TLJ News from November 11-15, 2012

More News

11/15. Time Warner Cable (TWC) released a paper [56 pages in PDF] titled "Between Markets and Mandates: Approaches to Promoting Broadband Access for Persons with Disabilities". The author is Krishna Jayakar (Penn State University).

11/15. Time Warner Cable (TWC) released a paper [40 pages in PDF] titled "Market Structure and Media Diversity". The authors are Scott Savage, Donald Waldman and Scott Hiller (all of the University of Colorado at Boulder). This is a paper based upon statistical analysis that examines how market structure, and Federal Communications Commission (FCC) regulation of media ownership, affects the availability of local news and information. This paper finds that "the amount of diversity and localism declines following a decrease in the number of independent TV stations".

Obama Nominates Caproni to District Court

11/14. President Obama nominated Valerie Caproni to be a Judge of the U.S. District Court (SDNY). See, White House news office release and release.

Summary of this article:

Valerie CaproniIntroduction. Caproni (at right) was General Counsel of the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) from 2003 through 2011. She presided over the FBI's Office of General Counsel (OGC) while the FBI engaged in the illegal surveillance activities that the DOJ's Office of the Inspector General (OIG) disclosed in three reports released in 2007, 2008 and 2010.

The DOJ/OIG surveillance reports are as follows:

Caproni was responsible for the training of FBI special agents on use of the statutes authorizing surveillance, and overseeing legal compliance with the law. For years, during her tenure, FBI agents systematically and blatently violated surveillance laws. Moreover, the FBI issued hundreds, and perhaps thousands, of letters, which the FBI named "exigent letters", to phone companies to acquire records, without any statutory authority at all. To date, Caproni and other DOJ and FBI officials have escaped pubic disclosure of the nature and extent of their involvement in this illegal surveillance.

Her role has not been publicly disclosed. Hypothetically, she could have could have identified and counseled against the violations as they occurred, but was overridden by more senior officials, and kept her opposition within the DOJ and FBI, even when she testified before Congress. At the other extreme of possibilities, she could have been the architect of the illegal surveillance practices identified by the DOJ/OIG, and others.

Ordinarily, someone who has presided over the systematic violation of federal law is a more viable candidate for a prison cell than a federal judgeship. On the other hand, there are terrorists bent on destroying the US by violence, and the FBI is one of the agencies tasked with detecting and disrupting their plans via surveillance. Many in law enforcement, intelligence, and the Congress believe that too many legal restraints are imposed on the good work of dedicated law enforcement and intelligence professionals. Many probably do not care if an otherwise law abiding official has violated surveillance laws to protect her country, and would therefore support, or at least not oppose, her appointment to the District Court.

Most of Caproni's work at the FBI is not a matter of public record. However, there is a record of her efforts late in her tenure at the FBI to have the 1994 Communications Assistance for Law Enforcement Act (CALEA) expanded to cover new information technology services, such as Facebook and Twitter. The FBI's CALEA proposals, always vague and fluctuating, would have a devastating economic impact upon service providers, deaden innovation, create new security risks, and reduce privacy.

The FBI and other law enforcement and intelligence agencies have long supported various expansions of the CALEA. The Congress has constantly balked. However, the Federal Communications Commission (FCC), by administrative fiat, essentially rewrote the statute in 2005 to include facilities based broadband service providers and interconnected VOIP providers.

Caproni's Biography. Caproni is currently Deputy General Counsel at Northrop Grumman Corporation. While Northrop Grumman is best know for making aircraft and missiles, it also provides communications equipment, systems and services. Its web site states that is makes "networked communications products", "intelligence, surveillance and reconnaissance systems", and "911 public safety systems". (Northrop Grumman did not promptly respond to inquiries from TLJ.)

She has connections to the Southern District of New York (SDNY), the judicial district for which she has been nominated, but not of the extent that is typical of District Court nominees. She grew up in Georgia, went to college in Louisiana at Tulane, went to law school at the University of Georgia, and clerked for a judge of the U.S. Court of Appeals (11thCir), which includes Georgia.

She then worked as an associate at Cravath Swain in New York City, in several positions in the U.S. Attorneys Office for the EDNY, and as General Counsel of New York state's Urban Development Corporation (now known as the Empire State Development) in the 1980s and 1990s.

She then headed the Securities and Exchange Commission's (SEC) Pacific states office in San Francisco, California. She was hired, not because of any securities law expertise, but to bring her prosecutorial background to bolster coordination between the DOJ and SEC on criminal and civil enforcement. She then briefly worked at Simpson Thacher & Bartlett in New York City, before becoming General Counsel of the FBI in Washington DC for eight years.

