9/8. President Obama gave a speech in Parma, Ohio in which he advocated making the research and development tax credit permanent.

Presidents and Congressional leaders have made numerous similar statements for decades, without making the R&D tax credit permanent.

President Obama said that "I've never believed that government's role is to create jobs or prosperity. I believe it’s the drive and the ingenuity of our entrepreneurs, our small businesses; the skill and dedication of our workers that’s made us the wealthiest nation on Earth. I believe it's the private sector that must be the main engine for our recovery."

He continued that the government should make "the long-term investments in this country's future that individuals and corporations can't make on their own: investments in education and clean energy, in basic research and technology and infrastructure."

He advocated a "permanent extension of the tax credit that goes to companies for all the research and innovation". He added, "I'm proposing that all American businesses should be allowed to write off all the investment they do in 2011."

Phil Bond, head of TechAmerica, stated in a release that "The technology industry has long held that a stronger, permanent R&D credit quite simply equals more American jobs ... With so much apparent support on both sides of the aisle, a move on the R&D credit could be the ultimate low hanging fruit for a return to economic certainty. The President’s support for dramatic capital investment incentives has also been very well received."

The Congress first enacted the credit in 1981 as a temporary measure. Since then the Congress has extended it for one or a few years. With so many extensions, companies have come to expect the credit to be continued, and often plan accordingly, even when the credit is allowed to lapse. Extensions have always been retroactive, with the exception of one year 15 years ago. The credit expired on December 31, 2009.

By keeping the credit temporary, administration and Congressional budget staff, in making revenue projections, can operate under the fiction that tax revenues will increase when the credit expires. By keeping the issue on the agenda, candidates for federal office, and especially incumbents, can rely upon a continuous flow of campaign contributions from supporters of the credit.

See also, story titled "Research Credit Remains Unextended" in TLJ Daily E-Mail Alert No. 2,114, July 29, 2010.

9/7. On September 7, 2010, Oracle filed a Definitive Proxy Statement with the Securities and Exchange Commission (SEC) that discloses that "Mark V. Hurd was unanimously appointed by the Board as President and unanimously elected by the Board as a director on September 6, 2010 to fill the vacancy on the Board created by Mr. Phillips' resignation, and will stand for election as a director at the Annual Meeting along with our eleven incumbent directors", on October 6, 2010.

This form adds that "Prior to joining us, he served as Chairman of Hewlett-Packard Company from September 2006 to August 2010 and as Chief Executive Officer, President and a member of the Board of HP from April 2005 to August 2010. Prior to joining HP, Mr. Hurd served as Chief Executive Officer of NCR Corporation, a technology company, from March 2003 to March 2005 and as President from July 2001 to March 2005. Mr. Hurd also currently serves as a director of News Corporation, but will not stand for re-election to that board of directors at News Corp's October 15, 2010 annual meeting."

Hewlitt Packard (HP) then filed a complaint in the Superior Court of Santa Clara County (a trial court of the state of California) against Mark Hurd seeking an injunction.

9/7. Pascal Abidor, the National Association of Criminal Defense Lawyers (NACDL), and the National Press Photographers Association (NPPA) filed a complaint [37 pages in PDF] in the U.S. District Court (EDNY) against Janet Napolitano and others alleging violation of 1st and 4th Amendments of the U.S. Constitution in connection with the Department of Homeland Security (DHS) practice of searching, copying and detaining electronic devices at international borders without reasonable suspicion.

The plaintiffs are represented by Catherine Crump of the American Civil Liberties Union (ACLU). The complaint states that plaintiff Abidor has had his electronic devices searched and detained.

Crump stated in a release that "These days, almost everybody carries a cell phone or laptop when traveling, and almost everyone stores information they wouldn't want to share with government officials -- from financial records to love letters to family photos ... Innocent Americans should not be made to feel like the personal information they store on their laptops and cell phones is vulnerable to searches by government officials any time they travel out of the country."

Mickey Osterreicher, attorney for the NPPA, stated in a release that "government officials' unfettered ability to search journalists' laptops and other electronic devices will have a chilling effect on their ability to gather and disseminate the news once it becomes widely known that any information they gather may be subject to search and seizure without probable cause or reasonable suspicion".

The complaint states that DHS policies, which are stated in CBP Directive No. 3340-049 [10 pages in PDF] and ICE Directive No. 7-6.1 [10 pages in PDF], "permit border agents to search and copy electronic devices without reasonable suspicion. The policies also allow border agents to detain electronic devices and continue their searches even after a traveler has been permitted to enter the country. The policies do not place any time limits on how long DHS can keep travelers' devices, nor do they limit the scope of private information that may be searched, copied, or detained. The policies contain no meaningful limits on what information gleaned from a search can be retained and with whom that information can be shared. The policies make no provision for judicial approval or supervision."

