9/21. The House Judiciary Committee (HJC) approved HR 2885 [LOC | WW | PDF], the "Legal Workforce Act", a bill to make the federal government's E-Verify program mandatory, with minor amendments.

The HJC approved a short amendment offered by Rep. Lamar Smith (R-TX), the Chairman of the HJC, and sponsor of the bill. It tweaks the timing of the employer's attestation regarding new employees. The vote was 15-8.

The E-Verify regime includes a requirement that before "hiring, recruiting, or referring an individual for employment" the employer must attest under penalty of perjury that it has verified that the individual is not an unauthorized alien by complying with the verification procedures. The bill as introduced provides that this attestation must take place "On the date of hire". The amendment changes this to "During the verification period".

The HJC approved an amendment offered by Rep. Howard Berman (D-CA) that strikes the following language from the bill as introduced: "An individual shall not be considered a new hire subject to verification under this paragraph if the indi1vidual is engaged in seasonal agricultural employment and is returning to work for an employer that previously employed the individual."

The E-Verify program is an information technology (IT) based national identification system, one use of which is to transfer responsibility for enforcing immigration law to employers. It would require all employers to participate in a Department of Homeland Security (DHS) run program that is based upon accessing electronic databases that include names and social security numbers (SSNs).

The vote on final passage was 22-13.

This bill is premised upon the assumptions that the government is capable of creating an IT based system that can enable employers to ascertain whether job applicants are eligible to be employed in the U.S., and that by criminalizing hiring ineligible workers, employers will not hire illegal aliens, and they will therefore have little incentive to illegally enter into or stay in the US.

There is already a federal E-Verify program; however, employer participation is voluntary.

9/19. The USA, by the Department of Justice's (DOJ) Antitrust Division, filed the original complaint seeking to block AT&T's acquisition of T-Mobile USA on August 31, 2011. On September 16, the USA and seven states filed an amended complaint that adds the state parties.

Sprint Nextel filed a separate complaint on September 6. See, story titled "Sprint Files Complaint to Block AT&T T-Mobile USA Transaction" in TLJ Daily E-Mail Alert No. 2,300, September 13, 2011. Cellular South filed a separate complaint on September 19.

Also, on September 15, the USA filed an unopposed motion to enter a protective order regarding confidentiality. See also, proposed protective order [13 pages in PDF].

The USA and seven states filed the amended complaint [34 pages in PDF] in the U.S. District Court (DC) on September 16. The original complaint, filed on August 31, named only the USA as plaintiff. This amended complaint adds the states of New York, Washington, California, Illinois, Massachusetts, Ohio, and Pennsylvania. This case is USA, et al. v. AT&T, et al., U.S. District Court for the District of Columbia, D.C. No. 11-01560. See also, story titled "DOJ Files Complaint to Block AT&T Acquisition of T-Mobile USA" in TLJ Daily E-Mail Alert No. 2,298, August 31, 2011.

On September 19, Cellular South and Corr Wireless Communications filed a complaint in the U.S. District Court (DC) against AT&T, AT&T Mobility, T-Mobile USA, and Deutsche Telekom that seeks an injunction against AT&T's acquisition of T-Mobile USA on the grounds that it would would substantially lessen competition in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18.

The complaint states that "AT&T already enjoys significant market power over all aspects of the national wireless market and, as a result, wields significant influence over the purchase of wireless devices generally (including cell phones, smartphones and tablets) as well as over the provision of roaming services required by regional carriers, such as Cellular South." (Parentheses in original.)

It continues that "The proposed merger will allow AT&T to increase this influence by eliminating T-Mobile as an independent source of demand for wireless devices and an independent roaming partner. The resulting competitive harm will be felt by regional carriers, including Cellular South, who will find it harder to secure both wireless devices at competitive prices and times and nationwide roaming."

It adds that "The merger of AT&T and T-Mobile is anticompetitive, and will result in consumers facing higher prices, less innovation, fewer choices, and reduced competition."

9/15. The Senate Judiciary Committee (SJC) held an executive business meeting at which it began its consideration of S 1151 [LOC | WW], the "Personal Data Privacy and Security Act of 2011".

It also held over consideration of S 1408 [LOC | WW], the "Data Breach Notification Act", and S 1535 [LOC | WW], the "Personal Data Protection and Breach Accountability Act of 2011".

All three bills are again on the agenda for the SJC executive business meeting on September 22, 2011.

Also, the Senate Commerce Committee (SCC) announced that it would mark up S 1207 [LOC | WW], the "Data Security and Breach Notification Act of 2011" at its executive session on September 21, 2011. However, the SCC then postponed that meeting.

