|House Democrats Ask Obama to Make Privacy
3/29. Twenty-one Democratic Representatives sent a
[PDF] to President Obama urging him to make appointments to the Privacy and Civil Liberties
Oversight Board (PCLOB). It has not functioned for years because it has no members.
The original PCLOB was created by Section 1061(b) of the Intelligence Reform
and Terrorism Prevention Act of 2004. This statute made the PCLOB a part of the
Executive Office of the
President (EOP). The members of the original PCLOB were
(Vinson & Elkins), Alan
Charles Raul (Sidley Austin),
Ted Olson (Gibson Dunn),
Francis Taylor and Lanny Davis. That body hired staff, conducted investigations,
and wrote a report. See, story titled "President's Civil Liberties Oversight
Board Releases Annual Report" in
TLJ Daily E-Mail
Alert No. 1,572, May 1, 2007.
Then, the 110th Congress reconstituted the PCLOB in Section 801 of HR 1
"Implementing Recommendations of the 9/11 Commission Act of 2007". President
Bush signed this bill into law on August 3, 2007. It is now Public Law No. 110-53.
HR 1 makes the PCLOB "an agency" within the meaning of
5 U.S.C. § 551. HR 1 provides that the PCLOB "shall be composed of a
full-time chairman and 4 additional members, who shall be appointed by the
President, by and with the advice and consent of the Senate."
President Bush nominated persons, but the Senate did not act on those nominations.
See, stories titled "Bush Nominates Members of New Privacy and Civil Liberties
Oversight Board" in TLJ
Daily E-Mail Alert No. 1,724, February 27, 2008, and "Bush to Nominate Dempsey
for Privacy and Civil Liberties Oversight Board" in
TLJ Daily E-Mail Alert No.
1,815, August 19, 2008.
President Obama has not nominated persons for the PCLOB.
Hence, the just sent letter states that the PCLOB "is not operational".
The letter states that "the vision" of the PCLOB "has not been realized. As
new privacy and civil liberties issues emerge, such as the use of new screening
technologies and watchlisting procedures, it is imperative that he Board be
fully operational to evaluate and advise the Executive Branch on the privacy and
civil liberties implications associated with such changes."
This is not the first time that President Obama has been prodded for failing to fill
these vacant positions. On November 11, 2009, the American Civil Liberties Union (ACLU),
Center for Democracy and Technology (CDT),
Electronic Privacy Information Center (EPIC) and other
groups sent a letter
[PDF]. See, story titled "Groups Urge Obama to Make Appointments to PCLOB" in
TLJ Daily E-Mail Alert No.
2,014, November 12, 2009.
|Indictment Charges Price Fixing and Market
Allocation for CDTs
3/30. A grand jury of the U.S. District Court
(NDCal) returned a one count
indictment [5 pages in
PDF] that charges Chung Cheng Yeh, who is also known as Alex Yeh, with violation of Section
1 of the Sherman Act, which is codified at 15 U.S.C. § 1, in connection with his alleged
"combination and conspiracy to suppress and eliminate competition by fixing prices,
reducing output, and allocating market shares of color display tubes".
The indictment states that color display tubes, or CDTs, are "a type of cathode
ray tube. Cathode ray tubes consist of evacuated glass envelopes that contain an electron
gun and a phosphorescent screen. When electrons strike the screen, light is emitted,
creating an image on the screen. CDTs are the specialized cathode ray tubes manufactured
for use in computer monitors and other products with similar technological
The indictment states that Yeh was an employee of an unnamed company based in
Taiwan that made CRTs.
The complaint alleges the Yeh and coconspirators attended meetings and engaged in
"conversations and communications in Taiwan, Korea, Malaysia, China, and elsewhere to
discuss the prices, output, and market shares of CDTs".
It further alleges that they agreed "during those meetings, conversations, and
communications to charge prices of CDTs at certain target levels or ranges ... to reduce
output of CDTs by shutting down CDT production lines for certain periods of time" and
"to allocate target market shares for the CDT market overall and for certain CDT
The indictment also alleges extensive information sharing, including exchanging
"CDT sales, production, market share, and pricing information", and allowing
"coconspirators to visit each other's production facilities to verify that CDT
production lines had been shut down as agreed".
This case is U.S.A. v. Chung Cheng Yeh, U.S. District Court for the
Northern District of California, San Francisco Division, D.C. No.
3:10-cr-00231-JSW. JSW are the initials of Judge Jeffrey S. White.
This is the third in a series of indictments arising out of the Department of
Justice's (DOJ) Antitrust Division's investigation of the market for CRTs.
A grand jury in the same district returned an indictment on February 10, 2009, that
charges Cheng Yuan Lin, also know as C.Y. Lin. See, DOJ
and story titled "DOJ Obtains Indictment of Former CEO of Cathode Ray Tube
Manufacturer" in TLJ
Daily E-Mail Alert No. 1,899, February 13, 2010.
A grand jury in the same district returned an indictment on August 18, 2009,
that charges Wen Jun Cheng, aka Tony Cheng.
|Representatives Ask FTC to Investigate
3/25. Eleven Representatives sent a
letter [PDF] to the Federal Trade Commission
(FTC) asking that it investigate Google's Google Buzz social networking service,
and its pending acquisition of AdMob.
They wrote that they are concerned that Google Buzz "breaches online consumer
privacy and trust". They elaborated that it has "made it easier for others to
invade our personal privacy, and reveal information about us and our families
that we choose not to disclose. Of great concern to use are the unintended
dangers that this alleged privacy breach poses for children".