The complaint contains extensive factual allegations -- for example, about the DHS's treatment of Abidor and his electronic devices and data -- that pertain to establishing standing to challenge the policies.

The complaint alleges violation of the 4th and 1st Amendments.

The 4th Amendment provides in full that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The 1st Amendment provides in part that "Congress shall make no law respecting ... the freedom of speech, or of the press ..."

The complaint seeks declaratory and injunctive relief, and an order for the return and expungement of information seized from Abidor. The plaintiffs seek no monetary relief, other than attorneys' fees and costs.

This case is Pascal Abidor, et al. v. Janet Napolitano, Alan Bersin and John Morton, U.S. District Court for the Eastern District of New York.

Legal Precedent. Federal appellate law currently allows the DHS to conduct suspicionless searches of electronic devices at borders.

For example, on July 24, 2006, the U.S. Court of Appeals (9thCir) issued its opinion [PDF] in USA v. Romm, holding that a border or international airport seizure and search of a laptop computer, including search of internet caches, forensic analysis, and recovery of deleted files, is permissible, without consent, a warrant, probable cause, or any reason to believe that contraband is being brought into the U.S.

See also, story titled "9th Circuit Holds Government Can Conduct Warrantless Random Searches of Laptops of Persons Entering US at Airports" in TLJ Daily E-Mail Alert No. 1,417, July 25, 2006.

And see, story titled "Summary of Cases Regarding DHS/CBP Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009.

Legislation. Bills have been introduced in the Congress, but not enacted into law, that would address the issues raised by this case.

Also, the Senate Judiciary Committee's (SJC) Subcommittee on the Constitution, Civil Rights and Property Rights held a hearing on June 25, 2009, titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel". See, SJC web page with hyperlinks to opening statements and prepared testimony. The testimony of witnesses details the practices of CBP agents, and advances legal and policy arguments against current practices.

For bills pending in the current Congress, see HR 239 [LOC | WW], the "Securing our Borders and our Data Act of 2009", and HR 1726 [LOC | WW], the "Border Security Search Accountability Act of 2009".

For further information about bills introduced in both the 110th and 111th Congresses, see story titled "Summary of Bills Regarding DHS/CBP Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009.

Criminal Conduct at the DHS. In addition, the DHS has a history of criminal conduct in this area. See, for example, story titled "DHS/CBP Supervisor Embezzles Laptop from Airline Passenger" in TLJ Daily E-Mail Alert No. 1,963, June 30, 2009.

8/26. The Federal Trade Commission (FTC) filed an administrative complaint [3 pages in PDF] against Reverb Communications, Inc. and Tracie Snitker alleging  violation of Section 5 of the FTC Act in connection with the posting of comments about games in Apple's iTunes store. The parties simultaneously entered into an Agreement Containing Consent Order under which the respondents agree not to mislead consumers into believing that they are ordinary consumers.

The complaint states that "Reverb provides sales, marketing, and public relations services to clients, including clients that develop gaming applications offered for sale to consumers via the iTunes store", and that Reverb is compensated for these activities.

It continues that Reverb employees, including Tracie Snitker, posted positive comments in the iTunes store on behalf of a client, "using account names that would give the readers of these reviews the impression they had been submitted by disinterested consumers".

This, the complaint alleges, constitutes "unfair or deceptive acts or practices in or affecting commerce in violation of Section 5(a)" of the FTC Act, and the FTC's regulations.

There is no statute that specifically addresses internet postings. Section 5(a), which is codified at 15 U.S.C. § 45, provides in part that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

Mary Engle, Director of the FTC's Division of Advertising Practices, stated in a release that "Companies, including public relations firms involved in online marketing need to abide by long-held principles of truth in advertising ... Advertisers should not pass themselves off as ordinary consumers touting a product, and endorsers should make it clear when they have financial connections to sellers."

Under the settlement agreement, neither of the respondents (Reverb and Snitker) admitted wrongdoing. Nor will they pay any fine or other penalty.

However, they agreed that in the future they "shall not misrepresent, in any manner, expressly or by implication, the status of any user or endorser of a product or service, including, but not limited to, misrepresenting that the user or endorser is an independent user or ordinary consumer of the product or service".

The relevant regulations are codified at 16 C.F.R. § 255. The FTC has titled these "Guides Concerning the Use of Endorsements and Testimonials in Advertising".

The present case involves some crass online product touting by a paid marketer. Yet, these same regulations also serve as the basis for the FTC's foray into regulating internet speech in a manner that is inconsistent with the First Amendment. See, story titled "FTC Makes Law Abridging the Freedom of Bloggers" in TLJ Daily E-Mail Alert No. 1,997, October 6, 2009.

