12/14. President Obama signed into law HR 6156 [LOC | WW], the "Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012", a bill to establish permanent normal trade relations (PNTR) with Russia. See, White House news office release.

12/13. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", sponsored by Sen. Al Franken (D-MN). The SJC approved by unanimous consent a substitute amendment [20 pages in PDF] offered by Sen. Franken. The SJC rejected on a vote of 8-9 an amendment [4 pages in PDF] offered by Sen. Charles Grassley (R-IA) that would have added an unrelated provision regarding use of private law firms by state attorneys general. The SJC then approved the bill, as amended by the substitute amendment, by voice vote. See also, story titled "Senate Judiciary Committee Holds Over Geolocation Data Bill" in TLJ Daily E-Mail Alert No. 2,485, December 7, 2012. Sen. Grassley stated that "this legislation will not become law this Congress".

12/13. Rep. Ted Poe (R-TX) (at right), Rep. Steve Chabot (R-IN), Rep. Zoe Lofgren (D-CA), and Rep. Linda Sanchez (D-CA) introduced HR 6654 [LOC | WW | PDF], the "Foreign Counterfeit Merchandise Prevention Act", a bill to allow U.S. Customs and Border Protection to share certain information with the owners of copyrights and registered marks. It was referred to the House Judiciary Committee (HJC). All four are members.

12/12. Rep. Eliot Engel (D-NY) introduced HR 6651 [LOC | WW], a bill to limit border searches of laptop computers and other electronic devices. It was referred to the House Judiciary Committee (HJC) and House Homeland Security Committee (HHSC). Rep. Engel, and others, have been introducing related bills over the course of three Congresses, to no avail. This bill has no original cosponsors.

12/12. Rep. Jerrold Nadler (D-NY) introduced HR 6652 [LOC | WW | PDF], the "Making United States Independents Competitive Act" or "MUSIC Act", a bill to pay artists of independent music labels to travel to international trade music shows.

12/13. The U.S. Court of Appeals (FedCir) issued its opinion [17 pages in PDF] in Brooks v. Dunlop Manufacturing, holding that retroactive elimination of the qui tam provision from 35 U.S.C. § 292, which pertains to false patent marking, by Section 16 of the Leahy-Smith America Invents Act does not violate either the due process or intellectual property clauses of the Constitution.

Brooks filed a qui tam complaint against Dunlop Manufacturing in the U.S. District Court (NDCal) in 2010 alleging violation of Section 292, as its existed prior to enactment of the AIA.

The Congress enacted the AIA in 2011. It is now Public Law No. 112-29. Prior to the enactment of the AIA, Section 292 had a qui tam provision, under which anyone could sue to recover the statutory penalty for violation, with the recovery split between the plaintiff and the U.S.

The AIA eliminated the qui tam provision. Instead, the AIA provides that the U.S. can sue, and anyone who has suffered a competitive injury as a result of the violation can sue for damages.

After enactment of the AIA, Dunlop moved to dismiss. Brooks argued that dismiss would violate his rights under the takings, due process, and intellectual property clauses of the Constitution. The District Court rejected all three arguments, and dismissed the complaint.

Brooks brought the present appeal, but did not argue violation of the takings clause. The Court of Appeals affirmed.

Judge Prost, a former staff assistant to Sen. Orrin Hatch (R-UT), wrote the opinion of the Court of Appeals. Much of her work involved matters within the jurisdiction of the Senate Judiciary Committee (SJC), including intellectual property. President Bush nominated her, and the Senate confirmed her, in 2001.

This case is Kenneth C. Brooks v. Dunlop Manufacturing, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2012-1164, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 10-CV-4341, Judge Charles Breyer presiding. Judge Prost wrote the opinion of the Court of Appeals, in which Judges Newman and Moore joined.

12/12. Steve Bellovin, Chief Technologist at the Federal Trade Commission (FTC), wrote a piece titled "History Sniffing", which focuses on how history sniffing works.

In addition, Bellovin stated that "If you're a web site developer, you certainly should not engage in history-sniffing; apart from being unethical, you might run into legal difficulties. Indeed, the FTC has just announced a settlement in a history-sniffing case. Equally important, if you include content from other sites on your pages (and most commercial sites do), make sure they're not doing anything nasty." (Parentheses in original.)

He added that " Consumers face a harder problem. The simplest thing to do is to upgrade to a modern browser; today's browsers incorporate certain defenses."

On December 5, 2012, the FTC filed, and settled, an administrative complaint against Epic Marketplace, Inc. (an online behavioral advertising company) and Epic Media Group, LLC (its parent company) alleging violation of Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45, in connection with its history sniffing practices. See, story titled "FTC Brings Action Against Behavioral Advertising Company for History Sniffing" in TLJ Daily E-Mail Alert No. 2,489, December 12, 2012.

There is no web site developers code of ethics that gives rise to FTC enforcement actions. Bellovin's reference to "legal difficulties" can only refer to Section 5 of the FTC Act (which bars "unfair or deceptive acts or practices in or affecting commerce"), and if a web site is directed at children, the Children's Online Privacy Protection act (COPPA). The Epic complaint alleged only violation of Section 5 of the FTC Act.

