1/1. The Senate confirmed Joshua Wright, without debate or a roll call vote, to be a member of the Federal Trade Commission (FTC) for a term of seven years beginning on September 26, 2012. See, Congressional Record, January 1, 2013, at Page S8634.

He will replace Commissioner Thomas Rosch as one of the FTC's two Republican Commissions. Wright has committed to recuse himself from matters involving Google for two years, because of his prior statements, and funding from Google for the International Center for Law and Economics (ICLE).

Wright is an authority on antitrust law and economics, a professor at George Mason University school of law, and Director of Research at the ICLE.

1/2. Various news media have reported that the U.S. Federal Trade Commission (FTC) is about to announce a settlement with Google, under which Google will change some business practices, and the FTC will commence no action against it.

For example, Bloomberg published a story by Sara Forden titled "Google Said Set to Resolve FTC Antitrust Probe Tomorrow" at 12:01 AM on January 3 which states that the FTC "is poised to announce that Google has agreed to voluntarily change some business practices and settle allegations it misused patents to thwart competitors in smartphone technology", and "is expected to close its investigation into whether Google ... skews its search results to favor its own services without enforcement action".

The Wall Street Journal published a story by Brent Kendell titled  "FTC May Strike Deal With Google This Week" on January 2 which states that the FTC "this week" could announce a settlement with Google based upon voluntary commitments. However, the WSJ added the European Commission's (EC) antitrust regulators "are expected to extract more extensive and binding commitments from the company as part of any legal settlement there."

Dave Heiner, VP and Deputy General Counsel of Microsoft, stated that "the future of competition in search is at stake in" the FTC's and the EC's "antitrust investigations into Google’s business practices". He complained that "Google continues to prevent Microsoft from offering consumers a fully featured YouTube app for the Windows Phone". See, piece titled "Still Seeking Resolution to Search Competition Issues".

Heiner added that "Google often says that the antitrust offenses with which it has been charged cause no harm to consumers. Google is wrong about that. In this instance, for example, Google’s refusal deprives consumers who use competing platforms of a comparable experience in accessing content that is generally available on the Web, almost all of which is created by users rather than by Google itself. And it’s inconsistent, to say the least, with Google’s public insistence that other competing services, such as Facebook, should offer Google complete access to their content so they can index and include it on their search site."

1/2. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the Interchangeable Virtual Instruments Foundation, Inc. (IVI Foundation) 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. 78, No. 1, January 2, 2013, at Page 117.

1/2. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the PXI Systems Alliance, Inc. 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. 78, No. 1, January 2, 2013, at Pages 117-118.

1/2. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the DVD Copy Control Association 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. 78, No. 1, January 2, 2013, at Page 118.

12/27. The Federal Trade Commission (FTC) granted early termination on December 27, 2012 of the HSR waiting period for the transaction involving Elliott International Limited and Compuware Corporation. See, FTC notice.

12/27. The U.S. Court of Appeals (2ndCir) issued a short per curiam opinion in U.S. v. Metter, a securities fraud case involving suppression of evidence collected from seized computer hard drives and ISP e-mail accounts. The key issue, yet to be decided by the Court of Appeals, is how long can the government delay its review of seized electronic evidence to determine what falls outside of the scope of its search warrants, and what is privileged.

The District Court granted Metter's motion to suppress evidence, finding that seizure of vast amounts of data, and taking no action for 15 months, is not only unreasonable under the 4th Amendment, but "disturbing". The District Court added that the government compounded the problem by threatening to release unreviewed records of all defendants to their co-defendants without regard for privilege.

The U.S. brought this interlocutory appeal. Metter moved to dismiss the appeal. The just released opinion merely denies the motion to dismiss the appeal. The Court of Appeals will proceed to rule on the merits of the appeal. That opinion will be of first impression in the 2nd Circuit, and significant for all courts.

The 2nd Circuit's forthcoming opinion on the merits may set a critical precedent regarding application of the 4th Amendment to government seizures of vast amounts of information from computers and ISP accounts, for off site reviews, and then delaying its review of that data.

This is a criminal securities fraud case. See, Department of Justice (DOJ) May 5, 2010 release announcing the commencement of this criminal action.

The Securities and Exchange Commission (SEC) also simultaneously brought a civil fraud action. See, May 5, 2010 complaint. The just released Court of Appeals opinion contains little information. However, the District Court's May 17, 2012 Memorandum and Order in the criminal action granting the motion to suppress evidence is thorough.

The FBI, pursuant to a court issued warrant, searched Metter's house, and seized four computer hard drives. It also searched business offices, pursuant to warrants, and seized more hard drives. It collected 50 hard drives, and made complete copies of each. The warrants allowed seizures, to be followed by offsite review of the drives.

