TLJ News from August 1-5, 2012

BLS Releases Monthly Unemployment Report

8/3. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) released employment data for the U.S. for the month of July 2012.

The BLS stated in a release that the seasonally adjusted unemployment rate in the US in July was 8.3%. This is an increase from the 8.2% rate in June. The unemployment rate was 8.2% in March, 8.1% in April, and 8.2% in May.

Recent TLJ stories have reported on employment trends in information and communications technology (ICT) sectors. That is, employment in both telecommunications services and equipment manufacturing is declining. However, in July employment in both communications equipment manufacturing and telecommunications services rose. Nevertheless, a gain in one month does not constitute a new trend.

See also,

Table B-1 attached to the BLS report reveals employment trends in various industry sectors, including information and communications technology (ICT) sectors.

The table below contains ICT related excerpts from the BLS table titled "Table B-1. Employees on nonfarm payrolls by industry sector and selected industry detail". This is the seasonally adjusted data.

Table: Total Number of Employees in Thousands by ICT Industry Sector
  Computer & peripheral equipment 159.9 165.2 166.2 166.5
  Communication equipment 115.1 109.5 108.9 110.2
  Semiconductors & electronic comp. 385.2 388.4 387.4 385.7
  Electronic instruments 404.7 403.2 402.2 401.9
Information Services:        
  Publishing industries, except Internet 749.4 739.1 738.3 739.1
  Motion picture & sound recording 360.6 375.8 375.6 381.7
  Broadcasting, except Internet 281.4 282.6 280.9 279.1
  Telecommunications 868.9 830.1 831.3 834.1
  Data processing, hosting & related serv. 242.9 241.4 241.1 243.2
  Other information services 161.4 167.2 167.3 168.4
Professional Services:        
  Legal services 1,116.0 1,119.3 1,119.1 1,120.5
  Computer systems design & related serv. 1,535.8 1,589.7 1,598.2 1,605.2
Source: BLS, August 3, 2012 employment report, Table B-1.

Political Manipulation of BLS Statistics. The lead paragraph of the BLS release states that "the unemployment rate was essentially unchanged". In fact, it rose.

The House Oversight and Government Reform Committee (HOGRC) held a hearing on June 6, 2012 titled "Addressing Concerns about the Integrity of the U.S. Department of Labor's Jobs Reporting". The hearing focused on two issues, manipulation of green jobs data by the DOL, and the DOL's changes to how its lock down procedures affect news media access to BLS jobs data.

Dianne Furchgott-Roth of the Manhattan Institute, who is also a former Chief Economist at the DOL, testified regarding DOL support for the Obama administration's promotion of "government spending to promote green jobs". She wrote in her prepared testimony that "The United States government may not be good at creating jobs, but it excels at relabeling existing jobs as green jobs."

Rep. Darrell Issa (R-CA), the Chairman of the HOGRC, wrote in his prepared statement that the DOL "has jeopardized the integrity of employment data -- in some cases for clearly political reasons". He stated at the hearing that by reclassifying jobs such as welder and lobbyist as green, it is creating "false data".

Rep. Issa added that Secretary of Labor Hilda Solis declined to testify at this hearing.

US Submits Proposals to ITU for WCIT

8/3. The Department of State (DOS) submitted to the International Telecommunications Union (ITU) a filing [6 pages in PDF] titled "Proposals for the Work of the Conference". It contains the US proposals for changes to the International Telecommunications Regulations (ITR).

The ITU will host the World Conference on International Telecommunications (WCIT) on December 3-14, 2012, in Dubai, United Arab Emirates. See, WCIT web site.

The DOS wrote that the US opposes "overburdening the telecommunications sector with unnecessary and intrusive regulation", and favors the existing "multi-stakeholder" approach to internet government over "a formal regulatory regime".

This filing states that "the Internet has evolved to operate in a separate and distinct environment that is beyond the scope or mandate of the ITRs or the International Telecommunication Union. Specifically, it emerged from multi-stakeholder organizations such as the Internet Society, the Internet Engineering Task Force (IETF), the World Wide Web Consortium (W3C), the Regional Internet Registries (RIRs), and the Internet Corporation for Assigned Names and Numbers (ICANN). These organizations have played a major role in designing and operating the Internet and have succeeded by their very nature of openness and inclusiveness."

The US "will not support proposals that would increase the exercise of control over Internet governance or content. The United States will oppose efforts to broaden the scope of the ITRs to empower any censorship of content or impede the free flow of information and ideas. It believes that the existing multi-stakeholder institutions, incorporating industry and civil society, have functioned effectively and will continue to ensure the continued vibrancy of the Internet and its positive impact on individuals and society."

The US proposes "Minimal changes to the preamble of the ITRs" and "Alignment of the definitions in the ITRs with those in the ITU Constitution and Convention, including no change to the definitions of telecommunications and international telecommunications service".

The US "opposes adding provisions to the ITRs that can be interpreted to restrict the choices available to governments in regulating their national telecommunications regimes. If the ITRs are to promote telecommunications development in an enduring manner, they must remain flexible enough to allow for rapid technological change and the evolution of new business models and consumer-oriented services."

Federal Communications Commission (FCC) Chairman Julius Genachowski stated in a release that he supports the DOS filing. He wrote that "The proposals by some countries to restrict the free flow of information online would threaten one of the most powerful engines for global economic growth and the spread of democracy in the 21st century. As today’s U.S. contribution makes clear, the WCIT must embrace the successes of the last two decades of liberalization in telecommunications regulation and the existing multi-stakeholder model of Internet governance to ensure continued investment and growth of the Internet around the globe."

On August 2, the House passed HConRes 127 regarding this upcoming WCIT. See, stories titled "House Approves Resolution Opposing International Internet Regulation" and "Ambassador Kramer Addresses Upcoming WCIT" in TLJ Daily E-Mail Alert No. 2,420, August 4, 2012.

Also on August 2, FCC Commissioner Ajit Pai released a statement in which he praised this House resolution. He wrote that "the multi-stakeholder, non-governmental model of Internet governance ... has served us well." He added that "all American policymakers stand together on a bipartisan basis to oppose international regulation of the Internet."

Google's Vint Cerf wrote a short piece titled "Google Applauds Bipartisan Resolution Opposing Increased International Regulation of the Internet" and dated August 2.

Harris and Cornell to Chair FCC's WRC-15 Advisory Committee

8/3. Federal Communications Commission (FCC) Chairman Julius Genachowski appointed Scott Harris and Diane Cornell as Chair and Vice Chair of the FCC's Advisory Committee for the 2015 World Radiocommunication Conference, or WRC-15. Alex Roytblat will again direct the FCC's WRC-15 preparatory activities and serve as the Designated Federal Official to the advisory committee.

Harris has been SVP and General Counsel of Neustar since March of 2011. Before that he was General Counsel at the Department of Energy (DOE). He founded the telecom law firm of Harris Wiltshire & Grannis (now Wiltshire & Grannis) in 1998. Before that, he was Chief of the FCC's International Bureau.

Cornell is VP for Government Relations at Inmarsat. Before that, she worked for the CTIA. And before that, she held numerous positions at the FCC.

Roytblat is Assistant Chief FCC's IB's Strategic Analysis and Negotiations Division. See, FCC release.

The WRC-15 Advisory Committee will hold its first meeting on Thursday, August 9, 2012, at 9:00 AM in the FCC's Commission Meeting Room. See, notice.

FCC Adopts NPRM Regarding Cable TV Technical Rules

8/3. The Federal Communications Commission (FCC) adopted and released a Notice of Proposed Rulemaking (NPRM) [57 pages in PDF] regarding its cable television technical rules. See also, FCC release.

This item states that "we propose to update our cable television technical rules to facilitate the cable industry’s widespread transition from analog to digital transmission systems. Specifically, we seek comment on our proposals to modernize and modify the Commission’s proof-of-performance rules and basic signal leakage performance criteria." (Footnotes omitted.)

It adds that "we propose modifications throughout Part 76 to remove outdated language, correct citations, and make other minor or non-substantive updates."

This NPRM is FCC 12-86 in MB Docket No. 12-217. Initial comments will be due 60 days after publication of a notice in the Federal Register (FR). Reply comments will be due with 90 days of such publication. The FCC has not yet published this FR notice.

FCC Adopts Wireless Microwave Backhaul Facilities Order and NPRM

8/3. The Federal Communications Commission (FCC) adopted and released an item [73 pages in PDF] regarding wireless microwave backhaul facilities. It is titled "Second Report and Order, Second Further Notice of Proposed Rulemaking, Second Notice of Inquiry, Order on Reconsideration, and Memorandum Opinion and Order". See also, FCC release.

FCC Chairman Julius Genachowski wrote in his statement that "wireless backhaul is often a very efficient means of transmitting data among cell sites, or between cell sites and network backbones. Spectrum, in other words, can be an important part of the ``middle mile´´ of broadband networks."

He said that this item "grants wireless backhaul providers the flexibility to use smaller antennas; updates the Commission’s efficiency standards to reflect today’s data-centric world; introduces a Microwave Rural Flexibility Policy; and permits higher capacity links, enabling faster data rates".

FCC Commissioner Ajit Pai wrote in his statement that "two of the FCC’s top priorities should be removing regulatory barriers to infrastructure investment and broadening the stock of spectrum available for commercial broadband use." And, he said, this item accomplishes both.

