|Obama Nominates Caproni for
11/14. President Obama nominated Valerie Caproni to be a Judge of the
U.S. District Court (SDNY). See,
White House news office
Summary of this article:
- Caproni's Biography.
- FBI Violation of Surveillance Laws on Caproni's Watch.
- 2010 House Judiciary Committee Hearing.
- Rep. John Conyers on Caproni.
- Rep. Jim Sensenbrenner on Caproni.
- Caproni Seeks CALEA Regulation of Facebook and Twitter.
- Caproni's Written Record.
- Senate Confirmation Process.
Introduction. Caproni (at
right) was General Counsel of the Department of
Justice's (DOJ) Federal Bureau of Investigation
(FBI) from 2003 through 2011.
She presided over the FBI's Office of
General Counsel (OGC) while the FBI engaged in the illegal surveillance
activities that the DOJ's Office of the
Inspector General (OIG) disclosed in three reports released in 2007, 2008 and
The DOJ/OIG surveillance reports are as follows:
- January 20, 2010 redacted
report [306 pages
in PDF] titled "A Review of the Federal Bureau of Investigation's Use of
Exigent Letters and Other Informal Requests for Telephone Records",
- March 13, 2008,
titled "A Review of the FBI's Use of National Security Letters: Assessment of
Corrective Actions and Examination of NSL Usage in 2006",
- March 9, 2007,
report [PDF] titled "A Review of the Federal Bureau of Investigation's Use
of National Security Letters",
Caproni was responsible for the training of FBI special agents on use of the
statutes authorizing surveillance, and overseeing legal compliance with the law.
For years, during her tenure, FBI agents systematically and blatently violated
surveillance laws. Moreover, the FBI issued hundreds, and perhaps thousands, of
letters, which the FBI named "exigent letters", to phone companies to
acquire records, without any statutory authority at all. To date, Caproni and other
DOJ and FBI officials have escaped pubic disclosure of
the nature and extent of their involvement in this illegal surveillance.
Her role has not been publicly disclosed. Hypothetically, she could have
could have identified and counseled against the violations as they occurred, but
was overridden by more senior officials, and kept her opposition within the DOJ
and FBI, even when she testified before Congress. At the other extreme of
possibilities, she could have been the architect of the illegal surveillance
practices identified by the DOJ/OIG, and others.
Ordinarily, someone who has presided over the systematic violation of federal
law is a more viable candidate for a prison cell than a federal judgeship. On
the other hand, there are terrorists bent on destroying the US by violence, and
the FBI is one of the agencies tasked with detecting and disrupting their plans
via surveillance. Many in law enforcement, intelligence, and the Congress
believe that too many legal restraints are imposed on the good work of dedicated
law enforcement and intelligence professionals. Many probably do not care if an
otherwise law abiding official has violated surveillance laws to protect her
country, and would therefore support, or at least not oppose, her appointment to
the District Court.
Most of Caproni's work at the FBI is not a matter of public record. However,
there is a record of her efforts late in her tenure at the FBI to have the 1994
Communications Assistance for Law Enforcement Act (CALEA) expanded to cover new
information technology services, such as Facebook and Twitter. The FBI's
CALEA proposals, always vague and fluctuating, would have a devastating economic impact
upon service providers, deaden innovation, create new security risks, and
The FBI and other law enforcement and intelligence agencies have long
supported various expansions of the CALEA. The Congress has constantly balked.
However, the Federal Communications Commission (FCC), by administrative fiat,
essentially rewrote the statute in 2005 to include facilities based broadband
service providers and interconnected VOIP providers.
Caproni's Biography. Caproni is currently Deputy General Counsel at
Northrop Grumman Corporation.
While Northrop Grumman is best know for making aircraft and missiles, it also
provides communications equipment, systems and services. Its web site states that
is makes "networked communications products", "intelligence,
surveillance and reconnaissance systems", and "911 public safety
systems". (Northrop Grumman did not promptly respond to inquiries from TLJ.)
She has connections to the Southern District of New York (SDNY), the judicial
district for which she has been nominated, but not of the extent that is typical
of District Court nominees. She grew up in Georgia, went to college in Louisiana at
Tulane, went to law school at the University
of Georgia, and
clerked for a judge of the U.S. Court of
Appeals (11thCir), which includes Georgia.
She then worked as an associate at Cravath
Swain in New York City, in several positions in the
U.S. Attorneys Office for the EDNY,
and as General Counsel of New York state's Urban Development Corporation (now
known as the Empire State Development) in
the 1980s and 1990s.
She then headed the Securities and Exchange
Commission's (SEC) Pacific states office in San Francisco, California. She
was hired, not because of any securities law expertise, but to bring her
prosecutorial background to bolster coordination between the DOJ and SEC on
criminal and civil enforcement. She
then briefly worked at Simpson Thacher &
Bartlett in New York City, before becoming General Counsel of the FBI in
Washington DC for eight years.
Her stints in the private sector have been short, but this is not uncommon
for District Court nominees. Moreover, these private sectors jobs -- Cravath
Swain just after an Appeals Court clerkship, Simpson Thacher just after the SEC
job, and Northrop Grumman just after the FBI job -- is consistent with the
common practice of persons with senior governmental careers in taking brief high
paying private sector jobs to supplement lower paying government incomes.
Many District Court nominees have judicial experience either as a state court
judge, or a federal magistrate judge. Indeed, at the same time that President
Obama nominated Caproni, he also nominated Analisa Torres, who has been a New
York state judge since 2000, to be a judge of the SDNY.
Many District Court nominees have significant experience as trial lawyers.
