5/9. Sen. Richard Blumenthal (D-CT) and other Senate Democrats introduced S 3074 [LOC | WW], the "Password Protection Act of 2012", a bill that pertains to employers' practice of demanding and using employees' personal passwords.

On the same day, Rep. Martin Heinrich (D-NM) and other House Democrats introduced HR 5684 [LOC | WW], the companion bill in the House.

The Senate bill was referred to the Senate Health, Education, Labor, and Pensions Committee. The House bill was referred to the House Judiciary Committee (HJC).

The list of sponsors of each bill is notable for the absence of Republicans. The list for the House bill is also notable for its lack of members of the HJC.

These two bill are substantially identical. They would amend 18 U.S.C. § 1030, the "Computer Fraud and Abuse Act", which is the primary federal anti-hacking statute.

Subsection 1030(a) currently contains seven numbered prohibitions, some of which contain multiple parts. The just introduced bills would add an eighth prohibition. An employer would be prohibited from demanding that its employees or prospective employees disclose passwords or other information that would enable access to their accounts at social networking websites, but only if the employer engages in monitoring for employment related purposes.

The bill is directed at employees' use of social networking sites and e-mail sites. Although, it does not use the terms "social networking" or "email". Moreover, it would also provide employees some privacy in using web sites that enable the unauthorized sharing of copyrighted works, and pornography.

The original cosponsors of the bill are Sen. Charles Schumer (D-NY), Sen. Amy Klobuchar (D-MN), Sen. Ron Wyden (D-OR), Sen. Jeanne Shaheen (D-NH), Sen. Daniel Akaka (D-AK), and Sen. Bernie Sanders (D-VT).

The original cosponsors of the House bill are Rep. Ed Perlmutter (D-CO), Rep. Bobby Rush (D-IL), Rep. Jim Cooper (D-TN), Rep. Lois Capps (D-CA), Rep. Larry Kissell (D-NC), Rep. David Cicilline (D-RI), Del. Eleanor Norton (D-DC), Rep. John Lewis (D-GA), Rep. Ben Ray Lujan (D-NM), Rep. Steve Rothman (D-NJ), and Rep. Adam Schiff (D-CA).

Sen. Blumenthal stated in a release that "Employers seeking access to passwords or confidential information on social networks, email accounts, or other protected Internet services is an unreasonable and intolerable invasion of privacy ... With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information."

Sen. Wyden stated in this release that "Online privacy lives and dies with your password, and being forced to surrender this level of protection to an employer for fear of retribution is bullying, plain and simple. The online password protects your social life, personal information and often your bank accounts and no employer should be able to demand that this information be turned over".

Sen. Klobuchar stated that "No person should be forced to reveal their private online communications just to get a job. This is another example of making sure our laws keep up with advances in technology and that fundamental values like the right to privacy are protected."

However, the Senators' rhetoric is broader than the actual reach of the bill. The bill would not reach all employers. It would not prohibit demanding and using employees' personal passwords. It would only prohibit this activity if used for certain enumerated purposes.

As amended by S 3074 and HR 5684, the statute would provide as follows:

"(a) Whoever ... (8) acting as an employer, knowingly and intentionally---

(A) for the purposes of employing, promoting, or terminating employment, compels or coerces any person to authorize access, such as by providing a password or similar information through which a computer may be accessed, to a protected computer that is not the employer’s protected computer, and thereby obtains information from such protected computer; or

(B) discharges, disciplines, discriminates against in any manner, or threatens to take any such action against, any person---

(i) for failing to authorize access described in subparagraph (A) to a protected computer that is not the employer’s protected computer; or

(ii) who has filed any complaint or instituted or caused to be instituted any proceeding under or related to this paragraph, or has testified or is about to testify in any such proceeding;

shall be punished as provided in subsection (c) of this section."

These bills do not contain a complete ban on demanding passwords. Rather, they would merely ban demanding passwords, accessing the web sites, and using material found for employment related purposes, such as in deciding whether or not to employ, fire, promote, or discipline someone.

