TLJ News from September 16-20, 2012

Congressional Anti Piracy Watch List Names China, Russia, Italy, Switzerland, and Ukraine.

9/20. The Congressional International Anti-Piracy Caucus (CIAPC) released a report titled "International Anti-Piracy Caucus Country Watch List".

This report states that it "calls attention in 2012 to copyright piracy problems in China, Russia, Italy, Switzerland, and Ukraine. The lack of enforcement of intellectual property rights in these countries causes grave harm to American creators and to our economy as a whole."

It continues that "China, Russia, and Ukraine were highlighted in 2011 by the Caucus and continue to lag in efforts to combat piracy. Italy and Switzerland make their first appearance on the watch list, though insufficient protections for copyright are a longstanding problem in both nations."

This report adds that "We also note tentative progress in two nations that have been highlighted in past watch lists -- Canada and Spain. Both Canada and Spain have taken positive steps towards putting in place a stronger legal framework for the protection of copyright, and as such we have included them thisyear as countries in transition to acknowledge the progress made, while urging both to follow through strongly on their commitments."

This report announces progress in removing advertising from web sites dedicated to infringing activities. It states that the 2011 report "highlighted the important role of private sector players in reducing copyright infringement, particularly in the online advertising sector. The Caucus called on all actors in the online advertising ecosystem, including advertisers, advertising agencies, and online ad networks to develop mechanisms to prevent online pirates from profiting from their theft. We are pleased that in June 2012 the Association of National Advertisers and the American Association of Advertising Agencies, in consultation with the Interactive Advertising Bureau, released a statement of ``best practices.´´ These principles call on members to each commit to take affirmative steps to avoid placement of their ads on sites dedicated to infringement of intellectual property rights."

The Chairmen of the CIAPC are Rep. Adam Schiff (D-CA), Rep. Bob Goodlatte (R-VA), Sen. Sheldon Whitehouse (D-RI) and Sen. Orrin Hatch (R-UT). Sen. Hatch issued a release, and Rep. Schiff issued a substantially identical release.

Rep. Schiff stated that the purpose of this Watch List is "to alert those pirates and the countries helping them that we are paying attention and we expect our trading partners to protect the intellectual property rights of creators".

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "The total value of pirated software reached more than $63.4 billion worldwide last year, and the countries on this year’s watch list represent nearly a quarter of that amount."

Tom Allen, head of the Association of American Publishers (AAP), praised the report in a release. He stated that "Every sector of the US publishing industry is affected by physical and digital piracy, with Canada and China among our greater concerns. It is imperative that those who learn, enjoy and value US published works recognize that threats to intellectual property rights will divert publishers’ investments in content and innovation." This release adds that Canada "poses significant problems for the publishing industry. While the country’s recently-enacted Copyright Modernization Act brings it closer to prevailing international copyright norms, the Act includes a number of new exceptions that raise questions about compliance with those norms. While the industry also saw some positive developments in China, there remains concern that commercial entities there persist in the unauthorized distribution of US-published scientific, technical and medical journal articles."

See also, RIAA release praising this report.

House Rejects STEM Visas Bill in Suspension Vote

9/20. The House rejected HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012" by a vote of 237-180. Republicans vote 227-5. Democrats voted 30-153. See, Roll Call No. 590.

The House considered this bill under suspension of the rules, which meant that a two thirds majority was required for passage. This bill won a simple majority, but not a two thirds majority, and hence, failed to pass.

This bill would create a new program that would provide up to 55,000 visas per year to aliens with Ph.D.s, and then Masters degrees, in math, science engineering or technology (STEM). It would also eliminate a comparably sized diversity lottery visa program. See, stories titled "House to Consider STEM Visa Bill" and "Rep. Lofgren Introduces Alternative STEM Visa Bill" in TLJ Daily E-Mail Alert No. 2,448, September 14, 2012, and "STEM Visa Bills Update" in TLJ Daily E-Mail Alert No. 2,451, September 19, 2012.

While this vote may suggest that Republicans support creating a STEM visas program, while Democrats tend to oppose this, there were also other issues and political strategies that affected members' votes.

See, full story.

Senate Judiciary Committee Approves Baer Nomination

9/20.The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination of William Baer to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division by a vote of 12-5, without debate.

All of the Democrats and Sen. John Cornyn (R-TX) and Sen. Mike Lee (R-UT) voted yes. Sen. Charles Grassley (R-IA), Sen. Orrin Hatch (R-UT), Sen. Jon Kyl (R-AZ), Sen. Lindsey Graham (R-SC), and Sen. Tom Coburn (R-OK) voted no. Sen. Jeff Sessions (R-AL) voted pass.

The SJC held a hearing on this nomination on July 19, 2012. See, SJC web page with hyperlink to video.

Senate Judiciary Committee Approves Patent Law Treaties Implementation Act

9/20.The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved S 3486 [LOC | WW], the "Patent Law Treaties Implementation Act" by voice vote, without debate. The SJC approved an amendment in the nature of a substitute [26 pages in PDF] offered by Sen. Patrick Leahy (D-VT).

