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Tuesday, July 10, 2012, Alert No. 2,406.
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GAO Reports on US Electronic Warfare Planning

7/9. The Government Accountability Office (GAO) released a report [49 pages in PDF] titled "Electronic Warfare: DOD Actions Needed to Strengthen Management and Oversight". It states that electronic warfare is the "use of electromagnetic energy and directed energy to control the electromagnetic spectrum or to attack the enemy". It "is essential for protection of friendly operations and denying adversary operations within the electromagnetic spectrum throughout the operational environment".

This report finds that the Department of Defense (DOD) "has not established a departmentwide governance framework for planning, directing, and controlling electronic warfare activities". It also finds that the DOD "may face challenges in its oversight of electronic warfare as a result of the evolving relationship between electronic warfare and cyberspace operations".

Also, the "U.S. military's access to and use of the electromagnetic spectrum is facing rapidly evolving challenges and increased vulnerabilities due to the increasing quality and availability of electronic warfare capabilities to both state and non-state actors", and particularly, the People's Republic of China (PRC).

This report was prepared for the Chairman and ranking Democrat on the House Armed Services Committee.

DOJ Fines Telecom Manufacturer for Selling PRC Made Equipment to DOD

7/9. The Department of Justice (DOD) announced in a release that is has fined ADC Telecommunications Inc. (which was acquired in 2010 by Tyco Electronics Ltd, which is now named TE Connectivity Ltd.) $1 Million for selling telecommunications hardware to the Department of Defense (DOD) and other federal agencies that was made in the People's Republic of China (PRC) and other countries, in violation of the Trade Agreements Act (TAA).

The TAA, which is codified at 19 U.S.C. 2501-2581, and the Federal Acquisition Regulation (FAR), provide that all products listed in Government Services Administration (GSA) Schedule Contracts must be made in a "designated country".

The PRC is not on the list of "designated countries". See also, FAR 52.225-5.

The PRC would be a "designated country" if it were a party to a free trade agreement with the US, or the World Trade Organization (WTO) Government Procurement Agreement.

The DOJ release states that "From October 2005 through December 2008, ADC manufactured and sold telecommunications hardware, such as communication modems, extender modules and shelf adapters to various federal agencies through its General Services Administration (GSA) Multiple Award Schedule contract. This settlement resolves allegations disclosed by the company that it knowingly manufactured and sold products from countries such as China that do not have reciprocal trade agreements with the United States and are not on the list of designated countries."

ICANN IANA Contract Extended

7/9. On July 2, the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) again awarded the Internet Assigned Numbers Authority (IANA) functions contract to the Internet Corporation for Assigned Names and Numbers (ICANN). On July 9, the ICANN published contract documents.

The current contract expires on September 30, 2012. This new contract will run from October 1, 2012 through September 30, 2015, with two separate two year option periods.

For hyperlinks to redacted copies of contract documents, see ICANN web page titled "ICANN Proposal to Perform IANA Functions Now Posted". See also, NTIA release.

The IANA is responsible for the global coordination of the Domain Name System (DNS) Root, Internet Protocol (IP) addressing, and other IP resources.

US, Japan and EU Request WTO DSP for REM Complaint Against PRC

7/10. On June 27, 2012, the Office of the U.S. Trade Representative (OUSTR), along with representatives of Japan and the European Union (EU), requested that the World Trade Organization (WTO) establish a dispute settlement panel (DSP) to rule on their complaints against the People's Republic of China (PRC) that allege that the PRC is imposing export restraints, export duties, and export quotas on rare earth materials (REM) in violation of its WTO commitments.

The WTO's Dispute Settlement Body (DSB) met on July 10. The WTO announced that "The DSB deferred the establishment of a panel."

The US, Japan and EU filed complaints, which are nominally requests for consultations, in March. See, US complaint, Japan complaint, and EU complaint. See also, stories titled "US, Japan and EU Take Rare Earths Issue to WTO" and "OUSTR Explains Rare Earths Request for Consultations" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012.

The US, Japan and EU requested that the WTO establish a DSP on June 27. See, OUSTR release.

The WTO stated in a release that the PRC argued at the July 10 meeting that "said it was not in a position to accept the establishment of a panel requested by the United States, the European Union and Japan regarding its measures related to the exportation of rare earths".

The PRC argued "that its policies in question are aimed at protecting natural resources and achieving sustainable economic development. It said it was puzzled by the complainants' initiation of the panel process as it has no intention of protecting its domestic industry through means that would distort trade. It added that at the present meeting, it was not in a position to accept the establishment of a panel."

