|Senate Again Rejects Cloture on Bill to
Impose Cyber Security Regulatory Regime
11/14. The Senate rejected a motion to invoke cloture on S 3414
PDF], the "Cybersecurity Act of 2012", by a vote of 51-47, late on
Wednesday, November 14. See,
Roll Call No. 202.
The Senate rejected a cloture motion on the same bill, with an almost
identical roll call vote, on August 2. See,
Roll Call No. 187. That motion failed by a vote of 52-46. A super majority
of 60 is required to pass a cloture motion.
The outcome of the November 14 vote was not in doubt. Rather,
Sen. Harry Reid (D-NV), the Senate
Majority Leader, may seek to create a record that President Obama will reference
if he issues an executive order that attempts to establish a cyber security
Sen. Reid stated in a
release after the vote that "Given Republican intransigence, I hope
President Obama uses all the authority of the executive branch at his disposal
to fully protect our nation from the cyber security threat. Republicans today
showed we cannot count on them to take this threat seriously."
Sen. John Rockefeller (D-WV)
stated in a
release after the vote that "Once again, Senate Republicans have
chosen to filibuster much-needed cybersecurity legislation".
Sen. Charles Grassley (R-IA) stated
in the Senate that "No one disputes the need for Congress to address cybersecurity.
However, members do disagree with the notion this problem requires legislation that
increases the size of the federal government bureaucracy and places new burdens and
regulation on businesses."
He continued that "Disagreements
over policy should be openly and freely debated. Unfortunately, this isn’t how
the debate on cybersecurity proceeded. Instead, before a real debate began last
August, the majority cut it off. This was contrary to the majority’s promise
earlier this year of an open amendment process to address cybersecurity."
Sen. Grassley also took issue with the bill's delegation of authority to
the Department of Homeland Security (DHS). He
reviewed the DHS's recent performance in implementing the Chemical Facility
Anti-Terrorism Standards (CFATS) program. He then stated, "I'm baffled why the
Senate would take an agency that has proven problems with overseeing critical
infrastructure, and give them chief responsibility for our country's
And, he complained about the failure to follow Senate procedure -- particularly
the lack of a "full and open amendment process".
Sen. Kay Hutchison (R-TX)
stated that the lack of debate and an amendment process "is unacceptable because
though we have worked diligently with the sponsors of the cybersecurity bill on
the floor, a number of ranking members of the relevant committees that have
jurisdiction over cybersecurity have an alternative bill, the SECURE IT Act,
that we would like to be able to put forward as an alternative or have an
amendment process that would allow our approach to have a chance to prevail
See also, Business Software Alliance (BSA)
Analysis of Vote. Expectedly, the roll call votes on August 2 and
November 14 were almost identical. Not only were the totals almost the same, but
almost all individual Senators voted the same way in both votes.
For the most part, Democrats voted to invoke cloture, and Republicans voted
against invoking cloture.
Four Republicans backed President Obama and voted yes both times:
Sen. Scott Brown (R-MA),
Sen. Susan Collins (R-ME),
Sen. Olympia Snowe (R-ME) and
Sen. Richard Lugar (R-IN). Notably, all but
Sen. Collins are now lame duck Senators, who will not return for the 113th Congress
Five Democrats defied President Obama and the Senate Democratic leadership,
and voted no both times: Sen. Jon Tester
(D-MT), Sen. Max Baucus (D-MT),
Sen. Mark Pryor (D-AR),
Sen. Jeff Merkley (D-OR), and
Sen. Ron Wyden (D-OR) voted no both
times. All five will return for the 113th Congress.
Two Senators switched their votes, in opposite directions.
Sen. Dan Coats (R-IN) voted yes on
August 2, and no November 14. Sen.
Harry Reid (D-NV), the Senate Majority Leader, voted no on August 2, but only to
preserve his procedural right to bring a motion to reconsider. He voted yest on
Sen. Mark Kirk (R-IL) and
Sen. Marco Rubio (R-FL) did not vote
on August 2. Sen. Daniel Inouye
(D-HI) and Sen. Kirk did not vote on November 14. Sen. Rubio voted no on
November 14, while Sen. Inouye voted yes on August 2.
There is no reason, based on the August 2 and November 14 votes, and the results
of the November 6 Senate elections, to expect that President Obama and Sen. Reid
could garner 60 votes to invoke cloture to obtain an up or down vote without further
process in the 113th Congress.
See also, story titled "Senate Rejects Cloture on Sen. Lieberman's Cyber
Security Bill" in
TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.