Rep. Lamar Smith (R-TX) and others introduced a related bill in the House on September 19, 2012. See, HR 6432 [LOC | WW]. The original cosponsors are Rep. John Conyers (D-MI), Rep. Bob Goodlatte (R-VA), and Rep. Mel Watt (D-NC). That is, the bill is backed by the Chairmen and ranking Democrats on the House Judiciary Committee (HJC) and its Subcommittee on Intellectual Property, Competition, and the Internet.

This bill would implement two patent law treaties, the "Hague Agreement Concerning International Registration of Industrial Designs", concluded in 1999, and the "Patent Law Treaty", concluded in 2000. The Senate did not ratify these treaties until 2007.

Sen. Leahy and Sen. Charles Grassley (R-IA) introduced S 3486 on August 2, 2012. For an explanation of the bill, see Sen. Leahy's statement in the Congressional Record, August 2, 2012, at Page S5980.

Senate Judiciary Committee Approves Innovative Design Protection Act

9/20.The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved S 3523 [LOC | WW], the "Innovative Design Protection Act of 2012" by voice vote. However, four Senators voted no.

Sen. Charles Schumer (D-NY) introduced S 3523 on September 10, 2012. This is a reintroduction of a related bill from the 111th Congress, S 3728 [LOC | WW], the "Innovative Design Protection and Piracy Protection Act". Sen. Schumer introduced that bill on August 5, 2010. The SJC amended and approved it on December 1, 2010, during the lame duck session. See, story titled "Senate Judiciary Committee Approves Bill to Give Copyright Protection to Fashion Designs" in TLJ Daily E-Mail Alert No. 2,166, December 2, 2010. However, the full Senate did not pass it.

Sen. Schumer conceded at the September 20 meeting that "we have been through this bill a few times before".

This bill would amend 17 U.S.C. § 1301. This section, which was added to the Copyright Act in 1998 by the Digital Millennium Copyright Act (DMCA), currently protects water vessel hull designs. This bill would add fashion apparel designs items. However, the term of protection would be only three years.

Sen. Mike Lee (R-UT), who opposes this bill, stated that "I am concerned that the bill might upset the vibrant competition characteristic in the fashion industry" and might be abused by large companies. He offered an amendment that would have directed the court to "award to the prevailing party all reasonable attorneys' fees". It failed.

The SJC approved this bill by voice vote. However, Sen. Jon Kyl (R-AZ), Sen. Tom Coburn (R-OK), Sen. John Cornyn (R-TX), and Sen. Lee asked to be recorded as voting no.

The Senate adjourned on September 22 without passing this bill.

Rep. Bob Goodlatte (R-VA) introduced a related bill in the House, HR 2511 [LOC | WW, the "Innovative Design Protection and Piracy Prevention Act", on July 13, 2011. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet, which Rep. Goodlatte chairs, held a hearing on this bill on July 15, 2011. See, HJC web page with hyperlinks to prepared testimony and video.

Obama Nominates Tony West to be Associate Attorney General

Tony West9/20. President Obama nominated Tony West (at right) to be the Associate Attorney General. See, White House news office release and release.

The Associate AG is the third ranked position at the Department of Justice (DOJ), after the AG (Eric Holder) and the Deputy AG (James Cole). The Associate AG oversees the key civil components of the DOJ, including the Antitrust Division, Civil Division, and Civil Rights Division.

Currently, West is the nominal Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Division, and the acting Associate Attorney General. West was nominated and confirmed for the position of Assistant AG for the Civil Division in 2009. In March of this year he was named acting Associate AG when Tom Perrelli left the DOJ. And, Stuart Delery was named acting Assistant AG for the Civil Division. Both West and Delery are still hold these positions in an acting capacity.

It might also be noted that the Antitrust Division has not had a confirmed Assistant AG since Christine Varney left over a year ago. The acting Assistant AG was first Sharis Pozen. It is now Joseph Wayland. The Senate Judiciary Committee (SJC) approved the nomination of William Baer on September 20, 2012.  However, the Senate adjourned on September 22 without confirming him.

AG Eric Holder and other senior DOJ officials have given Senate Republicans much cause to block DOJ nominees. For example, they have denied or ignored many requests from House committees, and Republican members of Senate committeesn for documents and information. Moreover, there are not enough votes to overcome filibusters. Hence, the nominations of West and others may languish for some time.

See also, story titled "Tony West Named Acting Associate Attorney General" in TLJ Daily E-Mail Alert No. 2,348, March 7, 2012.

People and Appointments

9/20. President Obama nominated Ketanji Jackson to be a Judge of the U.S. District Court for the District of Columbia. See, White House news office release and release. She is Vice Chair and Commissioner of the U.S. Sentencing Commission. She previously worked for the law firm of Morrison & Foerster.

9/20. President Obama nominated Nelson Román to be a Judge of the U.S. District Court for the Southern District of New York. See, White House news office release and release. He has been a judge since 1998. He is currently an Associate Justice of the First Appellate Division of the New York State Supreme Court. Before that, he was a Justice of the New York Supreme Court in Bronx County. Before that, he was a judge on the New York City Civil Court.

