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Wednesday, August 1, 2012, Alert No. 2,417.
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Army Generals Enter Political Debate Over Cyber Security Bills

8/1. General Martin Dempsey, Chairman of the Joints Chiefs of Staff sent a letter on August 1, 2012 to Sen. John Rockefeller (D-WV) and Sen. Kay Hutchison (R-TX), the Chairman and ranking Republican on the Senate Commerce Committee (SCC), urging passage of a comprehensive cyber security bill.

The SCC has not reported a cyber security bill. But, Sen. Rockefeller is a cosponsor of S 3414 [LOC | WW | PDF], the Cybersecurity Act of 2012", or "CSA", which is currently being considered by the full Senate.

Gen. Martin DempseyGen. Dempsey (at left) did not mention the CSA by name or number, but taken in the context of pending bills, the letter may be interpreted as an endorsement of the CSA.

Without referencing any of the many pending cyber security bills, he wrote that "I believe comprehensive cyber security legislation must embody three tenets."

"First," he wrote, "encouraging the rapid, real-time sharing of threat information between the public and private sector is essential to enable meaningful network defense." The CSA, as well as the CISPA, the bill passed by the House in April, would address this. See, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act".

"Second," Gen. Dempsey wrote, "we must ensure our Nation's core critical infrastructure is sufficiently hardened and resilient so that no nation or terrorist group can threaten the service we depend upon. Minimum standards will help ensure there is not weak link in our infrastructure." The CSA, but not the CISPA, would impose cyber security standards upon certain elements of the private sector.

"Third, we must ensure the Department of Defense can work closely with our industrial partners to stop the exfiltration of sensitive information."

The Chairman of the Joint Chiefs of Staff regularly communicates with the Senate Armed Service Committee (SASC) and House Armed Services Committee (HASC), but not the SCC or House Commerce Committee (HCC). Moreover, S 3414 has not been referred to, or reported by, the SCC.

Sen. John McCain (R-AZ), the ranking Republican on the SASC, has introduced a competing bill, S 2151 [LOC | WW, the "Secure IT Act". It provides for more information sharing, and greater incentives to share information, than S 3414. But it would not impose the standards upon the private sector that Gen. Dempsey advocates.

See also, story titled "Sen. McCain Criticizes S 3414" in TLJ Daily E-Mail Alert No. 2,415, July 30, 2012.

Also, on July 31, Gen. Keith Alexander, Commander of the U.S. Cyber Command and Director of the National Security Agency (NSA), sent a letter to Sen. Harry Reid (D-NV), the Senate Majority Leader, and a substantially identical letter to Sen. Mitch McConnell (R-KY), the Senate Minority Leader, expressing his "strong support for passage of a comprehensive bipartisan cyber security bill by the Senate this week."

He wrote that "legislation should address both information sharing and core critical infrastructure hardening." He elaborated that "hardening" means setting "requirements" for the private sector.

BSA Opposes Regulatory Standards in Cyber Security Bill

7/30. Robert Holleyman, head of the Business Software Alliance (BSA), sent a letter to the sponsor of S 3414 [LOC | WW | PDF], the Cybersecurity Act of 2012", or "CSA" urging them to amend the standards provision in Title I of the bill.

He praised the other parts of the bill. He wrote that this bill "creates a solid framework and foundation for the cybersecurity debate over the coming days." This letter states that many of the BSA's priorities are reflected in the bill, "including the need to improve real-time information sharing while meaningfully protecting privacy and civil liberties; reform the Federal Information Security Management Act 2002; increase cyber research and development; promote cyber-education; and foster better international cybersecurity cooperation." This sentence does not include mention of enforceable standards.

Rather, the BSA supports "market-based incentives", and opposes "highly regulatory schemes that will bog down rather than enhance security." The letter advocated "voluntary, incentive-based policies for addressing the cybersecurity of critical infrastructure".

Holleyman wrote that "The bill represents progress in the right direction toward a voluntary regime, but we believe it should be amended to make clear that any new mechanism contemplated for protecting critical infrastructure must be truly voluntary."