S 1151 would create a federal data broker regulation regime, and a data security regime. It would create a federal data breach notification regime, and criminalize certain acts of failure to disclose data breaches. It would also amend the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030, to include conspiracy. See, story titled "Senate Judiciary Committee to Take Up Data Privacy, Security and Breach Bills" in TLJ Daily E-Mail Alert No. 2,299, September 1, 2011.

The SJC approved by unanimous consent an amendment in the nature of a substitute [65 pages in PDF] on September 15 offered by Sen. Patrick Leahy (D-VT). See, Sen. Leahy's summary [6 pages in PDF].

The SJC also approved by unanimous consent a second amendment [13 pages in PDF] offered by Sen. Leahy that further amends the substitute. This amendment, among other things, takes away from the Federal Trade Commission (FTC) authority to amend the definition of sensitive personally identifiable information. See, Sen. Leahy's summary [2 pages in PDF].

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated at the meeting that "I'm concerned that given over 9 percent unemployment and a renewed focus in Washington on creating jobs, this legislation may have the opposite effect. While we've focused on protecting information, we’ve not focused on protecting jobs. This bill will likely drive up costs through even more burdensome regulations. A company that hasn't even suffered a breach may find itself unable to afford compliance with this bill's new requirements. Small businesses, which create most of the jobs in this country, may end up closing, or at least not hiring, when they've done nothing wrong. We need to be smart with new regulatory burdens to ensure that consumers are truly protected, while fostering economic growth and not stifling it."

He added that the data breach notice "should not include burdensome requirements where there is little or no risk of identity theft." Also, "The enforcement and liability provisions shouldn’t create the potential for abuse from overzealous prosecution.  The provisions in this bill run the risk of abuse and inconsistent enforcement. These and other issues need to be resolved."

The SJC also approved by voice vote an amendment [2 pages in PDF] offered by Sen. Grassley and Sen. Al Franken (D-MN) that would amend the CFAA to provide that violation of the CFAA cannot be based solely upon violation of the terms of service of a web site.

The CFAA contains several criminal and civil prohibitions, one element of which is "exceeds authorized access". The CFAA currently provides that "exceeds authorized access" means "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter".

The Grassley Franken amendment would change this definition to the following: "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter, but does not include access in violation of a contractual obligation or agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or non-government employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized". The amendment adds the language shown in red.

The Department of Justice (DOJ) has construed Section 1030 to reach cyber bullies who violate the terms of service (TOS) of a social networking web site, and those who make automated online ticket purchases from Ticketmaster in violation of its TOS.

See, stories titled "Lori Drew Pleads Not Guilty in Section 1030 Case" in TLJ Daily E-Mail Alert No. 1,784, June 23, 2008, "Law Professors Argue for Dismissal of MySpace Section 1030 Prosecution" in TLJ Daily E-Mail Alert No. 1,810, August 11, 2008, "Jury Returns Guilty Verdict in Lori Drew Case" in TLJ Daily E-Mail Alert No. 1,865, December 2, 2008, and "Associate AG Perrelli Discusses Cyber Bullying" in TLJ Daily E-Mail Alert No. 2,123, August 11, 2010.

Sen. Grassley stated that "I think many Americans would be shocked to hear that every day, they may be violating federal criminal law without knowing it, simply by violating website service agreements or employee computer access agreements."

9/15. The Federal Trade Commission (FTC) released a notice [122 pages in PDF], that will also be published in the Federal Register, that announces, recites, describes, and requests comments on, proposed revisions to its rules that implement the Children's Online Privacy Protection Act (COPPA).

The COPPA), which is codified at 15 U.S.C. §§ 6501-6506, bans operators of web sites and online services that are directed to children from collecting information from children under thirteen without parental consent.

The COPPA was S 2326 in the 105th Congress. S 2326 was enacted into law as part of a large omnibus appropriations bill in October of 1998. See, TLJ story titled "Internet and Tech Bills Become Law", October 22, 1998. See also, TLJ web page titled "Children's Online Privacy Protection Act" (1998).

The FTC adopted implementing rules in 2000, and retained them in another proceeding in 2005.

Comments are due by November 28, 2011. As of the September 21, 2011 issue of the Federal Register, the FTC had not yet published this notice.

The FTC proposes, among other things, to expand the definition of "Personally Identifiable Information" to include geolocation information, tracking cookies used for behavioral advertising, and audio and video filed that contain a child's image or voice.

The FTC also proposes to change the definition of "collection" to allow web site operators to allow children to participate in interactive communities, without parental consent, so long as the operators take reasonable measures to delete all or virtually all children's personal information before it is made public.

The FTC also proposes new rules for data minimization and deletion.