More News

9/20. The Information Technology and Innovation Foundation (ITIF) released a report titled "Eroding Our Foundation: Sequestration, R&D, Innovation and U.S. Economic Growth". The authors are the ITIF's Justin Hicks and Robert Atkinson. This report states that "Because of the Budget Control Act, budget enforcement procedures known as sequestration will commence January 2013 unless Congress and the Obama Administration act otherwise. The sequester requires cuts in discretionary spending in order to achieve $1.2 trillion in savings from 2013-2021. When compared to 2011 spending levels, this will lead to a cut of 8.8 percent (or $12.5 billion) of federally funded research and development (R&D) in 2013 with similar cuts in the following years." (Parentheses in original. Footnote omitted.) This paper argues that the result will be lower GDP and fewer jobs.

9/20. The Department of Homeland Security's (DHS) Privacy Office released a report [90 pages in PDF] titled "2012 Annual Report to Congress".

9/20. The U.S. District Court (NDCal) sentenced AU Optronics Corporation to pay a fine of $500 Million, in connection with its participation in a price fixing conspiracy by manufacturers of thin film transistor liquid crystal displays (TFT-LCD). In addition, Hsuan Bin Chen and Hui Hsiung were sentenced to serve three years in prison and to pay $200,000 fines. The Department of Justice's (DOJ) Antitrust Division (AD) had sought a fine of $1 Billion for AU Optronics and longer prison terms for the former executives. See, story titled "DOJ Seeks Billion Dollar Fine and 10 Year Prison Sentences in LCD Price Fixing Case" in TLJ Daily E-Mail Alert No. 2,447, September 13, 2012.

9/20. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition, and the Internet held a hearing titled "International IP Enforcement: Opening Markets Abroad and Protecting Innovation". Victoria Espinel (U.S. Intellectual Property Enforcement Coordinator) was the witness. See, her prepared testimony. She addressed the drafting of the next version of the "Joint Strategic Plan"; cooperation between US and foreign law enforcement agencies; US personnel in foreign countries; the Special 301 process, watch lists, and notorious markets reports; the negotiation of the Trans Pacific Partnership Agreement (TPPA); the use of U.S. personnel stationed overseas; US efforts to obtain better IP enforcement in the People's Republic of China; and the "threat posed to U.S. innovation from economic espionage and trade secret theft by persons on behalf of Chinese companies".

Sen. Rockefeller Sends Interrogatories to 500 CEOs

9/19. Sen. John Rockefeller (D-WV) sent a letter [PDF] to the Chief Executive Officers (CEOs) of every one of the Fortune 500 companies regarding S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012" or "CSA". He is a cosponsor.

Sen. John RockefellerThe Senate Democratic leadership released the latest version of this bill just before bringing it to the Senate floor for a vote, without committee hearings, committee mark ups, or opportunity for debate and amendment in the full Senate.

Sen. Rockefeller (at right) stated that he "was profoundly disappointed" that the Senate did not pass this bill. This letter contains numerous written interrogatories, which Sen. Rockefeller wants answered by 500 CEOs.

He explains that he sends these letters because "business lobbying groups and trade associations, most notably the United States Chamber of Commerce" opposed the bill.

It is unusual for a Committee Chairman to write such a letter to such a large number of people. Committees sometimes write letters soliciting information from companies, groups or individuals, but these are limited in number, and narrowly targeted. For example, Committees often send letters to people or entities when the Committee is investigating potential wrongdoing by persons or entities regulated by an executive branch agency over which the Committee exercises oversight jurisdiction. But, that is not the case here.

Moreover, Sen. Rockefeller sent most of these letters to companies that provide no equipment, software, or services related to the internet or information technologies. Most of these letters went to companies that do not provide any critical infrastructure that would be targeted in cyber attacks.

Indeed, Sen. Rockefeller sent letters to companies that make and/or sell candy, soft drinks, women's make up, children's toys, shoes, movies, junk food, coffee, gambling services and other things that are not on the cyber target lists of America's enemies.

In addition, the some of the questions are polemic, and inaccurately describe the contents of this bill. For example, the bill would authorize the government to impose mandates. However, one question presumes that the bill would merely create a "voluntary program".

The letter states that it asks for recipients' "views on cybersecurity". However, the letter asks no questions about other competing bills in the House and Senate. There are also no questions about developing cyber warfare capability, the defense authorization bill, or the defense appropriations bill.

These 500 letters may constitute an angry retaliatory harangue by a frustrated legislator.

Senate Foreign Relations Committee Approves Internet Governance Resolution

9/19. The Senate Foreign Relations Committee (SFRC) held an executive business meeting at which it approved SConRes 50, a resolution "Expressing the sense of Congress regarding actions to preserve and advance the multistakeholder governance model under which the Internet has thrived".

Federal Communications Commission (FCC) Chairman Julius Genachowski praised the SFRC in a release "for strongly reaffirming America’s support for Internet freedom and the multi-stakeholder model of Internet governance by passing this resolution. 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 human history. I fully support today’s vote, which makes clear that the World Conference on International Telecommunications must embrace the success of the last two decades of liberalization in telecom regulation as well as the existing multi-stakeholder model in order to ensure continued investment and growth of the Internet around the globe."

The House approved HConRes 127 on August 2, 2012. 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.