The FCC also seeks comments in response to the Notice of Proposed Rulemaking (NPRM) and Notice of Inquiry (NOI) portions of this item. This item considers accommodating new types of antennas to reflect advances in technology, and proposes to allow smaller antennas in an additional microwave band.

FCC Commissioner Robert McDowell praised this item in his statement and added that "I look forward to learning about additional opportunities to pare back even more long-standing and outdated regulations through the notice of proposed rulemaking and notice of inquiry."

This item is FCC 12-87 in WT Docket No. 10-153 and RM-11602. Initial comments regarding the NPRM and NOI portions of this item will be due 30 days after publication of a notice in the Federal Register (FR). Reply comments will be due with 45 days of such publication. The FCC has not yet published this FR notice.

Rep. Kucinich Introduces Bill to Create EPA Regulatory Regime for Mobile Devices

8/3. Rep. Dennis Kucinich (D-OH) and others introduced HR 6358 [LOC | WW | PDF], the "Cell Phone Right to Know Act", bill to create a new EPA regulatory regime for RF emissions of mobile devices.

Rep. Kucinich is not running for re-election. He lost in his party primary.

First, this bill would require that the Environmental Protection Agency (EPA) and the National Institute of Environmental Health Sciences, but not the Federal Communications Commission (FCC), study "whether exposure to electromagnetic fields from mobile communication devices causes adverse biological effects in humans". The bill would authorize massive appropriations for this purpose -- $350,000,000 over seven years.

Second, the bill would provide that the EPA "shall promulgate regulations establishing maximum exposure level goals and maximum exposure levels for exposure to electromagnetic fields generated by mobile communication devices."

Third, the bill provides that the FCC "shall implement and enforce the standards adopted" by the EPA, "as if the standards were promulgated by the Commission under the authority of the Communications Act of 1934".

Rep. Kucinich stated in a release that "Consumers have a right to know the radiation levels of cell phones and whether they are buying the phone with the lowest -- or the highest -- level of exposure to cell phone radiation. They also deserve to have up-to-date exposure standards that are put together by health professionals without conflicts of interest".

The bill has two original cosponsors, Rep. Grace Napolitano (D-CA) and Rep. Chellie Pingree (ME). The bill was referred to the House Commerce Committee (HCC).

People and Appointments

8/3. Andrew Gavil was named Director of the Federal Trade Commission's (FTC) Office of Policy Planning (OPP), effective September 4, 2012, replacing Susan DeSanti, who has moved to the FTC's Western Regional Office in San Francisco, California. In the interim, OPP Deputy Director Tara Koslov will be the acting Director. Gavil is currently a law professor of Howard University, where he teaches antitrust law and other subjects. See, FTC release.

8/3. Steven Bellovin was named Chief Technologist at the Federal Trade Commission (FTC). He is a professor of computer science at Columbia University. See, FTC release. He has published articles recently on privacy and online social networking web sites.

8/3. Richard Brunell was named Senior Advisor for Competition Matters at the Federal Trade Commission (FTC). He previously worked for the American Antitrust Institute (AIA). See, FTC release.

8/3. Randy Stutz, Senior Counsel and Director of Special Projects at the American Antitrust Institute (AAI), will direct the AAI's amicus program, because Richard Brunell, the AAI's Director of Legal Advocacy, was named Senior Advisor for Competition Matters at the Federal Trade Commission (FTC). In addition, Sandeep Vaheesan joined the AAI as Special Counsel. He previously worked for the law firm of Vinson & Elkins, where he focused on antitrust in electric power markets. See, AAI release.

More News

8/3. Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau adopted and released an Order [7 pages in PDF] that grants several waivers of the April 7, 2012 deadline to have the capability to receive and transmit Commercial Mobile Alert System (CMAS) alerts. This order is DA 12-1267 in PS Docket No. 07-287 and PS Docket No. 08-146.

8/3. The Federal Communications Commission (FCC) set deadlines for comments in response to its Further Notice of Proposed Rulemaking (NPRM) [59 pages in PDF] regarding the 4940-4990 MHz (4.9 GHz) public safety band. The FCC adopted and released this FNPRM on June 13, 2012. It is FCC 12-61 in WP Docket No. 07-100, PS Docket No. 06-229, WT Docket No. 06-150. The deadline to submit initial comments is October 1. The deadline to submit reply comments is October 30. See, notice in the Federal Register, Vol. 77, No. 148, Wednesday, August 1, 2012, Pages 45558-45571. See also, August 3 Public Notice (DA 12-1268).

8/3. The Copyright Royalty Board (CRB) published a notice in the Federal Register (FR) that requests comments regarding (1) a motion of Phase I claimants for partial distribution in connection with the 2010 satellite royalty funds, and (2) the existence of Phase I and Phase II controversies with respect to the distribution of 2010 satellite royalty funds. The deadline to submit comments is September 4, 2012. See, FR, Vol. 77, No. 150, Friday, August 3, 2012, at Page 46526.

8/3. The Copyright Royalty Board (CRB) published a notice in the Federal Register (FR) that requests comments regarding (1) a motion of Phase I claimants for partial distribution in connection with the 2010 cable royalty funds, and (2) the existence of Phase I and Phase II controversies with respect to the distribution of 2010 cable royalty funds. The deadline to submit comments in September 4, 2012.

ITIF Paper Addresses 10 Year Trend in IT Employment

8/2. The Information Technology and Innovation Foundation (ITIF) released a paper [9 pages in PDF] titled "Looking for Jobs? Look to IT in 2012 and Beyond". The authors are the ITIF's Luke Stewart and Robert Atkinson.

This paper argues that almost all of the job growth in the US economy in the last decade has been in information technology (IT), and therefore, US government officials should implement certain policies recommended in this paper, to preserve and promote this IT job creating machine.

This paper states that, according to the Department of Labor's (DOL) Bureau of Labor Statistics (BLS), "between 2001 and 2011, over 742,000 new IT jobs were created, an increase of 29 percent. Indeed, employment in IT occupations in all industries grew more than 125 times faster than employment as a whole, which grew by only 0.2 percent."

It also states that "Between May 2007 and May 2011, while U.S. jobs shrank by -4.5 percent, IT jobs grew by 6.8 percent".

The paper draws data from the BLS tables titled "Occupational Employment Statistics". This is an annual series. It lists 819 job categories for 2011.

This paper notes that "pundits point to the ever-increasing number of IT jobs moving offshore to lower-cost countries such as India and Eastern Europe". But, the "pessimists have gotten it wrong when it comes to IT offshoring."

It explains that "even though some IT jobs are moving offshore, many of those jobs involve routinized tasks that can utilize lower-skill labor. While computer programming jobs declined by approximately 180,000 jobs over the last decade -- presumably much of it to due to offshoring -- programming jobs in fact occupy the lower-value end of software production. The higher-value end, occupied by software developers who design the underlying systems behind the software, requires higher-skill labor, and thus is harder to move to low-wage nations. Indeed, software developer jobs paid 22 percent more than the average IT job, 26 percent more than computer programmers, and grew by over 300,000 during this period". (Footnotes omitted.)

This paper also offers recommendations for policy makers. First, "in order to sustain the growth in IT jobs ... policymakers must ensure that training and education programs effectively enhance Americans' IT skills. Even as these high-paying IT jobs continue to expand, too few students are learning IT."

Also, "policymakers must overhaul and expand computer science education, particularly at the high school level. One simple step would be for states to allow computer science courses to count toward the core requirements of math or science."

Also, "policymakers need to ensure that needed foreign IT talent is able to easily enter and work in the United States."

Finally, the paper recommends that "ill-suited public policies, such as overly stringent regulations and excessive taxes on broadband, privacy, and e-commerce can have the opposite effect, limiting investment and retarding job growth".

Commentary. In this paper, the ITIF argues that policy makers should adopt pro IT policies because of jobs. Jobs is widely shared policy goal in Washington DC.

This paper does not argue any of the many other rationales for supporting development of the IT sector, such as increased productively across most sectors of the economy, improved quality of life, better access to information about the activities of government, and so forth.

Since the ITIF based this paper on job creation and wages, it would also arguably be relevant to consider, not only jobs created, but also jobs lost, as a result of IT, including by Schumpeterian creative destruction.

This paper includes BLS data on information technology (IT) related job categories, but not communications technology sector job categories. Thus, this paper includes data categories in which employment grew, while leaving out those in which employment decreased, as a result of IT.

One long term trend has been that through technological innovation analog circuit switched technologies have been replaced or improved by digital packet switched technologies. And, this new internet protocol communications technology has enabled a wide wide range of new IP based services.

For example, the paper did not include, from the same BLS data sets, "Telecommunications Line Installers and Repairers", in which employment dropped from 168,260 in 2001 to 148,930 in 2011. Nor did it include "Telecommunications equipment installers and repairers, except line installers" (which dropped from 210,650 to 199,240), "Telephone operators" (which dropped from 57,500 to 14,890), "Switchboard Operators, Including Answering Service (which dropped from 227,660, to 132,680), or "Telemarketers" (which dropped from 437,510 to 258,060).

The BLS data is less useful in measuring other types of Schumperterian job losses that result from the success of IT, such as job losses in brick and mortar retail stores that follow the growth of IT based e-commerce and auctions web sites.

