12/28. The Senate passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 73-23. See, Roll Call No 236.

The House passed this bill on September 12, 2012. It is now ready for President Obama's signature. He announced his support for this bill back in September. See, story titled "Obama Backs FISA Bill" in TLJ Daily E-Mail Alert No. 2,446, September 12, 2012.

See also, related stories in this issue:

• "Senate Debate: Case For the FISA Extension Bill"
• "Senate Debate: Case Against the FISA Extension Bill"
• "Senate Rejects Amendments to FISA Extension Bill"
• "Commentary: Analysis of Senate Votes on the FISA Extension Bill"

Introduction. This short bill merely extends for five years government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.

This warrantless "outside" of the US surveillance authority was enacted as part of HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". It is Public Law No. 110-261. The 2008 Act provides that this "outside" of the US authority sunsets on December 31, 2012.

The Senate rejected four amendments on roll call votes on December 27 and 28.

The House Republican leadership brought this bill to the House floor in September under a closed rule, thereby allowing no amendments to be considered. See, story titled "House Rules Committee Allows No Amendments to FISA Surveillance Bill" in TLJ Daily E-Mail Alert No. 2,446, September 12, 2012.

House Democrats had sought to offer three amendments. One would have shortened the extension. Another would have required the Attorney General to publish an unclassified summary of each FISA body opinion that includes a significant construction or interpretation of Section 702. A third would have expanded Congressional reporting requirements.

Outside the US Surveillance. Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. § 1881a, contains the "outside" the US surveillance authority.

This section, which was enacted by the 2008 Act, allows federal surveillance, without individualized court approval, under the FISA, of people believed to be outside of the US. More specifically, it pertains to "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information".

However, US citizens are located abroad, persons abroad communicate with persons inside the US, and those conducting surveillance often do not know the location of the persons they are attempting to surveil. Hence, this provision enables the government to conduct warrantless wiretaps and other surveillance of US citizens located in the US when communicating with persons whom the government believes are abroad.

Foreigners located outside the US are not protected by the 4th Amendment. The US government can wiretap them at will without court approval without violating US law. However, the 2008 Act authorizes surveillance that also results in the interception of communications of persons who are protected by the 4th Amendment.

It should be noted that the provision in the 2008 Act does require a court order. However, it allows broad generalized orders. It allows orders that cover entire surveillance programs, without identification or description of any person, phone, or email account. The 4th Amendment requires individualized orders. That is, it requires orders "particularly describing the place to be searched, and the persons or things to be seized".

The 2008 Act also contains some limitations on this broad surveillance authority. For example, the government "may not intentionally target any person known at the time of acquisition to be located in the United States" under this authority.

Reaction. The American Civil Liberties Union (ACLU) has challenged the constitutionality of the 2008 Act. It stated in a release on December 28 that this is an "unconstitutional spying bill that violates the Fourth Amendment and gives vast, unchecked surveillance authority to the government". The ACLU also assigned blame to former President Bush, but not to President Obama. Obama has announced his support for its extension.

The Electronic Frontier Foundation (EFF) stated in a release that "Incredibly, the Senate rejected all the proposed amendments that would have brought a modicum of transparency and oversight to the government's activities, despite previous refusals by the Executive branch to even estimate how many Americans are surveilled by this program or reveal critical secret court rulings interpreting it."

The Cato Institute's Julian Sanchez complained in a December 28 audio [12:40] that the Senate delayed consideration until days before expiration, and then proceeded under "manufactured urgency".

See also, story titled "House Judiciary Committee Approves FISA Bill" in TLJ Daily E-Mail Alert No. 2,399, June 19, 2012, and stories titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority", "House Judiciary Committee Takes Up Bill To Extend FISA Outside the US Warrantless Wiretap Authority", and "Commentary: Warrantless Wiretaps and Senate Secrecy" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

12/28. The Senate debated HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", on December 27 and 28, 2012. It passed the bill, without amendment, on December 28.

Sen. Dianne Feinstein (D-CA), the Chairman of the Senate Intelligence Committee (SIC), and Sen. Saxby Chambliss (R-GA), the ranking Republican on the SIC, were the primary proponents of the bill, and the primary opponents to the proposed amendments to the bill.

