|House to Consider Bill to Limit Bulk Data
5/20. The House Rules Committee (HRC) adopted a
rule for consideration of HR 3361
WW], a bill to
limit the surveillance powers of the government by providing that several provisions of
surveillance law may not be used for certain bulk collection of information.
This bill is awkwardly titled the "Uniting and Strengthening America by Fulfilling
Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act'', which comes
close to providing the acronym of "USA FREEDOM Act".
The full House will likely consider this bill on Thursday, May 22, 2014. The House will
not consider the version of the bill approved unanimously by the
House Judiciary Committee (HJC) on May 7. Rather,
it will consider an
amendment in the
nature of a substitute approved by the HRC late on Tuesday, May 20.
No other amendments will be allowed. Although, Representatives submitted amendments
to the HRC that the HRC did not make in order. Rep.
Zoe Lofgren (D-CA) submitted numerous amendments that would have limited government
surveillance powers, and increased the transparency of government surveillance programs.
The HRC substitute amendment has caused some advocates of surveillance reform to withdraw
their support for this bill. Ed Black, head of the
Computer and Communications Industry
Association (CCIA) stated in a release that "we do not support consideration
or passage of the USA Freedom Act in its current form".
He explained that "The massive bulk collection practices that have been
revealed need to be unequivocally halted, and the bill lacks the certainty
needed in this area". He also cited the lack of transparency of surveillance
laws, and lack of legislative transparency.
The New America Foundation (NAF) announced that
it has withdrawn its support for this bill. It stated in a release that "This new version
of the bill is substantially different from the compromise version of the USA FREEDOM Act that
was unanimously approved the House Judiciary and Intelligence Committees two
weeks ago. The changes are the result of the Obama Administration pressuring
House leaders to weaken various reforms in the bill."
The Electronic Frontier Foundation (EFF) also withdrew its support. It stated in a
release that the "House Leadership reached an agreement to amend the bipartisan
USA FREEDOM Act in ways that severely weaken the bill, potentially allowing bulk surveillance
of records to continue."
The bill as introduced on October 29, 2013 by
Rep. James Sensenbrenner (R-WI) did not include many reforms sought by privacy advocates.
amendment in the nature of a substitute approved by the HJC
on May 7 removed some provisions to win broader support. And now, the version to
be considered by the House further weakens the bill.
The most important aspect of this bill is that it would limit the government's ability
to use various statutory authorities, such as the business records section of the Foreign
Intelligence Surveillance Act (FISA), to obtain orders from the Foreign Intelligence
Surveillance Court (FISC) that authorize bulk collection of phone records. Much of the
key language in the bill approved by the HJC remains in the bill to be considered by the
full House. However, a definitional change could could limit the impact of the bill.
The HRC amendment changes a key definition in a manner that might allow the FISC to continue
to authorize much collection. In analyzing the likely effect of this new definition, one must
consider that while the plain meaning of the current language of the business records section
of the FISA does not support the interpretation that this section allows bulk collection, DOJ
lawyers and the FISC applied very elastic legal logic to stretch the meaning of the
section. And, they may do so again.
See also, related item in this issue titled "Analysis: HR 3361 and Bulk Collection of
There are also other changes. For example, the HRC amendment would add a new section to the
FISA that would statutorily impose limits on the information that service providers may
publicly release regarding the orders that they receive. It requires that companies only
report meaningless statistics that conceal the scope of government surveillance. Release of
meaningful data would likely have the effect of increasing public opposition to certain
government surveillance programs.
For example, the new section would require that phone companies, and e-mail service providers
such as Google and Microsoft, if they publicly report, may report the number of
certain types of orders in bands of 1000.
It provides that companies "may semiannually publicly report ... in bands of
1000 starting with 0-999". That is, the public has no way of knowing if
Microsoft received zero orders or 999 orders of a particular type.
The HRC did not make in order an
offered by Rep. Lofgren and
Rep. Suzan DelBene (D-WA), whose districts are home
to many Google and Microsoft employees, that would have allowed companies to report data in
increments of 100 rather than 1000.
The HRC did not make in order an
amendment offered by Rep. DelBene that would have required the DOJ to report
annually, and publicly release, "a good faith estimate of the total number of
individuals who were subject to electronic surveillance conducted under an order
entered under this title, rounded to the nearest 100" and a "good faith estimate
of the total number of individuals located in the United States who were subject
to electronic surveillance conducted under an order entered under this title,
rounded to the nearest 100".
|Analysis: HR 3361 and Bulk Collection of
5/20. This article analyses the extent to which the
House Rules Committee's (HRC)
amendment in the
nature of a substitute, which the full House is scheduled to consider on
Thursday, bars bulk data collection.
