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Friday, November 30, 2012, Alert No. 2,479.
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Senate Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud Stored E-Mail

11/29. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved HR 2471 [LOC | WW | HTML], an untitled bill that would require a warrant for accessing cloud stored e-mail, and that would make it easier for social media users to disclose their video viewing.

Summary. As introduced, and as passed by the House on December 6, 2011, this is a bill to amend the "Video Privacy Protection Act" or VPPA. The House bill contains a modest amendment to 18 U.S.C. § 2710 regarding video tape privacy and social media.

Sen. Patrick Leahy (D-VT) has used HR 2471 as the vehicle for a late in the Congress effort to revise the Electronic Communications Privacy Act (ECPA) to impose a warrant requirement for accessing e-mail stored in the cloud.

The bill, as approved by the SJC includes a revised version of the VPPA revision, and amendments to 18 U.S.C. § 2703 and other sections of the ECPA's Stored Communications Act (SCA) to require the government to obtain a court warrant to access the content of stored e-mail.

The bill just approved by the SJC provides that

    "A governmental entity may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is in electronic storage with or otherwise stored, held, or maintained by the provider only if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) that is issued by a court of competent jurisdiction directing the disclosure."

(Parentheses in original.) See, TLJ's red line mark up of this bill.

In addition, Sen. Leahy has ambitiously announced that the agenda for the December 6 executive business meeting of the SJC includes consideration of S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", sponsored by Sen. Al Franken (D-MN).

Neither the House, nor its House Judiciary Committee (HJC), have approved either S 1223, or a warrants for stored e-mail bill. Moreover, there is opposition to both in the House, Senate, and Obama administration, and among federal, state and local law enforcement officials, prosecutors, and regulators.

Furthermore, the 112th Congress is in its final weeks. The Congress is in a lame duck session in which budgetary issues dominate its attention. Thus, enactment of these bills in the 112th Congress is highly unlikely.

ECPA Reform. Neither this bill, nor S 1223, constitute proposals for comprehensive ECPA reform. Rather, they each address just one of many areas in which the ECPA is outdated. Although, they address two of the most important topics.

A coalition of companies and groups named the Digital Due Process (DDP) announced a set of four principles for ECPA reform in 2010. See, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

This bill and S 1223 address two of the DPP's proposals.

The DDP's third proposal is, "Before obtaining transactional data in real time about when and with whom an individual communicates using email, instant messaging, text messaging, the telephone or any other communications technology, the government should demonstrate to a court that such data is relevant to an authorized criminal investigation."

The DPP's fourth proposal is, "Before obtaining transactional data about multiple unidentified users of communications or other online services when trying to track down a suspect, the government should first demonstrate to a court that the data is needed for its criminal investigation."

These two bills, and the DPP's proposals, seek to protect privacy, liberty and security. It should also be noted that certain law enforcement, prosecutorial, regulatory and intelligence agencies seek amendment to the ECPA to broaden surveillance powers of government, and surveillance duties of service providers.

For example, there are data retention mandates in the ECPA's Stored Communications Act (SCA). However, some government officials seek a new and vast data retention mandate. Rep. Lamar Smith (R-TX) has tried but failed to enact a broad data retention mandate in the 112th Congress.

November 29 SJC Meeting. The SJC approved by unanimous consent an amendment in the nature of a substitute (AINS) [10 pages in PDF] offered by Sen. Leahy. Title I is the "Video Privacy Protection Act Amendments Act of 2012". The much longer Title II is the "Electronic Communications Privacy Act Amendments Act of 2012".

The SJC also approved four amendments to the AINS:

The SJC also rejected an amendment [2 pages in PDF] to the AINS offered by Sen. Charles Grassley (R-IA) by a vote of 6-11. It would have carved out an exception to the warrant requirement for investigations of crimes "involving" certain enumerated activities.

Sen. Patrick LeahySen. Leahy (at right) stated at the meeting that we need "to contain the way surveillance is expanding" and "we have to update our privacy laws". He also referenced the importance of "promoting new technologies like cloud computing".

He said that in 1986, when the ECPA was enacted, "e-mail was nothing like it is today".

He said that his bill amends the ECPA to "enhance privacy protections". It "requires that the government obtain a search warrant based upon probable cause to obtain the content of Americans' e-mail, and other electronic communications, when those communications are requested from a third party service provider."

He said that "I think we have to eliminate the anachronistic distinction made in the law based on whether the emails are more or less than 180 days old."

Sen. Leahy also said that his bill updates the VPPA to allow Americans, "if they wish, to share their movie and television watching experiences through social media".

