5/22. The Department of Justice (DOJ) and White House news office announced several more DOJ personnel. The San Francisco area, and the law firm of Morrison & Foerster (MoFo), are well represented.

On May 22, Ann Ravel (at right) was named Deputy Assistant Attorney General (DAAG) for the Department of Justice's (DOJ) Civil Division's Torts Branch and the Office of Consumer Litigation (OCL). See, DOJ release.

The Torts Branch represents the federal government in lawsuits for money judgments for alleged negligent or wrongful acts. The OCL represents the federal government in civil and criminal litigation arising under certain statutes, including the Federal Trade Commission Act.

Ravel was previously County Counsel of Santa Clara County, California. Santa Clara County is home to many leading information technology companies. The county contains the towns of Cupertino, Milpitas, Mountain View, Palo Alto, San Jose, and Sunnyvale, among others. The selection of Ravel does not require Senate confirmation.

Also on May 22, Brian Martinez was named Chief of Staff to Tony West, the Assistant Attorney General in charge of the DOJ's Civil Division. See, DOJ release.

Martinez was an associate in the San Francisco office of MoFo. His MoFo bio states that he has worked on intellectual property and antitrust cases. West was a partner in the San Francisco office of MoFo until his appointment to the DOJ.

Also on May 22, Geoffrey Graber was named Counsel to Tony West. See, DOJ release. Martinez was an associate in the San Francisco office of MoFo. See, MoFo bio.

Also, Beth Brinkmann, from Washington DC office of MoFo, was named DAAG for the Civil Appellate Division in April.

On May 21, President Obama announced his intent to nominate Christopher Schroeder to be Assistant Attorney General in charge of the DOJ's Office of Legal Policy (OLP). He is a law professor at Duke University and Of Counsel at the law firm of O'Melveny & Myers. See, White House news office release.

He has written extensively on environmental and administrative law.

The OLP has historically been involved in the judicial selection and confirmation process.

5/21. Xerox announced in a release that Anne Mulcahy will retire as CEO, effective July 1, 2009, but will remain as Chairman of the Board. Also, Ursula Burns, the current President, will become CEO.

5/20. Caroline Fredrickson, the American Civil Liberties Union's (ACLU) head lobbyist, will join the American Constitution Society (ACS) as its Executive Director. See, ACLU release.

5.11. TechAmerica announced its new Board of Directors and Executive Committee. Henry Steininger will be the new Chairman of the Board. Peter Boni will be Vice Chair. Phil Bond remains President. See, release.

5/21. The Progress & Freedom Foundation (PFF) released a paper [36 pages in PDF] titled "COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech". The authors are the PFF's Berin Szoka and Adam Thierer.

This paper is a response to various proposals, some of which are manifested state legislative bills, to expand COPPA like regulatory regimes. The paper argues that such proposals are backdoor age verification mandates, and would raise First Amendment concerns, reduce online privacy, and conflict with the dormant commerce clause.

The Children's Online Privacy Protection Act (COPPA) is a narrowly targeted law that requires that operators of web sites directed at children under the age of 13 obtain parental consent before collecting personal information (PI) from children under 13. It does not affect children aged 13 or over. Few web sites are directed at children under 13.

The COPPA was S 2326 in the 105th Congress. It was enacted into law as part of a large omnibus appropriations bill in October of 1998. It is now codified at 15 U.S.C. §§ 6501-6506. See, TLJ web page titled "Children's Online Privacy Protection Act", last updated in 1998.

The COPPA required the Federal Trade Commission (FTC) to promulgate regulations that "require that the operator of any website or online service that collects personal information from children or the operator of a website or online service that has actual knowledge that it is collecting personal information from a child --- (i) provide notice on the website of what information is collected from children by the operator, how the operator uses such information, and the operator's disclosure practice for such information; and (ii) to obtain verifiable parental consent for the collection, use, or disclosure of personal information from children".

The FTC subsequently promulgated its Children's Online Privacy Protection Rule (COPPR), broadly construing this statute.

Social networking websites, such as MySpace, Facebook, LinkedIn and others, did not exist when the Congress drafted the COPPA over a decade ago.

The paper argues that if COPPA style regulation were expanded, from web sites directed at children, to all web sites, this would be tantamount to imposing an age verification requirement on adults. It argues that imposing such requirements on adults would infringe their First Amendment rights.

This PFF paper also points out at the outset that the technology does not exist to reliably establish and verify the age of internet users. Moreover, judges have written this into their opinions.

