|House Crime Subcommittee Holds Hearing on
Data Retention Bill
7/12. The House Judiciary Committee's (HJC)
Subcommittee on Crime, Terrorism and Homeland Security held a hearing on HR 1981
"Protecting Children from Internet Pornographers Act of 2011".
The bill would create a mandate that all "electronic communication service"
(ECS) and "remote computing service" (RCS) providers retain for 18 months
"network addresses the service assigns to each account". However, the bill would
exempt wireless providers. The bill would create broad new immunities for service
providers. The bill would create no limitations on the reasons for accessing
retained data, and it would not limit who could obtain access.
As of July 12, this bill had 19 cosponsors most but not all of whom are
Rep. Lamar Smith (R-TX), the Chairman of the
HJC, and the sponsor of HR 1981, participated in the hearing. However,
Rep. James Sensenbrenner (R-WI) the
Chairman of the Subcommittee, presided.
This hearing disclosed that there is substantial opposition from members of both parties
to parts of this bill. While Rep. Smith advocated various provisions of this bill, Rep.
Sensenbrenner condemned it repeatedly, and with harsh language.
The HJC heard from one panel of three witnesses. See,
[8 pages in PDF] of Ernie Allen
(National Center for Missing and Exploited Children),
[5 pages in PDF] of Michael Brown (Sheriff of Bedford County, Virginia), and
testimony [16 pages in PDF] of Marc Rotenberg (head of the
Electronic Privacy Information Center). No
one from the Department of Justice (DOJ) testified at this hearing.
Rep. Sensenbrenner has a history of support for law enforcement and intelligence agencies.
He is a previous Chairman of the HJC. He organized efforts to quickly pass the USA PATRIOT
Act in 2001, and later lead efforts to extend sunsetted provisions. He negotiated compromises
with other members of Congress and the Bush administration officials. For years, he defended
the DOJ against Democratic attacks, and advocated the DOJ's interests.
Then, DOJ Office of the Inspector
General (OIG) reports disclosed that the DOJ and its FBI engaged in serial and serious
violations of surveillance law, did not observe some of the terms of the Act,
and violated bargains that it had struck with the Congress. In recent hearing
Rep. Sensenbrenner angrily berated DOJ officials for their betrayal.
stated at this hearing that he is concerned about "this bill being trashed, just like
the PATRIOT Act." He said that the bill is bad policy and that he will try to kill it.
He concluded that "this bill needs a lot of fixing up", and that "it is not
ready for prime time".
He stated that he is concerned that law enforcement "will use it beyond
investigating child pornography". He asked Sheriff Brown if he needed a data
retention mandate for other crimes. The Sheriff said he did not.
No one from the DOJ testified at this hearing. However, a DOJ representative
testified at a hearing in January that data retention would assist in many other
areas. See, subsection below titled "January 25 Hearing".
Rep. Smith read a
prepared statement in support of his bill. He said that it
"enables law enforcement officials to successfully locate and prosecute those
who want to hurt our children."
"Often, the only way to identify a pedophile who operates a website or exchanges
child pornography images with other pedophiles is by an Internet Protocol address."
"Law enforcement officials
must obtain a subpoena and then request from the Internet Service Provider the name and address
of the user of the IP address. Unfortunately, ISPs regularly purge these records, making it
difficult if not impossible for investigators to apprehend child pornographers on the
Internet." Rep. Smith (at right) continued that "H.R. 1981 directs Internet
Service Providers to retain Internet Protocol addresses to assist federal law enforcement
officials with child pornography and other Internet investigations."
He added that "This is a narrow provision that addresses the retention of only the
Internet Protocol addresses the providers assign to their customers. It does not require
the retention of any content. So the bill does not threaten any legitimate
privacy interests of Internet users."
Rep. John Conyers (D-MI), the ranking Democrat on
the HJC, stated that "the problem is that HR 1981 would not achieve the goal"
of protecting kids from child pornographers. One reason for this, he said, is that it exempts
wireless service providers. He explained that "criminals will exploit this loophole"
and "migrate to a wireless service".
Rep. Conyers also said that the bill's title "is a misnomer". He said that
law enforcement agencies could gain access to retained data to investigate
"routine street crimes".
He suggested this: "limit law enforcement's access to internet pornography
crimes against children".
Rep. Bobby Scott (D-VA), the ranking Democrat
on the Subcommittee, stated that law enforcement has the ability to obtain the information that
it needs, that "the DOJ already has more data than it has personnel to investigate".
Rep. Scott (at right) said too that with the
enactment of HR 1981's data retention mandate, retained data could end up being used in
divorce cases, seized by hackers, or used for marketing purposes.
Later he asked witnesses whether retained data would be available in
copyright infringement cases. Marc Rotenberg answered yes, by civil subpoena.
Greg Nojeim of the Center for Democracy and
Technology (CDT) did not testify at the July 12 hearing. However, he wrote a
short piece that is in the CDT web site.
January 25 Hearing. The HJC's Subcommittee on Crime also held a hearing back on
January 25, 2011, titled "Data Retention as a Tool for Investigating Internet Child
Pornography and Other Internet Crimes". The Subcommittee heard from four witnesses.
testimony [9 pages in PDF] of Jason Weinstein (DOJ),
testimony [5 pages in PDF] of John Douglas (International Association of Chiefs of Police),
prepared testimony [9
pages in PDF] of Kate Dean (Internet Service Provider Association), and
[10 pages in PDF] of John Morris (Center for Democracy and Technology).
transcript [85 pages in PDF] of January 25 hearing.
