|Court Holds that Importing Cell Phone
Intercept Devices That Do Not Work Is Not a Crime
8/12. The U.S. Court of Appeals (2ndCir) issued its
opinion [28 pages in PDF] in USA v. Robert Simels, a criminal case in which the
Court of Appeals held that importing and possessing electronic surveillance devices, such
as equipment for intercepting cell phone conversations, does not violate
U.S.C. § 2512(1)(a)&(b) if the equipment is "inoperable" in the US.
Simels, a criminal defense attorney, was charged and convicted of numerous counts of
conspiracy to obstruct justice, attempted obstruction of justice, and bribery in connection
with his plans to bribe and intimidate trial witnesses against his client. His client was a
citizen of Guyana who was accused of being the leader of a criminal enterprise that imported
large amounts of cocaine into the US. The client subsequently pled guilty.
This article focuses on just two counts -- importing and possessing
electronic surveillance devices. The devices were laptops and other equipment
used for intercepting cell phone communications. Simels imported them into the
US from Guyana in connection with his defense of his client.
The equipment was capable of intercepting analog phone conversations in Guyana before
digital service replaced analog. The devices were not capable of intercepting cell phone
conversations in the US. Simels asserted that he imported them in connection with presenting
evidence of conversations intercepted in Guyana.
Nevertheless, Simels was charged and convicted under Section 2512, which
provides, in relevant part, as follows:
" (1) ... any person who intentionally--
(a) sends through the mail, or sends or carries in interstate
or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to
know that the design of such device renders it primarily useful for the purpose of the
surreptitious interception of wire, oral, or electronic communications;
(b) manufactures, assembles, possesses, or sells any electronic,
mechanical, or other device, knowing or having reason to know that the design of such device
renders it primarily useful for the purpose of the surreptitious interception of wire, oral,
or electronic communications, and that such device or any component thereof has been or will
be sent through the mail or transported in interstate or foreign commerce;
shall be fined under this title or imprisoned not more than
five years, or both
The Court of Appeals affirmed the judgment of the District Court in all
things except the Section 2512 counts.
"The issue is whether importation and possession of an inoperable device violates
section 2512." The Court of Appeals concluded that, "with respect to electronic
devices, Congress covered only those ``which can be used´´ to intercept communications and
added, as a mens rea requirement, that the device be known to have been designed for the
purpose of surreptitious interception."
This case is USA v. Robert Simels, U.S. Court of Appeals for the 2nd
Circuit, App. Ct. No. 09-5117-cr, an appeal from the U.S. District Court for the
Eastern District of New York, Judge Gleeson presiding. Judge Jon Newman wrote
the opinion of the Court of Appeals, in which Judges Calabresi and Hall joined.
|FCC to Consider AT&T
T-Mobile Merger and AT&T Purchase of Qualcomm Spectrum in Coordinated Manner
8/10. Rick Kaplan, Chief of the Federal
Communications Commission's (FCC) Wireless
Telecommunications Bureau (WTB) sent a
letter to AT&T Mobility Spectrum LLC and Qualcomm Inc. regarding AT&T's
purchase of spectrum licenses from Qualcomm.
On December 20, 2010, the two companies announced that AT&T would purchase spectrum
licenses from Qualcomm for $1,925 Million. AT&T stated in a
release that the spectrum is in the lower 700 MHz band, and "will bolster AT&T's
ability to provide an advanced 4G mobile broadband".
AT&T added that "The spectrum covers more than 300 million people total
nationwide: 12 MHz of Lower 700 MHz D and E block spectrum covers more than 70
million people in five of the top 15 U.S. metropolitan areas -- New York,
Boston, Philadelphia, Los Angeles and San Francisco; 6 MHz of Lower 700 MHz D
block spectrum covers more than 230 million people across the rest of the U.S."
