10/11. Eleven Republican members of the House and Senate sent a letter to President Obama urging him "not to issue an executive order exerting regulatory influence over the Internet in the name of cybersecurity".

They argued that "Doing so will lend further arguments to nations such as Russia, China, and Iran that are currently seeking to upend the non-regulatory, multistakeholder governance model that has allowed the Internet to flourish. Their goal is to give the United Nations unprecedented power over the Internet infrastructure and content at an International conference in Dubai this December, and to regulate it within their borders under the guise of combating cyber threats."

They also noted that the House has already passed a cyber security bill, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA". Moreover, they wrote that the President's preferred approach of giving the Department of Homeland Security (DHS) regulatory authority over "critical infrastructure" is "the wrong approach".

The House bill would incent cyber threat information sharing. In contrast, the cyber security bill favored by the President, S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012" or "CSA", would create a regulatory regime. It has not been passed by the full Senate, or any Senate Committee.

They also wrote that "creating a top-down, one-size fits all bureaucracy to address cybersecurity will slow our response and impose unnecessary costs on our economy", and could "provide a road map to those that wish to do us harm".

The eleven who signed this letter are Rep. Fred Upton (R-MI), Rep. Greg Walden (R-OR), Rep. Mary Mack (R-CA), Rep. Lee Terry (R-NE), Rep. Bob Latta (R-OH), Rep. Adam Kinzinger, Sen. Jim DeMint (R-SC), Sen. Pat Toomey (R-PA), Sen. Kelly Ayotte (R-NH), Sen. Marco Rubio (R-FL), and Sen. Mike Lee (R-UT).

10/11. Secretary of Defense Leon Panetta gave a speech in New York City in which he addressed cyber security, pending legislation, and recent cyber attacks.

He urged that Congress to pass legislation, and added that President Obama is "considering issuing an Executive Order".

Panetta (at right) He stated that "It's no secret that Russia and China have advanced cyber capabilities. Iran has also undertaken a concerted effort to use cyberspace to its advantage."

"In recent weeks, as many of you know, some large U.S. financial institutions were hit by so-called Distributed Denial of Service attacks. These attacks delayed or disrupted services on customer websites. While this kind of tactic isn't new, the scale and speed with which it happened was unprecedented."

"But even more alarming is an attack that happened two months ago when a very sophisticated virus called Shamoon infected computers in the Saudi Arabian State Oil Company Aramco. Shamoon included a routine called a ‘wiper’, coded to self-execute." He continued that "More than 30,000 computers that it infected were rendered useless and had to be replaced. It virtually destroyed 30,000 computers."

"Then just days after this incident, there was a similar attack on RasGas of Qatar, a major energy company in the region. All told, the Shamoon virus was probably the most destructive attack that the private sector has seen to date."

In this speech, he stopped short of attributing these attacks to Iran.

Panetta said that "These attacks mark a significant escalation of the cyber threat and they have renewed concerns about still more destructive scenarios that could unfold. For example, we know that foreign cyber actors are probing America's critical infrastructure networks. They are targeting the computer control systems that operate chemical, electricity and water plants and those that guide transportation throughout this country. We know of specific instances where intruders have successfully gained access to these control systems. We also know that they are seeking to create advanced tools to attack these systems and cause panic and destruction and even the loss of life."

He said that "An aggressor nation or extremist group could use these kinds of cyber tools to gain control of critical switches. They could, for example, derail passenger trains or even more dangerous, derail trains loaded with lethal chemicals. They could contaminate the water supply in major cities or shutdown the power grid across large parts of the country."

Panetta continued that the Department of Homeland Security (DHS) "has the lead for domestic cybersecurity, the FBI also has a key part to play and investigating and preventing cyber-attacks. And our intelligence agencies, of course, are focused on this potential threat as well. The State Department is trying to forge international consensus on the roles and responsibilities of nations to help secure cyberspace."

He said that the Department of Defense (DOD) also "has a role. It is a supporting role but it is an essential role.  And tonight I want to explain what that means. But first let me make clear what it does not mean. It does not mean that the Department of Defense will monitor citizens' personal computers. We're not interested in personal communication or in e-mails or in providing the day to day security of private and commercial networks. 

"If a crippling cyber attack were launched against our nation, the American people must be protected. And if the Commander in Chief orders a response, the Defense Department must be ready to obey that order and to act."

