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Wednesday, August 3, 2011, Alert No. 2,278.
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House Judiciary Committee Approves Data Retention Bill

7/28. House Judiciary Committee (HJC) amended and approved HR 1981 [LOC | WW], the data retention bill, at a two day mark up spread over four sessions on July 27 and 28, 2011. The vote on final passage was 19-10. See, table in this issue titled "Roll Call Votes on Data Retention Bill, July 27-28, 2011".

Some things are clear about the bill as amended and passed by the HJC. It contains a data retention mandate. The bill as amended covers wireless providers. The bill as introduced had exempted them. Also, the stated retention period was reduced from 18 months to one year by the managers amendment. But, little else is clear. The bill is unclear regarding what entities are subject to the mandate, what data they must retain, who can access retained data, and even whether retention means collecting data not currently being collected.

The ordinary function of legislation, and particularly legislation on criminal law and procedure, is to provide, in advance, and in writing, with clear meaning, what is prohibited or required of persons within that jurisdiction. It puts people on notice of precisely what the law is. The HJC is usually very good at this.

This bill, however, is a model of statutory obscurity. It is written in carefully worded but vague language that is not susceptible to one understanding or predictable interpretation.

At the mark up on July 27 and 28, HJC members offered wildly different interpretations of several of its key clauses. Nevertheless, the HJC approved no amendments to clarify any of these clauses. Indeed, Rep. Lamar Smith (R-TX), the sponsor the bill, and Chairman of the HJC, spent two days fighting off amendments efforts to give this bill clear meaning.

The HJC has 37 members. (Rep. Debbie Schultz (D-CA), lead cosponsor of the bill, spoke at the opening of the mark up pursuant to a courtesy; she took leave from the HJC in May when she was elected Chairwoman of the Democratic National Committee.) This bill had 19 supporters -- a bare majority. Another 8 did not vote. 5 conservative Republicans took no part at all, even though they were on Capitol Hill both days. 10 voted against the bill.

Rep. Lamar SmithRep. Smith (at right) represented the supporters of the bill almost single handedly during the mark up. Most of the bill's supporters took no part in the debate, and merely voted. Rep. Smith received support in the debate on a few issues from Rep. Dan Lungren (R-CA). Rep. Smith was also supported by a team of staff attorneys, led by Carolyn Lynch.

A bipartisan group from opposite ends of the ideological spectrum was active in opposing the bill, offering amendments, and debating their merits. This group included Rep. James Sensenbrenner (R-WI), Rep. Jason Chaffetz (R-UT), and Rep. Darrell Issa (R-CA) from the right, and Rep. Zoe Lofgren (D-CA), Rep. Mel Watt (D-NC), Rep.Bobby Scott (D-VA), Rep. Jerrold Nadler (D-NY), and Rep. John Conyers (D-MI) from the left.

The key provisions of the bill are found in Sections 4, which mandates data retention, and Section 5 and 6, which provide immunity.

Summary of Data Retention Provisions. This bill adds a broad data retention mandate to 18 U.S.C. 2703, which is part of the Stored Communications Act (SCA), which in turn is part of the Electronic Communications Privacy Act (ECPA). It requires maintaining data on all internet users, not just those under investigation.

There are already two data retention mandates. Subsection 2703(f) 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." Also, 18 U.S.C. 2258A requires electronic communication services (ECS) and remote computing services (RCS), old SCA terms, 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 18 U.S.C. 2252 and 18 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. See, story titled "Summary of Existing Data Retention Mandates" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011.

Section 4 of the bill adds a new subsection (h) to Section 2703. The key language of the bill, which is found in the managers amendment, is as follows:

    A commercial provider of an electronic communication service shall retain for a period of at least one year a log of the temporarily assigned network addresses the provider assigns to a subscriber to or customer of such service that enables the identification of the corresponding customer or subscriber information under subsection (c)(2) of this section.

The Section 2703(c)(2) list, which is currently in the statute, is as follows:

    (A) name;
    (B) address;
    (C) local and long distance telephone connection records, or records of session times and durations;
    (D) length of service (including start date) and types of service utilized;
    (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
    (F) means and source of payment for such service (including any credit card or bank account number)

The first element of uncertainty is the meaning of "shall retain". Does it require covered entities to collect data that they do not already collect? Or, does it require covered entities to not destroy or delete certain data that they already collect?

Rep. Smith stated that the bill imposes no duty to collect data. Rep. Lofgren and others stated that the bill does require covered entities to collect data.

The second element of uncertainty is the meaning of "enables the identification of the corresponding customer or subscriber information under subsection (c)(2)".

Rep. Smith stated that the bill imposes no duty to collect or save subsection (c)(2) data; only IP numbers must be saved. Rep. Lofgren and others stated that the bill requires covered entities to collect and save all of the data listed in subsection (c)(2).

Rep. Lofgren offered an amendment that would have clarified that the bill means what Rep. Smith states that it means on both of these points. However, Rep. Smith opposed this amendment, and it failed on a roll call vote of 7-16.

The third element of uncertainty is the meaning of "telephone connection records" in subsection (c)(2)(C). Rep. Chaffetz suggested during the markup that GPS data is covered. Rep. Lofgren told TLJ after the mark up that this billl "probably would" entail the collection of wireless device location data.

The fourth element of uncertainty is what entities are covered by the data retention mandate. The bill states that it applies to a "commercial provider of an electronic communication service". It then provides as follows:

    the term 'commercial provider' means a provider of electronic communication service that offers Internet access capability for a fee to the public or to such classes of users as to be effectively available to the public, regardless of the facilities used

It should also be noted that 18 U.S.C. 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".

The bill does not explain what it means to offer "Internet access capability". Is this, for example, broader than offering internet access service? And, what is the meaning of "commercial" and "for a fee". Rep. Lofgren and others argued that this language would make providers of WiFi access, including airlines, airports and coffee shops, covered entities if they charge a fee for WiFi access, or condition WiFi access on some other payment, such as for a cup of coffee. Moreover, they argued that these coffee shops would be required to collect (c)(2) data from their customers, including names, addresses, bank account numbers, and credit card numbers. Rep. Smith stated that this is not the meaning of the bill.

If this bill were to be enacted as approved by the HJC, there would be no clarity as to whether WiFi access providers are covered, and if so, what their data collection obligations would be.