Her stints in the private sector have been short, but this is not uncommon for District Court nominees. Moreover, these private sectors jobs -- Cravath Swain just after an Appeals Court clerkship, Simpson Thacher just after the SEC job, and Northrop Grumman just after the FBI job -- is consistent with the common practice of persons with senior governmental careers in taking brief high paying private sector jobs to supplement lower paying government incomes.

Many District Court nominees have judicial experience either as a state court judge, or a federal magistrate judge. Indeed, at the same time that President Obama nominated Caproni, he also nominated Analisa Torres, who has been a New York state judge since 2000, to be a judge of the SDNY.

Many District Court nominees have significant experience as trial lawyers. But, Caproni does not fit this mold either. Caproni's career most resembles another common path to appointment to the District Court -- that of career federal prosecutor.

Caproni's most significant criminal case was the 1996-7 prosecution of Lemrick Nelson in the EDNY for violation of federal civil rights laws. Nelson had killed Yankel Rosenbaum in 1991 during a race riot in the Crown Heights neighborhood of Brooklyn, New York. He was tried, but acquitted of murder in state court, before Caproni headed a second prosecution in federal court. Caproni's trial ended with a verdict of guilty. However, that verdict was vacated. Nelson was tried again, with a different prosecutor, found guilty, and served 10 years in prison.

The most significant SEC west coast enforcement action during Caproni's tenure involved the Mark Jakob Emulex internet news release fraud. See, SEC release and release, and story in TLJ Daily E-Mail Alert No. 11, September 1, 2000. The DOJ also criminally prosecuted Hart. And, there was class action litigation. See, complaint and story, TLJ, September 5, 2000.

A member of Sen. Kirsten Gillibrand's (D-NY) office told TLJ that Sen. Gillibrand and Sen. Charles Schumer (D-NY) alternate in selecting District Court nominees for judicial districts in the state of New York, and that Caproni was Sen. Gillibrand's pick.

This staffer added that "Senator Gillibrand has prioritized putting more women on the bench".

Sen. Kirsten GillibrandSen. Gillibrand (at right) stated in a release that "Valerie Caproni and Judge Torres are both highly experienced and exceptional legal minds ... Their breadth of experience and knowledge make them ideal to serve on the federal bench. Both are fair-minded women dedicated to public service. I am confident they would serve with the highest integrity."

The SDNY is home to many large corporations, financial institutions, and exchanges. Hence, it is the forum for many major commercial cases. Some attorneys include New York forum selection clauses in contracts. The SDNY has also been the forum for some major criminal prosecutions of terrorists.

It might be noted that there is also a federal body, created by 50 U.S.C. § 1803, titled the "United States Foreign Intelligence Surveillance Court" or "FISA Court". It is made up of 11 U.S. District Court judges. However, the President has no authority to appoint its members. Rather, members are selected by the Chief Justice of the United States, who is currently John Roberts. However, Caproni's experience in surveillance might make her a candidate for appointment.

The FISA body does not have jurisdiction over cases or controversies. Rather, it merely has jurisdiction over one ancillary matter, "to hear applications for and grant orders approving electronic surveillance" under the FISA.

FBI Violation of Surveillance Laws on Caproni's Watch. The DOJ/OIG released three reports that disclosed long running, egregious and patently obvious disregard by the FBI for surveillance laws. (These reports did not also address whether or not other federal agencies ran an illegal wiretapping program. That issue has not been adjudicated, and the Congress gave retroactive civil and criminal immunity to the participating communications companies.)

These DOJ/OIG reports do not disclose the names of the communications companies that were parties to the violations. These reports do not attach copies of FBI opinion letters, memoranda or directives that approved, or purported to justify, any of these violations, or who wrote or approved these documents.

These reports add that the FBI did not even save many of the National Security Letters (NSLs) and "exigent letters" involved. So, while the DOJ/OIG found over 700 illegal "exigent letters", there may have been thousands.

The DOJ/OIG reports do not disclose the extent of Caproni's involvement and/or misconduct. However, the multitude of violations of law occurred while she was the chief legal officer and responsible for assuring compliance with surveillance laws.

One area where the DOJ/OIG found improper conduct was in the FBI's use of NSLs. NSL authority exists under federal statute. See, 18 U.S.C. § 2709. NSLs do not require a warrant or other prior court authorization, and hence, are inherently subject to abuse. They enable the DOJ's FBI to obtain records, including subscriber, billing and call records of phone companies and ISPs. NSLs also apply to libraries to the extent that they are providing an electronic communication service (ECS).