Sen. Chambliss (at right) said that "More than 5 years ago, after an adverse ruling from the Foreign Intelligence Surveillance Act Court, the Director of National Intelligence requested that Congress act immediately to stem the sudden and significant reduction in the intelligence community's capability to collect foreign intelligence information on overseas targets. So Congress responded -- first with the Protect America Act of 2007 and then with the FISA Amendments Act of 2008. By providing a statutory framework for acquiring foreign intelligence information from overseas targets, the FAA has enabled the intelligence community to identify and neutralize terror networks before they harm us either at home or abroad. While I cannot get into specific examples, I can say definitively that these authorities work extremely well." See, Congressional Record, December 27, 2012, at Page S8412.

"Under section 702, the government may target persons reasonably believed to be outside the United States for the purpose of acquiring foreign intelligence information. However, there are a number of important limitations on this authority that are designed to ensure that this section 702 collection cannot be used to intentionally target a U.S. person under what we call reverse-targeting within the community."

He said that "The plain language and legislative history of section 702 makes clear that Congress understood there would be incidental collection of one-end domestic and U.S. person communications. There has to be. If we impose an upfront ban on the collection of such communications, we could never do the acquisition in the first place because it is often impossible to determine in advance whether an unknown target overseas is, in fact, a U.S. person."

Sen. Feinstein asked rhetorically, "Can the government use section 702 of FISA to target a U.S. person? The answer to that is no. The law specifically prohibits the use of section 702 authorities to direct collection against -- that means target -- U.S. persons. So no one should think the targets are U.S. persons."

Sen. Feinstein (at right) said that "This prohibition is codified in section 702(b), which states that surveillance authorities may not be used -- and let me quote the law -- ``to intentionally target any person known at the time of acquisition to be located in the United States or to intentionally target a United States person reasonably believed to be located outside the United States.'' (At Page S8391.)

She continued that "it is simply not possible to collect intelligence on the communications of a person of interest without also collecting information about the people with whom and about whom that person communicates, including, in some cases, non-targeted U.S. persons. The concern was addressed when the FAA was originally drafted. Specifically, in order to protect the privacy and civil liberty of U.S. persons, Congress mandated that for collection conducted under 702, the Attorney General adopt and the FISA Court review and approve procedures that minimize the acquisition, retention, and dissemination of nonpublic information concerning unconsenting U.S. persons."

"There are procedures and requirements in place under current law that provide protection for the privacy and civil liberties of U.S. persons. Those entrusted with the responsibility to collect the oversight, the committees of jurisdiction, the FISA Court, and the executive branch agencies together remain vigilant and continue to review the operations of these agencies."

Sen. Feinstein and Sen. Chambliss issued a joint statement after passage. They wrote that "This necessary legislation will continue to keep America safe by enabling our intelligence community to identify and neutralize terror networks before they harm us either at home or abroad. In addition, this legislation includes strong privacy protections. The Senate Intelligence Committee will continue to conduct intensive oversight of this program in the 113th Congress."

12/28. The Senate debated HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", on December 27 and 28, 2012. It passed the bill, without amendment, on December 28.

The leading opponents of the bill during debate were Sen. Ron Wyden (D-OR), Sen. Jeff Merkley (D-OR), Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), and Sen. Rand Paul (R-KY).

Sen. Lee, who voted for all four failed amendments, and against the bill, spoke at length in the Senate on December 27. See, text, video [13:47 on YouTube], and Congressional Record, December 27, 2012, at Pages S8423-4.

Sen. Lee (at right) said that "I am concerned about the government's ability -- without a warrant -- to search through FISA materials for communications involving individual American citizens. I worry that this authority is inconsistent with and diminishes the essential constitutional right that each of us has ``to be secure ... against unreasonable searches and seizures.´´"

He said that "I believe we must enforce meaningful protections for circumstances when the government searches through its database of captured communications looking for information on individual American citizens; otherwise, by means of these so-called backdoor searches, the government may conduct significant warrantless surveillance of American persons. I believe this current practice is inconsistent with core fourth amendment privacy protections and needs to be reformed."

Sen. Ron Wyden (D-OR) described the outside the US authority created by the 2008 act as "the successor to the warrantless wiretapping program that operated under the Bush administration". See, Congressional Record, December 27, 2012, at Page S8385.

He proceeded with a long speech on the historical origins of the 4th Amendment. He concluded that the founding fathers drafted the 4th Amendment to prohibit the sort of warrantless searches that the British had practiced and that caused the American colonies to rebel. And, he said, that the the authority created by Section 702 allows practices similar to those of the British.

