6/13. Sen. Charles Grassley (R-IA), issued a release in which he reiterated his concerns about the Food and Drug Administration's (FDA) monitoring of e-mail communications of FDA personnel with members of Congress, including his staff.

Sen. Grassley is seeking information, and the FDA is stonewalling.

Sen. Grassley is asking the FDA to disclose not only the extent of its monitoring of communications between his office and a group of FDA whistleblowers, but also the nature and extent of all FDA monitoring of email of FDA personnel, both that involving FDA computers and accounts, and that involving personal computers and accounts.

Sen. Grassley (at right) stated in a release that he has not yet received a response to his January 31, 2012 letter, that the FDA has informed him "to expect further delays because the response is under review by an Administration official".

He wrote that this is "not a good development from an Administration that was supposed to be the most transparent in history".

Sen. Grassley asked ten questions in his January 31 letter. He asked, "Who authorized the monitoring of all of the whistleblowers email accounts of communications with Congress?". He also asked "Did he FDA monitor all employee email accounts, including personal accounts, or was the monitoring targeted only at the nine whistleblowers?"

He also enquired about personal computers and accounts. He asked, "Did FDA obtain the passwords to the employees' personal email accounts, which would allow emails to be intercepted even when not sent or received from a government computer?"

In his letter, Sen. Grassley quoted from 18 U.S.C. § 1505, which imposes a criminal ban on interfering with a Congressional investigation.

He did not quote from 18 U.S.C. § 2511, which criminalizes warrantless intercepts. However, he used variations of the word "intercept" in his letter. Section 2511 provides in part that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished". Sen. Grassley, the ranking Republican on the Senate Judiciary Committee (SJC), is familiar with intercept law.

Nor did he reference 18 U.S.C. § 1030, which criminalizes, and provides a civil remedy for, unauthorized access to a protected computer system. However, his letter seeks information relevant to whether a Section 1030 violation has occurred.

That is, if the FDA monitored the use of FDA computers, such as with a keystroke logger, to obtain the passwords used to access personal email or social network accounts, and then used those passwords to access those accounts, and thereby obtained the contents of communications sent or received on personally owned computers with private accounts, there have been violations of Section 1030.

6/7. Sen. Dianne Feinstein (D-CA) introduced S 3276 [LOC | WW], misleadingly titled the "FAA Sunsets Extension Act of 2012". This bill has nothing to do with the Federal Aviation Administration (FAA). Rather it would extend for five years a key surveillance section of the Foreign Intelligence Surveillance Act of 1978 (FISA), enacted in 2008, that is set to expire on December 31, 2012.

Sen. Feinstein's bill would extend for five years government authority to conduct surveillance related to persons outside the US, without individualized court approval. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.

This bill was referred to the Senate Intelligence Committee (SIC), which secretly approved the yet to be introduced bill, in a closed May 22 meeting, tunc pro nunc.

The full Senate might have also promptly passed the bill, without debate, but for a hold being placed on the bill by Sen. Ron Wyden (D-OR), who also opposed the bill in the SIC on May 22.

The House has also been begun consideration of sunset extension legislation, but in a more orderly and open process.

The House passed HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", on June 20, 2008. The Senate passed it on July 9, 2008. Former President Bush signed it on July 10, 2008. It is now Public Law No. 110-261. See, stories titled "House Approves FISA Reform Bill" and "Attorney General and DNI Praise FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,783, June 19, 2008, and "House and Senate Leaders Release Draft FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008.

The 2008 Act is huge. Section 403(b)(1) of the 2008 Act provides that "Except as provided in section 404, effective December 31, 2012, title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a), is repealed." That is, the relevant language sunsets at the end of 2012. The just introduced bill would replace "December 31, 2012" with "June 1, 2017". That is, it extends the sunset for about five years.

The 2008 Act, at Section 101, completely replaced Title VII of the 1978 Act. It allows federal surveillance, without court approval, under the FISA, of people believed to be outside of the US. More specifically, it pertains to "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information".

