dataplan can defend itself, the District Court's dismissal at the outset must be affirmed.

The Court of Appeals explained that this approach "would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered."

This case is Binyam Mohamed, et al. v. Jeppesen Dataplan, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 08-15693, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 5:07-CV-02798-JW, Judge James Ware presiding. Judge Michael Hawkins wrote the opinion of the Court of Appeals, in which Judges Mary Schroeder and William Canby joined.

Jewell v. NSA. There is also a pending motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, in which the federal government makes a broad assertion of the state secrets privilege to have the case dismissed at the outset.

The government argues that not dismissing the case would require the disclosure of highly classified National Security Agency (NSA) intelligence sources and methods. Its argument is supported by a declaration of Dennis Blair (at right), the new Director of National Intelligence appointed by President Obama.

That case is pending in the U.S. District Court (NDCal), which is within the 9th Circuit, and hence, controlled by the just released opinion in Mohamed v. Jeppesen Dataplan.

There is a hearing scheduled for June 25, 2009 in Jewell v. NSA.

That case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW, Judge Vaughn Walker presiding.

TLJ Commentary. The facts of the present case involve rendition for foreign citizens to foreign law enforcement authorities. These facts are not technology related. However, the holding in this case will impact state secrets based dismissals in litigation involving warrantless wiretaps, and future constitutional rights litigation involving electronic surveillance and seizure of stored electronic data.

This case will impact the ability of Carolyn Jewell and future American plaintiffs to vindicate their Constitutional rights in the context of government surveillance of new and emerging information and communications technologies (ICT). This case will also impact the transparency and clarity of surveillance laws.

The issue of the state secrets privilege is particularly significant because those processes ordinarily relied upon in free and democratic societies such as the U.S. to protect fundamental citizen interests in privacy and liberty, and to provide transparency and clarity in the law, are not functioning in the context of government surveillance in ICT.

Among these are (1) legislative oversight and legislation, (2) agency regulation of surveillance industries, (3) judicial review of suppression of evidence in criminal trials, and (4) private rights of action.

First, the House and Senate Judiciary Committees have historically engaged in oversight of law enforcement surveillance activities. This has been an active, open and public process that has resulted in transparency of government activities and operations, and amendment and clarification of laws. However, increasingly, oversight and legislative authority has been transferred to the House and Senate Intelligence Committees. Law enforcement and intelligence agencies have declined in recent years to provide the Judiciary Committees the witnesses and information that they need to conduct effective oversight. In contrast, the Intelligence Committees operate in secret, and produce little in the way of reports, transcripts or legislation.

Second, much of the government's surveillance related activities involve private companies. Moreover, there is one federal regulatory agency that could provide oversight and regulation of these companies, the Federal Communications Commission (FCC). Indeed, it has some specific statutory authority to protect individual privacy and liberty interests in the context of government surveillance, for example, in 47 U.S.C. § 222 and in the amendments to Title 18 that are codified at 47 U.S.C. §§ 1001-1010. However, the FCC has effectively abdicated any role in this area.

Third, historically the federal courts have issued frequent and detailed opinions that construe federal surveillance laws, and define the protections afforded by the Constitution. Most of these opinions have been issued in criminal cases in which the criminal defendants have appealed the trial court's refusal to suppress evidence obtained as a result of government surveillance. This source of judicial clarification and protection of individual rights is substantially drying up in the context of many new ICT surveillance practices. This is because the primary purposes of these new broad surveillance practices do not include criminal prosecutions. For example, Carolyn Jewell alleges that there is widespread surveillance of her and other Americans; but, the government is not criminally prosecuting her.

Fourth, there is private litigation by individuals alleging violation of their Constitutional rights, such as Carolyn Jewell's action. In this arena, the government now seeks a broad interpretation of the state secrets privilege that would enable it to have these actions terminated at the outset based upon government determinations.

To the extent that other processes for vindicating individuals rights, and for providing transparency and clarity in the law, are becoming increasingly dysfunctional, the application of the state secrets privilege to private actions takes on increased significance.

The House will not meet. It will next meet at 12:30 PM on Monday, May 4, 2009.

The Senate will meet at 9:30 AM. It will resume consideration of S 896 [LOC | WW], a bill regarding mortgage lending.