Sen. Wyden (at left) said that "section 702 of the FISA Amendments Act does not involve obtaining individual warrants. Instead, it allows the government to get what is called a programmatic warrant. It lasts for an entire year and authorizes the government to collect a potentially large number of phone calls and e-mails, with no requirement that the senders or recipients be connected to terrorism, espionage -- the threats we are concerned about. If that sounds familiar, it certainly should. General warrants that allowed government officials to decide whose privacy to invade were the exact sort of abuse that the American colonists protested over and led the Founding Fathers to adopt the fourth amendment in the first place." (At page S8387.)

Sen. Wyden also reviewed the efforts of Senators to get a "rough estimate" from the intelligence community of "how many Americans' communications have been swept up in this way. Is it hundreds? Is it hundreds of thousands? Is it millions?" He said that the Director of National Intelligence will not publicly provide an estimate, state whether any estimate have been made, or "whether any wholly domestic communications had been collected".

He continued that "once the government has this pile of communications, which contains an unknown but potentially very large number of Americans' phone calls and e-mails, there are surprisingly few rules about what can be done with it. For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity." (At page S8388.)

"Again, if it sounds familiar, it ought to because that is how I began this discussion, talking about these sorts of general warrants that so upset the colonists. General warrants allowing government officials to deliberately intrude on the privacy of individual Americans at their discretion was, as I have outlined this morning, the abuse that led America's Founding Fathers to rise up against the British. They are exactly what the fourth amendment was written to prevent."

12/28. The Senate considered and passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", on December 27 and 28, 2012. It voted on four amendments, all of which it rejected on roll call votes.

First, the Senate rejected an amendment offered by Sen. Patrick Leahy (D-VT) and others that would have shortened the extension, and provided for more oversight by the Inspector General of the Intelligence Community.

Second, the Senate rejected an amendment offered by Sen. Jeff Merkley (D-OR), Sen. Mike Lee (R-UT) and others that would have required the Department of Justice (DOJ) to release certain significant opinions, or summaries of opinions, of the FISA body.

Third, the Senate rejected an amendment offered by Sen. Rand Paul (R-KY) also known as the 4th Amendment Protection Act.

Fourth, the Senate rejected an amendment offered by Sen. Ron Wyden (D-OR) that would have imposed addition reporting requirements.

Leahy: Substitute Bill. First, the Senate rejected on December 27 the amendment in the nature of a substitute offered by Sen. Leahy by a vote of 38-52. See, Roll Call No. 232.

This is Senate Amendment No. 3437, also printed in the Congressional Record, December 27, 2012, at Page S8453. The cosponsors were Sen. Richard Durbin (D-IL), Sen. Al Franken (D-MN), Sen. Jeanne Shaheen (D-NH), Sen. Daniel Akaka (D-HI), and Sen. Christopher Coons (D-DE).

First, instead of providing or a five year extension, it would have provided a shorter extension -- until June 1, 2015. Second, it would have broadened the powers and duties of the Inspector General of the Intelligence Community to review and report on "targeting and minimization procedures".

Sen. Leahy stated that "While there is no question that the surveillance powers established in the FISA Amendments Act have proven to be extraordinarily important for our national security, it is equally clear to me that those broad powers must continue to come with rigorous oversight and strong privacy protections."

"Based on my review of information provided by the Government, and after a series of classified briefings, I have not seen evidence that the law has been abused, or that the communications of U.S. persons are being intentionally targeted. But let's be absolutely clear, my conclusion is based on the information I have seen to date, and current compliance does not guarantee future compliance."

"Even more troubling is the fact that we still have not received a report from the NSA Inspector General that fully assesses the NSA's compliance with its targeting and minimization procedures, or the limitations we put in place to protect the privacy of Americans."

The only Republicans to vote yes were Sen. Lee and Sen. Paul.

36 Democrats voted yes. 12 Democrats  voted no. The Democrats who voted no were Sen. Dianne Feinstein (D-CA), Sen. Kay Hagan (D-NC), Sen. John Kerry (D-MA), Sen. Herb Kohl (D-WI), Sen. Mary Landrieu (D-LA), Sen. Joe Lieberman (D-CT), Sen. Claire McCaskill (D-MO), Sen. Barbara Mikulski (D-MD), Sen. Bill Nelson (D-FL), Sen. Mark Pryor (D-AR), Sen. John Rockefeller (D-WV), and Sen. Mark Warner (D-VA).