The fifth element of uncertainty is who can access the data retained pursuant to this bill. To begin with, Rep. Smith and other backers of this bill state that the bill's purpose is to enable law enforcement agencies to obtain the identities of persons who post or view child pornography (CP) on the internet. However, there is no plausible argument to be made from the language of the bill that retained data could be accessed solely for this purpose. Indeed, when Rep. Scott offered an amendment that would have limited access to this purpose, Rep. Smith said that the bill does, and should, allow access for other purposes. Rep. Scott then withdrew that amendment.

However, there is some uncertainly in the language of the bill as to whether access is limited to law enforcement agencies, or whether private litigants obtain retained data. The bill as introduced included no limitation on access. At the July 12 hearing on the bill some members warned that retained data could be accessed by divorce lawyers, and other private civil litigants. The managers amendment then added limiting language, as follows:

    Access to a record or information required to be retained under this subsection may not be compelled by any person or other entity that is not a governmental entity.

Rep. Lofgren, Rep. Scott and others pointed out that in civil litigation between private parties, a party might obtain an order or subpoena from the court directing a service provider to produce data retained pursuant to this bill, and that that process would fall within the meaning of "compelled by any person or other entity that is not a governmental entity".

Thus, it appears that the clarifying language in the managers amendment is merely an illusory protection that will not prevent divorce lawyers and other private parties from gaining access to retained data. However, Rep. Smith made an argument to the contrary at the mark up on July 28. He asserted that a court is not a "government entity".

The sixth element of uncertainty is the meaning of the bill's exception for providers whose service is not "effectively available to the public". The bill does not define this term. This issue was not discussed at the mark up.

The seventh element of uncertainty is the meaning of retaining data for one year. Some of the data retained pursuant to this bill would be associated with a date, which date could toll the beginning of the one year retention period. For example, a temporary IP address may be assigned to a customer on one date. A number would be called on one date. Location data would be associated with dates. However, the bill provides no explanation of what would begin the one year retention period for other data, such as credit card numbers, bank account numbers, and addresses.

Summary of Immunity Provisions. There was considerable debate about the immunity provisions of Sections 5 and 6 of the bill at the mark up. Also, HJC rejected an amendment to these sections.

Section 5 of the bill would amend Section 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 as follows:

    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.

Section 6 of the bill would amend 18 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 as follows:

    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.

For a further discussion of the implications of these two sections, see subsection titled "Immunity" in story titled "Summary of HR 1981, Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011.

Summary of Administrative Subpoena Provisions. HR 1981 would change the administrative subpoena process for obtaining access to retained data, as well as other records.

But first, the Attorney General, and hence, prosecutors in U.S. Attorneys Offices around the country, already have broad authority to issue administrative subpoenas to investigate child pornography (CP) cases and other cases involving sexual exploitation of children.

Moreover, Section 2703 already provides that "A provider of electronic communication service or remote computing service shall disclose to a governmental entity" Section (c)(2) data "when the governmental entity uses an administrative subpoena".

Section 7 and 11 of the bill as introduced would give administrative subpoena power to the Unites 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. More recently, the Congress has required sex offenders to register. Not all do.

These provisions may not be the most significant parts of this bill. However, Rep. Sensenbrenner adamantly opposed them.

Rep. Sensenbrenner offered an amendment to remove them, which failed on a vote of 10-17. Rep. Sensenbrenner does not want to give administrative subpoena power to the USMS, even if only in connection with the registration of sex offenders.

Rep. Scott also offered an amendment regarding administrative subpoenas. It would have stricken the two sections from the bill as introduced, and added a new section that would have given no new authority to the USMS, but would have given the Attorney General the authority to issue administrative subpoenas in connection with enforcement of the Sex Offender Registration and Notification Act. It failed on a voice vote. There was no roll call vote.

18 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 18 U.S.C. 2252 and 18 U.S.C. 2252A, which are the two main sections used to prosecute people who distribute or view child pornography online. Rep. Scott amendment would have expanded this list by adding 18 U.S.C. 2250 (regarding registration of sex offenders).

HR 1981 would amend 28 U.S.C. 566, which lists the powers and duties of the USMS, to provide 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". This bill would also make related amendments to 18 U.S.C. 3486.

Summary of Online Financial Transactions Provisions. There are two substantive sections of the bill that pertain to financial transactions. Neither was the subject of much debate at the markup.

The bill as introduced adds a new section to the criminal code, to be codified at a new 18 U.S.C. 1960A, that provides as follows:

    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.

The managers amendment approved at the mark up added the following language:

    This section does not apply to a financial transaction conducted by a person in cooperation with, or with the consent of, any Federal, State, or local law enforcement agency.

Also, the bill as introduced adds several crimes to the list of predicate offenses for money laundering under 18 U.S.C. 1956. CP under 18 U.S.C. 2252A is already on the list. The bill would add the proposed Section 1960A.

These provisions are not rationally related to the stated purpose of the bill of fighting CP. Law enforcement entities, with the assistance of  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) have all but shut down commercial CP distribution on the internet.

Criminal CP viewing and uploading continues, but via free platforms such as peer to peer file sharing programs and online bulletin boards, which do not involve third party processing of financial transactions.

The debate at the mark up did not disclose why the DOJ or Rep. Smith seek these changes to law.

Many sentences in CP cases include post release bans on use of computers or the internet. The DOJ might use these changes to compel financial intermediaries to stop processing financial transactions in which a registered sex offender attempts to purchase a computer, or seeks to subscribe to a broadband internet access service.

Summary of Non-Technology Related Provisions. HR 1981 also includes some changes to law that do not implicate information or communications technologies. Some of these relate to CP sentencing, and hence, give Rep. Smith support for his argument that this bill is about fighting CP. These provisions, however, are unrelated to data retention, which is the core of this bill.

It would provide for increased prison time. It would raise the maximum prison sentence under both 18 U.S.C. 2252 and 18 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. The HJC approved an amendment at the mark up that changed this language.

Finally, bill would amend 18 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 mostly in other situations. See, subsection titled "Non-Technology Related Changes to CP Law" in story titled "Summary of HR 1981, Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011.

Amendment by Amendment Summary of the Mark Up of HR 1981, the Data Retention Bill

7/28. The House Judiciary Committee (HJC) began its mark up of HR 1981 [LOC | WW], the data retention bill, on Wednesday, July 27, 2011. It held two extended sessions, and failed to obtain a quorum for a third session late in the day. It continued and completed its mark up with two extended sessions on Thursday, July 28. The following is an amendment by amendment summary of this mark up on July 27-28.