They added that "it appears that Google seeks more access to personal
information through a deal to acquire AdMob ... We understand that the
Commission is in the process of reviewing Google's acquisition of AdMob, and we
urge that the Commission scrutinize how the deal will affect competition and
Google's incentives to offer robust consumer privacy protections."
The letter lists several questions that it urges that the FTC pose to Google. For
example, "To what extent does Google use the consumer information collected through
Buzz and other Google services for the purposes of delivering online advertising?"
The signers of the letter include Rep. Joe
Barton (R-TX), the ranking Republican on the
House Commerce Committee (HCC). The signers
also include Rep. Frank Pallone (D-NJ),
Rep. Jan Schakowsky (D-IL),
Rep. John Barrow (D-GA),
Rep. Bruce Braley (D-IA),
Rep. Steve Scalise (R-LA),
Rep. Tim Murphy (R-PA), and
Rep. Mike Rogers (R-MI), all of
whom are members of the HCC.
The Electronic Privacy Information Center
(EPIC) previously filed a complaint with the FTC regarding Google Buzz. See,
story titled "EPIC Files Complaint with FTC Regarding Google Buzz" in
TLJ Daily E-Mail
Alert No. 2,047, February 18, 2010.
|Digital Due Process Coalition Proposes
Changes to Federal Surveillance Law
3/30. A newly organized coalition of companies and groups named
Digital Due Process (DDP) announced a set of
four principles which they argue should be incorporated into the federal statutes that
regulate government searches and seizures of stored communications and data.
The coalition stated in a release that it advocates "updating the key federal
law that defines the rules for government access to email and private files
stored in the Internet ``cloud.´´" There are numerous other issues involving
government searches and seizures in the context of new information technologies that the DDP's
four principles do not address.
The coalition stated that Jim Dempsey, of the Center
for Democracy and Technology (CDT), "has led the coalition effort".
He stated in the DDP release that "The traditional standard for the government
to search your home or office and read your mail or seize your personal papers
is a judicial warrant. The law needs to be clear that the same standard applies
to email and documents stored with a service provider, while at the same time be
flexible enough to meet law enforcement needs."
ECPA and Other Statutory Acronyms. The coalition stated that their legislative
"recommendations focus on the Electronic Communications Privacy Act (ECPA)".
In 1968 the Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968.
Title III of this Act addressed wiretaps in the context of analog telephone networks,
and bugs. Title III of the 1968 Act is also sometimes referred to as the Wiretap Act.
(There is also a Wire Act, a different statute that deals with gambling.)
In 1986 the Congress enacted the ECPA, Public Law No. 99-508. Title I of the ECPA
amended the Wiretap Act, to include "electronic communications", and thereby
bring internet based communications technologies within the scope of the statute.
Title II of the ECPA is the Stored Communications Act (SCA). It addresses access to
stored wire and electronic communications and transactional records. Finally,
Title III of the ECPA addresses pen register and trap and trace devices.
These statutory sections have been further amended since 1986, especially by
Title II of
HR 3162 (107th Congress), the 2001 USA PATRIOT Act, Public Law No. 107-56.
Currently, in the context of intercepts, many relevant definitions are
codified at 18 U.S.C.
§ 2510. The basic prohibition of unlawful intercepts is codified at
18 U.S.C. § 2511. See also,
18 U.S.C. §§ 2510-2522.
The basic prohibition of unlawful access to stored communications is codified at
18 U.S.C. § 2701. See also,
18 U.S.C. §§ 2701-2712.
The rules governing pen registers and trap and trace devices (PR&TTD) are codified at
18 U.S.C. §§ 3121-3127.
PR&TDD is not widely used term. The PR&TTD concept originated with analog
voice service over Public Switched Telephone Network (PSTN). Originally, 18
U.S.C. § 3127 provided that a pen register records the numbers that are dialed
or punched into a telephone, while a trap and trace device captures the incoming
electronic or other impulses which identify the originating number of an
instrument or device from which a wire or electronic communication was
transmitted. The 2001 Act expanded the scope of surveillance under pen register
and trap and trace authority to include internet routing and addressing
information. That is, an e-mail address in the "To:" line of an e-mail message
is somewhat analogous to the number dialed in a PSTN voice call.
The DDP's four principles make no reference to the Foreign
Intelligence Surveillance Act (FISA), which is codified in Title 50. Although,
the same Federal Bureau of Investigation (FBI)
engages in the same types of intercepts, and accesses the same types of data,
under both Title 18 and Title 50. The difference lies in the government's purported p
urposes (law enforcement versus foreign intelligence and terrorism) and the lower burdens
that the government must meet when proceeding under Title 50.
Also, the DDP's four principles all address search and seizure by "the
government". There is nothing in the four principles, for example, about
subpoenas in private litigation.
DDP's Four Principles. The DDP announced four principles, pertaining to
government access to documents stored online, device location information,
transactional data, and bulk transactional data.
First, "The government should obtain a search warrant based on probable cause
before it can compel a service provider to disclose a user's private
communications or documents stored online."
Second, "The government should obtain a search warrant based on probable
cause before it can track, prospectively or retrospectively, the location of a
cell phone or other mobile communications device."
Third, "Before obtaining transactional data in real time about when and with whom
an individual communicates using email, instant messaging, text messaging, the telephone
or any other communications technology, the government should demonstrate to a court that
such data is relevant to an authorized criminal investigation."