He also discussed private sector businesses, "Particularly those who operate the critical networks that we must help defend. To defend those networks more effectively, we must share information between the government and the private sector about threats in cyberspace. We've made real progress in sharing information with the private sector. But very frankly, we need Congress to act to ensure that this sharing is timely and comprehensive."

"Companies should be able to share specific threat information with the government, without the prospect of lawsuits hanging over their head. And a key principle must be to protect the fundamental liberties and privacy in cyberspace that we are all duty bound to uphold."

This is a loose description of the content of HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA", which the Republican controlled House passed earlier this year. Yet, Panetta did not name this bill by number or title.

However, he then proceeded to urge passage of S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", the largely Democratic bill which the full Senate rejected just before its August recess.

Panetta said that "Information sharing alone is not sufficient. We've got to work with the business community to develop baseline standards for our most critical private-sector infrastructure, our power plants, our water treatment facilities, our gas pipelines. This would help ensure that companies take proactive measures to secure themselves against sophisticated threats, but also take common sense steps against basic threats. Although awareness is growing, the reality is that too few companies have invested in even basic cybersecurity."

He said that "cybersecurity legislation must be passed by the Congress", and "Congress must act and it must act now on a comprehensive bill such as the bipartisan Cybersecurity Act of 2012".

10/8. Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersburger (D-MD), the Chairman and ranking Democrat of the House Intelligence Committee (HIC) released a part of a report [60 pages in PDF] titled "Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE". The HIC did not release a "classified annex" to the report.

This report finds that "the risks associated with Huawei's and ZTE's provision of equipment to U.S. critical infrastructure could undermine core U.S. national-security interests".

It recommends that "Private-sector entities in the United States are strongly encouraged to consider the long-term security risks associated with doing business with either ZTE or Huawei for equipment or services. U.S. network providers and systems developers are strongly encouraged to seek other vendors for their projects."

Huawei responded in a release that the HIC report "failed to provide clear information or evidence to substantiate the legitimacy of the Committee's concerns". The report "employs many rumors and speculations to prove non-existent accusations".

Huawei also wrote that "We have to suspect that the only purpose of such a report is to impede competition and obstruct Chinese ICT companies from entering the US market."

This report recommends that the US intelligence community "should actively seek to keep cleared private sector actors as informed of the threat as possible".

This report recommends that the Committee on Foreign Investment in the United States (CFIUS) "must block acquisitions, takeovers, or mergers involving Huawei and ZTE".

The report recommends that proposals to give the CFIUS authority to review "purchasing agreements should receive thorough consideration by relevant Congressional committees". However, the report cites no pending bills.

The CFIUS was created by Section 721 of the "Defense Production Act of 1950", which is codified at 50 U.S.C. App. 2170. This section was significantly revised by HR 556 (110th Congress), the "Foreign Investment and National Security Act of 2007". President Bush signed it into law on July 26, 2007. It is now Public Law No. 110-49.

Neither the CISPA, SECURE IT Act, nor CSA would expand CFIUS authority to include purchasing agreements. See, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA", S 2151 [LOC | WW], the "SECURE IT Act", and S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012" or "CSA".

This report recommends that "U.S. government systems, particularly sensitive systems, should not include Huawei or ZTE equipment, including component parts. Similarly, government contractors -- particularly those working on contracts for sensitive U.S. programs -- should exclude ZTE or Huawei equipment in their systems."

It also states that "Committees of jurisdiction within the U.S. Congress and enforcement agencies within the Executive Branch should investigate the unfair trade practices of the Chinese telecommunications sector, paying particular attention to China’s continued financial support for key companies."

In addition, "Committees of jurisdiction in the U.S. Congress should consider potential legislation to better address the risk posed by telecommunications companies with nation-state ties or otherwise not clearly trusted to build critical infrastructure. Such legislation could include increasing information sharing among private sector entities, and an expanded role for the CFIUS process to include purchasing agreements."

The report is silent as to whether antitrust regulators in the US should leverage their power to block mergers to impose supply chain conditions.

For example, both the Department of Justice's (DOJ) Antitrust Division and the Federal Communications Commission (FCC) will stand in judgment of the proposed T-Mobile USA MetroPCS combination. See, story titled "T-Mobile USA and MetroPCS to Merge" in TLJ Daily E-Mail Alert No. 2,457, October 3, 2012.

