TLJ News from February 16-20, 2011

Judicial Appointments

2/17. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nominations of Susan Carney (to be a Judge of the U.S. Court of Appeals for the 2nd Circuit), James Shadid (USDC/CDIll), Sue Myerscough (USDC/CDIll), and Michael Simon (USDC/DOre). The SCC held over consideration of Mae D'Agostino (USCD/SDNY). See, SJC release.

More People and Appointments

2/17. The Senate confirmed Stephanie O'Sullivan to be Principal Deputy Director of National Intelligence. See, Congressional Record, February 17, 2011, at Page S927.

2/17. The Senate Commerce Committee (SCC) announced the Chairmen and ranking Republicans on its Subcommittees. Sen. John Kerry (D-MA) is the Chairman, and Sen. John Ensign (R-NV) is the ranking Republican, of the Subcommittee on Communications, Technology and the Internet. Sen. Amy Klobuchar (D-MN) is the Chairman, and Sen. Roy Blunt (D-MO) is the ranking Republican, of the Subcommittee on Competitiveness, Innovation, and Export Promotion. Sen. John Rockefeller (D-WV) and Sen. Kay Hutchison (R-TX) remain the Chairman and ranking Republican of the full Committee. See, SCC release.

2/17. Teresa Rea was named Deputy Director of the U.S. Patent and Trademark Office (USPTO). See, USPTO release. She works in the Washington DC office of the law firm of Crowell & Moring on patent matters. Her Crowell biography states that she "represents emerging companies, corporations and universities and focuses her practice on biotechnology, pharmaceutical chemistry, medical devices, immunology, specialty chemicals, including polymers, and nanotechnology".

More News

2/17. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date for, its amendments to its regulations to (1) set the minimum level of activity required to hold a Copyright Office deposit account at twelve transactions per year, (2) require deposit account holders to maintain a minimum balance in that account, (3) require the closure of a deposit account the second time it is overdrawn within any twelve month period, (4) and offer deposit account holders the option of automatic replenishment of their account via their bank account or credit card. The effective date is May 1, 2011. See, Federal Register, February 17, 2011, Vol. 76, No. 33, at Pages 9229-9231.

2/17. The National Telecommunications and Information Administration (NTIA) released its National Broadband Map, a web site with information about broadband availability. See also, NTIA release.

2/17. The Government Accountability Office (GAO) released a report [81 pages in PDF] titled "Electronic Prescribing: CMS Should Address Inconsistencies in Its Two Incentive Programs That Encourage the Use of Health Information Technology".

House to Continue Consideration of Bill to Extend Sunsets on Surveillance Provisions

2/16. The House is scheduled to continue its consideration of a version of HR 514 [LOC | WW] that would provide a short three month extension of three sunsetted provisions of surveillance law.

This bill, as introduced, would extend statutory sunsets for lone terrorist, business records, and roving wiretap authority. The three provision are currently set to sunset on February 28, 2011. The bill as introduced would extend the sunsets to December 31, 2011. The version of the bill under consideration provides only for a three month extension.

More specifically, the three provisions pertain to federal powers regarding lone wolves (see, 50 U.S.C. 1801(b)'s definition of the term "agent of a foreign power"), business records (50 U.S.C. 1861) (also referred to as 215), and roving wiretaps (50 U.S.C. 1805). See also, Rep. Lamar Smith's (R-TX) February 14, 2011, release that explains these three provisions.

For a more detailed summary of these surveillance provisions, and the history of extension of their sunset dates, see story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010.

Rep. James Sensenbrenner (R-WI) introduced HR 514 on January 26, 2011. On February 8, 2011, the House failed to pass this bill, under suspension of the rules, by a vote of 277-148. See, Roll Call No. 26. A two thirds majority is required for passage under suspension of the rules. Republicans voted 210-26. Democrats voted 67-122. However, the House passed this bill, with the one year extension, on February 14, 2011, by a vote of 275-144. See, Roll Call No. 36.

The Senate passed a version of this bill on February 15, 2011, that provides only for a three month extension. The vote was 86-12. See, Roll Call No. 19.

The House is scheduled to continue consideration on Thursday, February 17, 2011, of the three month extension.

Rep. Charlie Dent (R-PA) stated in the House on February 14 that "I think it's very important that we extend them for a variety of reasons. The lone wolf provision, roving wiretaps, which have been in place for some time, we're not breaking any new ground here. Roving wiretaps have been used by local law enforcement for years in terms of dealing with drug dealers, organized crime. We're simply allowing those roving wiretaps to be extended to those who may be engaged in terrorist activities. Again, not new ground."