Fourth, "Before obtaining transactional data about multiple unidentified users of
communications or other online services when trying to track down a suspect, the government
should first demonstrate to a court that the data is needed for its criminal
DDP's Explanation of Its Four Principles. The DDP elaborated that the first
principle, regarding access to data stored online, "applies the safeguards that
the law has traditionally provided for the privacy of our phone calls or the physical
files we store in our homes to private communications, documents and other private
user content stored in or transmitted through the Internet ``cloud´´ -- private emails,
instant messages, text messages, word processing documents and spreadsheets, photos,
Internet search queries and private posts made over social networks."
The DDP statement of principles does not go on to state that this would mean no
searches, seizures, or intercepts, without a warrant, issued by a judge, based upon a
finding of probable cause.
Nor does this short statement of principles articulate details about who is entitled
to notice (such as the cloud service provider, or the user who stores documents), when
notice must be given, and who has standing to challenge such warrants or orders.
The second principle, regarding location information, has become an issue in
part because the Federal Communications Commission (FCC) has so strenuously
mandated location detection capabilities not only for traditional land line
phones, but also for cell phones, and anything with interconnected VOIP
capability. Law enforcement and intelligence agencies have pressured the FCC to
do this, in part to facilitate location surveillance. The FCC has issued
technology mandates, without also protecting the privacy interests of people.
The DDP stated that "This principle addresses the treatment of the growing
quantity and quality of data based on the location of cell phones, laptops and
other mobile devices, which is currently the subject of conflicting court
decisions; it proposes the conclusion reached by a majority of the courts that a
search warrant is required for real-time cell phone tracking, and would apply
the same standard to access to stored location data."
The third principle goes to transactional data about communications and
online services. The DDP stated that "In 2001, the law governing ``pen registers
and trap & trace devices´´ -- technologies used to obtain transactional data in
real time about when and with whom individuals communicate over the phone -- was
expanded to also allow monitoring of communications made over the Internet. In
particular, the data at issue includes information on who individuals email
with, who individuals IM with, who individuals send text messages to, and the
Internet Protocol addresses of the Internet sites individuals visit."
This is a reference to Section 216 of
(107th Congress), which which became law on October 26, 2001. See also, story
titled "Pen Registers and Trap and Trace Devices" in
TLJ Daily E-Mail
Alert 296, October 29, 2001.
The DDP added that "This principle would update the law to reflect modern
technology by establishing judicial review of surveillance requests for this
data based on a factual showing of reasonable grounds to believe that the
information sought is relevant to a crime being investigated."
The current standard is that a judge must issue an PR&TTD order if the government
asserts mere relevance to a criminal investigation; the judge has no discretion.
This is a very low standard.
The fourth principle pertains to government access to bulk transactional
data. The DDP stated that "This principle addresses the circumstance when the
government uses subpoenas to get information in bulk about broad categories of
telephone or Internet users, rather than seeking the records of specific
individuals that are relevant to an investigation. For example, there have been
reported cases of bulk requests for information about everyone that visited a
particular web site on a particular day, or everyone that used the Internet to
sell products in a particular jurisdiction."
The DDP stated that "Because such bulk requests for information on classes of
unidentified individuals implicate unique privacy interests, this principle applies a
standard requiring a showing to the court that the bulk data is relevant to an
The DDP web site also contains a
paper [23 pages
in PDF] titled "The Electronic Communications Privacy Act of 1986: Principles for
Reform", authored by Beckwith Burr
of the law firm of Wilmer Hale.
Due Process. The title "Digital Due Process" is alliterative,
and has a ring to it, but it is not
descriptive of the purposes of coalition. The coalition is only tangentially advocating due
process rights within the meaning of the 5th and 14th Amendments to the U.S. Constitution.
Rather, its principles are more in the nature of implementation of 4th Amendment rights
in the context new technologies.
The due process clauses provide that the government cannot take away a
person's life, liberty or property without due process of law. Numerous
procedures must be afforded to the person whose life, liberty or property is
targeted. In contrast, the 4th Amendment provides for privacy, and limits and
regulates searches and seizures. The DDP is not arguing that government
accessing of stored data is a deprivation of property. It is arguing that it is
privacy invasive and must be subject to limitations.
Of course, if the government seeks to imprison someone on a criminal charge,
and obtains evidence of the alleged crime from a search or seizure that violates
the 4th Amendment, then due process entails exclusion of that evidence from use
at trial against the defendant. Moreover, violation of those portions of the
ECPA pertaining to intercepts can result in exclusion at a criminal trial. See,
18 U.S.C. § 2515. In contrast, violation of those portions of the ECPA
pertaining to stored communications and PR&TDDs do not lead to exclusion. The
DDP does not now propose to change this. Also, it is the latter two things that
are the focus of the DDP principles.
Moreover, the reforms sought by the DDP are directed in significant part at
protecting the privacy interests of individuals outside of the context gathering
evidence in a particular criminal investigation for purpose of introducing it at
trial. The DDP also appears to be concerned about the financial costs imposed
upon service providers by burdensome demands placed upon them by the government,
which costs might be passed on to consumers.
ACLU. The American Civil Liberties Union (ACLU) is a member of the DDP
coalition. It supports the four principles, but also wants the Congress to go
further, particularly on the exclusionary rule issue.