The mark up began with speeches. Rep. Lamar Smith (R-TX), Chairman of the HJC, and sponsor of HR 1981, read a prepared statement. He argued that this bill is necessary to enable law enforcement entities to identify pedophiles on the internet.

Rep. Debbie Schultz (D-FL), lead cosponsor of the bill, gave a speech in support, in which she focused on the problem of child pornography (CP), rather than the contents of the bill, and then left the room. She took leave of absence from the HJC in May when she was elected Chairwoman of the Democratic National Committee.

Rep. Bobby ScottRep. Bobby Scott (D-VA) (at right) called the bill an "unfunded data retention mandate", that "saddles the industry", and "compromises consumer privacy and individual liberties". He also said the "we still have no idea" whether this bill would add anything to law enforcement efforts to fight CP.

Rep. James Sensenbrenner (R-WI) also spoke in opposition. He is the Chairman of the HJC's Subcommittee on Crime. Rep. Smith brought this bill straight to the full Committee for mark up, without a mark up by the Subcommittee. Rep. Sensenbrenner is also a former Chairman of the HJC who guided the 2001 USA PATRIOT Act and extensions and amendments through the HJC and House. He called HR 1981 a "threat to the privacy of average law abiding citizens". He added that "the decision to store data should be a business decision, not a government decision".

Rep. Zoe Lofgren (D-CA), who represents a Silicon Valley district stated that this bill is "among the most astonishing increases in the power of the federal government ... in the 17 years I have been on the Judiciary Committee".

She also said that there is a hacking problem, and because of the "complete liability relief" in this bill, "there will be less effort to protect this data".

Rep. Jerrold Nadler (D-NY) called the data retention mandate a "dragnet" that requires the collection of information on "millions of innocent people". He added, with reference to News Corporation, that "the more data we keep, the more likely we will have more of these intrusions".

Rep. Smith called up the bill as introduced on May 25, 2011, and a managers amendment. He read another prepared statement.

Rep. Zoe LofgrenRep. Lofgren (at left) noted that the managers amendment exempts non-commercial service providers. She said, "you are essentially saying to the pornographer, go to the library".

She asked Rep. Smith if (1) the "commercial" and "for a fee" language of the managers amendment means that coffee shops that charge are covered by the data retention mandate, (2) service providers must retain all of the data enumerated in Section 2703(c)(2), and (3) private litigants will be able to access retained data if they obtain court order?

Rep. Smith responded that "the answer to all the questions is no".

The HJC then considered several amendments to the managers amendment, before voting on the managers amendment.

Minimum Data Retention Period. Rep. Scott offered a short amendment to the managers amendment that would have shortened the data retention period from "one year" to "180 days". It failed on a roll call vote of 12-14. (See, column 1 of table titled "Roll Call Votes on Data Retention Bill".)

Rep. Scott and Rep. Jason Chaffetz (R-UT) argued that this data retention mandate would impose a burden on small service providers. Rep. Scott said that some "would be put out of business". Rep. Chaffetz expressed concern about the compliance costs for rural ISPs.

Rep. Nadler said that the law enforcement entities "are besieged with data".

Rep. Jason ChaffetzRep. Chaffetz (at right) also spoke at this time about retention of GPS data under the mandate of this bill. He also said that "Americans have a reasonable expectation of privacy" in this data.

Reasonable expectation of privacy is the first prong of the Supreme Court's test for determining whether the 4th Amendment protects people against unreasonable searches and seizures. This test was first announced in opinion in Katz v. U.S. in 1967. It is reported at 389 U.S. 347.

The 4th Amendment and other parts of the Bill of Rights only protect people against government action. One reason that the DOJ and Rep. Smith are pushing a bill that does not expressly mandate data collection may be to provide the legal argument, if a court ever reviews this bill, that there is no government action for the purposes of Constitutional analysis.

Rep. Darrell Issa (R-CA) stated at this time that this bill would require data retention for all purposes, not just CP, and that "this is not about child pornography, never has been".

Access for Child Exploitation Investigations Only. Rep. Scott offered an amendment to the managers amendment that would have limited access data retained pursuant to HR 1981 to CP investigations.

He said, "let's not bait and switch ... law enforcement should not be able to obtain these records for ordinary run of the mill cases". He also pointed out that the DOJ engaged in deception in 2001 when it requested sneak and peak authority for terrorism purposes. A recent AOUSC report revealed that only 3 out of 763 sneak and peak (delayed notice of search) warrants were terrorism related.

Rep. Smith argued against the amendment stating that it "would limit the ability of law enforcement officials to investigate other types of crime".

Rep. Scott stated that he had made the point that the purpose of this bill is not to further CP investigations, but to further all criminal and civil investigations. He then withdrew this amendment.

check markCost Study. Rep. Scott offered an amendment to the managers amendment that requires the Department of Justice (DOJ) to conduct one study on the cost to service providers of complying with the data retention mandate. Rep. Smith expressed support, and the HJC passed it by unanimous voice vote.

It provides, that "The Attorney General shall make a study to determine the costs associated with compliance by providers with the requirement of paragraph (1). Such study shall include an assessment of all the types of costs, including hardware, software, and personnel that are involved. Not later then 2 years after the date of the enactment of this paragraph, the Attorney General shall report to the Congress the results of that study."

The reference to "paragraph (1)" is a reference to the data retention mandate. Also, the third word in the last sentence, "then", should be "than".

Small Service Providers. Rep. Scott offered an amendment to the managers amendment regarding small service providers. Rep. Smith stated that he is willing to work with Rep. Scott in drafting similar language. With this commitment, Rep. Scott withdrew this amendment.

Hence, the two will likely continue to work on such an amendment, and if this bill is brought up on the floor, there may be a similar amendment.

This amendment would have exempted from the data retention mandate any "electronic communication service or remote computing service with fewer than 2 million broadband subscribers".

However, it also provided that a provider with fewer that 2 million broadband subscribers could elect to comply with the data retention mandate.

Then, such provider would only be required to disclose retained data to "a governmental entity serving a law enforcement function and acting pursuant to a warrant, court order, consent, or administrative subpoena, ... and only in connection with investigation" with enumerated federal crimes against or involving children, and substantially similar state crimes, and terrorism related crimes.

Also, such a provider would not be required to disclose retained data to "any civil litigant or judicial authority in any matter in which such provider is not a named plaintiff, defendant, or intervenor".

check markVote on Manager's Amendment. The HJC then approved the managers amendment, as amended by Rep. Scott's cost study amendment, on a roll call vote of 19-4. The no votes were cast by Rep. Sensenbrenner, Rep. Chaffetz, Rep. Scott and Rep. Lofgren. (See, column 2 of table.)