This bill, HR 3361 [LOC
would amend several different statutory sections to provide that they do not
authorize bulk collection of data. Several groups have stated this week that the
HRC amendment no longer bans bulk collection. This article offers an analysis
for the one section that served as the basis for the National Security Agency's
(NSA) bulk telephony records program. This article analyzes the text of the
current statute, the
amendment in the nature of a substitute approved on May 7 by the
House Judiciary Committee (HJC), and
the text of the HRC's substitute amendment.
This pertains to the statutory authority codified at
50 U.S.C. § 1861.
It is also known as Section 501 of the Foreign Intelligence Surveillance Act (FISA).
Also, since the 2001 surveillance act (Section II of the USA PATRIOT Act)
amended Section 1861/501 in its Section 215, this authority is sometimes
referred to as Section 215 authority.
This 1861/501/215 authority did not authorize bulk collection of telephony
data in the first place. Moreover, that the DOJ asserted that it did, and the
body titled "Foreign Intelligence Surveillance Court" (FISC) held that it did,
reflect negatively on the qualifications of the persons involved to execute
Section 1861(a)(1) provides that the Department of Justice (DOJ) "may make an
application for an order requiring the production of any tangible things
(including books, records, papers, documents, and other items) for an
investigation to obtain foreign intelligence information not concerning a United
States person or to protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a United States
person is not conducted solely upon the basis of activities protected by the
first amendment to the Constitution." (Parentheses in original.)
Section 1861(b)(2)(A) provides that "Each application ... shall include ... a
statement of facts showing that there are reasonable grounds to believe that the
tangible things sought are relevant to an authorized investigation".
The bill approved by the HJC adds that application for a Section 1861 order
shall also include a "a specific selection term to be used as the basis for the
production of the tangible things sought". Also, the order issued by the FISC
must include reference to "each specific selection term to be used as the basis
for the production".
The HJC version provides that a "specific selection term" means "a term used
to uniquely describe a person, entity, or account". That is, the DOJ can no
longer go to the FISC and ask for an order directed at, for example, Verizon,
that orders production of every piece of data on everybody. It must ask for
business records associated with a "specific selection term". This can be a
specific person. Or it can be an entity or account. The DOJ can ask for business
records associated with multiple persons or accounts, but it has to list them.
It can no longer ask for everything on everyone.
The HRC amendment changes the definition of "specific selection term" to
broaden the permissible scope of DOJ requests, and FISC orders. The HRC
amendment defines this key term as "a discrete term, such
as a term specifically identifying a person, entity, account, address, or
device, used by the Government to
limit the scope of the information or tangible things sought pursuant to the
statute authorizing the provision of such information or tangible things to the
Most legislative drafting is done with the purpose providing clarity and
specificity. In contrast, this definition is carefully drafted to create
uncertainty, and facilitate a wide range of interpretations. Drafters of
previous amendments to the FISA have employed this tactic.
Given that the DOJ and FISC have already demonstrated their inclination for
interpretive mischief, this new language could result in the DOJ and NSA
collecting a huge amount of data on a wide range of people who are not suspected
of any wrongdoing.
First, there is the matter of the term "such as". One does not find clauses
beginning with "such as" in well drafted statutes. These words mean that the
government need not include any of the enumerated specific selection terms.
The purpose of HR 3361 as approved by the HJC was not to clarify that the government
may use certain selection terms. It was to restrict the government to orders based upon
certain selection terms. The term "such as" frees the government from this
restriction, and therefore does much to undermine the original purpose of the bill. The
government need only offer a "discrete term", which has no definition, or
meaning. "New York City" could be a "discrete term".
Second, the HRC amendment adds two more types of specific selection terms,
"address" and "device". These are vague and undefined terms. The same
people at the DOJ and FISC who construed Section 1861 to authorize orders that cover
everything that every company has on everybody would have no compunction about construing
"address" and "device" to encompass a uniform resource locator or
domain name and anyone who accesses either, a Wi-Fi hot spot and everyone who
connects to it, a local area network, a wide area network, a server, a computer
system, a network, or many other things that would enable the government to
sweep in large amounts of data.
|Analysis: HR 3361 and Encryption Back
5/20. HR 3361 [LOC |
the "USA FREEDOM Act", is a long but narrow bill. It does one significant thing:
it would make it harder for the government collect bulk phone records databases.
There are many other proposals for limiting government surveillance to protect
people's privacy, liberty and security interests. One such proposal pertains to
encryption back doors. This is not in the bill, and the
House Rules Committee (HRC) on May 20 declined
to make in order amendments that would have addressed encryption backs doors.
For example, the HRC did not make in order an
amendment submitted by Rep. Zoe Lofgren
(D-CA) that would have barred the federal government from
mandating that companies build back doors into their encryption products.