Grassley said that the SJC held a hearing, but that it was two years ago, and that the government witnesses had "no cleared administration positions".

He argued that the SJC should first hear the concerns raised by law enforcement officials, and by representatives of federal regulators, such as the Securities and Exchange Commission (SEC), before legislating.

Government Access to Stored E-Mail. This bill would require a warrant to obtain the content of e-mail stored in the cloud. The key language is quoted above.

Actually, the bill addresses e-mail stored with an "electronic communication service" or ECS, or an "remote computing service" or RCS. RCS is defined at 18 U.S.C. § 2711. ECS is defined at 18 U.S.C. § 2510. These definitions are obsolete. However, the bill does not amend these definitions.

Subsection 2703(a) currently provides that a warrant is required only to obtain communications in storage with an ECS that is less than 180 days old.

Subsection 2703(a) currently provides that "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section."

The bill would not impose a warrant requirement for accessing things other than the content of e-mails, such as users' names, addresses, and credit card numbers.

The bill would require the government to give notice to the customer of the e-mail cloud service that it has seized the content of e-mails. However, the bill would also enable law enforcement agencies to obtain with the warrant a 180 day delay of such notification, for certain enumerated reasons, including "flight from prosecution" and "jeopardizing an investigation". The bill would also allow unlimited extensions.

Similarly, the bill would authorize the court to impose a 180 day gag order on the service providers, also with allowance for unlimited extensions.

This bill would not affect government acquisition of oral communications, such as through wiretaps and bugs. Nor would it affect government access to stored communications under the Foreign Intelligence Surveillance Act (FISA).

Video Privacy Protection Act. The VPPA was enacted by the 100th Congress in 1988 just after the public debates and Senate hearings pertaining to the nomination of Judge Robert Bork to be a Justice of the Supreme Court, which involved public disclosure of his video rental records. That bill was Public Law No. 100-68. It is codified at 18 U.S.C. § 2710.

The VPPA currently provides that "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person".

Now, providers of social media, such as Facebook, want users to be able to disclose their  video rentals and recommendations with a one time opt-in procedure, rather than requiring consent every time they want to recommend a video.

The bill approved by the SJC on November 29 differs from the bill passed by the House last year.

The House bill would amend the VPPA to provide that

    "A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person with the informed, written consent (including through an electronic means using the Internet) in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer given at one or both of the following times -- (i) the time the disclosure is sought; and (ii) in advance for a set period of time or until consent is withdrawn by such consumer".

The VPPA defines "video tape service". Neither the House bill, nor the bill approved by the SJC on November 29, would alter that definition.

Sen. Leahy's bill, as amended by an amendment offered by Sen. Feinstein, would amend the VPPA to provide that

    "A video tape service provider may disclose personally identifiable information concerning any consumer ... to any person with the informed, written consent (including through an electronic means using the Internet) of the consumer that---
       (i) is in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer;
       (ii)(I) is given at time the disclosure is sought; or (II) is given in advance for a set period of time, not to exceed 1 year or until consent is withdrawn by the consumer, which ever is sooner; and
       (iii) the video tape service provider has provided an opportunity, in a clear and conspicuous manner, for the consumer to withdraw on a case-by-case basis or to withdraw for ongoing disclosures, at the consumer’s election;

Reaction. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "Updating our laws which protect vital constitutional rights in this era of technological change has been long overdue. CCIA is grateful to Chairman Leahy and other supporters of this legislation for beginning to move legislation ensuring that our emails, instant messages and social networking communications have the level of protection that is more on par with the principles of a robust 4th Amendment."

Gregory Nojeim, of the Center for Democracy and Technology (CDT), stated in a release that "Our privacy laws are woefully outdated given the rapid advance of technology. This vote today sets the stage for updating the law to reflect the reality of how people use technology in their daily lives. It keeps the government from turning cloud providers into a one-stop convenience store for government investigators and requires government investigators to do for online communications what they already do in the offline world: Get a warrant before reading postal letters or searching our homes. This bill would support the development of cloud computing services and other innovative technologies."

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In This Issue
This issue contains the following items:
 • Senate Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud Stored E-Mail
 • House Passes STEM Visas Bill
 • People and Appointments
House Passes STEM Visa Bill

11/30. The House passed HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012", by a vote of 245-139. See, Roll Call No. 613. Republicans voted 218-5. Democrats voted 27-134. The Senate has not yet passed this bill. President Obama announced his opposition on November 28. Silicon Valley area Representatives, including Rep. Zoe Lofgren (D-CA), Rep. Anna Eshoo (D-CA), and Rep. Mike Honda (D-CA), voted against this bill.