But, Caproni does not fit this mold either. Caproni's career most resembles
another common path to appointment to the District Court -- that of career
Caproni's most significant criminal case was the 1996-7 prosecution of Lemrick
Nelson in the EDNY for violation of federal civil rights laws. Nelson had killed
Yankel Rosenbaum in 1991 during a race riot in the Crown Heights neighborhood of
Brooklyn, New York. He was tried, but acquitted of murder in state court, before
Caproni headed a second prosecution in federal court. Caproni's trial ended with a
verdict of guilty. However, that verdict was vacated. Nelson was tried again, with
a different prosecutor, found guilty, and served 10 years in prison.
The most significant SEC west coast enforcement action during Caproni's
tenure involved the Mark Jakob Emulex internet news release fraud. See, SEC
release, and story in
E-Mail Alert No. 11, September 1, 2000. The DOJ also criminally prosecuted
Hart. And, there was class action litigation. See,
and story, TLJ,
September 5, 2000.
A member of Sen. Kirsten Gillibrand's
(D-NY) office told TLJ that Sen. Gillibrand and
Sen. Charles Schumer (D-NY)
alternate in selecting District Court nominees for judicial districts in the
state of New York, and that Caproni was Sen. Gillibrand's pick.
This staffer added that "Senator Gillibrand has prioritized putting more
women on the bench".
(at right) stated in a release that "Valerie Caproni and Judge Torres are
both highly experienced and exceptional legal minds ... Their breadth of
experience and knowledge make them ideal to serve on the federal bench. Both are
fair-minded women dedicated to public service. I am confident they would serve
with the highest integrity."
The SDNY is home to many large corporations, financial institutions, and
exchanges. Hence, it is the forum for many major commercial cases. Some
attorneys include New York forum selection clauses in contracts. The SDNY has
also been the forum for some major criminal prosecutions of terrorists.
It might be noted that there is also a federal body, created by
50 U.S.C. § 1803,
titled the "United States Foreign Intelligence Surveillance Court" or
"FISA Court". It is made up of 11 U.S. District Court judges. However, the
President has no authority to appoint its members. Rather, members are selected by
the Chief Justice of the United States, who is currently John Roberts. However,
Caproni's experience in surveillance might make her a candidate for appointment.
The FISA body does not have jurisdiction over cases or controversies. Rather,
it merely has jurisdiction over one ancillary matter, "to hear applications for
and grant orders approving electronic surveillance" under the FISA.
FBI Violation of Surveillance Laws on Caproni's Watch. The DOJ/OIG
released three reports that disclosed long running, egregious and patently
obvious disregard by the FBI for surveillance laws. (These reports did not also
address whether or not other federal agencies ran an illegal wiretapping program.
That issue has not been adjudicated, and the Congress gave retroactive civil and
criminal immunity to the participating communications companies.)
These DOJ/OIG reports do not
disclose the names of the communications companies that were parties to the
violations. These reports do not attach copies of FBI opinion letters, memoranda or
directives that approved, or purported to justify, any of these violations, or
who wrote or approved these documents.
These reports add that the FBI did not
even save many of the National Security Letters (NSLs) and "exigent letters"
involved. So, while the DOJ/OIG found over 700 illegal "exigent letters", there
may have been thousands.
The DOJ/OIG reports do not disclose the extent of Caproni's involvement
and/or misconduct. However, the multitude of violations of law occurred while
she was the chief legal officer and responsible for assuring compliance with
One area where the DOJ/OIG found improper conduct was in the FBI's use of NSLs.
NSL authority exists under federal statute. See,
18 U.S.C. § 2709.
NSLs do not require a warrant or other prior court authorization, and hence, are
inherently subject to abuse. They enable the DOJ's FBI to obtain records,
including subscriber, billing and call records of phone companies and ISPs. NSLs
also apply to libraries to the extent that they are providing an electronic
communication service (ECS).
ECS is a term created by the 1986 Electronic Communications Privacy Act (ECPA),
based upon technology as it existed prior to the enactment of the ECPA. The
application of this and other 1986 terms to current technologies is no longer
clear, and in the hands of FBI lawyers, is quite elastic and expansive. Indeed,
many key provisions of the quarter century old ECPA are hopelessly vague in
light of technologies developed since 1986. ECS is defined at
18 U.S.C. § 2510.
The statute provides that only certain high ranking DOJ officials can
authorize NSLs. But, the OIG found "improper or illegal use" of NSLs
by issuance without proper authorization.
NSLs can only be be issued for authorized information. But, the OIG found
issuance with proper authorization but for information that was not authorized.
The OIG also found improper requests, and unauthorized collectio of telephone and
e-mail transaction records.
Another area where the DOJ/OIG found improper conduct was in the use of
Section 215 authority. Section 215 of the 2001 USA PATRIOT Act rewrote Section 501
of the Foreign Intelligence Surveillance Act (FISA), which is codified at
50 U.S.C. § 1861. This is the section of the FISA that provides for "Access
to Certain Business Records for Foreign Intelligence and International Terrorism
This 215/501/1861 authority enables the FBI to obtain from a judge or magistrate
an order requiring the production business records, including library and bookseller
This section further provides that if the government submits an application to
the court that states that there are "reasonable grounds to believe that the
tangible things sought are relevant to an authorized investigation", then the
"judge shall enter an ex parte order as requested".
This is a very low standard, and the judge is left with no discretion.
A third area where the DOJ/OIG found improper conduct by the FBI was in the use
of "exigent letters" to obtain phone records from communications companies
to, among other things, "target" reporters at the Washington Post
and New York Times, which first reported the
National Security Administration's
(NSA) warrantless wiretap program. (See, report at pages 250-252.)
The NYT was the first to report this NSA program. It published a
James Risen and Eric Lichtblau on December 16, 2005, titled "Bush Lets U.S. Spy
on Callers Without Courts". It stated that "President Bush secretly authorized
the National Security Agency to eavesdrop on Americans and others inside the
United States to search for evidence of terrorist activity without the
court-approved warrants ordinarily required for domestic spying, according to
government officials." See also, story titled "President Bush Discloses
Interception of Communications Without Court Approval" in
TLJ Daily E-Mail
Alert No. 1,275, December 19, 2005, and
titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT
Act" in TLJ Daily
E-Mail Alert No. 1,276, December 20, 2005.