Both companies do business with PRC companies. For example, on September 21, MetroPCS and ZTE announced in a release that MetroPCS will sell the ZTE Anthem 4G. See also, March 16 release.

TLJ spoke during the Bush administration with then DOJ Assistant Attorney General Thomas Barnett regarding the role of national security in DOJ telecom antitrust merger reviews during a recess of a House Judiciary Committee (HJC) hearing. He explained that the DOJ conducts economic analysis and applies federal antitrust law. However, he used words such a "primary", rather than "only", to describe the DOJ's concern for antitrust law and economics. He also passed up the opportunity to state that national security concerns never influence DOJ antitrust merger reviews. (Also, the questions did not reference foreign supply chain concerns.)

The HIC investigated Huawei and ZTE. This included requests records, asking questions, traveling to the PRC, and conducting a hearing.

The HIC held a hearing on September 13 titled "National Security Threats Posed by Chinese Telecom Companies Working in the U.S." Charles Ding (Corporate SVP of Huawei) and Zhu Jinyun (SVP for North America and Europe, ZTE) argued that their companies are independent of the government and military of the People's Republic of China (PRC) and do not present security threats to the US or US businesses. See, story titled "House Intelligence Committee Holds Hearing on PRC Telecoms" in TLJ Daily E-Mail Alert No. 2,451, September 19, 2012.

The report is notable for its lack of factual allegations that identify specific acts by either Huawei or ZTE that constitute support for cyber espionage, and cyber warfare activities  by PRC companies, government or military. However, the report does not disclose classified information that the HIC received from US intelligence agencies.

The report emphasizes the lack of cooperation provided by the two companies during the HIC's investigation, and the extensive record or cyber espionage, and theft of trade secrets and intellectual property,  by PRC companies and government. 

This report concludes that the HIC "remains unsatisfied with the level of cooperation and candor provided by" Huawei and ZTE.

"Neither company was forthcoming with detailed information about its formal relationships or regulatory interaction with Chinese authorities. Neither company provided specific details about the precise role of each company’s Chinese Communist Party Committee. Furthermore, neither company provided detailed information about its operations in the United States. Huawei, in particular, failed to provide thorough information about its corporate structure, history, ownership, operations, financial arrangements, or management. Most importantly, neither company provided sufficient internal documentation or other evidence to support the limited answers they did provide to Committee investigators."

This report was prepared by Rep. Roger and Rep. Ruppersburger. It was not subjected to consideration and vote by the full Committee. However, other members of the HIC announced their support.

For example, Rep. Adam Schiff (D-CA) stated in a release that "At a time when Chinese collection intelligence efforts against the United States are significant, and Chinese theft of American trade secrets is rampant, handing critical telecommunications infrastructure to Huawei and ZTE poses too great a threat to our security and economy."

He added that "until the Chinese government takes real steps to curtail Chinese cyber intrusions and the theft of trade secrets, and these firms become far more transparent, the U.S. government and private sector entities must view the provision of critical infrastructure by these two companies as a risky proposition."

See also, stories titled:

• "Legislators Write Genachowski Regarding FCC Authority to Regulate Purchase of Telecom Equipment from PRC" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.
• "House Intelligence Committee Launches Investigation of Huawei" in TLJ Daily E-Mail Alert No. 2,313, October 22, 2011.
• "SASC Approves Defense Authorization Bill with Cyber Warfare and ICT Provisions" in TLJ Daily E-Mail Alert No. 2,397, June 15, 2012.
• "US China Commission Reports that PRC Uses Foreign Assistance to Promote Its Telecom Sector" in TLJ Daily E-Mail Alert No. 2,300, September 13, 2011.
• "Rep. Rogers and Rep. Ruppersburger Write Huawei and ZTE and About Ties to PRC Government" in TLJ Daily E-Mail Alert No. 2,395, June 13, 2012.

10/5. The Executive Office of the President has not yet released are final or draft executive order that attempts to impose a regulatory regime upon US companies for the purpose of promoting cyber security.

Sen. Charles Grassley (R-IA) issued a release on October 5 that states that "the White House called a meeting with Senate staff about the President's upcoming executive order on cybersecurity."

Sen. Grassley stated that "The Senate staff meeting with representatives from the Obama Administration made clear that cybersecurity is a complex topic that should be addressed by the legislative process, rather than by administrative fiat via an Executive Order."