Nothing in these bills would subject an employer to prosecution who demands passwords, thereby obtains information, and reports criminal violations to state or federal prosecutors, but does not take employment related action itself.

For example, if these bills were enacted, an employer could demand employees' personal passwords; it could monitor their use of social networking sites and email services; and, if it found evidence of criminal copyright infringement, criminal theft of the employer's trade secrets, or other crimes, it could report such evidence to prosecutors; provided that this employer does not fire, discipline, or take employment related action itself against a monitored employee.

That is, this bill would leave employers free to snoop for the FBI, IRS, or any prosecutor, but not for its own personnel management purposes.

This follows from the language of the proposed new prohibition. However, this is restated in an express exemption. The bills provide that "Notwithstanding subsection (a)(8), the prohibition in such subsection shall not apply to an employer’s actions if ... the employer discharges or otherwise disciplines an individual for good cause and an activity protected under subsection (a)(8) is not a motivating factor for the discharge or discipline of the individual".

These bills would not take away an employer's ability to demand and use employees' personal passwords. It would only take away the employer's ability to use acquired information for certain purposes. However, this would decrease the incentives for demanding passwords, and monitoring web sites. And therefore, this bill would decrease the frequency with which employers would demand passwords and monitor web sites.

The bill also builds in additional exceptions. For example, the definition of "employer" references another statute, which defines "employer" to mean only an employer "engaged in an industry affecting commerce who has fifteen or more employees". The words "commerce" and "fifteen" would each exclude many actual employers.

The bills also include express exemptions for certain government employers.

See also, stories titled "Maryland Senate Passes Bill to Protect Employee Passwords for Social Media" in TLJ Daily E-Mail Alert No. 2,370, April 13, 2012, and "House Rejects Motion Pertaining to Employer Demands for Employee Passwords for Social Networking Sites" in TLJ Daily E-Mail Alert No. 2,361, March 30, 2012.

5/14. The Senate confirmed Ajit Pai to be an FCC Commissioner for a term of five years from July 1, 2011, and Jessica Rosenworcel to be an FCC Commissioner for a term of five years from July 1, 2010. See, Congressional Record, May 7, 2012, at Page 2931. See also, statement by FCC Chairman Julius Genachowski, statement by Commissioner Robert McDowell, and statement by Commissioner Mignon Clyburn.

McDowell wrote that the important matters facing the FCC include "implementation of the new incentive auction legislation, finally putting the power of unlicenced use of the TV ``White Spaces´´ into consumers’ hands, adopting sensible universal service contribution reform, modernizing our media ownership rules to reflect the competitive marketplace of the Digital Age, important transactions requiring expeditious review, and much, much more."

The two were sworn in on May 14. See, statement by Rosenworcel and statement by Pai.

Rai announced staff appointments in a May 14 release. Matthew Berry is his Chief of Staff. He was previously a partner in the Washington DC office of the law firm of Patton Boggs. Before that, he was the FCC's Deputy General Counsel and General Counsel during the tenure of former Chairman Kevin Martin. See also, story titled "Matthew Berry Joins FCC" in TLJ Daily E-Mail Alert No. 1,160, June 23, 2005.

Courtney Reinhard will be Legal Advisor to Pai for wireless, international, and public safety issues. She works for the House Budget Committee (HCC) on spectrum auctions, public safety communications, broadband grants, and the Universal Service Fund. She has also worked for the House Commerce Committee (HCC), Sen. Jim DeMint (R-SC), Sen. Sam Brownback (R-KS), and Rep. John Shimkus (R-IL).

Gene Fullano will be acting Legal Advisor to Pai. He is Associate Bureau Chief of the FCC's Public Safety and Homeland Security Bureau.

Lori Alexiou will be Pai's Confidential Assistant. She held this position for former Chairman Kevin Martin and former Commissioner Meridith Baker.

5/7. The Senate confirmed Jacqueline Nguyen to be a Judge of the U.S. Court of Appeals (9thCir) by a vote of 91-3. See, Roll Call No. 88. See also, Congressional Record, May 7, 2012, at Page 2931.