The concept underlying the use of these "exigent letters" was that the
FBI could access records by issuing a letter to communications companies in the event
of an emergency, that specified the emergency, and the records sought. These involved
no court approval, no notice to affected individuals, and hence, no opportunity to bring
legal challenges. However, unlike NSLs and
Section 215 orders, for which statutory authority exists, there was no statutory
basis for these "exigent letters". The FBI fabricated legal authority out of thin air.
Thus, in the case of issuance of "exigent letters", the failure to
follow the law arose, not out of misconstruing a complicated statute, but in applying
a non-existent authority as if it existed.
The OIG found, of course, that the mere use of "exigent letters" violated the
law. But moreover, the OIG found that the FBI then proceeded to violate its own
purported basis for these letters. For example, it issued "exigent letters" when
there was no emergency.
The FBI did not save many "exigent letters". Moreover, many "letters" were
not even letters. They were conversations, emails, or post it notes.
Furthermore, the OIG found that the communications companies colocated within
the FBI, worked as part of their "team", and wrote some of the "exigent
2010 House Judiciary Committee Hearing. The
House Judiciary Committee's (HJC)
Subcommittee on the Constitution, Civil Rights and Civil Liberties held a hearing
on April 14, 2010, at which Caproni testified. See,
hearing record and transcript.
Caproni did not disclose how many "exigent letters" were issued, or
how many were destroyed before the OIG conducted its investigation. She conceded
only that the OIG had found "over 700 exigent letters". Nor did she
disclose what she knew, and when she knew it.
She dismissed the FBI's use of "exigent letters", as "a
failure of internal controls at the FBI". She also said that the "law
did not get sufficiently inculcated into our workforce".
Caproni is a former DOJ prosecutor and SEC enforcer. Her defendants were
not afforded the insufficient inculcation defense, or failure of internal controls
She said that the DOJ/OIG provided a "wake up call", and that the FBI
has "improved its policies" for accessing information protected by the
Neither the OIG, nor Caproni in her April 14 testimony, disclosed the
companies or officials that conspired with the FBI to violate surveillance laws.
However, Rep. Hank Johnson (D-GA), who
participated in the April 14 hearing, stated that "Through exigent letters,
companies such as AT&T, Verizon, and MCI have provided the FBI with telephone
records on American citizens". Caproni did not admit or deny this.
Glenn Fine, the Inspector General at the time, also testified at the April 14 hearing. He
said that "Our report found that from March 2003 to November 2006, FBI personnel
in the Communications Analysis Unit (CAU), issued at least 722 exigent letters for
more than 2,000 telephone records to the three telecommunications service providers
located at the FBI. We found that, contrary to the statements in the letters, emergency
circumstances were not present when many of the letters were issued. Also contrary to
the letters, in most cases subpoenas had not been sought for the records. In addition,
our investigation found widespread use of even more informal requests for telephone
records in lieu of appropriate legal process or qualifying emergency. For example,
rather than using national security letters, other legal process, or even exigent
letters, FBI personnel frequently sought and received telephone records based on
informal requests they made to the onsite telecommunication employees by e-mail,
by telephone, face to face, and even on Post-it notes. FBI personnel made these
kinds of informal requests for records associated with at least 3,500 telephone
numbers, although we could not determine the full scope of this practice because
of the FBI’s inadequate record-keeping."
Fine added that "Our report concluded that the exigent letters and other
informal requests for telephone records represented a significant breakdown in the
FBI’s responsibility to comply with the law, Attorney General guidelines, and FBI
In an exchange with Rep. Johnson, Fine said that "There is a ECPA statute
that they needed to follow. They didn't follow it. They simply used this process,
and when people had questions about it, they didn't adequately address the questions.
They just simply went on with the process, and it was improper, it was inappropriate,
and it was wrong."
The OIG provided only limited information in the three reports. The publicly
released versions were redacted. And, Fine stuck to the content of the reports
in his testimony.
What is also notable is what is not in the reports, and what did not happen
at the hearing. The reports did not disclose the three companies that
cooperated with the FBI, why they did so, what legal opinions they received from
the FBI, what were there own legal interpretations of the legality of their
actions, what promises of immunity they received, and what else they got in
return. Conspicuously, no representatives of the phone companies testified at
Equally conspicuous was the absence from the witness table of any of the
special agents of the FBI whose job it was to obtain records with Section 215
orders, NSLs, and "exigent letters". Hence, no agents testified regarding what
legal training, instructions or advice they received from Caproni or the FBI Office
of General Counsel.
No one asked Caproni, or the non-present phone company witnesses, for
example, what impact phone company cooperation on NSLs, "exigent letters",
warrantless wiretaps, and other surveillance matters has had on DOJ antitrust
merger reviews, DOJ recommendations on Section 271 applications, the award of
government contracts, or DOJ decisions to prosecute phone company officials. No
one asked if phone companies, or internet service providers, have received
disparate enforcement, regulatory, prosecutorial, or procurement treatment
according to the level of their assistance on surveillance related matters.
Also, no one asked Caproni, or the absent phone company representatives,
regarding the meaning of supervisory silence in FBI surveillance operations.
That is, if an agent informs his superiors that he or his unit will engage in a
course of action, and is not countermanded, then should that agent take that
silence as approval. The concept is common to many types of institutions.
Moreover, the concept is ancient. Qui tacet consentire videtur, ubi loqui debuit
ac potuit. However, the concept is rejected by other institutions.