He continued that "The executive branch does not have the legal authority to implement a comprehensive cybersecurity policy. Consequently, an Executive Order could potentially result in intrusive regulation, confusion, gaps in coverage, and uneven application of policy, thus causing more harm than good. The Administration should work constructively with Congress to carefully craft legislation to improve our nation's cybersecurity."

Sen. Grassley is a co-author of S 2151 [LOC | WW], the "SECURE IT Act". Sen. John McCain (R-AZ) is the lead sponsor.

9/19. Sen. John Rockefeller (D-WV) sent a letter [PDF] to the Chief Executive Officers (CEOs) of every one of the Fortune 500 companies regarding S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012" or "CSA". He is a cosponsor.

The Senate Democratic leadership released the latest version of this bill just before bringing it to the Senate floor for a vote, without committee hearings, committee mark ups, or opportunity for debate and amendment in the full Senate.

Sen. Rockefeller (at right) stated that he "was profoundly disappointed" that the Senate did not pass this bill. This letter contains numerous written interrogatories, which Sen. Rockefeller wants answered by 500 CEOs.

He explains that he sends these letters because "business lobbying groups and trade associations, most notably the United States Chamber of Commerce" opposed the bill.

It is unusual for a Committee Chairman to write such a letter to such a large number of people. Committees sometimes write letters soliciting information from companies, groups or individuals, but these are limited in number, and narrowly targeted. For example, Committees often send letters to people or entities when the Committee is investigating potential wrongdoing by persons or entities regulated by an executive branch agency over which the Committee exercises oversight jurisdiction. But, that is not the case here.

Moreover, Sen. Rockefeller sent most of these letters to companies that provide no equipment, software, or services related to the internet or information technologies. Most of these letters went to companies that do not provide any critical infrastructure that would be targeted in cyber attacks.

Indeed, Sen. Rockefeller sent letters to companies that make and/or sell candy, soft drinks, women's make up, children's toys, shoes, movies, junk food, coffee, gambling services and other things that are not on the cyber target lists of America's enemies.

In addition, the some of the questions are polemic, and inaccurately describe the contents of this bill. For example, the bill would authorize the government to impose mandates. However, one question presumes that the bill would merely create a "voluntary program".

The letter states that it asks for recipients' "views on cybersecurity". However, the letter asks no questions about other competing bills in the House and Senate. There are also no questions about developing cyber warfare capability, the defense authorization bill, or the defense appropriations bill.

These 500 letters may constitute an angry retaliatory harangue by a frustrated legislator.

The House will not meet. It is in recess, except for pro forma sessions, until after the November elections.

The Senate will not meet. It is in recess, except for pro forma sessions, until November 13, 2012.

Day one of a two day workshop hosted by the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) titled "Supply Chain Risk Management". The price to attend is $56. See, notice and registration page. Location: NIST, Gaithersburg, MD.

9:30 AM - 4:00 PM. The Office of the U.S. Trade Representative's (OUSTR) Industry Trade Advisory Committee on Small and Minority Business will hold a partially closed meeting. See, notice in the Federal Register, Vol. 77, No. 194, October 5, 2012, Pages 61046-61047. Location: Ronald Reagan International Trade Center.

EXTENDED TO OCTOBER 22. Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of inquiry regarding changing its trademark application filing fees. See, original notice in the Federal Register (FR), Vol. 77, No. 159, August 16, 2012, at Pages 49426-49427. See also, extension notice in the FR, Vol. 77, No. 182, September 19, 2012, at Page 58097.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) in response to its Fourth Further Notice of Proposed Rulemaking regarding establishing and implementing a reconfigured 800 MHz channel plan along the U.S. Mexico border. The PSHSB released its Public Notice [31 pages in PDF] on August 17, 2012. It is DA 12-1343 in WT Docket No. 02-55. See also, August 31 Public Notice, and notice in the Federal Register, Vol. 77, No. 169, August 30, 2012, at Pages 52633-52636.

The House will meet at 2:00 PM in pro forma session.

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

Day two of a two day workshop hosted by the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) titled "Supply Chain Risk Management". The price to attend is $56. See, notice and registration page. Location: NIST, Gaithersburg, MD.

