TLJ News from October 26-31, 2012

More News

10/31. The Federal Communications Commission (FCC) published a notice in the Federal Register (FR) that sets comment deadlines for its Further Notice of Proposed Rulemaking (NPRM) [146 pages in PDF] regarding its program access rules. The FCC adopted and released this item on October 5, 2012. It is FCC 12-123 in MB Docket No. 12-68. The deadline to submit initial comments is November 30, 2012. The deadline to submit reply comments is December 17, 2012. See, FR, Vol. 77, No. 211, October 31, 2012, at Pages 66052-66065. The FCC also published a notice in the FR that announces, describes, and sets the effective date for its Report and Order (R&O). The effective date is November 30, 2012. See, FR, Vol. 77, No. 211, October 31, 2012, at Pages 66025-66051. See also, stories titled "FCC Lets Expire Its Per Se Ban on Exclusive Program Distribution Contracts", "FCC Adopts Report and Order on Program Access Rules", "FCC Adopts NPRM on Case by Case Analysis of Exclusive Contracts", and "Reaction to FCC's Program Access Order" in TLJ Daily E-Mail Alert No. 2,460, October 6, 2012.

10/31. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-164 [33 pages in PDF] titled "Guidelines on Hardware-Rooted Security in Mobile Devices". The deadline to submit comments is December 14, 2012.

Supreme Court Hears Oral Argument on Standing to Challenge Outside the US Surveillance Authority

10/29. The Supreme Court heard oral argument in Clapper v. Amnesty International, Sup. Ct. No. 11-1025. At issue is whether the plaintiffs have standing to challenge the constitutionality of the "outside the United States" surveillance provision of the Foreign Intelligence Surveillance Act (FISA).

Introduction. Jameel Jaffer of the American Civil Liberties Union (ACLU) argued for Amnesty International (AI) and the other plaintiffs. Donald Verrilli, the Solicitor General, argued for the government surveillance agencies.

Verrilli said that the statute at issue provides "authority to the executive to conduct surveillance targeted at foreign persons located abroad for foreign intelligence purposes". However, the Justices focused on persons within the US, particularly attorneys representing clients abroad, who are also affected by this surveillance power.

Justice Elena Kagan said that the "statute greatly expands the government's surveillance power". Justice Anthony Kennedy said that it provides an "extraordinarily wide-reaching power".

However, while the complaint filed in the District Court challenges the constitutionality of the 2008 statute, the issue now before the Supreme Court is merely whether the plaintiffs have standing. Since the government has not notified the plaintiffs that that their phone conversations have been intercepted or emails copied, the government argues that they have not shown that they have suffered an injury that would confer standing to sue.

The question presented is "Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a authorized surveillance would likely redress their purported injuries."

See, full story.

Obama Signs Homeland Security Executive Order with Undefined Purpose

10/26. President Obama signed an executive order (EO) titled "Establishing the White House Homeland Security Partnership Council". The most notably characteristic of this EO is that it does not disclose what it is intended to accomplish.

This EO creates a "Council" and a "Steering Committee" related to "homeland security", but is otherwise carefully worded to obfuscate its purpose.

This order provides that at a later date the Steering Committee, which will be comprised solely of representatives of federal executive branch departments, will "the determine the scope of issue areas the Council will address".

President Obama has suggested that he might issue an executive order pertaining to cyber security that would attempt to impose the regulatory regime described in S 3414 [LOC | WW], the "Cybersecurity Act of 2012". That bill has stalled in the Senate, and been ignored by the House Republican leadership. See, story titled "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

See also, stories titled "House and Senate Republicans Write Obama Opposing Regulation of Internet by Executive Order" and "Sen. Grassley States Cyber Security Should Be Addressed by Legislation Rather Than Presidential Order" in TLJ Daily E-Mail Alert No. 2,461, October 15, 2012.

However, while this EO references "homeland security", it makes no reference to "cyber security", "internet", "computer systems", or related things.

This EO does reference a "National Security Strategy". The Executive Office of the President (EOP) released a document [60 pages in PDF] in May of 2010 with this title. Moreover, this EO contains a quotation taken from page 16 of that document. That 2010 document addresses many subjects, including cyber security.

This EO may be intended as an implementation of one aspect of that 2010 statement.

This EO may be an insignificant effort to present the mere appearance of greater administration activity.

This EO may be an effort to evade laws that are specific to individual executive departments, by transferring activity to an extra-departmental body. It might likewise be an effort to evade the committee based Congressional oversight system.

This EO may be part of an effort to attain policy objectives via executive order, and extra-departmental processes, that the administration has not been able to implement via legislation, for example, in the areas of cyber security or data retention, as well as in other homeland security policy areas that are not technology related.

This EO is also published in a notice in the Federal Register, Vol. 77, No. 213, November 2, 2012, at Pages 66351-66355.

