9/22. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register (FR) that announces that it will continue to write notorious markets reports that are separate from its Special 301 reports. This FR notice also requests comments to assist it in preparing its second notorious markets report.

The Special 301 process, which was created by the Trade Act of 1974, requires the executive branch to identify countries that fail to protect the intellectual property rights (IPR) and market access of US companies, and take certain actions against those countries. These Special 301 provisions are codified at 19 U.S.C. § 2411, et seq.

Under the Special 301 provisions, the OUSTR identifies other countries that deny adequate and effective protection of IP or deny fair and equitable market access to U.S. artists and industries that rely upon IP protection. It does this primarily in annual reports. However, it also conducts out of cycle reviews (OCRs).

The statute then provides that if the OUSTR determines that "the rights of the United States under any trade agreement are being denied", then the OUSTR "shall take action". For example, it may "impose duties or other import restrictions", or "suspend, withdraw, or prevent the application of, benefits of trade agreement concessions to carry out a trade agreement with the foreign country".

Until 2010, the OUSTR addressed notorious markets, both online and physical, in its Special 301 reports. Then, it determined to write an additional report devoted solely to notorious markets outside of the US. See, story titled "OUSTR Announces Separate Notorious Markets Process" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

The OUSTR treats these notorious markets reviews as OCRs.

The just published FR notice states that "Through the Notorious Markets List, the United States encourages the responsible authorities to step up efforts to combat piracy and counterfeiting in these and similar markets." See, FR, Vol. 76, No. 184, Thursday, September 22, 2011, at Pages 58854-58855.

The OUSTR seeks comments on both physical and virtual markets, located outside of the US, "that have been the subject of enforcement action or that may merit further investigation for possible intellectual property rights infringements, or both".

The deadline to submit comments is October 26, 2011.

9/21. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) and National Telecommunications and Information Administration (NTIA), and the Department of Homeland Security (DHS), published a notice in the Federal Register (FR) that requests comments regarding creating a "voluntary" code for internet access service providers to follow regarding the detection, notification and mitigation of botnets.

This notice is directed primarily at companies that "provide direct service to end-users on residential broadband networks". Although, it asks whether the scope should be expanded.

Botnet is a slang term of recent origin derived from the words robot network. It is used to describe a collection of software robots that reside on a collection of compromised computers, almost always without the authority or knowledge of the owners or operators, that are controlled remotely for various nefarious purposes. The compromised computers are often referred to as zombies.

The purposes for forming botnets include sending spam, running denial of service attacks, committing click fraud, and infecting computers with spyware. Botnet based spam can be used for less harmful purposes, such as marketing, or for more harmful purposes, such as pump and dump securities fraud, theft of personal and financial information to commit further crimes, and various consumer fraud schemes. Also, Botnet operators sometimes lease spamming capacity to others.

The just released notice states that this code would be for internet access service providers, which have "contact information for the end-user and a pre-existing relationship", to detect "likely end-user security" problems, and then "inform the Internet user of the steps the user can take to address the problem".

The notice states that "one suggestion has been to provide companies that take action with certain types of liability protection".

However, neither the DOC nor the DHS have the authority to create such limitations on liability.

The notice also addresses possible ways to provide assistance to customers, at no charge, including through a government entity.

The notice propounds 30 questions, many of which have multiple parts. It asks, for example, "What existing practices are most effective in helping to identify and mitigate botnet infections?" It also asks about identification systems that generate false positives.

It also asks, "Upon discovering that a consumer's computer or device is likely infected by a botnet, should an ISP or other private entity be encouraged to contact the consumer to offer online support services for the prevention and mitigation of botnets? If so, how could support services be made available?" It also asks about the likelihood of fraudulent notifications.

It also asks about expanding the detection and notification regime to include "operating system vendors, search engines, security software vendors".

Cutting Off Service to Customers. On December 13, 2010 the Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) adopted a report [31 pages in PDF] titled "Internet Service Provider (ISP) Network Protection Practices". It proposed 24 "best practices" that service providers "should voluntarily undertake to address the botnet problem on residential broadband networks".

The FCC's CSRIC proposed that one practice should be for service providers to "temporarily quarantine a subscriber account or device if a compromised device is detected on the subscribers' network and the network device is actively transmitting malicious traffic". Such cutting off of service could be either "immediate", or after "attempts to notify the customer of the problem".

The just released DOC/DHS FR notice asks, "Once a botnet infection has been identified and the end-user does not respond to notification or follow up on mitigating measures, what other steps should the private sector consider? What type of consent should the provider obtain from the end-user? Who should be responsible for considering and determining further steps?"