8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "Reforming the Universal Service Fund: What's Changing?". The speakers will be Jeffrey Lanning (CenturyLink), Jennifer McKee (NCTA), Michael Romano (National Telecommunications Cooperative Association), Mike Wilson (CostQuest Associates), and Eliza Krigman (Politico). 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., NCTA TIA, and US Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.

11:00 AM - 2:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development National Coordination Office's Large Scale Networking Coordinating Group's Joint Engineering Team will meet. See, notice in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58415-58416. Location: NSF, 4201 Wilson Boulevard, Arlington, Virginia.

12:15 PM The Federal Communications Bar Association's (FCBA) Wireless and Young Lawyers Committees will host a brown bag lunch titled "The Spectrum Screen and Competitive Analysis of the Wireless Industry". The speakers will be __. No CLE credits. For more information, contact Justin Faulb at JFaulb at eckertseamans dot com or Trey Hanbury at Trey dot Hanbury at sprint dot com. Location: __.

6:30 - 7:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Planning for Technology". The speakers will be Rosanne Ferruggia (University of Maryland), Patrick Lucey (NAF), Greta Byrum (NAF), and Preston Rhea  (NAF). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

7:00 - 9:00 PM. The South Asian Bar Association of Washington DC, Asian Pacific American Bar Association of the Greater Washington DC, and DC Bar Association will host an on site and webcast panel discussion titled "Best Practices for In-House Management of Patent Litigation at the International Trade Commission". The speakers will be Vaishali Upupa (Hewlett Packard), Aarti Shah (Investigative Attorney, U.S. International Trade Commission), and Probir Mehta (Deputy Assistant U.S. Trade Representative). No CLE credits. Register by e-mail at vthompson at bakerlaw dot com. For more information, contact A.J. Dhaliwal at 202-461-2932. See, notice. The DC Bar has a history of barring reporters from its events. Location: Baker Hostetler, 1050 Connecticut Ave., NW.

EXTENDED TO OCTOBER 23. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding proposed changes to the FCC's policies and procedures for assessing and collecting regulatory fees. The FCC adopted this NPRM on July 13, 2012, and released it on July 17, 2012. It is FCC 12-77 in MD Docket No. 12-201. See, original notice in the Federal Register (FR), Vol. 77, No. 160, August 17, 2012, at Pages 49749-49773, and extension notice in the FR, Vol. 77, No. 193, October 4, 2012, at Pages 60666-60667.

7:45 AM - 5:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. See, notice in the Federal Register Vol. 77, No. 189, September 28, 2012, at Pages 59674-59675. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet. See, notice in the Federal Register, Vol. 77, No. 192, October 3, 2012, at Pages 60438-60439. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.

12:00 NOON. The World Wide Web Consortium's (W3C) Tracking Protection Working Group will meet by teleconference. The call in number is 1-617-761-6200. The passcode is TRACK (87225).

12:00 NOON - 2:00 PM. The National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure will meet online and on site. See, notice in the Federal Register, Vol. 77, No. 185, September 24, 2012, at Page 58871. Location: NSF, 4201 Wilson Blvd., Room 1295, Arlington, VA.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host a brown bag lunch titled "The PSTN to IP Transition. What Comes Next After Intercarrier Compensation Reform?". The speakers will be __. No CLE credits. Location: Wiley Rein, 1750 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Strategic and Effective Litigation Before the Trademark Trial and Appeal Board". The speakers will be Cheryl Butler (Interlocutory Attorney, TTAB), Mary Kevlin (Cowan Liebowitz & Latman), Angela Lykos (Administrative Trademark Judge, TTAB), and Jonathan Hudis (Oblon Spivak). Prices vary. CLE credits. See, notice.

5:30 - 7:30 PM. The American Bar Association (ABA) will host an event titled "Mixing Antitrust and IP: A Social Mixer". The speakers will be Maureen Ohlhausen (FTC Commissioner), Renata Hesse (Deputy Assistant Attorney General), and Gail Levine (Verizon). No CLE credits. See, notice. Location: Wilson Sonsini, 5th floor, 1700 K St., NW.