See also, story titled "Internet Technical Standards Bodies Oppose Internet Regulation" in TLJ Daily E-Mail Alert No. 2,439, September 3, 2012.

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

NAB's Smith Advocates Activation of Radio Chips in Smart Phones

9/19. Gordon Smith, head of the National Association of Broadcasters (NAB), gave a speech in Dallas, Texas at the 2012 Radio Show in which he discussed radios in smart phones.

He discussed the role of local broadcasters in providing warnings and information about natural disasters, such as .Hurricane Katrina.

He said, "what better way to inform people of pending danger than through built in radio in their mobile phones? When phone service and the Internet go down because of capacity constraints -- as we saw during Hurricane Katrina -- radio stays on".

He stated that "the wireless carriers are trying to do their part. They have implemented a text message-based wireless emergency alert system to inform people during times of crisis. But its ability is limited. Let's take a look at an example of a wireless emergency alert message. They only have 90 characters to share critical information with the public, and as you can see, they are wise to direct their customers to turn to local media for the full story."

"We are natural partners, and we must work together. Radio can supplement these emergency alert efforts, since our medium doesn't have these type of limitations."

He continued that "all of the top 10 best-selling smartphones in the U.S. were already equipped with radio chips. But, unfortunately, none of them had the chip activated. Now some might see this as terrible news. But I'm an optimist. I think this information simply proves what an easy lift it would be for the wireless carriers to activate this service for the safety and convenience of their customers. These phones represent more than 70 percent of the smartphones sold during the first quarter of this year -- that's 17 million units. Activating these radio chips presents huge opportunities for listeners, wireless companies and broadcasters alike."

Smith also said that "radio's future lies in being incorporated into every new device".

See also, other TLJ stories on radio in mobile devices:

STEM Visa Bills

9/19. The House is scheduled to consider HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012", under suspension of the rules, on Thursday, September 21, 2012. The House is moving very rapidly. Rep. Lamar Smith (R-TX) released a draft of this bill on September 14, and introduced it on September 18.

Rep. Smith stated in a release on September 18 that his bill would make the "immigration system smarter by eliminating the diversity visa program and reallocating up to 55,000 new green cards to the best foreign graduates with advanced degrees in STEM fields. This legislation will help us create jobs, increase our competitiveness, and spur our innovation

Rep. Zoe Lofgren (D-CA) is the sponsor of a competing STEM visa bill, HR 6412 [LOC | WW | PDF], the "Attracting the Best and Brightest Act of 2012". She introduced her bill on September 14. She sent a letter on September 19 to members of the House expressing her opposition to HR 6429, and her intent to vote against it.

See, stories titled "House to Consider STEM Visa Bill" and "Rep. Lofgren Introduces Alternative STEM Visa Bill" in TLJ Daily E-Mail Alert No. 2,448, September 14, 2012.

Rep. Smith's bill is cosponsored by 44 Republicans and one Democrat. Rep. Logren's bill is cosponsored by Democrats.

Both Rep. Smith's and Rep. Lofgren's bill would create similar visa programs for aliens with advanced degrees from U.S. universities in science, technology, engineering, or mathematics (STEM). Much of Rep. Lofgren's opposition to Rep. Smith's bill arises out of its non-STEM visa related provisions.

For example, she complained that it would "eliminate the Diversity Visa program -- a legal immigration program that makes visas available to immigrants from countries that have low rates of immigration to the United States. I oppose being forced to eliminate one immigration program to support another."

Rep. Zoe LofgrenRep. Lofgren (at right) also wrote that Rep. Smith's bill is "designed to reduce legal immigration to the United States. Under current law, unused visas in one immigration category are made available to immigrants in other categories ... But the Republican bill does not allow for such rollover ..."

She also argued that the STEM visa provisions in the two bills are different. She wrote that Rep. Smith's bill "allows for-profit and on-line schools to participate. ... I cannot support a bill that will allow such schools to essentially sell visas to young foreigners overseas."

Actually, for profit universities account for a small percentage of post secondary degrees. Moreover, the relevant language in Rep. Smith's bill is this: "courses in a field of science, technology, engineering, or mathematics, including all courses taken by correspondence (including courses offered by telecommunications) or by distance education, while physically present in the United States." (Parentheses in original.) The reference to selling visas to "foreigners overseas" is inconsistent with the bill's "physically present in the United States" requirement.

Perhaps Rep. Lofgren's primary concern may be the huge University of Phoenix (UP), a for profit university based in Arizona with campuses and other facilities located around the U.S. The UP relies extensively on online courses. However, a review of its web site shows that it offers only one doctoral program that might qualify as STEM under Rep. Smith's bill -- a program titled "Doctor of Management in Organizational Leadership/Information Systems and Technology".

It might be noted that Howard Schmidt, who was President Obama's Cyber Security Coordinator until May of this year, and was previously Microsoft's Chief Security Officer, holds an undergraduate and masters degree from the UP.

DOJ's Breuer Advocates for Government Surveillance Powers

9/19. Lanny Breuer, Assistant Attorney General in charge of the Department of Justice's (DOJ) Criminal Division, gave a speech at Fordham University law school in which criticized efforts to reform the Electronic Communications Privacy Act (ECPA), and advocated more data retention by internet service providers.