Some in the US have offered some corroboration for the PRC's environmental claims. For example, Sen. Lisa Murkowski (R-AK), has argued that "Instead of settling for Chinese imports, the president should be taking steps to jumpstart development of our own supplies of rare earth elements".

US environmental regulation terminated the production of REMs in the US. See also, story titled "Sen. Murkowski Assigns Some Blame for Rare Earths Problem on US Government Regulation" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012.

The WTO also reported that "The United States, the European Union and Japan told the DSB they were, respectively, requesting the establishment of a panel as their consultations with China had failed to resolve their concerns."

The WTO stated that the US argued that "China's export restraint measures gave China the ability to significantly affect global supply and pricing". The EU argued at the July 10 meeting that the PRC's "policies put pressure on foreign producers to move their operations and technologies to China".

Japan argued that "China's export restrictions have caused a short supply of the materials in the international market and significant price differences between China's domestic market and export market. It said that Japanese manufacturers have faced difficulty in purchasing the materials from China, putting them at a disadvantageous position with their Chinese counterparts."

REMs have a wide range of uses. Among other things, they are used in such information and communications technology (ICT) products as fiber optic cable and smart phone screens. However, one of their key uses is in making permanent magnets, which have the properties of compactness, high strength, and very strong magnetic fields. These magnets are used in computer hard drives, cell phones, loudspeakers, headphones, magnetic resonance imaging, cordless electric tools, and other products.

Update on FISA Outside the US Surveillance Bills

6/28. The House Intelligence Committee (HIC) approved HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", on June 28, 2012, by a vote of 17-0.

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.

Rep. Dutch Ruppersberger (D-MD), the ranking Democrat on the HIC, stated that this authority "is due to expire at the end of the year. I believe that we must reauthorize this critical piece of legislation."

Rep. Dutch RuppersbergerRep. Ruppersberger (at right) added that "It allows our intelligence professionals to gather critical intelligence to disrupt terrorist plots, track developments in countries like Iran, Syria, Russia and China and protect our nations networks from cyber attacks." See, HIC release.

The HJC approved HR 5949 on June 19, 2012. See, stories titled "House Judiciary Committee Approves FISA Bill" and "HJC Roll Call Votes on HR 5949" in 2,399, June 19, 2012, and story titled "House Judiciary Committee Takes Up Bill To Extend FISA Outside the US Warrantless Wiretap Authority" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

The Senate Intelligence Committee (SIC) secretly approved the Senate version of the bill, S 3276 [LOC | WW], misleadingly titled the "FAA Sunsets Extension Act of 2012", prior to its introduction, tunc pro nunc, on May 22, 2012. See, story titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

The Senate Judiciary Committee (SJC) is scheduled to consider S 3276 at its executive business meeting on Thursday, July 12. However, this is the first meeting for which this bill has been listed. Due to the rules of the SJC, many such bills are held over to the next meeting.

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In This Issue
This issue contains the following items:
  GAO Reports on US Electronic Warfare Planning
  DOJ Fines Telecom Manufacturer for Selling PRC Made Equipment to DOD
  ICANN IANA Contract Extended
  US, Japan and EU Request WTO DSP for REM Complaint Against PRC
  Update on FISA Outside the US Surveillance Bills
Washington Tech Calendar
New items are highlighted in red.
Tuesday, July 10

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It will begin consideration, subject to a rule, of the "Repeal ObamaCare Act". See, Rep. Cantor's schedule.

The Senate will meet at 10:00 AM. It will consider the nomination of Thomas Fowlkes to be a Judge of the U.S. District Court (WDTenn). It will also resume consideration of the motion to proceed to S 2237 [LOC | WW], a tax bill.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing titled "Developing the Framework for Safe and Efficient Mobile Payments, Part 2". The witnesses will be Michael Katz (UC Berkeley), Thomas Brown (UC Berkeley law school), and Sarah Jane Hughes (University of Indiana law school). See, notice. Location: Room 538, Dirksen Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold an oversight hearing on the Federal Communications Commission (FCC). The witnesses will be the five Commissioners of the FCC. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology 's HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 120, Thursday, June 21, 2012, at Pages 37407-37408. Location: Renaissance Washington, DC DuPont Circle Hotel, 1143 New Hampshire Ave., NW.