Hypothetically, it is possible that the FBI was not populated with rogue
agents who knowingly violated the ECPA. Rather, these agents were keeping their
superiors informed of what they intended to do, and in fact did, with NSLs and
"exigent letters", but were never countermanded, and took this silence as
legal approval. It is further possible that Caproni relied upon this understanding,
did nothing, created no paper record, and thereby led agents to believe they were
acting in accordance with law and FBI policy. And then, when she appeared before
the HJC she pretended that she was
shocked shocked to
learn that ECPA violations is going on in here. But, no one asked her the
Rep. John Conyers on Caproni. Rep. John
Conyers (D-MI) expressed outrage at the April 14 hearing.
He was Chairman of the
House Judiciary Committee (HJC) in 2010. However,
Rep. Jerrold Nadler (D-NY) presided at the
April 14 hearing as the then Chairman of the Subcommittee on the Constitution.
Many Democrats were critical of government surveillance practices during the
Bush administration, but ceased their criticism when it became apparent that
the Obama administration would be indistinguishable from the Bush administration
on surveillance. In contrast, Rep. Conyers has remained consistent across
administrations in his criticism of surveillance abuses, in his opposition to
expansion of federal surveillance powers, and in
his advocacy of ECPA reform.
Also, many Republicans and Democrats have openly opposed certain government
surveillance related activities when information and communications technology (ICT)
companies are economically burdened by these activities, or their business
models or international competitiveness are threatened, and have organized in
opposition. A smaller group, including Rep. Conyers, remains active on
those surveillance issues that impact only the privacy and liberty interests of
politically unorganized individuals.
(at left) said at the April 14 hearing that "I am outraged that somebody in the
FBI would invent the term ... --"exigent letters" -- invent it. It is not
in the PATRIOT Act. It never has been. And its use, perhaps coincidentally, began in
the same month that Ms. Valerie Caproni began her work as general counsel."
"I think that there may be grounds for removal of the general
counsel of the FBI. And certainly, there has obviously got to be some
disciplinary action from the Office of Professional Responsibility."
"What is this?", he asked rhetorically. He answered that this was
"illegal conduct", and not an "accident", "mistake"
or "oversight" problem.
He concluded that the use of "exigent letters" was "an invented,
Rep. Jim Sensenbrenner on Caproni. Rep.
Jim Sensenbrenner (R-WI) was the Chairman of the HJC during the 107th, 108th and
109th Congresses. Rep. Conyers was the ranking Democrat during this time period.
Rep. Sensenbrenner (at
right) assumed the Chairmanship of the HJC in January of 2001. Terrorists struck
later that year, on September 11. Rep. Sensenbrenner then forcefully pushed the USA
PATRIOT Act through the House in just over three weeks in October. Title II of the
bill greatly expanded federal surveillance powers. This bill,
became Public Law 107-56 on October 26, 2001.
He was also the Bush administration's point man in pushing subsequent
surveillance bills through the House in the following years of his Chairmanship,
over Rep. Conyers' opposition.
Rep. Sensenbrenner stated at the April 14 hearing that "I was the author of
the PATRIOT Act and the PATRIOT Act reauthorization of 2006, and I withstood the
assaults of my friend seated to my right in both of those cases. And I am seeing a
pattern that the FBI really wants to get around various restrictions that the PATRIOT
Act put on their activities." (Rep. Sensenbrenner probably meant to say
"2005". See, "USA PATRIOT Improvement and Reauthorization Act of
2005". The Senate approved the conference report, and President Bush signed it,
in 2006. It is Public Law No. 109-177.)
He spoke first about FBI use of NSLs and Section 215 orders. He then said,
"So then what happens is we get these exigent letters that were never authorized
by any kind of statute, and it took a big stink to stop those".
"Now, Ms. Caproni, you were the general counsel of the FBI during
most of this period of time, and I imagine that you either initiated or signed
off on a lot of these procedures that were designed to do things that the FBI
didn’t like in the PATRIOT Act and its reauthorization, because they were not
approved by Congress. And, you know, as a result, ordinarily I don't agree with
going on a witch hunt, but I certainly am not unsympathetic to the comments made
by my distinguished successor as Chairman of the full Committee about what is
going on in your office."
Caproni said in another exchange with Rep. Sensenbrenner that "The Office of
General Counsel did not sign off on the exigent letters. ... The Counterterrorism
Division did." (Since 2005, the Counterterrorism Division has been a part of
the FBI's National Security Branch.)
Rep. Sensenbrenner also stated that "I lived in this for 6 or 7 years as I
was trying to pass the Bush administration’s counterterrorism legislation. And I
had to defend what the Bush administration was doing against my Democratic
friend. That is why I said I feel betrayed, because every time we tried to patch
up a hole in what the FBI was doing, you figured out to put another hole in the
dike. And this little Dutch boy has only got 10 fingers to plug holes in the
Caproni attempted to pass off FBI violations merely as a "failure of internal
controls". Rep. Sensenbrenner responded that "I am not feeling so charitable
about that, because I did the fighting with the FBI. I know administrative
subpoenas, section 215 authority, which I defended, and then I find out after
defending it, instead of using section 215, you used national security letters,
you know, where there is no right for the recipient to go to court. And I put
the rights for the recipients to go to court in, and then when that happened,
then the exigent letters, you know, started."
"I am extremely disappointed that every time Congress has tried
to plug potential civil rights and civil liberties violations in our
counterterrorism activities, the FBI seems to have figured out a way to get
around it. You know, I came to this whole issue as your friend, more than my
Subcommittee and full Committee Chairs, and I feel betrayed."
It was also his responsibility, as Chairman of the HJC, to
ensure that nothing within the jurisdiction of his Committee would jeopardize
the re-election prospects of the other Republican members of the House. Yet,
beginning in 2005, Democrats astutely exploited public concerns about
surveillance, and effectively associated the practices with Bush, Cheney and
Republicans, for upcoming elections. This was just one of many issues, but
Democrats won control of the House and Senate in 2006, and many of Rep. Sensenbrenner's
colleagues lost their seats. Rep. Sensenbrenner had let them down.