He began by discussing the problem of cyber crime, which he called "perhaps the most comprehensive threat of all to our safety and security". He reviewed two recent cyber crime cases -- the Mijangos "sextortion" case (see, FBI's September 1, 2011 release) and the Coreflood botnet case (see, April 11, 2011 DOJ release). He then criticized ECPA reform proposals, and advocated more data retention, in order to further law enforcement efforts to investigate and prosecute cyber crimes.

Lanny BreuerBreuer (at right) said that "to investigate and prosecute cybercrime cases effectively, law enforcement needs access to electronic information, and we often need to obtain this information from Internet Service Providers, or ISPs, and other communications providers. As these companies connect phone calls, deliver email and maintain social networking pages, they accumulate records about who is saying what, when and to whom, and these records constitute key sources of evidence in our cases -- and not just in our cybercrime cases. Gang members, insider traders, drug traffickers and purveyors of child pornography, for example, often leave electronic trails of their crimes."

ECPA Reform. He said that the ECPA "establishes a framework for law enforcement access to stored electronic communications data."

He continued that the ECPA "attempts to strike the right balance between privacy and public safety. Whether it does so is the subject of ongoing debate in Congress and across the country. We can all relate to the desire that our online information remain private. At the same time, law enforcement often depends upon this information to catch cybercriminals and other dangerous offenders."

"Some have suggested that ECPA should be amended to require law enforcement officers to obtain a search warrant based on probable cause for most types of electronic evidence. But, making it more difficult to obtain electronic evidence would hamper, in significant ways, our ability to build cases."

He did not mention by name the Digital Due Process (DDP) coalition, list its proposals, or cite the pending bills that would enact into law some of its proposals. Nevertheless, his speech was likely directed at these proposals.

See, related story in this issue titled "Rep. Nadler Introduces ECPA Reform Bill".

On March 30, 2010, a coalition of companies and groups named 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.

Two of these are proposals would require warrants. First, "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." Second, "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."

The third DPP recommendation is that "Before obtaining transactional data in real time about when and with whom an individual communicates using email, instant messaging, text messaging, the telephone or any other communications technology, the government should demonstrate to a court that such data is relevant to an authorized criminal investigation."

The fourth is that "Before obtaining transactional data about multiple unidentified users of communications or other online services when trying to track down a suspect, the government should first demonstrate to a court that the data is needed for its criminal investigation."

The membership of the DDP includes Adobe, Amazon, eBay, Google, IBM, Intel, HP, LinkedIn, Microsoft,, and other companies. It also includes AT&T, Century Link and some other wireless service providers as members. It also includes most of the major technology groups, including the Association for Competitive Technology (ACT), Business Software Association (BSA), Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), Information Technology and Innovation Foundation (ITIF), Software and Information Industry Association (SIIA), Tech America, Tech Freedom, Telecommunications Industry Association (TIA), and other information and communications technology groups. The membership also includes the ACLU and other groups.

See also, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

Data Retention. Breuer said that "ISPs delete the data too quickly".

He elaborated that "Agents usually do not start out an investigation by intercepting the email of a suspect in real time, searching his house or listening to her phone conversations, because we typically lack probable cause for a search warrant or a wiretap at the investigation’s outset. We must use other, less-intrusive techniques, such as subpoenas and court orders, to collect the information we need to develop our case. For example, we often seek access to less sensitive records -- such as an ISP's billing records -- as building blocks to establish probable cause."

But, he said, "too often, we find that ISPs and other communications providers have deleted critical online data". He said that this "lack of data retention by ISPs and other providers is a serious problem and one that many within and outside the Department of Justice have recognized."

However, he did not specifically endorse either the House or Senate data retention bills.

There was a major effort to pass a data retention bill just over one year ago. Rep. Lamar Smith (R-TX) introduced HR 1981 [LOC | WW], on May 25, 2011. It would have amended 18 U.S.C. § 2703, a section of the Stored Communications Act (SCA), which is part of the ECPA, to add broad additional data retention mandates for any "electronic communications service" (ECS) or "remote computing service" (RCS) provider. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism and Homeland Security held a hearing on HR 1981 on July 12, 2011. See, story titled "House Crime Subcommittee Holds Hearing on Data Retention Mandate Bill" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011. For a summary of the bill as introduced, see story titled "Summary of HR 1981, Data Retention Mandate Bill" in the same issue.

On July 26 the HJC released a manager's amendment (MA). For a summary of this MA, see story titled "Summary of Manager's Amendment to Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,271, July 27, 2011.

The HJC began its mark up the bill on July 27. See, story titled "House Judiciary Committee Begins Mark Up of Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,272, July 28, 2011. The HJC completed its mark up on July 28. See, seven stories in TLJ Daily E-Mail Alert No. 2,278, August 3, 2011.

However, the House did not pass the bill. And, the Senate has not passed a data retention  bill. However, just before the August recess this year, the HJC and full House passed HR 6063 [LOC | WW], which is the remnants of HR 1981, but without its data retention language. See, story titled "Rep. Smith Introduces Rump of Data Retention Bill" TLJ Daily E-Mail Alert No. 2,405, July 9, 2012.

