TLJ News from July 26-31, 2012

Senators and Representatives Introduce Bills to Ban Online Retail Ammunition Sales

7/31. Sen. Frank Lautenberg (D-NJ) and other Senate Democrats introduced S&3458 [LOC | WW]. Also, Rep. Carolyn McCarthy (D-NY) and other House Democrats introduced HR 6241 [LOC | WW]. These substantially identical bills are both titled the "Stop Online Ammunition Sales Act of 2012". These bills would do many things, one of which would be to ban internet sales of ammunition to consumers.

These bills would amend Title 18, the criminal code. Chapter 44 of Title 18 pertains to "Firearms". These bills would make numerous amendments to sections within Chapter 44. The sponsors tout this bill for barring consumers from making retail purchases of ammunition online. Actually, the bill would increase regulation of transactions involving weapons and ammunition in other ways.

Introduction of these bills follow the July 20, 2012, shooting in Aurora, Colorado. The defendant acquired ammunition online. These bills would not only ban internet sales of ammunition, but broadly expand the existing firearms regulatory regime. However, the other provisions do not implicate the internet or e-commerce, and hence, are not addressed in this story.

Nevertheless, their presence may reduce the likelihood that these bills would be enacted into law.

On the other hand, to the extent that this bill would have the effect of curtailing secondary markets in ammunition, and manufacturers often have reasons to dislike secondary markets, especially internet based markets, these bills could win the support of some industry stakeholders.

The statute regulates, among other things, "dealers". The statute defines dealers as dealers in weapons. This bill would amend the definition of dealer to also include ammunition. That is, ammunition sales would be incorporated into the existing regulatory regime for weapons sales.

The key language in these bills, affecting e-commerce, would provide that "It shall be unlawful ... for ... a licensed importer, licensed manufacturer, or licensed dealer to transfer ammunition to a person unless the licensed importer, licensed manufacturer, or licensed dealer has verified the identity of the transferee by examining a valid identification document ... of the transferee containing a photograph of the transferee".

Examining an identification document requires a face to face meeting, and hence, would have the effect of banning internet, as well as catalogue and other remote sales.

These bill would also restrict sales of ammunition by anyone except a licensed importer, licensed manufacturer, or licensed dealer. Thus, ordinary individuals in possession of ammunition could not sell in online secondary markets, or even face to face.

These bills would not impact either eBay or Amazon sales, because of their existing policies. eBay's policy titled "Firearms, weapons, and knives policy" already prohibits sale of ammunition, including dummy and inert ammunition. It does allow sales of "Ammunition for BB guns, pellet guns, or airsoft guns" and "Plastic, polymer, rubber, or wooden bullets or ammunition".

Similarly, Amazon's policy titled "Weapons" prohibits sales of ammunition, including blanks and powder. Amazon does allow sales paintball guns, BB guns, and pellet guns, and ammunition for these.

These bills would have no impact upon internet sales things other than ammunition.

Sen. Lautenberg stated in a release that "It's one thing to buy a pair of shoes online, but it should take more than a click of the mouse to amass thousands of rounds of ammunition. This legislation is a simple common-sense step that would put safeguards in place to detect suspicious activity, helping to prevent the sale of ammunition to a terrorist or the next would-be mass murderer."

The Senate bill was referred to the Senate Judiciary Committee (SJC).

The other original cosponsors of the House bill are Rep. Dianne DeGette (D-CO), Rep. John Conyers (D-MI), Rep. Rush Holt (D-NJ), Rep. Chris Van Hollen (D-MD), Rep. Ed Markey (D-MA), Rep. Carolyn Maloney (D-NY), Rep. Janice Hahn (D-CA), Rep. Jerrold Nadler (D-NY), Rep. John Tierney (D-MA), Rep. David Cicilline (D-RI), Rep. James Moran (D-VA), Rep. Anna Eshoo (D-CA0, Rep. Nita Lowey (D-NY), Rep. Keith Ellison (D-MN), Rep. Raul Grijalva D-AZ), and Rep. Jose Serrano (D-NJ). The House bill was referred to the House Judiciary Committee (HJC).

Senate Committee Holds Hearing on Privacy and Data Security at Federal Agencies

7/31. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Oversight of Government Management held a hearing titled "State of Federal Privacy and Data Security Law: Lagging Behind the Times?".

Sen. Daniel Akaka (D-HI) wrote in his opening statement that the Privacy Act (PA) and its interpretation by the courts is "out of date", for example, because damages for violation of the PA are limited to economic harm, and because federal agencies remain free to use private sector databases. He also noted that the OMB has not had a chief privacy officer since the Clinton administration, that "responsibility for protecting privacy is fragmented and agencies' compliance with privacy requirements is inconsistent", and that agency data breaches are "widespread". He is the sponsor of S 1732 [LOC | WW], the "Privacy Act Modernization for the Information Age Act".

Sen. Tom Carper (D-DE) wrote in his opening statement that there is a "need for Federal data security standards".

See also, prepared testimony of Mary Ellen Callahan (DHS Chief Privacy Officer), prepared testimony of Greg Long (Federal Retirement Thrift Investment Board), prepared testimony [22 pages in PDF] of Greg Wilshusen (Government Accountability Office), prepared testimony of Peter Swire (Ohio State University law school), prepared testimony of Chris Calabrese (ACLU), and prepared testimony of Paul Rosenzweig (Heritage Foundation).

FTC Withdraws 2003 Policy Statement on Remedies of Disgorgement and Restitution in Competition Cases

7/31. The Federal Trade Commission (FTC) released a statement that announces that the FTC has withdrawn its 2003 policy statement regarding the pursuit of monetary equitable remedies, including disgorgement and restitution, in competition cases. The vote was 4-1, with FTC Commissioner Maureen Ohlhausen dissenting.

This action suggests that the FTC may more frequently seek disgorgement of profits from allegedly anticompetitive conduct, rather than relying solely on structural and behavioral remedies.

The just released statement mentions no cases or types of cases. However, it might be noted that this action might signal FTC anticipation of what remedies it will seek if, or when, it takes action against Google regarding its online search practices.

The FTC is investigating whether Google is using its market share and market power in online search to steer users to its own web products and secondary services, and discriminating against other web sites with which it competes, in violation of the Sherman Act and/or FTC Act.

The FTC adopted this item, titled "Policy Statement on Monetary Equitable Remedies in Competition Cases", on July 25, 2003, by a 5-0 vote. The FTC did not request comments on this matter, or provide public notice that it would consider taking this action.