The paper argues that "COPPA 2.0's greatest threat is that large numbers of PI-collecting Site operators would be -- or would feel -- compelled to require age-verification of large numbers of adults as users. There is currently no age verification requirement other than COPPA, which affects adults only to the extent that parents need to establish their parental relationship to their kids. But COPPA affects few other adults because few adults want to use child-oriented PI-collecting sites like Disney's Club Penguin. COPPA 2.0 proposals would either directly require age verification of all adults who wanted to use ``social networking sites´´ (as proposed in Illinois) or indirectly require much the same thing by mandating age verification for ``adolescent-oriented sites´´ (as proposed in New Jersey). Indeed, this may be precisely what some COPPA 2.0 advocates want, since they may envision it as the only way to make the Internet truly ``safe´´ for adolescents." (Parentheses and emphases in original.)

The paper adds, "But few proponents would make such a goal explicit, for they know that such a ``scaled-up´´ COPPA would essentially converge with COPA as a broad age verification mandate."

COPA is the Child Online Protection Act. It bans sending to minors over the web material that is harmful to minors. The COPA also allows web site operators to distribute pornography, but requires those web sites which distribute material that is harmful to children to verify adult status through the use of credit cards, adult access codes, adult PIN numbers, or other technologies.

The COPA was HR 3783 in the 105th Congress. It is codified at 47 U.S.C. § 231.

It has not fared well in the courts. On July 22, 2008, the U.S. Court of Appeals (3rdCir) issued its opinion [57 pages in PDF] in ACLU v. Mukasey, a long running challenge to the constitutionality of the COPA. The Court of Appeals affirmed the judgment of the District Court, which held that the COPA facially violates the First and Fifth Amendments of the Constitution, and permanently enjoined enforcement of the COPA. See, story titled "3rd Circuit Holds COPA Unconstitutional" in TLJ Daily E-Mail Alert No. 1,798, July 23, 2008. The Supreme Court denied certiorari on January 21, 2009. See, docket.

The PFF paper then argues that the COPPA 2.0 regulatory regime would violate the rights of adults to speak anonymously, violate the First Amendment rights of web site operators, violate the speech rights of adolescents, as well as suffer from other Constitutional infirmities.

To the extent that COPPA 2.0 proposals are advanced through state based regulation, the PFF paper argues that this would violate the commerce clause of the Constitution. However, this argument would not apply to the next round of rulemaking by the FTC.

This paper also offers numerous non-Constitutional arguments against COPPA 2.0 regulation. For example, such regulation would not reach web sites outside of the U.S. Such regulation would raise web site costs, increase industry consolidation, and inhibit innovation.

Finally, since web sites would collect vast amounts of personal information for the purpose of establishing and verifying age, this would diminish privacy. This information might also be used for other commercial or governmental purposes.

The paper concludes that "The future of age verification battles -- at least on the social networking front -- will likely be fundamentally tied up with COPPA and the question of how well parental consent-based forms of age verification might work on a scale larger than COPPA's very limited scale. It is unlikely, however, that such a framework could be easily applied on ``Internet scale.´´ There is a world of difference between a site like Disney's Club Penguin, for example, and sites like MySpace or Facebook."

"Moreover, as social networking capabilities become increasingly ubiquitous, integrated into every site and service", including government web sites, "the costs and hassles of compliance with COPPA 2.0 age verification mandates will increase dramatically. Are parents really going to be forced to authenticate themselves and then their kids for every website their kids want to participate in that requires so much as an e-mail address?"

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This issue contains the following items:
 • More DOJ Personnel Named
 • PFF Argues Against COPPA 2.0 and Age Verification Mandates

The House will not meet. It will next meet on June 2, 2009.

The Senate will meet at 2:00 PM. It will resume consideration of S 149, the "Railroad Antitrust Enforcement Act".

Memorial Day. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of May 25-29.

The Senate will not meet the week of May 25-29. See, Senate calendar.

9:00 AM - 3:45 PM. The American Enterprise Institute (AEI) will host an event titled "China Since Tiananmen: Power, Party, and Society". There will be five panels, including one on competition, and another on the economy. See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Stefan Buehler (University of St. Gallen) on his paper titled "Making Sense of Non-Binding Retail-Price Recommendations". 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 initial comments to the Copyright Royalty Judges (CRJ) in response to its Notice of Inquiry (NOI) regarding "the costs of census versus sample reporting to assist the Judges in the revision of the interim regulations for filing notices of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act". See, notice in the Federal Register, April 8, 2009, Vol. 74, No. 66, at Pages 15901-15904. See also, the CRJ's notice in the Federal Register regarding its Notice of Proposed Rulemaking (NPRM), Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734, and the CRJ's web page with hyperlinks to the comments submitted in response to the NPRM.