Merkley: Disclosure of FISA Body Opinions. Second, the Senate rejected an amendment offered by Sen. Merkley by a vote of 37-54. See, Roll Call No. 233.

This is Senate Amendment No. 3435, also printed in the Congressional Record, December 27, 2012, at Page S8452. The cosponsors were Sen. Lee, Sen. Coons, Sen. Wyden, Sen. Franken, Sen. Shaheen, Sen. Durbin., and Sen. Jon Tester (D-MT).

It would have required the Attorney General to disclose each decision, order, or opinion of the body (titled "Foreign Intelligence Surveillance Court" by the FISA) that includes significant legal interpretation of Section 501 or 702 of the FISA unless such disclosure is not in the national security interest.

Section 702 is the outside the US surveillance authority of the 2008 act. The controversy surrounding Section 501 dates back to the passage of the 2001 surveillance act, which was Title II of the USA PATRIOT Act.

Section 215 of the 2001 act rewrote Section 501 of the 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 Investigations". This 215/501/1861 authority enables the FBI to obtain from a judge or magistrate an order requiring the production business records. While the statute does not expressly include library or bookseller records, it is not disputed that they are covered. 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.

This amendment provides that "Attorney General shall declassify and make available to the public" each decision, or if protecting national security so warrants, "an unclassified summary of such decision".

This amendment recited in its findings that "Secret law is inconsistent with democratic governance. In order for the rule of law to prevail, the requirements of the law must be publicly discoverable", and that the "practice of withholding decisions" of the FISA body "is at odds with the United States tradition of open publication of law".

Sen. Lee argued that "a bedrock principle upon which our Nation is founded is that the requirements of law must be made publicly available -- available for review, available for the scrutiny of the average American."

Sen. Merkley (at right) stated that "If the court reaches an interpretation with which Congress is uncomfortable, we should be able to change that, but of course we cannot change it, not knowing what the interpretation is because the interpretation is secret. So we are certainly constrained from having the type of debate that our Nation was founded on -- an open discussion of issues."

He explained that the amendment would require "the Attorney General to declassify the FISA report in court of review opinions that include significant legal interpretations. If the Attorney General makes a decision, however, that it cannot be declassified -- those decisions -- in a way that does not jeopardize national security, then the amendment requires the administration to declassify summaries of their opinions." And, "If the Attorney General decides that not even a summary can be declassified without compromising national security, then the amendment requires the administration to report to Congress regarding the status of its process for declassifying these opinions".

Sen. Wyden stated that "in 2009 when the Obama administration wrote to Senator Rockefeller and myself to inform us that they would be setting up a process for redacting and releasing those FISA Court opinions that contained significant interpretations of law. Unfortunately, over 3 years later, this process has produced literally zero results. Not a single redacted opinion or summary of FISA Court rulings has been released." (At page S8389.)

Only three Republicans voted yes: Sen. Lee, Sen. Heller, and Sen. Paul.

34 Democrats also voted yes. The Democrats who voted no were Sen. Dianne Feinstein (D-CA), Sen. Robert Casey (D-PA), Sen. Kay Hagan (D-NC), Sen. Tim Johnson (D-SD), Sen. John Kerry (D-MA), Sen. Herb Kohl (D-WI), Sen. Mary Landrieu (D-LA), Sen. Joe Lieberman (D-CT), Sen. Claire McCaskill (D-MO), Sen. Barbara Mikulski (D-MD), Sen. Ben Nelson (D-NE), Sen. John Rockefeller (D-WV), Sen. Mark Warner (D-VA), and Sen. Sheldon Whitehouse (D-RI).

Paul: 4th Amendment Preservation Act. The Senate rejected an amendment offered by Sen. Paul by a vote of 12-79. See, Roll Call No. 234.

This is Senate Amendment No. 3436, also printed in the Congressional Record, December 27, 2012, at Page S8453. The only cosponsor was Sen. Lee.

This amendment, also known as the 4th Amendment Preservation Act, is not essentially about FISA outside the US surveillance authority. It goes to a broad range of government surveillance and searches and seizures.

