Tech Law Journal Daily E-Mail Alert
January 4, 2011, 6:00 PM, Alert No. 2,192.
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Rep. Upton Names House Commerce Committee Staff

12/29. Rep. Fred Upton (R-MI), who will be Chairman of the House Commerce Committee (HCC) in the 112th Congress, announced key Republican staff appointments for the HCC and its subcommittees. See, release.

As previously announced, Gary Andres will be Staff Director. See, story titled "Rep. Upton Names Gary Andres HCC Staff Director" in TLJ Daily E-Mail Alert No. 2,179, December 15, 2010.

Neil Fried will be Chief Counsel for the Subcommittee on Communications and Technology (SCT). He has served on the HCC Republican staff since 2003.

Ray BaumRay Baum (at right) will be Senior Policy Advisor for the SCT. He is the Chairman of the Oregon Public Utility Commission (OPUC). Rep. Greg Walden (R-OR), who will be the Chairman of the HCC's SCT in the 112th Congress, is also from Oregon.

Baum is also the state Chairman of the Federal–State Joint Board on Universal Service.

Baum is also a former chair of the Oregon Broadband Advisory Council, a former member of the Board of Directors of the National Association of Regulatory Utility Commissioners (NARUC), and a former Majority Leader of the state of Oregon's House of Representatives.

Gib Mullan will be Chief Counsel for the Subcommittee on Commerce, Manufacturing and Trade. This subcommittee will handle bills pertaining to online privacy in the 112th Congress. He has worked for the Consumer Product Safety Commission (CPSC), as General Counsel and as Director of Compliance and Field Operations.

Michael Beckerman will be HCC Deputy Staff Director. He has previously worked for Rep. Upton, and for Rep. Michael Conaway (R-TX).

Jim Barnette will be HCC General Counsel. He previously held this position under three former Chairmen, former Rep. Tom Bliley (R-VA), former Rep. Billy Tauzin (R-LA), and Rep. Joe Barton (R-TX).

Alexa Marrero will be Communications Director. She previously worked for the House Education and Labor Committee.

Sean Bonyun will be Deputy Communications Director. He has been Rep. Upton's Communications Director since 2003. Before that, he worked for former Rep. Nancy Johnson (R-CT) and former Rep. Steve Kuykendall (R-CA).

Rep. Upton added that Joan Hillebrands, Chief of Staff in his personal office, "will continue to play a vital role".

More People and Appointments

John Burke1/4. John Burke (at left), a member of the Vermont Public Service Board, was named Chairman of the National Association of Regulatory Utility Commissioners' (NARUC) Committee on Telecommunications, effective January 17, 2011. He replaces Ray Baum, who was just named Senior Policy Advisor to the House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT). See, related story in this issue titled "Rep. Upton Names House Commerce Committee Staff".

Gary Grindler1/3. Attorney General Eric Holder named Gary Grindler (at right) his Chief of Staff, effective January 17, 2011. Grindler came to the Department of Justice (DOJ) in March of 2009 as Principal Associate Deputy Attorney General. In December of 2009, he was named acting Deputy Attorney General (DAG), the number two position at the DOJ, following the early departure of David Ogden (who returned to Wilmer Hale). Grindler long remained the acting DAG because the Senate did not vote on President Obama's nominee to be DAG, James Cole. However, on December 29, 2010, Obama gave Cole a recess appointment. See, story titled "Obama Gives James Cole Recess Appointment" in TLJ Daily E-Mail Alert No. 2,190, December 30, 2010. Before joining the Obama DOJ, Grindler worked in the Washington DC office of the law firm of King & Spalding. See, DOJ release.

Feinstein and Leahy Introduce Bill to Extend Expiring Surveillance Provisions

12/17. Sen. Dianne Feinstein (D-CA) and Sen. Patrick Leahy (D-VT) introduced S 4048 [LOC | WW], the "FISA Sunsets Extension Act of 2010". This bill was introduced at the end of the 111th Congress, and has lapsed. However, the Senate and House are likely to soon take up similar bills in the 112th Congress.

This proposal would extend for nearly three years three surveillance provisions that will expire at the end of February, unless extended. It would also extend a fourth provision, in a manner that would result in all four provisions expiring on December 31, 2013.