The DOJ's Weinstein wrote that data retention would assist in investigating not only CP
crimes, but only drug crimes, computer hacking, and national security matters.
He also stressed the importance of a data retention mandate for cell phone
providers, because criminals use cell phones to access web sites.
He acknowledged the threat of data retention to the privacy interests of individuals.
He wrote, "To be sure, the presence of large databases, by itself, poses privacy
He also wrote that "we do not have a position on what information should be retained
or for how long"
The ISP Association's Dean wrote that "a blanket legal requirement to retain Internet
usage data for established time periods is certain to present significant challenges to the
communications industry, both for well-established companies and newer online media enterprises,
as well as unintended consequences which are incapable of precise identification."
She also wrote that "Maintaining exponentially-increasing volumes of data, in a
searchable format that would enable companies to quickly locate a targeted user’s data amidst
exabytes of information, would be extremely complicated, and burdensome. While storing huge
volumes of data may be possible, providers have concerns about ensuring the integrity and
availability of that data to respond to legal demands. The sheer complexity of systems
required to perform these tasks increases the probability of crashes, failures, and delays.
Thus, despite a provider’s efforts to comply with the data retention obligation, the data,
through no fault of the provider, may still not be available to law enforcement."
She also wrote that a data retention mandate would increase search times, which would hamper
investigations, such as child abductions, where time is of the essence.
The CDT's Morris urged the Subcommittee to "reject calls for mandatory data
retention, whether narrow or expansive".
|Summary of HR 1981, Data Retention
7/12. Rep. Lamar Smith (R-TX) and
Rep. Debbie Schultz (D-FL) introduced
HR 1981 [LOC |
WW], the "Protecting
Children from Internet Pornographers Act of 2011", on May 25, 2011.
The House Judiciary Committee's (HJC)
Subcommittee on Crime, Terrorism and Homeland Security held a hearing on this bill on July 12.
See, related story in this issue titled "House Crime Subcommittee Holds Hearing on
Data Retention Mandate Bill".
Background on ECPA and SCA. The Electronic Communications Privacy Act (ECPA), which
was enacted in 1986, includes the Stored Communications Act (SCA). The data
retention provisions of
HR 1981 contain amendments to the SCA.
The Congress has amended various parts of the ECPA since 1986, but the
ECPA has not kept pace with technological changes. The terms used in the ECPA
were included in 1986 based upon the drafters' understanding of technologies
that existed in 1986. Law enforcement agents and prosecutors now rely on these 1986
terms when dealing with new technologies not foreseen when the ECPA was drafted.
This bill does nothing to address underlying obsolescence of the ECPA. It adds to the
foundation of the ECPA, without clarifying what that foundation means in the context of new
technologies developed since 1986, or in the context of the new mandates that would be
imposed by this bill.
In March of 2010 a coalition named Digital
Due Process (DDP) announced a set of
four principles which the DPP members argue should be incorporated into the federal
statutes that regulate government searches and seizures of stored communications and data.
These DPP principles state, for example, that 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" and it
"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
See also, story titled "Digital Due Process Coalition Proposes Changes to
Federal Surveillance Law" in
TLJ Daily E-Mail
Alert No. 2,068, March 31, 2010.
Law enforcement entities, and particularly the
Department of Justice (DOJ), oppose such principles.
Moreover, the DOJ opposes the notion of clarity. It exploits uncertainty to exercise broader
powers to obtain intercepts and data, and under lesser standards.
Hence, while there have been repeated calls for updating the ECPA for years, neither the
House nor the Senate, nor the HJC or Senate Judiciary
Committee (SJC), have passed an ECPA reform bill.
Data Retention Mandate. The bill would amend
U.S.C. § 2703, which is the section of the SCA that requires disclosure of stored
communications to the government. HR 1981 would also require the retention and storage
of certain data.
There are already two data retention mandates. See, related story in this
issue titled "Summary of Existing Data Retention Mandates". HR 1981 would
greatly expand the requirements imposed upon service providers.
It would add a new subsection (h): "Retention of Certain Records
-- A provider of an electronic communication service or remote computing service shall retain
for a period of at least 18 months the temporarily assigned network addresses the service
assigns to each account, unless that address is transmitted by radio communication (as defined
in section 3 of the Communications Act of 1934)." (Parentheses in original. In
this article, language that would be added by HR 1981 is shown in red.)
This provision only requires retention of the IP addresses assigned to an
account. A service provider has the name and other account information of its
subscribers. Proponents argue that this bill does not require disclosure of content.
However, a law enforcement official or other person requesting retained data
would possess an IP address of an internet user, and information regarding
content on the web. The requestor who obtains retained data from the service
provider would then be able to associate content with a particular user. In this
sense, this bill is content related.
This provision exempts wireless service providers. This exemption is
inconsistent with the stated purpose of the bill, because people are using their
internet connected cell phones and other wireless devices to view child
This bill imposes its data retention mandate on any "electronic communications
service" (ECS) and "remote computing service" (RCS) provider. These 1986 terms are no
longer clear, and in the hands of a DOJ lawyer, could be quite elastic and
expansive. It should be noted that the definitions, which are found mainly in
U.S.C. § 2510, provide that this data retention mandate would apply to a "paging
device", "tracking device", and "electronic funds transfer
Section 2510 also provides that the term "electronic communications system"
means "any wire, radio, electromagnetic, photooptical or photoelectronic facilities
for the transmission of wire or electronic communications, and any computer facilities or
related electronic equipment for the electronic storage of such communications".