1:00 - 2:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a webcast presentation titled "Privacy & Information Security Update". The speakers will be Aryeh Friedman (Dun & Bradstreet), Edward McNicholas (Sidley Austin), and Elisa Jillson (Sidley Austin). No CLE credits. See, ABA notice.

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.

Wednesday, July 11

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It may complete consideration of the "Repeal ObamaCare Act". The House may also begin consideration, subject to a rule, of HR 4402 [LOC | WW], the "National Strategic and Critical Minerals Production Act of 2012". This bill pertains to "China's reduction in exports of rare-earth elements necessary for telecommunications" and other technologies. See, Rep. Cantor's schedule.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Impact on Competition of Exclusion Orders to Enforce Standard-Essential Patents". The witnesses will be Edith Ramirez (FTC Commissioner) and Joseph Wayland (acting Assistant Attorney General in charge of the DOJ's Antitrust Division). See, notice. Location: Room 226, Dirksen Building.

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

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "The Future of Homeland Security: Evolving and Emerging Threats". The witnesses will be Michael Hayden (Chertoff Group), Brian Jenkins (RAND Corporation), Frank Cilluffo (George Washington University), and Stephen Flynn (Northeastern University). See, notice. Location: Room 342, Dirksen Building.

10:00 AM - 12:00 NOON. The Heritage Foundation (HF) will host two panels titled "Scholars & Scribes Review the Rulings: The Supreme Court's 2011-2012 Term". The speakers will be Donald Verrilli (Solicitor General of the US), Richard Epstein (NYU law school), Michael Carvin (Jones Day), Edwin Meese (HF), David Savage (Los Angeles Times and Chicago Tribune), Mark Sherman (The Associated Press), Howard Bashman (How Appealing), and Todd Gaziano (HF). See, notice. Location: HF, 214 Massachusetts Ave., NE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Patents v. Deutsche Telekom, App. Ct. No. 2011-1581. See, Federal Circuit calendar. Location: Courtroom 402.

12:00 NOON - 1:30 PM. The Technology Policy Institute (TPI) will host an event titled "The Effect of File Sharing on Music and Movie Sales: Reviewing the Research". Stan Liebowitz (University of Texas at Dallas) will present a paper titled "The Metric is the Message: How much of the Decline in Sound Recording Sales is due to File-Sharing?" See, notice. Location: First Amendment Lounge, National Press Club, 529 14th St., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced presentation titled "Recent Developments in Insider Trading and Market Abuse Regulation in the US, UK/EU and Asia". The speakers will be Edward Greene (Cleary Gottlieb), Manfred Ketzer (Hausmaninger Kletter), Piyasena Perera (Anderson Mori & Tomotsune), and Cheryl Nichols (Howard University School of Law). Prices vary. See, ABA notice.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a panel discussion titled "Summer Associate and Intern Panel on Advertising, Privacy, and Consumer Protection Law: Exciting Career Opportunities in an Emerging Practice". The speakers will be Daniel Blynn (Kelley Drye & Warren), Katherine Campbell (FTC), Sang Lee (DOJ), Adrienne Fowler (DOJ), Kristin McPartland (Kelley Drye & Warren), and David Conway (Venable). No CLE credits. See, notice. Location: Bryan Cave, 1155 F St., NW.

1:00 PM. The DC Bar Association will host a panel discussion titled "The Politics of Copyright". The speakers will be Ernesto Falcon (Public Knowledge), Susan Ferrechio (D.C. Examiner), James Losey (New America Foundation), and Paige Gold. The price to attend ranges from $10 to $45. No 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.

6:00 PM. Deadline to submit short form applications to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) and Wireline Competition Bureau (WCB) in connection with Auction 901. This is the reverse auction, scheduled to commence on September 27, 2012, to award $300 Million in one time Mobility Fund Phase I support scheduled to commence on September 27, 2012. See, notice in the Federal Register, Vol. 77, No. 105, Thursday, May 31, 2012, at Pages 32092-32111.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Trivia Night". For more information, contact Matt Gerst at MGerst at ctia dot org or Justin Faulb at Faulb at lojlaw dot com. Location: Laughing Man Tavern, 1306 G St., NW.