Rep. Lofgren (at right) is a senior member of the
House Judiciary Committee (HJC). She has
represented a Silicon Valley district for nearly twenty years. She has a long history
of defending individuals' and business's rights to make, use and sell encryption products.
Her amendment states that notwithstanding any other law, neither the FBI,
Department of Justice (DOJ), nor
Director of National Intelligence (DNI), nor any other federal
agency at their request, may mandate "that the manufacturer of an electronic device,
developer of software for an electronic device, or standards organization build into an
electronic device, software, or standard a mechanism that allows for the bypass of the
encryption or privacy technology of such device, such software, or such standard."
This amendment merely supersedes "any other provision of law". It does not
reference the Communications Assistance for Law Enforcement Act (CALEA), which is
codified at 47
U.S.C. §§ 1001-1010, or Federal Communications Commission (FCC) rules and other actions
taken under the rubric of the CALEA.
Nor does this amendment reference Section 702 of the FISA, which is codified
at 50 U.S.C. § 1881a. This
is the "outside the US" surveillance authority. It includes a CALEA like mandate:
"With respect to an acquisition authorized under" Section 1881a(a), the DOJ and
DNI "may direct, in writing, an electronic communication service provider to -- (A)
immediately provide the Government with all information, facilities, or
assistance necessary to accomplish the acquisition ..."
The HRC also declined to make in order a more simply worded
amendment submitted by Rep. Rush Holt (D-NJ):
"Notwithstanding any other provision of law, the Federal Government shall not mandate
that the manufacturer of an electronic device or software for an electronic device build
into such device or software a mechanism that allows the Federal Government to bypass the
encryption or privacy technology of such device or software."
Both of these amendments are narrow. They would only prohibit government mandates.
They would not prohibit the government from contracting with, and paying, encryption
product providers and service providers, to build in back doors.
Nor would these amendments prohibit the DOJ, FCC or other agencies from leveraging their
many discretionary law enforcement and regulatory powers to compel companies to make
"voluntary commitments" to build back doors, or take other actions that
facilitate government access to the plain text of encrypted data.
There is a long history to the U.S. government's regulation of encryption.
During the Clinton administration, the DOJ and intelligence agencies sought to
compel encryption back doors, weak and easily breakable encryption, and other
means to gain access to encrypted communications and data.
The Clinton administration could not get a bill through the Congress. It did,
however, leverage the export control regime to compel U.S. companies to provide
only weak encryption products. Rep. Lofgren and
Rep. Bob Goodlatte (R-VA) lead the
effort in the House to stop this tactic. Former Sen. John Ashcroft (R-MO),
Patrick Leahy (D-VT) and others lead the parallel effort in the Senate. After
several years, when it became apparent that they had the votes to enact
legislation, the Clinton administration capitulated. Soon after, the newly
elected President Bush appointed Ashcroft as his first Attorney General.
The victory, however, proved to be short lived. The government has obtained legal
authorities, and developed practices, that facilitate its ability to gain access to the
plain text of encrypted data. Some of Rep. Lofgren's former adversaries from the Clinton
administration were brought back by the Obama administration.
Rep. Holt, who has not been a leader in the House on these issues, is not
running for election in November. Rep. Lofgren is isolated, fighting for a futile cause.
|AT&T to Acquire Directv
5/19. AT&T and Directv announced that "they
have entered into a definitive agreement under which AT&T will acquire DIRECTV in a
stock-and-cash transaction for $95 per share based on AT&T's Friday closing price. The
agreement has been approved unanimously by the Boards of Directors of both companies."
See, AT&T release and
The transaction also requires approvals by regulatory agencies in the U.S. and abroad,
including by the Department of Justice's (DOJ) Antitrust
Division and the Federal Communications Commission (FCC).
Members of Congress, and especially Democrats who sit on the Judiciary and Commerce
Committees that oversee the DOJ and FCC, expressed concerns.
Numerous interest groups also expressed concern. Some expressed abhorrence of
large companies. Some stated that there will be one fewer video competitor in
some video markets. Most expressed concern regarding a larger trend of consolidation, and
cited the pending Comcast Time Warner transaction. Some expressed concern about
the impact that this transaction would have on video in rural markets. Some
focused on video programming. A few addressed the possible impact on wireless
Most of those who expressed criticism or concerns about the merger cited
consumer protection and competition as their goals. Yet, this is also a prelude
to the usual rent seeking behavior that follows in the wake of any large merger
over which the FCC exercises jurisdiction.
Randall Stevenson, Ch/CEO of AT&T, stated that this transaction "will redefine
the video entertainment industry and create a company able to offer new bundles and deliver
content to consumers across multiple screens -- mobile devices, TVs, laptops, cars and even
The companies argue that consumers will benefit, because the merged entity will provide
"a stronger competitive alternative to cable for consumers wanting a better
bundle of top-quality broadband, video and mobile services, as well as a better
customer experience and enhanced innovation. Consumers will also benefit from
the combined companies' additional scale in video content distribution across
its mobile, video and broadband networks."