More Cyber Security News

8/1. Comcast announced in a release that it is "taking additional steps to secure our network against abuse or attacks that leverage our customer's network devices without their knowledge", including certain DDOS attacks. Comcast explained that "The first step we are taking is to prevent distributed denial of service (DDoS) attacks that utilize Simple Network Management Protocol (SNMP) reflected amplification technique. ... we will gradually change our default residential Internet device bootfile to restrict SNMP by default."

7/30. Dell announced the launch of its Advanced Threat Resource Center. Dell stated in a release that the purpose is"to help organizations detect, resist and successfully respond to advanced cyber threats".

Public Knowledge Complains to FCC About Comcast Data Caps

8/1. The Public Knowledge (PK) filed a document [PDF] with the Federal Communications Commission (FCC) titled "Petition to Enforce Merger Conditions". The PK asserts that Comcast has violated the mandates that the FCC imposed upon approval Comcast as a condition for its approval of the merger of Comcast and NBC Universal. The PK wants the FCC to "prohibit Comcast from using unnecessarily discriminatory data caps".

The PK's Michael Weinberg, who signed the document, stated in a release that "Comcast is doing exactly what opponents of its merger with NBC-Universal feared: using its internet business to protect its pay-TV business.  Exempting its own online video services from the data caps that apply to every other online activity creates an unfair advantage. The FCC has an obligation to enforce its merger conditions and make it clear that Comcast cannot use its control over consumers' internet connection to protect its pay television business. Real competition in online video requires everyone to be on a level playing field."

The FCC issued its Memorandum Opinion & Order (MOO) [279 pages in PDF] approving the merger, subject to conditions, on January 20, 2011. It is FCC 11-4 in MB Docket No. 10-56.

Comcast is a broadband internet access service (BIAS) provider. It also provides video through its Xfinity online service. BIAS customers may also use their Comcast broadband connections to access online video content, using computers, mobile devices, Xbox 360 game consoles, TiVo DVRs, or other internet connected devices. This would include accessing video from Amazon Prime, YouTube, Netflix, or other online video distributors (OVDs). The PK complaint further states the Comcast imposes a data cap, but exempts its Xfinity service from the cap. Thus, the PK argues, Comcast's Xfinity service is in competition with other online video services, Comcast is using this data cap to discriminate against its competitors, and all of this is unfair, a violation of the FCC's Comcast NBCU merger conditions, and the FCC's December 2010 BIAS order.

These merger conditions are set forth in Appendix A, at pages 118 through 144. Neither the body of the MOO, nor the attached conditions, expressly prohibit Comcast from employing any kind of data cap. In fact, the term "data cap" does not appear in the MOO or conditions.

This is the PK argument. Part IV of the conditions appendix is titled "Online Conditions". Subpart G of Part IV is titled "Unfair Practices". The PK quotes IV.G.1.a (at page 126), which provides that "Neither Comcast nor C-NBCU shall ... engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or prevent any MVPD or OVD from providing Video Programming online to subscribers or consumers".

The PK asserts that "Comcast's decision to exempt its online video service from its own data caps is precisely the type of behavior contemplated and barred by the Commission in the Merger Order. As such, the Commission must move to end the behavior and prevent it from being repeated in the future."

The PK also states that Comcast is in violation of the rules adopted by the FCC at the end of 2010 that provide for the regulation of BIAS providers.

The FCC's rules are contained in the Report and Order (R&O) [194 pages in PDF] adopted on December 21, 2010, and released on December 23, 2010. This R&O is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

The 2010 rules are under review by the U.S. Court of Appeals (DCCir), and may soon be vacated.

Microsoft Addresses Patent Dispute with Google

7/31. Microsoft published a short piece in its web site titled "A Solid Foundation for Patent Peace". The authors are Brad Smith, EVP and General Counsel, and Horacio Gutierrez, Deputy General Counsel.

