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Tuesday, June 19, 2012, Alert No. 2,399.
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House Judiciary Committee Approves FISA Bill

6/19. The House Judiciary Committee (HJC) approved HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 23-11. See, Table in this issue titled "HJC Roll Call Votes on HR 5949, June 19, 2012".

The HJC rejected four amendments offered by Democrats, including one that would have shortened the extension period.

This 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 warrantless "outside" of the US surveillance authority was enacted as part of HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". The House passed it on June 20, 2008. The Senate passed it on July 9, 2008. Former Sen. Barack Obama (D-IL) voted for it. Former President Bush signed it on July 10, 2008. It is now Public Law No. 110-261.

The 2008 Act provides that this "outside" of the US authority sunsets on December 31, 2012. HR 5949 and the Senate version, S 3276 [LOC | WW], deceptively titled the "FAA Sunsets Extension Act of 2012", would extend the sunset for five years, to December 31, 2017.

The Senate Intelligence Committee (SIC) approved S 3276 on May 22 in secrecy, and then disclosed its action on June 8. The secrecy likely was intended to suppress debate and opposition to the bill, rather than to protect national security.

The 2008 Act allows "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" without an warrant that identifies any persons, phones or accounts.

Some members of Congress oppose this provision because 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.

See also, stories titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority", "House Judiciary Committee Takes Up Bill To Extend FISA Outside the US Warrantless Wiretap Authority", and "Commentary: Warrantless Wiretaps and Senate Secrecy" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

At the June 19 HJC mark up, Rep. John Conyers (D-MI), the ranking Democrat on the HJC, praised Rep. Lamar Smith (R-TX), the Chairman of the HJC, for conducting this mark up in public.

While Republicans voted in near unison against amendments, and unanimously for passage, almost all of the debate in support of the bill was carried by Rep. Smith and Rep. Dan Lungren (R-CA).

Numerous Democrats argued against the bill, sought a shorter extension, and/or sought more disclosure of information about the surveillance authority to be extended. These included Rep. Conyers, Rep. Jerrold Nadler (D-NY), Rep. Bobby Scott (D-VA), Rep. Sheila Lee (D-TX), Rep. Mel Watt (D-NC), and Rep. Zoe Lofgren (D-CA).

Rep. Smith argued that extending the "outside" the US surveillance authority is necessary to address multiple threats, including Al Qaeda attempts to launch terrorists attacks, and theft of intellectual property by the People's Republic of China (PRC).

Rep. Conyers argued that the extension should be shorter because "the public does not yet have an adequate understanding" of the underlying surveillance provision's impact upon privacy.

In particular, the federal government agencies involved have not disclosed any estimate of how many persons in the US have had the content of their communications intercepted or seized.

Rep. Conyers offered an amendment [1 page in PDF] that would have provided a three year extension, through June 1, 2015, rather than the extension through December 31, 2017, as provided in HR 5949.

This amendment would have made the sunset for this provision coincide with the sunset of three other controversial surveillance provisions: (1) treating lone wolf individuals like agents of foreign governments or terrorists organizations (see, 50 U.S.C. § 1801(b)'s definition of the term "agent of a foreign power"), (2) access to business records, including library records (see, 50 U.S.C. § 1861 as amended by Section 215 of the 2001 surveillance act), and (3) roving wiretaps (see, 50 U.S.C. § 1805).

The HJC rejected this amendment by a vote of 12-12. Many members had not yet arrived at the meeting. Most of the Republicans who voted opposed the amendment, and most Democrats who voted supported the amendment. However, Rep. Louie Gohmert (R-TX) and Rep. Ted Poe (R-TX) voted for the amendment, while R.C. Pedro Pierluisi (D-PR) voted against the amendment. These three did not speak at the mark up.

Rep. Nadler offered an amendment [1 pages in PDF] that would have required the Attorney General to "make publicly available an unclassified summary of each decision, order, or opinion of the Foreign Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review", including those that contain "a significant construction or interpretation" of the surveillance authority that would be extended by HR 5949.

Rep. Lungren argued that this amendment would provide enemies of the US "with a roadmap to evasion". Rep. Smith argued that the members of the House and Senate Intelligence and Judiciary Committees receive classified briefings and reports.