This is a short bill that would merely extend expiration dates. Unlike other legislation considered in the 111th Congress, this would would not add sunsets to any provisions of surveillance law not currently sunsetted. It would add no new reporting or transparency requirements. It would not change the standards for conducting any type of surveillance.

Early in 2010, the 111th Congress enacted HR 3961 [LOC | WW], which merely extended three sunsets from February 28, 2010 to February 28, 2011. S 4048 would have extended these three sunsets to December 31, 2013.

S 4048 would also have extended from December 31, 2012 to December 31, 2013, the sunset for a provision pertaining to persons "reasonably believed to be located outside the United States".

The three provisions that expire next month pertain to federal powers regarding lone wolves (see, 50 U.S.C. § 1801(b)'s definition of the term "agent of a foreign power"), business records (50 U.S.C. § 1861), and roving wiretaps (50 U.S.C. § 1805). For a more detailed summary of these surveillance provisions, and the history of extension of their sunset dates, see story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010.

The fourth provision pertains to extending the carefully crafted statutory chaos regarding FISA surveillance concerning any "person reasonably believed to be located outside the United Stated", created by the enactment of S 1927 [LOC | WW], the "Protect America Act of 2007", Public Law No. 110-55, and revised by HR 6304 [LOC | WW, the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", Public Law No. 110-261.

Sen. Dianne FeinsteinSen. Feinstein (at right) stated in the Senate that S 4048 "extends expiring authorities for the collection of foreign intelligence against terrorists, proliferators, foreign powers, and spies, while ensuring that adequate safeguards exist for the protection of the civil liberties and privacy of Americans." See, Congressional Record, December 17, 2010, at Page 10518-9.

S 4048 was referred to the Senate Judiciary Committee (SJC). Sen. Feinstein, is a senior member of the SJC, and Chairman of the Senate Intelligence Committee (SIC).

She noted that in October of 2009, the SJC approved S 1692 [LOC | WW], the "USA PATRIOT ACT Sunshine Extension Act". The full Senate did not approve it, and it did not become law. S 4048 is not a re-introduction of S 1692. She explained why.

She stated S 1692 "sought to accomplish two main objectives. One was to extend the life of three authorities under FISA which were then due to sunset on December 31, 2009, described as roving, lone wolf, and business records collection, all of which have been previously described to the Senate during the consideration of earlier extensions."

Secondly, Sen. Feinstein said that S 1692 would "secure several amendments to statutes on intelligence collection that would improve the balance they strike between protecting national security and protecting civil liberties and privacy."

But, Sen. Feinstein continued, "this second objective has been largely achieved through actions that have been taken by the Department of Justice and the FBI under administrative actions."

For a discussion of those actions, see December 9, 2010, letter from Attorney General Eric Holder to Sen. Leahy, and story titled "Holder Writes Sen. Leahy Regarding Surveillance" in TLJ Daily E-Mail Alert No. 2,177, December 13, 2010.

"On reviewing those actions", said Sen. Feinstein, "Chairman LEAHY and I have determined that the one remaining action that we need to take legislatively this Congress is to extend the three important authorities that are now due to sunset on February 28, 2010. The Feinstein-Leahy bill will extend these sunsets to the same date as proposed in S. 1692, December 31, 2013. The Attorney General and the Director of National Intelligence have asked the Congress to extend these authorities."

Then, she referenced with brevity the language regarding "persons reasonably believed". She merely said that "Additionally, the authority established by the FISA Amendments Act of 2008, regarding collection of foreign intelligence against persons reasonably believed to be outside of the United States, is scheduled to sunset on December 31, 2012. The Feinstein-Leahy bill would extend that authority for one year, to December 31, 2013, so that all of the sunsets of authority under FISA occur on the same date."

She concluded, "By acting now on these approaching sunsets, Congress will ensure stability in the foreign intelligence collection system at a time of heightened threat levels and guarantee there are no inadvertent gaps in FISA collection at the beginning of next year."

In This Issue
This issue contains the following items:
 • Rep. Upton Names House Commerce Committee Staff
 • More People and Appointments
 • Feinstein and Leahy Introduce Bill to Extend Expiring Surveillance Provisions
 • Rep. Issa Addresses WikiLeaks

The story titled "OUSTR Seeks Input for Special 301 Report" in TLJ Daily E-Mail Alert No. 2,191, January 3, 2011, incorrectly stated that the Office of the U.S. Trade Representative (OUSTR) will hold a hearing regarding preparation of its 2011 Special 301 report on March 22, 2011. The correct date of the hearing is March 2, 2011.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, January 4

The House will not meet.