However, US citizens are located abroad, persons abroad communicate with persons inside the US, and those conducting surveillance often do not know the location of the persons they are attempting to surveil. Hence, this provision enables the government to conduct warrantless wiretaps and other surveillance of US citizens located in the US when communicating with persons whom the government believes are abroad.

Foreigners located outside the US are not protected by the 4th Amendment. The US government can wiretap them at will without court approval. However, the 2008 Act authorizes surveillance that also results in the interception of communications of persons who are protected by the 4th Amendment.

As Sen. Wyden (at right) and Sen. Mark Udall (D-CO) wrote in their dissenting statement in the SIC report, this provision creates "a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans' communications".

They elaborated that "We have concluded, however, that section 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens. We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number."

They elaborated that "The Office of the Director of National Intelligence told the two of us in July 2011 that `it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed' under the FISA Amendments Act. We are prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for us to believe that it is impossible to even estimate it."

It should be noted that the provision in the 2008 Act that is up for extension does require a court order. However, it allows broad generalized orders. It allows orders that cover entire surveillance program, without identification or description of any person, phone, or email account.

The 4th Amendment requires individualized orders. That is, it requires orders "particularly describing the place to be searched, and the persons or things to be seized".

The 2008 Act also contains some limitations on this broad surveillance authority. For example, the government "may not intentionally target any person known at the time of acquisition to be located in the United States" under this Title VII authority.

6/15. The House Judiciary Committee (HJC) announced that on Tuesday, June 19, it will meet to mark up HR __ [PDF], the "FISA Amendments Act Reauthorization Act of 2012". See, notice.

This bill, like S 3276 [LOC | WW], would extend for five years government authority to conduct surveillance related to persons outside the US, without individualized court approval. This authority was enacted by the 110th Congress in HR 6304 [LOC | WW], the "FISA Amendments Act of 2008". For a description of this surveillance authority, see related story in this issue titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority".

While the Senate is proceeding in a closed and secretive manner, the House is considering this bill in a more open process.

On May 31, the HJC's Subcommittee on Crime, Terrorism and Homeland Security held a hearing on the 2008 Act.

The most important set of issues concern the implementation of this Act. However, the government agencies involved have not provided reports or other public disclosure regarding implementation. For example, they have disclosed no data regarding how many US citizens have had their voice communications intercepted, or their e-mail seized, without a court warrant, under this provision.

Hence, the only persons in a position to provide useful testimony are persons responsible for implementation. Yet, none appeared as witnesses.

No one testified regarding the usefulness of the 2008 Act. No one to testify regarding whether the government is complying with the 2008 Act. No one testified regarding how many US citizens' conversations have been intercepted.

The subcommittee heard from three persons without personal knowledge of relevant information: Kenneth Wainstein (Cadwalader Wickersham & Taft), Marc Rotenberg (EPIC) and Jameel Jaffer (ACLU).

Wainstein was the Assistant Attorney General (AAG) in charge of Department of Justice's (DOJ) National Security Division (NSD), and then assistant to President Bush, late in the Bush administration. He testified in support of the 2008 Act. However, he has been out of office for over three years. See also, story titled "Wainstein Joins Cadwalader" in TLJ Daily E-Mail Alert No. 2,358, March 27, 2012.

He urged the Congress to extend this authority. He wrote in his prepared testimony that "A critical component of our counterterrorism effort -- and, for that matter, any investigative effort -- is the capability to intercept our adversaries’ communications. ... That is particularly true in relation to foreign terrorist groups, where leaders and foot soldiers in different parts of the world have to rely on electronic communication for operational coordination."

Rotenberg said that "we don't know the circumstances under which FISA authority is used". He urged the Congress not to extend this authority until more information is made available regarding surveillance conducted under the 2008 Act.

Rotenberg praised the annual reports on use of wiretap authority under Title 18, the criminal code, and urged the Congress to require similar reports for FISA surveillance. See also, prepared testimony.

Jaffer similarly argued that the Congress should not extend the 2008 Act until the intelligence agencies provide information. See also, prepared testimony.