Obama Again Nominates Halligan for DC Circuit

9/19. President Obama again nominated Caitlin Halligan to be a Judge of the U.S. Court of Appeals for the District of Columbia. See, White House news office release.

This President has been trying unsuccessfully for years to put Halligan on the DC Circuit, which hears many petitions for review and appeals of final orders of the Federal Communications Commission (FCC). Senate Democrats failed to end a filibuster in a December 6, 2011 cloture vote. See, Roll Call No. 222.

See also, stories titled "Obama Nominates Caitlin Halligan for DC Circuit" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010, and "Senate Judiciary Committee Approves Halligan" in TLJ Daily E-Mail Alert No. 2,203, March 11, 2011.

She is General Counsel for the New York County District Attorney's Office. Previously, she worked at the law firm of Weil Gotshal & Manges for several years. Before that, she was Solicitor General of New York State. Before that, she held several positions in the Office of the New York State Attorney General, including Chief of the Internet Bureau. She was also briefly worked for the Washington DC law firm of Wiley Rein.

She has not been confirmed by the Senate, and is not likely to be confirmed by the Senate, for many reasons. Principle among these are that she is not Peter Keisler, and that she has advocated imposing liability upon gun manufacturers for acts committed with guns. The first has earned her the opposition of many Senate Republicans. The second has earned her the opposition of 2nd Amendment enthusiasts, which includes both Republicans and Democrats from many western and rural states.

From the perspective of some Senate Republicans, such as Sen. Charles Grassley (R-IA), ranking Republican on the Senate Judiciary Committee (SJC), Obama has nominated Halligan for the seat that former President Bush nominated Keisler in 2006. Senate Democrats blocked consideration of Keisler for two and one half years, keeping the seat open, to be filled by a Democratic President. In 2006 Keisler was the Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Division. He is now a partner in the Washington DC office of the law firm of Sidley Austin.

The Senate effectively stopped confirming Court of Appeals judges until after the elections, when it recessed in August. See, story titled "Confirmations and Presidential Elections" in TLJ Daily E-Mail Alert No. 2,417, August 1, 2012. However, if President Obama wins in November, and renominates Halligan in the 113th Congress, she would likely face ongoing opposition.

See also, Halligan's responses [54 pages in PDF] to the SJC's questionnaire.

People and Appointments

9/19. President Obama nominated Jennifer Dorsey to be a Judge of the U.S. District Court for the District of Nevada. See, White House news office release.

9/19. President Obama nominated Andrew Gordon to be a Judge of the U.S. District Court for the District of Nevada. See, White House news office release.

9/19. President Obama nominated Michael McShane to be a Judge of the U.S. District Court for the District of Oregon. See, White House news office release.

9/19. John Legere was named CEO of T-Mobile USA. He replaces Jim Alling, who was acting CEO, and will return to his position as COO. See, release.

More News

9/19. The Government Accountability Office (GAO) released a report [33 pages in PDF] titled "Next Generation Enterprise Network: Navy Implementing Revised Approach, but Improvement Needed in Mitigating Risks".

9/19. Joseph Wayland, acting Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division gave a speech in Washington DC titled "Litigation in the Antitrust Division".

GAO Reports on Cyber Threats to Mobile Devices

9/18. The Government Accountability Office (GAO) released a report [54 pages in PDF] titled "Information Security: Better Implementation of Controls for Mobile Devices Should Be Encouraged". This report, written for the House Commerce Committee (HCC), states that "Threats to the security of mobile devices and the information they store and process have been increasing significantly."

"Many of these threats are similar to those that have long plagued traditional computing devices connected to the Internet. For example, cyber criminals and hackers have a variety of attack methods readily available to them, including using software tools to intercept data as they are transmitted to and from a mobile device, inserting malicious software code into the operating systems of mobile devices by including it in seemingly harmless software applications, and using e-mail phishing techniques to gain access to mobile-device users’ sensitive information."

The report continues that "The significance of these threats, which are growing in number and kind, is magnified by the vulnerabilities associated with mobile devices. Common vulnerabilities in mobile devices include a failure to enable password protection, the lack of the capability to intercept malware, and operating systems that are not kept up to date with the latest security patches."

It also states that "Mobile devices face a range of cybersecurity threats. These threats can be unintentional or intentional. Unintentional threats can be caused by software upgrades or defective equipment that inadvertently disrupt systems. Intentional threats include both targeted and untargeted attacks from a variety of sources, including botnet operators, cyber criminals, hackers, foreign nations engaged in espionage, and terrorists. These threat sources vary in terms of the capabilities of the actors, their willingness to act, and their motives, which can include monetary gain or political advantage, among others. For example, cyber criminals are using various attack methods to access sensitive information stored and transmitted by mobile devices."

Knowledge Ecology Complains About Web Site Blocking at USPTO

9/18. Jamie Love, head of the Knowledge Ecology International (KEI), wrote a short piece in the KEI web site in which he complained that the U.S. Patent and Trademark Office's (USPTO) WiFi network "blocks access to a number of groups that have followed SOPA and the TPP intellectual property negotiations, particularly those critical of the USPTO positions on intellectual property issues."