The HJC then proceeded to further amendments to the base bill.

check markSentencing Guidelines. Rep. Steve Cohen (D-TN) offered an amendment regarding sentencing guidelines in CP cases. It does not relate to data retention. Nor is it technology related. Rep. Smith expressed support for the amendment, and the HJC passed it by unanimous voice vote.

Rep. Cohen attended parts of the mark up, and participated in discussions, but was absent for the key votes on final passage, and on shortening the retention period to 180 days.

Administrative Subpoenas. Rep. Sensenbrenner offered an amendment regarding administrative subpoenas. It would simply have stricken the two sections related to administrative subpoena powers of the U.S. Marshall's Service. It failed on a role call vote of 10-17. (See, column 3 of table.)

Rep. Smith said that these provisions are "narrowly targeted, just for fugitive offenders". Rep. Watt said that this may be the "next step", to be followed by more steps, that eventually lead to the ultimate result of "big bad government".

Rep. John Conyers (D-MI) supported this amendment. He said the the USMS has been trying to get administrative subpoena power for decades, and that the USMS does not need this power, because the DOJ prosecutors already have administrative subpoena power.

In addition, he was not present at the opening of the mark up, and therefore gave a general speech in opposition to the bill at this point. He said that "what we are doing here is creating a database of all Americans". And, he said that "this bill is mislabeled", and "if you are against child pornography you have got to go along with it even if it doesn't make any sense".

check markDOJ Study on Privacy Standards. Rep. Sheila Lee (D-TX) offered two amendments en bloc. Rep. Smith expressed support. The HJC passed both in a single unanimous voice vote.

The first amendment requires the DOJ to conduct a study. This amendment appears to have been hastily and inartfully drafted. It provides that the DOJ shall conduct one study "of providers affected by section 2703(h)" that includes "the privacy standards and considerations implemented by those providers as they comply with the requirements of section 2703(h)" and "the frequency of any reported breaches of data retained pursuant to section 2703(h)".

check markSense of Congress Regarding Data Breaches. Rep. Lee's second amendment, which was approved in the same voice vote, merely expresses the sense of the Congress regarding data breach notification.

It provides that "It is the sense of the Congress to encourage electronic communications service providers to give prompt notice to their customers in the event of a breach of the data retained pursuant to section 2703(h) of title 18 of the United States Code, in order that those effected can take the necessary steps to protect themselves from potential misuse of private information."

This only expresses the sense of the Congress, and therefore imposes no duty upon any service providers.

Strike the Data Retention Mandate. Rep. Lofgren offered an amendment that would have stricken Section 4 of the bill, the data retention mandate. This amendment would have gutted the bill. It failed on a role call vote of 8-15. (See, column 4 of table.)

Rep. Conyers said that this bill provides for the "creation of a database for everybody in the United States of America".

Rep. Lofgren said that "this is an entirely new mandate for every single ISP in the United States".

She also addressed Rep. Smith's previous answer to her question regarding whether covered providers would be required to retain all of the data listed in Section 2703(c)(2). She said that his answer of "no" was made in good faith, but "a good faith answer does not contradict the plain language of the statute", which mandates retention of (c)(2) data.

She also said that this is "big brother", and that civil litigants will get access to this data too. She added that retention of this data will pose a "threat to domestic violence victims".

Rep. Smith said the the DOJ supports this. Rep. Conyers responded that the fact that the DOJ likes this bill "doesn't cut any water with me".

Rep. Scott said that data retained pursuant to this bill would be used for marketing purposes, and enforcement of intellectual property rights. He added that it would be "cued up for hackers".

More Resources for Child Exploitation Cases. Rep. Scott offered an amendment to provide more financial resource to the DOJ for investigators and prosecutors for child exploitation cases. It failed on a role call vote of 7-11. (See, column 5 of table.)

It provided that "In addition to any other authorization of appropriations in other laws, there are authorized to be appropriated for fiscal year 2012 and each fiscal year thereafter $45,000,000 to provide for 200 additional Federal Bureau of Investigation agents, 30 additional assistant United States attorneys, and 20 additional Federal public defenders who are solely dedicated to working on Federal offenses involving the sexual exploitation or abuse of children under sections 1201, 1591, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of title 18, United States Code, in which the victim is an individual who has not attained the age of 18 years."

Rep. Scott argued that this would be more effective in fighting CP than a data retention mandate.

Statistical Reporting. Rep. Lofgren offered an amendment that would have required covered service providers to report certain data to the Administrative Office of the U.S. Courts (AOUSC), and required the AOUSC to submit annual reports to the Congress containing aggregate data. It failed on a role call vote of 9-15. (See, column 6 of table.)

This amendment would have required service providers to submit copies of demands to the AOUSC, along with other information, including "reimbursable costs associated with complying with it", and "how long the record or information had been retained ... at the time of the receipt of the demand".

This amendment would have required the AOUSC to prepare annual reports that would have disclosed how many demands each government entity makes each year, whether it obtained any court order, "the types of investigations in connection with which the demand was issued", costs, and "the average length of time the record or information had been retained".

Rep. Lungren initially voted for this amendment. However, Carolyn Lynch, Republican counsel to the HJC's Subcommittee on Crime, walked over to him, and said something privately. He then changed his vote to no.

Immunity. Rep. Lofgren offered an amendment regarding immunity. It failed on a role call vote of 7-18. (See, column 7 of table.)

First, it would have replaced Section 5 of the bill with the following: "The provision of information, facilities, or assistance with regard to a log required to be retained under section 2703(h) of title 18, United States Code, shall be, for the purposes of 2703(e) of that title, deemed a provision of information, facilities or assistance under chapter 121 of that title."

Second, it would have replaced Section 6 of the bill with the following: "A record or information contained in a log made under section 2703(h) of title 18, United States Code, shall be, for the purposes of section 2707(e) of that title, deemed to be a record or information to which 2703(c) applies."

Rep. Lofgren argued that the bill without amendment would "attract hackers".

Administrative Subpoenas. Rep. Scott offered an amendment regarding administrative subpoenas. It failed on a voice vote. There was no roll call vote.

It would have stricken the two administrative subpoena sections from the bill, and added a new section that would have given no new authority to the USMS, but would have given the Attorney General the authority to issue administrative subpoenas in connection with enforcement of the Sex Offender Registration and Notification Act.