Statements by Members of Congress.
Sen. John Rockefeller (D-WV),
Chairman of the Senate Commerce
Committee (SCC), stated in a
release that "The potential merger of AT&T and
DirecTV is part of an accelerating trend of consolidation in the video
marketplace. It deserves careful examination. In particular, I want to
understand the impact this transaction will have on rural America. I welcome the
commitments made by the two companies to enhance service to rural America, but
those commitments must be real and quantifiable, and the companies have to live
up to their promises."
He added that "Both companies must prove that the creation of yet another video
and broadband conglomerate can be responsive to those demands and the broader
public interest. And as consumers increasingly turn online for their
programming, this continued upheaval in the video market means that Congress
needs to look closely at how to foster more video competition, particularly
through online video distribution platforms."
Sen. Patrick Leahy (D-VT),
Chairman of the Senate Judiciary
Committee (SJC), stated in a release that "DirecTV is a nationwide
competitor with cable and plays an important role in providing television
service to rural areas like Vermont. With this latest proposed merger, I am
concerned that the telecommunications marketplace is trending even further
toward one that favors big companies over consumers. I will closely monitor the
FCC and the antitrust authorities' response to this announcement. The Senate
Judiciary Committee will be looking closely at this transaction."
Sen. Al Franken (D-MN), a member of
the SJC, stated in a release that "I'm skeptical that this deal is in consumers'
best interest ... We're witnessing a major transformation of the telecom
industry -- and it's going in exactly the wrong direction. We're moving toward
an industry with fewer competitors -- where corporations are getting bigger and
bigger and gaining more and more control over the distribution of information.
This hurts innovation, and it's bad for consumers, who have been getting
squeezed by higher bills. I'm going to press regulators to scrutinize this deal,
and I want to see hearings in Congress as well."
Rep. Bob Goodlatte (R-VA) and
Rep. John Conyers (D-MI), the Chairman and ranking
Democrat on the House Judiciary Committee (HJC),
and other HJC members, stated in a
joint release that the HJC will hold "a hearing to examine the proposed AT&T
and DirecTV merger to ensure that consumers' interests are protected in an increasingly
consolidated telecommunications marketplace".
This bipartisan statement might be construed in part as an assertion of HJC
jurisdiction over antitrust, against incursions by the
House Commerce Committee (HCC).
Interest Groups. Matthew Polka, head of the
American Cable Association (ACA), which represents small cable companies, stated in a
release that the "ACA is troubled by
the consolidation wave within in the video subscription marketplace, highlighted by the
Comcast-Time Warner Cable deal, the Comcast-Charter transactions, and now AT&T's proposed
takeover of DirecTV. AT&T's deal merits the closest scrutiny" by the DOJ and FCC.
The ACA is concerned about both video programming and rural markets. Polka
said that "Given that the companies in each of the latest mergers own
programming, Congress and the FCC must consider whether the market will be better or worse
as a whole, and if worse, what rules will make the market better." He also
said that "Congress and the FCC must not forget consumers who are not served,
and will never be served, by Comcast, Charter, and AT&T, in smaller cities and
John Bergmeyer of the Public
Knowledge (PK) stated in a release that this transaction should be analyzed
"for potential harms both to the video programming and the wireless markets. The
most obvious concern is that customers in U-Verse territories would lose a video
competitor, though the transaction would have nationwide effects."
He also noted that the FCC has an upcoming incentive auction, and that "AT&T
already has overwhelming spectrum holdings relative to most of the wireless
Hence, "AT&T will need to explain how this merger wouldn't harm wireless
competition, and how whatever new services it plans to offer by combining with
DirecTV would offset any harms to wireless and video competition".
Craig Aaron, head of the Free Press, stated in a
release that "The captains of our communications industry have clearly run
out of ideas. Instead of innovating and investing in their networks, companies
like AT&T and Comcast are simply buying up the competition. These takeovers are
expensive, and consumers end up footing the bill for merger mania.
Aaron added that "these companies don’t care about providing better services or
even connecting more Americans. It's about eliminating the last shred of competition in
a communications sector that's already dominated by too few players."
AT&T's Proposed Commitments. AT&T also offered to make numerous commitments.
The FCC often holds up large transactions until it has extracted commitments sought by interest
groups and affected companies, and Members of Congress who advocate their interests.
AT&T makes the "commitment" that within four years of the merger it will
"expand its plans to build and enhance high-speed broadband service to 15 million
customer locations, mostly in rural areas where AT&T does not provide high-speed
broadband service today ..."
AT&T also commits to offering stand alone broadband service.
