8/17. The Department of Justice (DOJ) announced that it will not criminally prosecute anyone in connection with the Lower Marion School District's (LMSD) clandestine and unauthorized use of school issued student laptops to engage in video surveillance, including in private homes. This does not affect pending class action litigation against the LMSD.

For more information about the underlying facts and legal issues, see stories titled "Senate Judiciary Subcommittee to Hold Hearing on Video Laptop Surveillance", "Class Action Complaint Alleges School District Use of Laptops to Surveil Students", "Analysis of Claims in Robbins v. Lower Marion School District", and "School District Webcams and 2252/2252A" in this issue, TLJ Daily E-Mail Alert No. 2,062, March 23, 2010.

Also, the Senate Judiciary Committee (SJC) held a field hearing titled "Video Laptop Surveillance: Does Title III Need to Be Updated" on March 29, 2010, in Philadelphia, Pennsylvania. See, prepared testimony [12 pages in PDF] of Kevin Bankston (Electronic Frontier Foundation), prepared testimony [4 pages in PDF] of Robert Richardson (Computer Security Institute), prepared testimony [7 pages in PDF] of Fred Cate (University of Indiana law school), prepared testimony [9 pages in PDF] of Marc Zwillinger (Zwillinger Genetski), and prepared testimony [2 pages in PDF] of John Livingston (Absolute Software Corporation).

Zane Memeger, the U.S. Attorney for the Eastern District of Pennsylvania, stated in a release on August 17, 2010, that "After a thorough review of the evidence in this matter by my office, the Federal Bureau of Investigation, the Montgomery County District Attorney's Office, the Montgomery County Detectives, and the Lower Merion Police Department, I have concluded that bringing criminal charges is not warranted in this matter".

He added that "For the government to prosecute a criminal case, it must prove beyond a reasonable doubt that the person charged acted with criminal intent. We have not found evidence that would establish beyond a reasonable doubt that anyone involved had criminal intent. I understand that the civil litigation continues. I chose to make this announcement before the beginning of the school year to close at least one part of this matter."

Christopher McGinley, Superintendent of the LMSD, stated in a release that "We are very pleased with today's decision by the US Attorney's Office, which supports the findings of our internal investigation and follows last night's approval of new laptop policies by the School Board."

It may also be the case that many of the criminal statutes dealing with electronic surveillance do not currently criminalize the acts that occurred in this matter. However, as a result of this matter, and the circumstance that the electronic surveillance statutes have not been amended to keep up with new technologies, the acts that occurred in this case may be prohibited by future amendments.

One relevant statute is the Electronic Communications Privacy Act (ECPA). 18 U.S.C. § 2511 prohibits interception or bugging of the conversions, phone calls, and electronic communications of others. The alleged activities of the LMSD fall short of violating this statute because there was no allegation of interception of any communications.

Another statute is the Computer Fraud and Abuse Act (CFAA). 18 U.S.C. § 1030 prohibits certain accessing of a protected computer "without authorization", or "exceeding authorized access". In the present matter, all of the laptops at issue were owned by the school district. Thus, it was accessing computers that it owned. It authorized itself.

In addition, the CFAA is directed at protecting computers, computer systems, and the data stored thereon. The CFAA does not protect what is on the outside, except to the extent that damaging a computer system causes outside damage. In the present matter, the LMSD caused no damage to the laptops, or data thereon. It used the laptops to surveil activity outside of the laptops. The CFAA is not directed at this.

Another statute is the Stored Communications Act (SCA). 18 U.S.C. § 2701 contains a criminal ban that is directed at protecting stuff stored on a computer. But, the LMSD did not access that stuff.

8/10. The American Civil Liberties Union (ACLU), attorney for Nicholas Merrill, the John Doe plaintiff in John Doe v. Eric Holder, announced in a release that the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) has "partially lifted a gag it imposed on ... Merrill in 2004 that prevented him from disclosing to anyone that he received a national security letter (NSL) demanding private customer records".

See, ACLU web page with hyperlinks to pleadings in this case. This case is now John Doe v. Eric Holder, Robert Mueller, and Valerie Caproni. It was filed as redacted plaintiff, et al. v. Alberto Gonzales, Robert Mueller, and a redacted FBI official, U.S. District Court for the District of Connecticut.

Merrill stated in the ACLU release that "After six long years of not being able to tell anyone at all what happened to me -- not even my family -- I'm grateful to finally be able to talk about my experience of being served with a national security letter".

He added that "Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their users without a court order. I hope my successful challenge to the FBI's NSL gag power will empower others who may have received NSLs to speak out."