U.S.C. § 2711 provides that the term "remote computing service" means "the
provision to the public of computer storage or processing services by means of an electronic
Innovative developers are including internet connectivity into, and assigning IP addresses
to, all manner of devices. The proponents of this bill speak about individuals who look at CP
by using their computers and laptops with broadband internet access service (BIAS). However,
nothing in this bill states that only BIAS providers (or even BIAS and dial-up service
providers) are required to save data for 18 months. The DOJ could seek to compel any entity
that it asserts is either an RCS or ECS provider to retain data.
This bill could be amended to clarify whether it would only impose data
retention mandates on internet access service providers, or also apply to other
services providers, including voice over internet protocol service providers,
e-mail service providers, or providers of text based services.
Immunity. HR 1981 would amend
U.S.C. § 2703 by inserting the words "retaining records
or" into subsection (e). This is the provision that provides
immunity for providing law enforcement entities stored information.
As amended, this section would provide that "No cause
of action shall lie in any court against any provider of wire or electronic
communication service, its officers, employees, agents, or other specified
persons for retaining records or
providing information, facilities, or assistance in
accordance with the terms of a court order, warrant, subpoena, statutory
authorization, or certification under this chapter."
Similarly, this bill would also amend
U.S.C. § 2707 by adding to subsection (e)(1) the phrase "or
the requirement to retain records under section 2703(h)".
As amended, this section would provide that "A good faith reliance on
(1) a court warrant or order, a grand jury subpoena, a
legislative authorization, or a statutory authorization (including a request
of a governmental entity under section 2703(f) or
the requirement to retain records under section 2703(h)
of this title) ... is a complete defense to any civil or criminal
action brought under this chapter or any other law."
These are inducements to service providers to diligently retain data, and to
follow instructions from the DOJ.
They are also an inducement to support this bill, because they could immunize service
providers from a broad range of claims. For example, if this bill were enacted, a service
provider retained data, and a hacker accessed that data, and injured subscribers sued the
service provider, the service provider would assert this immunity provision as a defense.
Just as this bill builds onto the ECPA without addressing the obsolescence of the ECPA,
it imposes broad data retention mandates without addressing data security or
Similarly, if the DOJ were to make broad demands, either regarding services covered,
or data to be retained, legal counsel for the service provider would have little
incentive to scrutinize the underlying legality of the demands, because of this
grant of immunity.
There is perhaps some comparison to made between these clauses, and the
legislative grant of immunity in 2008 to service providers who were sued after
cooperating with the government in facilitating surveillance under the Foreign
Intelligence Surveillance Act (FISA). The plaintiffs and other critics of that
surveillance program asserted that its was an illegal warrantless wiretap program.
That immunity was enacted in
(110th Congress), the "FISA Amendments Act of 2008", Public Law No. 110-261, at
Title II, Section 201.
That act provides that "Notwithstanding any other provision of law, a civil
action may not lie or be maintained in a Federal or State court against any
person for providing assistance to an element of the intelligence community, and
shall be promptly dismissed, if the Attorney General certifies to the district
court of the United States in which such action is pending that ..."
Access to Retained Data: No Limitations on Purposes.
The title of this bill, "Protecting Children from Internet Pornographers Act",
is not descriptive of its consequences. Mandating data retention would assist
law enforcement officers and prosecutors in tracking down and obtaining
convictions of men of look at CP on their desktop and laptop computers. However,
this would likely be only a minor consequence of the bill.
It would enable law enforcement officers and prosecutors to access retained data to
investigate all types of activity, not just those related to sex or CP.
It should be recalled that DOJ officials sought and obtained many broad new
surveillance powers in the huge bill that was enacted rapidly after the
terrorist attacks of September 11, 2001. The DOJ officials argued that the new
powers were necessary to fight terrorism. The bill was named the "USA PATRIOT
Act" to assert its terrorism related purpose.
However, statistical data on use of some of the provisions of the 2001 Act, such
as sneak and peak searches, reveal that the DOJ has used that new power almost
exclusively in non-terrorism related cases.
It is possible that the data retention mandate of HR 1981 could be enacted under
the guise of fighting CP, and then used extensively, and almost exclusively, for
Sneak and peak is the common term for the authority contained in § 213 of the
"Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001". It was passed by the 107th Congress as
It became Public Law 107-56 on October 26, 2001. § 213 pertains to "Authority for
delaying notice of the execution of a warrant".
It was not one of the sunsetted provisions. However, it was controversial, and
some legislators, such as former Sen. Russ Feingold (D-WI), sought for years to
attach a sunset provision to it.
It would be very easy to impose a limit on purposes. HR 1981 could be amended with
a clause that lists predicate offenses for the issuance of a court order, or administrative
subpoena, that authorizes access to retained data. See for example,
U.S.C. § 2516, regarding predicate offenses for the issuance of a wiretap order.
Access to Retained Data: No Limitations on Who Can Access Retained Data.
HR 1981 merely requires service providers to retain data. It imposes no
limitations upon who can then obtain access to that data. Such data would be
business records, and available to a wide range of requestors in civil, criminal
and administrative proceedings or investigations.
This mandate would benefit federal, state and local governments agencies that
seek such data.
Also, with the US entering into more and more, and broader, international law enforcement
cooperation agreements, it would expand the power of foreign governments to surveil the
activities of people in the U.S., or who use U.S. based services.