AT&T will also "commit" to "Continued commitment for three years after
closing to the FCC's Open Internet protections established in 2010, irrespective of whether
the FCC re-establishes such protections for other industry participants".
Finally, AT&T stated that this "does not alter AT&T's plans to meaningfully
participate in the FCC’s planned spectrum auctions later this year and in 2015.
AT&T intends to bid at least $9 billion in connection with the 2015 incentive
auction provided there is sufficient spectrum available in the auction to provide
AT&T a viable path to at least a 2x10 MHz nationwide spectrum footprint."
|This issue contains the following items:
• House to Consider Bill to Limit Bulk Data Collection
• Analysis: HR 3361 and Bulk Collection of Data
• Analysis: HR 3361 and Encryption Back Door Mandates
• AT&T to Acquire Directv
• Sen. Leahy Announces Failure to Reach Consensus on Patent Bill
• Obama Signs DATA Act
New items are highlighted in
|Wednesday, May 21
The House will meet at 10:00 AM for morning
hour, and at 12:00 NOON for legislative business. It will continue consideration of
HR 4435 [LOC
| WW], the
"National Defense Authorization Act for Fiscal Year 2015". See, Rep. Cantor's
The Senate will meet at 9:30 AM.
9:15 - 11:15 AM. The
President's National Security Telecommunications Advisory Committee (NSTAC) will
hold a closed meeting. The agenda is a discussion of cyber security threats. See,
the Federal Register, Vol. 79, No. 85, May 2, 2014, at Pages 25138-25139. Location:
9:30 AM - 3:00 PM. The Department of Health and Human Services' (DHHS)
Office of the National Coordinator for Health
Information Technology's (ONC/HIT) HIT Standards Committee will meet. See,
the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627-76628.
RESCHEDULED FROM MAY 8. 10:00 AM. The
House Homeland Security Committee's (HHSC)
Subcommittee on Couterterrorism and Intelligence and Subcommittee on Cybersecurity,
Infrastructure Protections, and Security Technologies will hold a hearing titled
"Assessing Persistent and Emerging Cyber Threats to the U.S. Homeland".
The witnesses will be __. See,
notice. Location: Room 311, Cannon Building.
10:00 AM. The Senate
Judiciary Committee (SJC) will hold a hearing titled "Oversight of the
FBI". The witness will be FBI Director James Comey. See,
notice. Location: Room 226, Dirksen Building.
10:00 AM. The
Senate Homeland Security and Governmental Affairs Committee will hold an business
meeting to mark up bill. The agenda includes S 2354
"Cybersecurity Workforce Recruitment and Retention Act of 2014".
Location: Room 342, Dirksen Building.
12:00 NOON. The Cato Institute will
host a panel discussion titled "Suspending the Law: The Obama Administration's
Approach to Extending Executive Power and Evading Judicial Review". The speakers
will be Andrew Grossman (Cato), Nicholas Rosenkranz (Georgetown University Law Center),
(George Washington University Law School), and Ilya Shapiro (Cato). Free. Open to the
public. Webcast. Lunch will be served after the program. See,
notice. Location: Cato, 1000 Massachusetts Ave., NW.
12:30 - 2:00 PM. The American
Intellectual Property Law Association (AIPLA) will host a webcast panel discussion
titled "Open Source: Getting Important Nuts & Bolts for Free?".
The speakers will be Clifford Allen (Microsoft), Terry Ilardi (IBM), John Lyon (Thomas
Horstemeyer), and Michael Atlass (Qualcomm). CLE credits. Prices vary. See,
12:45 - 4:00 PM. The President's
National Security Telecommunications Advisory Committee (NSTAC) will hold a
meeting. The agenda is panel discussion comprised of members from Canada, the United
Kingdom, and the U.S. who will discuss their country's approaches to infrastructure
protection. Open to the public. See,
the Federal Register, Vol. 79, No. 85, May 2, 2014, at Pages 25138-25139. Location:
Eisenhower Executive Office Building.
1:00 PM. The House
Small Business Committee (HSBC) will hold a hearing titled "Small Business
Innovation Research and Small Business Technology Transfer Programs". Webcast.
notice. Location: Room 2360, Rayburn Building.
2:00 PM. The
House Science Committee (HSC) will meet to mark up HR 4186
"Frontiers in Innovation, Research, Science, and Technology Act of 2014".
notice. Location: Room 2318, Rayburn Building.
EXTENDED FROM APRIL 14. 5:00 PM. Deadline to submit comments to
the Copyright Office (CO) regarding "Orphan
Works and Mass Digitization". See, original
the Federal Register (FR), Vol. 79, No. 27, February 10, 2014, at Pages 7706-7711, and
in the FR, Vol. 79, No. 65, April 4, 2014, at Page 18932.