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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.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will host a brown bag lunch. Members will make presentations on "major initiatives and potential developments in the area of Privacy and Data Security over the course of the next twelve months. Presentations will highlight the agendas for the FTC, the FCC, the states, Congress and international regulators". Location: USTelecom, Suite 400, 607 14th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding extending the electronic tariff filing requirement for incumbent local exchange carriers to all carriers that file tariffs and related documents. This NPRM is FCC 10-127 in WC Docket No. 10-141. See, FCC Public Notice and notice in the Federal Register, August 11, 2010, Vol. 75, No. 154, at Pages 48629-48641.

The Senate will return from its August recess. See, 2010 Senate calendar.

12:30 PM. The Federal Communications Commission (FCC), National Association of Regulatory Utility Commissioners (NARUC) and National Association of State Utility Consumer Advocates (NASUCA) will host an event titled "National Telephone Discount Lifeline Awareness Week Congressional Briefing". The speakers will be Joel Gurin (Chief of the FCC's Consumer and Governmental Affairs Bureau), Irene Flannery (Deputy Division Chief of the FCC's Wireline Competition Bureau's Telecommunications Access Policy Division), David Coen (NARUC), Charlie Acquard (NASUCA), and Mark Andersen (Faith in Action DC/We Are Family). Lunch will be served. This event is free and open to the public. Location: Room B-339, Rayburn Building.

6:00 - 9:15 PM. The DC Bar Association will host a presentation titled "How to Litigate a Patent Infringement Case". The speaker will be Patrick Coyne (Finnegan Henderson). 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 three public notices regarding FCC collection, use and dissemination of data. See, Media Bureau notice (DA 10-1195 in MB Docket No. 10-103), Wireline Competition Bureau (WCB) notice (DA 10-1189 in WC Docket No. 10-132), and Wireless Telecommunications Bureau (WTB) notice (DA 10-1223 in WT Docket No. 10-131). See also, FCC release.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking [99 pages in PDF] regarding access by telecommunications carriers and cable operators to utility poles. The FCC adopted and released this item on May 20, 2010. This item is FCC 10-84 in WC Docket No. 07-245 and GN Docket No. 09-51. See, notice in the Federal Register, July 15, 2010, Vol. 75, No. 135, at Pages 41337-41363. See also, story titled "FCC Adopts Pole Attachments Order and FNPRM" in TLJ Daily E-Mail Alert No. 2,087, May 26, 2010. See also, July 19, 2010, Public Notice (DA10-1323.)

Deadline to submit comments to the Department of Health and Human Services (DHHS) in response to its notice of proposed rulemaking (NPRM) regarding changes to the Standards for Privacy of Individually Identifiable Health Information (Privacy Rule), the Security Standards for the Protection of Electronic Protected Health Information (Security Rule), and the rules pertaining to Compliance and Investigations, Imposition of Civil Money Penalties, and Procedures for Hearings (Enforcement Rule) issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). See, notice in the Federal Register, July 14, 2010, Vol. 75, No. 134, at Pages 40867-40924.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding disability access and wireless communications devices. The FCC released this PN on July 19, 2010. This PN is DA 10-1324 in CG Docket No. 10-145. See also, story titled "FCC Releases Two Public Notices Regarding Disability Access" in TLJ Daily E-Mail Alert No. 2,108, July 20, 2010, and notice in the Federal Register, August 5, 2010, Vol. 75, No. 150, at Pages 47304-47305.

The House will return from its August recess at 2:00 PM. See, HConRes 308.

8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "The Role of the Obama Administration's IP Enforcement Program". The speakers will be Drew Clark, Steve Mitchell (Entertainment Software Association), Casey Hunter (Future of Music Coalition), Gigi Sohn (Public Knowledge), and Steve Tepp (U.S. Chamber of Commerce). Breakfast will be served. This event is free and open to the public. See, notice and registration page. This event is also sponsored by the National Cable & Telecommunications Association (NCTA) and the Public Knowledge (PK). Location: Clyde's of Gallery Place, 707 7th St., NW.

10:00 AM - 4:00 PM. Day one of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2010 Annual Report to the Congress. See, notice in the Federal Register, August 10, 2010, Vol. 75, No. 153, at Page 48412. Location: Room 233, Hall of States, 444 North Capitol St., NW.

TIME? The Department of Commerce's (DOC) International Trade Administration (ITA), Bureau of Economic Analysis (BEA), and Census Bureau (CB), and the Department of Labor's (DOL) Bureau of Labor Statistics (BLS) will hold a meeting regarding improving the measurement of economic activity and trade in the services sector. See, notice in the Federal Register, August 3, 2010, Vol. 75, No. 148, at Page 45606. Location: DOC, Room 1104, 1401 Constitution Ave., NW.