No events listed.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host an untitled seminar by Chris Knittel (UC Davis) He is an economist who has written about electricity and energy. Location: FTC Conference Center, 601 New Jersey Ave., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Market Definitions at the FCC -- Theory and Practice". The first panel is titled "How the FCC Defines Markets". The speakers may be John Nakahata (Harris Wiltshire & Grannis), David Lawson (Sidley Austin), and Don Stockdale (Deputy Chief of the FCC's WCB). The second panel is titled "Market Analysis in Practice". The speakers may be David Reitman (CRA International) and Gregory Sidak (Criterion Economics). The price to attend ranges from $25 to $150. Location: Arnold & Porter, 555 12th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the petition for extension of waiver filed by AT&T and Sprint Nextel requesting a one year extension of the current waiver of the FCC's rules to the extent that provision requires TRS providers providing relay service via the PSTN or a TTY to automatically and immediately call an appropriate PSAP when receiving an emergency 711-dialed call placed by an interconnected VOIP user. See, FCC Public Notice of April 1, 2009 (DA 09-749), and notice in the Federal Register, May 7, 2009, Vol. 74, No. 87, at Pages 21364-21366. This relates to WC Docket No. 04-36, CG Docket No. 03-123, WT Docket No. 96-198 and CC Docket No. 92-105

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations for its National Medal of Technology and Innovation (NMTI) program awards. See, notice in the Federal Register, January 8, 2009, Vol. 74, No. 5, at Pages 801-802. See also, USPTO release.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding deferral of examination for patent applications. See, notice of extension in the Federal Register, March 9, 2009, Vol. 74, No. 44, at Page 10036. The original deadline was February 27, 2009. See, original notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-118 [38 pages in PDF] titled "Guide to Enterprise Password Management (Draft)".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its request for comments regarding competitive bidding procedures for Auction 86, the broadband radio service (BRS) auction. This item is DA 09-843 in AU Docket No. 09-56. See, notice in the Federal Register, May 12, 2009, Vol. 74, No. 90, at Pages 22166-22170.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the petition for rulemaking [60 pages in PDF] filed by the American Bird Conservancy (ABC), Defenders of Wildlife and National Audubon Society. See, notice in the Federal Register, May 8, 2009, Vol. 74, No. 88, at Pages 21613-21614. See, FCC Public Notice of April 29, 2009 (DA 09-904), February 19, 2008 opinion [PDF] of the U.S. Court of Appeals (DCCir) in ABC v. FCC, and story titled "DC Circuit Vacates FCC Order Regarding Birds and Towers" in TLJ Daily E-Mail Alert No. 1,724, February 27, 2008. This relates to WT Docket Nos. 08-61 and 03-187.

The House will not meet.

Day one of a four day conference titled "Computers, Freedom, and Privacy 2009". See, conference web site. Location?

Deadline to submit comments to numerous financial regulatory agencies regarding their information collection programs, including Suspicious Activity Reports. The agencies are the Department of the Treasury's (DOT) Financial Crimes Enforcement Network (FinCEN), DOT's Office of the Comptroller of the Currency (OCC), DOT's Office of Thrift Supervision (OTS), Federal Reserve Board (FRB), Federal Deposit Insurance Corporation (FDIC), and National Credit Union Administration (NCUA). See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Pages 14863-14865.

Deadline to submit comments to the Department of Homeland Security's (DHS) Privacy Office in advance of its two day public workshop on June 22 and 23, 2009, titled "Government 2.0: Privacy and Best Practices". This workshop will address operational, privacy, security, and legal issues associated with government use of social media. See, notice in the Federal Register, April 17, 2009, Vol. 74, No. 73, at Pages 17876-17877. See also, story titled "DHS Privacy Office Seeks Comments on Government Use of Social Media" in TLJ Daily E-Mail Alert No. 1,928, April 16, 2009.

Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) to be members of the Department of Commerce's Spectrum Management Advisory Committee (CSMAC). See, notice in the Federal Register, May 6, 2009, Vol. 74, No. 86, at Pages 20922-20923.