The 2003 policy statement announced that the FTC "will consider the following three factors in determining whether to seek disgorgement or restitution in a competition case. First, the Commission will ordinarily seek monetary relief only where the underlying violation is clear. Second, there must be a reasonable basis for calculating the amount of a remedial payment. Third, the Commission will consider the value of seeking monetary relief in light of any other remedies available in the matter, including private actions and criminal proceedings. A strong showing in one area may tip the decision whether to seek monetary remedies. For example, a particularly egregious violation may justify pursuit of these remedies even if there appears to be some likelihood of private actions. Moreover, the pendency of numerous private actions may tilt the balance the other way, even if the violation is clear."

The vote in 2003 was 5-0. See, story titled "FTC Releases Policy Statement on Use of Equitable Remedies of Disgorgement and Restitution in Competition Cases" in TLJ Daily E-Mail Alert No. 709, August 1, 2003.

The just released statement asserts that "the practical effect of the Policy Statement was to create an overly restrictive view of the Commission's options for equitable remedies".

It elaborates that "Because the ordinary purpose and effect of anticompetitive conduct is to enrich wrongdoers at the expense of consumers, competition cases may often be appropriate candidates for monetary equitable relief. Although our decisions and orders generally focus on structural or behavioral remedies intended to curb future competitive harm, the agency’s mission to protect consumers and competition also includes, where appropriate, taking action to remedy the actual, realized effects of antitrust violations."

Maureen OhlhausenOhlhausen (at left) wrote in her dissenting statement that "I have not been presented with any evidence that the Policy Statement has inappropriately constrained the Commission in the nine years it has been in effect. This begs the questions why the agency needs to rescind the Policy Statement now and why it should not perhaps be revised rather than rescinded altogether."

Since 2003 the FTC has sought disgorgement in two cases, neither of which involved information or communications technology (ICT):

Just prior to the adoption of the 2003 policy statement, the FTC sought disgorgement in a case involving electronic databases, FTC v. The Hearst Trust, U.S. District Court (DC), D.C. No. 1:01CV00734. See, FTC web page with hyperlinks to pleadings.

FTC Commissioners Orson Swindle and Thomas Leary dissented from the FTC's decision to bring that action. In particular, they objected to seeking disgorgement. They wrote in their dissent that "Without expressing a view on whether that extraordinary remedy should ever be available in an antitrust case, we believe that, if a violation is proved, existing private remedies are adequate to ensure that respondents do not benefit from any possible wrongdoing and that their customers can be made whole."

E-Commerce Deregulator Wins Texas Senate Republican Primary

7/31. Ted Cruz won the Texas Republican Senate primary election with 57% of the vote. He defeated Lieutenant Governor David Dewhurst.

Dewhurst had the support of Gov. Rick Perry, and had much more campaign funding. Now, given Texas's Republican leaning, and Cruz's effectiveness as a campaigner, he will likely be elected in November to the Senate seat being vacated by retiring Sen. Kay Hutchison (R-TX).

News publications directed a mass audiences have focused on Cruz's status as a tea party candidate. In contrast, this article focuses on Cruz's background and expertise in several technology related areas of law.

For example, he successfully argued a patent case before the Supreme Court that is of importance to tech companies. And, as head of the Federal Trade Commission's (FTC) Office of Policy Planning (OPP) early in the Bush administration he advocated the removal of regulatory barriers to e-commerce.

Patent Litigation. Recently, he briefed, argued and won a patent case before the Supreme Court. He is a partner in the Houston and Washington DC offices of the law firm of Morgan Lewis. He represented SEB in Global Tech Appliances  v. SEB., a case regarding inducement of patent infringement under 35 U.S.C. § 271(b), which provides that "Whoever actively induces infringement of a patent shall be liable as an infringer." See, SEB's brief.

The Supreme Court issued its 8-1 opinion [23 pages in PDF] on May 31, 2011. The Supreme Court wrote, "we now hold that induced infringement under § 271(b) requires knowledge that the induced acts constitute patent infringement."

Major tech companies, including Google, eBay, Facebook, Intel, Dell, Cisco, Comcast, and Microsoft joined in one of several tech sector amicus curiae briefs in support of Global Tech. While these companies own patents, their concern was that they are sometimes alleged to induce infringement by others, for example, by distributing a product with a multitude of noninfringing uses that, when combined with another product, allegedly infringes a patent on the larger combination apparatus or system.

Cruz does not, however, focus on patent law. Rather, he handles Supreme Court and other appellate litigation generally. See also, his Morgan Lewis biography web page.

Removing Regulatory Barriers to E-Commerce. From June 2001 to early 2003, Cruz was the Director of the FTC's Office of Policy Planning (OPP). This was during Timothy Muris' term as FTC Chairman. One of Cruz's main activities there was studying and advocating the reduction of unnecessary regulatory barriers to electronic commerce.

He chaired the FTC's Internet Task Force. He also helped organize a workshop at the FTC on October 8 through 10, 2002, titled "Possible Anticompetitive Efforts to Restrict Competition on the Internet". See, workshop web site, with links to testimony of participants.

He also testified for the FTC on September 26, 2002, at the House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection's hearing titled "State Impediments to E-Commerce: Consumer Protection or Veiled Protectionism?" See, his prepared testimony.

He also engaged in advocacy, on behalf of the FTC, to limit regulatory barriers to e-commerce.

For example, he co-signed the FTC's March 27, 2002 comment to the state of Connecticut criticizing state bans on sales of contact lens by out of state vendors as unnecessary to protect health, and an impediment to e-commerce.

He also co-signed the FTC's August 29, 2002 amicus curiae brief [PDF] filed with the U.S. District Court (WDOkla) in a case filed by an internet based casket retailer against the state of Oklahoma challenging the constitutionality of Oklahoma's Funeral Services Licensing Act.

See also, stories titled "Muris Appoints More Top Staff at FTC" in TLJ Daily E-Mail Alert No. 212, June 12, 2001, and "E-Commerce Proponent to Become Solicitor General of Texas" in TLJ Daily E-Mail Alert No. 582, January 14, 2003.

Solicitor General of Texas. Cruz left the FTC in 2003 to become Solicitor General (SG) of the state of Texas. He served in that position until 2008.