The ACLU's Laura Murphy stated in a
release that "Our privacy laws desperately need an upgrade ... Technology
has evolved at a lightning pace, leaving our privacy protections out of date and
ineffective. The Fourth Amendment guarantees us the right to be secure in our
‘papers and effects’ and that means something entirely different in the 21st
century. Many of our ‘papers and effects’ are no longer tangible in the same way
they used to be but still must be defended from the overreaching hands of
government. Congress must step up and make the much-needed changes to the
Electronic Communications Privacy Act."
Murphy also stated that "Just as non-electronic information illegally obtained by
law enforcement is not admissible in a court of law, the same should be true of illegally
obtained electronic information."
DDP Members. The DDP disclosed its members.
No law enforcement or public safety groups are members.
Several key industries are either not involved, and are barely represented. There are no
wireless providers (other than AT&T) or trade groups that represent the wireless
industry, such as the CTIA, even though the DDP
recommendations go to location data held by wireless companies.
Loopt, a wireless social mapping service,
is a member.
There are no cable companies or trade groups that represent them, such as the
National Cable and Telecommunications Association (NCTA).
There are no landline phone companies (other than AT&T and the western states CLEC
Integra Telecom), or trade groups that
represent them, such as USTelecom. There are no companies that make telecommunications or
networking equipment, such as Alcatel and
Cisco, or trade groups that represent them.
There are no companies that make computer, components and mobile devices (other
than Intel) or trade groups that represent them.
There are no banks or financial services companies or trade groups. However,
eBay, which owns
PayPal, is a member.
The list of members include companies that enable people and companies to
store their data online, such as Google, Salesforce.com, and Microsoft are
members. Notably, Amazon, which offers many cloud based services, is not a member.
The list of members includes many think tanks and advocacy groups involved in
IT policy, including the Center for Democracy & Technology (CDT),
Information Technology & Innovation Foundation
(ITIF), Progress & Freedom Foundation (PFF),
Computer and Communications Industry
Association (CCIA), and Electronic Frontier Foundation (EFF).
The membership list also includes the ACLU, American Library Association,
Americans for Tax Reform, AOL, Association of Research Libraries, Citizens
Against Government Waste, Competitive Enterprise Institute, and NetCoalition.
The membership list does not include the
Electronic Privacy Information Center (EPIC).
|Committees to Hold Hearings on
Reforming the ECPA
3/30. Rep. John Conyers (D-MI), Chairman
of the House Judiciary Committee (HJC),
announced in a release that the
HJC and its Subcommittee on Crime, Terrorism and Homeland Security and Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will hold hearings "this spring"
to consider reform of the Electronic Communications Privacy Act of 1986 (ECPA).
Sen. Patrick Leahy (D-VT), Chairman of
the Senate Judiciary Committee (SJC), stated in a
release that the SJC will hold hearings too.
Rep. Conyers stated that "Vast transformation, including the growth of the internet,
has occurred in electronic communications since the enactment of the Electronic
Communications Privacy Act in 1986. During the same period, the ability to monitor
communication has also grown tremendously. As technology moves forward, it is clearly
necessary for industry, as well as all Americans, to adjust and clarify the law. Our
Committee plans to hold hearings on this important issue this spring."
Bobby Scott (D-VA) (at right), Chairman of the Subcommittee on Crime, stated that
"With the great advances in communications technology we have seen in recent years,
and the unprecedented extension of government powers to peer into traditionally private
communications, we need to examine whether the lines are appropriately drawn to reflect
the level of constitutional protections and liberties citizens expect in their everyday
Rep. Jerrold Nadler (D-NY), Chairman of the
Subcommittee on the Constitution, stated that "The Framers of the Constitution
placed great emphasis on the right of all people to be 'secure in their persons,
houses, papers, and effects against unreasonable searches and seizures.' The technology
has changed since the 18th century, but the principle has not. Congress must ensure that
however transmitted, and however stored, our communications are properly protected."
Sen. Leahy stated that "I applaud the announcement today by Digital Due Process
and the Center for Democracy & Technology that a coalition of privacy advocates, legal
scholars, and major Internet and communication service providers have joined together to
release a consensus set of proposals to modernize the Electronic Communications Privacy
Act. I look forward to reviewing these ideas. While the question of how best to
balance privacy and security in the 21st century has no simple answer, what is
clear is that our federal electronic privacy laws are woefully outdated."
He added that "In the coming months, I plan to hold hearings on much-needed updates
to the Electronic Communications Privacy Act. I appreciate the coalition's ideas in this
area, and I encourage others in Congress to work with me to address these important
privacy and law enforcement issues."
The most thorough set of hearings on Capitol Hill in the last dozen years relating to
search and seizure issues in the context of new technologies was conducted in the Spring
and early Summer of 2005 by the HJC's Subcommittee on Crime. It held about a dozen hearings.
They were exhaustive, balanced, open and bipartisan. Rep. Scott was then the ranking Democrat
on the Subcommittee. He is now the Chairman. Rep. Howard
Coble (R-NC) was then the Subcommittee Chairman.
In contrast, in 2005 and later in the Bush administration Rep. Nadler often
exploited search, seizure and intercept issues with the goal of obtaining
partisan advantage for the Democratic party, rather than legislative reform. He
is now the Chairman of the Subcommittee on the Constitution.
The Bush administration was not helpful during the 2005 hearings. Government
officials held much of the information sought by Subcommittee members. Yet, government
agencies were often uncooperative in producing witnesses and records, and
government witnesses who testified were often evasive.