Summary of S 3414 and Competing Bills. Title I of S 3414 would
impose a new regulatory regime on private sector entities to be specified by
regulators. The bill would give the federal government authority to impose cyber
security standards on such companies and other entities. Much of the opposition
to this bill, both inside and outside the Senate, derives from this Title I.
However, S 3414 would also create end runs around the 4th Amendment, 5th
Amendment due process, the Wiretap Act, Stored Communications Act, state wiretap
laws, and generally, individuals' and business's legitimate expectations of
privacy in electronic communications and stored data. Some Senators, such as
Sen. Wyden, oppose the bill for this reason.
See also, story titled "Summary of S 3414" and related stories in
TLJ Daily E-Mail
Alert No. 2,415, July 30, 2012.
Sen. Lieberman did not introduce this bill until July 19. Moreover, it is 214
pages long, complex, technical, and on some topics, vague or incomplete. On
August 2 Senators had not yet had time to study the bill, and receive input from
constituents and affected entities. The only thing that changed for the November
14 vote was time available to study the bill.
What has remained unchanged is the text of the bill, and the closed process
that Sen. Reid has imposed upon the Senate. There have been committee hearings,
no committee markups, no opportunity to consider alternative proposals, and no
opportunity to amend the bill on the Senate floor.
There is a competing bill with much support that Sen. Reid will not bring up
on the floor, S 2151
"Secure IT Act", sponsored by Sen.
John McCain (R-AZ). This bill would not impose government mandates.
Also, the House has already passed a bill, HR 3523
the "Cyber Intelligence Sharing and Protection Act" or "CISPA",
which Sen. Reid will not bring up on the floor. The CISPA is a limited bill,
directed at incenting cyber threat information sharing, in part by providing
immunities. CISPA would not provide create a new government regulatory regime.
For more on the CISPA, see:
titled "House Passes CISPA" and story titled "Amendment by Amendment
Summary of House Consideration of CISPA" in
TLJ Daily E-Mail
Alert No. 2,380, April 25, 2012.
- stories titled "Sponsors Agree to Some Amendments to CISPA", "Obama EOP
Opposes CISPA" and "Rep. Lofgren Announces Key Concerns with CISPA" in
TLJ Daily E-Mail
Alert No. 2,379, April 24, 2012.
- stories titled "House to Consider CISPA on April 26-27" and "Advocates of
Limited Government Request Changes to CISPA" in
TLJ Daily E-Mail
Alert No. 2,377, April 21, 2012.
- story titled "House Committees to Mark Up Cyber Security Bills" in
TLJ Daily E-Mail
Alert No. 2,373, April 17, 2012.
- stories titled "Update on CISPA and Related Bills" and "Anonymous Launches
DDOS Attack on Supporters of CISPA" in
TLJ Daily E-Mail
Alert No. 2,367, April 10, 2012.
titled "Representatives Introduce Cyber Threat Information Sharing Bill" in
TLJ Daily E-Mail
Alert No. 2,316, November 30, 2011.
|House Republicans Elect Leadership for 113th
11/14. House Republicans met to elect its leaders for the 113th Congress.
Rep. John Boehner (R-OH) will once again be the Republican candidate for Speaker
of the House. See, Rep. Boehner's
release. His election in January is a formality.
Rep. Eric Cantor (R-VA) was re-elected
House Majority Leader. He stated in a
release that "we went through a tough week last week as a party, but clearly
the House majority is intact and we are strong".
Rep. Kevin McCarthy (R-CA) was
re-elected House Majority Whip.
Rep. Pete Sessions (R-TX) will be
the Chairman of the House Rules Committee
(HRC). See, Rep. Sessions'
release. The current Chairman, Rep. David Dreier (R-CA), did not run for
re-election to the House.
Rep. Kathy Rodgers (R-WA) was elected
Conference Chairman. See, Rep. Rodgers'
release. She defeated Rep. Tom Price (R-GA).
Rep. Greg Walden (R-OR) was elected
Chairman of the National Republican Campaign
Committee (NRCC). Rep. Walden is also the Chairman of the House Commerce
Committee's (HCC) Subcommittee on Communications and Technology. Rep. Walden
stated in a
release that he "will also remain as chairman of the House subcommittee that
oversees communications and technology policy in the House".
Rep. Sessions was Chairman of the NRCC for the 112th Congress.
The NRCC is responsible for electing Republicans to the House in the 2014
elections. Hence, Rep. Walden will be fund raising, recruiting candidates,
providing assistance to candidates, and generally working to maintain and expand
the Republican majority in the House.
