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Wednesday, December 26, 2012, Alert No. 2,498.
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House Republicans Tell Obama Not to Impose Cyber Security Regulation by Executive Order

12/21. Rep. Marsha Blackburn (R-TN), Rep. Steve Scalise (R-LA), and 44 other House Republicans sent a letter [PDF] to President Obama to express their "grave concern regarding the Administration's non-transparent pursuit of an Executive Order related to cybersecurity."

They wrote that "Imposing a backdoor regulatory framework through Executive Order will not solve our cybersecurity challenges."

The House has already passed a cyber security bill, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA". President Obama opposes this bill, and Sen. Harry Reid (D-NV) will not allow consideration of this bill by the Senate. The CISPA is directed at incenting cyber threat information sharing, in part by providing immunities. CISPA would not create a new government regulatory regime. See also, story titled "House Passes CISPA" and story titled "Amendment by Amendment Summary of House Consideration of CISPA" in TLJ Daily E-Mail Alert No. 2,380, April 25, 2012.

The 46 House Republicans wrote that "This framework will work better than attempts to place the government in charge of overseeing minimum standards for industries seeking to invest in new and innovative security solutions." They added that the Obama administration "should engage Congress".

They concluded that "Now is not the time to put heavy-handed regulations on industries that need incentives to improve their cyber defenses and share cyber threat information."

There are two significant cyber security bills in the Senate, S 2151 [LOC | WW], the "Secure IT Act", sponsored by Sen. John McCain (R-AZ), and S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", sponsored by retiring Sen. Joe Lieberman (D-CT). Sen. Reid has twice tried but failed to force S 3414 through the Senate without committee hearings and markups, and without Senate debate and amendment.

Title I of S 3414 would impose a new regulatory regime on private sector entities to be specified by regulators. The bill would give the federal government authority to impose cyber security standards on such companies and other entities. Any executive order imposed by President Obama would likely resemble Title I of S 3414.

See also, stories titled "Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime" in TLJ Daily E-Mail Alert No. 2,473, November 14, 2012, and "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

Sen. Leahy Seeks ECPA Reform in 113th Congress

12/20. Sen. Patrick Leahy (D-VT) spoke in the Senate regarding the VPPA amendments bill and ECPA reform.

On December 18, 2012, the House passed HR 6671 [LOC | WW], a bill that amends the Video Privacy Protection Act (VPPA) to facilitate practices of social media web sites. The sponsor is Rep. Bob Goodlatte (R-VA), who will be Chairman of the House Judiciary Committee (HJC) in the 113th Congress. See, story titled "House Passes Video Privacy Protection Act Amendments" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012.

The Senate passed this bill on December 20. See, story titled "Senate Passes VPPA Amendments" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012. This bill is ready for President Obama's signature.

When the Senate Judiciary Committee (SJC) approved an earlier version of this bill, HR 2471 [ LOC | WW], on November 29, 2012, it added a section that would require a warrant for accessing cloud stored e-mail. See, November 29 red line markup of HR 2471 and story titled "Senate Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud Stored E-Mail" in TLJ Daily E-Mail Alert No. 2,479, November 30, 2012. That section will not be enacted into law in the 112th Congress.

However, Sen. Leahy stated on December 20 that he looks forward to working with Rep. Goodlatte in the 113th Congress to update the Electronic Communications Privacy Act (ECPA). He said that the SJC "reported a good proposal to ensure a warrant requirement for e-mails and we should move forward quickly to enact it." See, Congressional Record, December 20, 2012, at Pages S8320-1.

"Like many Americans, I am concerned about the growing and unwelcome government intrusions into our private lives in cyber space. Last month, the Judiciary Committee overwhelmingly passed my legislative proposal to update the Electronic Communications Privacy Act, ECPA, to require a search warrant in order for the government to obtain our e-mail and other electronic communications stored with third-party service providers."

He continued that "When we worked to enact ECPA in 1986, no one could have imagined the way the Internet and mobile technologies would transform how we communicate and exchange information today. But, after three decades, this critical privacy law has been outpaced by the explosion of new technologies and the expansion of the government's surveillance powers."

He said that "My legislative reforms to the Electronic Communications Privacy Act are likewise deserving of such broad and bipartisan support. I urge us to join together in the Congress to enact these important privacy updates without delay."

US and Russia Release Online Piracy Action Plan

12/21. The Office of the U.S. Trade Representative (OUSTR) announced and released a document [3 pages in PDF] titled "United States-Russian Federation Intellectual Property Rights Action Plan". It focuses on online piracy.