The U.S. International Trade Commission's (USITC) order [PDF] of May 18, 2012 went into effect 60 days after issuance, that is, on July 18.

Smith and Gutierrez wrote that this order excludes "from the U.S. market Motorola's Android devices that implement Microsoft’s ActiveSync technology." They added that "Microsoft has secured two injunctions against Motorola devices in Germany for its infringement of other Microsoft patents."

Google announced its acquisition of Motorola Mobility in August of 2011. Antirust regulators approved the transaction in early 2012. See, stories titled "DOJ Closes Investigations of Transactions Involving Communications Patents", "EC Approves Google Acquisition of Motorola Mobility", and "EC's Almunia Addresses Patents and Communications Standards" in TLJ Daily E-Mail Alert No. 2,335, February 13, 2012.

Smith and Gutierrez continued that "Over the last few weeks, with the imminence of the ITC exclusion order, Google mounted a public relations and lobbying campaign deflecting attention from its refusal to honor its promise to standards bodies to license standards-essential patents on fair, reasonable and non-discriminatory (FRAND) terms, a practice that has prompted regulators on both sides of the Atlantic to investigate its conduct. Unfortunately, we have no reason to believe that Google’s diversionary tactics will cease any time soon, and in fact expect more of them in the future."

"Microsoft has always been, and remains open to, a settlement of our patent litigation with Motorola. As we have said before, we are seeking solely the same level of reasonable compensation for our patented intellectual property that numerous other Android distributors -- both large and small -- have already agreed to recognize in our negotiations with them. And we stand ready to pay reasonable compensation for Motorola's patented intellectual property as well."

They also stated that "a lasting solution of these disputes will not be reached by leaking settlement positions through the press. In fact, this type of conduct is far more likely to hinder rather than facilitate a resolution. Ultimately, patent peace will be found through good faith engagement that is based on two simple, common sense principles". It must be comprehensive. And, it must be based upon market rates.

Confirmations and Presidential Elections

7/30. The Senate rejected a motion to invoke cloture on the nomination of Robert Bacharach to be a Judge of the U.S. Court of Appeals (10thCir) by a vote of 56-34. See, Roll Call No. 186.

Bacharach, a magistrate judge of the U.S. District Court (WDOkla), does not have attributes that would make him a likely object of Republican opposition. His problem is the proximity of the Presidential election.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), wrote in his statement for the Congressional Record that "I have not heard a single negative word about him. There is no Senator that I know of who is opposed to his nomination on the merits."

This may signal an end to Court of Appeals confirmations until after the Presidential election. If so, three other nominees for Courts of Appeals may also be affected: Richard Taranto (FedCir), William Kayatta (1stCir), and Patty Schwartz (3rdCir).

Taranto represented Grokster before the Supreme Court in MGM v. Grokster. He also represented Rambus in some of the many proceedings relating to its participation in the JEDEC standards setting process and later assertion of patent rights. See, story titled "Obama Nominates Taranto for Federal Circuit" in TLJ Daily E-Mail Alert No. 2,312, November 17, 2011.

The Senate took no action on President Obama's previous nominee for this seat on the Federal Circuit, Edward Dumont. Last November the President withdrew that nomination, and nominated Taranto.

Voting on Bacharach was partisan. 55 Democrats and Sen. Scott Brown (R-MA) and Sen. Olympia Snowe (R-ME) voted yes. 34 Republicans and no Democrats voted no. Another 10 Republicans either voted present or did not vote.

Sen. Charles Grassley (R-IA) stated that "It is well-known that the practice and tradition of the Senate is to stop confirming circuit nominees in the closing months of a presidential election year. That is what we have done during the last number of presidential election years."

Sen. Charles GrassleySen. Grassley (at right) continued. "In fact, today is July 30. You have to go back 20 years to find a presidential election year when the Senate approved a circuit court judge this late. Of course, the rationale has been that this close to an election, whoever wins that election should be the one to pick these lifetime nominees who will run our judiciary system."