Rep. James Lankford (R-OK) was elected Policy Committee Chairman, Rep. Lynn
Jenkins (R-KS) was elected Conference Vice-Chair, Rep. Virginia Foxx (R-NC) was
elected Conference Secretary, Rep. Tim Scott (R-SC) was elected Sophomore
Representative, and Rep. elect Ann Wagner (R-MO) was elected Freshman
|Rep. Sensenbrenner Seeks Chairmanship of
House Science Committee
11/7. Rep. James Sensenbrenner
(R-WI) announced in a
release that he now seeks the Chairmanship of the
House Science Committee (HSC).
Rep. Lamar Smith (R-TX) has not yet
publicly announced his candidacy. However, he is a senior member of the HSC, and
he is term limited from continuing as Chairman of the
House Judiciary Committee (HJC).
Sensenbrenner (at right) stated that his priorities include science, technology,
engineering and mathematics (STEM) education. He also stated that "The Obama
Administration has shown its willingness to manipulate science for political ends
and threaten our domestic energy production and our economy in the process. I have
a record of effective oversight, and I will continue to keep the Administration
accountable for their use of science in crafting regulations and policies."
Rep. Sensenbrenner's district does not include the University of Wisconsin at
Madison. However, it is nearby, and is home to many scientists associated with the
University. Rep. Sensenbrenner has long advocated their interests in legislative
debates regarding patent law. Rep. Sensenbrenner is also a member of the
House Judiciary Committee (HJC), which
has jurisdiction over patent law.
Rep. Ralph Hall (R-TX), the current
Chairman of the HSC, was also the ranking Republican on the HSC in the 110th and
111th Congresses. House Republican rules limit committee leaders to three terms.
Rep. Sensenbrenner served as Chairman of the HSC during the 105th and 106th
Congresses. He then served as Chairman of the HJC during the 107th, 108th and
109th Congresses. He is currently Chairman of the HJC's Subcommittee on Crime,
Terrorism, and Homeland Security.
|More People and
11/14. Rep. Nancy Pelosi (D-CA)
announced that she will run for Democratic Majority Leader for the 113th
11/14. Senate Republicans held a closed meeting at which they re-elected
Mitch McConnell (R-KY) to be Senate Minority Leader for the 113th
Sen. John Cornyn (R-TX) was
elected Senate Minority Whip, Sen. Jerry
Moran (R-KS) was elected Chairman of the
National Republican Senatorial Committee (NRSC). Sen. elect Ted Cruz
(R-TX) was elected NRSC Vice Chairman for grass-roots organizing.
Sen. Rob Portman (R-OH) was
elected NRSC Vice Chairman for fundraising.
Sen. John Thune (R-SD) was
elected Conference Policy Chairman, and
Sen. Roy Blunt (R-MO) was elected
Vice Chairman. Sen. John Barrasso
(R-WY) was elected Policy Committee Chairman.
11/14. Senate Democrats held a closed meeting at which they re-elected
Sen. Harry Reid (D-NV) to be
Senate Majority Leader for the 113th Congress.
11/12. Microsoft announced in a
release that Steven Sinofsky, President of Windows and Windows Live,
will leave Microsoft, and that Julie Green "will be promoted to lead all
Windows software and hardware engineering". Also, Tami Reller remains CFO
and Chief Marketing Officer and "will assume responsibility for the business of
Windows". Microsoft released Windows 8 to manufacturers on August 1, 2012, and
to the public on October 26, 2012.
|This issue contains the following items:
• Senate Again Rejects Cloture on Bill to
Impose Cyber Security Regulatory Regime
• House Republicans Elect Leadership for 113th Congress
• Rep. Sensenbrenner Seeks Chairmanship of House Science Committee
• More People and Appointments
• More News
New items are highlighted in
|Thursday, November 15
The House will meet at 10:00 AM. It will consider
HRes 808, a resolution providing for the consideration of HR 6156
the "Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule
of Law Accountability Act of 2012".
The Senate will meet at 9:00 AM. It
is scheduled to vote on the motion to invoke cloture on S 3525
the "Sportsmen Act of 2012".
10:00 AM. The House
Intelligence Committee (HIC) will hold a closed hearing. See,
notice. Location: Room HVC-304, Capitol Visitor Center.
10:00 - 11:30 AM. The
Heritage Foundation (HF) will host a panel discussion titled "The
Impact of Sequestration on American Interests in Asia". The speakers
will be Rep. Buck McKeon (R-CA) (Chairman
of the House Armed Services Committee),
Winter (University of Michigan),
(Center for Naval Analyses),
(HF). Free. Open to the public. The HF will live webcast this event. See,
Location: HF, 214 Massachusetts Ave., NE.
