6/23. The U.S. Court of Appeals (DCCir) issued its opinion [14 pages in PDF] in Quigley v. Giblin, holding that a union can require candidates for union office to use password technology to restrict access to their web sites to union members.

The union is not a government entity. Hence, the First Amendment is not implicated by this union mandate. That it prevents union candidates and their supporters from communicating with the general public on matters of public interest is not pertinent.

This case turned on interpretation of the Labor Management Reporting and Disclosure Act (LMRDA), which provides that union members have a right to communicate with other union members.

The Court of Appeals' holding for the union, and its web regulation mandate, reflects a disregard for common values regarding free speech, as well as a lack of understanding of current web technologies. Password protection of web pages eliminates indexing by search engines; precludes use of YouTube, MySpace, Facebook, and other free social networking web sites; precludes RSS feeds; and creates fear among union members of web monitoring by union leaders.

The Court of Appeals upheld a union rule that will significantly impair union members' ability to use new IP based communications technologies to campaign in union elections.

The International Union of Operating Engineers adopted a resolution requiring all candidates for local union offices and their supporters to include a "password protection function" on their campaign web sites. The resolution states that the purpose of this mandate is to limit access to these web sites to local union members.

Michael Quigley and four other union members filed a complaint in U.S. District Court (DC) against Vincent Giblin, the head of the union, and the union, seeking an injunction prohibiting enforcement of the resolution. The District Court granted summary judgment to the union. This appeal followed.

Section 101(a)(2) of the LMRDA, which is codified at 29 U.S.C. § 411(a)(2), provides that "Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings".

It adds that "nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations."

This statute only creates a union member right to communicate with other union members. Quigley argued that the resolution does violate this right. For example, he argued that union members find information by using search engines, but that password protection technology prevents search engines from indexes their web pages.

Second, Quigley argued that password access interferes with RSS feeds. Third, he argued that this resolution prevents union candidates from setting up campaign pages on YouTube, Facebook, and other social networking sites, because they do not enable password protection.

Fourth, Quigley also argued that entering unique passwords will facilitate tracking and usage, and thereby deter some union members from viewing campaign web sites.

The Court of Appeals rejected Quigley's arguments, and affirmed the judgment of the District Court.

This case is Michael Quigley, et al. v. Vincent Giblin and International Union of Operating Engineers, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 1:07-cv-00600, an appeal from the U.S. District Court for the District of Columbia, D.C. No. 1:07-cv-00600. Judge Karen Henderson wrote the opinion of the Court of Appeals, in which Judges Brown and Kavanaugh joined.

Paul Alan Levy of Public Citizen represented Quigley.

6/23. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) filed a civil complaint in U.S. District Court (DC) against John Malone alleging violation of the premerger reporting and waiting requirements Hart Scott Rodino Act, which are codified at 15 U.S.C. § 18a(a) and (b), in connection with his acquisition of securities of Discovery Holding Company (DHC).

Malone is now Chairman of Liberty Media Corporation and Ch/CEO of DHC. Previously, Malone built Tele-Communications, Inc. (TCI) into a major cable company, before selling it to AT&T in 1999. See also, book titled "Cable Cowboy: John Malone and the Rise of the Modern Cable Business", by Mark Robichaux.

Malone and the antitrust regulators simultaneously filed a Stipulation [PDF], Motion [PDF], and proposed Final Judgment [PDF] which provide for judgment against Malone for violation of the HSR, and the payment of a civil penalty of $1,400,000.

This case is USA v. John Malone, U.S. District Court for the District of Columbia, D.C. No. 1 :09-cv-01147, Judge Henry Kennedy presiding.

6/23. The Information Technology and Innovation Foundation (ITIF) released a report [20 pages in PDF] titled "Structuring U.S. Innovation Policy: Creating a White House Office of Innovation Policy".

It recommends the creation of a White House Office of Innovation Policy (OIP) "to review federal agencies' actions that affect innovation".

It recommends that this OIP "have some authority to push agencies to act in a manner that either affirmatively promoted innovation or achieved a particular regulatory objective in a manner least damaging to innovation."

The report states that many agencies and courts have short term outlooks, or fail to engage in policy analysis. It also notes a failure of federal agencies to coordinate on innovation policy.

For example, in the area of spectrum policy, the report states that "Although innovation in wireless services depends on the availability of radio frequencies, the management of these frequencies has been characterized by difficulties arising from the involvement of different agencies with competing goals. One might imagine that conflicts in spectrum policy would arise between the FCC (which manages the allocation of commercial spectrum) and the National Telecommunications and Information Administration (NTIA) (which manages the spectrum assigned to the government), and these agencies have indeed differed on spectrum policy. But the conflicts between these two agencies and the Department of Defense (the largest government user of spectrum) have been more notable and pitched." (Parentheses in original.)

"Given that different federal agencies have different missions, it is not surprising that there are both regulatory overlaps and regulatory lacunae. Both phenomena can lead to lack of coordination and inefficiency", the ITIF report concludes.

