7/21. Ben Bernanke, Chairman of the Board of Directors of the Federal Reserve System, testified before the House Financial Services Committee (HFSC) on July 21, 2009. He is scheduled to testify before the Senate Banking Committee (SBC) on July 22. In addition, the FRB released its report [56 pages in PDF] titled "Monetary Policy Report to the Congress".

The Federal Reserve's productivity data is much more favorable than GDP and unemployment data.

The report begins that "Amid a severe global economic downturn, the U.S. economy contracted further and labor market conditions worsened over the first half of 2009. In the early part of the year, economic activity deteriorated sharply, and strains in financial markets and pressures on financial institutions generally intensified. More recently, however, the downturn in economic activity appears to be abating and financial conditions have eased somewhat".

This report also contains forward looking projections of the Federal Reserve's Federal Open Market Committee (FOMC). The FOMC predicts that "after declining over the first half of this year, output would expand sluggishly over the remainder of the year" and that "the change in real GDP in 2009 had a central tendency of negative 1.5 percent to negative 1.0 percent".

The FOMC further projects growth in 2010 of 2.1 to 3.3 percent, and in 2011 of 3.8 to 4.6 percent. In addition, the FOMC predicts "only a gradual improvement in labor market conditions in 2010 and 2011".

The report contains encouraging data about productivity. A key cause of increases in productivity in recent decades has been the development and adoption of new information and communications technologies.

The just released report states that "Labor productivity has continued to increase at a surprising rate during the most recent downturn, in part because firms have responded to the contraction in aggregate demand by aggressively reducing employment and shortening the workweeks of their employees. According to the latest available published data, output per hour in the nonfarm business sector increased at an annual rate of about 1 1/2 percent in the first quarter after rising 2 1/4 percent during all of 2008".

The report continues that "If these productivity estimates prove to be accurate, they would suggest that the fundamental factors that have supported a solid trend in underlying productivity in recent years -- such as the rapid pace of technological change and ongoing efforts by firms to use information technology to improve the efficiency of their operations -- remain in place."

For more information on technology and productivity, see:

• June 4, 2008, speech by Bernanke, and story titled "Bernanke Discusses Innovation, Productivity Growth and Dislocations" in TLJ Daily E-Mail Alert No. 1,776, June 4, 2008.
• August 31, 2006, speech by Bernanke, and story titled "Bernanke Gives Another Speech on ICT and Productivity Growth" in TLJ Daily E-Mail Alert No. 1,444, September 7, 2006.
• January 19, 2005, speech and story titled "FRB's Bernanke Addresses Productivity Growth and Information Technology" in TLJ Daily E-Mail Alert No. 1,061, January 24, 2005.
• October 24, 2002, speech by former FRB Vice Chairman Roger Ferguson titled "Productivity Growth: A Realistic Assessment", and story titled "FRB Vice Chairman Addresses Impact of Computer and Software Technology on Productivity Gains" in TLJ Daily E-Mail Alert No. 535, October 25, 2002.
• October 23, 2002, speech by former FRB Chairman Alan Greenspan, and story titled "Greenspan Addresses Productivity Gains and Technological Innovation" in TLJ Daily E-Mail Alert No. 534, October 24, 2002.

Federal Reserve officials and papers have stated in the past the development of new technologies do no immediately translate into higher productivity. For example, the advances in computing and software technologies in the 1980s did not appear in productivity data until the 1990s. They concluded that this was because it takes companies and people a long time to figure out how to use the stuff.

For similar reasons, Federal Reserve officials have also found that the level of investment in technology products does not always correlate strongly with productivity gains in the short run. For example, during the drop off in tech spending early in this decade, productivity shot up. They concluded that companies were putting to good use previously purchased equipment and software.

The just released report also addresses recent investment in equipment and software. It states that "Businesses have continued to cut back capital spending, with declines broadly based across equipment, software, and structures."

It continues that "Real business outlays for equipment and software dropped at an annual rate of 34 percent in the first quarter of 2009 after falling nearly as rapidly in the fourth quarter. In both quarters ... real spending on high-tech capital --computers, software, and communications equipment -- fell at an annual rate of more than 20 percent." Also, "The available
indicators suggest that real spending on equipment and software fell further in the second quarter, though at a much less precipitous pace".

