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February 15, 2010, Alert No. 2,044.
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BIS Advisory Committee to Discuss Deemed Exports

2/5. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC) will hold a two day meeting on Thursday, February 18, and Friday, February 19, 2010. This meeting will focus on deemed exports.

The BIS regulates exports for both national security, and non-national security, policy purposes. The U.S. export regulation system controls exports of military weaponry, as well as dual use items that may have both military and non-military uses, such as software, computers, and encryption products.

The BIS also regulates activities that do not involve exportation, but which the BIS deems to be exports. For example, the BIS in certain situations deems there to be exports in the semiconductor, computer, telecommunications, and other industry sectors when U.S. companies employ foreign nationals.

The agenda for the ETRAC meeting includes the following sessions: "Is Deemed Export Regulation Broken?", "Discussion with the Bureau of Industry and Security on Process", and "Deemed Export Control Methodology".

The meeting, part of which will be closed to the public, will be held in Room 3884 of the DOC's Hoover Building, at 14th Street between Pennsylvania and Constitution Avenues, NW.

See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Page 5952.

FinCEN Regs Amended to Allow Foreign, State and Local Governments Access to Financial Information

2/10. The Department of the Treasury's (DOT) Financial Crimes Enforcement Network, also known as FinCEN, published a notice in the Federal Register that announces, describes, recites, and sets the effective date (February 10, 2010) for, its new rules regarding allowing foreign governments, and state and local governments in the U.S., to obtain individuals' financial information from U.S. financial institutions.

While the DOT emphasizes the terrorism fighting benefits of these regulations, these new rules also will enable foreign governments and state and local governments to obtain warrantless access to individuals' financial information when investigating a host of technology related crimes, including copyright infringement, counterfeiting marks, and unauthorized access to computer systems. U.S. federal law enforcement agencies already have such access.

See, Federal Register, February 10, 2010, Vol. 75, No. 27, Page 6560-6570.

The new regulations allow any foreign government that provides reciprocity to the U.S., either by treaty or by determination of the FinCEN, to obtain information from financial institutions in a manner similar to how the FinCEN has been obtaining such information. Under the new regulations, these foreign government submit their requests to the FinCEN, which then submits requests to the financial institutions.

There is no requirement for a court order, or court review. The individuals or businesses whose information is sought are not entitled to any process, even notice. Financial institutions are required to comply. They are also subjected to an automatic administrative gag order.

To compel the disclosure of information by financial institutions, law enforcement agencies must certify that someone is "reasonably suspected based on credible evidence of engaging in, terrorist activity or money laundering". This is a low standard.

It is also notable that while the just published notice, and the legislative deliberations surrounding passage of the underlying statute in 2001, emphasized fighting terrorism, the actual rules go further. Government agencies can compel financial institutions to disclose confidential financial information, not only to investigate terrorism, but also to investigate money laundering. Moreover, this is not money laundering associated with terrorism, but any money laundering.

Furthermore, the money laundering statutes, which are codified at 18 U.S.C. 1956 and 18 U.S.C. 1957, are very broad, and as a practical matter, are redundant of other violations. These statutes criminalize, among other things, any transaction that "is designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity".

There is a very long list of "specified unlawful activity". It includes many of the technology related crimes, including copyright infringement (18 U.S.C. 2319), counterfeit marks (18 U.S.C. 2320), unauthorized access to computer systems (18 U.S.C. 1030), and distributing or viewing illegal online porn (18 U.S.C. 2252A).

To the extent that law enforcement agencies that suspect copyright infringement or counterfeiting, or many other crimes, can also reasonably suspect associated efforts to conceal the proceeds of these activities, they can obtain warrantless access to individuals' financial records when they suspect any one of many crimes. This reaches far beyond the underlying purposes of these regulations, and the underlying statute -- fighting terrorism.

The DOT states that the statutory authority for these new rules is Section 314 of HR 3162 (107th Congress), the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001", or "USA PATRIOT Act".