Moreover, some of the information technology employment gains measured by the ITIF have resulted in job losses in other information sectors.

The BLS also published a collection of papers [190 pages in PDF] in January of 2012 titled "Employment Outlook: 2010-2020". This study finds that for all information services (which also includes the publishing, movie, record and other sectors) total employment fell from 3,630,600 in 2000 to 2,710,900 in 2010 -- a 2.9 percent annual rate of decline. (See, page 66.)

According to the BLS's aggregation of job data, the industry sectors that experienced the biggest job growth from 2000 to 2010 were education (at a growth rate of 2.8% per year), health care (2.6%), and mining (2.3%). The biggest job losers were manufacturing (-4.0%), information services (-2.9%), construction (-2.0%), and agriculture (-1.1%).

Moreover, the same BLS data sets that the ITIF paper uses to demonstrate IT sector growth in employment, also disclose the devastating effect that the success of IT sectors has had on specific categories of information workers.

For example, journalists can be counted in the combined fields of reporters and correspondents, radio and television announcers, and news analysts. In 2001 these totaled 114,550. By 2011 they had shrunk to 82,150. This is a decline of over 28%.

The ranks of photographers were likewise devastated in the same ten year period, from 61,250 to 54,410.

Editors dropped from 105,130 to 98,990. The number of "Writers and authors" and "Broadcast technicians" also declined.

The category of "musicians and singers" contracted from 55,100 to 42,530.

The IT sector has benefited from the free flow of information across IP networks and services. This same activity has disrupted information workers' ability to exclude people from access to their works, and hence, their ability to monetize their efforts, and keep their jobs. This shows up starkly in the jobs data for the last decade.

Finally, it might be noted that the BLS entry for "Reporters and Correspondents" is followed by its entry for "Public Relations Specialists". While there was a sharp contraction in jobs for reporters, jobs for PR people grew from 132,390 in 2001 to 212,520 in 2011.

Treasury IG Reports That IRS Hands Out Billions in Fraudulent Refunds to ID Thieves

8/2. The Treasury Inspector General for Tax Administraton (TIGTA) released a report [40 pages in PDF] titled "There Are Billions of Dollars in Undetected Tax Refund Fraud Resulting From Identity Theft".

This review focuses on identity theft related to tax refunds, which occurs when an individual uses another person's name and Social Security Number (SSN) to file a fraudulent tax return in order to obtain a fraudulent tax refund.

This report finds that there were 1,125,634 incidents of identity theft that impacted tax administration in 2011 that were identified by either taxpayers or the IRS. This is up from 440,581 in 2010. However, the report adds that there are many more incidents which are not detected by taxpayers or the IRS.

The report states that "While the amount of fraudulent tax refunds the IRS detects and prevents is substantial, it does not know how many identity thieves are filing fictitious tax returns and how much revenue is being lost due to the issuance of fraudulent tax refunds."

The report contains an estimate for the total amount or fraudulent tax refunds issued in 2010. It states that the IRS "identified almost 1.5 million tax returns with potential fraudulent tax refunds totaling in excess of $5.2 billion that were not detected by the IRS".

It concludes that, "Based on our analysis, we estimate the IRS could issue approximately $21 billion in fraudulent tax refunds resulting from identity theft over the next five years."

The report is dated July 19. It was released to the public on August 2. It was prepared for the SFC.

More Tax Return ID Theft Bills Introduced

8/2.. Rep. Richard Nugent (R-FL) introduced HR 6205 [LOC | WW], the "Protect and Save Act of 2012", a bill that pertains to tax return identity theft, on July 26, 2012. It bill was referred to the House Ways and Means Committee.

On July 25, Sen. Bill Nelson (D-FL) and Sen. Tom Coburn (R-OK) introduced S 3432 [LOC | WW], the "Identity Theft and Tax Fraud Prevention Act". It was referred to the Senate Finance Committee (SFC).

These are different bills, but have some overlapping provisions. Both would require the IRS to issue a confidential unique identifier, or personal identification number, to any person who has filed an identity theft affidavit.

Also, both bills would restrict access to the Department of Commerce's (DOC) Death Master File. S 3432 would also increase criminal penalties.

HR 6205 would also require a Government Accountability Office (GAO) study "to examine the role of prepaid debit cards and commercial tax preparation software in facilitating fraudulent tax returns through identity theft".

On August 2, the House passed HR 4362 [LOC | WW], the "Stopping Tax Offenders and Prosecuting Identity Theft Act of 2012", or "STOP Identity Theft Act of 2012". See, story titled "House Passes Tax Return ID Theft Bill" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

HR 4362 would make tax fraud (26 U.S.C. § 7206 or 26 U.S.C. § 7207) a predicate offense for elevating identity theft (18 U.S.C. § 1028) to aggravated identity theft (18 U.S.C. § 1028A). It would also amend 18 U.S.C. § 1028, which currently prohibits only the theft of the identity of an individual person, to also prohibit the theft of the identity of a business or other entity.

The sponsors of HR 4362 are Rep. Debbie Schultz (D-FL) and Rep. Lamar Smith (R-TX).

The Florida delegation is prominent in sponsoring tax return identity theft bills. The just released TIGTA report [40 pages in PDF] states that last year the Tampa Police Department announced that it had uncovered about $130 Million in tax fraud in the Tampa, Florida area.

House Approves Resolution Opposing International Internet Regulation

8/2. The House passed HConRes 127, regarding the upcoming by World Conference on International Telecommunications (WCIT), by a vote of 414-0. See, Roll Call No. 555.

This resolves that "That it is the sense of Congress that the Assistant Secretary of Commerce for Communications and Information, in consultation with the Deputy Assistant Secretary of State and United States Coordinator for International Communications and Information Policy, should continue working to implement the position of the United States on Internet governance that clearly articulates the consistent and unequivocal policy of the United States to promote a global Internet free from government control and preserve and advance the successful multistakeholder model that governs the Internet today."

It recites in its findings that "proposals, in international bodies such as the United Nations General Assembly, the United Nations Commission on Science and Technology for Development, and the International Telecommunication Union, would justify under international law increased government control over the Internet and would reject the current multistakeholder model that has enabled the Internet to flourish and under which the private sector, civil society, academia, and individual users play an important role in charting its direction".

Rep. Mary Mack (R-CA) introduced this resolution on May 30, 2012.

Rep. Greg Walden (R-OR) stated in the House on August 1 that "Nations from across the globe will meet in December for the World Conference on International Telecommunications in Dubai. There, the 193 member countries of the United Nations will consider whether to apply to the Internet a regulatory regime that the International Telecommunications Union created for old-fashioned telephone service, as well as whether to swallow the Internet's nongovernmental organization's structure whole and make it part of the United Nations. Neither of these are acceptable outcomes." See, Congressional Record, Wednesday, August 1, 2012, at Page H5599.

Rep. Anna Eshoo (D-CA) stated in the House that "several nations, including Russia, are set on asserting intergovernmental control over the Internet, leading to a balkanized Internet where censorship could become the new norm. While there's no question that nations have to work together to address challenges to the Internet's growth and stability, such as cybersecurity, online privacy, and intellectual property protection, these issues can best be addressed under the existing model."

Rep. Anna EshooRep. Eshoo (at left) said that "It's absolutely essential that the United States defend the current model of Internet governance at the upcoming Dubai conference this December because the very fabric of the free and open Internet is at stake."

Rep. Mack stated that "For nearly a decade, the United Nations has been angling quietly to become the epicenter of Internet governance. A vote for our resolution is a vote to keep the Internet free from government control, and to prevent Russia, China, India, and other nations from succeeding in giving the U.N. unprecedented control over Web content and infrastructure."

She continued that "These proposed treaty changes, which have been going on in secret, could have a devastating impact worldwide on both freedom and economic prosperity. If this power grab is successful, I'm concerned that the next Arab Spring will instead become a Russian Winter where free speech is chilled, not encouraged, and the Internet becomes a wasteland of unfulfilled hopes, dreams, and opportunities. We cannot let this happen."

Rep. Nadler Introduces ECPA Reform Bill

8/2. Rep. Jerrold Nadler (D-NY) and Rep. John Conyers (D-MI) introduced HR 6339 [LOC | WW], the "Electronic Communications Privacy Act Modernization Act of 2012" on August 2, 2012.

Rep. Jerrold NadlerRep. Nadler (at right) stated in a release that the "ECPA was passed in 1986, well before we commonly used the Internet for e-mail, much less for 'cloud computing' and remote storage".

He added that "Communications technology is evolving at an exponential rate and, as such, requires corresponding updates to our privacy laws. This new legislation will ensure that ECPA strikes the right balance between the interests and needs of law enforcement and the privacy interests of the American people."

Rep. Conyers stated in this release that "Rapidly advancing technology has made it necessary to update the Electronic Communications Privacy Act ... This bill will both protect the privacy of the information transmitted by digital communications and provide clear standards to guide law enforcement and the courts."

Rep. Nadler's release states that "This legislation adopts the position of the Digital Due Process Coalition, which includes industry leaders Amazon, Apple, AT&T, eBay, Facebook, and Google."