The report also states that "significant innovations, particularly in fields like biotechnology and information technology, have been driven by new entrants. Unfortunately, incumbent firms are generally better organized and have more lobbying clout than upstarts."

The report proposes that this OIP "be able to remand agency actions that harm innovation. It would also have as part of its mission proposing regulation that benefits innovation."

6/24. President Obama formally nominated John Roos to be Ambassador to Japan. See, White House news office release. See also, story titled "Obama Picks Roos for Ambassador to Japan" in TLJ Daily E-Mail Alert No. 1,943, May 27, 2009.

6/24. The U.S. Court of Appeals (8thCir) issued its opinion [8 pages in PDF] in Chial v. Sprint, affirming the District Court's dismissal of a complaint alleging violation of the Minnesota whistleblower statute and Minnesota's common law in connection the termination of employment of a retail sales manager who reported what she believed to be commissions fraud. This case is Naomi Chial v. Sprint/United Management Company, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 08-2012, an appeal from the U.S. District Court for the District of Minnesota.

6/24. The U.S. Court of Appeals (8thCir) issued its opinion [9 pages in PDF] in Roederer v. Carrion, reversing the summary judgment of the District Court, which dismissed a trademark infringement complaint on the grounds that it was barred by the equitable doctrine of laches. This case is Champagne Louis Roederer v. J. Garcia Carrion, S.A. and Friend Wine Marketing, Inc., dba CIV USA, U.S, Court of Appeals for the 8th Circuit, App. Ct. No. 08-2907, an appeal from the U.S. District Court for the Minnesota.

6/24. The Department of Homeland Security (DHS) announced in a release that the DHS and Spain's Interior Ministry signed a Letter of Intent "to expand science and technology cooperation in order to enhance security and combat transnational threats".

6/23. The House Science Committee approved HR 2965 [LOC | WW], the "Enhancing Small Business Research and Innovation Act of 2009". Rep. Bart Gordon (D-TN), the Chairman of the HSC, stated in a release that "Since SBIR’s beginning more than 25 years ago, we have learned about the significant contributions small high-tech start-up companies can have to our economic and employment growth -- AmGen, Apple, Microsoft, Genetech, and Research-in-Motion all started as small high-tech entrepreneurial firms. In the current economic environment we need to do everything possible to support small high-tech entrepreneurs in the United States, which is the goal of the SBIR program."

6/22. The U.S. Court of Appeals (7thCir) issued its opinion in USA v. Heckel, affirming a sentence of 30 months in prison for wire fraud. He used two internet auction web sites to defraud successful bidders. He listed items, received payment from the highest bidder, but shipped a product far inferior to the one advertised. This case is USA v. Jeffrey Heckel, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 07-3514, an appeal from the U.S. District Court for the Western District of Wisconsin, D.C. No. 07 CR 41.

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The House will meet at 10:00 AM legislative business. See, Rep. Hoyer's schedule for week of June 22, and schedule for June 25.

The Senate will meet at 9:30 AM. It will resume consideration of the nomination of Harold Koh to be a Legal Adviser at the Department of State.

8:00 AM - 5:00 PM. The Armed Forces Communications and Electronics Association (AFCEA) will host a one day conference titled "Cybersecurity Symposium". At 8:10 - 8:45, Steven Thompson (NSC, Director for Cybersecurity) will speak. At 8:45 - 10:00 AM, there will be a panel titled "FISMA & the Future". At 10:00 - 11:15 AM, there will be a panel titled "Standard Authorization Process". At 12:00 NOON, Michael Brown (DHS, acting Assistant Secretary for Cybersecurity and Communications) will give the lunch speech. At 1:45 - 3:15 PM, there will be a panel titled "Military Joint Cyber Command Panel". At 3:15 - 4:00 PM, Keith Alexander (NSA Director) will give the closing keynote speech. See, conference web site. Location: Capital Hilton, 1001 16th St., NW.

9:00 AM. The Progressive Policy Institute (PPI) will host a panel discussion titled "Cyber Security". The speakers will include Noah Shachtman (Wired Magazine), Paula Bruening (Hunton & Williams), Greg Nojeim (Center for Democracy and Technology), and Rep. Yvette Clarke (D-NY), Chairman of the House Homeland Security Committee's (HHSC) Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology. See, notice. Location: Members Room (LJ-162), Jefferson Building, Library of Congress.

10:00 AM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asia, the Pacific and the Global Environment will hold a hearing titled "Japan's Changing Role". See, notice. Location: Room 2200, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will meet to mark up HR 2994, a bill to reauthorize the "Satellite Home Viewer Reauthorization Act". Location: Room 2322, Rayburn Building.

12:00 NOON. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again 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". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The SJC rarely follows its published agendas. See, notice. Location: Room 226, Dirksen Building.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "The End of Spectrum Scarcity: Opportunistic Access to the Airwaves". The speakers will be Kevin Werbach (University of Pennsylvania, and member of President Obama's FCC transition team), Preston Marshall, Michael Marcus, Tom Stroup (Shared Spectrum Company), Sascha Meinrath (NAF), and Michael Calabrese (NAF). See, notice. Location: NAF, 4th floor, 1899 L St., NW.