Section 314 provides, in part, that the DOT shall "adopt regulations to encourage further cooperation among financial institutions, their regulatory authorities, and law enforcement authorities, with the specific purpose of encouraging regulatory authorities and law enforcement authorities to share with financial institutions information regarding individuals, entities, and organizations engaged in or reasonably suspected based on credible evidence of engaging in terrorist acts or money laundering activities."

The statute allows the DOT to write regulations that "encourage further cooperation". Section 314 of the USA PATRIOT Act only authorizes the DOT to mandate one thing from financial institutions; it may "require that each financial institution designate 1 or more persons to receive information concerning, and to monitor accounts of individuals, entities, and organizations ..." There is a thus a question as to whether the FinCEN is issuing regulations that exceed its statutory authority.

The FinCEN maintains a web section with some relevant information. For example, the FinCEN has published a document [PDF] titled "Law Enforcement Information Sharing with the Financial Industry". It discloses, for example, for the most recent two week period for which data is provided, January 26, 2010, six case numbers affecting a total of 69 "persons of interest". This document does not disclose the crimes being investigated, or what percentage are terrorism related.

People and Appointments

2/9. The Senate confirmed Joseph Greenaway to be a Judge of the U.S. Court of Appeals for the 3rd Circuit. See, Congressional Record, February 9, 2010, at Page S543. See also, story titled "Obama Nominates Greenaway for 3rd Circuit" in TLJ Daily E-Mail Alert No. 1,959, June 22, 2009.

2/11. The Senate Banking Committee (SBC) approved the nominations of Kevin Wolf and David Mills to to be Assistant Secretaries of Commerce for the Bureau of Industry and Security (BIS) on February 4, 2010. See, Congressional Record, February 4, 2010, at Page S481. The full Senate confirmed Wolf and Mills on February 11, 2010. See, Congressional Record, February 11, 2010, at Page S593.

2/11. The Senate confirmed Caryn Wagner to be Under Secretary for Intelligence and Analysis at the Department of Homeland Security (DHS). See, Congressional Record, February 11, 2010, at Page S593.

2/11. The Senate confirmed Andre Birotte to be the U.S. Attorney for the Central District of California for the term of four years. See, Congressional Record, February 11, 2010, at Page S593.

2/11. The Senate confirmed Richard Hartunian to be the U.S. Attorney for the Northern District of New York for the term of four years. See, Congressional Record, February 11, 2010, at Page S593.

2/11. The Senate confirmed Ronald Machen to be the U.S. Attorney for the District of Columbia for the term of four years. See, Congressional Record, February 11, 2010, at Page S593.

2/11. The Senate Judiciary Committee (SJC) approved the nomination of Nancy Freudenthal to be a Judge of the U.S. District Court for the District of Wyoming. See, Congressional Record, February 11, 2010, at Page S569.

2/11. The Senate Judiciary Committee (SJC) approved the nomination of Denzil Marshall to be a Judge of the U.S. District Court for the Eastern District of Arkansas. See, Congressional Record, February 11, 2010, at Page S569.

2/11. The Senate Judiciary Committee (SJC) approved the nomination of Benita Pearson to be a Judge of the U.S. District Court for the Northern District of Ohio. See, Congressional Record, February 11, 2010, at Page S569.

2/11. The Senate Judiciary Committee (SJC) approved the nomination of Timothy Black to be a Judge of the U.S. District Court for the Southern District of Ohio. See, Congressional Record, February 11, 2010, at Page S569.

2/11. The Senate Judiciary Committee (SJC) held over consideration of the nomination of Dawn Johnsen to be Assistant Attorney General in charge of the Department of Justice's Office of Legal Counsel (OLC) at its meetings of February 4 and 11, 2010.

2/4. The Senate Judiciary Committee (SJC) approved the nomination of Louis Butler to be a Judge of the U.S. District Court for the Western District of Wisconsin. See, Congressional Record, February 4, 2010, at PageS481.

2/4. The Senate Judiciary Committee (SJC) approved the nomination of Edward Chen to be a Judge of the U.S. District Court for the Northern District of California. See, Congressional Record, February 4, 2010, at PageS481.