The 4th Amendment to the Constitution provides, in full, that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The 4th Amendment references "persons, houses, papers and effects". However, items that were once stored in houses and in filing cabinets are now stored online in servers owned by third party service providers. The Department of Justice (DOJ) and state law enforcement agencies have attempted, with considerable success, to treat information stored with third party services as beyond the reach of the 4th Amendment warrant requirement. Also, much confidential information about individuals is now held by banks and other third parties. The Department of Justice (DOJ) and state law enforcement agencies successfully assert that this information belongs to the service provider.

Sen. Paul's amendment seeks to undo these effects upon 4th Amendment protections.

The amendment provides that "the Federal Government and a State or local government is prohibited from obtaining or seeking to obtain information relating to an individual or group of individuals held by a third-party in a system of records, and no such information shall be admissible in a criminal prosecution in a court of law."

However, the amendment then provides exceptions in cases where there is consent from the individual, or a warrant from a court. "The Federal Government or a State or local government may obtain, and a court may admit, information relating to an individual held by a third-party in a system of records if -- (A) the individual whose name or identification information the Federal Government or State or local government is using to access the information provides express and informed consent to the search; or (B) the Federal Government or State or local government obtains a warrant, upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Sen. Paul stated in the Senate that "We have allowed Congress and the courts to diminish our fourth amendment protections, particularly when we give our papers to a third party--once information is given to an Internet provider or to a bank. Once we allowed our papers to be held by third parties, such as telephone companies or Internet providers, the courts determined we no longer had a legally recognized expectation of privacy."

He said that "This amendment would restore the fourth amendment protection to third-party records. This amendment would simply apply the fourth amendment to modern means of communications. E-mailing and text messaging would be given the same protections we currently give to telephone conversations."

Only three Republicans voted yes: Sen. Lee, Sen. Paul and Sen. Heller.

Only nine Democrats voted yes: Sen. Merkley, Sen. Wyden, Sen. Max Baucus (D-MT), Sen. John Tester (D-MT), Sen. Mark Begich (D-AK), Sen. Maria Cantwell (D-WA), Sen. Debbie Stabenow (D-MI), Sen. Tom Udall (D-NM), and Sen. Jim Webb (D-VA).

Wyden: Reporting Requirement. Fourth, the Senate rejected an amendment on December 28 offered by Sen. Wyden by a vote of 43-52. See, Roll Call No. 235. This is Senate Amendment No. 3439.  There were 14 cosponsors.

This amendment would require the government to provide an estimate of how many Americans have been surveilled under the FISA's outside the US authority.

He stated that "For purposes of the FISA Amendments Act, I think we ought to know, generally, how many Americans are being swept up under the legislation. Oversight essentially would be toothless without this kind of information."

He continued that "When the distinguished chair of the committee says Senators should go over to the committee's offices and look at the documents which state that the intelligence community cannot do a new estimate, I want Senators to know the language of my amendment does not ask for a new estimate. In no way does it ask for a new estimate. It simply says: If an estimate has been done, that estimate ought to be furnished. If no estimate has been done, the answer to that is simply no."

He added that "also requires the intelligence community to state whether any wholly domestic communications have been collected. That again can be answered with a yes or no. Finally, it requires a response as to whether the National Security Agency has collected personal information on millions of Americans, and that too is a very straightforward answer.

Only six Republicans voted yes: Sen. Lee, Sen. Paul, Sen. Heller, Sen. Charles Grassley (R-IA), Sen. Lisa Murkowski (R-AK), and Sen. Pat Toomey (R-PA).

The House will meet at 2:00 PM.

The Senate will meet at 1:00 PM.

The House will meet at 2:00 PM.

The Senate will meet at 11:00 AM.

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

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.

The House will meet. See, House calendar for 113th Congress, 1st Session.

The House will meet. See, House calendar for 113th Congress, 1st Session.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its December 2012 unemployment data.

EXTENDED TO FEBRUARY 4. 5:00 PM. Deadline to submit initial comments to the Copyright Office (CO) in response to its notice of inquiry (NOI) titled "Orphan Works and Mass Digitization". See, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64555-64561. See also, story titled "Copyright Office Issues Notice of Inquiry on Orphan Works" in TLJ Daily E-Mail Alert No. 2,468, November 2, 2012. See, extension notice in the Federal Register, Vol. 77, No. 231, November 30, 2012 at Page 71452.