On March 30, 2010, a coalition of companies and groups named Digital Due Process (DDP) announced a set of four principles which they argue should be incorporated into the federal statutes that regulate government searches and seizures of stored communications and data. See, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

One of these principles states that "The government should obtain a search warrant based on probable cause before it can compel a service provider to disclose a user's private communications or documents stored online." Another is that "The government should obtain a search warrant based on probable cause before it can track, prospectively or retrospectively, the location of a cell phone or other mobile communications device."

This bill would, among other things, amend 18 U.S.C. § 2703 to provide that "A governmental entity may require the disclosure by a provider of electronic communication service or remote computing service of the contents of a wire or electronic communication that is stored, held or maintained by that service only pursuant to -- (A) a warrant complying with the Federal Rules of Criminal Procedure and issued by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) a court under" the Foreign Intelligence Surveillance Act (FISA).

(TLJ note: perhaps there is an omission here, and the word "order" should follow the word "court" in subpart (B).)

This bill would not, however, implement the DPP's recommendation that a warrant be required to track the location of a mobile device. However, a related bill in the Senate does address this. See, S 1011 [LOC | WW], the "Electronic Communications Privacy Act Amendments Act of 2011", introduced by Sen. Patrick Leahy (D-VT) on May 17, 2011. It was referred to the Senate Judiciary Committee (SJC), which has not yet approved it.

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "Rapid technology innovation has rendered ECPA archaic ... The current law was enacted before most people had ever heard of the Internet, much less come to rely on email. So now, instead of consistent rules for law enforcement access to communications, we have a confusing patchwork. The files you store on your computer, on a network, or in the cloud are subject to different standards than the ones you print and save in your desk drawer. That can't go on. Digital files have to be subject to the same laws as paper."

"Reforming ECPA is critical to spur the growth of cloud computing," Holleyman said. "Any country that wants to succeed in the cloud needs clear and consistent rules to protect users' privacy while enabling the free flow of data and commerce. One of the problems US cloud providers face today is other countries casting doubt on our privacy and security laws. Reforming ECPA would send a strong signal that America intends to remain a leader in the cloud."

Senate Judiciary Committee Approves Bill to Allow Police to Obtain Addresses from Tax Returns

8/2. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved S 225 [LOC | WW], the "Access to Information About Missing Children Act of 2011".

The SJC approved an amendment in the nature of a substitute [5 pages in PDF] by unanimous consent. The SJC then approved the bill as amended by unanimous voice vote. There was no substantive discussion or debate.

The sponsor of this bill, Sen. Amy Klobuchar (D-MN), has stated that the purpose of this bill is to enable local law enforcement officials to obtain the address someone who has filed a federal income tax return with the Internal Revenue Service (IRS) in cases involving abductions of children by family members, who often file accurate tax returns that list their dependent children.

However, this is not what the bill as introduced would have done. It would have enabled any "Federal officer" to obtain "any information held by any Federal agency", thereby overriding the Privacy Act and the confidentiality statutes and rules for all federal agencies.

The amendment adopted on August 2 transforms the bill, and brings its text in line with the sponsor's rhetoric.

The amendment changes who can get access from any federal officer to a "Federal law enforcement officer". (Federal law enforcement officers can make requests on behalf of state officials.) The amendment changes the agencies covered from "any Federal agency" to the "Internal Revenue Service". And, the amendment changes the information to be disclosed from "any information" to "the mailing address" of the filer.

For an explanation of this bill as introduced, 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. See also, story titled "Senate Judiciary Committee Holds Over Consideration of S 225" in TLJ Daily E-Mail Alert No. 2,411, July 25, 2012.

Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill

8/2. The Senate rejected a motion to invoke cloture on S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", by a vote of 52-46. A super majority of 60 is required to pass a cloture motion. Later in the day the Senate recessed until September.

The two main causes of opposition were the inclusion of Title I of the bill, which imposes a regulatory regime on private sector entities, and the ruthlessly fast and closed process by which Sen. Harry Reid (D-NV), the Senate Majority Leader, attempted to force this bill upon the Senate.

Voting correlated with party affiliation. Most Democrats voted yes. Most Republicans voted no.

See, full story.

Rep. Connolly Introduces Federal Data Center Bill

8/2. Rep. Gerry Connolly (D-VA) introduced HR 6278 [LOC | WW], the "Data Center Optimization Act", a bill that states that its purpose is to "optimize Federal data center usage and efficiency".

It was referred to the House Oversight and Government Reform Committee. Rep. Connolly is a member. There are no cosponsors of this bill.

The Government Accountability Office (GAO) released a report [124 pages in PDF] on July 19, 2012, titled "Data Center Consolidation: Agencies Making Progress on Efforts, but Inventories and Plans Need to Be Completed".

Sen. Tom Carper's (D-DE) stated in a release on July 23, 2012, that "For too long the federal government has wasted taxpayer dollars by pouring money into unnecessary information technology (IT) infrastructure ... Data centers have been bleeding energy and money throughout the federal government and are a perfect example of inefficient IT spending."

Startup R&D Tax Credit Bills Introduced

8/2. Rep. Jim Gerlach (R-PA) and Rep. Zoe Lofgren (D-CA) introduced HR 6319 [LOC | WW], the "Startup Innovation Credit Act of 2012". On July 31, 2012, Sen. Chris Coons (D-DE), Sen. Mike Enzi (R-WY), Sen. Marco Rubio (R-FL) and Sen. Charles Schumer (D-NY) introduced S 3460 [LOC | WW], also titled the "Startup Innovation Credit Act of 2012". These bills are the same.

Section 41 of the Internal Revenue Code (IRC), 26 U.S.C. § 41, pertains to the "Credit for increasing research activities". These bills would add a new subsection 41(i) regarding "Treatment of Credit to Qualified Small Businesses".

Section 3111 of the IRC, 26 U.S.C. § 3111, pertains to employer tax rates. These bills would add a new subsection 3111(f) regarding "Credit for Research Expenditures of Qualified Small Businesses".

These bills would enable startup companies to claim a research and development (R&D) tax credit against their employment taxes, instead of their income taxes. Start ups tend not to have income tax liability, and hence the existing credit against income tax liability is of no use to them.

The existing R&D tax credit expired on December 31, 2011. It is not only in need of retroactive extension, but also modernization.

There are numerous pending bills that would extend and revise the existing R&D tax credit. See, story titled "Ways and Means Subcommittee Hearing to Address Expired R&D Tax Credit" in TLJ Daily E-Mail Alert No. 2,376, April 20, 2012.

Sen. Coons stated in a release that the R&D tax credit "has helped tens of thousands of successful American companies create jobs by incentivizing investment in innovation, but startups can’t take advantage ... Firms younger than five years old have been responsible for the overwhelming majority of our new jobs in recent years, and they are driving our nation’s economic recovery by taking risks to turn their ideas into marketable products."

The House bill was referred to the House Ways and Means Committee. Rep. Gerlach is a member. The Senate bill was referred to the Senate Finance Committee. Sen. Enzi and Sen. Schumer are members.

More Bills

8/2. Rep. Kathleen Hochul (D-NY) introduced HR 6329 [LOC | WW], the "Build It in America Act of 2012", a bill to make permanent the research and development tax credit, with a protectionist component. See, Rep. Hochul's release. The bill was referred to the House Ways and Means Committee.

8/2. Rep. Richard Hanna (R-NY) introduced HR 6325 [LOC | WW], the "STEM Education Opportunity Act", a bill to create an individual tax deduction for higher education expenses in a program of study in science, technology, engineering, or mathematics (STEM). The bill was referred to the House Ways and Means Committee.

AT&T Announces Planned Acquisition of NextWave

8/2. AT&T announced in a release that "it has agreed to acquire NextWave Wireless, Inc."

NextWave is a company that holds, but does not use, spectrum licenses in the Wireless Communication Services (WCS) and Advanced Wireless Service (AWS) bands. NextWave wrote in its Form 10-Q, filed with the Securities and Exchange Commission (SEC) on May 9, 2012, that it is trying to sell its spectrum licenses.

This transaction, and transfer of licenses, requires regulatory review by the Federal Communications Commission (FCC). The parties will also likely make a Hart Scott Rodino filing.

The FCC adopted and released a Report and Order and Second Report and Order [154 pages in PDF] on May 20, 2010 that amended the FCC's WCS technical rules. It is FCC 10-82 in WT Docket No. 07-293, IB Docket No. 95-91 and GEN Docket No. 90-537.

AT&T and Sirius XM Radio filed a joint proposal [19 pages in PDF] with the FCC on June 15, 2012 that proposes further changes to the FCC's WCS technical rules. See also, June 19 piece by AT&T's Joan Marsh titled "Breaking Down Barriers in the WCS Band".

AT&T stated in its August 2 release that "the proposed WCS rule changes and NextWave acquisition represent an alternative approach to creating additional wireless network capacity to help support skyrocketing wireless data usage on smartphones and tablets. If approved, the proposal will enable AT&T to begin initial deployment of WCS spectrum for added 4G LTE capacity, in approximately three years."

AT&T also explained the financial aspects of the proposed transaction thus: "AT&T will acquire all the equity of NextWave for approximately $25 million plus a contingent payment of up to approximately $25 million and, through a separate agreement with NextWave’s debtholders, all of the company’s outstanding debt will be acquired by AT&T or retired by NextWave, for a total of $600 million in cash. The outstanding debt held by NextWave’s bondholders will be satisfied through cash and a transfer of selected NextWave assets. NextWave’s debtholders have agreed to the terms, and a majority of its shareholders have agreed to support the transaction."