2/4. The Senate Judiciary Committee (SJC) approved the nomination of Mary Smith to be an Assistant Attorney General in charge of the Department of Justice's Tax Division. See, Congressional Record, February 4, 2010, at PageS481.

2/4. The Senate Judiciary Committee (SJC) approved the nomination of Christopher Schroeder to be an Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Policy (OLP). See, Congressional Record, February 4, 2010, at PageS481.

More News

2/12. The Federal Communications Commission (FCC) announced in a release [PDF] that it will host a workshop on Thursday, March 4, 2010, regarding news and information. This release does not disclose the time or location of the event. However, it states that the topics on the agenda include the public interest requirements for commercial media and telecommunications companies, local commercial broadcast TV and radio news and information, and the "impact of media convergence and the emergence of the Internet, mobile technologies, and digital media on FCC media policy". This release adds that "There will likely be another, separate workshop on the role of noncommercial media."

2/12. The Senate Banking Committee's (SBC) Subcommittee on Security and International Trade and Finance held a hearing titled "Equipping financial regulators with the tools necessary to monitor systemic risk". Federal Reserve Board (FRB) Governor Daniel Tarullo wrote in his prepared testimony that "The Internet and other applications of information technologies have made us all too aware of the potential for information overload, a circumstance in which relevant information is theoretically available, but the time and expense of retrieving it or transforming it into a usable form make it unhelpful in practical terms."

2/11. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (February 11, 2010) for, changes to its regulations regarding compliance with revisions to its Manual of Regulations and Procedures for Federal Radio Frequency Management. The amended regulation provides that "The Federal agencies shall comply with the requirements set forth in the January 2008 edition of the NTIA Manual, as revised through September 2009 ...". See, Federal Register, February 11, 2010, Vol. 75, No. 28, at Pages 6818-6819.

2/10. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register regarding settlement of its Clayton Act action against Ticketmaster and Live Nation. On January 25, 2010, the DOJ and numerous states filed a complaint [PDF] in the U.S. District Court (DC) against the two companies alleging violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. 18, in connection with their proposed merger. The parties simultaneously announced a settlement. This proposed settlement permits the transaction, but requires that Ticketmaster license ticket software, and divest ticketing assets to two different companies, Anschutz Entertainment Group (AEG) and either Comcast-Spectacor or another buyer approved by the DOJ. This notice and procedure is required by Section 2(b) of the Antitrust Procedures and Penalties Act, which is also known as the Tunney Act, and which is codified at 15 U.S.C. 16(b)-(h). The Tunney Act requires that notice of the proposed settlement be published in the Federal Register, and that the public be allowed 60 days to submit comments. See, Federal Register, February 10, 2010, Vol. 75, No. 27, at Pages 6709-6728. See also, story titled "DOJ Requires Ticketmaster Live Nation to License Ticket Software and Divest Ticketing Assets" in TLJ Daily E-Mail Alert No. 2,038, January 25, 2010. 60 days from publication of this notice is April 11, 2010, which is a Sunday. This case is USA, et al. v. Ticketmaster, Inc., et al., U.S. District Court for the District of Columbia, D.C. No. 1:10-cv-00139.

2/10. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register that announces that the Office of Management and Budget (OMB) has "approved the collection of information contained in the Notice of Funds Availability (NOFA) for the Broadband Opportunities Program (BTOP) published on January 22, 2010." (Emphasis added.) See, Federal Register, February 10, 2010, Vol. 75, No. 27, at Page 6627. See also, notice in the Federal Register, January 22, 2010, Vol. 75, No. 14, at Pages 3791-3820.

2/4. The Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) released a document titled "Request for Information", regarding President Obama's documents titled "Strategy for American Innovation", released on September 21, 2009. See, story titled "Obama Gives Speech on Innovation" in TLJ Daily E-Mail Alert No. 1,988, September 24, 2009. See also, February 4, 2010, release titled "Grand Challenges of the 21st Century", and notice in the Federal Register, February 3, 2010, Vol. 75, No. 22, at Pages 5634-5636. The deadline to submit comments is 11:59 PM on April 15, 2010.