He noted that in July of 2004 Senate Democrats successfully filibustered four of President Bush's Court of Appeals nominees, including Miguel Estrada for the DC Circuit. And, Senate Democrats "closed-up shop on circuit nominations in June" by not allowing votes in the SJC.

There are also sixteen pending District Court nominations, who have been reported by the SJC and are on the Senate's Executive Calendar.

Also, the Senate has not yet confirmed nominees for the Privacy and Civil Liberties Oversight Board (PCLOB). These include James Dempsey, Elisebeth Cook, Rachel Brand, David Medine, and Patricia Wald. See, story titled "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

Ben Bernanke's reappointment to the Federal Reserve Board (FRB) is also pending.

In This Issue
This issue contains the following items:
 • Army Generals Enter Political Debate Over Cyber Security Bills
 • BSA Opposes Regulatory Standards in Cyber Security Bill
 • More Cyber Security News
 • Public Knowledge Complains to FCC About Comcast Data Caps
 • Microsoft Addresses Patent Dispute with Google
 • Confirmations and Presidential Elections
 • More People and Appointments
 • More News
Washington Tech Calendar
New items are highlighted in red.
Wednesday, August 1

The House will meet at 10:00 AM for morning hour and at 2:00 PM for legislative business. The House will hold postponed suspension votes on HR 3120 [LOC | WW], the "Student Visa Reform Act", HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", HR 6063 [LOC | WW], the "Child Protection Act of 2012", and HR 4362 [LOC | WW], the "STOP Identity Theft Act of 2012". See, Rep. Cantor's schedule.

The Senate will meet at 9:30 AM. It may resume consideration of S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012".

9:30 AM. Two Subcommittees of the House Ways and Means Committee (HWMC) will hold a hearing on removing social security numbers from Medicare cards. See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The House Commerce Committee (HCC) will meet to mark four bills. The fourth item on the agenda is HR 6131 [LOC | WW], a bill to extend the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers Beyond Borders Act of 2006" or "SAFE WEB Act". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up numerous bills. The first item on the agenda is HR 6215 [LOC | WW], an untitled bill to amend the Trademark Act regarding remedies for dilution. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "The Relationship Between Business and Research Universities: Collaborations Fueling American Innovation and Job Creation". The witnesses will be William Green (Accenture), Ray Johnson (Lockheed Martin Corporation), John Hickman (Deere and Company), and Jilda Garton (Georgia Tech Research Corporation). The HSC will webcast this event. See, notice. Location: Room 2318, Rayburn Building.

2:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on HR 3889 [LOC | WW], the "Promoting Automotive Repair, Trade, and Sales Act", or "PARTS Act". This bill, sponsored by Rep. Darrell Issa (R-CA) and Rep. Zoe Lofgren (D-CA), would amend the Patent Act to provide an exemption from infringement for certain component parts of motor vehicles. The witnesses will be Neal Menefee (Rockingham Group), Kelly Burris (Brinks Hofer), and Jack Gillis (Consumer Federation of America). See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on legislation that would give states authority to impose and collect sales taxes from distant internet sellers. See, notice. Location: Room 253, Russell Building.

Thursday, August 2

The House will meet at 10:00 AM for morning hour and at 2:00 PM for legislative business. See, Rep. Cantor's schedule for the week.

9:30 - 11:00 AM. Sen. Rand Paul (R-KY) will give a speech titled "Will the Real Internet Freedom Please Stand Up". See, notice. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 225 [LOC | WW], the "Access to Information About Missing Children Act of 2011". The agenda also again includes consideration of three U.S. District Court nominees: Jon Tigar (USDC/NDCal), William Orrick (USDC/NDCal), and Thomas Durkin (USDC/NDIll). The SJC will webcast this event. Location: Room 226, Dirksen Building.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "New Age of Discovery: Government’s Role in Transformative Innovation". The speakers will include former Rep. Bart Gordon (D-TN), Kathleen Kingscott (IBM), Eric Toone (ARPA-E), and Arun Majumdar (ARPA-E). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

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

Friday, August 3

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

Monday, August 6

The House will not meet on the weeks of Monday, August 6, through Friday, August 10, Monday, August 13, through Friday, August 17, Monday, August 20, through Friday, August 24, Monday, August 27, through Friday, August 31, or Monday, September 3, through Friday, August 7.