8:30 AM - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a one day conference titled "The Emerging Mobile Broadband Economy and its New Business Models". The speakers will include Sen. Mark Warner (D-VA), Paul Jacobs (Ch/CEO of Qualcomm), and Phil Weiser (National Economic Council). See, notice. Location: Newseum, 6th floor, 555 Pennsylvania Ave., NW.

12:15 PM. The Federal Communications Commission (FCC) will hold a meeting titled "Political Broadcasting Update". The speakers will be Bobby Baker and Hope Cooper of the FCC's Media Bureau. The FCBA asserts that this is an FCBA event. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

8:00 AM. The American Bar Association's (ABA) Standing Committee on Law and National Security will host a breakfast meeting. Rep. Jane Harman (D-CA) will address intelligence reform and ways to reduce over classification. For more information, contact Kristin Loiacono at 202-662-1092 or loiaconok at staff dot abanet dot org. Location: University Club, 1135 16th St., NW.

10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "China's Exchange Rate Policy". See, notice. Location: Room 1100, Longworth Building.

10:00 AM - 4:00 PM. Day two of a two day meeting of the U.S.-China Economic and Security Review Commission to consider drafts of material for its 2010 Annual Report to the Congress. See, notice in the Federal Register, August 10, 2010, Vol. 75, No. 153, at Page 48412. Location: Room 233, Hall of States, 444 North Capitol St., NW.

12:30 - 2:00 PM. The American Intellectual Property Law Association (AIPLA) will host a webcast event titled "Keeping Your Eye on the Prize: Drafting Patent Applications with Global Considerations". See, notice. Prices vary. CLE credits.

2:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Judicial Nominations". See, notice. The SJC will webcast this event. Sen. Richard Durbin (D-IL) will preside. Location: Room 226, Dirksen Building.

3:30 PM. The New America Foundation (NAF) will host an event titled "The Internet and Innovation: Why Network Architecture Matters". The main speaker is Barbara van Schewick (Stanford University law school), author of the book [Amazon] titled Internet Architecture and Innovation. The other speakers will be Sacha Meinrath (NAF), Gigi Sohn (Public Knowledge), and Derek Turner (Free Press). See, notice. Location: NAF, Suite 400 1899 L St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry (NPRM) [43 pages in PDF] regarding terrestrial broadband services within spectrum allocated to mobile satellite services (MSS). This NOI is FCC 10-126 in ET Docket No. 10-142. The FCC adopted and released this NOI on July 15, 2010. See, notice in the Federal Register, August 16, 2010, Vol. 75, No. 157, Pages 49871-49879. See also, story titled "FCC Adopts NPRM and NOI Regarding Use of MSS Spectrum for Mobile Broadband" in TLJ Daily E-Mail Alert No. 2,105, July 15, 2010.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will hold a hearing on HR 5828 [LOC | WW], the "Universal Service Reform Act of 2010". See, story titled "Rep. Boucher and Rep. Terry Introduce Universal Service Reform Bill" in TLJ Daily E-Mail Alert No. 2,110, July 22, 2010. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of several non-technology related bills, and consideration of the nominations of Kathleen O'Malley (to be a Judge of the U.S. Court of Appeals for the Federal Circuit) and Beryl Howell and Robert Wilkins (to be Judges of the U.S. District Court for the District of Columbia). The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) WRC-12 Advisory Committee's Informal Working Group 4: Regulatory Issues will meet. See, notice. Location: FCC, Third Floor, Room 3-B516, 445 12th St., SW.

10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". Location: FCC, Commission Meeting Room, 445 12th St., SW.

2:30 PM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing on the nomination of Jacob Lew to be Director of the Executive Office of the President's (EOP) Office of Management and Budget (OMB). See, notice. Location: Room 342, Dirksen Building.

5:30 - 8:45 PM. The DC Bar Association will host a presentation titled "Managing a Global Workforce: Key Issues in Immigration, Employment, Export Control and Tax". The speakers will be Alix Mattingly (Maggio & Kattar), Patty Brickett (Argy Wiltse & Robinson), John Nahajzer (Maggio & Kattar), and Thomas Scott (Ladner & Associates). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Legislative and Young Lawyers Committee will host an event titled "Happy Hour". Legislative staff may attend. For more information, contact Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Poste Moderne Brasserie, 555 8th St., NW.

Yom Kippur begins at sunset.

Deadline to submit nominations for membership on the Federal Communications Commission's (FCC) Emergency Response Interoperability Center Public Safety Advisory Committee. See, FCC Public Notice.