President Obama nominated her on September 22, 2012. See, White House news office release and release. The President appointed her Judge of the U.S. District Court for the Central District of California in 2009. Before that, she was a state trial court judge in California, appointed by former Governor Gray Davis. Before that, she was a federal prosecutor.

Sen. Mike Lee (R-UT), Sen. Pat Toomey (R-PA), and Sen. David Vitter (R-LA) voted no.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), spoke in the Senate in support of Nguyen. He also complained about delaying tactics of Senate Republicans, just as Senate Republicans complained about Senate Democrats' delaying tactics during the Bush administration.

There are two other pending nominations for the 9th Circuit. Paul Watford and Andrew Hurwitz. Both were approved by the SJC earlier this year.

Sen. Leahy stated that "it takes nearly five months longer for the Ninth Circuit to issue an opinion after an appeal is filed, compared to all other circuits. The Ninth Circuit’s backlog of pending cases far exceeds other Federal courts. As of the end of 2011, the Ninth Circuit had 13,913 cases pending before it, far more than any other circuit." See, transcript.

He added that "Before we hear any more talk of slowing down or shutting off judicial confirmations, we have a long way to go. We need to work to reduce the vacancies that are burdening the Federal judiciary and the millions of Americans who rely on our Federal courts to seek justice."

Any nominations remaining at the end of the 112th Congress will lapse. If President Obama loses the election in November, then the lapsed nominees will be replaced by the nominees of a Republican President.

5/14. The Senate confirmed George Russell to be a Judge of the U.S. District Court (DMd). See, Congressional Record, May 14, 2012, at Page S3135.

5/14. The Senate confirmed John Tharp to be a Judge of the U.S. District Court (NDIll) by a vote of 86-1. See, Roll Call No. 90. Sen. Mike Lee (R-UT) voted no, and 13 Senators did not vote. See also, Congressional Record, May 14, 2012, at Page S3135.

5/7. The Senate confirmed Kristine Baker to be a Judge of the U.S. District Court (EDArk). See, Congressional Record, May 7, 2012, at Page 2931.

5/7. The Senate confirmed John Lee to be a Judge U.S. District Court (NDIll). See, Congressional Record, May 7, 2012, at Page 2931.

5/4. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) in which it requests nominations for three members of its Patent Public Advisory Committee (PPAC), and two members of its Trademark Public Advisory Committee (TPAC). See, FR, Vol. 77, No. 87, Friday, May 4, 2012, at Pages 26518-26519.

4/30. Patrick Ross joined the U.S. Patent and Trademark Office (USPTO) as Deputy Chief Communications Officer, and acting Chief Communications Officer. He was previously Executive Director of the Copyright Alliance. Before that, he was Senior Fellow and VP Communications at the Progress & Freedom Foundation (PFF). Before that he was a reporter for various publications of Warren Communications, and for CNET.

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The House will not meet. See, Rep. Cantor's schedule for the week.

12:15 -1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will hold a brown bag lunch to elect chairmen and for planning purposes. The deadline to submit nominations is Friday, May 4. Send nominations to Mark Brennan at mark dot brennan at hoganlovells dot com and Brendan Carr BCarr at wileyrein dot com. Location: Wiley Rein, 1776 K St., NW.

Deadline to submit comments to the Copyright Office (CO) in response to its latest proposal to raise copyright registration fees and other fees. See, notice in the Federal Register, Vol. 77, No. 60, Wednesday, March 28, 2012, at Pages 18742-18748. See also, story titled "Copyright Office Announces More Fee Increases" in TLJ Daily E-Mail Alert No. 2,359, March 28, 2012.