In This Issue
This issue contains the following items:
  BIS Advisory Committee to Discuss Deemed Exports
  FinCEN Regs Amended to Allow Foreign, State and Local Governments Access to Financial Information
  People and Appointments
  More News
Washington Tech Calendar
New items are highlighted in red.
Tuesday, February 16

The House will not meet the week of February 15-19, 2010. See, 2010 House calendar.

The Senate will not meet the week of February 15-19, 2010. See, 2010 Senate calendar.

5:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for participation in its 2010 SURF grant programs. These are the NIST's Gaithersburg Summer Undergraduate Research Fellowship Program, and Boulder Summer Undergraduate Research Fellowship Program. The NIST distributes grants for, among other topics, electronics and electrical engineering, and information technology. See, notice in the Federal Register, December 15, 2009, Vol. 74, No. 239, at Pages 66291-66296.

Day three of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "Winter Committee Meetings". See, notice. Location: Renaissance Washington Hotel, 999 9th St., NW.

Deadline to submit comments to the Judicial Conference of the United States' Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure (FRCrP), Federal Rules of Bankruptcy Procedure (FRBP), and Federal Rules of Evidence (FRE). The numerous changes to the FRCrP pertain to the use of new information technologies, including use of video conferencing, and consideration of electronically submitted information in the issuance of complaints, arrest warrants, and summonses. See, notice in the Federal Register, December 1, 2009, Vol. 229, No. 74, at Page 62821.

EXTENDED TO FEBRUARY 18. 5:00 PM. Deadline for all commenters (except foreign governments) to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making determinations that identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The OUSTR is required to make these Special 301 determinations by Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. 2242. See, notice in the Federal Register, January 15, 2010, Vol. 75, No. 10, at Pages 2578-2580. See, notice of extension.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding what data fields are necessary in order to complete simple wireline to wireline and intermodal ports within the one business day porting interval mandated by the FCC. See, notice in the Federal Register, February 1, 2010, Vol. 75, No. 20, at Pages 5013-5015. This proceeding is WC Docket No. 07-244.

Wednesday, February 17

10:00 AM - 4:00 PM. The The Office of the National Coordinator for Health Information Technology's HIT Policy Committee will meet. See, notice in the Federal Register, February 3, 2010, Vol. 75, No. 22, at Page 5595. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

11:00 AM. The Consumer Federation of America (CFA), Consumers Union (CU), Free Press (FP), Media Access Project (MAP), New America Foundation (NAF), and Public Knowledge (PK) will host a news conference regarding the Federal Communications Commission's (FCC) drafting of a document titled "National Broadband Plan". Location: Room 2123, Rayburn Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications and Young Lawyers Committees will host a brown bag lunch titled "Developing a Career in International Communications". The speakers will be Steven Lett (Department of State), John Giusti (Chief of Staff and Legal Advisor to FCC Commissioner Michael Copps), Janet Hernandez (Telecommunications Management Group, Inc.), and Gonzalo de Dios (Intelsat Corporation). For more information, contact Jennifer Hindin at jhindin at wileyrein dot com or Micah Caldwell at mcaldwell at fh-law dot com. Location: Wiley Rein, 10th floor, 1750 K St., NW.

Day one of a two day conference hosted by the Armed Forces Communications and Electronics Association (AFCEA) titled "Federal Networks 2010". At 1:30 PM, US-CERT acting Director Randy Vickers will speak on cybersecurity. See, notice. Location: Hilton McLean Tyson's Corner, 7920 Jones Branch Road, McLean, VA.

Day four of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "Winter Committee Meetings". See, notice. Location: Renaissance Washington Hotel, 999 9th St., NW.

Statutory deadline for the Federal Communications Commission (FCC) to submit a report titled "National Broadband Plan", as required by HR 1 [LOC | WW]. FCC Chairman Julius Genachowski stated in letters on January 7, 2010 that the FCC will complete this report on March 17, 2010.