NextWave wrote in its May Form 10-Q that "As of March 31, 2012, the aggregate principal amount of our secured indebtedness was $1,061.8 million."

The Public Knowledge's (PK) John Bergmayer stated in a release that "The 'spectrum gap' between AT&T and Verizon and the rest of the industry is already unacceptably large. These proposed transactions would worsen it. They are a symptom of our broken spectrum policy, which rewards concentration rather than competition."

He added that "An important question to ask is why this valuable spectrum was allowed to go unused for so long. To prevent this waste, the FCC needs to adopt build-out policies that discourage speculation, and 'use it or share it' policies that allow for unlicensed use of fallow spectrum. Finally, the FCC needs to update its spectrum screen to discourage the same few companies from acquiring more and more of this vital resource."

House Small Business Committee Members Write FTC Regarding IT Theft

8/2. Nineteen members of the House Small Business Committee (HSBC) sent a letter [PDF] to Federal Trade Commission (FTC) Chairman Jonathan Liebowitz, and the four other FTC Commissioners, regarding "stolen information technology (IT) in foreign markets and the potential impact to small manufacturers in the United States".

This letter describes the problem of theft of technology. It does not, however, state what the FTC should do about it, or not do. However, the HSBC members want to be involved.

The Department of Justice (DOJ), and not the FTC, has authority to criminally prosecute for theft of trade secrets under 18 U.S.C. § 1831, and for criminal copyright infringement.

The HSBC letter repeatedly refers to "competition" and "unfair competition". The FTC has authority to challenge mergers or acquisitions when "the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly". See, 15 U.S.C. § 18. But, this would not apply to theft of IT.

Sections 1 and 2 of the Sherman Act apply to conspiracies in restraint of trade or commerce, and abuse of market power.

FTC Act, at 15 U.S.C. § 45, gives the FTC civil enforcement authority with respect to an "unfair or deceptive trade practice". The letter does not express reference that possibility that the FTC might bring actions under this section against companies that steal IT.

The only recommendation in the letter is this. "As you consider your current legal authority to pursue international IT theft, we encourage you to carefully consider the possible side effects to ensure that any actions will not cause a burden or disruption to domestic companies and their supply chain. In today's economy, we cannot place another regulatory burden or obstacle on small businesses."

Rep. Sam GravesRep. Sam Graves (R-MO) (at right) is the Chairman of the HSBC. In response to questions from TLJ, his staff provided this explanation: "Stolen information technology is a major problem. It puts U.S. small businesses at a competitive disadvantage and costs American consumers. We're confident the FTC is aware of the need for continued work to reduce this problem. Members of this Committee need to hear the progress of that effort in order to proactively do our oversight work on behalf of small businesses. Any impacts on small businesses must be thoroughly considered."

"Effectively, we're asking the FTC: what’s next? We need more insight into the Commission's process and plan for dealing with this costly drain on our nation's job creators."

People and Appointments

8/2. The Senate confirmed four of the five nominees for the Privacy and Civil Liberties Oversight Board (PCLOB): James Dempsey, Elisebeth Cook, Rachel Brand, and Patricia Wald. The Senate has not yet confirmed David Medine. See, story titled "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

8/2. The Senate confirmed Meredith Broadbent to be a member of the U.S. International Trade Commission (USITC) for a term expiring June 16, 2017.

8/2. The Senate confirmed Patricia Falcone to be an Associate Director of the Executive Office of the President's (EOP) Office of Science and Technology Policy (OSTP).

8/2. The Senate confirmed Mark Mazur to be an Assistant Secretary of the Treasury.

8/2. The Senate confirmed Matthew Rutherford to be an Assistant Secretary of the Treasury.

8/2. The Senate confirmed Gershwin Drain to be a Judge of the U.S. District Court (EDMich), by a vote of 55-41. See, Roll Call No. 189. It was a nearly straight party line vote. The Senate then recessed until September. Sen. Patrick Leahy (D-VT) released a statement in which he urged the Senate to confirm more pending judicial nominees when it returns from its recess. However, the Senate is not likely to confirm more Court of Appeals nominees, such as Richard Taranto for the Federal Circuit. See, story titled "Confirmations and Presidential Elections" in TLJ Daily E-Mail Alert No. 2,417, August 1, 2012.

8/2. The Senate Judiciary Committee (SJC) held an executive business meeting at which approved the nominations of Jon Tigar (USDC/NDCal), William Orrick (USDC/NDCal), and Thomas Durkin (USDC/NDIll).

8/2. President Obama nominated Pamela Chen to be a Judge of the U.S. District Court for the Eastern District of New York. See, White House news office release and release. She is a long time Assistant U.S. Attorney for the Eastern District of New York.

More News

8/2. Oracle announced in a release that Oracle and SAP "today stipulated to SAP paying Oracle a damage award of $306 million in the copyright infringement suit filed by Oracle after it discovered massive downloading and copying of its intellectual property by the German software maker." It added that "Oracle's unanimous 2010 jury verdict awarding it $1.3 billion can now be immediately taken to the Ninth Circuit Court of Appeals." See also, story titled "Jury Awards Oracle $1.3 Billion" in TLJ Daily E-Mail Alert No. 2,164, November 24, 2010. This case is Oracle Corporation, et al. v. SAP AG, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. 3:07-cv-01658.

8/2. Rep. Kathleen Hochul (D-NY) introduced HR 6330 [LOC | WW], a bill regarding sentencing for identity theft. It was referred to the House Judiciary Committee (HJC) and House Financial Services Committee (HFSC).

House Judiciary Committee Passes Technical Amendment to Trademark Dilution Statute

8/1. The House Judiciary Committee (HJC) passed HR 6215 [LOC | WW], an untitled bill to amend the Trademark Act regarding remedies for dilution, without amendment, by unanimous voice vote.

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).

This bill would amend Subsection 1125(c)(6), which is titled "Ownership of valid registration a complete bar to action". As amended, this subsection would be as follows:

This corrects a technical error. Rep. Lamar Smith (R-TX), the sponsor of the bill, explained that in 2006, the 109th Congress passed HR 683, the "Trademark Dilution Revision Act of 2006", or "TDRA". It is Public Law No. 109-312. He said that the Senate Judiciary Committee (SJC) reformatted text that had been reported by the House Judiciary Committee (HJC). However, in this reformatting the SJC also inadvertently changed its meaning. He said that no one caught the error at the time.

For more on trademark dilution, and TLJ's first attempt to explain this bill, see story titled "Rep. Smith Introduces Bill to Tweak Trademark Dilution Statute" in TLJ Daily E-Mail Alert No. 2,414, July 28, 2012.

Rep. Lamar SmithRep. Smith's Explanation. Rep. Smith (at right) read a prepared statement at the August 1 mark up session explaining this bill. It is transcribed below.

"The purpose of the Federal Trademark Dilution Act of 1995 is to protect famous trademarks from subsequent uses that blur the distinctiveness of the mark, or tarnish or disparage it, even in the absence of a likelihood of confusion. Dilution does not rely upon the standard test of infringement -- that is, likelihood of confusion, deception, or mistake. Rather it applies when the unauthorized use of a famous mark reduces the public's perception that the mark signifies something unique, singular, or particular. In other words, dilution can result in a loss of the mark's distinctiveness, and possibly the owner's rights in it."

"Congress enacted amendments to the original dilution statute in 2006. Last year two law professors discovered a technical problem with one of the 2006 changes. During Senate consideration of the House bill, the section that provides a federal registration defense to a dilution action was reorganized. This produced an unexpected and unintended change to the law. As originally drafted in the House, the provision was designed to encourage federal registration of trademarks. This is a worthy policy goal that prevents state laws from interfering with federally protected marks and ensures that registered marks are protected nationwide. The House version promoted this, and barred a state action for dilution against a federally registered mark."

"However, the Senate reformatted the house text in such a way as to create a bar against a state action for dilution, as as well as a state or federal action based on a claim of actual or likely damage or harm to the distinctiveness or reputation of a mark. This means that a federal registration defense is available to both state and federal claims."

"Congress couldn't have intended such an outcome. If all dilution claims including federal claims are barred by registration, it becomes difficult to cancel a diluting mark that is registered. This encourages illegitimate mark holders to register diluting marks, which forces legitimate mark holders to expend greater resources to monitor registrations, as well as other marks being used in commerce."

"And, that is why we introduced HR 6215, to amend the Federal Trademark Dilution Act. This bill simply reformats the affected provision to clarify that federal registration only constitutes a complete bar to a state claim based on dilution or actual or likely damage or harm to the distinctiveness or reputation of a mark. The change applies prospectively. This bill ensures that the trademark community is protected from those who look to use this loophole as a way to disparage legitimate trademarks and cost the holders time and money."

Ambassador Kramer Addresses Upcoming WCIT

8/1. Terry Kramer, head of the US delegation to the World Conference on International Telecommunications (WCIT) gave a speech in Washington DC on August 1, 2012 regarding upcoming WCIT and International Telecommunications Regulations (ITRs).

The WCIT will be held in Dubai, United Arab Emirates, on December 3-14, 2012. See, event web site.