The report also states that the FOMC projects that "Over the longer run ... without further shocks, real GDP growth eventually would converge to a rate of 2.5 to 2.7 percent per year, reflecting longer-term trends in the growth of productivity and the labor force."

7/21. The U.S. Court of Appeals (9thCir) issued its opinion [11 pages in PDF] in USA v. Payton, a 4th Amendment case regarding police searches of home computers.

The Court of Appeals held that "a search of a computer not expressly authorized by a warrant is not a reasonable search" under certain circumstances, such as that the rest of the search produced no evidence of the crime identified in the warrant. Moreover, under these circumstances, "computers are not an exception to the rule permitting searches of containers to find objects specified in a warrant".

The Court of Appeals backtracked from its opinion last year in US. v. Giberson. This is a victory for computer privacy. However, the Court has not held that a search of a computer not expressly authorized by a warrant is always an unreasonable search.

Background. Payton lives in a house in Merced County, California. He owns a computer which he keeps in his house. One neighbor complained to the local police that he used drugs. The police applied to the California Superior Court for a search warrant for Payton's house, asserting a belief that Payton sold drugs. Police had previously arrested another resident of that house for methamphetamine possession.

The Court issued a warrant that authorized police to search the house for "methamphetamine and materials used to cut and package it". The warrant also covered "Sales ledgers showing narcotics transactions such as pay/owe sheets" and "Financial records of the person(s) in control of the residence or premises, bank accounts, loan applications, ..." The Court of Appeals noted that "The warrant did not explicitly authorize the search of computers".

Police searched Payton's house. They found no drugs, evidence of drugs, or records of drug sales. However, they found and searched his computer. The Court of Appeals opinion relates nothing regarding searches of spreadsheet files. However, the police did search Payton's graphics files. They found porn.

Federal prosecutors then charged him with illegal possession. Payton filed a motion to suppress evidence collected from his computer, on the grounds that the search exceeded the scope of the warrant, and thereby violated the 4th Amendment. The U.S. District Court (EDCal) denied the motion. Payton entered a conditional plea of guilty. This appeal followed.

Court of Appeals. The Court of Appeals reversed the District Court's denial of the motion to suppress.

The Court of Appeals also discussed and distinguished its May 29, 2008 opinion [16 pages in PDF] in US v. Giberson, 527 F.3d 882. See also, story titled "9th Circuit Upholds Search and Seizure of Home Computer Not Covered by Warrant" in TLJ Daily E-Mail Alert No. 1,774, June 2, 2008. It that case the Court upheld a search of a home computer when the warrant did not mention computer searches.

In Giberson, police conducting a traffic stop, and found that Giberson had fake identification. They obtained a warrant to search his house for evidence related to making and possessing fake IDs. The warrant did not mention computers. Police found porn on his computer. The Court upheld that search.

The Court of Appeals wrote in its just released opinion that "the search of Payton's computer exceeded the scope of the warrant and did not meet the Fourth Amendment standard of reasonableness."

It elaborated that "There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers. Such considerations commonly support the need specifically to authorize the search of computers in a search warrant".

The Court of Appeals noted that in US v. Giberson, it wrote that ""We have not yet had occasion to determine, in an opinion, whether computers are an exception to the general principle that a warrant authorizing the seizure of particular documents also authorizes the search of a container likely to contain those documents."

It wrote in the present opinion that "As we read this passage, it holds that under certain circumstances, computers are not an exception to the rule permitting searches of containers to find objects specified in a warrant. A reasonable negative inference is that, absent those circumstances, a search of a computer not expressly authorized by a warrant is not a reasonable search. Those circumstances are absent in the present case. The search of Payton's residence for evidence of drug sales produced none. There was nothing in the neighborhood of Payton’s computer, or indeed in the entire residence, that suggested that evidence of drug sales or anything else specified in the warrant would be found on the computer".

The Court also reasoned that "Our confidence in our conclusion is buttressed by contemplating the effect of a contrary decision. In order to uphold the search in this case, we would have to rule that, whenever a computer is found in a search for other items, if any of those items were capable of being stored in a computer, a search of the computer would be permissible. Such a ruling would eliminate any incentive for officers to seek explicit judicial authorization for searches of computers. But the nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches, to protect privacy and other important constitutional interests."