It states that "The United States and the Russian Federation remain committed to the protection and enforcement of intellectual property rights (IPR), and confirm the need to work together on improvement of the global approach to IPR protection and enforcement, including over the Internet. Strong IPR protection and enforcement are vital to promoting innovation and creativity by securing the rights of innovators and the creative community, attracting high-technology investment", and creating jobs.

Ron Kirk, the USTR, stated in a release that this plan "represents a significant step at a historic time in our bilateral economic relationship".

Ron KirkKirk (at right) stated that "Russia has made commendable progress in improving its IPR regime, and the Action Plan signals a commitment to maintain that momentum to address IPR priorities".

Under this document, both nations commit to "Take measures in order to disrupt the functioning of websites that facilitate criminal copyright infringement, and provide for takedown of infringing content" and to "Take actions against the creators and administrators of websites through which intellectual property crimes are committed".

Both nations also commit to "Devote sufficient resources within existing law enforcement entities, including specially trained personnel, and encourage creation or maintenance of specialized units with appropriate authority to focus primarily on combating piracy over the Internet, and promoting coordination between such law enforcement entities".

The document also enumerates enforcement actions to be taken by both nations. Both nations commit to "Conduct enforcement actions against counterfeiting, piracy (including software piracy and unauthorized camcording), and the circumvention of technological protection measures and encouraging the imposition of penalties and sentences that deter further violations; Conduct unannounced raids of plants, retail outlets, and warehouses to detect, seize and, where appropriate, destroy goods that violate intellectual property rights; Seize and destroy goods that violate intellectual property rights and the equipment and materials used to produce them". (Parentheses in original.)

Russia commits to "Support special legislation to combat Internet piracy, which will establish a fair framework for liability of Internet service providers in appropriate cases of infringement of intellectual property rights over the Internet."

The US commits to "Working toward the shared goal of removing the Russian Federation from the "Priority Watch List" under the Special 301 Report taking into account progress in Russia on improving IPR protection and enforcement."

US China Commission Reports on New PRC Leadership

12/21. The U.S.-China Economic and Security Review Commission (USCESRC) released a staff report [28 pages in PDF] titled "Outcomes of the Chinese Communist Party’s 18th National Congress". The author is the USCESRC's John Dotson.

The USCESRC, which is also known as the US China Commission and USCC, was created in 2000 by Public Law No. 106-398. It is a 12 member commission selected by the majority and minority leaders in the House and Senate. Its function is to research and write reports for the Congress.

This report concludes that "for the foreseeable future the prospects for the state to loosen its hand on either China's economy or its political system both appear dim".

The report states that the Chinese Communist Party's (CCP) "senior official, Hu Jintao, formally retired and handed over the offices of CCP General Secretary and Chairman of the Central Military Commission to his designated heir apparent: 59 year-old Xi Jinping, a longtime Party functionary and the ``princeling´´ son of a former PRC Vice-Premier. Alongside Li Keqiang, who is almost guaranteed to inherit the position of State Council Premier in March 2013, Xi Jinping will have a ten year (two-term) tenure in power before facing mandatory retirement at the 20th Party Congress in 2022."

This report adds that "Supporters of Jiang Zemin -- referred to here as the ``Shanghai/Princeling Faction,´´ for the fact that many share career experience in China's southeastern coastal regions, or are the children of senior-ranking CCP officials -- came out on top in personnel selections for the Politburo Standing Committee (PBSC), the executive committee that directs state policy on a week-by-week basis. Of the seven members of the new PBSC, six (Xi Jinping, Zhang Dejiang, Yu Zhengsheng, Liu Yunshan, Wang Qishan, and Zhang Gaoli) share clear patronage linkages to Jiang Zemin. The remaining member, future Premier Li Keqiang, is a close protégé of outgoing CCP General Secretary Hu Jintao." (Parentheses in original.)

The report continues that the new PBSC assignment for Wan Qishan is "striking" because he will have a policy portfolio far removed from his professional experience.

"As the PRC Vice-Premier holding the portfolio for banking and international trade policy (2008-2012), Wang Qishan has been one of the Chinese leaders most active and engaged on the international scene. This has included his leading role in the ``Strategic and Economic Dialogues´´".

Wang Qishan was in Washington DC as head of the PRC delegation at the December 17 and 18 meeting of the U.S.-China Joint Commission on Commerce and Trade. See, stories titled "JCCT Meeting Concludes" in TLJ Daily E-Mail Alert No. 2,495, December 20, 2012, and "OUSTR Reports on PRC's JCCT Commitments" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012.

The just released report continues that "Based on his extensive experience in macroeconomic policy and trade negotiations, many expected Wang to receive the slot of Executive Vice-Premier in the new PBSC; or failing that, another senior position that would keep him engaged in discussions of macroeconomic policy."