Since the government returned the drives, application of the 4th Amendment to deprivation of access to computing equipment and data is not at issue in this case.

The FBI also obtained warrants directed to ISPs to seize e-mail and text messages of Metter and other defendants. It acquired copies of e-mail and text messages.

Metter does not contest the warrants, or the seizures. Rather, at issue is the government's collection and dissemination of a huge amount of electronic records, much of which was not relevant to the investigation, and beyond the scope of the search warrants, and then delaying for 15 months in examining the records.

District Court wrote that "This case raises an interesting issue of first impression in this Circuit that may impact electronic discovery in future criminal investigations and cases: How long may the government retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant?"

The District Court held that courts should make case by case factual determinations of whether seizures of electronic data are reasonable.

The District Court wrote that "An image of an electronic document contains all of the same information as the original electronic document. To the extent the owner or custodian of the electronic document has privacy concerns regarding the government's retention of the original document, the owner would have identical privacy concerns with the government's retention of the imaged document. For example, the seizure of a personal email account could, in addition to evidence responsive to a search warrant, yield personal communications between a cheating spouse and his or her paramour or communications between an individual and his or her family regarding an embarrassing medical condition. These hypothetical communications clearly fall outside the scope of the search warrants in this case (and arguably those in most criminal cases). Thus, the government's long-term retention of images of these communications presents the same privacy concerns as would the government's retention of the original communications." (Parentheses in original.)

"Unlike warrants seeking readily identifiable evidence such as narcotics or firearms, an onsite search of a computer for the evidence sought by a warrant is not practical or even possible in some instances." The District Court continued that "The warrants drafted in this case comport with modern standards of reasonableness. The warrants requested permission to seize computer hard drives and email accounts and to image them offsite." Moreover, "The Court does not expect the government to make onsite determinations of whether a file or document contained on a hard drive or in an email account falls within the scope of the warrant and, thus, off-site imagining is a necessity of the digital era. ... Warrants requesting off-site review of seized electronic data are routinely upheld as reasonable."

"The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant." However, it continued that "the Fourth Amendment requires the government to complete its review, i.e., execute the warrant, within a “reasonable” period of time."

The District Court wrote that there is no authority for the proposition that "the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government's blatant disregard for its responsibility in this case is unacceptable and unreasonable."

"The government's retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing. Moreover, the government repeatedly asserted its intent to release indiscriminately the imaged evidence to every defendant, prior to conducting any review to determine if it contained evidence outside the scope of the warrants. ... The Court agrees with Defendant that the release to the co-defendants of any and all seized electronic data without a predetermination of its privilege, nature or relevance to the charged criminal conduct only compounds the assault on his privacy concerns. It underscores the government's utter disregard for and relinquishment of its duty to insure that its warrants are executed properly."

The District Court also offered unkind characterizations of the motivations of the government. "The lack of good faith by the government can be inferred from its conduct in this case. In the affidavits in support of the search warrants issued in this case, the government promised to review the evidence seized offsite to determine whether any evidence fell outside the scope of the warrants." But, "The government's own conduct and statements indicate that it had no intention of fulfilling its obligations as promised in the search warrants."

Finally, the District Court wrote that the judiciary cannot "permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination."

This criminal case is U.S. v. Michael Metter, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 12-2423-cr, an appeal from the U.S. District Court for the Eastern District of New York, D.C. No. 10–CR–600 (DLI), Judge Dora Irizarry presiding. The Court of Appeals issued a per curiam opinion of Judge Sack, Chin and Lohier.

The civil action is SEC v. Spongetech Delivery Systems, Inc., et al., U.S. District Court for the Eastern District of New York, D.C. No. SV 10-2031, Judge Dora Irizarry presiding.

See also, story titled "11th Circuit Considers 4th Amendment Consequences of 25 Day Delay in Seeking Warrant to Search a Seized Laptop" in TLJ Daily E-Mail Alert No. 2,489, December 12, 2012.

1/1. The Senate confirmed Mignon Clyburn, without debate or roll call vote, to be a member of the Federal Communications Commission (FCC) for a term of five years beginning on July 1, 2012. See, Congressional Record, January 1, 2013, at Page S8634. This is a reappointment.

See, statement by Clyburn. See also, reactions of the other four FCC Commissioners: statement by Julius Genachowski, statement by Jessica Rosenworcel, statement by Robert McDowell, and statement by Ajit Pai.