5/20. The Securities and Exchange Commission (SEC) adopted, but did not release, a notice of proposed rule making (NPRM) regarding shareholder nominations for corporate boards of directors. See, SEC release.

5/18. The Securities and Exchange Commission (SEC) filed a civil complaint [24 pages in PDF] in the U.S. District Court (SDNY) against Monster Worldwide, an employment search provider, alleging violation of federal securities laws in connection with alleged stock option backdating. This case is SEC v. Monster Worldwide, Inc., U.S. District Court for the Southern District of New York, D.C. No. 09 CV 4641. See also, SEC release.

5/15. Tim Pawlenty, the Governor of the state of Minnesota, signed into law House File 988, a bill to prohibit implementation of the federal READ ID Act. See, list of signed bills. The federal government relies upon the states for implementation. The ACLU stated in a release that Minnesota is the twenty-third state to reject the REAL ID Act. For background on the REAL ID Act, see stories titled "DHS Releases REAL ID Regulations" in TLJ Daily E-Mail Alert No. 1,699, January 14, 2008; "DHS Proposes Rules Implementing REAL ID Act" in TLJ Daily E-Mail Alert No. 1,546, March 5, 2007; "Maine Rejects REAL ID Act" in TLJ Daily E-Mail Alert No. 1,528, January 29, 2007; and "DHS Announces Minimal REAL ID Act Grants" in TLJ Daily E-Mail Alert No. 1,708, January 31, 2008.

5/15. The Department of Justice (DOJ) filed a Competitive Impact Statement on May 8, 2009, with the U.S. District Court (DSCar) in US v. CMLS, an antitrust action involving real estate brokers, in which one issue is restrictions on out of area brokers that block internet and technology based competition. See also, notice in the Federal Register, May 15, 2009, Vol. 74, No. 93, at Pages 22965-22976. This case is USA v. Consolidated Multiple Listing Service, U.S. District Court for the District of South Carolina, Columbia Division, D.C. No. 3:08-CV-01786-SB.

5/14. Various financial regulatory agencies published a lengthy notice in the Federal Register that announces, describes and recites numerous changes to the 2007 final rules that implement the affiliate marketing provisions and the identity theft red flags provisions of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act). See, Federal Register, May 14, 2009, Vol. 74, No. 92, at Pages 22639-22646.

5/14. The Securities and Exchange Commission (SEC) filed a civil complaint in U.S. District Court (DNJ) against Paul G. Bultmeyer, Arthur J. Piacentini, and others alleging violation of federal securities laws in connection with the sale of unregistered securities via Craigslist, other internet sites, and print publications. See, SEC release.

5/13. The Federal Communications Commission (FCC) published a notice in the Federal Register that sets comment deadlines for its Notice of Proposed Rulemaking (NPRM) regarding additional spectrum for the Medical Device Radiocommunication Service. The FCC adopted this NPRM on March 17, 2009, and released the text on March 20, 2009. It is FCC 09-20 in ET Docket No. 09-36 and RM-11404. The deadline to submit initial comments is August 11, 2009. The deadline to submit reply comments is September 10, 2009. See, Federal Register, May 13, 2009, Vol. 74, No. 91, at Pages 22491-22498.

5/13. The Federal Communications Commission (FCC) published a notice in the Federal Register that sets comment deadlines for its Notice of Proposed Rulemaking (NPRM) [33 pages in PDF] regarding procedures for allocating new FM channels and AM frequency assignments. The FCC adopted this item on April 7, 2009, and released the text on April 20, 2009. It is FCC 09-30 in MB Docket No. 09-52. See, Federal Register, May 13, 2009, Vol. 74, No. 91, at Pages 22498-22507.

5/12. The Department of the Treasury's (DOT) Financial Crimes Enforcement Network (FinCEN) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline (September 9, 2009) for its proposed rules changes regarding expanding the definitions of money services businesses and money transmission services. The proposed rules provide that a money services business includes businesses located outside of the U.S. The proposed rules also provide that a money transmitter "shall not include a person that only ... Provides the delivery, communication, or network access services used by a money transmitter to support money transmission services". See, Federal Register, May 12, 2009, Vol. 74, No. 90, at Pages 22129-22142.

5/12. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register that announces the availability of grant funding under its Low-Power Television and Translator Upgrade Program. This notice also announces that July 13, 2009 is the deadline to submit applications for Priority Round funding. See, Federal Register, May 12, 2009, Vol. 74, No. 90, at Pages 22401-22415.