12/14. Mike Zaneis of the Interactive Advertising Bureau (IAB) wrote a short piece titled "Don't Let the FTC Steal Christmas".

Zaneis wrote that the FTC's proposed changes to its Children's Online Privacy Protection Act (COPPA) rules "would conflate benign data transfers, which present no discernible threat to children's online safety, with very real concerns about the unauthorized collection of information that might allow strangers to contact our children."

The FTC proposed new COPPA rules in August. See, FTC notice in the Federal Register, Vol. 77, No. 151, August 6, 2012, at Pages 46643-46653, and story titled "FTC Releases COPPA Further NPRM" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

Also, the FTC released a report [42 pages in PDF] on December 10 titled "Mobile Apps for Kids: Disclosures Still Not Making the Grade". See also, story titled "FTC Releases Another Report on Mobile Apps Privacy" in TLJ Daily E-Mail Alert No. 2,488, December 11, 2012.

Zaneis's piece is accompanied by a cartoon, drawn by RJ Matson, that depicts the FTC, not as the familiar Christmas characters Scrooge or Grinch, but rather as a malevolent Santa Clause. Children line up to tell the FTC's "Santa COPPA" what they want for Christmas, only to have him smash their mobile devices with a hammer.

Zaneis concludes that the "IAB hopes that the FTC will not undermine legitimate commercial practices that have revolutionized the way kids learn and play in the digital age."

In contrast to this viewpoint, the Wall Street Journal (WSJ) published a piece on December 14 titled "Are Digital Foxes Guarding the Web's Privacy Hen House?"

12/13. The Senate confirmed Lorna Schofield to be a Judge of the U.S. District Court for the Southern District of New York by a vote of 91-0. See, Roll Call No. 228. See also, Congressional Record, December 13, 2012, at Page S 8047. She has worked since 1988 in the New York City office of the law firm of Debevoise & Plimpton. Her law firm web page states that she has "focused on litigation in complex commercial matters, particularly the defense of companies and individuals in regulatory and white collar criminal investigations". See also, White House news office release.

12/13. The Senate confirmed Frank Geraci to be a Judge of the U.S. District Court for the Western District of New York. See, Congressional Record, December 13, 2012, at Page S 8047.

12/12. Rep. Cliff Stearns (R-FL), who lost in his Republican primary election, will not be a member of the 113th Congress. Other members praised Rep. Stearns (at right) at a hearing of the Subcommittee on Communications and Technology on December 12, 2012. The warmest words came from Rep. Bobby Rush (D-IL), who said, among other things, that he never agreed with Rep. Stearns, but always enjoyed working with him. In the 111th Congress, Rep. Rush was the Chairman of the Subcommittee on Commerce, Trade, and Consumer Protection, and Rep. Stearns was the ranking Republican. The two cosponsored HR 2221 [LOC | WW], the "Data Accountability and Trust Act", and moved it through the Subcommittee, full Committee, and House. However, the Senate did not pass the bill. In the current Congress, Rep. Mary Mack (R-CA) is the Chairman of this Subcommittee. Rep. Rush reintroduced this bill, as HR 1707 [LOC | WW]. However, it did not make it out of Subcommittee. In the 113th Congress, Rep. Lee Terry (R-NE) will be the Chairman of this Subcommittee.

12/11. The Senate confirmed John Dowdell to be a Judge of the U.S. District Court for the Northern District of Oklahoma by a vote of 95-0. See, Roll Call No. 226. See also, Congressional Record, December 11, 2012, at Page S7752. He is a partner in the Tulsa, Oklahoma law firm of Norman Wohlgemuth Chandler & Dowdell. His law firm biography states that he handles complex litigation, including antitrust and telecommunications, and that his clients include T-Mobile USA and Gemstar-TV Guide.

12/11. The Senate confirmed Jesus Bernal to be a Judge of the U.S. District Court for the Central District of California. See, Congressional Record, December 11, 2012, at Page S7752. He has been a long time federal public defender. See, White House news office release.

12/14. The National Journal announced in a release that its Tech Daily Dose is ending on December 14, 2012.

12/14. News Corporation's iPad based subscription news daily, named The Daily, stopped publication on December 14, just two years after its inception.

12/12. The Wall Street Journal (WSJ) published a story by Julia Angwin titled "U.S. Terror Agency to Tap Vast Database of Citizen". She wrote that "The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation."

12/12. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) that lists for the month of November 2012 its Hart Scott Rodino (HSR) grants of early termination of the waiting period provided by law and the premerger notification rules. See, FR, Vol. 77, No. 239, December 12, 2012, at Pages 74013-74016.

12/12. Ed Black, head of the Computer and Communications Industry Association (CCIA), wrote a piece published in Forbes titled "Rumored FTC / Google Settlement: A Model for Tech Industry Antitrust Enforcement". He wrote that "Recent news reports have suggested that the Federal Trade Commission is in discussions with Google to settle its long-running antitrust investigation, with the agency concluding that there is insufficient evidence to bring an antitrust complaint on search issues. If these reports are true, the FTC’s decision to avoid litigation in favor of a balanced settlement will not only benefit consumers and innovation, but also affirm the agency’s reputation as a fair arbiter of our nation’s often perplexing competition laws."