Representatives of regulated entities also praised her confirmation. See for example, statement by AT&T's Bob Quinn, and statement by the NCTA's Michael Powell

Cathy Sloan of the Computer and Communications Industry Association (CCIA) stated in a release praising Clyburn that "We will likely see epic FCC battles over universal broadband access and interconnection in the transition to all IP telecom networks. This year will also see implementation of key policy initiatives such as incentive auctions. Internet users and businesses that depend on the mobile Internet will be counting on the FCC to hold the line on spectrum concentration and to reserve some spectrum for innovative unlicensed use.”

The House will meet at 11:00 AM as part of the 112th Congress. The House will meet at 12:00 NOON as the 113th Congress. See, House calendar for 113th Congress, 1st Session. See also, Rep. Cantor's schedule.

The Senate will meet at 12:00 NOON as the 113th Congress.

9:00 AM - 12:30 PM. The Phoenix Center for Advanced Legal and Economic Public Policy Studies will host an event titled "Phoenix Center 2012 Annual U.S. Telecoms Symposium Part II". Rep. Marsha Blackburn (R-TN) will speak at 9:40 AM. FCC Commissioner Robert McDowell will speak at 12:00 NOON. At 10:00 AM there will be an economists panel. The speakers will be Hal Singer (Navigant Economics), Tim Brennan (University of Maryland Baltimore County), George Ford (Phoenix Center), Jerry Duvall (Chief Economist in the FCC's International Bureau). There will be a second panel at 11:00 AM. The speakers will be Blair Levin, Chris McCabe (CTIA), Bob Quinn (AT&T), Rick Chessen (NCTA), and Lawrence Spiwak (Phoenix Ceneter). See, notice. Live webcast. Free. Open to the public. No CLE credits. Location: University Club, 1135 16th St., NW.

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

Supreme Court conference day. See, Supreme Court calendar.

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.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Trademark Search Strategies in Europe, Latin America, Canada, and the U.S.". The speakers will be Matthias Berger (Harmsen Utescher), Katrin Lewertoff (Arent Fox), John McKeown (Cassels Brock & Blackwell), Mariano Municoy (Moeller IP), and Naresh Kilaru (Finnegan Henderson). Prices vary. CLE credits. See, notice.

9:30 AM. The Securities and Exchange Commission (SEC) will hold a prehearing conference in the matter of Deloitte Touche Tohmatsu Certified Public Accountants Ltd. and BDO China Dahua CPA Co., Ltd., et al., Administrative Proceeding File Nos. 3-14872 and 3-15116. See, story titled "SEC to Hold Prehearing Conference in Cases Against PRC Accounting Firms" in TLJ Daily E-Mail Alert No. 2,500, December 31, 2012. Location: SEC, Hearing Room 2, 100 F St., NE.

12:15 - 1:45 PM. The DC Bar Association's Media Law Committee will hold a brown bag lunch meeting. Free. No CLE credits. Closed to reporters. See, notice. For more information, call 202-626-3463. Location: Washington Post, 1150 15th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a program titled "Introduction to Export Controls". The speakers will be Carol Kalinoski and Thomas Scott (Ladner & Associates). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "iPhone and iPad Apps for Lawyers". Prices vary. See, notice.

EXTENDED TO MARCH 10. Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in connection with their joint workshop on December 10, 2012, titled "Patent Assertion Entity Activities". See, notice and agenda.

1/2. The 112th Congress concluded without the confirmation of four pending Court of Appeals nominees. The four had been nominated by President Obama, and approved by the Senate Judiciary Committee (SJC), but not confirmed by the full Senate, or withdrawn by the President. The four are Richard Taranto (nominated for the Federal Circuit), William Kayatta (1st Circuit), Patty Schwartz (3rd Circuit), and Robert Bacharach (10th Circuit). See also, story titled "Pending Court of Appeals Nominees" in TLJ Daily E-Mail Alert No. 2,497, December 24, 2012, and story titled "Richard Taranto and the Federal Circuit" in the same issue.

1/2. The 112th Congress concluded without the confirmation of David 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. Sen. Patrick Leahy (D-VT) stated in a release that "The obstruction of a few Republican Senators leaves the American people without a fully functioning Privacy and Civil Liberties Oversight Board at a time when Americans face growing threats to their privacy rights and civil liberties. ... I encourage the President to promptly re-nominate Mr. Medine and I hope that the Senate will confirm him this year."

1/1. The Senate confirmed Richard Berner to be Director of the Department of the Treasury's Office of Financial Research for a term of six years. See, Congressional Record, January 1, 2013, at Page S8634.

1/1. The Senate confirmed Mark Doms to be Under Secretary of Commerce for Economic Affairs. See, Congressional Record, January 1, 2013, at Page S8634. See, Congressional Record, January 1, 2013, at Page S8634.

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