Data Breach Notification. Rep. Conyers offered an amendment regarding notification of data breaches. It bears attributes of a hastily drafted and incomplete proposal.

Rep. Smith said that "data breach legislation is currently being considered by the" House Commerce Committee (HCC). He said to Rep. Conyers that "we will continue to work together". Rep. Conyers then withdrew the amendment.

See also, story titled "House Commerce Subcommittee Approves SAFE Data Act", and related stories, in TLJ Daily E-Mail Alert No. 2,276, July 23, 2011.

What Data Must Be Retained? Rep. Lofgren offered an amendment regarding (c)(2). It failed on a role call vote of 7-16. (See, column 8 of table.)

This amendment would have added, following the key new subsection 2703(h), a new subsection 2703(i): "RULE OF CONSTRUCTION.--Subsection (h) shall not be construed to require a provider of electronic communication service to associate any information with a particular user or to collect any customer or subscriber information, including information described in subsection (c)(2), that the provider does not already associate or collect for business reasons."

Rep. Smith had previously asserted that the bill does not require the retention of the data listed in subsection (c)(2). So, Rep. Lofgren offered an amendment that would simply have clarified that the bill means what Rep. Smith said that it means.

However, Rep. Smith opposed this amendment. He said that "the amendment is a solution looking for a problem", that it "needlessly confuses the problem", and that it would "threaten the entire data retention program".

What Rep. Smith did not say, but what is apparent from the text of the bill, and the debate at the mark up, is that Rep. Smith persists in offering an explanation of the meaning of the bill that is inconsistent with words of the bill. This lends the appearance that he seeks to win passage of a bill by misrepresenting its contents.

Title of Bill. Rep. Lofgren offered an amendment to change the title of the bill. It failed on a role call vote of 9-18. (See, column 9 of table.)

The bill is titled, quite deceptively, "Protecting Children from Internet Pornographers Act of 2011". Rep. Lofgren proposed, quite sarcastically, that it be titled "Keep Every American's Digital Data for Submission to the Federal Government Without a Warrant Act of 2011".

check markFinal passage. The HJC then passed the bill as amended, on a roll call vote of 19-10.

(See, column 10 of table.)

In This Issue
This issue contains the following items:
  House Judiciary Committee Approves Data Retention Bill
  Amendment by Amendment Summary of the Mark Up of HR 1981, the Data Retention Bill
  Roll Call Votes on Data Retention Bill
  Excerpts From 18 U.S.C. 2703 As Amended by HR 1981
  Wiretaps, Sneak and Peak Warrants, and the Likely Uses of Retained Data
  Commentary: How Enactment of HR 1981 Would Benefit Service Providers
  Judges, Prosecutors and Data Retention
Roll Call Votes on Data Retention Bill,
July 27-28, 2011
  1 2 3 4 5 6 7 8 9 10
Lamar Smith (R-TX) N Y N N N N N N N Y
Sensenbrenner (R-WI) Y N Y Y N Y N Y N N
How. Coble (R-NC) N Y N N   N   N N Y
Elton Gallegly (R-CA)   Y N N   N N N N Y
Bob Goodlatte (R-VA) N   N N   N N N N Y
Dan Lungren (R-CA) N Y N N   N N N N Y
Steve Chabot (R-OH) N       N N N N N Y
Darrell Issa (R-CA) Y   N       Y N Y N
Mike Pence (R-IN)                    
Randy Forbes (R-VA) N Y N N N N N N N Y
Steve King (R-IA)     N N   N N N N Y
Trent Franks (R-AZ) N   N N     N N N Y
Louie Gohmert (R-TX)                    
Jim Jordan (R-OH)                    
Ted Poe (R-TX)                    
Jason Chaffetz (R-UT) Y N N Y Y N N Y Y N
Tim Griffin (R-AR) N Y N N N N N N   Y
Tom Marino (R-PA) N Y N N N N N N N Y
Trey Gowdy (R-SC) N Y N N N N N N N Y
Dennis Ross (R-FL)     N       N N N Y
Sandy Adams (R-FL)   Y     N N N N N Y
Ben Quayle (R-AZ)                    
Democrats
  1 2 3 4 5 6 7 8 9 10
John Conyers (D-MI) Y Y Y Y Y Y Y Y Y N
How. Berman (D-CA)     Y N   Y       Y
Jerrold Nadler (D-NY) Y Y Y   Y Y Y Y Y N
Bobby Scott (D-VA) Y N Y Y Y Y Y Y Y N
Mel Watt (D-NC) Y Y Y Y Y Y Y Y Y N
Zoe Lofgren (D-CA) Y N Y Y Y Y Y Y Y N
Sheila Lee (D-TX) N Y N       Y   N Y
Maxine Waters (D-CA) Y Y Y Y         Y N
Steve Cohen (D-TN)   Y Y   N Y Y      
Hank Johnson (D-GA) Y Y Y Y         Y N
Pedro Pierluisi (D-PR) N Y   N N N N N N Y
Mike Quigley (D-IL) N Y N N Y N N N N Y
Judy Chu (D-CA) Y Y                
Ted Deutsch (D-FL) N   N N         N Y
Linda Sanchez (D-CA) Y                  
Summary of Roll Call Votes:
1. Scott. Shorten retention period to 180 days. Failed 12-14.
2. Managers amendment. Passed 19-4.
3. Sensenbrenner. Strike administrative subpoena provisions. Failed 10-17.
4. Lofgren. Strike data retention mandate. Failed 8-15.
5. Scott. More resources for child exploitation cases. Failed 7-11.
6. Lofgren. Statistical reporting to AOUSC. Failed 9-15.
7. Lofgren. Immunity. Failed 7-18.
8. Lofgren. No requirement to collect (c)(2) data not already being collected. Failed 7-16.
9. Lofgren. Change title of bill. Failed 9-18.
10. Final passage. Passed 19-10.
Excerpts From 18 U.S.C. 2703 As Amended by HR 1981

 2703. Required disclosure of customer communications or records
...

(c) Records Concerning Electronic Communication Service or Remote Computing Service.

   (1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-- (A) obtains a warrant ... (B) obtains a court order ... (C) has the consent of the subscriber ... (E) seeks information under paragraph (2).

   (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the--
      (A) name;
      (B) address;
      (C) local and long distance telephone connection records, or records of session times and durations;
      (D) length of service (including start date) and types of service utilized;
      (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
      (F) means and source of payment for such service (including any credit card or bank account number),

of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).
...