He said that "Throughout the WCIT process, the United States has, and will continue to, express opposition to proposals that would place governments in a position of greater power to censor the Internet, track content or target end users -- even under the guise of combating spam, controlling traffic routing or identifying calling number information as a way to defeat alleged fraud and ``misuse´´ of networks."

Kramer said that "proposals to control content transmitted over networks run counter to the foundation of a free and vibrant telecommunications and Internet society".

He said that "Proposals to control content and routing, or to expand the definitions of international telecommunications to cover the Internet, ultimately will not work. Such proposals will only ... Stifle innovation, promote customer cynicism, and breed "work-around" solutions to undermine flawed policies" and " Undercut the free flow of information and ideas, defeating the entire purpose of the ITRs themselves".

"Similarly, proposals that seek to artificially mandate pricing terms -- such as "transfer payments" between content providers and network operators -- will only result in failure."

Kramer concluded that the US "will oppose changes to the ITRs that (1) restrict the free flow of content, (2) broaden the scope of the ITRs, however subtly, to impinge on the Internet’s natural growth and evolution, or (3) impose uneconomic pricing or transfer-payment obligations on Internet content providers or backbone operators."

Also on August 1, the Department of State (DOS) announced in a release that it "will submit its first group of proposals" regarding ITRs for the WCIT on August 3.

This release states that "the ITRs should remain a high-level treaty that establishes an international framework for market-driven development of telecommunications networks and services".

It adds that "The U.S. is concerned that proposals by some other governments could lead to greater regulatory burdens being placed on the international telecom sector, or perhaps even extended to the Internet sector -- a result the U.S. would oppose."

It states that the US proposals include "Minimal changes to the preamble of the ITRs", "Alignment of the definitions in the ITRs with those in the ITU Constitution and Convention, including no change to the definitions of telecommunications and international telecommunications service", "Maintaining the voluntary nature of compliance with ITU-T Recommendations", "Continuing to apply the ITRs only to recognized operating agencies or RoAs; i.e., the ITRs’ scope should not be expanded to address other operating agencies that are not involved in the provision of authorized or licensed international telecommunications services to the public", and "Revisions of Article 6 to affirm the role played by market competition and commercially negotiated agreements for exchanging international telecommunication traffic".

SHIELD Act Would Allow Court to Award Costs and Attorneys Fees to Prevailing Parties in IT Patent Cases

8/1. Rep. Peter DeFazio (D-OR) and Rep. Jason Chaffetz (R-UT) introduced HR 6245 [LOC | WW | TLJ], the "Saving High-tech Innovators from Egregious Legal Disputes", or "SHIELD Act".

Supporters of this bill decry "patent trolls" and plaintiffs who allege infringement of patents that they own, but do not practice.

However, this bill is very narrow and limited. It would merely allow the District Court to award costs and attorneys fees to the prevailing party in a patent infringement action involving a computer hardware or software patent.

The bill does not reference "patent troll" or any similar term. Nor does it limit standing to sue to patent holders who practice the patent in suit.

It provides that "in an action disputing the validity or alleging the infringement of a computer hardware or software patent, upon making a determination that the party alleging the infringement of the patent did not have a reasonable likelihood of succeeding, the court may award the recovery of full costs to the prevailing party, including reasonable attorney’s fees, other than the United States."

Moreover, this bill, if enacted, would bring the rule for recovery of costs and attorneys fees in tech related patent litigation more in line with the procedural rules for many other types litigation in the US.

Currently, 35 U.S.C. § 285 provides that "The court in exceptional cases may award reasonable attorney fees to the prevailing party."

Rep. Peter DeFazioRep. DeFazio (at right) issued a release that complains about "patent trolls" who "buy patents solely to sue the American tech startups".

He stated that "Patent trolls don't create new technology and they don’t create American jobs ... They pad their pockets by buying patents on products they didn’t create and then suing the innovators who did the hard work and created the product. These egregious lawsuits hurt American innovation and small technology start ups, and they cost jobs. My legislation would force patent trolls to take financial responsibility for their frivolous lawsuits."

Michael Petricone of the Consumer Electronics Association (CEA) stated in a release that "The recent explosion of lawsuits brought by non-practicing entities, better known as 'patent trolls,' is a tax on technology and an anchor on our ability to compete internationally. Every dollar companies spend fighting baseless lawsuits is a dollar not spent on creating jobs and developing new products."

He said that this bill "would take a club to these patent trolls".

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The patent reform bill last year unfortunately did not address this growing toll on innovation -- junk lawsuits. Because tech products are interoperable with hundreds of components, the industry is particularly vulnerable to phony companies that don't produce anything and exist mainly to sue other companies."

He said that "The SHIELD Act would offer some disincentives to those attacking tech companies with nuisance lawsuits and counting on quick lucrative settlements. While this is not going to solve all the problems with our dysfunctional patent system, it is a step toward sanity and a step that will help staunch this drain on our economy."

HP Wins Preliminary Ruling in Contract Action Against Oracle

8/1. The Superior Court of the State of California, Santa Clara County issued a Proposed Statement of Decision Hewlett-Packard v. Oracle. HP described this as a "tremendous win for HP". Oracle announced that it would appeal.

Oracle announced in release on March 22, 2011 that "it has decided to discontinue all software development on the Intel Itanium microprocessor". HP makes Itanium based servers. HP filed a complaint [heavily redacted] against Oracle on June 15, 2011.

HP asserts that there was a contract between HP and Oracle that obligated Oracle to offer future versions of Oracle's software on Itanium. HP's claims include breach of contract, breach of implied contract, and promissory estoppel.

HP issued a release on August 1, 2012 that describes some aspects of the ruling. It wrote that "Today's proposed ruling is a tremendous win for HP and its customers." The trial court "has confirmed the existence of a contract between HP and Oracle that requires Oracle to port its software products to HP's Itanium-based servers. We expect Oracle to comply with its contractual obligation as ordered by the Court."

HP's release quotes from the court decision. "In this action for declaratory relief, the Court finds in favor of HP and against Oracle on both the breach of contract and promissory estoppel causes of action brought by HP."

Also, "The Settlement and Release Agreement entered into by HP, Oracle and Hurd on September 20, 2010, requires Oracle to continue to offer its product suite on HP’s Itanium-based server platforms and does not confer on Oracle the discretion to decide whether to do so or not."

Oracle's Deborah Hellinger stated in a release that "Last March, Oracle made an engineering decision to stop future software development on the Itanium chip. We made the decision as we became convinced that Itanium was approaching its end of life".

Hellinger continued that "Nothing in the Court's preliminary opinion changes that fact. We know that Oracle did not give up its fundamental right to make platform engineering decisions in the 27 words HP cites from the settlement of an unrelated employment agreement. HP's argument turns the concept of Silicon Valley 'partnerships' upside down."

"We plan to appeal the Court's ruling while fully litigating our cross claims that HP misled both its partners and customers", said Hellinger.

This case is HP v. Oracle, Superior Court of the State of California for the County of Santa Clara, No. 1-11-CV-203163, Judge James Kleinberg presiding.

Public Knowledge Complains to FCC About Comcast Data Caps

8/1. The Public Knowledge (PK) filed a document [PDF] with the Federal Communications Commission (FCC) titled "Petition to Enforce Merger Conditions". The PK asserts that Comcast has violated the mandates that the FCC imposed upon approval Comcast as a condition for its approval of the merger of Comcast and NBC Universal. The PK wants the FCC to "prohibit Comcast from using unnecessarily discriminatory data caps".

The PK's Michael Weinberg, who signed the document, stated in a release that "Comcast is doing exactly what opponents of its merger with NBC-Universal feared: using its internet business to protect its pay-TV business. Exempting its own online video services from the data caps that apply to every other online activity creates an unfair advantage. The FCC has an obligation to enforce its merger conditions and make it clear that Comcast cannot use its control over consumers' internet connection to protect its pay television business. Real competition in online video requires everyone to be on a level playing field."

The FCC issued its Memorandum Opinion & Order (MOO) [279 pages in PDF] approving the merger, subject to conditions, on January 20, 2011. It is FCC 11-4 in MB Docket No. 10-56.

Comcast is a broadband internet access service (BIAS) provider. It also provides video through its Xfinity online service. BIAS customers may also use their Comcast broadband connections to access online video content, using computers, mobile devices, Xbox 360 game consoles, TiVo DVRs, or other internet connected devices. This would include accessing video from Amazon Prime, YouTube, Netflix, or other online video distributors (OVDs). The PK complaint further states the Comcast imposes a data cap, but exempts its Xfinity service from the cap. Thus, the PK argues, Comcast's Xfinity service is in competition with other online video services, Comcast is using this data cap to discriminate against its competitors, and all of this is unfair, a violation of the FCC's Comcast NBCU merger conditions, and the FCC's December 2010 BIAS order.

These merger conditions are set forth in Appendix A, at pages 118 through 144. Neither the body of the MOO, nor the attached conditions, expressly prohibit Comcast from employing any kind of data cap. In fact, the term "data cap" does not appear in the MOO or conditions.

This is the PK argument. Part IV of the conditions appendix is titled "Online Conditions". Subpart G of Part IV is titled "Unfair Practices". The PK quotes IV.G.1.a (at page 126), which provides that "Neither Comcast nor C-NBCU shall ... engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or prevent any MVPD or OVD from providing Video Programming online to subscribers or consumers".