Deadline to submit reply 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.

5:00 PM. Deadline to submit initial comments to the Copyright Office (CO) in response to its notice in the Federal Register regarding its proposed fee schedule for filing cable and satellite statements of account. See, FR, Vol. 77, No. 235, December 6, 2012, at Pages 72788-72791.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [57 pages in PDF] regarding cable TV technical rules. The FCC adopted and released this item on August 3, 2012. It is FCC 12-86 in MB Docket No. 12-217. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61351-61375. See also, TLJ story titled "FCC Adopts NPRM Regarding Cable TV Technical Rules" in TLJ Daily E-Mail Alert No. 2,421, August 5, 2012.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed rules changes pertaining to voluntary self disclosures (VSD) of violations of the Export Administration Regulations (EAR). See, notice in the Federal Register, Vol. 77, No. 216, November 7, 2012, at Pages 66777-66780.

EXTENDED FROM DECEMBER 26. Extended 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 also, 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 comments to the Department of Health and Human Services (DHHS) in response to its December 7, 2012 notice in the Federal Register (FR) regarding health information technology. This notice contains interim final changes to the final rule published in the DHHS's September 4, 2012 notice in the FR. See, FR, Vol. 77, No. 236, December 7, 2012, at Pages 72985-72991, and FR, Vol. 77, No. 171, September 4, 2012, at Pages 54163-54292.

Deadline to submit reply 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.

Deadline to submit comments to the Federal Trade Commission (FTC) regarding its proposed consent agreement with Epic Marketplace, Inc. (an online behavioral advertising company) and Epic Media Group, LLC (its parent company). The complaint alleged violation of Section 5 of the FTC Act in connection with Epic's misrepresentation of the web browsing information that it collected. See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73655-73657. See also, story titled "FTC Brings Action Against Behavioral Advertising Company for History Sniffing" in TLJ Daily E-Mail Alert No. 2,489, December 12, 2012.

12/28. The Senate passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 73-23. See, Roll Call No 236. The Senate first rejected four amendments on roll call votes.

Voting on amendments, and for final passage, correlated with party affiliation. Senate Democrats were more likely to vote for the amendments, and against the bill, than Republicans.

This is observable by reviewing the roll call votes. In addition, one can quantify this. For example, the Pearson's Correlation Coefficient for the two dichotomous variables of party affiliation (being a Democrat) and voting for the Leahy amendment was .70. Similarly, the coefficients for party affiliation and voting for the Merkley, Paul and Wyden amendments were .64, .18 and .63, respectively. The coefficient for party and voting against final passage was .39.

Party affiliation does not, however, explain all votes. Moreover, turning to data on party affiliation of registered voters in each state does not help. Nor do the ideological ratings of Senators.

One can also sometimes explain voting on the basis of how a particular bill disparately burdens or benefits different states. However, that method of analysis is not useful for this bill because this bill affects all states equally.

This article offers a hypothesis regarding another possible causal factor in Senators' voting decisions on bills of this nature. Senators are also influenced by businesses based in their states, and their contractors, affiliates, and trade associations. The primary businesses involved with electronic surveillance are the communications service providers.

Senators represent geographic territories. To certain extent, communications service providers are geographic too. Consider the 1982 Modification of Final Judgment (MFJ) in US v. AT&T that created seven separate geographically defined Regional Bell Operating Companies (RBOCs). The MFJ did not include a few states in an RBOC. Over the years six of the seven have been consolidated into Verizon and AT&T.

This article suggests that there was a pattern in voting on the FISA extension bill based upon whether the Senator represents a state that had an RBOC that became part of either Verizon or AT&T, or whether the Senator represents one of the USWest states, or Alaska, Hawaii or Nevada. USWest, of course, became Qwest, which is now part of CenturyLink. For the sake of brevity, this article refers to a dichotomous breakdown of states - USWest Plus states and Verizon/AT&T states.

On this FISA extension bill, voting correlated with affiliations in this dichotomy. That is, the Senators who were more likely to vote for the amendments, and against the bill, represent the USWest Plus states. Conversely, the Senators who were more likely to vote against the amendments, and for the bill, represent the Verizon/AT&T states.

CenturyLink's roots are as a domestic rural land line phone service provider. It has no wireless arm. Also, USWest/Qwest's experiences with federal regulatory, law enforcement and intelligence agencies were dissimilar to those of the other six RBOCs and their successors.