It is fortunate for Caproni that the Senate, and not the House, votes to
confirm judicial nominees.
(continued in column 2.)
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|This issue contains the following items:
• Obama Nominates Caproni for District Court
New items are highlighted in
|Monday, November 19
The House will not meet. It will next meet at 2:00
PM on Tuesday, November 27.
The Senate will not meet. It will next meet at 2:00
PM on Monday, November 26.
12:00 NOON - 1:30 PM. The
American Bar Association (ABA) will
host a teleconferenced panel discussion titled "Nuts and Bolts of
Privacy and Identity Protection". The speakers will be
Tarak Anada (Jones Walker), Kelly DeMarchis (Venable), Kristin
McPartland (Kelley Drye), and Laura VanDruff (FTC's Division of
Privacy and Identity Protection). Free. No CLE credits. See,
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
The House will not meet.
The Senate will not meet.
8:00 - 10:00 AM. Broadband Census News LLC will host
a panel discussion titled "International Telecommunications Union Meeting
and the Global Open Internet". 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.
10:00 - 11:00 AM. David Kappos,
head of the U.S. Patent and Trademark Office
(USPTO), will give a speech, and answer questions, on software patents.
This is an on site and webcast event. See,
notice. Location: Center for
American Progress (CAP), 10th floor, 1333 H 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
The House will not meet.
The Senate will not meet.
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.
|Friday, November 23
The House will not meet.
The Senate will not meet.
Deadline to submit initial comments to the Federal
Communications Commission (FCC) in response to its
Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding
spectrum aggregation limits and analyzing spectrum holdings. The FCC
adopted and released this item on September 28, 2012. It is FCC 12-119 in WT
Docket No. 12-269. See,
notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages
61330-61350. See also, TLJ
titled "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No.
2,455, October 1, 2012.
|Monday, November 26
The House will not meet.
The Senate will meet at 2:00 PM.
12:00 NOON - 2:00 PM. The
American Bar Association (ABA) will
host a panel discussion titled "U.S. Trade Relations with Russia: Views
from Capitol Hill". The speakers will be Amber Cottle (Senate Finance
Committee majority staff), Everett Eissenstat (Senate Finance Committee minority
staff), Angela Ellard (House Ways and Means Committee majority staff), Jason
Kearns (House Ways and Means Committee minority staff), Geoffrey Goodale (Cooley),
and David Ross (Wilmer Hale). Prices vary. No CLE credits. See,
notice. Location: ABA, 9th Floor, 740 15th St., NW.
EXTENDED FROM OCTOBER 25. Extended deadline
to submit reply comments to the
Copyright Office (CO) regarding proposed changes to CO regulations
for reporting Monthly and Annual Statements of Account for the making
and distribution of phonorecords under the compulsory license. See, original
notice in the Federal Register (FR), Vol. 77, No. 145, Friday, July 27,
2012, at Pages 44179-44197, and extension
notice in the FR, Vol. 77, No. 176, September 11, 2012, at Pages
|Obama Nominates Caproni
Caproni Seeks CALEA Regulation of Facebook and Twitter. In 2011 the
HJC gave law enforcement agencies the opportunity to advance their argument
Communications Assistance for Law Enforcement Act (CALEA) should be
broadened to cover an array of information technology services. They seek a
CALEA like regulatory regime that covers social networking sites such as
Facebook and Twitter, peer to peer services such as Skype, and encrypted e-mail
services such a Blackberry.
The CALEA requires that telecommunications carriers "shall ensure that its
equipment, facilities, or services that provide a customer or subscriber with
the ability to originate, terminate, or direct communications are capable of
expeditiously isolating and enabling the government ... intercept, to the
exclusion of any other communications, all wire and electronic communications
carried by the carrier ..."
The CALEA provides that telecommunications carriers must design their
equipment and networks to facilitate lawfully conducted wiretaps and other
intercepts. Statutes other than the CALEA address what intercepts are lawful.
The CALEA was enacted in 1994 to require that cell phone service providers make
their networks subject to wiretaps sought by law enforcement agencies. The CALEA
applies to "telecommunications carrier", and exempts "information
Early in Caproni's tenure at the FBI the FBI and other agencies sought
amendment of the CALEA. The point advocate at that time was not Caproni, but
rather Laura Parsky, then a Deputy Assistant Attorney General in the DOJ's
Criminal Division. The Congress did nothing. However, FCC essentially rewrote
the statute to cover facilities based broadband service providers and
interconnected VOIP providers. See,
titled "FCC Amends CALEA Statute" in
TLJ Daily E-Mail
Alert No. 1,191, August 9, 2005.
The FBI had asked for much more back in 2004. It filed one infamous petition
asking the FCC to require companies to file petitions with the FCC that disclose
and ask for permission to deploy new products and services. The FBI wanted to be
involved in product design. Tech companies and some members of Congress mocked
The FBI lacks legal authority to compel providers of information services,
such as Facebook and Twitter, as well as equipment manufacturers and software
producers, to design their products and services in a way that facilitates
government interception and access. The FBI seeks this authority.
New technologies constantly enable law enforcement to intercept more
communications, to obtain more stored communications and data, and to better
store, analyze and access the data that it obtains. And, as new technologies
emerge, the FBI enviously wants service providers to design the systems to
facilitate its surveillance activities.
The latest FBI lobbying campaign spins the situation with the slogan "going
The HJC's Subcommittee on Crime, Terrorism and Homeland Security held a
hearing on February 17, 2011, titled "Going Dark: Lawful Electronic Surveillance
in the Face of New Technologies".
The DOJ sent Caproni to testify. Rep. Sensenbrenner, the Chairman of this
Subcommittee, did not bother to show up.