(h) RETENTION OF CERTAIN RECORDS.--

   (1) A commercial provider of an electronic communication service shall retain for a period of at least one year a log of the temporarily assigned network addresses the provider assigns to a subscriber to or customer of such service that enables the identification of the corresponding customer or subscriber information under subsection (c)(2) of this section.

   (2) Access to a record or information required to be retained under this subsection may not be compelled by any person or other entity that is not a governmental entity.

   (3) In this subsection--
      (A) the term 'commercial provider' means a provider of electronic communication service that offers Internet access capability for a fee to the public or to such classes of users as to be effectively available to the public, regardless of the facilities used; and
      (B) the term Internet' has the same meaning given that term in section 230(f) of the Communications Act of 1934.

Wiretaps, Sneak and Peak Warrants, and the Likely Uses of Retained Data

7/28. The Administrative Office of U.S. Courts (AOUSC) collects and reports summary data on court approved use of various types of surveillance. For example, recent AOUSC data shows that 84% of criminal wiretaps and 62% of sneak and peak warrants are drug related.

The AOUSC's table titled "Major Offenses for Which Court-Authorized Intercepts Were Granted Pursuant to 18 U.S.C. 2519, January 1 Through December 31, 2010" discloses that in 2010, for state and federal courts combined, a total of 3,194 wiretaps were authorized. Of these, 2,675 were for "Narcotics" related offenses.

For federal courts alone, 1,128 out of 1,207 wiretaps, or 93%, were for narcotics related offenses.

Wiretaps for homicide and assault -- which are mostly state cases -- come in a distant second. Other categories of criminal investigations for which more that a few wiretaps are conducted include racketeering, theft, and corruption.

18 U.S.C. 2519 requires the collection and reporting of data on wiretaps issued pursuant to 18 U.S.C. 2518. See also, AOUSC web page with hyperlinks to its annual wiretap statistics reports from 1997 through 2010.

When the Congress enacted the "USA PATRIOT Improvement and Reauthorization Act of 2005", Public Law No. 109-177, it includes Section 114, which required any federal or state judge who issues or denies a federal warrant authorizing delayed notice, or an extension of such a warrant, to report to the AOUSC. This requirement is codified at 18 U.S.C. 3103a(d).

The AOUSC released a report, on July 2, 2009, that contains summary data on these delayed notice, or sneak and peak, warrants. It states that for fiscal year 2008 there were a total of 763. Of these, 474 (62%) were drug related, 53 (7%) were fraud related, and 39 (5%) were weapons related.

Some, including Rep. Bobby Scott (D-VA), have noted that the Department of Justice (DOJ) and others obtained this new sneak and peak authority in the 2001 USA PATRIOT Act after arguing that it was necessary to fight terrorism. But then, this AOUSC report disclosed that only 3 out of 763 warrants were related to terrorism.

It should be noted too that only 12 out of these 763 warrants were related to sex offenses. And, child pornography (CP) cases are just one small part of sex offenses.

This sort of data suggests that if HR 1981 [LOC | WW], the data retention bill, were to become law, then the primary investigatory and prosecutorial uses to which the mandated databases would be put would be drug related crimes, followed by other common crimes, and particularly those involving theft, fraud, racketeering, and corruption.

Investigation of sex crimes generally would likely be only one very minor usage of these databases. Access to these databases for CP related crimes might be insignificant relative to uses for other types of crimes.

This is likely why Rep. Lamar Smith (R-TX), the sponsor of HR 1981, fought off an amendment offered by Rep. Zoe Lofgren (D-CA) that would have required statistical reporting to the AOUSC on data retention. Had Rep. Lofgren's amendment been approved, it would result in reports that contradict and embarrass Rep. Smith as much as the 2009 sneak and peak report contradicted and embarrassed the 2001 proponents of expanded sneak and peak authority.

Possible Uses of Data Retention and Access. Rep. Smith has argued that HR 1981 would require retention of temporary IP addresses, and that this would assist in identifying people who upload or view CP in peer to peer file sharing systems.

IP addresses would also assist in identifying people who upload other types of illegal content, such as copyright infringing works. Hence, the government, as well as the law firms representing movie, record and other content companies, would likely often seek and obtain access to data retained pursuant to HR 1981.

One might speculate that requests in government criminal copyright infringement investigations, and in private civil copyright infringement investigations, would far outnumber CP related requests for retained data.

Rep. Howard Berman (D-CA), perhaps the leading advocate of the copyright interests of the movie and music industries on the HJC, voted for the bill.

HR 1981 might be viewed in tandem with S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", or "PROTECT IP Act". A companion bill has not yet been introduced in the House.

Sen. Orrin Hatch (R-UT), introduced S 1308 [LOC | WW], which is identical to HR 1918 as introduced, in the Senate on June 30, 2011. The cosponsors, are Sen. Charles Grassley (R-IA), Sen. Amy Klobuchar (D-MN), and Sen. Jeff Sessions (R-AL).

There is overlap in the supporters of data retention legislation and the PROTECT IP Act. Of the four sponsors of S 1308 (the Senate data retention bill), three are also sponsors of the PROTECT IP Act (Hatch, Grassley, and Klobuchar, but Sessions).

Also, while the House version of the PROTECT IP Act has not yet been introduced, several members have already been public and vocal in their support, including Rep. Smith, Rep. Berman, and Rep. Goodlatte. All three voted for data retention bill. On the other hand, it should be noted that Rep. John Conyers supports some form of PROTECT IP Act, but voted against the data retention bill.

Aside from intellectual property related investigations, retention of IP addresses would likely be useful in criminal and private investigations into computer hacking under 18 U.S.C. 1030.

Retained IP addresses might also be useful in other investigations into the identity of anonymous publishers of information.

Also, while Rep. Smith has emphasized the use of retained data to associate a name with an IP address, databases of retained data could be use to associate a datum in any field with data in other fields. One could use it to associate an address with a name, or vice versa. One could use it to associate a bank account number with a name. One could use it to associate locations visited with a name. And so forth. And this points to a multiplicity of other uses.

Law firms that want to execute upon a judgment, or locate a person for service of process, would find uses for this data. Debt collectors and tax collectors would find it useful in tracking down debtors and assets. Law enforcement officers would find it useful to locate witnesses and track down fugitives.

In the end, databases of retained data would be put to numerous and frequent use, and become a fundamental feature of the criminal and civil justice systems. And, CP cases would likely account for only a tiny fraction of requests for retained data.