"We believe that it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers. If unwarranted searches of computers are automatically authorized by upholding the search in Payton’s case, that option will be lost. Indeed, the special considerations of reasonableness involved in the search of computers are reflected by the practice, exemplified in Giberson, of searching officers to stop and seek an explicit warrant when they encounter a computer that they have reason to believe should be searched."

In both Giberson and Payton police obtained a warrant to search a home for evidence of one crime. In both cases the warrant did not mention computer searches. In both cases the police proceeded to search a computer, including graphics files, and found evidence of a crime not mentioned in the warrant. In Giberson the computer search was held to be reasonable. It Payton the computer search was held to be unreasonable.

So, how is Giberson distinguishable from Payton? In Giberson the police had found evidence of a crime on Giberson's person -- illegal fake ID. In Payton the police found no evidence of a crime; after searching his house they had found no evidence of drug crimes. There is also the matter that in Giberson the police first merely made a mirror copy of Giberson's hard drive (which is a 4th Amendment seizure) and then obtained a second warrant to search that copy. In contrast, in Payton the police took no such action.

One might also note that the opinion in Giberson was written by a Judge appointed by a Republican President, while the opinion in Payton was written by a Judge appointed by a Democratic President. Also, the Giberson panel had two Republican appointees, while the Payton panel had two Democratic appointees.

In Giberson, Judge Clifford Wallace wrote the opinion of the Court of Appeals, in which Judges Mary Schroeder and Roger Benitez joined. Judge Wallace was appointed in 1972 by former President Nixon. Judge Schroeder was appointed in 1979 by former President Carter. Judge Benitez is a Judge of the U.S. District Court for the Southern District of California, sitting by designation. He was appointed by former President Bush.

In Payton, Judge William Canby wrote the opinion of the Court of Appeals, in which Judges Kim Wardlaw and Richard Mills (USDC/CDIll) joined. Canby was appointed by former President Carter. Wardlaw was appointed to the District Court and then the Court of Appeals by former President Clinton. Mills was appointed by former President Reagan.

This case is USA v. Michael Clay Payton, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-10567, an appeal from the U.S. District Court for the Eastern District of California, D.C. No. CR-05-00333-OWW, Judge Oliver Wanger presiding.

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7/21. The Senate Commerce Committee (SCC) approved the nominations of Mignon Clyburn and Meredith Baker to be members of the Federal Communications Commission (FCC). See, SCC release.

7/21. Jamie Barnett was named Chief of the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB). See, FCC release.

7/21. Jennifer Manner (at right) was named Deputy Chief of the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB). See, FCC release. She has previously worked for WorldCom, SkyTerra Communications, the law firm of Akin Gump, and former FCC Commissioner Kathleen Abernathy.

7/21. David Furth was named Deputy Chief of the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB). See, FCC release. He has worked at the FCC since 1992.

7/16. Ruth Milkman was named Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau. See, FCC release. She was previously a partner in the Washington DC communications law firm of Lawler Metzger Milkman & Keeney. Before that, she worked at the FCC, including as Deputy Chief of the Common Carrier Bureau. Federal Election Commission (FEC) records disclose that she has been a generous financial contributor to the election campaigns of Barack Obama and other Democratic candidates and committees.

7/16. James Schlichting was named Senior Deputy Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau. See, FCC release. He is a long time employee of the FCC.

7/16. Renee Crittendon (at right) was named Deputy Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau. See, FCC release. She was previously a legal advisor to former FCC Commissioner Jonathan Adelstein.

7/16. John Liebovitz was named Deputy Chief of the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau. See, FCC release. He previously worked on President Obama's transition team.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of July 20, and schedule for July 22.

The Senate will meet at 9:30 AM. It will resume consideration of of S 1390 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2010".

9:00 AM - 5:00 PM. Day two of a three day closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). See, notice in the Federal Register, June 25, 2009, Vol. 74, No. 121, at Page 30301. Location: Strategic Analysis, Inc., Executive Conference Center, 3601 Wilson Blvd., Suite 600, Arlington, VA.

9:30 AM. The Partnership for Public Service will host a news conference to release a report on cyber security. For more information, contact Ralph Huber at 202-775-2757 or showe at ourpublicservice dot org. Location: Zenger Room, National Press Club, 13th Floor, 529 14th St. NW.