Rep. Louie Gohmert (R-TX), a former judge, and Vice Chairman of the
Subcommittee, did not show up either. Freshman Rep. Tim Griffin (R-AR) presided.
Caproni testified mostly to empty chairs. See, her
hearing record and transcript.
Neither the House nor HJC has passed any CALEA expansion bill in the 112th
Congress. Moreover, no such bill has even been introduced. And, in the 21 months
since that hearing, the DOJ has not released the text of any proposed bill.
And, on September 28, 2011, the DOJ finally submitted responses written
questions. It disclosed that it had no legislative language to propose on topics
raised by these questions.
Rep. Conyers attended the February 17 hearing. He said that "I believe that
legislatively forcing telecommunications providers to build back doors into
systems will actually make us less safe and less secure. I believe further that
requiring back doors in all communication systems by law runs counter to how the
Internet works and may make it impossible for some companies to offer their
services. And finally, it is my belief that our communication companies must be
allowed to innovate without technological constraints if they are to continue to
develop products and services that successfully compete with foreign companies."
Caproni's CALEA proposals have gained no traction in the Congress.
However, while Caproni, like Parsky, failed to move the Congress to
legislate, their efforts have significant effects. Merely by waging legislative
campaigns for CALEA amendments, data retention mandates, or other changes to
surveillance law, the government effectively pressures service providers to
voluntarily provide greater assistance to the government, in order to diminish
the likelihood of legislation.
The FBI's rhetoric regarding what changes to law it seeks has fluctuated
widely. Caproni offered a toned down statement at this hearing.
Caproni stated at the hearing that "The advances in our ability
to communicate have many advantages, but they also have made it exponentially
more difficult for law enforcement to execute court-authorized wiretaps. Over
the past several years, the FBI and other law enforcement agencies have
increasingly found themselves serving wiretap orders on providers that are not
covered by CALEA and, therefore, under no preexisting legal obligation to design
into their systems a wiretap capability."
She referenced "email accounts, Twitter accounts, Facebook and
MySpace pages, BlackBerrys and Androids, iPhones and iPads" in her oral
testimony. Her written testimony references "webmail, social networking sites or
BlackBerry email is encrypted, and the service provider does not
posses the encryption keys. Caproni did not advocate at this hearing legislation
that would require that service providers redesign their systems so that it
possesses keys. Google uses encryption for GMail messages in transmission, but
also possesses the content of messages in unencrypted form, so the FBI can
currently get unencrypted GMail content with a Title III wiretap order.
Caproni said that "We see going dark as a problem with many
facets, but they all boil down to this. The combination of carrots and sticks
that the Government has are not working to incentivize industries to develop and
maintain adequate intercept solutions for their services. As a consequence, when
a court issues an order authorizing a wiretap, we are not consistently able to
execute that order and promptly begin to collect evidence and intelligence."
Does Caproni advocate government regulation of the private use of encryption
technology, and a reopening of the 1999 encryption settlement? Her prepared
testimony states that the the FBI would "not require fundamental changes in
encryption technology". She did not explain how the government should regulate
encryption in non-fundamental ways.
Caproni conceded that some wiretap orders permit "hacking into a device".
But, she said, at this hearing, that "this is not about back doors into
systems". Although, she is likely playing semantic games.
Rep. Johnson asked about encryption, and referenced BlackBerry email. Caproni
gave long answer short on clarity. She did say that "No one is suggesting that
Congress should reenter the encryption battles that were fought in the late
’90’s and talk about sequestered keys or escrowed keys or the like." She added
that "For individuals who put encryption on their traffic, we understand that
there would need to be some individualized solutions if we get a wiretap order
for such persons."
Caproni also suggested that the FBI seeks greater "enforcement
mechanisms" to compel service providers to comply.
Gowdy asked what new grant of "authority" the Congress should extend.
Caproni gave non-responsive answer. Rep. Johnson asked if she had a request. She
said, "we don't have a specific request yet".
Making new IT services susceptible to FBI intrusion pursuant to a Title III
order would also make IT systems vulnerable to unauthorized intrusions by
insiders at the service providers, and at their private intercept management
providers. It would also make these systems more vulnerable to hackers,
companies engaging in economic espionage, and foreign governments.
Different components of the Obama administration are lobbying for
inconsistent regulatory regimes. On the one hand, the some elements of the
administration want a cyber security bill that would give the government
authority to impose mandates on companies to compel them to make their
information and communications technology systems more secure, and more
resilient to outside intrusion and attacks. On the other hand, other elements of the
administration, such as the FBI, want a CALEA bill that would give the
government authority to impose mandates on companies to compel them to make
their ICT systems less secure, and more vulnerable to third party penetration.
If Caproni's proposals were put in a bill, it might be titled "Communications
Assistant for Law Enforcement Expansion Act". It might with equal accuracy be
titled the "PRC Hackers Assistance Act".
Caproni's Written Record. One of the most important
set of skills for any federal judge is the ability to identify legal issues, conduct
research, analyze, formulate reasoned legal arguments and conclusions, and then reduce
these to writing, with clarity and reference to precedent. Any person under
consideration for a federal judgeship can demonstrate these skills by writing
published opinions as a judge of a lower or state court, by writing appeals
briefs, by publishing articles in law reviews, and by many other means.
However, Caproni has written little. There is not much that would demonstrate
that she possess these essential skills. However, in Washington DC, this itself
is viewed by many as a skill.
Most of the federal judicial nominees who have failed to win Senate
confirmation in the past quarter century have been derailed by something in
their written record. A publication record not only demonstrates one's legal
writing skills, or the lack thereof, the same record can used by persons who
seek to block confirmations, by disclosure, or by distortion. Many persons who
harbor judicial ambitions, as early as law school, determine to establish no
written record that might include statements that might cause embarrassment in a
confirmation battle. And since one does not know what might be controversial or
embarrassing decades into the future, this means avoiding a which range of legal
and political writing.