People and Appointments

11/29. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nominations of Katherine Failla (USDC/SDNY), Troy Nunley (USDC/EDCal), Sheri Chappell (USDC/MDFl), Pamela Ki Mai Chen (USDC/EDNY), and Mark Barnett (U.S. Court of International Trade). All five are again on the agenda for the SJC's December 6 executive business meeting.

11/29. Five Republican's have been assigned to the House Commerce Committee (HCC). They are Rep. Gus Bilirakis (R-FL), Rep. Renee Ellmers (R-NC), Rep. Ralph Hall (R-TX), Rep. Bill Johnson (R-OH), and Rep. Billy Long (R-MO). Rep. Hall is a former long time member of the HCC who has been serving as Chairman of the House Science Committee (HSC). Rep. Bilirakis' father served on the HCC. Rep. Ellmers is a former nurse whose focus is on health care issues. Rep. Johnson is a former Air Force officer and IT company executive. Rep. Long is a former talk show host on terrestrial broadcast radio. See, HCC release.

Washington Tech Calendar
New items are highlighted in red.
Friday, November 30

The House will meet at 9:00 AM for legislative business. It will consider HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012", subject to a rule. See, Rep. Cantor's schedule for the week.

The Senate will not meet.

TIME CHANGE. 10:30 AM. 10:00 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The only item on the agenda is adoption of a Fifth Order on Reconsideration and Sixth Report and Order regarding approval of pending FM translator radio applications and implementation of the Local Community Radio Act (LCRA). Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., NW.

12:30 - 1:30 PM. The Heritage Foundation (HF) will host a panel discussion titled "Filibuster Reform or Power Grab: A Discussion of the Senate's Rules". See, notice. Location: HF, 214 Massachusetts Ave., NE.

1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". Location: American Institute of Architects, 1735 New York Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-88 Rev. 1 [57 pages in PDF] titled "Guidelines to Media Sanitization".

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [59 pages in PDF] regarding the 4940-4990 MHz (4.9 GHz) public safety band. The FCC adopted and released this FNPRM on June 13, 2012. It is FCC 12-61 in WP Docket No. 07-100, PS Docket No. 06-229, WT Docket No. 06-150. See, original notice in the Federal Register (FR), Vol. 77, No. 148, August 1, 2012, at Pages 45558-45571, and August 3 Public Notice (DA 12-1268). See also, extension notice in the FR, Vol. 77, No. 199, October 15, 2012, at Pages 62480-62481.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [146 pages in PDF] regarding its program access rules. The FCC adopted and released this item on October 5, 2012. It is FCC 12-123 in MB Docket No. 12-68. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Pages 66052-66065, and stories titled "FCC Lets Expire Its Per Se Ban on Exclusive Program Distribution Contracts", "FCC Adopts Report and Order on Program Access Rules", "FCC Adopts NPRM on Case by Case Analysis of Exclusive Contracts", and "Reaction to FCC's Program Access Order" in TLJ Daily E-Mail Alert No. 2,460, October 6, 2012.

Monday, December 3

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host an on site and teleconferenced panel discussion titled "The FTC Report That K-Dur Ignored". See, July 16, 2012 opinion of the U.S. Court of Appeals (3rdCir) in In Re K-Dur Antitrust Litigation. The speakers will be Shylah Alfonso (Perkins Coie), Kelly Smith (Arnold & Porter), Michael Kades (FTC), and Joanna Tsai (Charles River Associates). Free. No CLE credits. See, notice. Location: Perkins Coie, 700 13th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petitions for reconsideration of its First Report and Order [67 pages in PDF] regarding spectrum for the operation of Medical Body Area Networks (MBAN). This R&O is FCC 12-54 in ET Docket No. 08-59. See, petition and petition. See also, FCC Public Notice, and notice in the Federal Register, Vol. 77, No. 222, November 16, 2012, at Pages 68721-68722.

Tuesday, December 4

12:00 NOON - 1:15 PM. The George Mason University's (GMU) School of Public Policy will host book presentation. Robert Atkinson (Information Technology and Innovation Foundation) will discuss his recently published book [Amazon] titled "Innovation Economics: the Race for Global Advantage". Location: GMU, Room 475, Founders Hall, 3351 Fairfax Drive, Fairfax, VA.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Building or Sabotaging the Enterprise? Squaring Cyber Security with Technologies that Undermine It". The speakers will be James Clark (Oasis), Charles Palmer (IBM Research), Candace Jones (Federal Reserve Bank of New York), and Roland Trope (Trope & Schramm). Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Videotaping Police, Wiretapping Laws and the First Amendment CLE Teleconference". Prices vary. No CLE credits. See, notice.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on numerous pending nominations, including Joshua Wright (to be an FTC Commission) and Mignon Clyburn (reappointment to FCC). See, notice. The SCC will webcast this hearing. Location: Room 253, Russell Building.