The House will meet at 12:00 NOON or morning hour, and at 2:00 PM for legislative business. It is scheduled to consider HR 1864 [LOC | WW], the "Mobile Workforce State Income Tax Simplification Act of 2011", under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule for the week.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Royce International Broadcasting Comp v. FCC, App. Ct. No. 11-1270. Judges Brown, Griffith and Ginsburg will preside. Location: USCA Courtroom, Prettyman Courthouse.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a presentation titled "Assessing the Accuracy of Merger Approximation". The speakers will be Nathan Miller, Marc Remer, Conor Ryan, and Gloria Sheu (all of the Department of Justice) co-authors of a paper with the same title. This paper is about predicting approximate price changes following a merger. For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

2:00 - 4:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Can Washington Keep the Mobile Revolution Going?". The speakers will be Neeta Bidwai (staff of Sen. Mark Warner (D-VA)), Shawn Chang (Democratic staff of House Commerce Committee), Neil Fried (Chief Counsel, House Commerce Committee), Matthew Hussey (staff of Sen. Olympia Snowe (R-ME)), John Leibovitz (Deputy Chief of the FCC's Wireless Telecommunications Bureau), Karl Nebbia (NTIA Office of Spectrum Management), and Richard Bennett (ITIF). See, notice. Location: Room B-318, Rayburn Building.

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

6:00 - 8:15 PM. Federal Communications Bar Association (FCBA) will host an event titled "Equipment Authorization: Getting Approval for the Next Must Have Device". CLE credits. The price to attend ranges from $25 to $195. Registrations and cancellations due by 12:00 NOON on May 14. See, notice. Location: __.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [85 pages in PDF] regarding the 800 MHz cellular service. The FCC proposes, among other things, to issue geographic area overlay licenses through competitive bidding in two stages. The FCC adopted and released this NPRM on February 15, 2012. It is FCC 12-20 in WT Docket No. 12-40. See, notice in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Pages 15665-15681.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It is scheduled to consider HR 4970 [LOC | WW], the "Violence Against Women Reauthorization Act of 2012". See, Rep. Cantor's schedule for the week.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Broadband Loans and Grants". The witnesses will be Larry Strickling (head of the Department of Commerce's (DOC) National Telecommunications and Information Administration), Todd Zinser (DOC Inspector General), Jonathan Adelstein (head of the Department of Agriculture's (DOA) Rural Utility Service), and David Gray (DOA Deputy Inspector General). See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Implementation of the Leahy-Smith America Invents Act". The witnesses will be David Kappos (head of the USPTO), Robert Armitage (SVP and General Counsel of Eli Lilly), Eliot Williams (Baker Botts, on behalf of the Financial Services Roundtable and other financial sector groups), Carl Horton (General Electric, on behalf of the Coalition for 21st Century Patent Reform), Kevin Rhodes (3M, on behalf of the Intellectual Property Owners Association), Richard Brandon (University of Michigan, on behalf of the Association of American Universities), and Timothy Molino (Business Software Alliance). See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Federal Bureau of Investigation". The witness will be FBI Director Robert Mueller. The SJC will webcast this hearing. See, notice. Location: Room 226, Dirksen Building.

11:30 AM - 12:30 PM. The American Association of Publishers (AAP) will host a web cast seminar titled "Digital Piracy Briefing". The speaker will be the AAP's Luisa Simpson. The topics to be covered include "Types of piracy specific to the publishing industry", "Issues surrounding monitoring and digital enforcement", "Technology solutions", "Government and industry enforcement efforts", and "Legislative developments". See, notice. The price is $29 for AAP members and $49 for others.

1:00 PM. The House Small Business Committee (HSBC) will hold a hearing titled "U.S. Trade Strategy: What's Next for Small Business Exporters?" The witnesses will include Miriam Sapiro (Office of the U.S. Trade Representative) and Mark Luden (on behalf of the Consumer Electronics Association). See, notice. Location: Room 2360, Rayburn Building.