He was the Texas SG when the Department of Justice's (DOJ) Antitrust Division, Texas, and several other states filed a complaint against Oracle alleging that its proposed acquisition of PeopleSoft would lessen competition substantially in interstate trade and commerce in violation of Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The plaintiffs sought an injunction of the proposed acquisition. See, story titled "Antitrust Division Sues Oracle to Enjoin Its Proposed Acquisition of PeopleSoft" in TLJ Daily E-Mail Alert No. 846, March 1, 2004.

In short, that action crashed and burned in the U.S. District Court (NDCal), the plaintiffs dropped the case, and Oracle completed its acquisition of PeopleSoft.  See, story titled "DOJ Loses Oracle Case" in TLJ Daily E-Mail Alert No. 974, September 10, 2004, and "DOJ Will Not Appeal Oracle Antitrust Case" in TLJ Daily E-Mail Alert No. 989, October 4, 2004.

That complaint lists five attorneys for Texas, including Greg Abbot, the Attorney General, who was Cruz's boss. However, Cruz's name does not appear on the complaint. But, as Solicitor General, Cruz was the top appellate lawyer for the state. The antitrust action was in a trial court.

More About Cruz. Before joining the FTC, he was briefly Associate Deputy Attorney General at the DOJ. Before that, he was DOJ coordinator for the Bush transition team. Before that he worked for the Bush Cheney 2000 campaign, with responsibility for legal policy. He also worked on briefs for the U.S. Supreme Court and Florida Supreme Court on behalf of George Bush during the Florida election contest.

He has a BA cum laude from Princeton, and a JD magna cum laude from Harvard law school. He was a law clerk to Judge Mike Luttig of the U.S. Court of Appeals (4thCir), who is now General Counsel of Boeing. Cruz was then a law clerk to Chief Justice of the United States William Rehnquist.

And, to bolster his tea party credentials, he served food from Chick-fil-A at a recent victory dinner.

Microsoft Addresses Patent Dispute with Google

7/31. Microsoft published a short piece in its web site titled "A Solid Foundation for Patent Peace". The authors are Brad Smith, EVP and General Counsel, and Horacio Gutierrez, Deputy General Counsel.

The U.S. International Trade Commission's (USITC) order [PDF] of May 18, 2012 went into effect 60 days after issuance, that is, on July 18.

Smith and Gutierrez wrote that this order excludes "from the U.S. market Motorola's Android devices that implement Microsoft’s ActiveSync technology." They added that "Microsoft has secured two injunctions against Motorola devices in Germany for its infringement of other Microsoft patents."

Google announced its acquisition of Motorola Mobility in August of 2011. Antirust regulators approved the transaction in early 2012. See, stories titled "DOJ Closes Investigations of Transactions Involving Communications Patents", "EC Approves Google Acquisition of Motorola Mobility", and "EC's Almunia Addresses Patents and Communications Standards" in TLJ Daily E-Mail Alert No. 2,335, February 13, 2012.

Smith and Gutierrez continued that "Over the last few weeks, with the imminence of the ITC exclusion order, Google mounted a public relations and lobbying campaign deflecting attention from its refusal to honor its promise to standards bodies to license standards-essential patents on fair, reasonable and non-discriminatory (FRAND) terms, a practice that has prompted regulators on both sides of the Atlantic to investigate its conduct. Unfortunately, we have no reason to believe that Google’s diversionary tactics will cease any time soon, and in fact expect more of them in the future."

"Microsoft has always been, and remains open to, a settlement of our patent litigation with Motorola. As we have said before, we are seeking solely the same level of reasonable compensation for our patented intellectual property that numerous other Android distributors -- both large and small -- have already agreed to recognize in our negotiations with them. And we stand ready to pay reasonable compensation for Motorola's patented intellectual property as well."

They also stated that "a lasting solution of these disputes will not be reached by leaking settlement positions through the press. In fact, this type of conduct is far more likely to hinder rather than facilitate a resolution. Ultimately, patent peace will be found through good faith engagement that is based on two simple, common sense principles". It must be comprehensive. And, it must be based upon market rates.

FCC Releases Public Safety Network Order

7/31. The Federal Communications Commission (FCC) released an Order [23 pages in PDF] implementing the public safety spectrum provisions of the "Middle Class Tax Relief and Job Creation Act of 2012", enacted in February.

This act requires the creation of an interoperable public safety broadband network using the existing public safety broadband spectrum (763-769 MHz/793-799 MHz) and the D Block (758-763 MHz/788-793 MHz). See, stories titled "Obama Signs Spectrum Bill into Law" in TLJ Daily E-Mail Alert No. 2,345, February 23, 2012, "House and Senate Negotiators Reach Agreement on Spectrum Legislation", "Summary of Spectrum Bill", and "Reaction to Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,339, February 17, 2012, and story titled "House and Senate Pass Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,340, February 18, 2012.

The order notes that before passage of the act, "some public safety jurisdictions were on the verge of implementing statewide or regional networks designed ultimately to support such nationwide interoperability".

The order approves the interoperability showings of the Harris County, Texas and the City of Charlotte, North Carolina.

FCC Chairman Julius Genachowski wrote in his statement that this order "provides a well-defined path for obtaining Special Temporary Authority (STA) where it is warranted and consistent with the statute."

FCC Commissioner Robert McDowell only concurred. He wrote in his statement that "I am disappointed with the one-size-fits-all approach set forth here."

He wrote that "Ideally, the Commission would have addressed the existing public safety build-out waivers, as well as the pending requests for waiver, on a case-by-case basis back in March, immediately following passage of the Public Safety Spectrum Act. Acting quickly would have allowed the stakeholders a meaningful opportunity to socialize the legislation and its effect – internally with their management teams, their lenders, and their equipment vendors – and externally, with local government officials and Commission staff. Instead, given the significant passage of time, the Commission has found itself in an untenable position: It can only sweep away all of the waivers, along with the pending requests, and establish a process to obtain a “limited” Special Temporary Authorization (STA) only “in very few instances” where the highly subjective criteria set forth in the order are met."

FCC Commissioner Ajit Pai wrote in his statement that he only concurs in the bulk of the order "due to the decision to terminate existing leases on September 2 -- just one month from now -- in favor of the prospect of agency granted special temporary authority (STA) that could enable lessees to finish building out and start operating their networks. Federal law does not mandate this result."

This order is FCC 12-85 in PS Docket No. 12-94, WT Docket No. 06-150, and PS Docket No. 06-229. The FCC adopted its on July 30, 2012, and released it on July 31, 2012.