6:00 - 7:30 PM. The Federal
Communications Bar Association's (FCBA) International Committee will host an event
titled "Reception". The speaker will be Daniel Sepulveda (Deputy
Assistant Secretary of State and U.S. Coordinator for International Communications and
Information Policy). No webcast. No CLE credits. Prices vary. The deadline for
registrations and cancellations is 5:00 PM on May 19. See,
Location: Wiley Rein, 1776 K St., NW.
Deadline to submit comments to the U.S.
Patent and Trademark Office (USPTO) in response to its proposal to amend its rules
related to collective trademarks, collective service marks, and collective membership marks,
and certification marks to clarify application requirements, allegations of use requirements,
multiple class application requirements, and registration maintenance requirements for such
marks. See, notice
in the Federal Register, Vol. 79, No. 34, February 20, 2014, at at Pages 9678-9697.
|Thursday, May 22
The House will meet at 9:00 AM. It will likely
consider HR 3361 [LOC
| WW], the
"Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping,
Dragnet-collection, and Online Monitoring Act'' or "USA FREEDOM Act", a
bill to limit the surveillance powers of the government by stating that several provisions
of surveillance law may not be used for bulk collection of information. See, story titled
"House Judiciary and Intelligence Committees Approve Bill to Limit NSA Bulk Collection of
Data" in TLJ Daily E-Mail Alert No. 2,656, May 8, 2014.
Supreme Court conference day.
See, October Term 2013
Day one of four of elections for the
9:00 AM. The
House Intelligence Committee
(HIC) will hold a closed meeting to mark up HR 4661
"Intelligence Authorization Act for Fiscal Year 2015". No
Location: Room HVC-304, Capitol Building.
9:15 AM. The
House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade
will meet to mark up HR __, a yet to be introduced bill regarding demand letters that
allege patent infringement. Webcast. See,
notice. Location: Room 2123, Rayburn Building.
9:30 AM. The
House Small Business Committee's (HSBC) Subcommittee on Agriculture, Energy and Trade
will hold a hearing titled "Unfair Trade Practices: Addressing Barriers Facing
Small Business Exporters". This hearing will address, among other topics,
intellectual property theft. Webcast. See,
Location: Room 2360, Rayburn Building.
9:30 AM. The Senate Judiciary
Committee (SJC) will hold an executive business meeting. The agenda once again includes
consideration of S 1720 [
LOC | WW], the
"Patent Transparency and Improvements Act of 2013". See, stories titled
"Patent Legislation Update" in TLJ Daily E-Mail Alert No. 2,637, April 7, 2014,
and "Senate Judiciary Committee Members Still Working on Patent Bill" in TLJ
Daily E-Mail Alert No. 2,641, April 17, 2014. Webcast. See,
notice. Location: Room 226, Dirksen Building.
10:00 - 1:45 AM. The New
America Foundation (NAF) will host an event titled "Globalization
Goes Digital". The speakers will address cross border flows of data,
goods, services, finance, and talent. The speakers
will include Eric Schmidt (Google and NAF) and Eric Spiegel (P/CEO of
Siemens USA). Free. Open to the public. Webcast. See,
Location: NAF, Suite 400, 1899 L St., NW.
1:00 - 5:00 PM. The Federal
Aviation Administration's (FAA) Radio Technical Commission for Aeronautics' (RTCA)
Special Committee 228, Minimum Operational Performance Standards for Unmanned Aircraft
Systems, will meet. See,
the Federal Register, Vol. 79, No. 68, April 9, 2014, at Page 19705. Location: RTCA,
Suite 910, 1150 18th St., NW.
1:00 - 5:00 PM. The Department of Homeland Security's (DHS)
Customs and Border Protection's (CBP)
Advisory Committee on
Commercial Operations of Customs and Border Protection will meet online and on
site (in Miami, Florida). The DHS engages in several technology related activities,
including enforcement of intellectual property rights (IPR) by seizing infringing goods,
seizure of domain names, and warrantless searches of laptops, tablets, phones and other
devices at entry points. The agenda for the meeting includes discussion of "the
recommendations on the Intellectual Property Rights (IPR) Working Group's work to
determine the feasibility of a Partnership Program for IPR" and "application
of the Document Imaging System as a tool for IPR authentication". See,
the Federal Register, Vol. 79, No. 86, May 5, 2014, at Pages 25608-25609, and CBP
notice. The deadline to submit comments is May 15, 2014. The deadline to register
to attend, either on site or online, is 5:00 PM EST on May 20, 2014. See, FR, Vol. 79, No.
86, May 5, 2014, at Pages 25608-25609.
6:00 - 8:15 PM. The Federal
Communications Bar Association's (FCBA) Engineering and Technical Committee will host
an event titled "Repacking Broadcasters: A Technical and Legal Discussion".