Commentary: How Enactment of HR 1981 Would Benefit Some Service Providers

7/28. Some of the cosponsors of HR 1981 [LOC | WW], the data retention bill, and some members of the House Judiciary Committee (HJC) who voted for HR 1981 on July 28, have a history of advocating the interests of information and communications technology sector companies and users. Moreover, these members have often opposed the Department of Justice (DOJ) and intelligence agencies in doing so.

For example, Rep. Bob Goodlatte (R-VA) voted for the bill, and against efforts to amend it. In the late 1990s, he and Rep. Zoe Lofgren (D-CA) lead the fight in the House for encryption rights. Former Attorney General Janet Reno, the DOJ, the Department of Defense (DOD), Department of Commerce (DOC), and National Security Agency (NSA) all fought against encryption rights, and used of the export control regime in an attempt to regulate domestic encryption products.

Rep. Goodlatte states in his web site biography that he "has made a name for himself as a leader on Internet and high-tech issues. He is Co-Chair of the Congressional Internet Caucus, and Chairman of the House Republican High Technology Working Group. Bob's work to foster innovation in the technology sector ...".

Rep. Bob GoodlatteYet, Rep. Goodlatte (at right), and some other members of the HJC who have endeavored to prevent government agencies from imposing onerous burdens on technology and communications companies and consumers, are now backing this data retention mandate bill.

A reason for this may be that there are many benefits for some of these companies (but not their customers) that would flow from enactment of this bill.

First, this bill has two immunity provisions. Many companies are already retaining data, in part, at the request of the DOJ and other law enforcement agencies. This bill's immunity provisions would broadly limit their potential liability for doing so. Moreover, the companies would likely assert this immunity in a wider range of actions, including those flowing from data breaches.

Second, and related to the first benefit, this bill would preempt and provide exceptions to other state and federal laws that regulate the collection and retention of personally identifiable data under the rubric of promoting privacy and data security.

Many companies have interests in collecting and maintaining databases of information, other than assisting law enforcement and intelligence agencies. These databases may also be used in providing, or collaborating with other companies in providing, location based services, location based advertising, and behaviorial advertising. This bill would enable these companies to collect and retain IP addresses, names, addresses, bank account numbers, credit card numbers, records of phone calls made and received, and location data, notwithstanding federal and state statutes to the contrary.

Third, the bill would enable service providers to offer wide and clandestine support to the DOJ. The DOJ appreciates and reciprocates such support. These companies are in need of a beneficent Washington protector. For example, in the past, companies have provided much support, even when it has subjected them to class action lawsuits alleging illegal warrantless wiretaps. The DOJ has, at the same time, systematically approved numerous telecom mergers that it might not have approved in other industries, lobbied the Federal Communications Commission (FCC) against adopting network neutrality rules, lobbied the Congress for immunity for providing warrantless wiretaps, aggressively asserted the state secrets privilege in lawsuits against companies, and defended the intellectual property interests of these companies.

Fourth, HR 1981 would impose the burden of developing and maintaining databases. This will cost money. However, it will disproportionately impact small and start up companies. It will affect the large service providers; but they will be able to bear the costs more easily. Hence, this bill would create a regulatory based competitive advantage for large incumbent service providers.

Fifth, this bill might build a revenue stream for service providers. And, the more types of data they retain, and the longer they retain it, the more will be their likely revenues. That is, service providers that collect, retain, retrieve, and organize data for law enforcement agencies may charge for it. There is no provision in this bill regarding compensation from law enforcement agencies. Nor is there any requirement that this information be reported to the Administrative Office of U.S. Courts (AOUSC); hence, there will be no AOUSC annual reports that discloses aggregate data on this revenue source. Rep. Lofgren offered an amendment that would have required reporting to the AOUSC of "reimbursable costs associated with complying", but Rep. Lamar Smith (R-TX) opposed it, and it was defeated.

Judges, Prosecutors and Data Retention

7/28. The roll call votes during the House Judiciary Committee (HJC) mark up HR 1981 [LOC | WW], the data retention bill, revealed a demographic characteristic of members of the HJC that correlates with support for HR 1981. Former prosecutors support the bill. Former judges are skeptical.

Rep. Dan Lungren (R-CA) is a former Attorney General of the state of California, and hence, its former chief prosecutor. He not only voted for the bill, and against attempts to amend it, he was the only member other than Rep. Smith to repeatedly engage in debate with the bill's opponents.

Pedro Pierluisi (D-RI), the Resident Commission of Puerto Rico, is a former Attorney General of Puerto Rico. Rep. Howard Coble (R-NC) is a former Assistant U.S. Attorney (AUSA). The work of U.S. Attorneys Offices is overwhelmingly prosecution of federal crimes. Rep. Tim Griffin (R-AR) is also a former AUSA. Before that, he worked as a prosecutor for the U.S. Army. Rep. Tom Marino (R-PA) is a former state district attorney and U.S. Attorney.

Some prosecutors come to view judges and juries as inconvenient Constitutional impediments of the important and excellent work of prosecutors. Rep. Trey Gowdy (R-SC) is not only a former federal prosecutor. He states in his biography that he has named his dogs "Judge" and "Jury".

All of these former prosecutors voted for HR 1981.

In contrast, Rep. Hank Johnson (D-GA) is a former judge. He served for 12 years as a Magistrate Judge for the state of Georgia. He voted against HR 1981. He voted for efforts to amend it.

Rep. Louie GohmertRep. Louie Gohmert (R-TX) (at right) is a former judge for the state of Texas. He served mostly as a state District Court Judge, a trial court position, and then briefly as a state court of appeals judge.

Rep. Ted Poe (R-TX) served for over twenty years as a Texas trial court judge. He campaigns on the sentences that he imposed on the felons convicted in his court. He was also a prosecutor for six years before that, but the bulk of his professional experience is as a judge.

Judges Gohmert and Poe both conspicuously abstained from the debate, abstained from voting on every amendment, and abstained from voting on final passage of the bill. Also, TLJ has endeavored, by phone calls and e-mails, to learn their views regarding this bill. Neither office has provided any response to TLJ. Both judges were present on Capitol Hill on July 27 and July 28, and cast roll call votes on the House floor on those days.

One former judge voted for HR 1981, Rep. Sheila Lee (D-TX). However, she only briefly held a minor municipal judgeship before being elected to the Houston City Council. The docket of Houston municipal courts is dominated by traffic cases -- speeding, driving with expired license plates, running stop signs, and other simple cases in which the government does not invoke its powers of surveillance involving information and communications technologies.