10:00 AM. The House Homeland Security Committee's (HHSC) Border, Maritime, and Global Counterterrorism will meet to mark up several bills, including HR 1726 [LOC | WW], the "Border Security Search Accountability Act of 2009". This is one of several bills introduced in the 110th and 111th Congresses to address the problem of abusive searches of electronic devices by Customs and Border Patrol (CBP) agents. See, story titled "DHS/CBP Supervisor Embezzles Laptop from Airline Passenger" in TLJ Daily E-Mail Alert No. 1,963, June 30, 2009, and stories titled "Summary of Cases Regarding DHS/CBP Laptop Searches" and "ACLU Seeks DHS Records Regarding Unwarranted Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009. The HHSC will webcast this event. Location: Room 311, Cannon Building.

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee on Consumer Protection, Product Safety, and Insurance will hold a hearing titled "Advertising Trends and Consumer Protection". The witnesses will be David Vladeck (Director of the FTC's Bureau of Consumer Protection), Sally Greenberg (National Consumers League), Urvashi Rangan (Consumers Union), Lee Peeler (National Advertising Review Council), Greg Renker (Guthy-Renker), and Jon Congdon (Product Partners). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing titled "Semiannual Monetary Policy Report to the Congress". The witness will be Ben Bernanke (Chairman of the Federal Reserve Board). Location: Room 106, Dirksen Building.

1:00 - 2:30 PM ET. The American Bar Association will host a panel discussion by teleconference and webcast titled "Social Media: Understanding the Legal Issues Surrounding the Social Networking Websites that Teenagers and Employees Love". The speakers will be Thomas Burke (Davis Wright Tremaine), Corinna Ulrich (Expedia.com), Elke Suber (Microsoft), and Michael Fox (Ogletree Deakins). See, notice. Prices vary.

TIME CHANGE. 2:30 PM. This event may start as early as 2:00 PM, depending on Senate floor action. The Senate Commerce Committee (SCC) will hold an event titled "Rethinking the Children's Television Act for a Digital Media Age". The witnesses will be Julius Genachowski (FCC Chairman), Gary Knell (Sesame Workshop), John Lawson (ION Media Networks), Sandra Calvert (Children's Digital Media Center, Georgetown University), Cyma Zarghami (Nickelodeon & MTVN Family Group), and James Steyer (Common Sense Media). The SJC states that persons costumed as cartoon characters will also appear. See, notice. For more information, contact Jena Longo at 202-224-8374. Location: Room 253, Russell Building.

3:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Crime will hold a hearing titled "Over-Criminalization of Conduct/Over-Federalization of Criminal Law". See, notice. Location: Room 2237, Rayburn Building.

6:00 - 8:00 PM. The District of Columbia Bar Association will host an event titled "Speed Mentoring for Consumer Law and Antitrust Attorneys". The DC Bar states that this is "designed to mimic speed dating", and will be followed by "a wine and cheese reception". For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of July 20.

9:00 AM - 3:00 PM. Day three of a three day closed meeting of the Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC). See, notice in the Federal Register, June 25, 2009, Vol. 74, No. 121, at Page 30301. Location: Strategic Analysis, Inc., Executive Conference Center, 3601 Wilson Blvd., Suite 600, Arlington, VA.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing titled "Oversight of the Federal Communications Commission". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold an executive session to consider the nominations of Miriam Sapiro to be a Deputy U.S. Trade Representative, George Madison to be General Counsel at the Department of Treasury, and William Wilkins to be Chief Counsel at the Internal Revenue Service. See, notice. Location: Room 215, Dirksen Building.

10:30 AM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Europe will hold a hearing titled "Radio Free Europe/Radio Liberty and Voice of America: Soft Power and the Free Flow of Information". The witnesses will include Jeffrey Gedmin (Radio Free Europe/Radio Liberty) and Danforth Austin (Voice of America) See, notice. Location: Room 2172, Rayburn Building.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Corporate Tax Reform for the Innovation-Based, Global Economy". The speakers will be Pete Engardio (Business Week), Robert Atkinson (ITIF), Robert Shapiro (Sonecon), and Fritz Foley. See, notice. This event is free and open to the public. Lunch will be served. Location: Room 485, Russell Building, Capitol Hill.

CANCELLED. 6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host an event titled "Lobbying Rules for the New Administration". Location: Wiley Rein, 1776 K St., NW.