People and Appointments

7/31. Hewlitt Packard (HP) named Maria Cino VP for Americas and U.S. Government Relations. She will be based in Washington DC, and will report to Gregg Melinson, VP Global Government Relations. See, HP release.

More News

7/31. The House considered HR 3120 [LOC | WW], the "Student Visa Reform Act", HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", HR 6063 [LOC | WW], the "Child Protection Act of 2012", and HR 4362 [LOC | WW], the "STOP Identity Theft Act of 2012". The House debated these bills late in the day, and postponed votes until Wednesday, August 1.

7/31. The Senate Commerce Committee (SCC) held an executive session at which it approved S 3410 [LOC | WW], a bill to extend the "Undertaking Spam, Spyware, And Fraud Enforcement with Enforcers beyond Borders Act of 2006", which is also known as the "SAFE WEB Act". The House Commerce Committee (HCC) is scheduled to mark up its version of this legislation, HR 6131 [LOC | WW], on Wednesday, August 1.

7/31. The U.S. Patent and Trademark Office (USPTO) announced in a release that it has selected nine more law schools to join the Trademark Law School Clinic Certification Pilot Program.

7/31. The Federal Communications Commission (FCC) adopted and released an order and consent decree [12 pages in PDF] that fines (nominally a "voluntary contribution") Cellco Partnership dba Verizon Wireless (VW) $1.25 Million for violating the FCC's C Block rules, which provide that C Block licensees (VW uses C Block spectrum for its 4G LTE service) shall not restrict the ability of their customers to use the devices and applications of their choice. VW endeavored to block its customers from accessing tethering applications. See also, FCC release, statement by FCC Commissioner Mignon Clyburn, and release of the Free Press, which filed a complaint with the FCC.

7/31. The Federal Bureau of Investigation (FBI) asserted in a release that it has finally deployed Sentinel, its digital information and case management system, to all employees. Deployment of this vastly expensive Sentinel was repeatedly delayed and over budget. See, for example:

Confirmations and Presidential Elections

7/30. The Senate rejected a motion to invoke cloture on the nomination of Robert Bacharach to be a Judge of the U.S. Court of Appeals (10thCir) by a vote of 56-34. See, Roll Call No. 186.

Bacharach, a magistrate judge of the U.S. District Court (WDOkla), does not have attributes that would make him a likely object of Republican opposition. His problem is the proximity of the Presidential election.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), wrote in his statement for the Congressional Record that "I have not heard a single negative word about him. There is no Senator that I know of who is opposed to his nomination on the merits."

This may signal an end to Court of Appeals confirmations until after the Presidential election. If so, three other nominees for Courts of Appeals may also be affected: Richard Taranto (FedCir), William Kayatta (1stCir), and Patty Schwartz (3rdCir).

Taranto represented Grokster before the Supreme Court in MGM v. Grokster. He also represented Rambus in some of the many proceedings relating to its participation in the JEDEC standards setting process and later assertion of patent rights. See, story titled "Obama Nominates Taranto for Federal Circuit" in TLJ Daily E-Mail Alert No. 2,312, November 17, 2011.

The Senate took no action on President Obama's previous nominee for this seat on the Federal Circuit, Edward Dumont. Last November the President withdrew that nomination, and nominated Taranto.

Voting on Bacharach was partisan. 55 Democrats and Sen. Scott Brown (R-MA) and Sen. Olympia Snowe (R-ME) voted yes. 34 Republicans and no Democrats voted no. Another 10 Republicans either voted present or did not vote.

Sen. Charles Grassley (R-IA) stated that "It is well-known that the practice and tradition of the Senate is to stop confirming circuit nominees in the closing months of a presidential election year. That is what we have done during the last number of presidential election years."

Sen. Charles GrassleySen. Grassley (at right) continued. "In fact, today is July 30. You have to go back 20 years to find a presidential election year when the Senate approved a circuit court judge this late. Of course, the rationale has been that this close to an election, whoever wins that election should be the one to pick these lifetime nominees who will run our judiciary system."

He noted that in July of 2004 Senate Democrats successfully filibustered four of President Bush's Court of Appeals nominees, including Miguel Estrada for the DC Circuit. And, Senate Democrats "closed-up shop on circuit nominations in June" by not allowing votes in the SJC.

There are also sixteen pending District Court nominations, who have been reported by the SJC and are on the Senate's Executive Calendar.

Also, the Senate has not yet confirmed nominees for the Privacy and Civil Liberties Oversight Board (PCLOB). These include James Dempsey, Elisebeth Cook, Rachel Brand, David Medine, and Patricia Wald. See, story titled "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

Ben Bernanke's reappointment to the Federal Reserve Board (FRB) is also pending.

House Commerce Committee Paper Condemns Lack of Transparency in Obama Administration

7/30. The House Commerce Committee (HCC) released a paper titled "Promises Made, Promises Broken: The Obama Administration’s Disappointing Transparency Track Record".

It states that "In October 2008, then Senator Obama and his surrogates repeatedly stated that meetings between lobbyists and the staff of regulatory agencies should be made public." But then, for example, "A White House official specifically organized meetings related to the LightSquared/GPS interference dispute off White House grounds in order to avoid public disclosure on the visitors' logs."

Moreover, the paper states that White House officials use personal e-mail accounts to avoid creating an electronic record.

It might also be noted that while the Federal Communications Commission (FCC) has rules that allow entities and people to make ex parte communications, it requires them to minimally disclose such contacts. However, these rules exempt communications with members of Congress and Congressional committees. Neither the FCC nor the Congress disclose all such meetings and contacts.

Moreover, the Lobbying Disclosure Act and the Congress's ethics rules do not hold members of Congress and lobbyists to the same standards of transparency that this report faults the Executive Office of the President for violating.

BSA Opposes Regulatory Standards in Cyber Security Bill

7/30. Robert Holleyman, head of the Business Software Alliance (BSA), sent a letter to the sponsor of S 3414 [LOC | WW | PDF], the Cybersecurity Act of 2012", or "CSA" urging them to amend the standards provision in Title I of the bill.

He praised the other parts of the bill. He wrote that this bill "creates a solid framework and foundation for the cybersecurity debate over the coming days." This letter states that many of the BSA's priorities are reflected in the bill, "including the need to improve real-time information sharing while meaningfully protecting privacy and civil liberties; reform the Federal Information Security Management Act 2002; increase cyber research and development; promote cyber-education; and foster better international cybersecurity cooperation." This sentence does not include mention of enforceable standards.