Actions of senior officials in both the Bush and Obama administrations are consistent with
hypothesis that it is their views that law enforcement and intelligence operations benefit
from laws that both give the relevant agencies broad search and intercept authority, and
laws that are vaguely worded and lack clarity.
While the Obama administration has shifted from the Bush administration on matters
pertaining to terrorist interrogations, incarceration, and trial, the Obama administration
has provided continuity on electronic surveillance matters.
There is little reason to expect any enthusiasm for the DDP's principles from the
Department of Justice (DOJ) or its Criminal Division,
National Security Division, or Federal Bureau of Investigation
Leading Democrats on the Judiciary Committees quickly praised efforts to
reform the ECPA.
In the past, Republicans have been more supportive than Democrats of
law enforcement and intelligence agency arguments on surveillance issues.
However, back in 2005, several HJC Republicans asked tough questions of law
enforcement witnesses. These included Rep.
Louie Gohmert (R-TX), who is now the ranking Republican on the Subcommittee
on Crime, and Rep. Jeff Flake (R-AZ), who
is still in the House, but not on the HJC.
Back in 2001, during the HJC mark up of Title II of the USA PATRIOT Act,
Rep. Bob Goodlatte (R-VA) advocated the
interests of ISPs and the privacy interests of individuals. See, stories titled
"Content, Subject Lines, and URLs" and "No Technology Mandates" in
TLJ Daily E-Mail
Alert No. 279, October 4, 2001. While he has been more quiet on surveillance
issues since then, he remains on the HJC.
|This issue contains the following items:
• House Democrats Ask Obama to Make Privacy Board Operational
• Indictment Charges Price Fixing and Market Allocation for CDTs
• Representatives Ask FTC to Investigate Google Buzz
• Digital Due Process Coalition Proposes Changes to Federal Surveillance Law
• Committees to Hold Hearings on Reforming the ECPA
• FCC Broadband Plan Debated
• More FCC News
• People and Appointments
• More News
New items are highlighted in
|Wednesday, March 31
The House will not meet the week of March 29 - April 2, 2010, or the week
of April 5-9, 2010. See, 2010
House calendar. It will next
meet at 2:00 PM on Tuesday, April 13.
The Senate will not meet the week of March 29 - April 2, 2010, or the week
of April 5-9, 2010. See,
2010 Senate calendar. It will next meet at 2:00 PM on Monday, April 12.
8:00 AM - 4:00 PM. Day two of a two day meeting of the
Coordination Office (NNCO) and the Executive Office of the President's (EOP)
Office of Science and Technology Policy's (OSTP)
National Science and Technology Council's (NSTC) Nanoscale Science, Engineering,
and Technology (NSET) Subcommittee. The meeting will address "science related
to environmental, health, and safety aspects of nanomaterials". See,
notice in the
Federal Register, February 26, 2010, Vol. 75, No. 38, at Pages 9007-9008. Location:
Holiday Inn Rosslyn-Key Bridge, 1900 N. Fort Myer Drive, Arlington, VA.
9:00 AM - 12:00 NOON. Day one of a two day meeting of
Department of Energy's (DOE) Office of Science's
Computing Advisory Committee (ASCAC). See,
notice in the
Federal Register, March 4, 2010, Vol. 75, No. 42, at Page 9887. Location:
American Geophysical Union, 2000 Florida Ave., NW.
9:30 - 11:30 AM. The Federal Communications Commission's (FCC) Public
Safety and Homeland Security Bureau (PSHSB) will hold a meeting regarding the public
safety and homeland security related portions of the FCC's March 16, 2010,
report [376 pages in PDF] titled "National Broadband Plan". See,
Notice. Location: FCC, Commission Meeting Room.
1:00 - 5:00 PM. The Federal
Communications Bar Association's (FCBA) Mass Media Committee will host an event
titled "Media Regulation and the First Amendment in the 21st Century".
The price to attend ranges from $50 to $350. This event qualifies
for continuing legal education (CLE) credits. However, it is not in the nature of legal
education. Rather, there will be three panel discussions on prospective policy making.
The first panel is titled "Technologies of Freedom: What are the Regulatory
Implications of the Evolving Media Environment?". The speakers will be Alan Davidson
(Google), Joe Waz (Comcast), and Gigi Sohn (Public Knowledge). The second panel is titled
""The Future of Journalism: Is it Time for a Bailout?". The speakers will
be Barbara Cochran (RTNDA), Steven Waldman (FCC), Barbara Wall (Gannett), Andy
Schwartzman (Media Access Project), and Gene Policinski (Freedom Forum). The third panel is
titled "New Technology and the First Amendment: What is the Rationale for
Regulation?". The speakers will be Bob Corn-Revere (Davis Wright Tremaine), Marvin
Ammori (Free Press), and Christopher Yoo (University of Pennsylvania). See,
notice. Location: Newseum, 555 Pennsylvania Ave., NW.
5:00 PM. Deadline to submit nominations to the
U.S. Patent and Trademark Office (USPTO)
for National Medal of Technology and Innovation awards. See,
form [MS Word].
Deadline for the Office of the U.S.
Trade Representative (OUSTR) to issue its Section 1377 report regarding the
operation, effectiveness, and implementation of, and compliance with, the
telecommunications provisions of the World Trade Organization (WTO) General
Agreement on Trade in Services, the North American Free Trade Agreement (NAFTA), free
trade agreements (FTAs) with Australia, Bahrain, Chile, Morocco, Oman, Peru, and
Singapore, and the Dominican Republic -- Central America -- U.S. Free Trade Agreement
(CAFTA-DR). See, notice
in the Federal Register, November 17, 2009, Vol. 74, No. 220, at Pages 59339-59340.