Nor would anything in the bill prevent civil litigants from subpoenaing retained
data. It could be requested in tort cases, contract disputes, or divorce actions.
Corporations and public figures could seek such retained data to attempt to
learn who is engaging in First Amendment protected activities that is critical
of such corporations or public figures. Employers could seek retained data in
litigation arising out of termination of employment.
There is also the matter of the cost and inconvenience to the service providers
of complying with the torrent of subpoenas that would follow the enactment of a data
retention mandate without a limitation upon those who can subpoena the data.
Access to Retained Data: No Requirement for Judicial Involvement. HR 1981
imposes a data retention mandate, but does not address how the DOJ or any other
person or entity can obtain such retained data.
The SCA addresses how one obtains stored content under the SCA. But, the SCA is
basically a statute regarding protection of stored content of the subscriber, and
government access to that stored content. In contrast, the data which must be retained under
HR 1981 would be business records of the service provider.
Current law allows the Attorney General to issue administrative subpoenas in CP
investigations. But, the data that would be retained under the bill would likely
be sought mostly for other matters.
The bill is silent regarding whether or when a court order would be required for
accessing data retained pursuant to this bill, and if so, what standards the
court would apply, and when and under what circumstances the subscriber would be
notified of the order and the seizure of the data.
Access to Retained Data: Administrative Subpoenas. This bill would
change the administrative subpoena process for obtaining access to retained
data, as well as other records and testimony. The Attorney General already has
authority to issue administrative subpoenas to investigate CP.
This bill would also give administrative subpoena power to the
States Marshals Service (USMS) to investigate unregistered sex offenders. The USMS is the
unit of the DOJ that protects courts, judicial personnel, and judicial processes, and finds
and arrests fugitives. This bill would not extend administrative subpoena authority to anyone
to access the data retained by service providers for purposes unrelated to sex crimes.
U.S.C. § 3486 already provides that "In any investigation of ... a Federal offense
involving the sexual exploitation or abuse of children, the Attorney General ... may issue in
writing and cause to be served a subpoena requiring the production and testimony"
that is "relevant to the investigation".
This section also enumerates the offenses that involve
"sexual exploitation or abuse of children". It includes
U.S.C. § 2252 and
U.S.C. § 2252A, which are the two main sections used to prosecute people who
distribute or view child pornography online.
HR 1981 provides that the USMS shall also "issue administrative subpoenas in accordance
with section 3486 of title 18, solely for the purpose of investigating unregistered sex
offenders". It adds that "sex offender" means "an individual required to
register under the Sex Offender Registration and Notification Act".
This section might be employed, not only to further a targeted investigation directed at one
individual, but also to engage in broad and periodic data aggregation activities by the USMS.
Online Financial Transactions. Law enforcement entities long ago shut down brick and
mortar commercial CP sales operations. But then, the development and widespread adoption of the
internet provided a new venue for commercial CP operations.
However, in recent years, groups such as the National
Center for Missing & Exploited Children (NCMEC) and the
Financial Coalition (which includes banks, credit card companies, electronic
payment networks, third party payments companies and internet access providers),
working with law enforcement entities, have largely shut down commercial CP
distribution on the internet.
Ernie Allen, head of the NCMEC, wrote in his
testimony [PDF] for the July 12 hearing that "What once was believed to be a
multi-billion dollar global industry has recently been estimated to be less than a million
dollar a year industry worldwide". He made similar statements in response to questions.
CP is still being viewed, but via free platforms, particularly
through peer to peer file sharing programs.
Yet, despite these developments, HR 1981 includes sections that
appear on their face to target financial intermediaries to commercial CP
transactions. That is, they address a problem that has already been solved.
Allen, who is often regarded by members of Congress as an
authority on fighting CP, expressed concern about the provision, which is set
out below. He said that voluntary action has had a dramatic effect, and he is
concerned that this provision could change that.
First, the bill would add a new section to the criminal code, to
be codified at a new 18 U.S.C. § 1960A, that
would provide that "Whoever knowingly conducts, or
attempts or conspires to conduct, a financial transaction (as defined in section
1956(c)) in or affecting interstate or foreign commerce, knowing that such
transaction will facilitate access to, or the possession of, child pornography
(as defined in section 2256) shall be fined under this title or imprisoned not
more than 20 years, or both." (Parentheses in original.)
This new section would come immediately after
U.S.C. § 1960, which prohibits unlicensed money transmitting businesses.
Second, the bill would add several crimes to the list of predicate offenses
for money laundering under
U.S.C. § 1956. (CP under
U.S.C. § 2252A is already on the list.) The bill would add the proposed Section 1960A.
One possible consequence of enactment of these provisions of HR 1981 would be that
the DOJ might use them to stop financial intermediaries from processing financial transaction
in which a registered sex offender attempts to purchase a computer, or seeks to subscribe
to broadband internet access.
If such a program were implemented, members of Congress, and the organized interests that
lobby the Congress, might seek to apply a similar regime to persons convicted of violation of
other internet related crimes, such as hacking under
U.S.C. § 1030, or criminal copyright infringement under
17 U.S.C. § 506 and
U.S.C. § 2319.
Non-Technology Related Changes to CP Law. HR 1981 also includes some changes
to CP law that do not implicate information or communications technologies.
It would provide for increased prison time. It would raise the maximum prison
sentence under both
U.S.C. § 2252 and
U.S.C. § 2252A for mere viewing of CP online (first time possession with
intent to view) to 20 years.
The bill would also direct the U.S. Sentencing Commission
to amend its guidelines and policies to cause CP offenders to receive longer prison sentences.