8:30 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering will meet. See, notice in the Federal Register, March 31, 2009, Vol. 74, No. 60, at Page 14594. Location: NSF, 4201 Wilson Blvd., Room 1235, Arlington, VA.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "Cybersecurity: Network Threats and Policy Changes". The witnesses will be Greg Nojeim (Center for Democracy and Technology), Dan Kaminsky (IOActive), Larry Clinton (Internet Security Alliance), and Rodney Joffe ( Neustar). See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in University of Pittsburgh v. Hendrick, App. Ct. No. 2008-1468, an appeal from the U.S. District Court (CDCal), which granted a judgment correcting inventorship of U.S. Patent No. 6,777,231. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Healthport v. Tanita, App. Ct. No. 2008-1456, an appeal from the U.S. District Court (DOre) in a patent infringement case involving technology for measuring body fat. Location: Courtroom 402, 717 Madison Place, NW.

EXTENDED TO MAY 12. Deadline to submit reply comments to the Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) in response to their notice of inquiry (NOI) regarding facilitating access to copyrighted works for blind or disabled people. See, notice in the Federal Register, March 26, 2009, Vol. 74, No. 57, at Pages 13268-13270, and notice in the Federal Register, April 17, 2009, Vol. 74, No. 73, at Page 17884. See, notice of extension in the Federal Register, Federal Register, April 27, 2009, Vol. 74, No. 79, at Page 19108.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Federal Arbitration Act: Is the Credit Card Industry Using It To Quash Legal Claims?". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider Singhal v. Mentor Graphics, App. Ct. No. 2009-1057, on the briefs. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Anascape v. Microsoft, App. Ct. No. 2008-1500. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Stanford v. Roche Molecular, App. Ct. No. 2008-1509. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a brown bag lunch titled "Alleged Anticompetitive Wholesale and Retail Pricing After linkLine". The speakers will include Richard Brunell (American Antitrust Institute), Greg Sidak (Criterion Economics), and Susan DeSanti (Sonnenschein Nath & Rosenthal). See, the Supreme Court's February 25, 2009, opinion [24 pages in PDF] in Pacific Bell v. Linkline Communications, and stories titled "Supreme Court Reverses in Pacific Bell v. Linkline", "Supreme Court: There Is Robust Competition in the Broadband Market", and "Commentary: Impact of Pacific Bell v. LinkLine" in TLJ Daily E-Mail Alert No. 1,907, February 27, 2009. This event is free. However, the DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3462. See, notice. Location: Finkelstein Thompson, 1050 30th St., NW.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications and Privacy and Data Security Committees will host a brown bag lunch titled "Current Update on Addressing Privacy Issues Abroad: The Global Privacy Framework for Communications and Media Companies". The speakers will be Yael Weinman (FTC), Damon Greer (Department of Commerce), Linda Cicco (British Telecom), Lynda Marshall (Hogan & Hartson), and Shane Tews (VeriSign). For more information, contact Linda Cicco at Linda dot cicco at bt dot com or Jennifer Ullman at Jennifer dot ullman at verizon dot com. Location: Covington & Burling, 11th Floor, Room 1139, 1201 Pennsylvania Ave., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Louis Kaplow (Harvard law school) on his paper titled "On the Meaning of Horizontal Agreements in Antitrust". To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

Deadline to submit requests to make presentations at the May 12-14, 2009 meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC). See, notice in the Federal Register, April 24, 2009, Vol. 74, No. 78, at Page 18737.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Homeland Security". The witness will be Janet Napolitano, Secretary of Homeland Security. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Farrago v. Rawlings Sporting Goods, App. Ct. No. 2008-1554. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider Hildebrand v. Steck Manufacturing, App. Ct. No. 2008-1493, on the briefs. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Braintree Labs v. Schwartz Pharma, App. Ct. No. 2008-1556. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Pivonka v. Central Garden & Pet Co., App. Ct. No. 2008-1581. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in BioLumix v. Centrus, App. Ct. No. 2008-1589. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in In Re Bose, App. Ct. No. 2008-1448. Location: Courtroom 201, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Amgen v. Ariad Pharmaceuticals, App. Ct. No. 2009-1023. Location: Courtroom 201, 717 Madison Place, NW.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Communications, Technology, and the Internet will hold a hearing titled "The Future of Journalism". Sen. John Kerry (D-MA) will preside. Location: Room 253, Russell Building.