Commentary: Why Judges and Prosecutors Might View HR 1981 Differently. There are reasons to expect judges and prosecutors to hold different views on the data retention and access regime of HR 1981.

This bill would not only overturn centuries old principles of the Anglo American criminal justice systems, but it would do so in ways that cut judges out of the process, while enhancing the power of prosecutors. Hence, one should expect to some evidence, such as in the HJC vote on July 28, that judges and prosecutors diverge on this issue.

First, it is a core principle of the American system of criminal justice that there should only be a criminal investigation when there is reason to believe that some specific crime has been or will be committed. And then, the investigation should focus on individuals when there is reason to believe that they have committed or will commit some specific crime.

HR 1981 would overturn this principle by setting up a regime in which everyone is investigated, regardless of the fact that most have committed no crime. Data retention is a form of investigation.

Second, another core principle of American justice is that the powers of criminal investigation are committed to the government -- police and prosecutors.

This bill would overturn this by committing the duty to collect and retain massive databases to private companies. Police and prosecutors take oaths of office to uphold the law and serve the public. Private company employees do not. Moreover, prosecutors, unlike private sector database administrators, are officers of the court, and operate under the constant oversight of judges. This bill, by committing responsibility to ISPs beyond the oversight of the courts, removes judges from oversight of governmental functions.

Third, another core principle of the American system is that the prior approval of a judge is necessary to obtain access to certain things. Judges approve, or reject, requests for wiretap orders, search warrants, pen register and trap and trace orders, and other things.

But, Section 2703(c)(2) makes the databases compelled by HR 1981 accessible to prosecutors by administrative subpoena. Prosecutors do not need a judge's permission to access this data. There is no judicial involvement or oversight.

Finally, yet another core principle of the American system of criminal justice is that certain due process rights are accorded to those being investigated or accused. This requires, in certain circumstances, notice and opportunity to be heard. This means the opportunity to be heard by a judge.

But, the data retention and access process embodied in HR 1981 provides for no due process rights for the individuals whose data is being collected and accessed. This means that the role of the judge in assuring due process is cut out. This completes the process of removing judges from the data retention and access process.

Under the American system of criminal justice, judges serve as a check upon prosecutorial excess, and as guarantors of traditional concepts of fair play, individual freedom, and due process of law. For the new surveillance regime of electronic data retention and access, this bill would take these functions away from judges, and deprive individuals the protection of judges. It should therefore not be unexpected that all of the former prosecutors, but none of the former judges, on the HJC would vote for this bill.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, August 3

The House will not meet. It is in recess until 2:00 PM on September 7.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (MPETAC) will hold a partially closed meeting. See, notice in the Federal Register Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42678-42679. Location: DOC, Hoover Building, Room 3884,14th Street between Pennsylvania and Constitution Aves., NW.

POSTPONED. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Cybercrime: Updating the Computer Fraud and Abuse Act to Protect Cyberspace and Combat Emerging Threats". The witnesses will be James Baker (DOJ's Associate Deputy Attorney General) and Pablo Martinez (U.S. Secret Service). See, notice. The SJC will webcast this event. Location Room 226, Dirksen Building.

POSTPONED. 10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Impacts of the LightSquared Network on Federal Science Activities". See, notice. Location: Room 2318, Rayburn Building.

Thursday, August 4

CANCELLED. 10:00 AM - 12:00 NOON. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol 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) and Morgan Christen (U.S. Court of Appeals for the 9th Circuit), and four District Court nominees: Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

CANCELLED. 2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. See, notice. Location: Room 219, Hart Building.

EXTENDED FROM JULY 5. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [46 pages in PDF] regarding how its rules and policies could be modified to provide greater economic, market entry, communication adoption opportunities, and incentives for Native Nations. This notice is FCC 11-30 in CG Docket No. 11-41. The FCC adopted it on March 3, 2011, and released the text on March 4, 2011. See, notice in the Federal Register, April 5, 2011, Vol. 76, No. 65, at Pages 18759-18761. See also, extension notice (DA 11-873).

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response its 3rd Further 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 35810-35831.

Deadline to submit reply 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.

Friday, August 5

The Senate will meet in pro forma session at 10:00 AM.

POSTPONED. 10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nominations of Michael Punke (to be Deputy U.S. Trade Representative), Paul Piquado (to be Assistant Secretary of Commerce), and David Johanson (to be a member of the U.S. International Trade Commission). See, notice. Location: Room 215, Dirksen Building.

EXTENDED FROM JULY 8. Deadline to submit comments to the Federal Trade Commission (FTC) in connection with June 21 event titled "Patent Standards Workshop". See, notice in the Federal Register, Vol. 76, No. 93, Friday, May 13, 2011, at Pages 28036-28038, and FTC release of May 9, 2011. See also, story titled "FTC to Hold Workshop on Standard Setting and Patents" in TLJ Daily E-Mail Alert No. 2,242, May 16, 2011. See, FTC's June 29, 2011, extension notice.

Monday, August 8

The House will be in recess until Wednesday, September 7.

EXTENDED TO AUGUST 15. Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291. See, notice of extension.

Tuesday, August 9

The Senate will meet in pro forma session at 11:00 AM.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". See, tentative agenda, and story titled "FCC Releases Tentative Agenda for August 9 Meeting" in TLJ Daily e-Mail Alert No. 2,264, July 20, 2011. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [17 pages in PDF] regarding Terrestrial Trunked Radio, or TETRA, technology. The FCC adopted this item on April 18, 2011, and released the text on April 26, 2011. It is FCC 11-63 in WT Docket No. 11-69 and ET Docket No. 09-234. See, notice in the Federal Register, Vol. 76, No. 91, Wednesday, May 11, 2011, at Pages 27296-27300.

Wednesday, August 10

Deadline set by Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) for Groupon to respond the interrogatories propounded in their July 26 letter regarding the July 11 article in the Washington Post titled "Groupon changes privacy policy to collect, share more information". See also, Rep. Markey's release.

Thursday, August 11

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 76, No. 146, Friday, July 29, 2011, at Page 45508. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] regarding whether to make the grandfathered providers permanently eligible for universal service subsidies under the FCC's rural health care program. The FCC adopted this NPRM on June 20, 2011, and released the text on June 21, 2011. It is FCC 11-101 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37307-37309.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-56 C [17 pages in PDF] titled "Recommendation for Key Derivation through Extraction-then-Expansion".

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