He added that "Among the NGOs that were blocked were,,,,, and Among the sites NOT BLOCKED were the industry lobby groups BSA, MPPA, RIIA, and PhRMA."

He stated that on a visit to the USPTO he attempted to use its WiFi network to access the KEI web site, but received an error message that stated, "Access Denied (content_filter_denied)" and "Your request was denied because this URL contains content that is categorized as: ``Political/Activist Groups´´ which is blocked by USPTO policy. If you believe the categorization is inaccurate, please contact the USPTO Service Desk and request a manual review of the URL." (Parentheses in original.)

The USPTO sent this statement in response to an inquiry from TLJ: "The USPTO does not have a policy of blocking political advocacy sites. We learned recently that the third-party vendor that provides security for our wi-fi network used by the public at our Alexandria headquarters had applied an overly broad filter. That vendor is also the party that selected the specific sites that would be included in its filtering system. When we learned that political advocacy groups and news sites were being blocked, we immediately instructed that vendor to remove the filter. There has never been any such filter on the Internet access for USPTO employees or contractors."

Groups Give AT&T Notice of Intent to File Complaint with FCC

9/18. The Public Knowledge (PK), Free Press (FP) and New America Foundation (NAF) sent a letter to AT&T stating that they intend to file a complaint with the Federal Communications Commission (FCC) against AT&T that alleges violation of the FCC's rules, adopted in December of 2010, that regulate broadband internet access service (BIAS) providers. See also, PK release.

These rules, which are codified at 47 C.F.R. § 8, are also sometimes referred to as network neutrality rules, or open internet rules. These rules may also be vacated by the U.S. Court of Appeals (DCCir). See, story titled "FCC Files Brief with DC Circuit in Challenge to BIAS Rules" in TLJ Daily E-Mail Alert No. 2,445, September 11, 2012.

The FCC's BIAS rules, at Section 8.5, provide that "Any person may file a formal complaint alleging a violation of the rules in this part." This section also provides that "Any person intending to file a complaint under this section must first notify the potential defendant in writing that it intends to file a complaint with the Commission based on actions alleged to violate one or more of the provisions contained in this part. The notice must be sufficiently detailed so that its recipient(s) can determine the specific nature of the potential complaint. The potential complainant must allow a minimum of ten (10) days for the potential defendant(s) to respond before filing a complaint with the Commission."

These three interest groups wrote that this complaint pertains to "AT&T Inc.'s decision to block certain users from accessing the FaceTime application over AT&T's mobile networks, in violation of 47 C.F.R. § 8.5(b), which prohibits mobile broadband Internet access service providers from blocking any application that competes with the provider’s voice or video telephony services."

The PK and FP made public these accusations last month. See, story titled "PK and FP Allege AT&T Wireless BIAS Offerings Violate FCC Net Neutrality Rules" in TLJ Daily E-Mail Alert No. 2,430, August 16, 2012. And, AT&T denied that it has violated FCC rules. See, story titled "AT&T Rebuts PK/FP Net Neutrality Allegations" in TLJ Daily E-Mail Alert No. 2,436, August 24, 2012.

DOJ's Leary Addresses Use of IT to Assist Crime Victims

9/18. Mary Lou Leary, acting Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Justice Programs (OJP), gave a speech in New Orleans, Louisiana in which she discussed the use of information technology (IT) to assist victims of crime.

She said that IT "can support victim assistance organizations in their record-keeping and reporting activities". IT "can also aid service providers in their work with victims, whether it’s through online hotline services or through an Internet-based case management system".

Mary Lou LearyLeary (at right) also said that "Another very promising technology-based approach is telemedicine, which makes medical experts available remotely to walk local health care providers through medical exams." She also announced a $3.3 Million grant to create a National Sexual Assault Forensic Exam Telemedicine Center. See also, DOJ release.

She said that this project, to  be run by the Massachusetts Department of Public Health, "will provide expert medical forensic examiners to work with providers at four pilot sites to provide consultation on sexual assault forensic medical exams."

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9/18. The Federal Communications Commission (FCC) published a notice in the Federal Register (FR) that announces, describes, and sets the effective date for, its special access services order. This is the Report and Order [107 pages in PDF] that suspends the FCC's rules, which have been in effect for 13 years, that allow for automatic grants of pricing flexibility for special access services. The FCC adopted it on August 15 and released the text on August 22, 2012. It is FCC 12-92 in WC Docket No. 05-25. See also, story titled "Divided FCC Adopts Special Access Order" in TLJ Daily E-Mail Alert No. 2,435, August 23, 2012. Publication of this FR notice is a prerequisite for seeking judicial review of the order.

9/18. The Government Accountability Office (GAO) released a report [48 pages in PDF] titled "Information Technology: Census Bureau Needs to Implement Key Management Practices".

9/18. Yahoo announced in a release that "it has closed the initial sale of shares in Alibaba Group Holding Limited. At closing, Yahoo! received approximately $7.6 billion, $6.3 billion in cash and $800 million in preferred shares of Alibaba in exchange for half of Yahoo!'s 40 percent stake in Alibaba, as well as a payment of $550 million for a technology and intellectual property license agreement."