NSLs do not require a warrant or other prior court authorization, and hence, are inherently subject to abuse. They enable the DOJ's FBI to obtain records, including subscriber, billing and call records of phone companies and ISPs. NSLs also apply to libraries to the extent that they are providing an electronic communication service.

More stories related to this litigation:

• "Suit Challenges Constitutionality of National Security Letters" in TLJ Daily E-Mail Alert No. 1,202, August 26, 2004.
• "2nd Circuit Stays District Court Injunction in National Security Letter Case" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005.
• "2nd Circuit Rules on National Security Letters" in TLJ Daily E-Mail Alert No. 1,874, December 16, 2008.

More stories related to FBI abuse of NSL authority:

• "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.
• "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008.
• "Another DOJ Inspector General Report Finds FBI Misconduct in Obtaining Phone Records" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.

8/17. The Federal Communications Commission (FCC) released a report titled "Second Annual Report to Congress on State Collection and Distribution of 911 and Enhanced 911 Fees and Charges".

The FCC wrote that 13 states "report that collected funds are or may be used, at least in part, to support programs other than 911 and E911". In addition, "Two states did not respond, and three states did not provide this information."

The FCC report adds that "Ten states (Arizona, Delaware, Georgia, Hawaii, Illinois, Nebraska, New York, Oregon, Rhode Island, Wisconsin) report that they used money collecte for 911/E911 to assist in closing the states' general fund". (Parentheses in original.)

The FCC report also states that other states diverted 911/E911 funds in 2008 or 2009, including California.

But, the FCC added, "most of the 911/E911 fees collected by the states were in fact used to fund 911/E911 services".

The CTIA's Dane Snowden stated in a release that "we find this report on state activity incredibly disappointing. We are baffled by the states that have decided to take money from the 911 funds and use them for extraneous purposes."

"With more than 20 percent of American households going wireless-only and more than 300,000 wireless E911 calls made every single day, it is vital that our public safety responders are properly equipped to respond to wireless distress calls as quickly as possible. This includes making sure that public safety answering points (PSAP), or 911 call centers, are prepared for next generation 911."

Snowden added that "When our consumers see a '911 tax and fee' on their wireless bills, they pay it because they believe their contribution will go to ensure their emergency wireless or wireline calls will be answered. Unfortunately, this report tells us a different story."

Diversion of 911/E911 fees by states is a long running problem. The Congress has considered, but not enacted, mandates that such funds only be used of 911/E911 services. See, for example, Section 6 of S 1250 (108th Congress), as introduced on June 12, 2003.

The just released report is required by the "New and Emerging Technologies 911 Improvement Act of 2008". It was HR 3403 [LOC | WW] in the previous Congress. It is now Public Law No. 110-283. That act does not prohibit fee diversion of 911/E911 fees. It merely requires the FCC to write an annual report on "the amount of revenues obligated or expended by each State or political subdivision thereof for any purpose other than the purpose for which any such fees or charges are specified".

8/13. The Federal Communications Commission (FCC) released a report [11 pages in PDF] titled "Report on Informal Consumer Inquiries and Complaints: 1st Quarter Calendar Year 2010". This report reflects that most consumer complaints relate to the indecency of broadcast programs, the Do Not Call List, junk faxes, and other Telephone Consumer Protection Act (TCPA) issues. There is an absence of correlation between the common consumer complaints and inquiries, and the major policy areas where FCC Chairman Julius Genachowski is attempting to change FCC rules and practices, such as regulation of broadband internet access service providers, universal service tax and subsidy programs, and disability access rules.

8/12. The Federal Communications Commission (FCC) released an Order [4 pages in PDF] that creates an Office of Native Affairs and Policy. The FCC adopted this order on July 31, 2010, and released it on August 8, 2010. It is FCC 10-141.

The Senate will not meet. It will next meet on September 13, 2010.

The House will not meet. It will next meet at 2:00 PM on September 14, 2010.