The Pearsons Correlation Coefficient for the two variables of RBOC affiliation (representing a USWest Plus state) and voting for the Leahy amendment was .30. For RBOC affiliation and voting for the Merkley amendment, the correlation coefficient was .31. For RBOC affiliation and voting for the Paul amendment, it was .33. For RBOC affiliation and voting for the Wyden amendment, the coefficient was .34. Finally, for RBOC affiliation and voting against final passage, the correlation coefficient was .40. Notably, being a USWest Plus state Senator was a better predictor of voting than party affiliation on both the Paul amendment and on final passage.

TLJ also scored each Senator on a scale of 0 to 5. TLJ assigned one point for each vote for one of the four amendments, and one point for voting against final passage. The Pearson's Correlation Coefficient for the two variables of party affiliation (being a Democrat) and this composite score was .60. The coefficient for RBOC affiliation (representing a USWest Plus state) and this composite score was .41. Thus, overall, party was a better predictor of voting.

While this article presents some showing of an observable statistical relationship between voting on this bill and representing a USWest Plus state, this does not show causation. It is possible that there is some other factor, that is not discussed in this article, and that is correlated with being a USWest Plus state, that does have a causal affect upon Senators' votes. The correlation coefficients measured for this article result from this other factor. For example, the USWest Plus states are all in the western part of the country. Perhaps there exist regional variations in voter attitudes about government surveillance, with westerners more inclined towards privacy than people in other parts of the country.

(TLJ categorized all Senators as either a Democrat of Republican. Sen. Sanders and Sen. Lieberman were treated as Democrats. TLJ treated not voting the same as voting no.)

12/28. The Senate amended and passed HR 6621 [LOC | WW], an untitled bill that would make numerous changes to patent law. The Senate passed a substitute amendment offered by Sen. Patrick Leahy (D-VT) and Sen. Charles Grassley (R-IA), by unanimous consent, with little discussion.

Rep. Lamar Smith (R-TX) introduced this bill on November 30, 2012. See, story titled "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012. The House passed this bill on December 18, 2012. See, story titled "House Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 4,494, December 19, 2012.

The just passed Senate version deletes from the House bill the provision regarding pending pre-GATT applications. While Rep. Smith, Sen. Leahy, and other proponents have described this bill as a technical corrections bill, the pre-GATT issue involves some controversy. The bill as introduced in the House would have would have eliminated several hundred long pending patent applications after one year. The bill as passed by the House provided for the U.S. Patent and Trademark Office (USPTO) to prepare a report about, and disclose, these applications. The bill as passed in the Senate does not address this issue.

Neither the House Judiciary Committee (HJC) nor the Senate Judiciary Committee (SJC) held any hearings or mark up sessions. Only Sen. Leahy discussed this bill on the Senate floor on December 28.

Sen. Leahy stated in the Senate that he regrets that the bill does not address the post-grant estoppel provision of the America Invents Act (AIA). He said that "I hope we will soon address this issue so that the law accurately reflects Congress's intent." See, Congressional Record, December 28, 2012, at Page S8517.

Sen. Leahy also stated that "The assertion of patents is still too often used by patent trolls to extract payment even where there is not infringement of a valid patent, and the ``tech patent wars´´ among the large mobile phone companies show the perils to competition that can come when companies do not reach business-to-business resolutions of their patent disputes. But the important reforms made by the Leahy-Smith America Invents Act go a long way toward improving the patent system. This legislation will help streamline those reforms, helping inventors, businesses, and the countless American workers employed in industries that produce and rely on intellectual property."

The House met on Sunday, December 30. Rep. Smith moved to suspend the rules and concur in the Senate version. He and Rep. Bobby Scott (D-VA) spoke in support of concurring in the Senate version.

12/30. The Senate confirmed William Baer to be an Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division. See, Congressional Record, December 30, 2012, at Page S8556.