No one from the DOJ, intelligence agencies, or Obama administration testified at the hearing. However, Rep. Dan Lungren (R-CA) disclosed there will be a closed "briefing" for the members of the HJC.

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

The Senate will not meet.

8:30 - 11:30 AM. The Technology Policy Institute (TPI) will host an event titled "The Future of Internet Economics". See, registration page. Location: 7th floor, Newseum, 555 Pennsylvania Ave., NW.

8:30 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. The FCC will webcast this event. See, notice in the Federal Register, Vol. 77, No. 103, Tuesday, May 29, 2012, Pages 31611-31612. Location: FCC, Commission Meeting Room, 445 12th St., SW.

5:00 PM. Deadline to register to attend the Department of Homeland Security's (DHS) Privacy Office's June 20 event titled "Privacy Compliance Workshop". See, notice in the Federal Register (FR), Vol. 77, No. 102, Friday, May 25, 2012, at Page 31371.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petitions for reconsideration of the FCC's latest Low Power Radio Service order. The FCC adopted and released this Fourth Report and Order and Third Order on Reconsideration on March 19, 2012. It is FCC 12-29 in MB Docket No. 99-25. See, notice in the Federal Register, Vol. 77, No. 105, Thursday, May 31, 2012, at Page 32075. See also, petition of the Educational Media Foundation, petition of Hope Christian Church of Marlton and others, petition of Corner Media, and petition of Kyle Magrill. And see, story titled "FCC Releases Two Items Regarding Local Community Radio Act" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012.

The Senate will meet at 3:00 PM.

9:00 AM - 12:30 PM. The American Enterprise Institute (AEI) will host a conference titled "Buying and Selling at the Speed of Light: Taking Stock of High Frequency Trading". The speakers will include Rep. Jeb Hensarling (R-TX). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) regarding the data reporting requirements associated with the NTIA's program to develop and maintain a inventory map of broadband service capability and availability in the US. See, notice in the Federal Register, Vol. 77, No. 74, Tuesday, April 17, 2012, at Pages 22762-22763.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the information collection requirements of 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.

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, Vol. 77, No. 106, Friday, June 1, 2012, at Pages 32570-32571. Location: NIST, Portrait Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "New Technologies and Innovations in the Mobile and Online space, and the Implications for Public Policy". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a presentation titled "Prometheus Bound -- Analyzing the Current Restraints on Patent Eligible Subject Matter". The speakers will be Jonas Anderson (American University law school), Erika Arner (Finnegan Henderson), Michael Kiklis (Oblon Spivak), and Jeffrey Fougere (Sterne Kessler). The price to attend ranges from $25 to $35. Reporters are barred from attending most DC Bar events. No CLE credits. See, notice. For more information, call 202-626-3463. Location: Paul Weiss, Suite 100, 2001 K St., NW.

1:00 PM. The House Judiciary Committee (HJC) will meet to mark up HR __ [LOC | WW | PDF], the "FISA Amendments Act Reauthorization Act of 2012". See, notice. Location: Room 2141, Rayburn Building.

5:00 PM. Deadline to register to attend the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) event titled "National Cybersecurity Center of Excellence Workshop". See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26511-26512.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Issues in USF Contribution Reform". CLE credits. See, notice. Location: Wiley Rein, 1776 K St., NW.

8:30 AM - 4:30 PM. The Department of Homeland Security's (DHS) Privacy Office will host an event titled "Privacy Compliance Workshop". The deadline to register is 5:00 PM on Friday, June 15. Location: Federal Trade Commission (FTC) satellite building, 601 New Jersey, Ave., NW.

9:00 - 10:30 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Regulatory Threats to Mobile Health Information Technologies". See, notice. Location: AEI, 1150 15th St., NW.

9:00 - 11:00 AM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet. The deadline to register is Friday, June 15. See, notice in the Federal Register, Vol. 77, No. 102, Friday, May 25, 2012, at Pages 31441-31442. Location: IRS, Room 2140, 1111 Constitution Ave., NW.