Thursday, July 12

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It may complete consideration of HR 4402 [LOC | WW], the "National Strategic and Critical Minerals Production Act of 2012". See, Rep. Cantor's schedule.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing on HR __ [PDF], a yet to be introduced bill to reauthorize the U.S. SAFE WEB Act. This Act increases the investigatory and information sharing powers of the Federal Trade Commission (FTC). See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of the nominations of Terrence Berg (USDC/EDMich), Jesus Bernal (USDC/CDCal), and Lorna Schofield (USDC/SDNY). Also on the agenda, for the first time, are Fernando Olguin (USDC/CDCal), Malachy Mannion (USDC/MDPenn), and Matthew Brann (USDC/MDPenn). The agenda also includes consideration of S 3276 [LOC | WW], a bill to 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. See, notice. The SJC will webcast this meeting. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cy Technology v. Groupon, App. Ct. No. 2011-1568. See, Federal Circuit calendar. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Function Media v. Google, App. Ct. No. 2012-1020. See, Federal Circuit calendar. Location: Courtroom 402.

12:00 NOON - 1:15 PM. The American Bar Association (ABA) will host a webcast and teleconferenced presentation titled "The JOBS Act in Ninety Minutes: What Business Lawyers Need to Know". See, HR 3606 [LOC | WW], the "Jumpstart Our Business Startups Act", an act that reduces regulatory burdens to increase access to the public capital markets for emerging growth companies. President Obama signed it into law on April 5, 2012. It is now Public Law No. 112-106. CLE credits. Prices vary. See, notice.

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.

4:00 - 7:15 PM. The DC Bar Association will host a presentation titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Ray Hartwell (Hunton & Williams), Donald Klawiter (Sheppard Mullin), and Ann O'Brien (DOJ Antitrust Division). 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.

Friday, July 13

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

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fox Group v. Cree, App. Ct. No. 2011-1576, an appeal from the U.S. District Court (EDVA). See, Federal Circuit calendar. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. USITC, App. Ct. No. 2011-1592. See, Federal Circuit calendar. Location: Courtroom 201

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced presentation titled "June Antitrust Update for In-House Counsel". No CLE credits. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [MS Word], DA 12-818, regarding the privacy and data security practices of mobile wireless services providers with respect to customer information stored on their users' mobile communications devices. See also, notice in the Federal Register, Vol. 77, No. 114, Wednesday, June 13, 2012, at Pages 35336-35338.

Monday, July 16

The House will not meet.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding interoperability in the 700 MHz bands. The FCC adopted and released this NPRM on March 21, 2012. It is FCC 12-31 in WT Docket No. 12-69. See, notice in the Federal Register, Vol. 77, No. 63, Monday, April 2, 2012, at Pages 19575-19589. See also, stories titled "FCC Adopts NPRM on Interoperability in 700 MHz Bands" and "Reaction to FCC NPRM on Interoperability in 700 MHz Bands" in TLJ Daily E-Mail Alert No. 2,353, March 22, 2012.

Deadline to submit initial comments to the Copyright Office (CO) in response to its notice in the Federal Register (FR) in which it proposes rules changes regarding the definition of a claimant for purposes of copyright registration. The CO proposes to eliminate the footnote to the definition of a claimant codified at 37 CFR 202.3(a)(3)(ii), which provides that a claimant includes individuals or entities that have obtained the contractual right to claim legal title to copyright in an application for copyright registration. See, FR, Vol. 77, No. 96, Thursday, May 17, 2012, at Pages 29257-29259. See also, story titled "Copyright Office Proposes to Change Definition of Claimant" in TLJ Daily E-Mail Alert No. 2,386, May 30, 2012.

Tuesday, July 17

8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "Bringing Broadband Adoption to the Nation's Underserved Populations". The speakers will be Amina Fazlullah (Benton Foundation), Bret Perkins (Comcast), Rick Schadelbauer (National Telecommunications Cooperative Association), Jason Whittet (Massachusetts Broadband Institute), and Drew Clark. Breakfast will be served. This event is open to the public. The price to attend is $47.12. See, notice and registration page. This event is also sponsored by Comcast, Google, ICF Intl., Intel, NCTA TIA, and US Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.

10:00 AM. The Federal Communications Commission (FCC) will host an event to demonstrate "the database it has developed to host the online public inspection file for television broadcast stations". See, FCC Public Notice. In April the FCC imposed new rules requiring that TV broadcasters publish online sensitive advertising rate information contained in their political files. See, Second Report and Order [81 pages in PDF], adopted and released on April 27, 2012. That order is FCC 12-44 in MM Docket Nos. 00-168 and 00-44. Location: FCC, Commission Meeting Room, 445 12th St., SW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced presentation titled "Statutory Termination of Copyright Transfers Under the U.S. Copyright Act as Applicable to Sound Recordings". Prices vary. CLE credits. See, ABA notice.