6:00 - 9:15 PM. The DC Bar Association will host a panel discussion titled "Part 2: Software Patent Primer: Acquisition, Exploitation, Enforcement and Defense". The speakers will be Stephen Parker (Westerman, Hattori), Brian Rosenbloom (Figg Ernst), Martin Zoltick (Rothwell Figg). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. This event qualifies for CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding revising its Part 17 rules regarding the construction, marking, and lighting of antenna structures. The FCC adopted this NPRM on April 12, 2010, and released the text [54 pages in PDF] on April 20, 2010. It is FCC 10-53 in WT Docket No. 10-88. Federal Register, May 21, 2010, Vol. 75, No. 98, at Pages 28517-28540.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposed three track patent examination system. See, notice in the Federal Register, June 4, 2010, Vol. 75, No. 107, at Pages 31763-31768. See also, story titled "USPTO Proposes Three Track Patent Examination System" in TLJ Daily E-Mail Alert No. 2,092, June 4, 2010.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its "interim final rules" amending the Rules of Practice in Trademark Cases to implement the Trademark Technical and Conforming Amendment Act of 2010. President Obama signed this Act, S 2968 [LOC | WW], into law on March 17, 2010. It is Public Law 111-146. See, notice in the Federal Register, June 24, 2010, Vol. 75, No. 121, at Pages 35973-35977.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding license renewals, discontinuance of operations, geographic partitioning, and spectrum disaggregation for certain Wireless Radio Services. The FCC adopted this NPRM on May 20, 2010, and released the text [71 pages in PDF] on May 25, 2010. It is FCC 10-86 in WT Docket No. 10-112. See, notice in the Federal Register, July 7, 2010, Vol. 75, No. 129, at Pages 38959-38974.

Extended deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration to the FCC's May 20, 2010, freeze order, filed on August 6, 2010, by Green Flag Wireless. See, FCC Public Notice.

10:00 AM - 12:00 NOON. Day two of a two day conference titled "Homeland Security 2020: The Future of Defending the Homeland" hosted by the Heritage Foundation. Day two is titled "Science and Technology". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

9:30 - 10:30 AM. The National Press Club (NPC) will host a class titled "Web 2.0 Tools". The price to attend ranges from $20 to $30. For more information, contact Beth Shankle at 202-662-7509 or bshankle at press dot org. Location: NPC, 13th floor, 529 14th St. NW.

11:00 AM - 12:00 NOON. The National Press Club (NPC) will host a class titled "Advanced Google Search". The price to attend ranges from $20 to $30. For more information, contact Beth Shankle at 202-662-7509 or bshankle at press dot org. Location: NPC, 13th floor, 529 14th St. NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced event titled "The Judges’ Roundtable on E-Discovery and Ethics". Prices vary. CLE credits. See, notice.

1:30 - 2:30 PM. The National Press Club (NPC) will host a class titled "Twittering Away". The price to attend ranges from $20 to $30. For more information, contact Beth Shankle at 202-662-7509 or bshankle at press dot org. Location: NPC, 13th floor, 529 14th St. NW.

3:00 - 4:00 PM. The National Press Club (NPC) will host a class titled "Reporting from Facebook". The price to attend ranges from $20 to $30. For more information, contact Beth Shankle at 202-662-7509 or bshankle at press dot org. Location: NPC, 13th floor, 529 14th St. NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) and Further NPRM [36 pages in PDF] regarding "prescribing a point to point predictive model for determining the ability of individual locations to receive an over the air digital television broadcast signal at the intensity level needed for service through the use of an antenna" (NPRM), and "determining eligibility of satellite subscribers for receiving distant network signals from their satellite TV provider using on-location testing/measurements" (FNPRM). The NPRM is required by the Satellite Television Extension and Localism Act of 2010 (STELA), which the Congress enacted in May. See, story titled "Obama Signs Satellite TV Bill" in TLJ Daily E-Mail Alert No. 2,089, May 28, 2010. The FCC adopted and released this item on July 28, 2010. It is FCC 10-133 in ET Docket Nos. 10-152 and 06-94. See, notice in the Federal Register, August 4, 2010, Vol. 75, No. 149, at Pages 46885-46894.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will meet. See, notice in the Federal Register, August 6, 2010, Vol. 75, No. 151, at Page 47546. Location: DOC, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced event titled "Implications of Bilski on Patenting Tax Strategies". The speakers will be Dennis Drapkin (Jones Day), Ellen Aprill (Loyola Law School), Barry Grossman (Foley & Lardner), and Matthew Young (AICPA). Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced event titled "Using Technology in the Courtroom: Preparing for Your First Use of Technology". Prices vary. CLE credits. See, notice.

No events listed.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding amending its satellite television significantly viewed rules to implement Section 203 of the Satellite Television Extension and Localism Act of 2010 (STELA). The FCC adopted this NPRM on July 22, 2010, and released the text [27 pages in PDF] on July 23, 2010. It is FCC 10-130 in MB Docket No. 10-148. See, notice in the Federal Register, July 28, 2010, Vol. 75, No. 144, at Pages 44198-44209.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding the Agreement Containing Consent Order [9 pages in PDF] in its administrative action against Rite Aid Corporation. See, notice in the Federal Register, August 2, 2010, Vol. 75, No. 147, at Pages 45114-45116. See also, story titled "FTC and DHHS Fault Rite Aid for Tossing Records with PII in Dumpsters" in TLJ Daily E-Mail Alert No. 2,113, July 28, 2010.

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