12:15 - 1:30 PM. The Federal Communications Commission
(FCC) will host a meeting titled "Results of the FCC’s Mobility Fund
Phase I Auction: Using a Market-Based Approach to Distribute High Cost
Universal Service Support. Speakers". The speakers will be Jane
Jackson ( Associate Chief of the FCC' Wireless Telecommunications Bureau)
and Margaret Wiener (Chief of the FCC's Wireless Telecommunications
Bureau's Auctions and Spectrum Access Division). The FCBA states that this is a
brown bag lunch of its Wireless Telecommunications Committee. Location: Hogan
Lovells, Moot Court Room, Lower Level, 555 13th St., NW.
2:30 PM. The Senate
Intelligence Committee (SIC) will hold a closed hearing. See,
notice. Location: Room 219, Hart Building.
6:00 - 8:15 PM. The Federal
Communications Bar Association's (FCBA) Wireline Committee will host a
presentation titled "High Cost and Low-Income USF Reform One Year
Later: A Progress Report". The speakers will be Jennifer Ullman (FCC/USAC),
Jeff Lanning (CenturyLink), David LaFuria (Lukas Nace Gutierrez & Sachs),
Danielle Frappiere (Davis Wright Tremaine), and Steve Augustino (Kelley Drye &
Warren). CLE credits. See,
notice. Location: Davis Wright Tremaine,
Suite 800, 1919 Pennsylvania Ave., NW.
|Friday, November 16
The House will meet at 9:00 AM.
8:30 AM. The National
Press Club (NPC) will host a panel discussion titled "Get It Online:
The Online Election -- Social Media and the 2012 Presidential Race". The
speakers will be David Almacy (Edelman), Colin Delany (Epolitics.com), Alex
Howard (O'Reilly Media), Emily Schulthe (Politico), and Anthony Shop (Social
Driver). The price to attend is $10. Tickets required. See,
notice. Location: NPC, 13th floor, 529 14th St., NW.
9:00 AM - 3:00 PM. The Department of Commerce's (DOC)
Bureau of Economic Analysis's (BEA)
BEA Advisory Committee will meet. See,
notice in the Federal Register, Vol. 77, No. 194, October 5, 2012, at
Pages 60965-60966. Location: BEA, 1441 L St., NW.
9:30 AM - 12:00 NOON. The
New America Foundation (NAF) will
host an event titled "Dark Money, Media and the 2012 Campaign".
The speakers will include Michael Copps, Matea Gold (Los Angeles Times), Ellen
Miller (Sunlight Foundation), Jason Reifler (Georgia State University), Craig
Aaron (Free Press), and Mark Lloyd (NAF). See,
notice. Location: NAF, Suite 400, 1899 L St., NW.
Deadline to submit comments to the
Office of the U.S. Trade Representative (OUSTR)
regarding the complaint (request for consultations) filed by the U.S. on
September 18 with the World Trade Organization
(WTO) against the People's Republic of China (PRC) alleging violation of WTO
obligations in connection with PRC government imposition of countervailing and
anti-dumping duties on automobiles exported by the U.S. See,
notice in the Federal Register , Vol. 77, No. 197, October 11, 2012, at
|Monday, November 19
12:15 - 1:30 PM. The Federal
Communications Bar Association's (FCBA) Video Programming and
Distribution Committee will host a brown bag lunch titled "Sky Angel and
Beyond: Are Online Video Providers MVPDs under the Communications Act?"
The speakers will be Matthew DelNero (Covington & Burling), Charles
Naftalin (Holland & Knight), and Michael Schooler (NCTA). Location: Wiley
Rein, 1776 K St., NW.
1:00 - 3:00 PM. The
Department of Homeland Security's (DHS) Federal Emergency Management
Agency's (FEMA) National Advisory Council will meet by teleconference. Open to
the public. See,
notice in the Federal Register, Vol. 77, No. 214, November 5, 2012, at
6:00 - 8:15 PM. The Federal
Communications Bar Association's (FCBA) Broadband Committee will host an
event titled "IP Interconnection: What Is It? What Does It Mean? And
What Is the Law?" The speakers will include Chris Savage (Davis Wright
Tremaine), Richard Shockey, Jeff Lanning
(Century Link), Hank Hultquist (AT&T Services, Inc.), Michael Pryor (Dow
Lohnes), Howard Symons (Mintz Levin), Jon Nuechterlein (Wilmer Hale). CLE credits.