ECS is a term created by the 1986 Electronic Communications Privacy Act (ECPA), based upon technology as it existed prior to the enactment of the ECPA. The application of this and other 1986 terms to current technologies is no longer clear, and in the hands of FBI lawyers, is quite elastic and expansive. Indeed, many key provisions of the quarter century old ECPA are hopelessly vague in light of technologies developed since 1986. ECS is defined at 18 U.S.C. § 2510.

The statute provides that only certain high ranking DOJ officials can authorize NSLs. But, the OIG found "improper or illegal use" of NSLs by issuance without proper authorization.

NSLs can only be be issued for authorized information. But, the OIG found issuance with proper authorization but for information that was not authorized. The OIG also found improper requests, and unauthorized collectio of telephone and e-mail transaction records.

Another area where the DOJ/OIG found improper conduct was in the use of Section 215 authority. Section 215 of the 2001 USA PATRIOT Act rewrote Section 501 of the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. § 1861. This is the section of the FISA that provides for "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations".

This 215/501/1861 authority enables the FBI to obtain from a judge or magistrate an order requiring the production business records, including library and bookseller records.

This section further provides that if the government submits an application to the court that states that there are "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation", then the "judge shall enter an ex parte order as requested". This is a very low standard, and the judge is left with no discretion.

A third area where the DOJ/OIG found improper conduct by the FBI was in the use of "exigent letters" to obtain phone records from communications companies to, among other things, "target" reporters at the Washington Post and New York Times, which first reported the National Security Administration's (NSA) warrantless wiretap program. (See, report at pages 250-252.)

The NYT was the first to report this NSA program. It published a story by James Risen and Eric Lichtblau on December 16, 2005, titled "Bush Lets U.S. Spy on Callers Without Courts". It stated that "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." See also, story titled "President Bush Discloses Interception of Communications Without Court Approval" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005, and story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

The concept underlying the use of these "exigent letters" was that the FBI could access records by issuing a letter to communications companies in the event of an emergency, that specified the emergency, and the records sought. These involved no court approval, no notice to affected individuals, and hence, no opportunity to bring legal challenges. However, unlike NSLs and Section 215 orders, for which statutory authority exists, there was no statutory basis for these "exigent letters". The FBI fabricated legal authority out of thin air.

Thus, in the case of issuance of "exigent letters", the failure to follow the law arose, not out of misconstruing a complicated statute, but in applying a non-existent authority as if it existed.

The OIG found, of course, that the mere use of "exigent letters" violated the law. But moreover, the OIG found that the FBI then proceeded to violate its own purported basis for these letters. For example, it issued "exigent letters" when there was no emergency.

The FBI did not save many "exigent letters". Moreover, many "letters" were not even letters. They were conversations, emails, or post it notes. Furthermore, the OIG found that the communications companies colocated within the FBI, worked as part of their "team", and wrote some of the "exigent letters".

2010 House Judiciary Committee Hearing. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights and Civil Liberties held a hearing on April 14, 2010, at which Caproni testified. See, hearing record and transcript.

Caproni did not disclose how many "exigent letters" were issued, or how many were destroyed before the OIG conducted its investigation. She conceded only that the OIG had found "over 700 exigent letters". Nor did she disclose what she knew, and when she knew it.

She dismissed the FBI's use of "exigent letters", as "a failure of internal controls at the FBI". She also said that the "law did not get sufficiently inculcated into our workforce".

Caproni is a former DOJ prosecutor and SEC enforcer. Her defendants were not afforded the insufficient inculcation defense, or failure of internal controls defense.

She said that the DOJ/OIG provided a "wake up call", and that the FBI has "improved its policies" for accessing information protected by the ECPA.

Neither the OIG, nor Caproni in her April 14 testimony, disclosed the companies or officials that conspired with the FBI to violate surveillance laws. However, Rep. Hank Johnson (D-GA), who participated in the April 14 hearing, stated that "Through exigent letters, companies such as AT&T, Verizon, and MCI have provided the FBI with telephone records on American citizens". Caproni did not admit or deny this.

Glenn Fine, the Inspector General at the time, also testified at the April 14 hearing. He said that "Our report found that from March 2003 to November 2006, FBI personnel in the Communications Analysis Unit (CAU), issued at least 722 exigent letters for more than 2,000 telephone records to the three telecommunications service providers located at the FBI. We found that, contrary to the statements in the letters, emergency circumstances were not present when many of the letters were issued. Also contrary to the letters, in most cases subpoenas had not been sought for the records. In addition, our investigation found widespread use of even more informal requests for telephone records in lieu of appropriate legal process or qualifying emergency. For example, rather than using national security letters, other legal process, or even exigent letters, FBI personnel frequently sought and received telephone records based on informal requests they made to the onsite telecommunication employees by e-mail, by telephone, face to face, and even on Post-it notes. FBI personnel made these kinds of informal requests for records associated with at least 3,500 telephone numbers, although we could not determine the full scope of this practice because of the FBI’s inadequate record-keeping."