The Senate will not meet on the weeks of Monday, August 6, through Friday, August 10, Monday, August 13, through Friday, August 17, Monday, August 20, through Friday, August 24, Monday, August 27, through Friday, August 31, or Monday, September 3, through Friday, August 7.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Accenture Global Services v. Guidewire Software, App. Ct. No. 2011-1486, an appeal from the U.S. District Court (NDCal) in a patent infringement case. Location: Courtroom 201.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [182 pages in PDF] regarding its collection of universal service taxes. The FCC adopted this item on April 27, 2012, and released the text on April 30. It is FCC 12-46 in WC Docket Nos. 06-122 and GN Docket No. 09-51. See, notice in the Federal Register, Vol. 77, No. 110, Thursday, June 7, 2012, at Pages 33896-33944.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [22 pages in PDF] regarding creating a Do-Not-Call registry for public safety answering points (PSAPs). The FCC adopted this item on May 21, 2012, and released the text on May 22. It is FCC 12-56 in CG Docket No. 12-129. See, notice in the Federal Register, Vol. 77, No. 120, Thursday, June 21, 2012, Pages 37362-37367.

Tuesday, August 7

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Trans Video Electronics v. Sony Electronics, App. Ct. No.2012-1110, an appeal from the U.S. District Court (NDCal) in a patent infringement case involving video distribution technology, D.C. No. 09-civ-3304. Location: Courtroom 201.

6:00 - 8:15 PM. The DC Bar Association will host a presentation titled "Ethics of E-Mail and Social Media". The speaker will be Thomas Spahn (McGuire Woods). 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.

Wednesday, August 8

No events listed.

More People and Appointments

8/1. Greg Sopkin and Jim Albright joined the Denver office of the law firm of Wilkinson Barker Knauer. Both previously worked at Squire Sanders. Sopkin was Chairman of the Colorado Public Utilities Commission from 2003 to 2007. Albright focuses on energy law. See, WBK release.

7/31. Hewlitt Packard (HP) named Maria Cino VP for Americas and U.S. Government Relations. She will be based in Washington DC, and will report to Gregg Melinson, VP Global Government Relations. See, HP release.

7/16. Thomas Wlodkowski joined Comcast as Vice President of Accessibility, a new position. He previously worked for AOL in a similar capacity. Comcast stated in a release that he will "develop a strategic plan focused on the usability of Comcast's products and services by people with disabilities and pursue opportunities to further enrich the customer experience for the disability community." He is blind. He testified before the Senate Commerce Committee's (SCC) hearing on May 26, 2010, titled "Innovation and Inclusion: the Americans With Disabilities Act at 20". Wlodkowski addressed accessibility of web sites and information technology products. See, prepared testimony [6 pages in PDF]. This was the SCC's only hearing in preparation for drafting and passing the Twenty-First Century Communications and Video Accessibility Act of 2010", or "CVAA". See, S 3828 [LOC | WW], an untitled bill that amends S 3304 [LOC | WW]. They are Public Law Nos. 111-260 and 111-265

More News

8/1. The National Telecommunications and Information Administration (NTIA) published a short piece titled "A Homework Assignment for Privacy Stakeholders", by John Verdi, the NTIA's Director of Privacy Initiatives. It pertains to developing a set of principles for the handling of consumers' data by mobile applications. It states that there will be more meetings on August 22, 2012 and August 29, 2012.

8/1. The Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), and others created an online discussion group for participants in the National Telecommunications and Information Administration (NTIA) effort to develop a set of principles for the handling of consumers' data by mobile applications. See also, CDT release.

7/26. Jonathan Zuck of the Association for Competitive Technology (ACT) wrote a short article titled "EU Patent: Let’s get over the finishing line", for the publication Business | Science.

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