Rather, the BSA supports "market-based incentives", and opposes "highly regulatory schemes that will bog down rather than enhance security." The letter advocated "voluntary, incentive-based policies for addressing the cybersecurity of critical infrastructure".

Holleyman wrote that "The bill represents progress in the right direction toward a voluntary regime, but we believe it should be amended to make clear that any new mechanism contemplated for protecting critical infrastructure must be truly voluntary."

National Security Telecommunications Advisory Committee Announces Meeting

7/30. The President's National Security Telecommunications Advisory Committee (NSTAC) published a notice in the Federal Register (FR) in which in announced the date, agenda, and associated deadlines, for its August 16 meeting.

The meeting will take place on Thursday, August 16, 2012, from 2:00 to 3:15 PM, via teleconference. It is open to the public.

The first item on the agenda is a discussion of the Nationwide Public Safety Broadband Network (NPSBN).

The second item on the agenda is a presentation by members of the NSTAC regarding their review of the Department of Homeland Security's (DHS) National Cybersecurity and Communications Integration Center (NCCIC).

The final item on the agenda is a discussion of whether further study is warranted of the NSTAC's proposal to develop a separate out of band data network supporting communications among carriers, ISPs, vendors, and additional critical infrastructure owners and operators during a severe cyber incident that renders the internet unusable.

The deadline to register to present oral comments is 5:00 PM on August 9. The deadline to submit written comments in advance of the meeting is August 10. The deadline to submit post meeting written comments is August 30. See, FR, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44641-44642.

USTR Requests Comments Regarding WTO Rare Earths Proceeding

7/30. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register (FR) requesting comments regarding the complaints filed with the World Trade Organization (WTO) by the US against the People's Republic of China (PRC) regarding its rare earth materials export policies.

The US, Japan and EU filed complaints (nominally requests for consultations) with the WTO in March of 2012. See, stories titled "US, Japan and EU Take Rare Earths Issue to WTO", "OUSTR Explains Rare Earths Request for Consultations" and "Sen. Murkowski Assigns Some Blame for Rare Earths Problem on US Government Regulation" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012.

The US, Japna and EU requested that the WTO establish a dispute settlement panel (DSP) on June 27. See, story titled "US, Japan and EU Request WTO DSP for REM Complaint Against PRC" in TLJ Daily E-Mail Alert No. 2,406, July 10, 2012.

The deadline to submit comments is Monday, August 27, 2012. See, FR, Vol. 77, No. 146, Monday, July 30, 2012, at Pages 44706-44707.

People and Appointments

7/30. The Senate rejected a motion to invoke cloture on the nomination of Robert Bacharach to be a Judge of the U.S. Court of Appeals (10thCir) by a vote of 56-34. See, Roll Call No. 186.

7/30. The Senate Commerce Committee (SCC) approved the nomination of Patricia Falcone to be Associate Director of the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP).

More News

7/30. The U.S. Patent and Trademark Office (USPTO) released a notice to be published in the Federal Register that announced and describes rules adopted, pursuant to the America Invents Act, regarding USPTO disciplinary actions. See also, USPTO release.

7/30. Dell announced the launch of its Advanced Threat Resource Center. Dell stated in a release that the purpose is"to help organizations detect, resist and successfully respond to advanced cyber threats".

7/30. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-147 B [31 pages in PDF] titled "BIOS Protection Guidelines for Servers". The deadline to submit comments is September 14, 2012.

GAO Releases Reports on IT at Federal Agencies

7/27. The Government Accountability Office (GAO) released a series of report on software development and information technology costs at federal agencies.

On July 27, the GAO released a report [99 pages in PDF] titled "Information Technology Cost Estimate: Agencies Need to Address Significant Weaknesses in Policies and Practices". It states that "In fiscal year 2012, the federal government plans to spend at least $75 billion on information technology (IT)", so, "it is critical that such investments are based on reliable estimates of program costs".

This report finds that while agencies have cost estimate programs, "With the exception of DOD, these policies omit or lack sufficient guidance on several key components of a comprehensive policy including, for example, management review and acceptance of program cost estimates, the type of work structure needed to effectively estimate costs, and training requirements for all relevant personnel. Without comprehensive policies, agencies may not have a sound basis for making decisions on how to most effectively manage their portfolios of projects."

Hence, at agencies that the GAO studied for this report (which included the Department of Commerce and the Department of Justice, and others), the "likelihood of cost overruns, missed deadlines, and performance shortfalls is significantly increased".

This report was prepared for Sen. Susan Collins (R-ME), the ranking Republican on the Senate Homeland Security and Governmental Affairs Committee (SHSGAC).

Also on July 27, the GAO released a report [39 pages in PDF] titled "Software Development: Effective Practices and Federal Challenges in Applying Agile Methods". It states that "IT expenditures too often have produced disappointing results, including multimillion dollar cost overruns and schedule delays measured in years, with questionable mission-related achievements".

So, recently, "several agencies have tried an alternate approach known as Agile, which calls for producing software in small, short increments."

Moreover, this report states that the Office of Management and Budget (OMB) recommends modular software delivery consistent with Agile. See, OMB December 2010 document titled "25 Point Implementation Plan to Reform Federal Information Technology Management".

This report identifies and discusses "32 practices and approaches as effective for applying Agile software development methods to IT projects." It adds that "The practices generally align with five key software development project management activities: strategic planning, organizational commitment and collaboration, preparation, execution, and evaluation. Officials who have used Agile methods on federal projects generally agreed that these practices are effective. Specifically, each practice was used and found effective by officials from at least one agency, and ten practices were used and found effective by officials from all five agencies."

This report was prepared for Sen. Thomas Carper (D-DE) and Sen. Scott Brown (R-MA), members of the SHSGAC.

On July 25, the GAO released a report [39 pages in PDF] titled "Information Technology: DHS Needs to Further Define and Implement Its New Governance Process".

More News

7/27. The Federal Communications Commission (FCC) released an agenda for its event on August 3 titled "Open Meeting". The FCC is scheduled to adopt a Notice of Proposed Rulemaking (NPRM) regarding amending the FCC's cable television technical and operational rules. Second, the FCC is scheduled to adopt a Second Report and Order, Second Further NPRM, Second Notice of Inquiry, Order on Reconsideration, and Memorandum Opinion and Order regarding Part 101 of the FCC's rules, which pertain to fixed microwave services. The FCC agenda states that this is intended to "to reduce operational costs and facilitate the use of wireless backhaul in rural areas". This meeting will be held at, or about, 10:30 AM, on Friday, August 3, 2012, in the FCC's Commission Meeting Room, 445 12th St., SW.