Fine added that "Our report concluded that the exigent letters and other informal requests for telephone records represented a significant breakdown in the FBI’s responsibility to comply with the law, Attorney General guidelines, and FBI policy."

In an exchange with Rep. Johnson, Fine said that "There is a ECPA statute that they needed to follow. They didn't follow it. They simply used this process, and when people had questions about it, they didn't adequately address the questions. They just simply went on with the process, and it was improper, it was inappropriate, and it was wrong."

The OIG provided only limited information in the three reports. The publicly released versions were redacted. And, Fine stuck to the content of the reports in his testimony.

What is also notable is what is not in the reports, and what did not happen at the hearing. The reports did not disclose the three companies that cooperated with the FBI, why they did so, what legal opinions they received from the FBI, what were there own legal interpretations of the legality of their actions, what promises of immunity they received, and what else they got in return. Conspicuously, no representatives of the phone companies testified at the hearing.

Equally conspicuous was the absence from the witness table of any of the special agents of the FBI whose job it was to obtain records with Section 215 orders, NSLs, and "exigent letters". Hence, no agents testified regarding what legal training, instructions or advice they received from Caproni or the FBI Office of General Counsel.

No one asked Caproni, or the non-present phone company witnesses, for example, what impact phone company cooperation on NSLs, "exigent letters", warrantless wiretaps, and other surveillance matters has had on DOJ antitrust merger reviews, DOJ recommendations on Section 271 applications, the award of government contracts, or DOJ decisions to prosecute phone company officials. No one asked if phone companies, or internet service providers, have received disparate enforcement, regulatory, prosecutorial, or procurement treatment according to the level of their assistance on surveillance related matters.

Also, no one asked Caproni, or the absent phone company representatives, regarding the meaning of supervisory silence in FBI surveillance operations. That is, if an agent informs his superiors that he or his unit will engage in a course of action, and is not countermanded, then should that agent take that silence as approval. The concept is common to many types of institutions. Moreover, the concept is ancient. Qui tacet consentire videtur, ubi loqui debuit ac potuit. However, the concept is rejected by other institutions.

Hypothetically, it is possible that the FBI was not populated with rogue agents who knowingly violated the ECPA. Rather, these agents were keeping their superiors informed of what they intended to do, and in fact did, with NSLs and "exigent letters", but were never countermanded, and took this silence as legal approval. It is further possible that Caproni relied upon this understanding, did nothing, created no paper record, and thereby led agents to believe they were acting in accordance with law and FBI policy. And then, when she appeared before the HJC she pretended that she was shocked shocked to learn that ECPA violations is going on in here. But, no one asked her the relevant questions.

Rep. John Conyers on Caproni. Rep. John Conyers (D-MI) expressed outrage at the April 14 hearing.

He was Chairman of the House Judiciary Committee (HJC) in 2010. However, Rep. Jerrold Nadler (D-NY) presided at the April 14 hearing as the then Chairman of the Subcommittee on the Constitution.

Many Democrats were critical of government surveillance practices during the Bush administration, but ceased their criticism when it became apparent that the Obama administration would be indistinguishable from the Bush administration on surveillance. In contrast, Rep. Conyers has remained consistent across administrations in his criticism of surveillance abuses, in his opposition to expansion of federal surveillance powers, and in his advocacy of ECPA reform.

Also, many Republicans and Democrats have openly opposed certain government surveillance related activities when information and communications technology (ICT) companies are economically burdened by these activities, or their business models or international competitiveness are threatened, and have organized in opposition. A smaller group, including Rep. Conyers, remains active on those surveillance issues that impact only the privacy and liberty interests of politically unorganized individuals.

Rep. John ConyersRep. Conyers (at left) said at the April 14 hearing that "I am outraged that somebody in the FBI would invent the term ... --"exigent letters" -- invent it. It is not in the PATRIOT Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms. Valerie Caproni began her work as general counsel."

"I think that there may be grounds for removal of the general counsel of the FBI. And certainly, there has obviously got to be some disciplinary action from the Office of Professional Responsibility."

"What is this?", he asked rhetorically. He answered that this was "illegal conduct", and not an "accident", "mistake" or "oversight" problem.