Prices vary. See,
notice. Location: Dow Lohnes, Suite 800, 1200 New Hampshire
Deadline for the U.S.
International Trade Commission (USITC) to submit its report to the
Office of the U.S. Trade Representative
(OUSTR) regarding the probable economic effect of providing duty free
treatment for imports under the U.S. Trans Pacific Partnership Free Trade
notice in the Federal Register, Vol. 77, No. 155, August 10, 2012, at
Deadline to submit comments to the Federal
Trade Commission (FTC) regarding the proposed
consent agreement with Compete, Inc. regarding the use of web tracking
software. This administrative proceeding is FTC File No. 102 3155. See also,
notice in the Federal Register, Vol. 77, No. 209, October 29, 2012, Pages
|Tuesday, November 20
8:00 - 10:00 AM. Broadband Census News LLC will host
a panel discussion titled "International Telecommunications Union Meeting
and the Global Open Internet". The speakers will be __. 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,
NCTA TIA, and US
Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.
TIME? 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,
in the Federal Register, Vol. 77, No. 183, September 20, 2012, at Pages 58415-58416.
Location: NSF, 4201 Wilson Boulevard, Arlington, VA.
|Wednesday, November 21
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its Wireless
Telecommunications Bureau's (WTB) and Office
of Engineering and Technology's (OET)
Public Notice (PN) [8 pages in PDF] regarding refreshing the record in its
wireless microphones proceedings. See, January 2010
R&O and FNPRM [103 pages in PDF] (FCC 10-16). The FCC released this PN on
October 5, 2012. It is DA 12-1570 in WT Docket Nos. 08-166 and 08-167 and ET
Docket No. 10-24. See also,
notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at
Pages 64446-64450. See also, 2008
NPRM and Order (FCC 08-188) and
titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz
Band" in TLJ
Daily E-Mail Alert No. 1,817, August 21, 2008. See also, story titled
"FCC Seeks More Comments on Wireless Microphones" in TLJ Daily E-Mail
Alert No. 2,466, October 23, 2012.
|Thursday, November 22
Thanksgiving Day. This is a federal holiday. See, OPM
of 2012 federal holidays.
11/14. The U.S. China Economic
and Security Review Commission released its 2012
annual report [509 pages in PDF] to the Congress.
U.S. Court of Appeals (DCCir) heard oral argument in Gresham
Communications, Inc. v. FCC, App. Ct. No. 11-1343. This is an appeal of a
Memorandum Opinion and Order of the FCC regarding involuntary transfer of
licenses of delinquent debtor licensees. See, FCC
39 pages in PDF].
11/13. The New America Foundation
(NAF) hosted an event titled "Future of Music Summit".
Sen. Ron Wyden (D-OR) advocated
passage of his bill, S 3609
the "Internet Radio Fairness Act of 2012". He stated, in response
to questions, that if lawyers can agree that Section 5 of the bill, regarding
antitrust exemptions, violates freedom of speech, then it should be revisited.
11/8. The Copyright Office (CO)
in the Federal Register (FR) that announces, describes, recites, and set the
effective date for, interim rules regarding registration of copyrights.
These changes allow groups of related serial issues to be filed through the CO's
electronic registration system, and allow applicants for groups of related
serials, in certain circumstances, to mail physical deposit copies of the serial
issues upon submitting an electronic application and payment, when electronic
deposit copies do not exist. The effective date is November 8, 2012. This notice
contains no request for comments. See, FR, Vol. 77, No. 217, November 8, 2012,
at Pages 66920-66921.
11/7. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS) published a
in the Federal Register (FR) that announces, describes, recites, and sets the
comment deadline for, it proposed rules changes pertaining to voluntary self
disclosures (VSD) of violations of the Export Administration Regulations
(EAR). The deadline to submit comments is January 7, 2013. See, FR, Vol. 77, No.
216, November 7, 2012, at Pages 66777-66780.
11/5. The U.S. Court of Appeals
(DCCir) heard oral argument in Northern Valley Communications v.
FCC, App. Ct. No. 11-1467. This is petition for review of an order of
the Federal Communications Commission (FCC) regarding access charges for
completing long distance calls. AT&T, Verizon, Sprint and Qwest have intervened.
Northern Valley, a small local exchange carrier
in northeastern South Dakota, wants to change long distance companies to complete
calls to its non-paying customers, contrary to FCC rules
(47 C.F.R. § 61.26). See,
brief [77 pages in PDF].
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