FCC Grants NCTA Petition for Forbearance to Allow Cable Companies to Acquire CLECs

9/17. The Federal Communications Commission (FCC) released an order [26 pages in PDF] that grants the National Cable & Telecommunications Association's (NCTA) petition for forbearance from the statutory ban on cable companies acquiring competitive local exchange carriers (CLECs) in the same markets.

The order concludes that "section 652(b) unambiguously prohibits a cable operator from acquiring any LEC providing telephone exchange service within the cable operator’s franchise area ...". However, the order also concludes that the "NCTA has demonstrated that the statutory criteria for forbearance are satisfied and justify granting, in part, its Petition for Forbearance. Specifically, we forbear from applying section 652(b) to acquisitions of competitive LECs."

See, full story.

US Files WTO Complaint Against PRC

9/17. The Office of the U.S. Trade Representative (OUSTR) filed a complaint (nominally a request for consultations) with the World Trade Organization (WTO) alleging that the People's Republic of China (PRC) is in violation of its WTO obligations in connection with its "measures providing subsidies such as grants, loans, forgone government revenue, the provision of goods and services and other incentives contingent upon export performance to automobile and automobile-parts enterprises in China". See, WTO web page for this proceeding.

The nature and timing of this complaint are not inconsistent with the hypothesis that this is a political campaign event intended to boost President Obama's re-election prospects.

USTR Ron Kirk stated in a release that "The Obama Administration is committed to protecting the rights of nearly 800,000 American workers in our $350 billion auto and auto parts manufacturing sector. We insist upon having a level playing field on which our world-class manufacturers can compete. Today we are continuing to make it clear to our trading partners that we will fight to support each job here at home that this sector supports".

He added that "Export subsidies are prohibited under WTO rules because they are unfair and severely distort international trade. China expressly agreed to eliminate all export subsidies when it joined the WTO in 2001. China benefits from international trade rules and must in turn live up to its international obligations."

Public Knowledge Files Amicus Brief in Fox v. DISH

9/17. The Public Knowledge (PK) filed an amicus curiae brief [28 pages in PDF] with the U.S. District Court (CDCal) in Fox v. DISH.

Fox, ABC, CBS, and NBC filed their complaint on May 24, 2012, alleging direct copyright infringement by the Dish Network. It states that the TV networks licensed Dish to retransmit primetime network programming, but that DISH "launched it own bootleg broadcast video-on-demand service called PrimeTime Anytime that is available to top-tier DISH subscribers who lease the Hopper set top box from DISH. Once enable, PrimeTime Anywhere makes an unauthorized copy of the entire primetime broadcast schedule for all four" networks. And, DISH operates this service "so that the copies it makes are viewable commercial free".

The PK wrote that "Fox may have sued DISH, but its real target is the wallet of the ordinary television viewer. It wants to take away the home recording rights that all viewers enjoy, so that it can sell back to them the ability to watch programs ``on demand.´´ It wants rights that go beyond what the Copyright Act gives it, attempting to assert control, not only over the commercial exploitation of its programs, but also over the manner in which consumers enjoy them in their homes."

The PK added that "To do this it puts forth several specious arguments. It attempts to erase the long-settled distinction between direct and secondary copyright infringement in an attempt to portray its anti-consumer lawsuit as a business dispute. It is no doubt inconvenient for Fox that, by accusing DISH of copyright infringement, it is accusing millions of ordinary viewers, whether or not they are DISH subscribers and whether or not they use DISH’s Hopper, of infringement as well."

The complaint also alleges secondary copyright infringement, breach of the retransmission consent agreement, and breach of the implied covenant of good faith.

This case is Fox Broadcasting Company, Inc., et al.  v. DISH Network LLC, et al., U.S. District Court for the Central District of California, D.C. No. CV12-04529-DMG (SHx).

People and Appointments

9/17. Richard Strasser was appointed interim Copyright Royalty Judge. He replaces Stanley Wisniewski, who retired on August 31, 2012. Strasser is a staff attorney for the Copyright Royalty Board (CRB).

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9/17.  The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register (FR) that requests comments regarding the complaint (request for consultations) filed with the World Trade Organization (WTO) by the People's Republic of China (PRC) against the US alleging that US investigations, determinations and orders regarding countervailing duties violate WTO obligations. The deadline to submit comments is November 2, 2012. See, FR, Vol. 77, No. 180, September 17, 2012, at Pages 57181-57182.

9/17.  Simon Lester of the Cato Institute commented on the latest round of Trans Pacific Partnership Agreement (TPPA) negotiations that took place on September 6-15, 2012 in Leesburg, Virginia. He wrote in one piece that the free trade parts are not controversial. Rather, "It is the United States’ quest for ever stronger intellectual property protections, as well as the special provisions that allow foreign companies to sue governments in international tribunals for vaguely defined due process-type concerns, that have people upset. All in all, it is easy to come away from the experience thinking, what are we doing here and what happened to free trade?" He wrote in another piece that "There's too much protectionism" in the TPPA.

9/17. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its final NIST SP 800-30, Revision 1 [95 pages in PDF] titled "Guide for Conducting Risk Assessments".

Go to News from September 11-15, 2012.