7/27. The Copyright Office (CO) published a notice in the Federal Register (FR) requesting comments regarding proposed changes to CO regulations for reporting Monthly and Annual Statements of Account for the making and distribution of phonorecords under the compulsory license. The deadline to submit initial comments is September 25, 2012. The deadline to submit reply comments is October 25. See, FR, Vol. 77, No. 145, Friday, July 27, 2012, at Pages 44179-44197.

Rep. Conyers and Rep. Chaffetz Introduce Bill to Provide for Visas for Entrepreneurs

7/26. Rep. John Conyers (D-MI) and Rep. Jason Chaffetz (R-UT) introduced HR 6210 [LOC | WW], the "American Investment and Job Creation Act".

This bill would amend the Immigration and Nationality Act to direct the Department of Homeland Security's (DHS) U.S. Citizenship and Immigration Services (USCIS) to hand out visas to entrepreneurs and job creators. It was referred to the House Judiciary Committee (HJC).

Rep. Chaffetz stated in a release that "This bill does not increase the number of visas available. It refocuses current immigration laws to provide opportunities for highly educated and skilled entrepreneurs to establish small businesses."

This release explains that "Current immigration laws provide 140,000 annual ``employment-based´´ green cards for needed workers in our economy. Immigrant entrepreneurs who start businesses and create jobs are only eligible for temporary visas, such as E-2 ``treaty investor visas.´´ H.R. 6210 would allow entrepreneurs to qualify for existing employment-based green cards."

This bill would amend 8 U.S.C. § 1153, which pertains to allocation of immigrant visas. Subsection (b) provides for preference allocation for employment based immigrants. Subsection (b)(2), which this bill would revise, pertains to "Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability".

Rep. Smith Introduces Bill to Tweak Trademark Dilution Statute

7/26. Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee (HJC), introduced HR 6215 [LOC | WW | PDF], an untitled bill to amend the Trademark Act regarding remedies for dilution.

There are no cosponsors. The HJC announced on July 27 that it will mark up this bill on Wednesday, August 1, 2012. See, notice.

15 U.S.C. § 1125(c) pertains to "Dilution by blurring; dilution by tarnishment". It provides that holders of certain famous marks may bring a federal action, and obtain injunctive relief, against someone who dilutes that mark by either blurring or tarnishment.

Subsection 1125(c)(6), which this bill would amend, provides, among other things, that a federal trademark registration is a complete bar against a claim against the holder, based upon either common law or state statute, to prevent dilution by blurring or tarnishment. It preempts state law dilution claims directed at marks registered with the U.S. Patent and Trademark Office (USPTO).

It should be recalled that the intellectual property clause in the Constitution gives the Congress the authority to pass laws regarding patents and copyrights, but not trademarks. Congressional authority to write trademark laws is based upon the commerce clause. The Congress has preempted state patent and copyright law. There is, however, both state and federal trademark law, including remedies for dilution of famous marks.

This bill tweaks a subsection that operates as a preemption provision. As a consequence, it also operates as an incentive to federal registration.

See, full story.

Senate May Take Up Lieberman Collins Cyber Security Bill

7/26. The Senate passed a motion to invoke cloture on the motion to proceed to S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", or "CSA", by a vote of 84-11. See, Roll Call No. 185.

Sen. Joe Lieberman (D-CT), Sen. Susan Collins (R-ME), Sen. Jay Rockefeller (D-WV), Sen. Dianne Feinstein (D-CA), and Sen. Tom Carper (D-DE) introduced S 3414 on July 19, 2012. It is a revised version of S 2105 [LOC | WW], also titled the "Cybersecurity Act of 2012", which introduced Sen. Lieberman, Sen. Collins, Sen. Rockefeller, Sen. Feinstein, and Sen. Sheldon Whitehouse (D-RI) introduced on February 14, 2012.

CISPA. The House passed a different cyber security bill on April 26, 2012. It is HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA". It is a limited bill, directed at incenting cyber threat information sharing, in part by providing immunities. CISPA would not provide for the establishment of government enforced cyber security standards, as would the CSA.

For more on the CISPA, see:

Legislative Process. If the Senate does pass this bill before its August recess, it will have bypassed the committee system. There will have been no hearing in any committee on either S 2105 or S 3414. Nor will there have been any committee mark up.

S 3414 has not yet been assigned to any committee. S 2105 was assigned to the Senate Homeland Security and Governmental Affairs Committee (SHSGAC).

S 3414 contains matters that fall with the jurisdiction of the SHSGAC. However, since it also addresses Title 18 (crimes and surveillance), Title 50 (intelligence), and Title 15 (commerce), it also falls within the jurisdictions of the Senate Judiciary Committee (SJC), Senate Intelligence Committee (SIC), and Senate Commerce Committee (SCC).

The SCC will meet in executive session on Tuesday, July 31 at 2:30 PM to mark up numerous bills. However, the agenda does not include S 3414 or any other cyber security bill. The SJC will hold an executive business meeting on Thursday, August 2. The agenda does not include any cyber security bill. The SIC will also meet, but it does not disclose its agendas.

Sen. Lieberman, the sponsor, and Sen. Harry Reid (D-NV), the Senate majority leader, are trying to pass a 214 page bill less than two weeks after its introduction. The public and affected companies may not have sufficient time to understand the bill and communicate their views to Senators. Many Senators may vote on a bill which they have not had sufficient time to study and understand.

Highlights of S 3414. S 3414 is a huge bill. It provides for cyber security standards and enforcement. It provides incentives for information sharing, by authorizing sharing cyber security information, by providing limitations on liability, and by preempting state law. It addresses cyber security at federal agencies. It provides for federal cyber security research and development. It also pertains to education and training of cyber security workers.

See also, sponsors' July 19 summary [11 pages in PDF], and July 26 letter [4 pages in PDF] to other Senators explaining the bill.

It also has attributes of hastily drafted, unrevised legislation. The drafters appear to have attempted to include language to appease entities and groups with conflicting interests. And, as a consequence, it is sometimes vague, incomplete, or contradictory.

For example, the word "voluntary" appears 25 times in S 3414, mostly in the title on standards, but also in the title on information sharing. The bill often employs the term in a manner that is inconsistent with its common meaning in the English language, but that is consistent with its ironic use by regulators at agencies such as the FCC. On the one hand, the title on standards describes itself as a voluntary partnership between industry and government. On the other hand, it provides that standards will be imposed and enforced. This title lacks clarity regarding the extent of government authority. If this bill were enacted, much would depend upon the fiat of agencies in interpreting and implementing the bill.