Rep. Scott argued that the public must be able to "oversee Congress". He said, "Trust us. We've seen it .. is wholly inadequate".

The HJC rejected this amendment by a vote of 14-17. Rep. Poe and Rep. James Sensenbrenner (R-WI) voted for this amendment.

Rep. Scott offered an amendment [1 page in PDF] that would have expanded reporting requirements. The 2008 Act provides that the "Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures" and provide an assessment to the Foreign Intelligence Surveillance Court and the Intelligence and Judiciary Committees. See, 50 U.S.C. § 1881a, at subsection l (letter l).

Rep. Scott's amendment would have required that these assessments be "in unclassified form, but may include a classified annex".

The HJC rejected it by a vote of 10-19.

Rep. Lee offered an amendment that would have provided for an Inspector General report. The HJC rejected it by a vote of 11-10.

The HJC then approved the bill by a vote of 23-11.

HJC Roll Call Votes on HR 5949
June 19, 2012
  1 2 3 4 5
Lamar Smith (R-TX) N N N N Y
Sensenbrenner (R-WI) N Y N N Y
How. Coble (R-NC) N N N N Y
Elton Gallegly (R-CA) N N N N Y
Bob Goodlatte (R-VA) N N N N Y
Dan Lungren (R-CA) N N N N Y
Steve Chabot (R-OH) N N N   Y
Darrell Issa (R-CA)   N N N Y
Mike Pence (R-IN) N N N N Y
Randy Forbes (R-VA) N N N N Y
Steve King (R-IA)   N N N Y
Trent Franks (R-AZ) N N N N Y
Louie Gohmert (R-TX) Y       Y
Jim Jordan (R-OH)   N N N Y
Ted Poe (R-TX) Y Y N N Y
Jason Chaffetz (R-UT)          
Tim Griffin (R-AR)          
Tom Marino (R-PA) N N N N Y
Trey Gowdy (R-SC)   N N N Y
Dennis Ross (R-FL)   N N N Y
Sandy Adams (R-FL)   N N N Y
Ben Quayle (R-AZ)          
Mark Amodei (R-NV)       N Y
  1 2 3 4 5
John Conyers (D-MI) Y Y Y Y N
How. Berman (D-CA) Y Y     Y
Jerrold Nadler (D-NY) Y Y Y Y N
Bobby Scott (D-VA) Y Y Y Y N
Mel Watt (D-NC) Y Y Y Y N
Zoe Lofgren (D-CA) Y Y Y Y N
Sheila Lee (D-TX)     Y Y N
Maxine Waters (D-CA)   Y     N
Steve Cohen (D-TN)   Y Y Y N
Hank Johnson (D-GA) Y Y Y Y N
Pedro Pierluisi (D-PR) N N N N Y
Mike Quigley (D-IL) Y Y Y Y Y
Judy Chu (D-CA) Y Y Y Y N
Ted Deutsch (D-FL) Y     Y N
Linda Sanchez (D-CA)          
Polis (D-CO)   Y      
Summary of Roll Call Votes:
1. Conyers. Shorten the extension. Failed 12-12.
2. Nadler. Release summaries of decisions. Failed 14-17.
3. Scott. Declassify reports to committees. Failed 10-19.
4. Lee. Require IG report. Failed 11-20.
5. Final passage. Passed 23-11.
Rep. Barton and Rep. Markey Write W3C Regarding Do Not Track

6/19. Rep. Joe Barton (R-TX) and Rep. Ed Markey (D-MA), both senior members of the House Commerce Committee (HCC), sent a letter to the World Wide Web Consortium (W3C) Tracking Protection Working Group (TPWG) in which they called for a browser based do not track mechanism, and that it be the default browser setting.

The W3C is an internet standards group.

The two Representatives said that a do not track (DNT) regime should be universal, persistent, enforceable, cover data collection, and cover data use.

They noted that while DNT technology "will soon be supported by all the major web browsers", there is not "broad agreement on a specific definition and policy framework governing compliance" with consumers' DNT preferences.

They urged the W3C's TPWG "to commit to user control over both data collection and use". They added that they "support Microsoft's announcement by endorsing a default Do Not Track setting".