He continued that the "roving wiretap provision allows us to follow the person, as opposed to the device. Because of the changing technology, somebody can use a cell phone and pitch it and then pick up another one. So rather than having to run back to the court every time, it's much easier to just simply get the warrant for that individual."

He also stated that "the business records provision is something that is extremely important, something that has often been the subject of a great deal of demagoguery, to be perfectly candid, where we have seen folks talk about this as a library provision. It should be noted that many of the 9/11 terrorists used public library or university library computers to make their plane reservations or to confirm those reservations."

Rep. Jan Schakowsky (D-IL), a member of the House Intelligence Committee (HIC), stated in the House on February 14 that "Among the provisions extended in this bill is section 215, which allows the government to gain access to anyone's private, confidential records, including their medical, financial, library, and bookstore records, without first presenting evidence linking those records to a suspected terrorist or spy. It also fails to allow for court oversight of these secret orders, and prohibits the recipient of such orders from challenging the legality of the order for a year."

She continued that "I think that the challenge here today is, how do we balance the security of our country with protecting the rights of ordinary citizens? I know that we can do better than we do in this legislation, and so I urge each of my colleagues to vote against H.R. 514. Instead, I think we should pass legislation that grants the intelligence community the tools that it requires while protecting the rights and liberties of all Americans."

Senate Judiciary Committee to Consider Sen. Leahy's Surveillance Bill

2/16. The Senate Judiciary Committee (SJC) held an executive business meeting on February 3, 2011, at which it debated, but held over consideration of, S 193 [LOC | WW], the "USA PATRIOT Act Sunset Extension Act of 2011". However, this bill is again on the agenda for the meeting of February 17, 2011.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, introduced this bill on January 26, 2011. This lengthy bill would both extend sunsets, and addresses standards, accountability, and oversight, for the purpose of limiting government abuse of surveillance authority.

Sen. Leahy also introduced a very similar bill in the 111th Congress, S 1692 [LOC | WW], the "USA PATRIOT ACT Sunshine Extension Act". The SJC approved it. However, it did not become law. Sen. Leahy then worked with Attorney General Eric Holder regarding administrative implementation of some of the provisions of S 1692.

For further information on the history of extensions of surveillance provisions, and Sen. Leahy's and AG Holder's recent activities, see story titled "Holder Writes Sen. Leahy Regarding Surveillance" in TLJ Daily E-Mail Alert No. 2,177, December 13, 2010.

Sen. Leahy stated at the February 3 meeting that this is "a bill that extends certain surveillance authorities that are set to expire at the end of this month."

He continued that this bill "makes important reforms to the USA PATRIOT Act, but extends the sunsets to December 2013. It is virtually identical in substance to the bill that we passed out of this committee 2009 with a bipartisan vote. I understand that there is going to be a request to hold this bill over. And of course, I will honor that request. But these are going to expire in a couple of weeks, so I would hope that all Senators of both parties who have an interest in that will meet with me. And, Senator Grassley, none of us want to play politics with national security, and we want to get moving on this. And we can make progress."

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, said that these "are critical tools to prevent and deter terrorist attacks", and that "short term reauthorizations lead to operational uncertainty". He said that he advocates permanent extension, and opposes new restrictions on these authorities.

Sen. Leahy said in the Senate on February 15 that the Congress should pass a simple three month extension, and then during that time period, enact S 193. It said that it "can promote transparency and expand privacy and civil liberties safeguards in the law. It will increase judicial oversight of government surveillance powers that capture information on Americans."

He explained that one of its key provisions would add "a new sunset on National Security Letters."

"Second is repealing the presumption in favor of the government that a judge must honor when he or she reviews an application for a section 215 order for business records. The government does not need this presumption. In fact, the Attorney General endorsed the repeal of the presumption when he expressed his support for the bill in the prior Congress."

He concluded that "We can preserve the authorities that give law enforcement the tools it needs to protect national security. And we can ensure that inspectors general, Congress, and the public maintain vigilant oversight of the government, making sure these authorities are used properly and within constitutional bounds."

Sen. Dianne Feinstein (D-CA) said on February 3 that she has offered a straight three year extension bill, without other provisions, and urged its passage. See, S 149 [LOC | WW], the "FISA Sunsets Extension Act of 2011".

Go to News from February 11-15, 2011.