Finally, HR 1981 would amend
U.S.C. § 1514 which pertains to "Civil action to restrain harassment of a
victim or witness". Like the data retention mandate, it could assist the
investigation of CP cases, but likely would be used in other situations.
The bill would amend this section to provide that "the
court shall issue a protective order prohibiting harassment or intimidation of
the minor victim or witness if the court finds evidence that the conduct at
issue is reasonably likely to adversely affect the willingness of the minor
witness or victim to testify or otherwise participate in the Federal criminal
case or investigation".
The bill does not elaborate, but "protective order" would include such things
as removing children from the home of a person under investigation. Such orders
would be issued ex parte, without notice or opportunity to be heard. The grounds
would be minimal, such as "fear or apprehension". The bill also would create a
rebuttable presumption in favor of the government, but in an ex parte hearing,
there is no one present to rebut.
Children and adult family members of persons under investigation may have a
reluctance to provide truthful information to law enforcement agencies that
would contribute to a conviction of a family member. This provision would assist
law enforcement agencies in overcoming such a reluctance.
On the other hand, children and adult family members of persons under
investigation may have a reluctance to provide false or perjurious information
to law enforcement agencies that would contribute to a wrongful conviction of a
family member. This provision would assist overzealous law enforcement agencies
in overcoming such a reluctance.
The Wenatchee, Washington prosecutions of the 1990s serve as the leading
example of overzealous law enforcement in child sex cases. See for example, July 31, 2001,
story in the Seattle Post Intelligencer titled "Jury finds city,
county negligent in child sex ring case", and Wikipedia
article titled "Wenatchee child abuse prosecutions".
|This issue contains the following items:
• House Crime Subcommittee Holds Hearing on Data Retention Bill
• Summary of HR 1981, Data Retention Bill
• Summary of Existing Data Retention Mandates
• DOJ Declines Prosecution of Assistant U.S. Attorney Who Viewed Porn at Work Every Day
New items are highlighted in
|Wednesday, July 13
The House will meet at 10:00 AM for morning hour, and at
12:00 NOON for legislative business. See, Rep. Cantor's
schedule for the week of
The Senate will meet at 9:30 AM.
8:00 AM - 2:00 PM. The Information
Technology and Innovation Foundation (ITIF) and National Journal will host an event
titled "National Journal Innovation Works Conference". See, ITIF
Location: Ronald Reagan Building and International Trade Center Atrium Ballroom,
Concourse Level. 1300 Pennsylvania Ave., NW.
8:45 - 11:00 AM. The Free
State Foundation (FSF) will host an event titled "Universal Service and
Intercarrier Compensation: Will the FCC Finally Bite the Reform Bullet?" The
speakers will be James Assey (NCTA),
(Mercatus Center), Mike Romano (NTCA), Tom Tauke
(Verizon), and Deborah Tate. See,
A light breakfast will be served. This event is free and open to the public. To register to
attend, e-mail Kathee Baker at kbaker at freestatefoundation dot org Location:
National Press Club, 13th Floor, 529 14th St., NW.
10:00 AM. The House
Appropriations Committee (HAC) will mark up HR __, the FY 2012 Commerce, Justice,
Science Appropriations Bill. See,
notice. Location: Room 2359, Rayburn Building.
10:00 AM. The House
Financial Services Committee (HFSC) will hold a hearing titled "Monetary Policy
and the State of the Economy". The witness will be
Ben Bernanke, Chairman of the
Reserve Board (FRB). See,
notice. Location: Room 2128, Rayburn Building.
10:00 AM. The Senate Commerce
Committee (SCC) will hold a hearing titled "Unauthorized Charges on Telephone
Bills: Why Crammers Win and Consumers Lose". The witnesses will be
Lisa Madigan (Attorney
General of Illinois), Elliot Burg (Office of the
Vermont Attorney General), Susan Eppley, David Spofford (CEO of Xigo, LLC), and
Walter McCormick (U.S.
Telecom Association). See,
notice. Location: Room 253, Russell Building.
10:00 - 10:30 AM. The Federal Communications
Commission (FCC) will host an event to announce the opening of a "Technology
Experience Center". The speakers will include
(FCC Chairman), Michael Copps,
Mignon Clyburn, Michael
Powell (NCTA), Kevin Gage (NAB), and others. See,
Location: FCC, Library, 445 12th St., SW.
2:00 - 6:00 PM. The New
America Foundation (NAF) will host an event titled "How to Ignite, or Quash,
a Revolution in 140 Characters or Less: The Promise and Limitations of New Technologies
in Spreading Democracy". There will be numerous speakers and panels.
Michael Posner (Assistant Secretary
of State for Bureau of Democracy, Human Rights and Labor) will address "Internet Freedom
and Human Rights: The Obama Administration's Perspective". Ian Schuler (Senior Program
Manager for the Department of State's Internet Freedoms Program) will address "Bypassing
the Master Switch". See,
Location: NAF, Suite 400, 1899 L St., NW.
2:30 PM. The Senate
Judiciary Committee (SJC) will hold a hearing on the nominations of
Morgan Christen (to be a Judge of the
U.S. Court of Appeals for the 9th
Circuit), Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel),
Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). See,
notice. The SJC will webcast this hearing. Location: Room 226, Dirksen Building.
|Thursday, July 14
The House will meet at 10:00 AM for morning hour, and at
12:00 NOON for legislative business. It will consider
HR 2354 [LOC |
"Energy and Water Appropriations Act, 2012". See, Rep. Cantor's
schedule for the week of
The Senate will meet at 9:30 AM.