However, instead, he has been appointed director of the Central Disciplinary Inspection Commission (CDIC), "the CCP's watchdog agency for corruption. The move puzzled many observers ... The reasons for Wang Qishan's incongruous assignment to CDIC are unknown."

Zhang GaoliInstead, Zhang Gaoli (at left) will be the new PRC Executive Vice-Premier. See also, PRC government biography for Zhang Gaoli.

The report states that "The backgrounds of Wang Qishan and Zhang Gaoli suggest that they might be open to further economic reform, but neither has displayed any indications of sympathy for political reform. The only member of the new PBSC who has given any hints of support for limited political reform is Li Keqiang; however, even if Li were to be inclined to press the issue of political or major economic reform in the years ahead, he would likely find himself isolated." (Footnotes omitted.)

A Brookings Institute web page on Zhang Gaoli states that he "has been known for his pro-market economic policy orientation, especially evident in his leadership tenure in Shenzhen."

The New York Times published a story by Keith Bradsher on November 19, 2012, that describes Zhang.

Bradsher wrote that he "has emerged as the man expected, after approval by the National People's Congress in March, to handle day-to-day management of the Chinese economy. He won out over Wang Qishan, who has a much deeper background in economic and financial policy making and was seen as likely to clash with and perhaps even overshadow the incoming prime minister, Li Keqiang."

Bradsher added that Zhang "has been a defender of huge government-guided investments, an approach that very much fits the mold of ambitious party officials eager to get ahead within the existing power structure. At the same time, say experts and people who know him, he has cultivated an image as a stern bureaucratic taskmaster, a politician who can get things done by working with powerful business interests rather than challenging them."

In This Issue
This issue contains the following items:
 • House Republicans Tell Obama Not to Impose Cyber Security Regulation by Executive Order
 • Sen. Leahy Seeks ECPA Reform in 113th Congress
 • US and Russia Release Online Piracy Action Plan
 • US China Commission Reports on New PRC Leadership
 • National Medal of Technology and Innovation Recipients Announced
 • More People and Appointments
 • More News
Washington Tech Calendar
New items are highlighted in red.
Wednesday, December 26

221st Birthday of Charles Babbage.

The House will not meet.

The Senate will not meet.

EXTENDED TO JANUARY 7. Deadline to submit comments to the Federal Communications Commission (FCC) in response to its November 1 Public Notice (PN) seeking updated information and comment on review of hearing aid compatibility regulations. This PN is DA 12-1745 in WT Docket No. 10-254. See, November 27 extension Public Notice (DA 12-1898) and extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72294-72295.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [21 pages in PDF] regarding applications and notifications from foreign carriers or affiliates of foreign carriers for entry into the U.S. market for international telecommunications services and facilities under section 214 of Communications Act. This pertains to the effective competitive opportunities test or ECO Test. The FCC adopted this NPRM on October 10, and released the text on October 11. It is FCC 12-125 in IB Docket No. 12-299. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70400-70407.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [7 pages in PDF] regarding hearing aid compatibility of wireless handsets. This PN is DA 12-1745 in WT Docket No. 10-254. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70407-70409.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its December 3, 2012 Public Notice (PN) that seeks comments on the FCC Media Bureau's November 14, 2012 report [121 pages in PDF] regarding regulation of media ownership. The December 3 PN is DA 12-1946. The November 14 report is DA 12-1667. See also, notice in the Federal Register, Vol. 77, No. 237, Monday, December 10, 2012, at Pages 73461-73462, and story titled "Sen. Sanders and Others Urge FCC to Continue Ancient Newspaper Broadcast Cross Ownership Rule" in TLJ Daily E-Mail Alert No. 2,484, December 6, 2012.

Thursday, December 27

The House will meet at 2:00 PM.

The Senate will meet at 10:00 AM.

Friday, December 28

109th birthday of John von Neumann.

Deadline to submit reply 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.

Monday, December 31

No events listed.

Tuesday, January 1

New Year's Day. This is a federal holiday. See, OPM list of 2013 federal holidays.

Wednesday, January 2

Deadline to submit oppositions to Motorola Solutions's petition for reconsideration of the FCC's Report and Order regarding certification and use of Terrestrial Trunked Radio (TETRA) technology on certain Part 90 land mobile radio frequencies. This R&O is FCC 12-114 in WT Docket No. 11-69. See also, notice in the Federal Register, Vol. 77, No. 243, December 18, 2012, at Pages 74822-74823.

National Medal of Technology and Innovation Recipients Announced

12/21. The latest round of National Medals of Technology and Innovation will go to seven individuals, one team of three, and one corporation. However, only one relates to information technology. See, White House news office release.