It also asks, "Are private entities declining to act to prevent or mitigate botnets because of concerns that, for example, they may be liable to customers who are not notified? If so, how can those concerns be addressed?"

The deadline to submit comments is 5:00 PM on November 4, 2011. See, Federal Register, Vol. 76, No. 183, Wednesday, September 21, 2011, at Pages 58466-58469.

9/22. The Wall Street Journal (WSJ) published an article by Shira Ovide on September 21, 2011, titled "Sprint CEO: Telecom Mergers Are Bad! (Except for Ours)". (Parentheses in original.)

Sprint CEO Dan Hesse, who spoke at a Goldman Sachs conference in New York City, is quoted in this article. The WSJ reports that Hesse stated that "I don’t believe that what the DOJ said in any way, not even a little bit, should be viewed as we want to keep four [major telecom carriers]". Also, "My view is [the DOJ] would look at other consolidation very differently."

Jim Cicconi, AT&T's Senior EVP for External and Legislative Affairs, responded in a September 22 release that "The CEO of Sprint said the Department of Justice should block AT&T from merging with T-Mobile, but would have good reasons to instead allow Sprint to purchase them. For months Sprint has spoken disingenuously about their motives for opposing AT&T's merger with T-Mobile. Now, Mr. Hesse's public musings have made their motives much more clear. That they would act in their own economic interest is not surprising. That they would expect the United States Government to be a willing partner certainly is."

9/15. Rep. Ben Quayle (R-AZ) and others introduced HR 2941 [LOC | WW], the "Startup Expansion and Investment Act". This bill would provide an exemption from the reporting requirements of Section 404 of the Sarbanes Oxley Act of 2002 for certain companies with "a total market capitalization for the relevant reporting period of less than $1,000,000,000".

The exemption would only be available for the first ten years after going public. The exempted company would have to disclose to investors in its annual report that it has exercised the exemption. Under current law, ompanies with a total market capitalization of under $75 Million are exempted from the Section 404 reporting requirements.

The "Sarbanes-Oxley Act of 2002" was HR 3763 in the 107th Congress. It is now Public Law No. 107-204. Its main sponsors were former Sen. Paul Sarbanes (D-MD) and former Rep. Mike Oxley (R-OH).

Small publicly traded high tech companies have long complained that Section 404 imposes onerous burdens on them, while providing little benefit to investors.

Also, in 2006 the Government Accountability Office (GAO) released a report [93 pages in PDF] titled "Sarbanes-Oxley Act: Consideration of Key Principles Needed in Addressing Implementation for Smaller Public Companies". See also, story titled "GAO Reports that Section 404 of Sarbanes Oxley Burdens Small Public Companies" in TLJ Daily E-Mail Alert No. 1,366, May 9, 2006.

Rep. Quayle stated in a release that this bill "removes one of the many regulatory hurdles that inhibit many companies from going public. Access to the public capital markets is vital for a company to expand and hire new workers. Removing regulatory burdens results in economic freedom which leads to more economic growth."

The other original cosponsors of the bill are Rep. Ron Paul (R-TX), Rep. Patrick McHenry (R-NC), Rep. Kevin Yoder (R-KS), Rep. Randy Hultgren (R-IL), Rep. Lamar Smith (R-TX), and Rep. Bob Dold (R-IL). It was referred to the House Financial Services Committee (HFSC).

Section 404, which is codified at 15 U.S.C. § 7262, is titled "Management assessment of internal controls". It provides as follows:

(a) RULES REQUIRED- The Commission shall prescribe rules requiring each annual report required by section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) to contain an internal control report, which shall--
   (1) state the responsibility of management for establishing and maintaining an adequate internal control structure and procedures for financial reporting; and
   (2) contain an assessment, as of the end of the most recent fiscal year of the issuer, of the effectiveness of the internal control structure and procedures of the issuer for financial reporting.
(b) INTERNAL CONTROL EVALUATION AND REPORTING- With respect to the internal control assessment required by subsection (a), each registered public accounting firm that prepares or issues the audit report for the issuer shall attest to, and report on, the assessment made by the management of the issuer. An attestation made under this subsection shall be made in accordance with standards for attestation engagements issued or adopted by the Board. Any such attestation shall not be the subject of a separate engagement.

The Securities and Exchange Commission (SEC) adopted rules in 2003.

The massive Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted in 2010, at Section 989G(a), added a new subsection 404(c) that has the effect of exempting companies with sub $75 Million market caps from the reporting requirements of subsections 404(a) and (b).