The PK asserts that "Comcast's decision to exempt its online video service from its own data caps is precisely the type of behavior contemplated and barred by the Commission in the Merger Order. As such, the Commission must move to end the behavior and prevent it from being repeated in the future."

The PK also states that Comcast is in violation of the rules adopted by the FCC at the end of 2010 that provide for the regulation of BIAS providers.

The FCC's rules are contained in the Report and Order (R&O) [194 pages in PDF] adopted on December 21, 2010, and released on December 23, 2010. This R&O is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

The 2010 rules are under review by the U.S. Court of Appeals (DCCir), and may soon be vacated.

Army Generals Enter Political Debate Over Cyber Security Bills

8/1. General Martin Dempsey, Chairman of the Joints Chiefs of Staff sent a letter on August 1, 2012 to Sen. John Rockefeller (D-WV) and Sen. Kay Hutchison (R-TX), the Chairman and ranking Republican on the Senate Commerce Committee (SCC), urging passage of a comprehensive cyber security bill.

The SCC has not reported a cyber security bill. But, Sen. Rockefeller is a cosponsor of S 3414 [LOC | WW | PDF], the Cybersecurity Act of 2012", or "CSA", which is currently being considered by the full Senate.

Gen. Dempsey did not mention the CSA by name or number, but taken in the context of pending bills, the letter may be interpreted as an endorsement of the CSA.

Without referencing any of the many pending cyber security bills, he wrote that "I believe comprehensive cyber security legislation must embody three tenets."

"First," he wrote, "encouraging the rapid, real-time sharing of threat information between the public and private sector is essential to enable meaningful network defense." The CSA, as well as the CISPA, the bill passed by the House in April, would address this. See, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act".

"Second," Gen. Dempsey wrote, "we must ensure our Nation's core critical infrastructure is sufficiently hardened and resilient so that no nation or terrorist group can threaten the service we depend upon. Minimum standards will help ensure there is not weak link in our infrastructure." The CSA, but not the CISPA, would impose cyber security standards upon certain elements of the private sector.

"Third, we must ensure the Department of Defense can work closely with our industrial partners to stop the exfiltration of sensitive information."

The Chairman of the Joint Chiefs of Staff regularly communicates with the Senate Armed Service Committee (SASC) and House Armed Services Committee (HASC), but not the SCC or House Commerce Committee (HCC). Moreover, S 3414 has not been referred to, or reported by, the SCC.

Sen. John McCain (R-AZ), the ranking Republican on the SASC, has introduced a competing bill, S 2151 [LOC | WW, the "Secure IT Act". It provides for more information sharing, and greater incentives to share information, than S 3414. But it would not impose the standards upon the private sector that Gen. Dempsey advocates.

See also, story titled "Sen. McCain Criticizes S 3414" in TLJ Daily E-Mail Alert No. 2,415, July 30, 2012.

Also, on July 31, Gen. Keith Alexander, Commander of the U.S. Cyber Command and Director of the National Security Agency (NSA), sent a letter to Sen. Harry Reid (D-NV), the Senate Majority Leader, and a substantially identical letter to Sen. Mitch McConnell (R-KY), the Senate Minority Leader, expressing his "strong support for passage of a comprehensive bipartisan cyber security bill by the Senate this week."

He wrote that "legislation should address both information sharing and core critical infrastructure hardening." He elaborated that "hardening" means setting "requirements" for the private sector.

House Passes Bill that Increases Penalties for Economic Espionage

8/1. The House approved HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", by voice vote on August 1, 2012.

Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI) and others introduced this bill on June 27, 2012. See, story titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012. The House Judiciary Committee (HJC) approved it by voice vote at its July 10, 2012, meeting.

This bill would increase the maximum penalty for economic espionage, which is codified at 18 U.S.C. § 1831, from 15 to 20 years. It would also increase the maximum fine from $500,000 to $5,000,000.

It would also increase the maximum fine for corporations and other organizations. The statute currently provides that "Any organization that commits any offense described in subsection (a) shall be fined not more than $10,000,000." HR 6029 provides that the maximum fine is "not more than the greater of $10,000,000 or 3 times the value of the stolen trade secret to the organization, including expenses for research and design and other costs of reproducing the trade secret that the organization has thereby avoided".

This bill would also direct the U.S. Sentencing Commission (USSC) to review its sentencing guidelines for economic espionage.

Rep. Bobby ScottRep. Bobby Scott (D-VA) (at right), the ranking Democrat on the HJC's Subcommittee on Crime, stated during floor debate on July 31 that "Evidence suggests that economic espionage and trade secret theft on behalf of companies located in China is an emerging trend. For example, at least 34 companies were reportedly victimized by attacks originating from China in 2010. Over the course of these attacks, computer viruses were spread via emails to corporate employees, allowing the attackers to have access to emails and sensitive documents."

Rep. Smith stated during floor debate on July 31 that the goal of this bill is "to deter and punish criminals who target U.S. economic and security interests on behalf of foreign interests".

He noted that a study by McAfee concluded that "In recent years, cybercriminals have shifted from targeting the theft of personal information, such as credit cards and Social Security numbers, to the theft of corporate intellectual capital. Corporate intellectual capital is vulnerable, of great value to competitors and foreign governments, and its theft is not always discovered by victims."

Also, "Our intelligence community warns that foreign interests place a high priority on acquiring sensitive U.S. economic information and technologies. Targets include information and communications technologies, business information, military technologies, and rapidly growing civilian and dual-use technologies". Moreover, he said that Chinese actors are the world's most active and persistent perpetrators of economic espionage.

The Senate has not passed this bill.

However, on March 30, 2011, Sen. Herb Kohl (D-WI), Sen. Sheldon Whitehouse (D-RI), and Sen. Christopher Coons (D-DE) introduced a similar bill, 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 full Senate has not passed that bill.

It is not the same as the House bill. It would increase the maximum penalty for economic espionage from 15 to 20 years, and direct the USSC to review its sentencing guidelines. However, it does not contain the House bill's provisions for increasing maximum fines.

House and Senate Commerce Committees Pass Bills to Extend SAFE WEB Act

8/1. The House Commerce Committee (HCC) passed HR 6131 [LOC | WW], a bill to extend the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers Beyond Borders Act of 2006" or "SAFE WEB Act", by voice vote on August 1, 2012. The Senate Commerce Committee (SCC) approved S 3410 [LOC | WW], a substantially identical bill, on July 31, 2012.

Rep. Fred Upton (R-MI), the Chairman of the HCC, wrote in his prepared statement that "H.R. 6131 is a straightforward measure to extend a law that is working well to protect the interests of Americans using the Internet. The 2006 SAFE WEB Act allows the FTC to share information involving cross-border fraud with foreign law enforcement agencies and take other steps to combat foreign-originated Internet fraud and scams. I’m pleased to be extending it."

Rep. Upton added that "This law has served our nation well, and as the Internet plays a larger and larger role in our everyday activities, extending this authority to combat fraud is an important step. Again, I look forward to support from my colleagues for this measure."

The Congress enacted the SAFE WEB Act in late 2006, with a seven year sunset. HR 6131 and S 3410 would extend the sunset until September 20, 2020.

These bills are short, straightforward, and not controversial. The 2006 SAFE WEB Act was not controversial either. However, the SAFE WEB Act conferred some broad powers on the Federal Trade Commission (FTC). If the FTC had criminal prosecution authority, and/or the Department of Justice's (DOJ) propensity to apply laws in political fashion, the SAFE WEB Act might have been controversial in 2006, and its extension might be controversial today.

For example, the Act gave the FTC new powers to compel third party service providers to disclose the contents of stored wire and electronic communications, without notice to the owner of the communications, and with a gag order imposed upon the service provider.

Also, while the title suggests that this bill pertains to the web, it actually affects a wide range of investigations and actions by the FTC.

The SAFE WEB Act was was S 1608 in the 109th Congress. President Bush signed it into law on December 22, 2006. It is Public Law No. 109-455. See, stories titled "Congress Expands Powers of FTC" in TLJ Daily E-Mail Alert No. 1,504, December 13, 2006, and "Senate Commerce Committee Approves Bill to Expand FTC Powers to Pursue Online Fraud" in TLJ Daily E-Mail Alert No. 1,274, December 16, 2006. See also, FTC summary [3 pages in PDF] of the Act.

For a more detailed explanation of the SAFE WEB Act, see story titled "House Commerce Committee to Consider Extension of Sunset on US SAFE WEB Act" in TLJ Daily E-Mail Alert No. 2,404, July 5, 2012.

House Passes Tax Return ID Theft Bill

8/1. The House approved HR 4362 [LOC | WW], the Stopping Tax Offenders and Prosecuting Identity Theft Act of 2012", or "STOP Identity Theft Act of 2012", by voice vote on August 1, 2012.

Rep. Debbie Schultz (D-FL) and Rep. Lamar Smith (R-TX) introduced this bill on April 16, 2012. See, story titled "Rep. Smith and Rep. Schultz Introduce Bill Pertaining to Tax Return Identity Theft" in TLJ Daily E-Mail Alert No. 2,374, April 18, 2012.