The Senate will not meet.

Wednesday, January 5

The House will meet. Members will take the oath of office. The House will consider HRes 5, which contains rules for the House of Representatives for the 112th Congress.

The Senate will meet at 12:00 NOON.

Thursday, January 6

The House will meet at 10:00 AM for legislative business. It will consider HRes __, which pertains to reducing the Congressional budget.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Third Notice of Proposed Rulemaking (3rdNPRM) [43 pages in PDF] regarding technical rules for the Fixed-Satellite Service in the 37.5-42.5 GHz band. The FCC adopted this item on October 29, 2010, and released the text on November 1, 2010. It is FCC 10-186 in IB Docket No. 97-95. See, original notice in the Federal Register, November 22, 2010, Vol. 75, No. 224, at Pages 71064-71066, and correction notice in the Federal Register, December 13, 2010, Vol. 75, No. 238, at Page 77602.

Friday, January 7

The House will meet at 9:00 AM for legislative business.

Supreme Court conference day (discussion of argued cases, and decision on cert petitions). Closed.

10:00 AM - 5:00 PM. The Office of Science and Technology Policy's (OSTP) President's Council of Advisors on Science and Technology (PCAST) will hold a partially closed meeting. See, notice in the Federal Register, December 13, 2010, Vol. 75, No. 238, at Pages 77679-77680. Location: Marriott Metro Center, 775 12th St., NW.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch titled "Current Issues in the FCC’s Equal Employment Opportunities Rules and Enforcement". The speakers will be Lewis Pulley (Assistant Chief of the FCC's Media Bureau's Policy Division), David Honig (Minority Media and Telecommunications Council), and Christina Burrow (Dow Lohnes). Location: National Association of Broadcasters (NAB), 1771 N St., NW.

Monday, January 10

Deadline to submit applications to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) for membership on its Spectrum Management Advisory Committee. See, notice in the Federal Register, December 7, 2010, Vol. 75, No. 234, at Pages 75967-75968.

Tuesday, January 11

The House will meet. Votes will be postponed until 6:30 PM.

8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "What Intellectual Property Issues Are Top of Mind for the 112th Congress?". 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.

9:00 AM - 1:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee will meet. See, notice in the Federal Register, December 7, 2010, Vol. 75, No. 234, at Page 75968. Location: Room 4830, DOC, 1401 Constitution Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will host a brown bag lunch titled "Foreign Ownership and Investment Issues in Broadcasting". The speakers may include Bob Ratcliffe (FCC), David Honig ( Minority Media and Telecommunications Council), Frank Montero (Fletcher Heald & Hildreth), and John Logan (Dow Lohnes). Location: Wiley Rein, 1776 K St., NW.

5:00 - 7:00 PM. The Center for Democracy and Technology's (CDT) Congressional Internet Caucus Advisory Committee will host an event titled "14th Annual Tech Exhibition and Reception". See, notice. Location: Room 902, Hart Building.

Rep. Issa Addresses WikiLeaks

1/2. Rep. Darrell Issa (R-CA), who will be Chairman of the House Oversight and Government Reform Committee in the 112th, spoke about WikiLeaks, among other issues, on a television program of Fox News on Sunday, January 2, 2011.

He said that "when it comes to WikiLeaks, at the end of the last Congress, we couldn't get a whistleblower bill passed, because ultimately the next whistleblower bill has to deal with WikiLeaks and the loss of these classified documents in a mature bipartisan way."

Rep. Issa said that "we are going to do that right off the bat, because the kind of transparency that we need is not to have somebody outing what is said by diplomats in private. And we need to change that. And that is going to be a big part of our Committee's oversight, is to get that right so that diplomats can do their job with confidence, and people can talk to our government with confidence."

See, Fox News video.

The House Judiciary Committee (HJC) and Senate Judiciary Committee (SJC) may also address the subject of WikiLeaks via amendment to the Espionage Act. See, stories titled "Senators Introduce Bill to Amend Espionage Act to Reach WikiLeaks and Others" and "Commentary: Expansion of Espionage Law" in TLJ Daily E-Mail Alert No. 2,174, December 10, 2010.

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