9:00 AM - 12:00 NOON. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, Vol. 77, No. 106, Friday, June 1, 2012, at Pages 32570-32571. Location: NIST, Portrait Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:30 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "Russia’s Accession to the World Trade Organization and Granting Russia Permanent Normal Trade Relations". The hearing notice states that the topics to be covered include enforcement of intellectual property rights. Location: Room 1100, Longworth Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the United States Patent and Trademark Office: Implementation of the Leahy-Smith America Invents Act and International Harmonization Efforts". David Kappos, head of the USPTO will testify. The SJC will webcast this hearing. See, notice. Location: Room 226, Dirksen Building.

12:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Immigration Policy and Enforcement will hold a hearing on HR 2899 [LOC | WW], the "Chinese Media Reciprocity Act of 2011". This bill pertains to visas for employees of the Xinhua News Agency and other PRC state controlled media. See, notice. See also, "More PRC and Taiwan Trade News" in TLJ Daily E-Mail Alert No. 2,305, September 28, 2011. Location: Room 2141, Rayburn Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

1:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Universal Music Group/EMI Merger and the Future of Online Music". The SJC will webcast this hearing. See, notice. Location: Room 226, Dirksen Building.

The American Intellectual Property Law Association (AIPLA) will host an event titled "AIPLA 4th Annual Trademark Boot Camp". For more information, contact aipla at aipla dot org or call 703-415-0780. Location: Alexandria, VA.

6/11. The Senate is engaged in the process of enacting legislation that would extend for five years a key provision of the Foreign Intelligence Surveillance Act (FISA) that enables the government to conduct warrantless wiretaps and seizures of e-mail of some US citizens. It is doing so in a secret manner that deprives the public of information regarding the process, or a meaningful opportunity to communicate their views to the Congress in a timely manner.

The Senate Intelligence Committee (SIC) disclosed in June that it secretly passed a bill extending the "outside of the United States" surveillance authority enacted by the 110th Congress in 2008 in HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. For an explanation of this bill, see related story in this issue titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority".

The Congress enacted this sweeping authority to surveil persons "located outside of the United States" following protracted and heated debate in 2008.

Sen. Dianne Feinstein's (D-CA) process for moving the extension bill, S 3276 [LOC | WW], through the Senate appears to intended to circumvent public input and legislative debate.

The SIC vote on the act of passage occurred on May 22. That meeting was closed to the public. Moreover, the SIC did not announce in advance of that meeting that it would vote on extending the 2008 Act. Nor did the SIC disclose after the meeting that it had voted.

The SIC did not disclose its action until June 11. Moreover, the SIC passed a bill that had not even been introduced. Sen. Feinstein introduced this bill on June 7, 2012.

Sen. Feinstein gave the bill the deceptive title of "FAA Sunsets Extension Act of 2012". The FAA is commonly understood to be an acronym for the Federal Aviation Administration.

The SIC issued a release on June 11, backdated with the date of May 22, as if it had been issued on that date.

Two members of the SIC, Sen. Mark Udall (D-CO) and Sen. Ron Wyden (D-OR), voted against the bill in committee on May 22, but did not disclose any information at that time.

Sen. Udall wrote in a release, dated and released on June 8, 2012, that "Udall and Wyden's actions in the mark-up of the FAA Sunsets Extension Act were confidential under Senate Select Intelligence Committee protocols until today, when the committee published its report on the bill."

Sen. Feinstein's office has not responded to calls and requests for information from TLJ made on June 8 and June 11.

A pattern has emerged in recent years in the extension of sunsets of provisions in the 2001 surveillance act (Title II of the USA PATRIOT Act) and the 2008 Act. The HJC and SJC, which have long traditions of safeguarding Constitutional rights, attempt to conduct oversight of the government's implementation of its surveillance powers; they seek information, hold public hearings, and consider bills. The executive branch does not cooperate, and avoids these public hearings. Meanwhile, the SIC, which operates in secret, passes bills which are ultimately approved by the Congress in a non-transparent process.