The purchase of Qualcomm spectrum requires FCC approval of the license transfers. Kaplan's
letter discloses that the FCC will not act on the request for some time, and that it will
consider this request along with the AT&T T-Mobile USA merger, which also entails license
Kaplan wrote that these Qualcomm transfers and AT&T's proposed acquisition of T-Mobile
USA "raise a number of related issues, including, but not limited to, questions regarding
AT&T's aggregation of spectrum throughout the nation, particularly in overlapping areas".
"As a result, we have concluded that the best way to determine whether either or both
of the proposed transactions serve the public interest is to consider them in a coordinated
manner at this time, without prejudice to independent treatment at a later date." Kaplan
added in a footnote to this statement that the FCC "is not at this time taking the further
step of formally consolidating the two transactions."
|President Issues Another Routine Emergency
Declaration to Continue Export Regulation Regime
8/12. President Obama signed and released another
notice -- the eleventh in a series of notices -- titled "Continuation of
Emergency Regarding Export Control Regulations".
President Obama, and before him, President Bush, have routinely issued an emergency notice every
year at about this time that maintains in effect the export regulation regime.
The "Export Administration Act" expired in 2001. Some members of the House and
Senate worked on enacting replacement legislation in 2001 and 2002. However, no replacement
bill was enacted, and there has been little legislative activity since on this subject.
Meanwhile, the Department of Commerce's (DOC) Bureau of
Industry and Security (BIS), which was formerly named the Bureau of Export Administration
(BXA), continues to revise and enforce implementing regulations for dual use items, which
include many information and communications technology products. These regulations pertain
to, among other things, exports and "deemed exports" of computers, software, and
encryption products. These regulations also regulate employment in some situations.
The export control regime is outdated, complex, burdensome, and harms the competitiveness
of some US companies. Moreover, the Obama administration is working towards reforming the
system, administratively rather than legislatively. See, story titled "Obama Addresses
Export Control Reform Process"
in TLJ Daily E-Mail
Alert No. 2,185, December 21, 2011.
The just released notice states in full that "On August 17, 2001, consistent with the
authority provided to the President under the International Emergency Economic Powers Act (50
U.S.C. 1701 et seq.), the President issued Executive Order 13222. In that order, he declared
a national emergency with respect to the unusual and extraordinary threat to the national
security, foreign policy, and economy of the United States in light of the expiration of the
Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 et seq.). Because the
Export Administration Act has not been renewed by the Congress, the national emergency
declared on August 17, 2001, must continue in effect beyond August 17, 2011. Therefore, in
accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am
continuing for 1 year the national emergency declared in Executive Order 13222. This notice
shall be published in the Federal Register and transmitted to the Congress."
8/11. Grant Sieffert, head of the
Telecommunications Industry Association (TIA), sent a
letter to the Federal Communications Commission (FCC) regarding its review
of the merger of AT&T and T-Mobile USA. Seiffert wrote that "Expanded
broadband deployment, more efficient use of scarce wireless spectrum, and
enhanced investment in the information and communications technology (``ICT´´)
sector are of critical importance to the nation’s future, and should be given
substantial weight in the Commission’s review of the transaction."
8/11. The Federal Communications Commission (FCC) filed its
brief [139 pages in PDF] with the U.S. Court of
Appeals (DCCir) in Rural Cellular Association v. FCC, a petition for review of the
[18 pages in PDF] amending FCC rules to reclaim high cost universal service support
surrendered by a competitive eligible telecommunications carrier (ETC) when it relinquishes
ETC status in a particular state. The FCC adopted and released this order on December 30, 2010.
This order is FCC 10-205 in WC Docket No. 05-337 and CC Docket No. 96-45. See also, story
titled "FCC Releases High Cost USF Order" in
TLJ Daily E-Mail Alert No.
