Tech Law Journal Daily E-Mail Alert
January 30, 2013, Alert No. 2,516.
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Sen. Rockefeller Introduces Preamble to a Cyber Security Bill

1/23. Sen. John Rockefeller (D-WV) and other Senate Democrats introduced S 21 [LOC | WW], the "Cybersecurity and American Cyber Competitiveness Act of 2013".

This is not a reintroduction of the bill that Sen. Rockefeller cosponsored in the 112th Congress, S 3414 [LOC | WW]. Instead, its is only a short preamble to a bill. It contains only a short list of findings, and a sense of the Congress section. It contains no substantive provisions.

Sen. Rockefeller issued a release that contains statements of the sponsors regarding the need for cyber security legislation, but discloses nothing about what the substantive provisions of the bill will be.

Sen. Tom Carper (D-DE) stated in this release that this bill "underscores our ongoing commitment to working to address cybersecurity and it will help lay the groundwork for a framework that can balance the needs and concerns of both government and the private sector -- and keep Americans safe. Our nation cannot afford more delay on this issue. That's why I am committed to working with my colleagues on both sides of the aisle, the Administration and stakeholders to reach a solution as soon as possible."

The Senate Commerce Committee (SCC), which Sen. Rockefeller chairs, has yet to schedule a hearing on this bill.

Sen. Rockefeller Releases Staff Memo on Cyber Security Legislation

1/28. Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), released a memorandum [6 pages in PDF] written by unidentified Democratic staff regarding S 3414 [LOC | WW], the "Cybersecurity Act of 2012" in the 112th Congress.

On September 19, 2012, Sen. Rockefeller sent a letter [PDF] to the Chief Executive Officers (CEOs) of every one of the Fortune 500 companies regarding S 3414. He is a cosponsor.

This unusual letter was in the nature of an angry harangue. See, story titled "Sen. Rockefeller Sends Interrogatories to 500 CEOs" in TLJ Daily E-Mail Alert No. 2,461, October 15, 2012.

Sen. Rockefeller's interrogatories included some material misstatements regarding the content of S 3414. For example, they characterized the bill as creating a voluntary program, when in fact it would have created a new regulatory regime. Hence, it is problematic to draw conclusions from answers to these interrogatories.

The staff report discloses that only "approximately three hundred companies" responded.

The report concludes that "Many companies were generally supportive of your efforts and many of their concerns could be addressed through a revised bill introduced this year. Many companies expressed support for a federal program that enables the private sector and the federal government to voluntarily work together to determine the greatest cyber risks facing the country and the best path forward to address them."

That bill was released in July of 2012. There were no hearings on the bill. There were no committee mark ups either. Sen. Harry Reid (D-NV) twice attempted to bring up the bill in the full Senate, without opportunity for amendment. Both times cloture motions failed. See, 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.

Court of Appeals Affirms Lobbying Conviction of Abramoff Associate

1/25. The U.S. Court of Appeals (DCCir) issued its opinion [24 pages in PDF] in US v. Ring, affirming the criminal conviction of Kevin Ring, for lobbying related activities.

The Court of Appeals affirmed Ring's conviction for honest services fraud (in violation of 18 U.S.C. 1346), paying an illegal gratuity (18 U.S.C. 201(c)), and conspiracy (18 U.S.C. 371) relating to his provision of meals, tickets, and other gifts to public officials.

The Court wrote that "this case probes the boundary between legal lobbying and criminal conduct".

Lobbying law is not strictly a technology related area of law. However, those who seek to influence the development of technology related law and policy engage in lobbying. Hence, this opinion may be of interest to those who make federal campaign contributions, lobby, interact with member of Congress and their staff, and/or attempt to influence public officials.

Also, the historical origins of this case, which go back over a dozen years, are related to the making of technology related law. Ring was a member of Jack Abramoff's team, which lobbied on internet related issues, among other things.