9:00 - 11:00 AM. The Internet
Caucus and the European Internet Foundation
(EIF) will host an event titled "Transatlantic Roundtable on Privacy and
Intellectual Property". The speakers will include
Boucher (Sidley Austin), Erika Mann,
James Elles (European Parliament),
Pilar del Castillo (EP),
Ivailo Kalfin (EP),
Catherine Trautmann (EP), and
Marietje Schaake (EP). Register by emailing rsvp at netcaucus dot org or by calling
202-407-8829. Location: Reserve Officers Association, One Constitution Ave., NE.
10:00 AM. The House Judiciary
Committee (HJC) will meet to mark up bills. The fourth of four items on the agenda is
HR 1002 [LOC |
the "Wireless Tax Fairness Act of 2011". See,
Location: Room 2141, Rayburn Building.
10:00 AM - 12:00 PM. The House
Intelligence Committee (HIC) will hold a closed hearing titled "Intelligence
Location: Room HVC-304, Capitol Building.
10:00 AM. The
Senate Energy and Natural Resources Committee (SENRC) will hold a meeting
to mark up numerous bills. The agenda includes consideration of S 1113
the "Critical Minerals Policy Act of 2011", and S 383
"Critical Minerals and Materials Promotion Act of 2011", bills pertaining to
rare earth materials, which have many applications in information and communications
technology products and devices. See,
notice. Location: Room 366, Dirksen Building.
10:00 AM. The Senate
Judiciary Committee (SJC) will hold an executive business meeting. The agenda again
includes consideration of Steve Six (to be a Judge of the
U.S. Court of Appeals for the 10th Circuit),
Stephen Higginson (USCA/5thCir), Jane
Milazzo (USDC/EDLa), Alison Nathan (USDC/SDNY), Katherine Forrest (USDC/SDNY),
and Susan Hickey (USDC/WDArk). The agenda also includes consideration of Christopher
Droney (USCA/2ndCir), Robert Mariani
(USDC/MDPenn), Cathy Bissoon (USDC/WDPenn), Mark Hornak (USDC/WDPenn), and Robert Scola
(SDFl). The SJC will webcast this event. See,
notice. Location: Room 226, Dirksen Building.
10:00 AM - 12:00 PM. The Senate
Banking Committee (SBC) will hold a hearing titled "Semiannual Monetary Policy
Report to the Congress". The witness will be
Ben Bernanke, Chairman of the
Reserve Board (FRB). See,
notice. Location: Room 538, Dirksen Building.
10:00 AM. The Senate Commerce
Committee's (SCC) Subcommittee on Science and Space will hold a hearing titled
"National Nanotechnology Investment: Manufacturing, Commercialization, and Job
Creation". The witnesses will be
Chad Mirkin (Northwestern
University), Charles Romine (National Institute of Standards
and Technology), Diandra Pelecky (West Virginia
Thomas O'Neal (University of Central Florida), and
George McLendon (Rice
notice. Location: Room 253, Russell Building.
11:00 AM. The House Commerce
Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade and Subcommittee
on Communications and Technology will hold a joint hearing titled "Internet Privacy:
The Views of the FTC, the FCC, and NTIA". The witnesses will be
Julius Genachowski (Chairman
of the FCC), Lawrence
Strickling (head of the NTIA), and
Edith Ramirez (FTC
The HCC will webcast this event.
Location: Room 2123, Rayburn Building.
12:00 NOON - 1:30 PM. The DC Bar
Association will host an event titled "Calculating Reasonable Royalty Damages
After Uniloc v. Microsoft". See, January 4, 2011,
opinion [59 pages in PDF] of the U.S. Court
of Appeals (FedCir). See also, May 16, 2011,
order denying rehearing and rehearing en banc. The speakers will be
Maureen Browne (Covington & Burling), Carla
Mulhern (Analysis Group, Inc.),
Peter Strand (Shook Hardy
& Bacon). The price to attend ranges from $30 to $40. For more information, contact
notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.
1:00 - 2:00 PM. The American
Bar Association (ABA) will host a telecast panel discussion titled "Privacy and
Information Security Update". The speakers will be
Erin Egan (Covington & Burling), and
Catherine Meyer and
Wayne Matus (all of
Pillsbury Winthrop). See,
1:30 - 4:30 PM. The House
Oversight and Government Reform Committee's (HOGRC) Subcommittee on Technology,
Information Policy, Intergovernmental Relations, and Procurement Reform will hold a hearing
titled "Transparency And Federal Management IT Systems". See,
notice. Location: Room 2247, Rayburn Building.
2:30 PM. The
Senate Intelligence Committee
(SIC) will hold a closed hearing. Location: Room 219, Hart Building.
4:00 - 7:15 PM. The DC Bar
Association will host an event titled "Antitrust Investigations: Tactical and
Ethical Issues". The speakers will be
Kathryn Fenton (Jones Day), Ray Hartwell
(Hunton & Williams), Donald Klawiter
(Sheppard Mullin Richter & Hampton), and Ann O'Brien (DOJ's
Antitrust Division). The price to attend ranges from
$89 to $129. CLE credits. The DC Bar has a history of barring reporters from its events. For
more information, call 202-626-3488. See,
notice. Location: DC Bar, 1101 K St., NW.