2,191, January 3, 2011. This case is Rural Cellular Association and Universal Service
for America Coalition v. FCC and USA, U.S. Court of Appeals for the District of Columbia,
App. Ct. No. 11-1094.
|This issue contains the following items:
• Court Holds that Importing Cell Phone Intercept Devices That Do Not Work Is Not a Crime
• FCC to Consider AT&T T-Mobile Merger and AT&T Purchase of Qualcomm Spectrum in
• President Issues Another Routine Emergency Declaration to Continue Export Regulation
• More News
New items are highlighted in
|Saturday, August 13
1:00 - 4:00 PM. The Federal Communications
Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Summer
Rooftop BBQ and Pool Party". The price to attend is $15. For more information, contact
Justin Faulb at faulb at lojlaw dot com or Brendan Carr at BCarr at wileyrein dot com.
|Monday, August 15
The House will not meet. It is in recess until 2:00 PM on
September 7. However, it will hold pro forma sessions twice per week until then.
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.
11:00 AM - 12:30 PM. The
Heritage Foundation (HF) will host a
panel discussion titled "National EMP Recognition Day: The Threat That
Can't Be Ingnored". The speakers will be
Rep. Roscoe Bartlett (R-MD), Peter
Pry (EMPact America), Frank Gafney (Center for Security Studies), Drew Miller,
and James Carafano (HF). This event is free and open to the public. See,
notice. Location: HF, 214
Massachusetts Ave., NE.
Deadline to submit reply comments to the Federal Communications Commission
(FCC) regarding the report submitted to the FCC on June 30, 2011, by the technical working
group co-chaired by LightSquared and the
U.S. Global Positioning System Industry Council (USGIC). See, FCC International Bureau's (IB)
June 30, 2011. It is DA 11-1133 in DA 11-1133. See also report,
and part 7.
EXTENDED FROM AUGUST 8. Extended 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.
Deadline to submit comments to the
National Institute of Standards and Technology's (NIST)
Computer Security Division (CSD) regarding its draft
NIST IR-7275 Rev. 4 [77 pages in PDF] titled "Specification for the Extensible
Configuration Checklist Description Format (XCCDF) Version 1.2".
|Tuesday, August 16
The House will meet in pro forma session at 11:30 AM.
The Senate will meet in pro forma session at 11:00 AM.
|Wednesday, August 17
12:30 - 1:30 PM. The American
Bar Association (ABA) will host a webcast panel discussion titled "Tax Aspects
of Technology Transactions". The speakers will be Roger Royse (Royse Law Firm) and
Kenneth Appleby (Foley & Lardner). Prices vary. CLE credits. See,
|Thursday, August 18
TIME? The American Bar
Association (ABA) will host a webcast panel discussion titled "LinkedIn for
1:00 PM. The US Telecom will host
a webinar titled "Navigating the Rising Tide of Cyber Crime". The
speaker will be Tom Dotson (CIO of SureWest). Free. See,
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its
Notice of Proposed
Rulemaking (NPRM) [36 pages in PDF] regarding removing the International Settlements Policy
(ISP) from all U.S. international routes except Cuba. The FCC adopted this NPRM on May 12,
2011, and released the text on May 13, 2011. This item is FCC 11-75 in IB Docket No. 11-80.
See, notice in
the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42625-42631.
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its
Notice of Proposed Rulemaking (NPRM) [82 pages in PDF] regarding reporting requirements
for providers of international telecommunications services. The FCC adopted this NPRM on May
12, 2011, and released the text on May 13, 2011. This item is FCC 11-76 in IB Docket No.
04-112. See, notice
in the Federal Register, Vol. 76, No. 138, Tuesday, July 19, 2011, at Pages 42613-42625.
|Friday, August 19
The House will meet in pro forma session at 1:00 PM.
The Senate will meet in pro forma session at 10:00 AM.
1:00 - 2:30 PM. The
American Bar Association (ABA) will host a webcast panel discussion titled
"Ownership of Digital Media and Electronic Privacy". The speakers will be
Ben Kleinman (Manatt Phelps),
Sharra Brockman (Verv),
Eric Crusius (Centre Law
Group), and Paul Roberts (Hogan Lovells).
Prices vary. CLE credits. See,
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