The 109th Congress passed HR 4411, the "Unlawful Internet Gambling Enforcement Act of 2006", or UIGEA. (More specifically, it was enacted as part of a large bill, HR 4954 (109th), the "Port Security Improvement Act of 2006".)

Rep. Bob Goodlatte (R-VA), the long time leading proponent of such legislation in the House, credited Abramoff with delaying the passage of legislation for years. See, story titled "House Financial Services Committee Approves Internet Gambling Bill" in TLJ Daily E-Mail Alert No. 1,330, March 16, 2006.

The Congress passed the UIGEA just after the prosecution of Abramoff. See also, story titled "House Approves Unlawful Internet Gambling Enforcement Act" in TLJ Daily E-Mail Alert No. 1,408, July 11, 2006,

On January 3, 2006, Abramoff pled guilty in U.S. District Court (DC) to a three count information charging him with conspiracy (in violation of 18 U.S.C. 371), aiding and abetting honest services mail fraud (18 U.S.C. 1341 and 1346), and tax evasion (26 U.S.C. 7201). See, DOJ release.

Numerous other associates of Abramoff, as well as Congressional staff, and former Rep. Bob Ney (R-OH), pled guilty years ago. However, Ring exercised his rights to trial by jury. Ultimately, after two trials, he was convicted.

One of the key areas of activity by Abramoff that led to the criminal charges was the representation of Indian tribes. They all had an interest in offering gambling services, as well an in limiting competition from others.

This case is U.S.A. v. Kevin A. Ring, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. No. 11-3100, an appeal from the U.S. District Court for the District of Columbia, D.C. No. 1:08-cr-00274-1. Judge Tatel wrote the opinion of the Court of Appeals, in which Judges Brown and Griffith joined.

See also, related story in this issue titled "WTO Authorizes Antigua and Barbuda to Infringe US IP Rights".

WTO Authorizes Antigua and Barbuda to Infringe US IP Rights

1/28. The World Trade Organization (WTO) authorized the tiny Caribbean nation of Antigua and Barbuda (AB) to retaliate against the US for violating WTO obligations by maintaining protectionist gambling laws that discriminate against internet gambling services provided in AB.

The retaliatory measures approved by the WTO include violation of intellectual property rights of US rights holders with a total value of $21 Million per year.

AB filed its complaint with the WTO against the US back in 2003. The US has vigorously contested the allegations, and arrogantly disregarded WTO determinations since then.

The report [MS Word] of the compliance panel was adopted by the WTO Dispute Settlement Body (DSB) on May 22, 2007. The WTO set the penalty at non-enforcement of US IP rights valued at $21 Million per year on December 21, 2007. See, arbitration report [PDF]. However, in the following five years the US neither ceased its violation, nor reached a settlement with AB. Hence, after five years of delay, on January 28, 2013, the WTO formally authorized AB to retaliate. See, authorization [MS Word].

For more detail on the history of this proceeding, see the following TLJ stories:

Protectionist Nature of US Gambling Law. The federal Wire Act does not illegalize gambling. No federal statute illegalizes gambling.

The subject is left to the states. In some states the gambling sector is a major component of the local economy, and supplies a critical part of the tax revenues. Many states and localities are providers of gambling services, which raise substantial revenues for government operations.

Offshore internet gambling operations, such as those in AB, compete with these protected forms of gambling, without making the same contributions to local economies and tax bases.

The Wire Act only illegalizes the use of interstate wire communications in gambling businesses. It provides, in part, that "Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both."

The U.S. has also carved out exceptions, such as a domestic exception for internet gambling on horse racing, but not for any offshore services such as those of AB. Hence, the WTO found the US to be in violation of its WTO commitments with respect to free trade.

The Unlawful Internet Gambling Enforcement Act (UIGEA) does not ban gambling. Rather, it targets the financial transactions associated with internet gambling.

DOJ Actions. The WTO case was based upon statutes.