The nine medals will be awarded to the following:

  • Frances Arnold (professor of chemical engineering at California Institute of Technology).
  • George Carruthers (U.S. Naval Research Lab, whose work involved far ultraviolet astronomy).
  • Robert Langer (professor of chemical and biomedical engineering at Massachusetts Institute of Technology).
  • Norman McCombs (AirSep Corporation, inventor of a portable medical oxygen concentrator).
  • Gholam Peyman (Arizona Retinal Specialists).
  • Art Rosenfeld (Lawrence Berkeley National Laboratory, whose work involved energy efficient technologies).
  • Jan Vilcek (professor of microbiology at NYU Langone Medical Center).
  • The team of Samuel Blum, Rangaswamy Srinivasan, and James Wynne (IBM, inventors of the ultraviolet excimer laser, which is used in dental and surgical procedures, including LASIK surgery).
  • Raytheon BBN Technologies.

The medals will be awarded at a ceremony to be held on a yet to be announced date.

The National Medal of Technology and Innovation program was instituted by the Stevenson Wydler Technology Innovation Act of 1980. It is Public Law No. 96-180. It is now codified, along with amendments, at 15 U.S.C. § 3711.

Currently, the U.S. Patent and Trademark Office (USPTO) is tasked with administering this program. The deadline to submit nominations to the USPTO for the next round of medals is 5:00 PM on March 31, 2013. See, USPTO notice.

For more on the history of this program, see story titled "Commentary: National Medal of Technology Program" in TLJ Daily E-Mail Alert No. 1,312, February 17, 2006.

More People and Appointments

12/25. With only days left for the 112th Congress to confirm pending executive branch nominations, two technology related nominees remain on the Senate's Executive Calendar, William Baer and David Medine. President Obama nominated Baer to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division. The Senate Judiciary Committee (SJC) approved his nomination on September 20, 2012. See, story titled "Senate Judiciary Committee Approves Baer Nomination" in TLJ Daily E-Mail Alert No. 2,452, September 20, 2012. President Obama nominated Medine to be Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB). The SJC approved his nomination on May 23, 2012. See, stories titled "Senate Judiciary Committee Approves PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,385, May 23, 2012, and "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

12/20. President Obama announced his intent to nominate Ruth David and Maria Zuber to be members of the National Science Foundation's (NSF) National Science Board. See, White House news office release. David is P/CEO of Analytic Services Inc. Before that she worked for the Central Intelligence Agency (CIA). Zuber is a professor of geophysics at the Massachusetts Institute of Technology (MIT).

12/20. Dave Levinthal will join the Center for Public Integrity (CPI) on January 7, 2013. He has worked for Politico since July of 2011. Before that, he worked for the Center for Responsive Politics. See, CPI release.

More News

12/21. The U.S. Patent and Trademark Office (USPTO) issued a release regarding the launch of a permanent Patent Prosecution Highway (PPH) program with the Taiwan Intellectual Property Office (TIPO). See also, story titled "USPTO and Taiwan IPO Announce Patent Prosecution Highway Program" in TLJ Daily E-Mail Alert No. 2,292, August 24, 2011.

12/21. The National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register (FR) that announces, describes, and recites changes to its Manual of Regulations and Procedures for Federal Radio Frequency Management. See, FR, Vol. 77, No. 246, December 21, 2012, at Pages 75567-75568.

12/21. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the TeleManagement Forum filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 77, No. 246, December 21, 2012, at Pages 75663-75670.

12/20. The U.S. Court of Appeals (7thCir) issued its opinion in Adams v. Raintree Vacation Exchanges, a case regarding the enforceability of contract forum selection clauses by non-parties. The plaintiffs are Charles Adams and other purchasers of timeshare interests resort villas in Mexico. Because of a series of mergers, the defendants' predecessor, which signed the contracts with Mexico forum selection clauses, no longer exists. Plaintiffs filed a complaint in state court in Illinois, and sought class action status. Defendants removed the action to the U.S. District Court (NDIll). Defendants also moved to dismiss pursuant to the forum selection clause. The District Court granted the motion. The Court of Appeals affirmed. In this opinion, Judge Posner elaborated on the test for whether a nonparty to the contract containing such a clause can enforce it, and whether a nonparty will be bound by it if sued. The test is whether the nonparty is closely related to the suit. See also, the 9th Circuit's 2007 opinion in Holland America Line v. Wärtsilä North America, 485 F.3d 450. This case is Charles Adams, et al. v. Raintree Vacation Exchanges, LLC, et al., U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 11-3576, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division., D.C. No. 10 C 3264, Judge Virginia Kendall presiding. Judge Richard Posner wrote the opinion of the Court of Appeals, in which Judges Kanne and Rovner joined.

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