RESCHEDULED FOR JULY 21. 1:30 PM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "Trade Advisory Committee System". See, notice. Location: Room B-318, Rayburn Building.

2:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Assessing Cybersecurity Activities at NIST and DHS". The witnesses will be Gregory Wilshusen (GAO, Director of Information Security Issues), Mark Bregman (Symantec), Scott Charney (Microsoft), and Jim Harper (Cato Institute). Location: Room 2318, Rayburn Building.

3:00 PM. The Senate Appropriations Committee (SAC) will meet to mark up HR 2847 [LOC | WW], the "Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010". Location: Room 106, Dirksen Building.

3:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for money to build research science buildings. See, notice in the Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26213-26217.

6:00 PM. Deadline to submit applications to the Federal Communications Commission (FCC) to participate in Auction 79, regarding 122 construction permits in the FM broadcast service. See, May 29, 2009, public notice (DA 09-152), and notice in the Federal Register, May 29, 2009, Vol. 74, No. 102, at Pages 25737-25744.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a reception. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

The House may meet at 9:00 AM legislative business. See, Rep. Hoyer's schedule for week of June 22.

2:00 PM. The National Science Foundation's (NSF) National Science Board (NSB) will hold a closed meeting by teleconference to discuss budgets. See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Page 29730, and notice in the Federal Register, June 24, 2009, Vol. 74, No. 120, at Page 30174.

5:00 PM. Deadline to submit comments to the Department of Health and Human Services' (DHHS) Health Information Technology Policy Committee regarding the meaning of the term "meaningful use'' of electronic health records, as used in Sections 4101 and 4202 of HR 1 [LOC | WW], the huge spending bill enacted in February. See, notice in the Federal Register, June 18, 2009, Vol. 74, No. 116, at Page 28937.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to it Fourth Further Notice of Proposed Rulemaking regarding whether or not to modify FCC Form 323-E, the Ownership Report filed by noncommercial educational (NCE) licensees of AM, FM, and TV broadcast stations, to obtain gender, race, and ethnicity data. This 4thFNPRM is FCC 09-33 in MB Docket Nos. 07-294, 06-121, 02-277 and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244. See, public notice DA 09-1195, and notice in the Federal Register, May 27, 2009, Vol. 74, No. 100, at Pages 25205-25208.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-16 Rev. 1 [157 pages in PDF] titled "Information Security Training Requirements: A Role- and Performance-Based Model (DRAFT)".

The House will not meet the week of June 29 through July 3.

The Senate will not meet the week of June 29 through July 3. See, Senate calendar.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notice regarding commercial programming on school buses. This public notice is DA 09-913 in MB Docket No. 09-68.

10:00 AM. The Center for Democracy and Technology (CDT) will host a news briefing titled "The Emerging Privacy Landscape: Will Congress Enact Broad-based Consumer Privacy Legislation This Year?". The speakers will include Leslie Harris, Ari Schwartz, and Alissa Cooper of the CDT. To participate by phone, call 800-377-8846; the participant code is 92874158#. Breakfast will be served. Location: CDT, 1634 I St., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host a brown bag lunch titled "Bridging the Gap: Transactions 101 -- An Introduction to Communications Transactions and Related FCC Oversight". The speakers will be Neil Dellar (FCC Office of the General Counsel) and Mark Brennan (Hogan & Hartson). For more information, contact Sarah Reisert at spreisert at hhlaw dot com. The Federal Communications Bar Association (FCBA) states that this is a FCBA event. Location: Hogan & Hartson, 555 13th St., NW.

Target date for the Office of the U.S. Trade Representative's (OUSTR) to announce modifications to the list of articles eligible for duty free treatment under the GSP resulting from the OUSTR's 2008 Generalized System of Preferences (GSP) Annual Review. See, notice in the Federal Register, September 12, 2008, Vol. 73, No 178, at Pages 53054-53056.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the complaints filed with the World Trade Organization (WTO) by Canada and Mexico regarding U.S. country of origin labeling requirements. See, notice in the Federal Register, May 22, 2009, Vol. 74, No. 98, at Pages 24059-24061.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding commercial use of a radio audience measurement device developed by Arbitron named the portable people meter (PPM). The FCC adopted this NOI on May 15, 2009, and released the text on May 18, 2009. It is FCC 09-43 in MB Docket No. 08-187. See, public notice DA 09-1231, and notice in the Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26235-26241.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-53 Rev. 3 [220 pages in PDF] titled "Recommended Security Controls for Federal Information Systems and Organizations".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Technology Innovation Program Advisory Board in advance of its July 7, 2009, meeting "regarding general policy for the Technology Innovation Program, its organization, its budget, and its programs within the framework of applicable national policies as set forth by the President and the Congress". See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Pages 29675-29676.

10:00 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Meeting". See, agenda. Location: FCC, Room TW-C305, 445 12th St., NW.