Sen. John Rockefeller (D-WV) stated in a release that "I commend the FTC for proposing a much needed update to the COPPA Rule". He added that "This important children's protection law must meet the challenges of the 21st century. COPPA was passed over a decade ago, and the online and technological landscape has changed considerably since then. I think everyone would agree that we need to do more to protect our children's online privacy, and today's proposal helps in that effort."

9/15. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved by voice votes the nominations of Edgardo Ramos (to be a Judge of the USDC/SDNY), Andrew Carter (USDC/SDNY), Jesse Furman (USDC/SDNY), and Rodney Gilstrap (USDC/EDTex).

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The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

The Senate will meet at 9:30 AM.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "The Next IT Revolution?: Cloud Computing Opportunities and Challenges". The witnesses will be Michael Capellas (Ch/CEO of Virtual Computing Environment Company), Dan Reed (Microsoft), Nick Combs (EMC Corporation), and David McClure (General Services Administration). See, notice. Location: Room 2318, Rayburn Building.

10:15 AM. The House Judiciary Committee (HJC) is scheduled to mark up HR 2885 [LOC | WW | PDF], the "Legal Workforce Act", a bill to make the federal government's E-Verify program mandatory. See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Addressing Intellectual Property Issues in Entertainment Transactions". The speakers will be Kirk Schroder (Schroder Fidlow) and Kenneth Kaufman (Manatt Phelps). Prices vary. CLE credits. See, notice.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host a brown bag lunch titled "Recent Federal Tariff Developments". The speakers will be Audrey Glenn (Compliance Partners), Tamara Preiss (Verizon), and Chip Yorkgitis (Kelley Drye). Location: Wiltshire & Grannis, 11th floor, 1200 18th St., NW.

2:00 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Power of Google: Serving Consumers or Threatening Competition". The witnesses will be Eric Schmidt (Google), Jeff Katz (Nextag), Jeremy Stoppelman (Yelp), Thomas Barnett (Covington & Burling), and Susan Creighton (Wilson Sonsini). Sen. Herb Kohl (D-WI) will preside. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

Day two of a three day closed event hosted by the New America Foundation (NAF) titled "New ICTs + New Media = New Democracy? Communications Policy and Public Life in the Age of Broadband". The NAF states that attendance is by "invitation only". See, notice. Location: NAF, Suite 400, 1899 L St., NW.

12:00 NOON. Deadline to submit notifications of intent to testify at, and prepared testimony for, the Office of the U.S. Trade Representative (OUSTR) hearing on October 5, 2011, to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, Vol. 76, No. 156, Friday, August 12, 2011, at Pages 50286-50287. See also, story titled "OUSTR to Hold Hearing on PRC Compliance with WTO Commitments" in TLJ Daily E-Mail Alert No. 2,290, August 15, 2011.

1:00 PM. The House Foreign Affairs Committee (HFAC) Subcommittee on Asia and the Pacific will hold a hearing titled "China's Monopoly on Rare Earths: Implications for U.S. Foreign and Security Policy". The witnesses will be Mark Smith (P/CEO of Molycorp Minerals) and Robert Strahs (VP/GM of Arnold Magnetic Technologies). See, notice. Location: Room 2200, Rayburn Building.

2:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "Oversight of the Networking and Information Technology Research and Development Program and Priorities for the Future". See, notice. Location: Room 2318, Rayburn Building.

POSTPONED. 2:30 PM. The Senate Commerce Committee (SCC) will hold an executive session to mark up numerous bills, including S 1207 [LOC | WW], the "Data Security and Breach Notification Act of 2011". See, notice. Location: Room 253, Russell Building.

5:00 PM. Deadline to submit applications to participate in the National Science Foundation's (NSF) conference on October 21, 2011, titled "Assumption Buster Workshop: Current Implementations of Cloud Computing Indicate a New Approach to Security". See, notice in the Federal Register, Vol. 76, No. 162, Monday, August 22, 2011, at Pages 52353-52354.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda  includes consideration of Judge Evan Wallach (to be a Judge of the U.S. Court of Appeals Federal Circuit), Dana Christensen (USDC/DMont), Cathy Bencivengo (USDC/SDCal), Gina Marie Groh (USDC/NDWV), and Margo Brodie (USDC/EDNY). The agenda also includes consideration of S 1151 [LOC | WW], the "Personal Data Privacy and Security Act of 2011", S 1408 [LOC | WW], the "Data Breach Notification Act", and S 1535 [LOC | WW], the "Personal Data Protection and Breach Accountability Act of 2011". See, story titled "Senate Judiciary Committee to Take Up Data Privacy, Security and Breach Bills" in TLJ Daily E-Mail Alert No. 2,299, September 1, 2011. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

