TLJ News from June 26-30, 2012

Rep. Smith Introduces Rump of Data Retention Bill

6/29. Rep. Lamar Smith (R-TX), Rep. Debbie Schultz (D-FL), and others introduced HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012".

The House Judiciary Committee (HJC) published a copy of the bill on July 6. The HJC also announced on July 6 that it will mark up the bill on July 10. This bill is the third of nine items on the agenda.

Overview of Bill. This bill is the rump of the data retention bill that Rep. Smith endeavored, but failed, to pass earlier in this Congress. HR 6063 contains some of the provisions that were in HR 1981 [LOC | WW], but not the provisions that would have mandated data retention and storage by service providers, that would have provided immunity to service providers for retaining data, and that would have imposed criminal liability for "financial facilitation" of access to child pornography (CP).

The deleted provisions were vigorously opposed by a minority of the HJC, as well as by several industry groups, and advocates of privacy interests and constitutional rights. The deletion of these most controversial provisions may enable passage. For example, Rep. Jason Chaffetz (R-UT) was one of the most vocal critics of HR 1981 during mark up last year. He is now a cosponsor of HR 6063.

The just introduced bill retains the provision that expands administrative subpoena power. Such power dismantles 4th Amendment protection. It also diminishes the role of judges in supervising prosecutorial conduct. Predictably, the cosponsors of the just introduced bill include members of the HJC who are former prosecutors, but not those members who are former judges. See, related story in this issue titled "HR 6063 and Administrative Subpoenas".

The just introduced bill also retains the provision that greatly expands the ability of the Department of Justice (DOJ) to obtain orders related to harassment or intimidation of witnesses or victims, and to criminally prosecute those who violate such orders. Such orders would be easy to obtain, would not require actual harassment or intimidation, and could be based upon internet speech.

Notably, the bill contains language regarding "the distribution or publication using the Internet of a photograph of, or restricted personal information regarding, a specific person". This provision, if enacted, might enable prosecutors to restrain online public discussion, and criticism, of federal criminal prosecutions.

The bill is silent as to whether such restraining orders would apply only to speakers, or could also be obtained against intermediaries, such as "interactive service providers", and whether the bill would carve out a statutory exception to the interactive service provider immunity codified at 47 U.S.C. § 230. See, related story in this issue titled "Commentary: HR 6063, Harassment of Witnesses and Internet Speech".

Rep. Smith gave HR 1981 the title "Protecting Children From Internet Pornographers Act of 2011". He gave HR 6063 the title "Child Protection Act of 2012". Both bills are misleadingly titled. The gist of both bills is to expand federal investigatory and prosecutorial authority across a broad range of cases.

However, both bills contain provisions that would raise the maximum penalty for viewing CP online from 15 to 20 years in prison. And, both bills contain provisions regarding sentencing guidelines. It is these provisions that support claims that these are child protection bills.

See also, related stories titled "HR 6063 and Administrative Subpoenas" and "Commentary: HR 6063, Harassment of Witnesses, and Internet Speech" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012.

See, full story.

Update on FISA Outside the US Surveillance Bills

6/28. The House Intelligence Committee (HIC) approved HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", on June 28, 2012, by a vote of 17-0.

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

This warrantless "outside" of the US surveillance authority was enacted as part of HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". The House passed it on June 20, 2008. The Senate passed it on July 9, 2008. Former Sen. Barack Obama (D-IL) voted for it. Former President Bush signed it on July 10, 2008. It is now Public Law No. 110-261.

Rep. Dutch Ruppersberger (D-MD), the ranking Democrat on the HIC, stated that this authority "is due to expire at the end of the year. I believe that we must reauthorize this critical piece of legislation. It allows our intelligence professionals to gather critical intelligence to disrupt terrorist plots, track developments in countries like Iran, Syria, Russia and China and protect our nation’s networks from cyber attacks." See, HIC release.

The HJC approved HR 5949 on June 19, 2012. See, stories titled "House Judiciary Committee Approves FISA Bill" and "HJC Roll Call Votes on HR 5949" in 2,399, June 19, 2012, and story titled "House Judiciary Committee Takes Up Bill To Extend FISA Outside the US Warrantless Wiretap Authority" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

The Senate Intelligence Committee (SIC) secretly approved the Senate version of the bill, S 3276 [LOC | WW], misleadingly titled the "FAA Sunsets Extension Act of 2012", prior to its introduction, tunc pro nunc, on May 22, 2012. See, story titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

The Senate Judiciary Committee (SJC) is scheduled to consider S 3276 at its executive business meeting on Thursday, July 12. However, this is the first meeting for which this bill has been listed. Due to the rules of the SJC, many such bills are held over to the next meeting.

Representatives Introduce Bill to Increase Penalties for Economic Espionage

6/27. Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and others introduced HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012".

On March 30, 2011, Sen. Herb Kohl (D-WI), Sen. Sheldon Whitehouse (D-RI), and Sen. Christopher Coons (D-DE) introduced S 678 [LOC | WW], the "Economic Espionage Penalty Enhancement Act". The Senate Judiciary Committee (SJC) held a hearing on June 22, 2011. The SJC amended and approved that bill on December 8, 2011.

The Senate bill would increase the maximum penalty for economic espionage, which is codified at 18 U.S.C. § 1831, from 15 to 20 years.

The House bill would do this, and increase the maximum fine from $500,000 to $5,000,000.

See, full story.

People and Appointments

6/26. The Senate confirmed Robin Rosenbaum to be a Judge of the U.S. District Court (SDFl) by a vote of 92-3. See, Roll Call No. 167.

6/26. Sen. Orrin Hatch (R-UT), a senior member of the Senate Judiciary Committee (SJC), won the Republican Utah primary election. He will be the Republican candidate for the US Senate in the November 6 general election.

Go to News from June 21-25, 2012.