Day one of a three day hearing of the Copyright Office (CO) in Washington DC regarding its triennial DMCA rulemaking proceeding on possible exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Pages 10096-10097. See also, story titled "Copyright Office to Hold Hearings on DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,911, March 10, 2009. Location: Copyright Hearing Room (LM-408), James Madison Building, Library of Congress, 101 Independence Ave., SE.

The Computer and Communications Industry Association (CCIA) will host an event titled "Washington Caucus". See, notice. Location: Newseum, Knight Conference Center.

10:00 AM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, April 23, 2009, Vol. 74, No. 77, at Page 18576. Location: FCC, Room TW-C305, 445 12th St., SW.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 417 [LOC | WW], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 LOC | WW], both titled the "Free Flow of Information Act of 2009". The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Laserfacturing v. Daimler Chrysler, App. Ct. No. 2009-1013. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Netcurrents Information Systems v. Dow Jones, App. Ct. No. 2009-1019. Location: Courtroom 402, 717 Madison Place, NW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host an untitled seminar by Jonathan Levin (Stanford University). He is an economist who has written about competition, auctions, and information technology. He has authored papers titled "Winning Play in Spectrum Auctions" and "The Impact of Information Technology in Consumer Credit Markets". Location: FTC Conference Center, 601 New Jersey Ave., NW.

Day two of a three day hearing of the Copyright Office (CO) in Washington DC regarding its triennial DMCA rulemaking proceeding on possible exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Pages 10096-10097. See also, story titled "Copyright Office to Hold Hearings on DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,911, March 10, 2009. Location: Copyright Hearing Room (LM-408), James Madison Building, Library of Congress, 101 Independence Ave., SE.

8:30 - 11:00 AM. The Technology Policy Institute (TPI) will host an event titled "ICANN at a Crossroads: Privatization, Reform, Both, or Neither?". See, registration page. For more information, contact Ashley Creel at 202-828-4405 or events at techpolicyinstitute dot org. Location: National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wedgetail v. Huddleston Deluxe, App. Ct. No. 2009-1045. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Garber v. Chicago Mercantile Exchange, App. Ct. No. 2009-1047. Location: Courtroom 203, 717 Madison Place, NW.

Day three of a three day hearing of the Copyright Office (CO) in Washington DC regarding its triennial DMCA rulemaking proceeding on possible exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Pages 10096-10097. See also, story titled "Copyright Office to Hold Hearings on DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,911, March 10, 2009. Location: Copyright Hearing Room (LM-408), James Madison Building, Library of Congress, 101 Independence Ave., SE.

Deadline to submit replies to oppositions to the numerous petitions for reconsideration (PFRs) of the Federal Communications Commission's (FCC) white space order. This is the Second Report and Order Memorandum Opinion and Order [130 pages in PDF] in its proceeding titled "In the Matter of Unlicensed Operation in the TV Broadcast Bands" and numbered ET Docket No. 04-186), and its proceeding titled "Additional Spectrum for Unlicensed Devices below 900 MHz and in the 3 GHz Band", and numbered ET Docket No. 02-380. This order is FCC 08-260. The FCC adopted it on November 4, 2008, and released the text on November 14, 2008. See for example, PFR [144 pages in PDF] of the NCTA, PFR [10 pages in PDF] of Dell and Microsoft, PFR [46 pages in PDF] of Motorola, PFR [10 pages in PDF] of Sprint Nextel, Comptel, and the RTG, PFR [PDF] of Dish and Directv, PFR [PDF] of the Wireless Internet Service Providers Association, PFR [PDF] of the Wi-Fi Alliance, and PFR [28 pages in PDF] of the New America Foundation, Public Knowledge, Open Source Wireless Coalition, and others. See, story titled "FCC Adopts White Space Order" in TLJ Daily E-Mail Alert No. 1,852, November 4, 2009. See, notice in the Federal Register, April 13, 2009, Vol. 74, No. 69, at Page 16870.

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