This confirmation process was developed in the years leading up to rejection
of Judge Robert Bork for a seat on the Supreme Court in 1987, and was solidified
and publicized by that event. Judicial aspirants now limit their writing.
Presidents seek nominees who have written less. There is some irony that the
judicial selection process has been altered to produce a less qualified
She has served in numerous senior positions in government, but left little
behind. She has eschewed legal scholarship. Her public speeches have been rare
She served for eight years as General Counsel of the FBI, and oversaw its
compliance with surveillance laws. Yet, after three IG reports on her failures,
several Congressional hearings on these failures, and numerous oversight
hearings on the FBI generally, neither the DOJ/OIG, House or Senate have
published a single memorandum written by Caproni regarding application of
surveillance law to FBI surveillance activities.
Nor have they published a single "exigent letter" that bears her signature --
not even one of the letters scribbled on a yellow Post It note.
When Congressional committee members submitted supplement hearing questions
to her, the DOJ provided responses that bore the signature of someone else.
She advocated legislation that would broaden the CALEA. But, she did not
write and publicly release a draft bill, or even a bill summary.
There are few substantive documents in the public record that support the
contention that Caproni possesses advanced legal analysis and writing skills, or
that reflect her views on various legal issues. But it does not necessarily
follow that she lacks these skills.
Confirmation Process. The Constitution states that the President
"shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint" judges and justices. In practice, the President nominates District
Court and Appeals Court judges and Supreme Court justices, and then the Senate
confirms. The House has no function.
More particularly, in the case of U.S. District Court nominees, such as
Caproni, the President nominates the person picked by a Senator of his party
from the state in which the judicial district is located. The SDNY is in New
York. There are two New York Democratic Senators, Sen. Schumer and Sen.
Gillibrand. The two have an arrangement. They alternate picks, and then back
each other. Former New York Senators Al D'Amato and Patrick Moynihan, even
through they were of different parties and ideologies, had a similar agreement
to split nominees regardless of the party of the President; Presidents appointed
their picks, and other Senators voted to confirm them.
Also, in practice, the Senators of the President's party can almost always be
counted upon to support the judicial nominees of the President. Senators show
deference to the district court nominees of their fellow Senators; the deference
is almost unshakeable when they are Senators of the same party. So, when
nominees are criticized, opposed, or blocked, it is by Senators from the
Thus, if Caproni is to be opposed, it would likely be from Republicans. But,
Republicans are in the minority. Also, in recent decades, Democrats have
provided more of the opposition to government search and surveillance practices
that invade the privacy and liberty interests of individuals and entities. While
there have been some exceptions, Republicans have tended to support aggressive
and expanded use of surveillance for the purpose of fighting crime and
Some Republicans have actively and publicly opposed expansion of governmental
surveillance powers since 2001. However, many of these, such as Rep. Bob Barr
(R-GA), Rep. Chris Cox (R-CA), Sen. Larry Craig (R-ID), Rep. Butch Otter (R-ID),
and Sen. John Sununu (R-NH) no longer serve in the Congress.
Moreover, many Republican Senators view the Washington Post and New
York Times, whose reporters were targeted by FBI "exigent letters", as
political allies of the Democratic Party.
There are also outside groups that are frequently involved in supporting or
opposing judicial nominees. They often lobby Senators. There are groups that
have been active in lobbying against legislation that expands government
surveillance powers, and in litigating against certain surveillance practices.
The ACLU is one such group. Yet, it has little traction with Republican
Senators. Moreover, it does not challenge Democrats. A spokesman for the
American Civil Liberties Union (ACLU) told
TLJ by e-mail that "we won't be able to make someone available to comment on
this". Hence, the one group best situated to challenge Caproni, may take no
action. The California based group, Electronic
Frontier Foundation (EFF), has the expertise and incentive to challenge
Caproni's nomination, but has few connections in the Senate, especially with
Republicans. (The EFF has not yet responded to an inquiry from TLJ.)
Finally, it should be noted
that back in 2005 Sen. Schumer (at left) was elected Chairman of the
Democratic Senatorial Campaign Committee. He
excelled in this post, and Democrats took control of the Senate in the 2006
elections. One of the campaign issues that he skillfully developed was
surveillance. While he artfully associated Bush, Cheney and Republicans with
this surveillance, it was appointees, including Caproni, who were responsible
for these programs.
Sen. Schumer campaigned against Republicans based upon what people like
Caproni were doing. Now, he is certain to back the appointment of Caproni to the
bench in his state. (The office of Sen. Schumer has not responded to inquiries
from TLJ about this nomination.)
The Senate Judiciary Committee
(SJC) has jurisdiction over judicial nominees. Sen. Schumer is a senior member.
The SJC requires judicial nominees to respond to a form questionnaire. Caproni
has not yet submitted her responses. The SJC holds hearings on judicial
nominees. The SJC then votes on whether or not to recommend nominees.
The SJC had a member who was also the Senate's most active defender of
individuals' rights to be free from unreasonable searches and seizures and
surveillance, former Sen. Russ Feingold (D-WI). He was the only Senator to vote
against the 2001 USA PATRIOT Act. He sponsored numerous bills to restrain
government surveillance authority. If he could have overcome his party loyalty
on judicial confirmations, he might have been relied upon to question the
appointment of Caproni. However, he lost his seat in the 2010 elections.
There is another SJC member who actively seeks to protect privacy interests
via hearings, oversight, and legislative proposals --
Sen. Al Franken (D-MN). However, he
a loyal Democrat. For example, he has made public his concerns that the cyber
security bill favored by President Obama and the Senate Democratic leadership
fails to protect privacy. He prepared amendments, but
Sen. Harry Reid (D-NV) did not allow the full Senate to consider them.