9/14. Rep. Patrick McHenry (R-NC) introduced HR 2930 [LOC | WW], the "Entrepreneur Access to Capital Act", a bill to amend the federal securities laws to provide for registration exemptions for certain crowdfunded securities, and preemption of state laws. Under this bill crowdfunding means raising $5 Million or less through issuance of securities during one year, and individual investments limited to the lesser of $10,000 or 10% of the investor's annual income. It was referred to the House Financial Services Committee (HFSC).

9/12. Sen. Jon Tester (D-MT) and Sen. Pat Toomey (R-PA) introduced S 1544 [LOC | WW], the "Small Company Capital Formation Act of 2011". The bill would exempt certain small securities offerings (less than $50 Million in 12 months). However, the issuer would still be required to file audited financial statements with the Securities and Exchange Commission (SEC) annually, and the SEC may require the issuer to "electronically file with the Commission and distribute to prospective investors an offering statement, and any related documents". It was referred to the Senate Banking Committee.

9/22. The Board of Directors of Hewlett Packard (HP) named Meg Whitman President and Chief Executive Officer. She replaces Léo Apotheker. See, release.

9/22. Henry Tirri was named EVP and CTO of Nokia. He replaces Richard Green as CTO. See, Nokia release.

9/22. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over the nominations 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).

9/20. The Senate confirmed Judge John Ross to be a Judge of the U.S. District Court for the Eastern District of Missouri. See, Congressional Record, September 20, 2011, at Page S5793.

9/20. The Senate confirmed Timothy Cain to be a Judge of the U.S. District Court for the District of South Carolina by a vote of 99-0. See, Roll Call No. 140, and Congressional Record, September 20, 2011, at Page S5793.

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. 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.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, Vol. 76, No. 183, Wednesday, September 21, 2011, at Page 58513. Location: FCC, Commission Meeting Room, 445 12th St., SW.

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.

9:30 AM - 12:30 PM. Assembly of the Administrative Conference of the United States' Committee on Regulation will hold a meeting regarding international regulatory cooperation. It will consider how the Conference might update its Recommendation 91-1, titled "Federal Agency Cooperation with Foreign Government Regulators", in light of developments in United States government structure, trade agreements, and technology. See, notice in the Federal Register, Vol. 76, No. 171, Friday, September 2, 2011, at Page 54730. Location: Suite 706 South, 1120 20th St., NW.

10:00 AM - 12:00 PM. The Department of State's (DOS) Office of Legal Adviser's (OLA) Office of Private International Law will hold a public meeting regarding the future work of Working Group IV of the United Nations Commission on International Trade Law. Working Group IV addresses international electronic commerce. It will next meet on October 10-14, 2011, in Vienna, Austria. See, notice in the Federal Register, Vol. 76, No. 178, Wednesday, September 14, 2011, at Page 56865. Location: DOS.

5:00 PM. Extended deadline to submit comments to the Department of Energy (DOE) regarding its proposed determination for set-top boxes and network equipment as a covered consumer product under the Energy Policy and Conservation Act, which is codified at 42 U.S.C. § 6291, et seq. See, original notice in the Federal Register, Vol. 76, No. 115, Wednesday, June 15, 2011, at Pages 34914-34918, and extension notice in the Federal Register, Vol. 76, No. 131, Friday, July 8, 2011, at Pages 40285-40286.

The contract between the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Internet Assigned Numbers Authority (IANA) expires. The IANA manages the global coordination of the Domain Name System (DNS) root, internet protocol (IP) addressing, and other IP resources pursuant to this contract.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-133 [24 pages in PDF] titled "Recommendation for Cryptographic Key Generation".

9/21. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the Open Axis Group, Inc., which sets XML standards for the electronic messaging structure for airline system connectivity, filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, Federal Register, Vol. 76, No. 183, Wednesday, September 21, 2011, at Page 58540.

9/21. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a speech at a high school in Washington DC. He said that there is a "digital divide" in broadband internet adoption, and that this is limiting access to education, health care, and employment.

9/16. The Executive Office of the President (EOP) and the Department of Education (DOE) released a statement regarding a program titled "Digital Promise", which is directed at advancing technologies to transform teaching and learning.

9/15. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register that announces updates to the version of the Manual of Regulations and Procedures for Federal Radio Frequency Management with which federal agencies must comply when requesting use of the radio frequency spectrum. See, Federal Register, Vol. 76, No. 179 Thursday, September 15, 2011, Pages 56984-56985.

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