12/27. President Obama is expected to nominate Sen. John Kerry (D-MA) to be Secretary of State. This would open another Democratic seat on the Senate Commerce Committee (SCC). His resignation from the Senate would also create an empty Senate seat, which would be filled on a temporary basis, by Gov. Deval Patrick (D-MA), until a special election is held. Rep. Ed Markey (D-MA) announced on December 27, 2012, that he will run in the special election. Rep. Markey was first elected to the House in 1976, and is one of the senior Democrats on the House Commerce Committee (HCC). He also served for many years as either the Chairman or ranking Democrat on the HCC's telecom subcommittee. Although, he became the ranking Democrat on the Natural Resources Committee at the beginning of the 112th Congress, and Rep. Anna Eshoo (D-CA) therefore became the ranking Democrat on the HCC's Subcommittee on Communications and Technology.

12/27. California Governor Gerry Brown appointed Dan Brenner to be a California state trial court judge (Superior Court, Los Angeles County). Brenner is a Washington DC based communications lawyer. He has been a partner in the Washington DC office of the law firm of Hogan Lovells since 2009. Before that, he worked for 17 years at the National Cable and Telecommunications Association (NCTA). During the Reagan administration, he was a legal advisor to Federal Communications Commission (FCC) Chairman Mark Fowler. See, California Governor's office release. Gov. Brown announced a large number of  judicial appointments on December 27, 2012.

12/28. The U.S. Court of Appeals (9thCir) issued its amended opinion [16 pages in PDF] in Meyer v. Portfolio Recovery Associates, a Telephone Consumer Protection Act (TCPA) case. The Court of Appeals affirmed the District Court's provisional grant of class certification, and preliminary injunction restraining PRA from using its Avaya Proactive Contact Dialer to place calls to cellular telephone numbers with California area codes that PRA obtained via skip-tracing. This opinion amends the October 12 opinion of the Court of Appeals, and denies the petition for panel rehearing and rehearing en banc. This case is Jesse Meyer v. Portfolio Recovery Associates, LLC, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 11-56600, an appeal from the U.S. District Court for the Southern District of California, D.C. No. 3:11-cv-01008-AJB-RBB, Judge Anthony Battaglia presiding. Judge Morgan Christen wrote the opinion of the Court of Appeals, in which Judges Dorothy Nelson and Raymond Fisher joined.

12/27. The U.S. Court of Appeals (9thCir) issued its amended opinion [13 pages in PDF] in Chesbro v. Best Buy, a Telephone Consumer Protection Act (TCPA) case. This is a putative class action alleging that a series of automated telephone calls by Best Buy violated the TCPA. The District Court granted summary judgment to Best Buy. The Court of Appeals reversed and remanded. This opinion amends the October 17 opinion of the Court of Appeals. This case is Michael Chesbro v. Best Buy Stores, L.P., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 11-35784, an appeal from the U.S. District Court for the Western District of Washington, D.C. No. 2:10-cv-00774-RAJ, Judge Richard Jones presiding. Judge John Noonan wrote the opinion of the Court of Appeals, in which Judges Susan Graber and Johnnie Rawlinson joined.

12/26. The Securities and Exchange Commission (SEC) filed an amended complaint in the U.S. District Court (SDNY) in its action alleging violation of federal securities laws (10b5 fraud -- insider trading) in connection with stock trading in advance of IBM's acquisition of SPSS in 2009. This complaint adds another defendant, research analyst Trent Martin. See, SEC release. The SEC filed its original complaint on November 29. See, SEC release and "More News" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012. This case is SEC v. Thomas C. Conradt, David J. Weishaus, and Trent Martin, U.S. District Court for the Southern District of New York, D.C. No. 12 CIV 8676.

12/21. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7904 [42 pages in PDF], titled "Trusted Geolocation in the Cloud: Proof of Concept Implementation". The deadline to submit comments is January 31, 2013.

12/19. The U.S. Embassy to the People's Republic of China (PRC) announced in a release that the 10th Plenary Session of the U.S.-China Joint Liaison Group on Law Enforcement Cooperation (JLGLEC) met in Guangzhou, PRC, on December 17-18, 2012. The U.S. delegation included Assistant Secretary of State for International Narcotics and Law Enforcement Affairs William Brownfield and Deputy Assistant Attorney General Bruce Swartz. The U.S. stated that the participants "discussed ways to address the pressing transnational criminal threats that affect both countries. The talks resulted in commitments to target chemical precursors to illicit drugs and cooperate on combating firearms smuggling and Internet child pornography." The U.S. added that the JLGLEC "has evolved into a wide-ranging forum focused on global law enforcement concerns shared by the United States and China, such as cybercrime, corruption, intellectual property violations", and other matters.

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