6:30 PM. There will be a panel discussion titled "Up Next --
Hyperlocal Coverage: Neighborhood Blogs, Community Websites, and the Future of the
News". The price to attend is $10. Tickets are required. See,
notice. Location: National Press Club,
First Amendment Lounge, 13th Floor, 529 14th St., NW.
|Friday, July 15
The House will meet at 9:00 AM for legislative business. See,
Rep. Cantor's schedule for the
week of July 11.
8:30 AM. The House Commerce
Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing
titled "Spectrum and Public Safety Issues". See,
Location: Room 2123, Rayburn Building.
10:00 AM. The
House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition
and the Internet will hold a hearing on HR __, the "Innovative Design Protection
and Piracy Prevention Act". See,
notice. Location: Room
2141, Rayburn Building.
|Monday, July 18
The House will be in recess the week of Monday, July 18 through
Friday, July 22.
6:00 - 8:30 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers Committee will host an event
titled "FCBA Trivia Night". Location: Laughing Man Tavern, 1306 G St., NW.
Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to its
Notice of Proposed Rulemaking (FNPRM) regarding ex parte communications with the
FCC. The FCC adopted this item on February 1, 2011, and released it on February 2, 2011.
It is FCC 11-11 in GC Docket No. 10-43. See,
notice in the
Federal Register, May 2, 2011, Vol. 76, No. 84, at Pages 24434-24436.
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response to its
Notice of Inquiry (NOI) [27 pages in PDF] regarding rights of way policies and wireless
facilities siting requirements. The FCC adopted and released this item on April 7, 2011.
It is FCC 11-51 in WC Docket No. 11-59. See,
notice in the
Federal Register, Vol. 76, No. 95, Tuesday, May 17, 2011, at Pages 28397-28403.
|Tuesday, July 19
8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion
titled "Making the Universal Service Fund Into a Universal Broadband Fund".
Breakfast will be served. See, notice
and registration page. This event is also sponsored by the
National Cable & Telecommunications Association (NCTA), US
Telecom, Telecommunications Industry Association
(TIA), and ICF International. Location:
Clyde's of Gallery Place, 707 7th St., NW.
8:30 - 9:45 AM. The Information
Technology and Innovation Foundation (ITIF) will host a panel discussion
titled "What Would Pro-Growth Corporate Tax Reform Look Like?". The
speakers will be Ike Brannon (American Action Forum), Robin Beran (Catepillar, Inc.), and
Rob Atkinson (ITIF). See,
notice and registration page. This
event is free and open to the public. A light breakfast will be served. Location: Room
B-340, Rayburn Building.
10:30 - 11:30 AM. The Heritage
Foundation (HF) will host a lecture by Alan Leong Kah-kit (Legislative Councillor and
2007 Candidate for Chief Executive, Hong Kong SAR) titled "The Centennial of the
1911 Revolution: A Look Into the Future of Hong Kong and China". The HF will
webcast this event. This event is free and open to the public. See,
Location: HF, 214 Massachusetts Ave., NE.
12:00 NOON - 3:00 PM. The
Tech Freedom (TF) will host an event
titled "Sorrell: The Supreme Court Confronts Free Speech, Marketing &
Privacy". See, the Supreme Court's
June 23, 2011,
opinion [53 pages in PDF] in Sorrell v. IMS Vermont, TF's
amicus curiae brief [PDF], and story titled "Supreme Court Applies Heightened
Scrutiny to State Regulation of Commercial Data" in TLJ Daily E-Mail Alert No. 2,258,
July 14, 2011. The first panel is titled "Towards Greater Commercial Free Speech
Protections?". The speakers will be Greg Stohr (Bloomberg),
Tom Julin (Hunton & Williams),
Bob Revere (Davis Wright Tremaine),
(Public Citizen), and Richard
Ovelmen (Jordan Burt). The second panel is titled "Reconciling Data Restrictions
& the First Amendment". The speakers will be
Jim Harper (Cato Institute), John Verdi
(Electronic Privacy Information Center),
Jonathan Emord (Emord & Associates),
John Morris (Center for Democracy &
Technology), and Berin Szoka (TF). See,
notice and registration page. This event is free and open to the public. Lunch will be
served. Location: Hunton & Williams, 2200
Pennsylvania Ave., NW.
12:00 NOON - 2:00 PM. The Information
Technology and Innovation Foundation (ITIF) will host an event titled "The
Atlantic Century 2011: Benchmarking U.S. and EU Innovation and Competitiveness".
The speakers will include Chan Heng Chee (Singapore's Ambassador to the US), Lenny
Mendonca (McKinsey), and
Rob Atkinson (ITIF). See, ITIF
notice. This event is free and open to the public. Location: ITIF/ITIC, Suite 610A,
1101 K St., NW.
12:30 - 2:00 PM. The
Computer & Communications Industry
Association (CCIA) will host a panel discussion titled "How Public
Policy Can Enable Cloud Computing -- Driving Innovation, Investment & Job
Creation Beyond the IT Sector". The speakers will include
(Georgetown University). This event is free and open to the public. Lunch will
be served. Register by contacting Maggie Clark at mclark at ccianet dot org or
202-783-0070 ext 120. Location: Room B-340, Rayburn Building.