7:45 AM - 12:45 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Engineering. See, notice in the Federal Register Vol. 77, No. 189, September 28, 2012, at Pages 59674-59675. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

9:00 AM - 5:00 PM. The Federal Trade Commission (FTC) will host an event titled "FTC Robocall Summit". Free. Open to the public. See, notice and agenda. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 - 10:00 AM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Cartel Enforcement Around the World: Chapter 6: Taiwan, Singapore & India". The speakers will be Mark Rosman (Wilson Sonsini), Liehling Wu (Taiwan Fair Trade Commission), Ng Ee Kia (Drew & Napier), and Vinod Dhall (Dhall Law Chambers). Free. No CLE credits. See, notice.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in PMCM TV v. FCC, App. Ct. No. 11-1330. This is an appeal from an order of the FCC denying applications to reallocate VHF TV licenses under 47 U.S.C. § 331(a). See, FCC brief [89 pages in PDF]. Judges Garland, Tatel, and Kavanaugh will preside. This is the third item on the Court's agenda. Location: Courtroom 11, 4th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

11:45 AM - 2:30 PM. The Free State Foundation (FSF) will host an event titled "Ideas for Communications Law and Policy Reform for 2013". The speakers will include FCC Commissioner Robert McDowell, Randolph May (FSF), Robert Atkinson (Information Technology & Innovation Foundation), James Gattuso (Heritage Foundation), David Honig (Minority Media & Telecommunications Council), and Adam Thierer (Mercatus Center). Open to the public. Registration required: send e-mail to kbaker at freestatefoundation dot org. Lunch will be served. Location. National Press Club, 13th Floor, 529 14th St., NW.

1:00 - 5:00 PM. The Department of State's (DOS) Advisory Committee on Private International Law's (ACPIL) Online Dispute Resolution (ODR) Study Group will meet. The purpose is to prepare for November 5-9, 2012 meeting of the United Nations Commission on International Trade Law Working Group III  regarding online dispute resolution pertaining to cross border electronic commerce transactions. See, notice in the Federal Register, Vol. 77, No. 184, September 21, 2012, at Page 58607. Location: DOS, Navy Hill, Room 240, South Building, 2430 E St., NW.

3:00 - 4:30 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "A Debate: Is the American Economy in Decline?". The speakers will be Robert Atkinson (ITIF, author of the book titled "Innovation Economics: The Race for Global Advantage"), Edward Luce (Financial Times, author of the book titled "Time to Start Thinking: America in the Age of Descent"), and Daniel Gross (author of the book titled "Better Stronger Faster: The Myth of American Decline ... and the Rise of a New Economy") . See, notice. Location: Woodrow Wilson Center for International Scholars, 5th Floor Conference Room, 1300 Pennsylvania Ave., NW.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Meet the Bureau and Office Chiefs Reception". Prices vary. See, notice and registration form. Location: Capital Hilton, 1001 16th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the three robocallers' petitions for reconsideration of the FCC's order [48 pages in PDF] regarding implementation of the Telephone Consumer Protection Act (TCPA) and telemarketing robocalling. The FCC adopted and released this order on February 15, 2012. It is FCC 12-21 in CG Docket No. 02-278. See, petition [23 pages in PDF] of the Professional Association for Customer Engagement, petition [2 pages in PDF] of Marketlink, Inc., and petition [5 pages in PDF] of SatCom Marketing LLC. They object to, among other things, the abandoned call opt-out provision. See also, notice in the Federal Register, Vol. 77, No. 192, October 3, 2012, at Page 60343.

The Senate will meet at 11:00 AM in pro forma session.

Day one of a two day event titled "2012 National Trademark Expo". Free. Open to the public. See, notice. Location: U.S. Patent and Trademark Office (USPTO), Alexandria, VA.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "America Invents Act: Understanding the New Post-Grant and Inter Partes Review Proceedings". The speakers will be __. Prices vary. CLE credits. See, notice.

Extended deadline to submit comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding creating a small copyright claims process. See, original notice in the Federal Register (FR), Vol. 77, No. 164, August 23, 2012, at Pages 51068-51071, which contains the NOI. See also, extension notice in the FR, Vol. 77, No. 179, September 14, 2012, at Pages 56874-56875, which extends the deadline from September 26 to October 19. See also, stories titled "Copyright Office Seeks Comments on Creating a Process for Adjudicating Small Copyright Claims", "Orphan Works Legislation and Adjudicating Small Copyright Claims", and "Summary of First Round of Comments on Creating a Process for Adjudicating Small Copyright Claims" in TLJ Daily E-Mail Alert No. 2,445, September 11, 2012.