The House may meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of July 20.

12:00 NOON - 2:00 PM. The Technology Policy Institute (TPI) will host a panel discussion titled "Information and Privacy: What are the Tradeoffs?". The speakers will be Rep. Cliff Stearns (R-FL), Gerard Lewis (Comcast), Alan Davidson (Google), Tom Lenard (TPI), Alessandro Acquisti (Carnegie Mellon University), Leslie Harris (Center for Democracy and Technology), and Paul Rubin (Emory University). Rep. Stearns will speak at 12:20 PM. The panel discussion will begin at 12:40 PM. This event is free. Lunch will be served. See, registration page. Location: Room B-340, Rayburn Building.

12:30 PM. The Cato Institute will host a panel discussion titled "Assessing the Options: REAL ID, PASS ID, or No National ID at All". The speakers will be Christopher Calabrese (ACLU), David Williams (Citizens Against Government Waste), and Jim Harper (Cato). Lunch will be served. This event is free and open to the public. See, notice. Location: Room B-369, Rayburn Building.

Deadline to submit applications to the Department of Homeland Security (DHS) for membership on its Homeland Security Information Network Advisory Committee (HSINAC). See, notice in the Federal Register, June 9, 2009, Vol. 74, No. 109, at Page 27338.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) in which it proposes to modify its cost sharing requirements for the 2 GHz BAS band. The FCC adopted this FNPRM on June 10, 2009, and released the text on June 12, 2009. It is FCC 09-49 in WT Docket No. 02-55 and ET Docket Nos. 00-258 and 95-18. See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Pages 29636-29650.

12:00 NOON - 1:30 PM. The Progress & Freedom Foundation (PFF) will host a panel discussion titled "Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States". The speakers will include Adam Thierer (PFF), Parry Aftab (WiredSafety.org), Todd Haiken (Common Sense Media), Jim Halpert (DLA Piper), and Berin Szoka (PFF). Lunch will be served. See, notice. Location: Room SVC-208, Capitol Visitor Center.

3:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for money to under its Measurement Science and Engineering Research Fellowship Program. See, notice in the Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26206-26209.

Deadline to submit Paperwork Reduction Act (PRA) 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, notice in the Federal Register, May 27, 2009, Vol. 74, No. 100, at Pages 25205-25208.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The only item on the agenda is consideration of the nomination of Judge Sonia Sotomayor to be a Justice of the Supreme Court. See, notice. Location: Room 216, Hart Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a closed meeting titled "Role of Trade Associations". The speakers will be Chris McCabe (CTIA), Jamie Hedlund (CEA), Jane Mago (NAB), and Steve Morris (NCTA). For more information, contact Micah Caldwell at mcaldwell at fh-law dot com or Chris Naoum at cnaoum at allbrittontv dot com. Reporters are barred. Location: Wiley Rein, 1776 K St., NW.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board. See, notice in the Federal Register, July 14, 2009, Vol. 74, No. 133, at Pages 33997-33998. Location: Room 403, George Washington University Cafritz Conference Center, 800 21st St., NW.

9:00 AM - 12:00 NOON and 2:00 - 5:00 PM. The Office of the U.S. Trade Representative (OUSTR) and the Department of State (DOS) will hold a meeting regarding their review of the model Bilateral Investment Treaty (BIT). The deadline to apply to attend is 5:00 PM on July 23. Written comments are due by 5:00 PM on July 31. See, notice in the Federal Register, July 14, 2009, Vol. 74, No. 133, at Page 34071. Location: Loy Henderson Auditorium, Truman Building, 2201 C St., NW.

Deadline to submit certain initial comments to the Federal Communications Commission (FCC) in response to its supplemental Notice of Inquiry [22 pages in PDF] regarding its preparation of a video competition report for the years ending June 30, 2007, June 30, 2008, and June 20, 2009. This deadline pertains to comments regarding 2009. See, notice in the Federal Register, April 27, 2009, Vol. 74, No. 79, at Pages 19085-19091. See also, story titled "FCC Resumes Its Statutory Obligation to Study Video Competition" in TLJ Daily E-Mail Alert No. 1,886, January 21, 2009, and story titled "FCC Releases Amended NOI on Annual Video Competition Reports" in TLJ Daily E-Mail Alert No. 1924, April 11, 2009.