1:00 - 2:30 PM. The American
Bar Association (ABA) will host a webcast panel discussion titled "Implications
of AT&T Mobility v. Concepcion: Has the Supreme Court Sounded the Death Knell for Some
Class Actions?". See, April 27, 2011,
opinion of the Supreme Court,
and story titled "Supreme Court Holds Class Action Waiver Clauses in Arbitration Contracts
Are Enforceable" in TLJ Daily
E-Mail Alert No. 2,228, April 28, 2011. The speakers will be
Amy Brown (Squire Sanders),
Paul Bland (Chavez & Gertler),
Sarah Cole (Ohio
State law school), and
(Stroock Stroock & Lavan). Prices vary. CLE credits. See,
|Wednesday, July 20
9:00 - 10:30 AM. The Information
Technology and Innovation Foundation (ITIF) will host an event titled "An App
Store for Energy: eKNOW and Data-Driven Innovation for Smart Buildings". See also,
S 1029 [LOC |
"Electric Consumer Right to Know Act" or "e-KNOW Act". The speakers will
include Sen. Scott Brown (R-MA),
Lorie Wigle (Intel),
Nick Sinai (EOP's Office of
Science and Technology Policy),
Dean Garfield (ITIC), and
Rob Atkinson (ITIF). See, ITIF
notice. This event is free and open to the public. Location: Room SVC 201-00, Capitol
1:00 - 2:30 PM. The American
Bar Association (ABA) will host a webcast
panel discussion titled "Are Products of Nature Patentable Subject Matter?".
The speakers will be Eileen Kane (Penn State law school), John Hendricks (Hitchcock Evert),
Harold Wegner (Foley & Larnder), and Jacqueline Bonilla (Foley & Lardner). Prices
vary. CLE credits. See,
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response its
Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding extensive revisions
to its Part 11 rules governing the Emergency Alert System (EAS). The FCC adopted this
NPRM on May 25, 2011, and released the text on May 26, 2011. It is FCC 11-82 in EB Docket
No. 04-296. See,
notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its Public Notice regarding whether certain docketed FCC
proceedings should be terminated as dormant. See, June 3, 2011, Public Notice (DA 11-992 in
CG Docket No. 11-99), and
notice in the
Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35892-35893.
|Summary of Existing Data Retention
7/12. The cornerstone provision of HR 1981
the "Protecting Children from Internet Pornographers Act of 2011", is its
data retention mandate. There are already two
data retention mandates.
The term commonly used for these two existing mandates is "preservation", while
the term commonly used for proposals for an even broader mandate is "retention".
First, the 1996 amendments to the Stored Communications Act (SCA) added a data retention
mandate. The SCA, at
U.S.C. § 2703(f), currently provides that "A provider of wire or electronic
communication services or a remote computing service, upon the request of a governmental
entity, shall take all necessary steps to preserve records and other evidence in
its possession pending the issuance of a court order or other process."
A government entity can compel data preservation under this section for 180 days.
HR 1981 would add to Section 2703 a broader and longer data preservation or retention
mandate. It would amend the SCA by adding an 18 month data retention mandate. It would apply
to every covered entity regardless of whether or not the government has asked it to do so. It
also contains an exception for wireless, and two immunity provisions.
It may also be significant that HR 1981 does not eliminate, or phase out this
existing retention mandate.
Second, the Congress enacted
HR 1738 (110th
Congress), the "Providing Resources, Officers, and Technology To
Eradicate Cyber Threats to Our Children Act of 2008" or "PROTECT Our Children
Act of 2008". It is now Public Law No. 110-401.
Section 501 of that act added a reporting and data retention mandate for all
"electronic communication service" (ECS) or a "remote computing service" (RCS)
This section, which is now codified at
U.S.C. § 2258A, requires ECSs and RCSs to report to the CyberTipline of the
National Center for Missing and Exploited Children
(NCMEC) any "actual knowledge of any facts or circumstances" that constitute an
apparent violation of CP statutes, including either
U.S.C. § 2252 and
U.S.C. § 2252A.
It also requires any ECS or RCS that makes such a report to retain not only
data, but also content, for 90 days. The ECS or RCS "shall preserve any images,
data, or other digital files that are commingled or interspersed among the
images of apparent child pornography within a particular communication or
user-created folder or directory".
This section provides that the ECS's or RCS's report to the CyberTipline
"shall be treated as a request to preserve, as if such request was made pursuant
to section 2703(f)".
This section also requires the NCMEC to forward information to relevant law
|DOJ Declines Prosecution of Assistant U.S.
Attorney Who Viewed Porn at Work Every Day
7/7. Sen. Charles Grassley (R-IA),
the ranking Republican on the Senate
Judiciary Committee (SJC), sent a
letter to Attorney General Eric Holder regarding the
Department of Justice's (DOJ) decision not to prosecute
an Assistant U.S. Attorney (AUSA) who was found to have used his work computer to view
pornography, including at least one image of child pornography (CP).
(at right) quoted from a DOJ Office of the Inspector
General (OIG) report that states that "The investigation determined that the AUSA
routinely viewed adult content during official duty hours, and that there was at least one
image of child pornography recovered on the AUSA's government computer. The AUSA acknowledged
that he had spent a significant amount of time each day viewing pornography. The U.S. Attorney's
Office declined prosecution."
Sen. Grassley wrote that "This is simply unacceptable".
Sen. Grassley also propounded numerous interrogatories to be answered by the DOJ. For
example, he asked if the AUSA still works at the DOJ, what type of cases he handles, who made
the decision not to prosecute, and how was the AUSA able to evade the DOJ's porn filters.
Sen. Grassley also issued a
that states that he "learned that 33 employees at the Securities and Exchange Commission
who were found to have viewed pornography during work hours were not terminated and were given
uneven and light disciplinary action".
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Copyright 1998-2011 David Carney. All rights reserved.