The speakers will be __. CLE credits. Prices vary. No webcast. The deadline for registrations
and cancellations is 5:00 PM on May 21. See,
notice. Location: __.
Deadline to submit nominations for Co-Chair of the
Federal Communications Bar Association's (FCBA)
Young Lawyers Committee. Submit nominations by e-mail to Justin Faulb at jfaulb at
nab dot org and Lindsey Tonsager ltonsager at cov dot com.
|Monday, May 26
Memorial Day. This is a federal holiday. See, Office of Personnel
Management's (OPM) 2014
calendar of federal holidays.
|Tuesday, May 27
12:15 - 1:30 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers Committee will host an event
titled "Co-Chair Election and Planning Meeting". Location:
Covington & Burling, 1201 Pennsylvania
11:59 PM. Deadline to submit comments to the
National Institute of Standards and Technology
(NIST) in response to its request for information on its potential transition of
Internet Time Service
(ITS) from a NIST only service to private sector operation of an ensemble of time servers
that will provide NIST traceable time information in a number of different formats over the
notice in the Federal Register, Vol. 79, No. 58, March 26, 2014, at Pages
Deadline to submit reply comments to the Federal Communications
Commission (FCC) in response to Part VI(A) of its
Further Notice of Proposed
Rulemaking (FNPRM) regarding closed captioning of video programming. Part VI(A)
pertains to "Responsibilities for Meeting the Closed Captioning Obligations".
The FCC adopted this FNPRM on February 20, 2014, and released it on February 24, 2014.
It is FCC 14-12 in CG Docket No. 05-231. See,
notice in the
Federal Register, Vol. 79, No. 59, March 27, 2014, at Pages 17093-17106.
|Wednesday, May 28
9:00 AM - 5:00 PM. Day one of a two day meeting of the
Federal Aviation Administration's (FAA) Radio
Technical Commission for Aeronautics' (RTCA) Special Committee 231, TAWS-GPWS. See,
the Federal Register, Vol. 79, No. 73, April 16, 2014, at Page 21505. Location:
RTCA, Suite 910, 1150 18th St., NW.
9:30 - 11:00 AM. The
New America Foundation (NAF)
will host a panel discussion titled "Localism Over Consolidation: An
Exploration of Public Broadband Options". The speakers will be
Christopher Mitchell, Joanne Hovis, Will Aycock, Catharine Rice,
and Sarah Morris. Free. Open to the public. Webcast. See,
Location: NAF, Suite 400, 1899 L St., NW.
12:00 NOON - 1:15 PM ET. The
American Bar Association (ABA) will host a webcast panel discussion titled
"Fundamentals of Antitrust Exemptions and Immunities". The speakers will
be Stephen Medlock (Mayer Brown), Carrie Amezcua (McDermott Will & Emery), Michael
Gleason (Jones Day), and Gregory Luib (FTC). Prices vary. No CLE credits. See,
12:30 - 2:00 PM. The American
Intellectual Property Law Association (AIPLA) will host a webcast panel discussion
titled "Octane Fitness and Highmark: A Look at the Supreme Court’s New Standards
for Attorney Fee Awards". CLE credits. Prices vary. See, notice.
1:00 - 2:00 PM. The Information
Technology and Innovation Foundation (ITIF) will host a panel discussion titled
"The Copyright Alert System: Year One in Review". The speakers will be
Doug Brake (ITIF), Jerry Berman (Center for Democracy and Technology), Thomas Dailey
(Verizon), Jill Lesser (Center for Copyright Information). See,
Location: Room 121, Cannon Building, Capitol Hill.
EXTENDED FROM APRIL 28. Extended deadline to submit initial
comments to the Federal Communications Commission (FCC) in response to its
Public Notice (PN)
that requests comments to refresh the record regarding the ability of non-English speakers
to access emergency information. This PN is DA 14-336 in EB Docket No. 04-296. The FCC
released it on March 11, 2014. See also,
the Federal Register, Vol. 79, No. 60, March 28, 2014, at Pages 17490-17493, and April 24
Public Notice (DA 14-552) extending deadlines.
|Sen. Leahy Announces Failure to Reach
Consensus on Patent Bill
5/21. Sen. Patrick Leahy (D-VT),
the Chairman of the Senate Judiciary
Committee (SJC), announced in a release that "Because there is not
sufficient support behind any comprehensive deal, I am taking the patent bill
off the Senate Judiciary Committee agenda."
Sen. Charles Grassley (R-IA),
the ranking Republican on the SJC, stated in a release that "I am surprised and
disappointed that the Senate Democrat leadership is not willing to move forward
on a bill that we've worked on so hard and were ready and expecting to mark up
tomorrow. We put in a good faith effort to get to this point, and it's too bad
that the bill is being pulled from the agenda."