As another example, the language limiting liability for doing things "authorized" by the bill, such as sharing "lawfully obtained" information, does not necessarily put entities on notice as to when the limitation of liability would apply. What is authorized by the bill is not always clear. Moreover, this section is littered with terms such as "reasonable", "good faith", and "negligence".

Summary of S 3414

7/26. S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", or "CSA", introduced on July 19, 2012, is too long and complex to summarize in a story. Nevertheless, the following touches on some of the more important provisions.

Federal Cyber Security Standards. Title I of the CSA is titled "Public-Private Partnership to Protect Critical Infrastructure". This is the standards section. It provides for a less regulatory system than the first version of the CSA, S 2105 [LOC | WW]

First, it creates a National Cybersecurity Council, comprised of government officials from numerous federal agencies, including the Department of Justice (DOJ) and intelligence agencies.

This bill requires the Council to designate (the bill uses the word "identify") "categories of critical cyber infrastructure", "categories of critical cyber infrastructure within each sector of critical infrastructure", and "owners of critical infrastructure within each category of critical cyber infrastructure".

These government designations are key. If a company or category of cyber infrastructure is so designed, it is subject to the standards regime.

The bill also requires the Council to "conduct sector-by-sector risk assessments".

The bill provides for "private sector coordinating councils" (PSCC), which would be "comprised of representatives of owners and operators within a particular sector of critical infrastructure established by the National Infrastructure Protection Plan". The bill does not say if the government would appoint its members.

The bill mandates that these PSCCs write "voluntary" cyber security "standards". Moreover, if a PSCC does not draft such standards with 180 days, the Council "shall adopt" standards.

And then, "A Federal agency with responsibilities for regulating the security of critical infrastructure may adopt the cybersecurity practices as mandatory requirements".

Next, the bill provides that the Council "shall establish the Voluntary Cybersecurity Program for Critical Infrastructure". Under this program, the government provides certification to an "owner of critical cyber infrastructure or an owner of critical infrastructure". To be so certified, such owner must, among other things, must comply the the above referenced cyber security standards.

If, and only if, such an owner is certified, then:

(1) it qualifies for immunity from punitive damages in a civil action based upon "an incident related to a cyber risk" identified in the above referenced risk assessments.
(2) the government will provide it with "relevant real-time cyber threat information".
(3) it receives "receive prioritized technical assistance"

Title II of the bill pertains to cyber security at federal agencies, and amends the FISMA.

Title III pertains to federal cyber security research and development.

Title IV pertains to education and training of cyber security workers. It also requires numerous government reports. It also further expands the mission of the Securities and Exchange Commission (SEC) and federal securities regulation, from protecting the integrity of markets for publicly traded securities, to requiring further disclosures about cyber security.

Title V requires that the government maintain a federal acquisition risk management strategy, to protect against threats in the federal government's information technology supply chain. This strategy must also address protection of the intellectual property and trade secrets of suppliers.

Title VI pertains to international cooperation.

Title VII addresses information sharing.

Authority to Monitor and Share Information. First, Section 701 of the bill would enables monitoring and surveillance by companies.

It states, "Notwithstanding chapter 119, 121, or 206 of title 18, United States Code, the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), and sections 222 and 705 of the Communications Act of 1934 (47 U.S.C. 222 and 605), any private entity may ... monitor its information systems and information that is stored on, processed by, or transiting such information systems for" cyber security purposes enumerated in the bill. (Parentheses in original.)

Chapter 119 pertains to intercepts, and contains the general ban on warrantless wiretaps. Chapter 121 is the Stored Communications Act.

Next, Section 702 of the bill would allow companies to share cyber security threat information. Section 703 would create "cybersecurity exchanges to receive and distribute cybersecurity threat" information. And, Section 704 would allow companies to give cyber security threat information to these cyber security exchanges.

Information given to an exchange would be exempt from production under the Freedom of Information Act.

Such information could be used, not only for cyber security purposes, but also for certain law enforcement purposes other than cyber crime.

Section 705 specifies which entities would be entitled to receive classified cyber security threat information.

Limitations on Liability. Section 706 contains the critical language for incenting monitoring and sharing of information by companies, by limiting various types of actions.

First, it provides that "No civil or criminal cause of action shall lie or be maintained in any Federal or State court against any entity acting as authorized by this title, and any such action shall be dismissed promptly for activities authorized by this title consisting of ... the cybersecurity monitoring activities authorized" by this bill, or "the voluntary disclosure of a lawfully obtained cybersecurity threat" information under circumstances enumerated by the bill.

Second, this section provides that federal regulatory agencies cannot use cyber security threat information "as evidence in a regulatory enforcement action against the entity that lawfully shared" it with a cybersecurity exchange.

Third, "No civil or criminal cause of action shall lie or be maintained in any Federal or State court against any entity, and any such action shall be dismissed promptly, for a failure to disclose a cybersecurity threat" information, if either the DOJ determines that disclosure would "impede a civil or criminal investigation", or the DOJ, DHS or DNI determines that disclosure would "would threaten national or homeland security".

Fourth, "No civil or criminal cause of action shall lie or be maintained in any Federal or State court against any private entity, or any officer, employee, or agent of such an entity, and any such action shall be dismissed promptly, for the reasonable failure to act on information received under this title."

Fifth, "Compliance with lawful restrictions placed on the disclosure or use of cybersecurity threat indicators is a complete defense to any tort or breach of contract claim originating in a failure to disclose cybersecurity threat indicators to a third party."

But, "Any person who, knowingly or acting in gross negligence, violates a provision of this title or a regulation promulgated under this title shall ... not receive the protections of this title" and "be subject to any criminal or civil cause of action that may arise under any other State or Federal law prohibiting the conduct in question".

Preemption. Section 707 provides for federal preemption of state law. "This title supersedes any law or requirement of a State or political subdivision of a State that restricts or otherwise expressly regulates the provision of cybersecurity services or the acquisition, interception, retention, use or disclosure of communications, records, or other information by private entities to the extent such law contains requirements inconsistent with this title."

So, for example, the bill provides that companies could violate state wiretap and intercept laws in fulfilling requirements of this bill, such as complying with cyber security standards.