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its
Public Notice (PN) requesting comments on the
for Rulemaking [18 pages in PDF] regarding 700 MHz band mobile
equipment design and procurement practices. This PN is DA 10-278 in RM No.
11592. The FCC released it on February 18, 2010. The Petition was filed on
September 29, 2009, by four lower 700 MHz Band A Block licensees. See,
notice in the
Federal Register, March 1, 2010, Vol. 75, No. 39, at Pages 9210-9211.
Deadline for facilities based carriers that provide international
telecommunications services to file a Circuit Status Report with the Federal
Communications Commission (FCC). See,
|Thursday, April 1
9:00 AM - 6:00 PM. Day one of a two day meeting of the
National Science Foundation's (NSF) Advisory
Committee for Mathematical and Physical Sciences. See,
notice in the
Federal Register, March 5, 2010, Vol. 75, No. 43, at Page 10328. Location:
NSF, RM 375, 4201 Wilson Boulevard, Arlington, VA.
10:00 AM - 12:00 NOON. The Department of Health and Human Services'
(DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT)
HIT Standards Committee's Privacy & Security Workgroup will meet by webcast. See,
notice in the
Federal Register, March 17, 2010, Vol. 75, No. 51, at Page 12753.
1:00 - 2:00 PM. The American Bar
Association's (ABA) Section of Antitrust Law will host a teleconferenced panel
discussion titled "Privacy & Information Security Update". The
speakers will be Becky Burr (Wilmer
Hale) and Lynn Charytan
(Wilmer Hale), and Erin Egan (Covington
& Burling). This event is free and open to the public. See,
registration page [PDF].
The Potomac Forum will host a one day conference
titled "Social Media Practical How To's: Connecting the Mission to Social
Media". Prices vary. See,
notice. Location: City Club of Washington, 555 13th St., NW.
|Friday, April 2
9:00 AM - 3:00 PM. Day two of a two day meeting of
the National Science Foundation's (NSF)
Advisory Committee for Mathematical and Physical Sciences. See,
notice in the
Federal Register, March 5, 2010, Vol. 75, No. 43, at Page 10328. Location:
NSF, RM 375, 4201 Wilson Boulevard, Arlington, VA.
TIME CHANGE. 10:00 - 11:30 AM. The
New America Foundation (NAF) will host a panel
discussion titled "Can You Hear Me Now? Why Your Cell Phone is So
Terrible". The speakers will be Farhad Manjoo (Slate
Magazine), Sascha Meinrath
(NAF), Tim Wu (Columbia University
law school), and Nicholas Thompson (NAF). This event is free and open to the public.
See, notice and
registration page. Location: NAF, 1899 L St., NW.
Deadline to submit comments to the
National Institute of Standards and Technology's (NIST)
Computer Security Division (CSD) regarding its draft
NIST IR-7628 [305 pages in PDF] titled "Smart Grid Cyber Security
Strategy and Requirements".
|Monday, April 5
The House will not meet the week of April 5-9, 2010. See, 2010
The Senate will not meet the week of April 5-9, 2010. See,
2010 Senate calendar.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Ring Plus v Cingular
Wireless, App. Ct. No. 2009-1537, an appeal from the U.S. District Court (EDTex)
in a patent infringement case regarding ring back tones. Location: Courtroom 402, 717
Madison Place, NW.
10:00 AM. The U.S. Court
of Appeals (FedCir) will hear oral argument in FujiFilm Corporation v.
Benun, App. Ct. No. 2009-1487, an appeal from the U.S. District Court (DNJ) in
a patent infringement case involving the issue of international exhaustion. Location:
Courtroom 201, 717 Madison Place, NW.
12:30 - 2:00 PM. The DC Bar
Association will host an event titled "General Counsels Series: Ivan Fong,
General Counsel, U.S. Department of Homeland Security". The speaker will be Ivan
Fong. The price to attend ranges from $0 to $20. Most DC Bar events are not open to
the public. This event does not qualify for continuing legal education (CLE) credits. See,
notice. For more information, call 202-626-3463. Location: DC Bar
Conference Center, 1101 K St., NW.
2:00 PM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Micron Technology v.
Rambus, App. Ct. No. 2009-1263, and Hynix Semiconductor v. Rambus,
App. Ct. No. 2009-1299. Location: Courtroom 201, 717 Madison Place, NW.
4:00 PM. The George Mason University law school will
host a lecture by Robert
Corn-Revere (Davis Wright Tremaine) titled "The First Amendment and the
End of History: Does Media Convergence Mean the End of Regulation or is it
Just the Beginning?". See,
Location: GMU law school, Room 120, 3301 Fairfax Drive, Arlington, VA.
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its Order and Notice of Proposed Rulemaking (NPRM)
regarding expanding the FCC's e-rate tax and subsidy program to
cover non-educational uses. This NPRM is FCC 10-33 in CC Docket No. 02-6. The
FCC adopted it on February 18, 2010, and released the
[26 pages in PDF] on February 19, 2010. See,
notice in the Federal
Register, March 5, 2010, Vol. 75, No. 43, at Page 10199-10203, and
"FCC Expands E-Rate Program to Cover Non-Educational Services" in TLJ Daily
E-Mail Alert No. 2,047, February 18, 2010.
|Tuesday, April 6
10:00 AM. The U.S. Court of
Appeals (FedCir) will hear oral argument in MTS v. Hysitron,
App. Ct. No. 2009-1541. Location: Courtroom 201, 717 Madison Place, NW.