2:00 PM. The House Financial Services Committee (HFSC) will hold a hearing titled "Increasing Market Access for U.S. Financial Firms in China: Update on Progress of the Strategic & Economic Dialogue". The witnesses will be Lael Brainard (Department of the Treasury), Rob Nichols (Engage China Coalition), David Strongin (Securities Industry and Financial Markets Association), Clay Lowery (Rock Creek Global Advisors), and Nicholas Lardy (Peterson Institute for International Economics). See, notice. Location: Room 2128, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Oversight of the Federal Communications Commission". The witnesses will be the five FCC Commissioners: Julius Genachowski, Robert McDowell, Mignon Clyburn, Ajit Pai, and Jessica Rosenworcel. See, notice. Location: Room 253, Russell Building.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Copyright Law and Litigation". The speaker will be Kenneth Kaufman (Manatt Phelps). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

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

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "Geolocational Privacy and Surveillance Act". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a business meeting. It will consider HR 5743 [LOC | WW], the "Intelligence Authorization Act for Fiscal Year 2013", and a report titled "Performance Audit of Defense Intelligence Surveillance, and Reconnaissance (ISR)." This meeting is open to the public. See, notice. Location: Room HVC-304, Capitol Visitor Center.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of the nominations of David Medine, James Dempsey, Elisebeth Cook, Rachel Brand, and Patricia Wald to be member of the Privacy and Civil Liberties Oversight Board. See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

2:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Terrorism, Nonproliferation, and Trade will hold a hearing titled "Trans-Pacific Partnership Agreement: Challenges and Potential". The witnesses will be Philip Levy (Columbia University), Linda Menghetti (Emergency Committee for American Trade), Celeste Drake (AFL-CIO), and Susan Schwab (University of Maryland). See, notice. Location: Room 2360, Rayburn Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI) [84 pages in PDF] regarding use of MSS Spectrum for Terrestrial Broadband. The FCC adopted and released this item on March 21, 2012. It is FCC 12-32 in WT Docket No. 12-70, ET Docket No. 10-142, and WT Docket No. 04-356. See, notice in the Federal Register, Vol. 77, No. 74, Tuesday, April 17, 2012, at Pages 22720-22748. See also, story titled "FCC Adopts NPRM Regarding Use of MSS Spectrum for Terrestrial Broadband" in TLJ Daily E-Mail Alert No. 2,353, March 22, 2012.

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

Deadline to submit comments to the U.S. Customs and Border Protection regarding its interim rules that implement the preferential tariff treatment and other customs related provisions of the US-Korea Free Trade Agreement. See, notice in the Federal Register, Vol. 77, No. 53, Monday, March 19, 2012, at Pages 15943-15960.

The House will not meet on the week of Monday, May 21, through Friday, May 25. It will return on Wednesday, May 30.

2:00 - 3:15 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "US, China and Taiwan: Why the Triangle Might Get More Complex". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:00 AM - 12:00 NOON. The Federal Communications Commission (FCC) will host an event titled "Channel Sharing Worskshop". The speakers will be John Cunney (Santander), Eric De Silva (Wiley Rein), John Hane (Pillsbury Winthrop), and Lonna Thompson (Association of Public Television Stations), Bill Lake (Chief of the FCC's Media Bureau) and Rebecca Hansen (FCC). Location: FCC, Commission Meeting Room.

9:30 AM - 12:00 NOON. The New America Foundation (NAF) and Public Knowledge (PK) will host an event titled "From Broadcast To Broadband New Theories of the Public Interest in Wireless". Larry Irving will give a keynote speech. At 9:45 AM there will be a panel titled "The End of Scarcity? What, If Any Public Interest Obligations Are Necessary in Broadband?" The speakers will be Joaquin Alvarado (American Public Media), Mark Lloyd (FCC Associate General Counsel), Andy Schwartzman, Kevin Werbach (University of Pennsylvania business school), and Ellen Goodman (Rutgers University School of Law). At 11:00 AM there will be a panel titled "What is the Public Interest in Wireless?". The speakers will be Wally Bowen (Mountain Area Information Network), Michael Calabrese (NAF), Amalia Deloney (Center for Media Justice), Amina Fazlullah (Benton Foundation Margaret McCarthy (staff of Rep. Henry Waxman (D-CA)), and Harold Feld (PK). See, notice. Location: NAF, Suite 400, 1899 L St., NW.