The House will not meet. It will next meet on December 17.

The Senate will not meet. It will next meet on December 17.

Day two of a two day event hosted by the Practicing Law Institute (PLI) and the Federal Communication Bar Association (FCBA) titled "30th Annual Institute on Telecommunications Policy & Regulation". The price to attend ranges from free to $1,595. See, registration form. Location: Washington Hilton, 1919 Connecticut Ave., NW.

9:00 AM - 4:30 PM. The Department of Commerce's (DOC) Bureau of the Census's Federal Economic Statistics Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Page 70992. Location: Census Bureau Conference Center, 4600 Silver Hill Road, Suitland, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in inContact, Inc. v. FCC, App. Ct. No. 12-1133. This is a challenge to a universal service tax assessment. See, FCC brief [37 pages in PDF]. Judges Garland, Griffith and Randolph will preside. This is the second of three items on the Court's agenda. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:30 AM - 3:30 PM. The Federal Communications Commission's (FCC) Emergency Access Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 228, November 27, 2012, at Pages 70777-70778. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-164 [33 pages in PDF] titled "Guidelines on Hardware-Rooted Security in Mobile Devices".

EXTENDED FROM NOVEMBER 30. Extended 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. See also, extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72295-72296.

The House will meet at 12:00 NOON.

The Senate will meet at 2:00 PM.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The 10th Anniversary of the E-Government Act: A Discussion of the Past and Future of E-Government". The speakers will be Alan Balutis (Cisco Systems), Doug Bourgeois (VMware), Dan Chenok (IBM), William Eggers (Deloitte Research), Mark Forman (Government Transaction Services), Tom Davis (Deloitte), Karen Evans, David Mihalchik (Google), and Robert Atkinson (ITIF). See, notice. Location: Room 215, Capitol Visitor Center.

4:00 - 6:00 PM. The Center for Strategic and International Studies (CSIS) will host a book talk. Andrew Nathan (Columbia University) and Andrew Scobell (RAND Corporation) will discuss their book titled "China's Search for Security". The other discussants will be David Lampton (Johns Hopkins University), Randy Schriver (Armitage International), and Bonnie Glaser (CSIS). See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

EXTENDED TO JANUARY 14. Deadline to submit reply 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. See also, extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72295-72296.

Day one of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

3:30 PM. The Senate Commerce Committee (SCC) will hold an executive session at which it may vote on the nominations of Mignon Clyburn (FCC) and Joshua Wright (FTC). See, notice. Location: Room 253, Russell Building.

TIME? 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, August 2, 2012, Pages 46067-46068. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". Location?

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [42 pages in PDF] regarding disability access to televised emergency information. This NPRM is FCC 12-142 in MB Docket No. 12-107. The FCC adopted it on November 16, and released the text on November 19. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Pages 70970-70987.

Day two of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 12:00 NOON. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet by webcast. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Pages 65690-65691.

12:00 NOON - 2:00 PM. The Georgetown University's (GU) Georgetown Center for Business and Public Policy (GCBPP) will host an event titled "Challenge to the Net: What Happened in Dubai?" The speakers will be Jonathan McHale (Office of the U.S. Trade Representative, Deputy Assistant USTR for Telecommunications and Electronic Commerce Policy), Michael Wack (Department of State, Office of the U.S. Coordinator for International Communications and Information Policy), David Gross (Wiley Rein), Amy Alvarez (AT&T), and Jacquelynn Ruff (Verizon Communications). Lunch will be served. Twitter #GCBPPontheHill. See, notice and registration page. Location: Room B-318, Rayburn Building..

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. See, agenda contains no technology related items. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The Center for Strategic and International Studies (CSIS) will host panel discussion titled "The Results and Impact of the 2012 Korean Presidential Elections". See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

Deadline to submit requests to participate in the U.S. Patent and Trademark Office (USPTO) January 11, 2013 roundtable on the possibility of changing USPTO rules of practice to require the disclosure of real party in interest information during patent prosecution and at certain times post-issuance. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70385-70389. See also, story titled "USPTO to Host Roundtable on Requiring Real Party in Interest Disclosures" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2012.

EXTENDED TO JANUARY 25. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [205 pages in PDF] regarding incentive auctions. The FCC adopted this NPRM on September 28, and released the text on October 2. It is FCC 12-118 in Docket No. 12-268. See, notice in the Federal Register,  Vol. 77, No. 225, November 21, 2012, at Pages 69933-69992. See also, stories titled "FCC Adopts NPRM on Incentive Auctions" and "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012. See, extension notice in the Federal Register, Vol. 77, No. 239, December 12, 2012, at Page 73969.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding implementation of Phase II of the Mobility Fund, which pertains to universal service fund subsidies for mobile broadband. The FCC released this PN on November 27, 2012. It is DA 12-1853 in WC Docket No. 10-90 and WT Docket No. 10-208.  See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73586-73589.

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