12:00 NOON - 3:00 PM. The Department of Health and Human Services'
(DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT)
HIT Policy Committee's Strategic Plan Workgroup will meet by webcast and teleconference.
See, notice in the
Federal Register, March 17, 2010, Vol. 75, No. 51, at Pages 12752-12753.
12:00 NOON. The Cato Institute
will host a panel discussion on the
book [Amazon] titled "The Beijing Consensus:
How China's Authoritarian Model Will Dominate the Twenty-First Century". The
speakers will be Stefan Halper (author), Bonnie Glaser (Center for Strategic and
International Studies), Ted Carpenter (Cato), and Doug Bandow (Cato). See,
notice. Lunch will be
served after the program. The Cato will webcast this event. Location: Cato,
1000 Massachusetts Ave., NW.
12:15 - 1:30 PM. The Federal Communications Commission (FCC) will
host an event titled "Focusing the FCC on Future of Media in a Changing
Technological Landscape: Meet Steven Waldman". The
Federal Communications Bar Association (FCBA) states that this is an FCBA event.
Location: NAB, 1771 N St., NW.
1:00 - 2:00 PM. The law firm of Fulbright & Jaworski will host a
web seminar titled "MySpace Is Everyone's Space: What In-House Counsel Need to
Know About the Employment and IP Challenges of Social Networking Sites".
2:00 - 3:30 PM. The Department of Justice's (DOJ)
Antitrust Division will host a seminar
presented by Patrick DeGraba (Federal Trade Commission) titled "Naked Exclusion
by a Dominant Supplier: Exclusive Contracting and Loyalty Discounts". See also,
paper of the
same title. For more information, contact Patrick Greenlee at 202-307-3745 or atr dot
eag at usdoj dot gov. Location: DOJ, Liberty Square Building, 450 5th St., NW.
2:00 PM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Cornell University v.
Hewlett-Packard, App. Ct. No. 2009-1335, an appeal from the U.S. District
Court (NDNY) in a patent infringement case. Location: Courtroom 201, 717 Madison
6:00 - 8:15 PM. The Federal
Communications Bar Association (FCBA) will host an event titled "Increasing
Opportunities for Minority Entrepreneurs in Media and Telecommunications". This
event qualifies for continuing legal education credits. See,
notice. Location: Arnold & Porter, 555 12th St., NW.
|Wednesday, April 7
8:00 AM - 4:30 PM. The Department of Transportation's (DOT)
Intelligent Transportation Systems Program Advisory Committee (ITSPAC) will
meet. See, notice in
the Federal Register, March 22, 2010, Vol. 75, No. 54, at Pages 13643-13644. Location:
Oklahoma Conference Room, DOT West Building, 1200 New Jersey Ave., SE.
9:00 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 (ISPAB). The agenda includes "Cloud Computing Implementations",
"Health IT", "OpenID", "Pending Cyber Security Legislation",
"key escrow", "SCAP", "Cyber Coordinator Discussion",
"National Protection and Programs Directorate Discussion", and "Security
Issues in Broadband Plan". SCAP is Security Content Automation Protocol. See,
NIST's SCAP web site. See,
notice in the Federal
Register, March 19, 2010, Vol. 75, No. 53, Pages 13258-13259. Location: Washington
Marriott Wardman Park Conference Center, 2660 Woodley Road, NW.
9:00 AM - 4:00 PM. Day one of a two day meeting of the National Archives
and Records Administration's (NARA) Advisory Committee on the Electronic Records
Archives (ACERA). See,
notice in the Federal Register, March 16, 2010, Vol. 75, No. 50, at Pages
12573-12574. Location: 700 Pennsylvania Ave., NW.
10:00 AM. The Federal Communications Commission
(FCC) will hold a workshop regarding legal and technical issues associated with the
development and deployment of an agency wide Consolidated Licensing System (CLS).
Notice. Location: FCC, FCC’s Commission Meeting Room (Room TW-C305), 445 12th
Day one of a four day event hosted by the
American Bar Association's (ABA) Section of
Intellectual Property Law titled "Annual Intellectual Property Law
Conference". See, notice.
Location: Crystal Gateway Marriott, Arlington, VA.
Deadline to submit initial comments to the Federal Communications
Commission (FCC) regarding its report to Congress regarding the Open-Market
Reorganization for the Betterment of International Telecommunications Act (ORBIT Act). See,
[PDF]. This proceeding is IB Docket No. 10-70.
|FCC Broadband Plan
3/26. The Free Press and
New American Foundation (NAF) released a
paper [19 pages in PDF] titled "The National Broadband Plan: Unanswered
Questions and Next Steps" on March 25. The Progress
& Freedom Foundation (PFF) released a
[PDF] titled "The Puzzling Case of the FCC's Broadband Plan" on March 26. The
author is the PFF's Barbara
Both papers pertain to the Federal Communications Commission's (FCC)
[376 pages in PDF] titled "A National Broadband Plan for Our Future". See also,
story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No.
2,058, March 15, 2010.
Also, on March 29, the FP's Derek Turner, the NAF's
Michael Calabese, the PFF's Esbin, and others
participated in a panel discussion on Capitol Hill hosted by the
Internet Caucus Advisory Committee (ICAC) titled
"Actualizing The National Broadband Plan: What Will Congress and the FCC Have To
The FP and NAF wrote in their paper that the FCC should reclassify the transmission
component of broadband internet access as a Title II telecommunications service.