Library of Congress Adopts 5th Triennial 1201 Exemptions

10/26. The Librarian of Congress released a notice in the Federal Register (FR) that adopts the fifth set of triennial rules containing exemptions to the anti-circumvention provisions 1201.

The Library of Congress's (LOC) Copyright Office (CO) released its report [169 pages in PDF] containing proposed rules on October 12, 2012. The final rule follows the proposals contained in this report.

The six exemptions that will be in effect for three years are as follows:

The CO and Librarian of Congress also rejected numerous proposed exemptions.

For example, the CO and Librarian rejected a proposed exemption for "Literary works in the public domain that are made available in digital copies" advocated by the Open Book Alliance (OBA). This would have impacted Google's book digitization program. Although, the opposition came from copyright sector groups that argued that such works also often contain ancillary copyrightable elements.

The Public Knowledge (PK), a constant critic of 1201, expressed its dismay that the CO and Librarian rejected its proposal for an exemption for circumvention of DVDs for space shifting.

These new rules take effect on October 28. The triennial rules are codified at 37 C.F.R. 201.40.

The current, and about to expire, rules provide six exemptions:

See, FR, Vol. 77, No. 208, October 26, 2012, at Pages 65260-65279.

Anti-Circumvention and Triennial Exemptions. The anti-circumvention provisions of the DMCA are codified at 17 U.S.C. 1201, et seq. Subsection 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title ...".

Then,  1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore,  1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; ..."

Then, Subsections 1201(a)(1)(B) through (E) provide for rulemaking proceedings conducted by the CO every three years to establish exemptions to the prohibition of (a)(1)(A) for certain non-infringing uses.

History of This Proceeding. On September 29, 2011, the CO published a Notice of Inquiry (NOI) that initiated this fifth triennial proceeding, and requested proposals for exemptions. See, notice in the Federal Register, Vol. 76, No. 189, September 29, 2011, at Pages 60398-60405. See also, story titled "Copyright Office Opens 5th Triennial Proceeding on DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 2,306, September 29, 2012.

On December 20, 2011, the CO published a Notice of Proposed Rulemaking (NPRM). See, notice in the Federal Register, Vol. 76, No. 244, December 20, 2011, at Pages 78866-78868. See also, stories titled "Copyright Office Seeks Comments on Proposed Anticircumvention Exemptions" and "Summary of Proposed Exemptions to Anticircumvention Provisions 1201" in TLJ Daily E-Mail Alert No. 2,329, January 16, 2012.

The CO then held a series of public hearings in Washington DC and Los Angeles, California, in May and June of 2012.

The CO released its recommendations for the Librarian of Congress on October 12.

The just released rules are the fifth set of triennial exemptions adopted since enactment of the DMCA in 1998. These rules take effect on October 28, 2012.

The Exemptions. The just released notice states that "Upon the recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures set forth in Section 1201(a)(1)(A):"

First: "Literary works, distributed electronically, that are protected by technological measures which either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) when a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels; or (ii) when such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121."

Second: "Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset."

Third: "Computer programs, in the form of firmware or software, that enable a wireless telephone handset originally acquired from the operator of a wireless telecommunications network or retailer no later than ninety days after the effective date of this exemption to connect to a different wireless telecommunications network, if the operator of the wireless communications network to which the handset is locked has failed to unlock it within a reasonable period of time following a request by the owner of the wireless telephone handset, and when circumvention is initiated by the owner, an individual consumer, who is also the owner of the copy of the computer program in such wireless telephone handset, solely in order to connect to a different wireless telecommunications network, and such access to the network is authorized by the operator of the network."

Fourth and fifth: a pair of lengthy and related exemptions for motion pictures on DVDs or distributed by online services, for purposes of criticism or comment in noncommercial videos, documentary films, nonfiction multimedia ebooks offering film analysis, and for certain educational uses by college and university faculty and students and kindergarten through twelfth grade educators.

Sixth: "Motion pictures and other audiovisual works on DVDs that are protected by the Content Scrambling System, or that are distributed by an online service and protected by technological measures that control access to such works, when circumvention is accomplished solely to access the playhead and/or related time code information embedded in copies of such works and solely for the purpose of conducting research and development for the purpose of creating players capable of rendering visual representations of the audible portions of such works and/or audible representations or descriptions of the visual portions of such works to enable an individual who is blind, visually impaired, deaf, or hard of hearing, and who has lawfully obtained a copy of such a work, to perceive the work; provided however, that the resulting player does not require circumvention of technological measures to operate."

More News

10/26. The Department of Homeland Security (DHS) announced in a release that the U.S. and Canada have a "Cybersecurity Action Plan". The DHS did not release the text of any plan. The DHS release states that this plan "outlines shared goals for improved engagement, collaboration, and information sharing at the operational and strategic levels, with the private sector, and in public awareness activities."

Go to News from October 21-25, 2012.