However, in addition, the federal Department of Justice (DOJ) has brought heavy handed criminal actions that lend the appearance that they were not brought to protect individuals from the harms of gambling, or to protect consumers from fraudulent online gambling service providers, but rather to protect favored domestic gambling service providers from foreign competitors.

Among these is US v. Gary Kaplan, U.S. District Court (EDMo). See, story titled "Pioneer of Offshore Internet Gambling Pleads Guilty to RICO and Wire Act Charges" in TLJ Daily E-Mail Alert No. 1,978, August 18, 2009. Another is US v. Isai Scheinberg, U.S. District Court (SDNY), the 2011 foreign internet poker sites case.

Moreover, the DOJ has brought non-gambling charges, such as federal RICO and money laundering, in these actions.

See also, story titled "DOJ Fines Microsoft, Google, and Yahoo $31.5 Million for Advertising of Internet Gambling" in TLJ Daily E-Mail Alert No. 1,692, December 21, 2007.

In This Issue
This issue contains the following items:
  Sen. Rockefeller Introduces Preamble to a Cyber Security Bill
  Sen. Rockefeller Releases Staff Memo on Cyber Security Legislation
  Court of Appeals Affirms Lobbying Conviction of Abramoff Associate
  WTO Authorizes Antigua and Barbuda to Infringe US IP Rights
Washington Tech Calendar
New items are highlighted in red.
Wednesday, January 30

The House will not meet.

The Senate will meet at 9:30 AM.

9:00 - 10:30 AM. The Georgetown University business school's Georgetown Center for Business and Public Policy (GCBPP) will host a panel discussion titled "Regulation and the IP Transition: Laying a Predicate for Growth". The speakers will be James Cicconi (AT&T), Jennifer Fritzsche ( Wells Fargo Securities), Blair Levin (Aspen Institute), and Carolyn Brandon (GCBPP). Breakfast will be served. See, notice. Location: National Press Club, 529 14th St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "What Should America Do About Gun Violence?". See, notice. Location: Room 216, Hart Building.

12:00 NOON. The Federalist Society will host a discussion of the book titled "Laws of Creation: Property Rights in the World of Ideas". The speakers will be the authors, Ronald Cass and Keith Hylton. Free. Open to the public. Lunch will be served. Registration required. See, notice. Location: National Press Club, 529 14th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Committee will host an event titled "Verizon Spectrum Co: Anatomy of a Transaction". The speakers will include Donald Stockdale (Mayer Brown), Joseph Matelis (DOJ Antitrust Division), Rick Kaplan (National Association of Broadcasters), Kathleen Grillo (Verizon), Kathy Zachem (Comcast), Charles McKee (Sprint Nextel), and Jodie Griffin (Public Knowledge). CLE credits. Prices vary. See, notice. Reservations and cancellations are due by 12:00 NOON on January 29. Location: Mayer Brown, 1999 K St., NW.

Thursday, January 31

8:30 AM CT - 12:00 NOON CT. The American Bar Association (ABA) will host an on site and webcast panel discussion titled "Social Media and Health Care: Opportunities and Risks". Prices vary. CLE credits. See, notice. Location: Drinker Biddle & Reath, 191 N. Wacker Drive. Suite 3700, Chicago, Illinois.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of three appeals court nominees: Richard Taranto (USCA/FedCir), Robert Bacharach (USCA/10thCir), and William Kayatta (USCA/1stCir). See, notice. See also, story titled "Richard Taranto and the Federal Circuit" in TLJ Daily E-Mail Alert No. 2,497. Webcast. Location: Room 226, Dirksen Building.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "open meeting". See, tentative agenda. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice. This event will also be teleconferenced. Location: American Institute of Architects, 1735 New York Ave., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing on undisclosed topics. See, notice. Location: Room 219, Hart Building.