Thursday, February 18

8:30 AM. Day one of a two day partially closed meeting to the Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). This meeting will focus on deemed exports. See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Page 5952. Location: Room 3884, Department of Commerce Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

RESCHEDULED FROM FEBRUARY 11. The Federal Communications Commission (FCC) will hold an event titled "Open Meeting". Location: FCC, Commission Meeting Room, 445 12th St., SW.

EXTENDED FROM FEBRUARY 16. 5:00 PM. Deadline for all commenters (except foreign governments) to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making determinations that identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The OUSTR is required to make these Special 301 determinations by Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. 2242. See, notice in the Federal Register, January 15, 2010, Vol. 75, No. 10, at Pages 2578-2580. See, notice of extension.

Deadline to submit reply comments on proposals to be designated database administrator in the Federal Communications Commission's (FCC) white space proceeding. See, Public Notice [4 pages in PDF]. It is DA 09-2479 in ET Docket No. 04-186. See also, story titled "FCC Requests Proposals to Be Designated White Spaces Database Administrator" in TLJ Daily E-Mail Alert No. 2,018, November 30, 2009.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its e-rate program, and the "Protecting Children in the 21st Century Act". See, notice in the Federal Register, January 19, 2010, Vol. 75, No. 11, at Pages 2836-2843, and story titled "FCC Adopts E-Rate NPRM" in TLJ Daily E-Mail Alert No. 2,011, November 9, 2009. The FCC adopted this NPRM on November 4, 2009, and released the text on November 5, 2009. It is FCC 09-96 in CC Docket No. 02-6.

Friday, February 19

8:30 AM. Day two of a two day partially closed meeting to the Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). This meeting will focus on deemed exports. See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Page 5952. Location: Room 3884, Department of Commerce Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

5:00 PM. Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP) regarding the "modernized electric grid", and especially "issues related to Smart Grid implementation options, including the ways in which each option would support open innovation in home energy services". See, notice in the Federal Register, February 9, 2010, Vol. 75, No. 26, at Pages 6414-6416.

Monday, February 22

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [31 pages in PDF] regarding empowering "parents to help their children take advantage of the opportunities offered by evolving electronic media technologies while at the same time protecting children from the risks inherent in use of these technologies". This NOI is FCC 09-94 in MB Docket No. 09-194. The FCC adopted this NOI on October 22, 2009, and released it on October 23, 2009. See, notice in the Federal Register, November 24, 2009, Vol. 74, No. 225, at Pages 61308-61316.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding what data fields are necessary in order to complete simple wireline to wireline and intermodal ports within the one business day porting interval mandated by the FCC. See, notice in the Federal Register, February 1, 2010, Vol. 75, No. 20, at Pages 5013-5015. This proceeding is WC Docket No. 07-244.

Tuesday, February 23

12:00 - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Counterterrorism 2.0: Using IT to Connect the Dots". The speakers will be Robert Atkinson (ITIF), Paul Rosenzweig (Red Branch Law and Consulting) and Kim Taipale. Lunch will be served. See, notice. This event is fee and open to the public. Location: ITIF, Suite 610A, 1101 K St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a closed lunch. The speaker will be Marybeth Peters, Register of Copyright. The price to attend ranges from $55 to $65. Most DC Bar events are not open to the public. Reporters are barred from this event. See, notice. For more information, call 202-626-3463. Location: City Club of Washington at Franklin Square, 1300 I St., NW.

TIME CHANGE. 6:00 - 8:15 PM. The DC Bar Association will host an event titled "Protecting Content on the Internet". The speaker will be Jay Westermeier (Finnegan Henderson). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. See, notice. This event qualifies for continuing legal education (CLE) credits. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

TIME? The American Bar Association's (ABA) Section of Science and Technology Law will host a program titled "Dangerous Curves Ahead: When Legal Ethics and Technology Collide". The ABA will webcast and teleconference this event. See, notice for registration and call in information.

EXTENDED TO FEBRUARY 26. 5:00 PM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in making determinations that identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The OUSTR is required to make these Special 301 determinations by Section 182 of the Trade Act of 1974, which is codified at 19 U.S.C. 2242. See, notice in the Federal Register, January 15, 2010, Vol. 75, No. 10, at Pages 2578-2580. See, notice of extension.

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