This bill is S 1720
"Patent Transparency and Improvements Act of 2013". It had been on
the agenda for the SJC's executive business meeting on Thursday, May 22. It has
repeatedly been on the agenda for the next meeting for months.
Sen. Leahy (at right)
said that "We have been working for almost a year with countless stakeholders on
legislation to address the problem of patent trolls who are misusing the patent
system. This is a real problem facing businesses in Vermont and across the
country. Unfortunately, there has been no agreement on how to combat the scourge
of patent trolls on our economy without burdening the companies and universities
who rely on the patent system every day to protect their inventions."
The House passed HR 3309
the "Innovation Act", last December. Its key provision is fee shifting.
Sen. Leahy said that "We have heard repeated concerns that the House-passed bill
went beyond the scope of addressing patent trolls, and would have severe unintended
consequences on legitimate patent holders who employ thousands of Americans."
There are also bills within the jurisdiction of the House Commerce Committee
and Senate Commerce Committee that would regulate patent infringement demand
letter practices by amending the FTC Act.
Sen. Leahy said that "I have said all along that we needed broad bipartisan
support to get a bill through the Senate. Regrettably, competing companies on both sides of
this issue refused to come to agreement on how to achieve that goal."
He added that "If the stakeholders are able to reach a more targeted agreement
that focuses on the problem of patent trolls, there will be a path for passage this year
and I will bring it immediately to the Committee."
Ed Black, head of the Computer and Communications Industry Association (CCIA),
stated in a release that "We are greatly disappointed to see patent reform
removed from the Senate's agenda. Patent trolls no doubt celebrated the
lunchtime announcement that they could continue to misuse U.S. patent law to
feast on U.S. companies in all sectors and sizes."
Todd Dickinson, head of the American
Intellectual Property Law Association (AIPLA), stated in a release that
"This shows pretty clearly that addressing these issues is more complicated than
many may have thought. The key has always been to find the right balance: deal
with truly abusive behavior, while making sure that real innovators can enforce
their rights. This is especially true for smaller inventors and entrepreneurs
who may have been at greater risk in this process."
Dickinson, who was a head of the USPTO during the Clinton administration,
added that "Just as with the Leahy-Smith America Invents Act, more time and
broader constituent input may make for even better legislation".
The National Retail Federation (NRF) stated in a release
that "Withdrawing the patent reform bill is a victory for patent trolls." NRF
members include businesses that receive patent infringement demand letters because they
are end users of allegedly infringing products made by others.
The NRF wrote that "We are deeply disappointed that groups representing the
status quo have continued to stall and stymie attempts at effective patent reform."
It added that "We will not rest until the bipartisan compromise ironed out by Senators
Schumer and Cornyn is brought before the Judiciary Committee for consideration."
Matt Levy offered the following analysis of
Sen. Leahy's announcement: "unless patent trolls agree to be regulated and restricted, or
alternatively everyone else agrees to an empty symbolic gesture, Senator Leahy
won’t consider patent reform. This is, of course, ridiculous."
He wrote that "There are only a small handful of non-abusive companies siding
with the trolls. The vast majority of American businesses support a
“comprehensive deal” like the one that passed the House late last year and the
bipartisan measure developed by Members of the Senate Judiciary Committee."
Levy also noted reports that "Senate Majority Leader Harry Reid actually killed the
bill, based on objections from large patent owners and the trial lawyers. That
alone belies the claim that Senator Leahy’s decision was based on any failure by
reform proponents to be reasonable."
See also, stories titled "Patent Legislation Update" in
TLJ Daily E-Mail Alert No.
2,637, April 7, 2014, "Senate Judiciary Committee Members Still Working on
Patent Bill" in TLJ Daily
E-Mail Alert No. 2,641, April 17, 2014, "Senate Judiciary Committee Again
Holds Over Patent Bill" in
TLJ Daily E-Mail Alert No.
2,650, April 30, 2014, and "Senate Judiciary Committee Holds Over Patent Bill"
in TLJ Daily E-Mail Alert
No. 2,656, May 8, 2014.
|Obama Signs DATA Act
5/9. President Obama signed
"The Digital Accountability and Transparency Act", or "DATA Act".
See, White House news office
This act requires that federal agencies report their financial information in
standard formats, and program by program. It imposes government wide data standards for
financial data, and provides for searchable government wide spending data.
Sen. Mark Warner (D-VA)
introduced this bill on May 21, 2013. However, the House and Senate had been
considering other versions for several years. The Senate passed this bill on
April 10, 2014. The House passed it on April 28. See, story titled "House Passes
DATA Act" in TLJ Daily E-Mail Alert No. 2,648, April 28, 2014.
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Copyright 1998-2014 David Carney. All rights reserved.