6:00 - 8:15 PM. The DC Bar Association will host a program titled "For Lawyers Who Lobby and their Firms: Legal Ethics and Unauthorized Practice Update". The speakers will be Arthur Burger (Jackson & Campbell) and Albert Turnbull (Hogan Lovells). 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.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7904 [42 pages in PDF], titled "Trusted Geolocation in the Cloud: Proof of Concept Implementation", released on December 21, 2012.

Friday, February 1

The House will meet in pro forma session at 11:00 AM.

9:30 AM - 3:30 PM. The Securities and Exchange Commission's (SEC) Advisory Committee on Small and Emerging Companies will meet. Free. Open to the public. Webcast by SEC. See, notice and agenda. Location: SEC, Multi-Purpose Room LL-006, 100 F St., NE.

Monday, February 4

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Perspectives on Global Enterprises, Corporate Location Decisions, and U.S. Policy Challenges". The speakers will be Jennifer Daniels (NCR Corporation), Don Rosenberg (Qualcomm General Counsel) and Robert Atkinson (ITIF). See, notice. Location: Reserve Officers Association, 5th Floor, One Constitution Ave., NE.

EXTENDED TO MARCH 4. 5:00 PM. Deadline to submit reply 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.

EXTENDED FROM JANUARY 4. 5:00 PM. Extended 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.

Tuesday, February 5

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "America's Immigration System: Opportunities for Legal Immigration and Enforcement of Laws against Illegal Immigration". The witnesses will be __. See, notice. Location: Room 2141, Rayburn Building.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology and the House Foreign Affairs Committee's (HFAC) Subcommittee on Terrorism, Nonproliferation, and Trade and Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations will hold a joint hearing titled "Fighting for Internet Freedom: Dubai and Beyond". The witnesses will be __. See, HCC notice and notice and HFAC notice. Location: Room 2123, Rayburn Building.

10:30 AM. The Copyright Office (CO) will host a presentation by Peter Jaszi (American University law school) titled "Best Practices in Fair Use". See, notice. Location: Coolidge Auditorium, Jefferson Building, 101 Independence Ave., SE.

12:00 NOON. The Heritage Foundation (HF) will host a discussion of the book [Amazon] titled "A Nation Forsaken - EMP: The Escalating Threat of an American Catastrophe". The speaker will be Michael Maloof, the author. Webcast by HF. Free. Open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Single Claim Restriction Requirements: The Interplay Between 35 USC Section 112 and 35 USC Section 121". The speakers will be Thomas Irving (Finnegan Henderson), Orlando Lopez (Burns & Levinson), Daniel Sullivan (USPTO), Robert Titus (Eli Lilly), and Keisha Rodic (Drinker Biddle & Reath). Prices vary. CLE credits. See, notice.

12:30 PM. The House Oversight and Government Reform Committee (HOGRC) will hold a business meeting. See, notice. Location: Room __, Rayburn Building.

12:45 - 2:00 PM. The American Enterprise Institute (AEI) will host a lunch. The speaker will be Rep. Eric Cantor (R-VA), the House Majority Leader. Free. Open to the public. Webcast by AEI. See, notice and registration page. Location: AEI, 12th floor, 1150 17th St., NW.

Wednesday, February 6

11:00 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). See, notice in the Federal Register, Vol. 78, No. 2, January 3, 2013, at Page 292. Location: NIST, Portrait Room, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

12:30 - 1:45 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "O'Brien v. Leegin: Perspectives on State-Law Resale Price Maintenance Actions". The speakers will be Schonette Walker (Maryland Office of the Attorney General), James Armstrong (Foulston Siefkin), John Asker (NYU business school), Benjamin Labow (California Department of Justice), and Will Wohlford (Morris Laing). Free. No CLE credits. See, notice. See also, story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.

6:30 PM. The Washington Press Club Foundation will host an event titled "69th Annual Congressional Dinner". The reception begins at 6:30 PM. The dinner and program begin at 8:00 PM. Location: Grand Ballroom, Mandarin Oriental, 1330 Maryland Ave., SW.

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