Nevertheless, Sen. Franken loyally voted the Democratic line on both cloture
Also, the main focus of Sen. Franken is protecting individual privacy in the
commercial marketplace, rather than from governmental incursions. He may be more
concerned about how Google, Apple, and phone companies treat their users and
customers than how the government conducts surveillance.
Another member of the SJC is Sen.
Dianne Feinstein (D-CA). She is also Chairman of the
Senate Intelligence Committee,
where she has devoted much effort to expanding the surveillance capabilities and
authority of the US government.
The Senate then holds up or down votes on whether or not to confirm nominees.
Senate Democrats began a procedure during the Bush administration, when
Republicans also held a majority of seats, of blocking nominees with the
filibuster, which takes a supermajority of 60 votes to end. Republicans have
also relied upon this procedure to block a few of President Obama's judicial
nominees. But, it would still take 40 Senators to block Caproni.
In the 113th Congress, Senate Republicans are likely to delay some judicial
nominees, and resort to the filibuster for small select set of mostly Court of
Appeals nominees. Republicans are likely to target a few nominees whose written
record suggests that they would substitute their own ideologies for
Congressional statutes on matters that Republicans care most. But, surveillance
is not one of these Republican issues.
Hence, it is difficult to foresee any significant opposition in the Senate to
Analysis. This article offers nothing regarding how effective Caproni
was at the FBI in furthering its statutory goals, such as fighting terrorism.
She acted in secret, and most of her work there remains a secret.
She has not produced a published record that demonstrates skills in legal
analysis and writing. However, there may be unpublished internal memoranda.
The public record of hearing testimony and speeches reveals little about her
level of legal expertise. She has not demonstrated a sharp legal mind, legal
knowledge, or familiarity with technology, in her public appearances. But then,
it is difficult for someone attending hearings, or reading hearing records, to
distinguish between a witness who is withholding information and refraining from
controversy, from a witness who possesses limited understanding.
Since there is so little in the public record regarding Caproni's work at
the FBI, it is difficult to sound her out, or pluck out the heart of her
One thing that her work history suggests is that she possesses considerable
expertise in maneuvering her career through the byzantine politics of federal
agencies, and winning appointments to ever higher positions. And, her exchange
with Rep. Sensenbrenner is not inconsistent with the hypothesis that she
possesses Machiavellian skill in manipulating career politicians.
Her exact role in the illegal activities that occurred at the FBI during her
tenure has not been disclosed.
It is possible that she was long aware, for example, that the FBI was using
baseless "exigent letters" to obtain records from phone companies, and did
nothing. This might reflect on her commitment to the rule of law, and hence,
suitability for judicial office. It might reflect a willingness to ignore the
statutes enacted by the Congress. This may suggest a capacity, if confirmed to
be a federal judge, to decide cases that arise under federal statutes contrary
to the directives of those statutes.
It is also possible that she engaged in due diligence, learned of misconduct,
and worked without success within the FBI to stop it. It is further possible
that Sen. Gillibrand and Sen. Schumer possess such non-public information, and
the nomination is in part a recognition of, and reward for, superior service.
It is also possible that she opined that the FBI was acting within the law.
If this were the case, it would call into question her competence to analyze
It is also possible that she did not learn of misconduct that transpired in
her presence. If this were the case, it might reflect upon her ability maintain
control of a courtroom, or manage a docket.
Finally, to this point, this article has been premised upon the assumptions
that statutes matter, that their words have meaning, and that they apply
universally to all persons within the jurisdiction of the US. Yet, in the
context of the use of surveillance to fight terror, for many, these assumptions
may not hold.
There is one description of law and government for public statements, school
books, and ceremonies for the unknowing world: all laws are enacted by the
people's Congress, apply equally to all persons regardless of position or power,
and are applied uniformly by law enforcement authorities. Those who break laws
are punished, not rewarded with elevation to higher office.
Then, there is the way laws and government really work. In the case of
surveillance, Senators who vote to confirm Caproni may possess a more Tacitean appreciation of recent
history, and how federal laws and government agencies should and actually do
work. The notion that all legislative powers, including the power to make all
laws, shall be vested in the Congress, is an untenable Constitutional impediment
to the good work FBI agents and federal prosecutors. Similarly, the notion that
the FBI shall take care that the Congress's laws shall be faithfully executed is
Under this latter approach, if Caproni was in the thick of FBI violation of
the letter of the ECPA, it was not a derogation of duty, but rather a
There was no Islamic terrorist threat to persons in the US when the
Constitution and the ECPA were drafted. It is difficult to pass legislation to
expand surveillance powers. Hence, law enforcement and intelligence officials,
with tacit approval of some in the administration and Congress, implement
Under this second understanding of law and government, people like Rep.
Conyers might be dismissed as naive adherents to obsolete notions of the rule of
law, civil rights and equality before the law. He is merely one of the
inevitable anomalies produced by an electoral system based upon universal
suffrage and 435 single member districts.
Rep. Sensenbrenner might be dismissed as a disgruntled politician. Caproni
may have played the Washington political system. She may have played Rep.
Sensenbrenner like a musical instrument. She advanced the policy goals of the
FBI, the institutional interests of the FBI, and her own career; and he got
Caproni may have been nominated, and may be confirmed by the Senate, because
she has performed well under this second understanding of the nature of law and
More Information. For more on the DOJ/OIG reports and Caproni, see:
- October 2004 article on Caproni in Legal Times by Robert Vosper.
- story titled "DOJ IG Releases Reports on Use of NSLs and Section 215
TLJ Daily E-Mail
Alert No. 1,551, March 13, 2007.
titled "DOJ Inspector General Releases Second Report on FBI Misuse of National
Security Letters" in
TLJ Daily E-Mail
Alert No. 1,730, March 12, 2008.
- story titled "Another DOJ Inspector General Report Finds FBI Misconduct in
Obtaining Phone Records" in
TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.
- March 12, 2010
speech [YouTube] by Caproni at Mercer