2:30 - 3:30 PM. The Internet Caucus will host an event at which Alexander Alvaro, VP of the European Parliament, will speak regarding privacy and security. For more information, call 202-638-4370. Location: IC/CDT, 1634 I St.,  NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) International Committee and Wireless Telecommunications Committee will host an event titled "Holiday Program and Networking Reception". No CLE credits. Prices vary. See, notice. Location: House of Sweden, 2900 K St., NW.

Wednesday, December 5

PRESCHEDULED FROM SEPTEMBER 20. 10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "The Impact of International Technology Transfer on American Research and Development". The HSC will webcast this hearing. Location: Room 2318, Rayburn Building.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Policy Committee will meet. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Pages 65691-65692. Location: Dupont Circle Hotel, 1500 New Hampshire Ave., NW.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Perspectives on Canada's New Copyright Laws: Bill C-11". The speakers will be Jerry Cohen (Burns Levinson), David Kent (McMillan), Sarah Kilpatrick (McMillan), Stephen Zolf (Heenan Blaikie), and Johanna Dennis (Southern University Law Center). Prices vary. No CLE credits. See, notice.

TIME?. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

POSTPONED. 6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Committee will host an event titled "Verizon/SpectrumCo: Issues and Process -- Anatomy of a Transaction". CLE credits. Prices vary. See, notice.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 C [50 pages in PDF] titled "Recommendation for Random Bit Generator (RBG) Constructions".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 B [78 pages in PDF] titled "Recommendation for the Entropy Sources Used for Random Bit Generation".

Deadline to submit comments to the Copyright Office (CO) regarding creating a "resale royalty right" for visual artists. See, original notice in the Federal Register (FR), Vol. 77, No. 182, September 19, 2012, at Pages 58175-58179, and extension notice in the FR, Vol. 77, No. 200, October 16, 2012, at Page 63342. See also, story titled "Copyright Office Requests Comments on Creating a Resale Royalty Right for Visual Artists" in TLJ Daily E-Mail Alert No. 2,464, October 18, 2012.

Thursday, December 6

8:15 AM - 3:30 PM. The Computer and Communications Industry Association (CCIA) and George Washington University's (GWU) Institute for International Economic Policy (IIEP) will host an event titled "Can Trade Policies and Agreements Advance Internet Freedom?". Free. Open to the public. Location: GWU, Elliot School of International Affairs, Lindner Commons, 6th floor, 1957 E St., NW.

9:30 AM - 12:15 PM. The Phoenix Center for Advanced Legal & Economic Public Policy Studies will to host an event titled "Conference to Examine Impact of Election on U.S. Broadband Policy". The speakers will be Rep. Marsha Blackburn (R-TN), Ajit Pai (FCC Commissioner), Michael McCurry, Rich Galen, Kathy Brown (Verizon), and James Cicconi (AT&T). Location: Phoenix Center, Suite 440, 5335 Wisconsin Ave. NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", sponsored by Sen. Al Franken (D-MN). The agenda also again includes consideration of the nominations of Katherine Failla (USDC/SDNY), Troy Nunley (USDC/EDCal), Sheri Chappell (USDC/MDFl), Pamela Ki Mai Chen (USDC/EDNY), and Mark Barnett (U.S. Court of International Trade). See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The National Economists Club will host a lunch. The speaker will be Robert Atkinson (ITIF). Prices vary. See, notice and registration page. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

12:00 NOON - 2:00 PM. The Federalist Society will host a lunch and panel discussion titled "Private Attorneys and the War on Terror". The speakers will be Nitsana Leitner (Israel Law Center), Steven Bradbury (Dechert), and Stephen Vladeck (American University law school). See, notice and registration page. Free. No CLE credits. Location: National Press Club, 13th Floor, 529 14th St., NW.

2:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will hold a news conference by teleconference to release and discuss the ITIF's report titled "2012 State New Economy Index". The speakers will be Rob Atkinson (ITIF) and Luke Stewart (ITIF). For call in information, contact Alexis Fearon at afearon at itif dot org or 202-524-4390.

Friday, December 7

No events listed.