This bill would make tax fraud (26 U.S.C. § 7206 or 26 U.S.C. § 7207) a predicate offense for elevating identity theft (18 U.S.C. § 1028) to aggravated identity theft (18 U.S.C. § 1028A).

It would also amend 18 U.S.C. § 1028, which currently prohibits only the theft of the identity of an individual person, to also prohibit the theft of the identity of a business or other entity.

It also states that "The Attorney General should make use of all existing resources of the Department of Justice, including any appropriate task forces, to bring more perpetrators of tax return identity theft to justice."

However, this bill does nothing to change the methods by which the IRS processes returns and issues refunds.

Rep. Smith stated during floor debate on July 31 that "Tax fraud through identity theft is a rapidly growing criminal enterprise in the United States. Criminals use stolen identities to steal income tax refunds from unsuspecting victims and from the Federal Government. With nothing more than stolen identity information -- Social Security numbers and their corresponding names and birth dates--criminals have electronically filed thousands of false tax returns and have received hundreds of millions of dollars in wrongful refunds."

Rep. Debbie SchultzRep. Schultz (at right) stated that "An unsuspecting taxpayer goes to file their tax return only to be told by the Internal Revenue Service that someone else has already filed and claimed their hard-earned tax refund."

"These tax return identity thieves hide behind a veil of technology by stealing Social Security numbers and filing false electronic returns where the payoffs are almost instantaneous." Rep. Schultz added that "technology has simply outstripped the enforcement tools that are currently on the books."

The Senate has not passed this bill.

House Passes Student Visa Reform Act

8/1. The House approved HR 3120 [LOC | WW], the "Student Visa Reform Act", by voice vote on August 1, 2012. This bill is directed a reducing visa fraud by academic visa mills.

Rep. Zoe Lofgren (D-CA) introduced this bill on October 6, 2011. She stated during floor debate on July 31 that the U.S. student visa program has "helped American colleges and universities attract some of the brightest young minds in the world, while offering those students the opportunity to study in the world's leading institutions of higher education".

Rep. Zoe LofgrenRep. Lofgren (at right) She continued that some schools have "misled students as to their accreditation", "lied about the ability of students to transfer credits to other institutions", and taken "enormous sums of money from the students but provided questionable academic courses and essentially worthless degrees".

She said that this bill "requires that colleges and universities be accredited in order to host foreign students. Such accreditation would need to be given by a regional or national accrediting agency recognized by the Secretary of Education."

The Senate has not passed this bill.

Rep. Johnson Introduces Bill to Require Disclosure of Voting Systems Software Source Code

8/1. Rep. Hank Johnson (D-GA) and others introduced HR 6246 [LOC | WW], the "Verifying Official Totals for Elections Act", or "VOTE Act", a bill to require states to give the source code for all voting system software used in federal elections to the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST).

This bill provides that "A voting system used in an election for Federal office in a State may not at any time during the election contain or use any election-dedicated voting system technology which is not deposited by the State (or, at the option of the State, by the vendor of the technology) with the National Software Reference Library of the National Institute of Standards and Technology prior to the date of the election". (Parentheses in original.)

The bill defines "election-dedicated voting system technology" to include "source code" and "file signatures".

The bill also enumerates the circumstances under which the NIST may disclose this software to others, such as in "a party to post-election litigation challenging the result of an election". The bill would require that certain persons with access to source code disclosed pursuant to this bill sign nondisclosure agreements.

Rep. Johnson stated in a release that "Computers can fail. And they’re never perfectly secure ... The VOTE Act goes a long way to protect the sanctity of the voting process, provides transparency and helps ensure accuracy in elections -- the fundamental underpinning of our democracy".

The bill was referred to the House Administration Committee and the House Science Committee.

The other original cosponsors of the bill are Rep. Rush Holt (D-NJ), Rep. Frederica Wilson (D-FL), Rep. Maurice Hinchey (D-NY), Rep. John Conyers (D-MI), Rep. James Clyburn (D-SC), Rep. Marcia Fudge (D-OH), Rep. Donna Edwards (D-MD), Rep. Roscoe Bartlett (R-MD), and Rep. Chris Van Hollen (D-MD).

Utah Auditor Describes Failings of Government Broadband Network

8/1. The state of Utah's Office of the Legislative Auditor General released a report [88 pages in PDF] titled "A Performance Audit of the Utah Telecommunication Open Infrastructure Agency". It criticizes Utah's government owned and run broadband internet access service (BIAS) named Utah Telecommunication Open Infrastructure Agency, or UTOPIA.

This agency competes with commercial BIAS providers. However, it is sold only on a wholesale basis.

This report states that this agency "planned to build a broadband network in three years and to achieve a positive cash flow in five years", but failed to do so, and is now covering operating costs with debt. It states that Utah issued $185 Million in bonds to finance the building of the network, but that "Most of the bond proceeds have been invested in poorly utilized and partially completed sections of network".

Moreover, this state run business has "poor construction planning", "mismanagement", and a "general lack of subscribers".

Assets Forfeited in Connection with Former Internet Based Money Transmitting Business

8/1. The Office of the U.S. Attorney for the Central District of California issued a release regarding the forfeiture of property. At issue is a total of about $24 Million in bank funds and gold, silver and platinum seized by the governments of the US and Australia. This all pertains to the former e-Bullion internet based business once run by James Fayed.

In short, the U.S. District Court (CDCal) and a court in Australia issued forfeiture judgments awarding the seized assets to the two government.

The whole matter has been overshadowed by the July 2008 murder of Pamela Fayed, wife and business associate of James Fayed, by hired killers. James Fayed is now incarcerated, and waiting execution of a death sentence, following his May 2011 conviction in California state court of the first degree murder.

The US federal government, and the government of Australia, have long been involved, in part, because they have viewed e-Bullion as an illegal internet based money transmitting business. See, 18 U.S.C. § 1960, regarding "Prohibition of unlicensed money transmitting business".

The USAO release does not allege fraud by e-Bullion or James Fayed. However, it alleges that people who engage in fraud used e-Bullion to secretly move funds out of the US. e-Bullion held itself out as a digital gold currency service. The USAO stated in its release that through the e-Bullion web site, "individuals opened accounts with real money, which they used to purchase virtual “e-currency” purportedly backed by precious metal reserves maintained by Fayed's companies in the United States and Australia. e-Bullion accountholders could then trade their e-currency with others on the website."

However, "In practice, e-Bullion allowed individuals engaging in fraud to obtain money from victims and move the money around the world while remaining virtually anonymous and avoiding many global banking reporting requirements." For example, an FBI and IRS investigation "revealed that operators of fraudulent “High-Yield Investment Programs” and other illegal investment schemes used e-Bullion to collect millions of dollars of e-currency from victims, much of which was wire transferred" overseas.

FTC Releases COPPA Further NPRM

8/1. The Federal Trade Commission (FTC) released a notice [43 pages in PDF], to be published in the Federal Register, that announces, describes, and recites proposed changes to its rules that implement the Children's Online Privacy Protection Act (COPPA). The deadline to submit written comments is September 10, 2012. See, full story.

People and Appointments

8/1. Art Baker, who has worked for the House Judiciary Committee's (HJC) Subcommittee on Crime for two years, will return to the Federal Bureau of Investigation's (FBI) Office of Congressional Affairs.

8/1. Greg Sopkin and Jim Albright joined the Denver office of the law firm of Wilkinson Barker Knauer. Both previously worked at Squire Sanders. Sopkin was Chairman of the Colorado Public Utilities Commission from 2003 to 2007. Albright focuses on energy law. See, WBK release.

8/1. President Obama announced his intent to nominate Christopher Meade to be General Counsel of the Department of the Treasury. See, White House news office release.

8/1. Joe Matel's last day as Senate Judiciary Committee (SJC) counsel to Sen. Jon Kyl (R-AZ) was August 1, 2012. He will join the U.S. Patent and Trademark Office's (USPTO) Office of the Solicitor. Matel worked on HR 1249 [LOC | WW], the "Leahy-Smith America Invents Act", which was signed into law in September of 2011.

More News

8/1. The House approved HR 6063 [LOC | WW], the "Child Protection Act of 2012", by voice vote on August 1, 2012. This bill is the rump of the data retention bill that Rep. Lamar Smith (R-TX) 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). See, stories titled "Rep. Smith Introduces Rump of Data Retention Bill", "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 also, Rep. Smith's July 31 statement.

8/1. The National Telecommunications and Information Administration (NTIA) published a short piece titled "A Homework Assignment for Privacy Stakeholders", by John Verdi, the NTIA's Director of Privacy Initiatives. It pertains to developing a set of principles for the handling of consumers' data by mobile applications. It states that there will be more meetings on August 22, 2012 and August 29, 2012.

8/1. The Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), and others created an online discussion group for participants in the National Telecommunications and Information Administration (NTIA) effort to develop a set of principles for the handling of consumers' data by mobile applications. See also, CDT release.

8/1. Comcast announced in a release that it is "taking additional steps to secure our network against abuse or attacks that leverage our customer's network devices without their knowledge", including certain DDOS attacks. Comcast explained that "The first step we are taking is to prevent distributed denial of service (DDoS) attacks that utilize Simple Network Management Protocol (SNMP) reflected amplification technique. ... we will gradually change our default residential Internet device bootfile to restrict SNMP by default."

Go to News from July 26-31, 2012.