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

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications and Mass Media Committees will host a brown bag lunch titled "Preparing for the November 9th National EAS Test" and "Upgrading to Common Alerting Protocol Compliance". The speakers will be Tom Beers (Chief of the FCC's Public Safety and Homeland Security Bureau's, Policy and Licensing Division), Gregory Cooke (Associate Chief of the FCC/PSHSB/PLD), Manny Centeno ( EAS National Test Project Manager, FEMA), Ed Czarnecki (Monroe Electronics Inc.), Kelly Williams (NAB), Frank Jazzo (Fletcher Heald & Hildreth), Scott Tollefsen (Critical Alert Systems, LLC), and Zenji Nakazawa (FCC). For more information, contact Larry Walke at lwalke at nab dot org. Location: National Association of Broadcasters, 1771 N St., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold an open hearing on the nomination of Charles McCullough to be Inspector General for the Intelligence Community. See, notice. Location: Room 216, Hart Building.

3:00 - 5:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee Workgroup on Implementation will meet. See, notice in the Federal Register, Vol. 76, No. 158, Tuesday, August 16, 2011, at Page 50735-64. This event is open to the public via teleconference and webcast only.

Day three of a three day closed event hosted by the New America Foundation (NAF) titled "New ICTs + New Media = New Democracy? Communications Policy and Public Life in the Age of Broadband". The NAF states that attendance is by "invitation only". See, notice. Location: NAF, Suite 400, 1899 L St., NW.

The House may meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

9:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council will meet. See, notice in the Federal Register, Vol. 76, No. 169, Wednesday, August 31, 2011, at Pages 54234-54235. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

9:30 AM. The House Foreign Affairs Committee (HFAC) will hold a hearing titled "Job Creation Made Easy:
The Colombia, Panama, and South Korea Free Trade Agreements". See, notice. Location: Room 2172, Rayburn Building.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Measuring Broadband Performance". The speakers will be Peter Sevcik (NetForecast) and Richard Bennett (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Meet the FCBA President -- A Mentoring Event with Yaron Dori". For more information contact Mark Brennan at mark dot brennan at hoganlovells dot com or Brendan Carr at bcarr at wileyrein dot com. Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

2:00 - 4:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) Privacy & Security Tiger Team will meet. See, notice in the Federal Register, Vol. 76, No. 158, Tuesday, August 16, 2011, at Page 50735-64. This event is open to the public via teleconference and webcast only.

EXTENDED FROM SEPTEMBER 12. Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its proposal to revise the Trademark Rules of Practice and the Rules of Practice for Filings Pursuant to the Madrid Protocol regarding the requirements for specimens and for affidavits or declarations of continued use or excusable nonuse in trademark cases. See, original notice in the Federal Register, Vol. 76, No. 133, Tuesday, July 12, 2011, at Pages 40839-40844. See also, extension notice in the Federal Register, Vol. 76, No. 175, Friday, September 9, 2011, at Pages 55841-55842.

Opening conference of the Supreme Court. See, calendar. Closed.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, Vol. 76, No. 156, Friday, August 12, 2011, at Pages 50286-50287. See also, story titled "OUSTR to Hold Hearing on PRC Compliance with WTO Commitments" in TLJ Daily E-Mail Alert No. 2,290, August 15, 2011.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will hold a meeting titled "Meet the Media Bureau Chief William Lake and Staff". The FCBA states that this is an FCBA event. Location: Davis Wright Tremaine, Suite 800, 1919 Pennsylvania Ave., NW.

12:15 – 1:45 PM. The Federal Communications Bar Association's (FCBA) Legislative Committee will host a brown bag lunch titled "Curious about how people get jobs on the Hill?". The speakers will be current and former Congressional staffers. Reporters will likely be barred from attending. Location?

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Cloud Computing Demystified: Is It a Revolution or Evolution?". The speakers will be Stephen Hollman (Business & Technology Law Group), David Cearley (Gartner, Inc.), David McClure (GSA, Office of Citizen Services and Innovative Technologies), Frank Morrow (Microsoft), Edith Ramirez (FTC Commissioner), John Tomaszewski (TRUSTe). Prices vary. CLE credits. See, notice.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Access to Government Committee will host a brown bag lunch at which representatives of the FCC will speak about the FCC's recent web site redesign. Location: Sidley Austin, 6th floor, 1501 K St., NW.

2:00 - 3:30 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, notice. Location: FCC, Room 6B516 (6th floor South Conference Room), 445 12th St., SW.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet. See, notice in the Federal Register, Vol. 76, No. 158, Tuesday, August 16, 2011, at Page 50735-64. Location: Washington Marriott Hotel, 1221 22nd St., NW.