Reaction to S 3414

7/26. Sen. Joe Lieberman (D-CT) and others introduced S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", or "CSA" on July 19, 2012. It is 214 pages long, but some groups and companies have been involved in negotiatioins, and/or studied the bill, and offered comments.

Leslie Harris, head of the Center for Democracy and Technology (CDT) stated in a July 19 release that "The amendments address key civil liberties concerns that have dogged the cybersecurity debate. In terms of privacy, these changes make the Lieberman-Collins bill far superior to both the McCain bill and the House-passed CISPA".

The CDT's Greg Nojeim added that "The amendments advance the principle that information shared for cybersecurity reasons should be used for cybersecurity reasons, and not other unrelated governmental goals ... While more work needs to be done on the Senate floor to secure CDT’s support for this legislation, these changes are very important to privacy on the Internet."

Microsoft's Fred Humphries stated in a release on July 26 that "Microsoft believes S. 3414 provides an appropriate framework to improve the security of government and critical infrastructure systems to address current threats. The framework is flexible enough to permit future improvements to security -- an important point since cyber threats evolve over time. The current bill as it stands seeks to advance these priorities and we continue to work to help ensure that any legislation is optimized to meet cybersecurity challenges while protecting civil liberties and privacy."

Cisco Systems' Blair Christie and Oracle's Kenneth Glueck wrote in a joint letter dated July 26 that "cybersecurity must be driven by an IT industry that is free to drive innovation and security and maintain world leadership in the creation of secure systems" and that legislation should maintain and protect "industry's ability and opportunity to drive innovation and security in technologies across global networks".

They continued that the provisions in S 3414 "regarding the designation of critical cyber infrastructure, the specifics of cybersecurity practices, and the treatment of the security of the supply chain demonstrate your continued recognition of these core principles, and we support them."

They added, "We also note the shift toward a voluntary framework for critical cyber infrastructure in the new bill, and commend and support the great strides you have made toward that goal".

The Information Technology Industry Council's (ITIC) Dean Garfield stated in a release on July 26 that S 3414 "represents substantial progress toward better cybersecurity protections for the United States", but "Additional work is needed to improve the voluntary performance requirements, provide effective liability coverage, and facilitate timely, actionable information sharing."

The Telecommunications Industry Association (TIA) released a report on July 25 titled "Securing the Network: Cybersecurity Recommendations for Critical Infrastructure and the Global Supply Chain". It states that "a mandatory regulatory regime for critical infrastructure would not serve the nation's cybersecurity needs well."

It explains that "industry's primary concern ... is that imposing rigid regulatory requirements -- requirements that by their nature will be unable to keep up with rapidly evolving technologies and threats -- would require industry to focus on obsolete security requirements rather than facing the actual threat at hand, effectively making systems less secure. Instead, the key to improving the cybersecurity of critical infrastructure is to strengthen the broader cyber ecosystem that enables rapid information sharing, enhances public private partnerships, and provides sufficient investment to address current and emerging threats."

Facebook Reports Q2 Financial Results

7/26. Facebook, Inc., filed a Form 8-K and attached release with the Securities and Exchange Commission (SEC). These disclose financial results for the quarter ended June 30, 2012. This is Facebook's first such filing since its initial public offering. See also, PDF version of the release [10 pages] in the Facebook website.

Facebook stated, "For the second quarter, GAAP loss from operations was $743 million". In contrast, the 2011 Q2 GAAP gain was $407 Million. However, in the 2012 Q2 Facebook "recognized $1.3 billion of share-based compensation and related payroll tax expenses".

Facebook reported 2012 Q2 GAAP revenue of $1,184 Million, up from $895 Million in 2011 Q2.

GAO Reports on Federal Health IT Subsidies

7/26. The Government Accountability Office (GAO) released a report [45 pages in PDF] titled "Electronic Health Records: Number and Characteristics of Providers Awarded Medicare Incentive Payments for 2011 ".

This report pertains to federal subsidies for hospitals, doctors, dentists, chiropractors and other health care professionals for the purpose of promoting the adoption and use of information technology (IT), including electronic health records (EHR) technology.

The Congress enacted this subsidy program in the "Health Information Technology for Economic and Clinical Health (HITECH) Act", which was part of HR 1 [LOC | WW], the huge spending bill passed by the Congress in February of 2009 at the beginning of 111th Congress. It is Public Law No. 111-5. See, Division A, at Title XIII.

This report states that "761 hospitals and 56,585 professionals were awarded a total of approximately $2.3 billion in Medicare EHR incentive payments for 2011. These 761 hospitals represented 16 percent of the estimated 4,855 eligible hospitals, and were awarded $1.3 billion in Medicare EHR incentive payments for 2011."

This GAO report provides details on federal payments. It does not attempt to measure the effect of these payments on efficiency or costs of hospitals and health care professionals, or even the effect on adoption of IT or EHR.

Senate Judiciary Committee Holds Over Consideration of S 225

7/26. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of  S 225 [LOC | WW], the "Access to Information About Missing Children Act of 2011". This bill is again on the SJC's agenda for its executive business meeting on August 2, 2012.

Sen. Amy Klobuchar (D-MN), the sponsor of the bill, stated at the meeting that this bill would "untie the IRS's hands".

Sen. Amy KlobucharSen. Klobuchar (at right) said that it would enable local law enforcement officials to obtain access to federal income tax returns filed with the Internal Revenue Service (IRS) in cases involving abductions of children by family members who file accurate tax returns that list their addresses and dependent children.

However, the text of the bill does not reference the IRS or tax returns. It would enable local law enforcement access to information of any federal agency.

Moreover, it would also enable any federal officer to obtain access to information of any federal agency. For an explanation of this bill, see story titled "Senate Judiciary Committee to Take Up Access to Federal Information Bill" in TLJ Daily E-Mail Alert No. 2,410, July 24, 2012.

People and Appointments

7/26. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of three nominees for the U.S. District Court: Jon Tigar (USDC/NDCal), William Orrick (USDC/NDCal), and Thomas Durkin (USDC/NDIll). The three are again on the SJC's agenda for its executive business meeting on August 2, 2012.

More News

7/26. Jonathan Zuck of the Association for Competitive Technology (ACT) wrote a short article titled "EU Patent: Let’s get over the finishing line", for the publication Business | Science.

7/26. Rep. Richard Nugent (R-FL) introduced HR 6205 [LOC | WW], the "Protect and Save Act of 2012", a bill related to identity theft. It was referred to the House Ways and Means Committee.

Go to News from July 21-25, 2012.