Day two of a two day event titled "2012 National Trademark Expo". Free. Open to the public. See, notice. Location: U.S. Patent and Trademark Office (USPTO), Alexandria, VA.

10:30 AM - 1:00 PM. The Heritage Foundation (HF) will host an event titled "The Economic and Security Direction of the New Chinese Government". There will be two panels. The first is titled "Politics and Security". The speakers will be Cheng Li (Brookings Institution), Chris Yung (National Defense University), Dean Cheng (HF), and Walter Lohman (HF). The second panel is titled "Economics". The speakers will be Arvind Subramanian (Peterson Institute for International Economics), Melanie Hart (Center for American Progress), Derek Scissors (HF), and Terry Miller (HF). Free. Open to the public. Live webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Taking the RAND Case to Trial". The speakers will be Eric Benisek and Richard Vasquez (both of Vasquez Benisek & Lindgren). Prices vary. CLE credits. See, notice.

Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division regarding the proposed final judgment in US v. Verizon, D.C. No. Case 1:12-cv-01354. See, notice in the Federal Register, Vol. 77, No. 164, August 23, 2012, at Pages 51048-51064. See also, story titled "DOJ Approves Verizon Cable Deals" in TLJ Daily E-Mail Alert No. 2,429, August 15, 2012.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of inquiry regarding changing its trademark application filing fees. See, original notice in the Federal Register (FR), Vol. 77, No. 159, August 16, 2012, at Pages 49426-49427, and extension notice in the FR, Vol. 77, No. 182, September 19, 2012, at Page 58097.

11/15. Many in federal government are not following ordinary procedure, as specified by the Constitution and the rules of the House and Senate, to address cyber security.

For example, the Congress has not enacted any legislation that gives the President or any executive agency or commission authority to regulate private companies' business practices related to cyber security. There are pending bills, but none has been enacted.

The Constitution provides that "All legislative Powers herein granted shall be vested in a Congress ...". The Constitution gives the President "executive Power", and authority to "take Care that the Laws be faithfully executed".

Yet, if the President were to issue an executive order, as members of his administration have said he might do, directing the Department of Homeland Security (DHS) to regulate the cyber security practices of critical infrastructure providers, this would be an exercise of legislative authority which he does not have.

Second, the action by Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersburger (D-MD), the Chairman and ranking Democrat of the House Intelligence Committee (HIC) regarding Huawei, ZTE and the regulation of US companies' acquisitions and supply chain processes is also extraordinary.

The HIC and its Senate counterpart were created by the House and Senate to exercise oversight over federal intelligence agencies and operations, and occasionally enact laws that specify the authorities and activities of these agencies.

First, it should be noted that even the concept of executive branch oversight is conspicuously absent from the Constitution's enumeration of Congressional powers. But, what Rep. Rogers and Rep. Ruppersburger are essentially attempting is oversight over non-governmental private sector companies, a power which they do not have. Moreover, their report [60 pages in PDF] is not an action of the Congress, or even the HIC. It is an action of only two members.

Third, while Senate Democratic leaders have taken steps related to legislating, they have not followed Senate procedure.

S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012" or "CSA" is the bill backed by Senate Majority Leader Harry Reid (D-NV). It is also President Obama's favored bill. However, this is a hastily drafted bill, vast swaths of which read like a first discussion draft. Key terms remain undefined. Some powers are vaguely stated and would fail to put regulators and companies on notice of their meaning. Critical issues are left unaddressed.

Ordinary Senate procedure would be to assign the bill to committees with jurisdiction (which has not yet occurred), conduct committee hearings (which has not yet occurred), hold committee mark ups to amend and clarify the bill (which has not yet occurred), and then bring an amended bill to the floor under a process that allows further amendment.

Sen. Reid skipped the entire committee process, and then brought a premature bill to the floor without opportunity for full debate and amendment, just before the August recess. Not surprisingly, the Senate did not pass any bill.

10/4. Catherine Ashton (at right), a senior European Commission official, gave a speech in Budapest, Hungary, titled "Cyber security: an open, free and secure Internet". Her title is "High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the European Commission"

10/1. President Obama issued a proclamation that proclaims that October is "National Cyber Security Awareness Month". See, notice in the Federal Register, Vol. 77, No. 193,  October 4, 2012, Pages 60607-60608. See also, Department of Homeland Security (DHS) release and National Cyber Security Alliance release.

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