They wrote that "Historically, the FCC regulated broadband transmission as a
``telecommunications service´´ subject to the statutory requirements set forth
by Title II of the Communications Act. ... Beginning in 2002, the FCC adopted a
series of orders classifying broadband Internet access services as information
services subject to the FCC’s general jurisdiction under Title I of the
Communications Act. Title II of the Act authorizes the FCC to impose various
substantive requirements and obligations on carriers subject to its provisions."
They argued that the FCC "should promptly issue a Notice of Inquiry considering only
the issue of whether to classify the transmission component of broadband
Internet access as a telecommunications service. This necessary next step will
commence the process of fully airing and resolving questions related to the
Commission’s authority to implement the Plan".
Esbin wrote that "Most puzzling is the apparent disjuncture between the
overall picture of broadband Internet sector health and the recommendations that
government must now improve things. In some respects, the Plan is like two
separate jigsaw puzzles forming two separate pictures: the data driven puzzle
recognizes the critical role of private investment and initiative, details a
largely vibrant and healthy market with increasing investment, innovative
applications, services and devices, leading to increasing consumer choices for
faster speed and more sophisticated offerings."
She continued that "At the same time, the regulatory agenda puzzle contains
numerous recommendations for regulatory intervention (and hints of even more),
some of which appear only tangentially connected, if at all, to the goals of the
Recovery Act, and only loosely tied to evidence of any serious or sustained
market failure or the exercise of market power. The latter forms a troubling
image of regulatory proceedings aimed not a correcting market failures, but at
perfecting market outcomes, grinding on for years to the delight only of
communications attorneys." (Parentheses in original. Footnotes omitted.)
As for reclassifying broadband service, Esbin wrote that "The case for
reclassifying broadband Internet access services as Title II common carrier
offerings to resolve certain definitional issues and so that the services can be
more pervasively regulated has simply not been made in the Plan itself."
Rick Cimerman of the National Cable &
Telecommunications Association (NCTA) also participated in the panel
|More FCC News
3/29. The Federal Communications Commission (FCC) adopted a Notice of
Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of
Jurisdictional Separations and Referral to the Federal-State Joint Board".
The FCC released the
[22 pages in PDF] on March 29, 2010. This NPRM is FCC 10-47 in CC Docket No.
80-286. Initial comments will be due within 14 days of publication of a notice
in the Federal Register. Reply comments will be due within 21 days of such
publication. Jurisdictional separations is the process by which incumbent local
exchange carriers (ILEC) apportion regulated costs between the intrastate and interstate
jurisdictions. There is an order in effect, which the FCC keeps extending, that
freezes category relationships and jurisdictional cost allocation factors, pending some
hypothetical future comprehensive reform. This NPRM proposes to once again extend the
freeze, which is currently set to expire on June 30, 2010, until June 30, 2011.
3/26. The Federal Communications Commission (FCC) released a
Notice [4 pages in PDF] that requests comments regarding the Common Alerting
Protocol (CAP). This item is DA 10-500 in EB Docket No. 04-296. Initial comments will
be due within 60 days of publication of a notice in the Federal Register. Reply comments
will be due within 90 days of such publication.
3/26.The Federal Communications Commission (FCC) will host an event titled
"Approaches to Preserving the Open Internet" on April 28, 2010, in Seattle,
Washington. This is related to the FCC's internet regulation rulemaking proceeding.
of Proposed Rulemaking (NPRM) [107 pages in PDF], adopted on October 22, 2009. This
NPRM is FCC 09-93 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, story titled
"FCC Adopts Internet Regulation NPRM" and related stories in
TLJ Daily E-Mail Alert No.
2,008, October 23, 2009. See,
3/24. The Federal Communications Commission (FCC) adopted a Notice of Proposed
Rulemaking (NPRM) on March 18, 2010, regarding amending its amateur radio service
rules with respect to amateur radio operations during government sponsored emergency
preparedness and disaster readiness drills and tests. The FCC released the
[8 pages in PDF] on March 24, 2010. It is FCC 10-45 in WP Docket No. 10-72.
Initial comments will be due within 30 days of publication of a notice in the
Federal Register. Reply comments will be due within 45 days of such publication.
3/26. The National Association of Broadcasters (NAB)
announced in a
the results of its 2010 NAB Radio and Television Board elections.
3/24. Tyrone Brown was named President of the
Media Access Project (MAP). He replaces
Andrew Schwartzman who will remain as SVP and Policy Director. Brown was a
Commissioner of the Federal Communications Commission (FCC) during the administration
for former President Carter. See, MAP
3/30. President Obama met with Zhang Yesui, the People's Republic of China's
(PRC) Ambassador to the U.S. Robert Gibbs, Obama's Press Secretary stated in a
release that "President Obama received the credentials today of China’s new
Ambassador to the United States, Zhang Yesui. During their meeting, the
President stated his determination to further develop a positive relationship
with China. He reaffirmed our one China policy and our support for the efforts
made by Beijing and Taipei to reduce friction across the Taiwan Strait. The
President also stressed the need for the United States and China to work
together and with the international community on critical global issues
including nonproliferation and pursuing sustained and balanced global growth."
Peritz (New York Law School) and Marc Miller released a
paper [14 pages in PDF] titled "An Introduction to Competition Concerns in the
Google Books Settlement".
|About Tech Law
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