Microsoft's Chief Privacy Officer Brendan Lynch wrote a short piece titled "To Track or Not to Track? Not Just a Question, a Choice for Consumers and Industry" on June 8, 2012.

Rep. Barton stated in a release that "I am hopeful that the World Wide Web Consortium will not agree to ignore a ‘Do Not Track’ signal simply because it is set as a default on a browser".

He added that "While a consumer can benefit from targeted advertising, I firmly believe that they should have the choice to ‘opt in’ to such usage of their personal information. It is evident to me to that until we have a privacy law in place, there will be no true privacy for consumers."

Rep. Markey stated in this release that "The W3C is at the forefront of developing global standards for the technology and policies governing the Internet. I urge the W3C to endorse tracking standards that reflect the point of view of consumers who believe that privacy is a right, and even if technology changes, the values of the users remain the same."

In This Issue
This issue contains the following items:
 • House Judiciary Committee Approves FISA Bill
 • HJC Roll Call Votes on HR 5949
 • Rep. Barton and Rep. Markey Write W3C Regarding Do Not Track
Washington Tech Calendar
New items are highlighted in red.
Wednesday, June 20

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.

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.

9:30 - 11:30 AM. The Senate Banking Committee's (SBC) Subcommittee on Securities, Insurance, and Investment will hold a hearing titled "Examining the IPO Process: Is It Working for Ordinary Investors?". The witnesses will be Ann Sherman (DePaul University), Joel Trotter (Latham & Watkins), and Lise Buyer (Class V Group, LLC). See, notice. Location: Room 538, Dirksen 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.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Summer Kick Off Happy Hour and Welcome to Interns". For more information, contact Justin Faulb at Faulb at lojlaw dot com or Brendan Carr BrendanTCarr at gmail dot com. Location: Iron Horse Tap Room, 507 7th St., NW.

Thursday, June 21

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

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.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration Brian Davis (to be a Judge of the USDC/MDFl). See, notice. The SJC will webcast this hearing. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Russia’s WTO Accession - Administration’s Views on the Implications for the United States". See, notice. Location: Room 215, Dirksen Building.

12:15 - 1:45 PM. The Federal Communications Commission's (FCC) will host an event to discuss FCC Chairman Julius Genachowski's "Mobile Action Plan". The speakers will be Renee Wentzel (Legal Advisor to Genachowski) and John Leibovitz (FCC). Lunch will be served. The Federal Communications Bar Association (FCBA) asserts that this is an event of its Wireless Committee. Location: Wiley Rein, 1776 K St., NW.

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 witnesses will be Lucian Grainge (Universal Music Group), Roger Faxon (EMI Group), Irving Azoff (Live Nation Entertainment, Inc. and Front Line Management Group), Edgar Bronfman (Warner Music Group Corp.), Martin Mills (Beggars Group Ltd), and Gigi Sohn (Public Knowledge). The SJC will webcast this hearing. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing or mark up titled "Intelligence Matters". See, notice. Location: Room 219, Hart Building.

Friday, June 22

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

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.

Monday, June 25

Deadline to submit to the Federal Communications Commission (FCC) replies to 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.

Deadline for Facebook to respond to the interrogatories propounded by Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) in their June 4, 2012, letter [3 pages in PDF] regarding Facebook's plans to allow children under 13 to use Facebook. See, story titled "Rep. Markey and Rep. Barton Write Facebook Regarding Plans to Target Children" in TLJ Daily E-Mail Alert No. 2,391, June 6, 2012.

Tuesday, June 26

15th anniversary of the Supreme Court's opinion in Reno v. ACLU, 521 U.S. 844 (1997).

8:00 AM - 5:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) will host an event titled "National Cybersecurity Center of Excellence Workshop". The deadline to register is 5:00 PM on June 19. See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26511-26512. Location: Universities at Shady Grove, 9630 Gudelsky Drive, Rockville, MD.

Wednesday, June 27

TIME? The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold a hearing titled "The Future of Video". Location?

1:00 - 3:15 PM. The DC Bar Association will host a presentation titled "Cloud Computing Transactions Workshop: A Systems Approach to Avoiding Thunderstorms". The speakers will be Ward Classen (Computer Sciences Corporation) and Philip Porter (Hogan Lovells). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

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