He concluded that the use of "exigent letters" was "an invented, illegal act".

Rep. Jim Sensenbrenner on Caproni. Rep. Jim Sensenbrenner (R-WI) was the Chairman of the HJC during the 107th, 108th and 109th Congresses. Rep. Conyers was the ranking Democrat during this time period.

Rep. James SensenbrennerRep. Sensenbrenner (at right) assumed the Chairmanship of the HJC in January of 2001. Terrorists struck later that year, on September 11. Rep. Sensenbrenner then forcefully pushed the USA PATRIOT Act through the House in just over three weeks in October. Title II of the bill greatly expanded federal surveillance powers. This bill, HR 3162, became Public Law 107-56 on October 26, 2001.

He was also the Bush administration's point man in pushing subsequent surveillance bills through the House in the following years of his Chairmanship, over Rep. Conyers' opposition.

Rep. Sensenbrenner stated at the April 14 hearing that "I was the author of the PATRIOT Act and the PATRIOT Act reauthorization of 2006, and I withstood the assaults of my friend seated to my right in both of those cases. And I am seeing a pattern that the FBI really wants to get around various restrictions that the PATRIOT Act put on their activities." (Rep. Sensenbrenner probably meant to say "2005". See, "USA PATRIOT Improvement and Reauthorization Act of 2005". The Senate approved the conference report, and President Bush signed it, in 2006. It is Public Law No. 109-177.)

He spoke first about FBI use of NSLs and Section 215 orders. He then said, "So then what happens is we get these exigent letters that were never authorized by any kind of statute, and it took a big stink to stop those".

"Now, Ms. Caproni, you were the general counsel of the FBI during most of this period of time, and I imagine that you either initiated or signed off on a lot of these procedures that were designed to do things that the FBI didn’t like in the PATRIOT Act and its reauthorization, because they were not approved by Congress. And, you know, as a result, ordinarily I don't agree with going on a witch hunt, but I certainly am not unsympathetic to the comments made by my distinguished successor as Chairman of the full Committee about what is going on in your office."

Caproni said in another exchange with Rep. Sensenbrenner that "The Office of General Counsel did not sign off on the exigent letters. ... The Counterterrorism Division did." (Since 2005, the Counterterrorism Division has been a part of the FBI's National Security Branch.)

Rep. Sensenbrenner also stated that "I lived in this for 6 or 7 years as I was trying to pass the Bush administration’s counterterrorism legislation. And I had to defend what the Bush administration was doing against my Democratic friend. That is why I said I feel betrayed, because every time we tried to patch up a hole in what the FBI was doing, you figured out to put another hole in the dike. And this little Dutch boy has only got 10 fingers to plug holes in the dike."

Caproni attempted to pass off FBI violations merely as a "failure of internal controls". Rep. Sensenbrenner responded that "I am not feeling so charitable about that, because I did the fighting with the FBI. I know administrative subpoenas, section 215 authority, which I defended, and then I find out after defending it, instead of using section 215, you used national security letters, you know, where there is no right for the recipient to go to court. And I put the rights for the recipients to go to court in, and then when that happened, then the exigent letters, you know, started."

"I am extremely disappointed that every time Congress has tried to plug potential civil rights and civil liberties violations in our counterterrorism activities, the FBI seems to have figured out a way to get around it. You know, I came to this whole issue as your friend, more than my Subcommittee and full Committee Chairs, and I feel betrayed."

It was also his responsibility, as Chairman of the HJC, to ensure that nothing within the jurisdiction of his Committee would jeopardize the re-election prospects of the other Republican members of the House. Yet, beginning in 2005, Democrats astutely exploited public concerns about surveillance, and effectively associated the practices with Bush, Cheney and Republicans, for upcoming elections. This was just one of many issues, but Democrats won control of the House and Senate in 2006, and many of Rep. Sensenbrenner's colleagues lost their seats. Rep. Sensenbrenner had let them down.

It is fortunate for Caproni that the Senate, and not the House, votes to confirm judicial nominees.

Caproni Seeks CALEA Regulation of Facebook and Twitter. In 2011 the HJC gave law enforcement agencies the opportunity to advance their argument that the Communications Assistance for Law Enforcement Act (CALEA) should be broadened to cover an array of information technology services. They seek a CALEA like regulatory regime that covers social networking sites such as Facebook and Twitter, peer to peer services such as Skype, and encrypted e-mail services such a Blackberry.

The CALEA requires that telecommunications carriers "shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier ..."

The CALEA provides that telecommunications carriers must design their equipment and networks to facilitate lawfully conducted wiretaps and other intercepts. Statutes other than the CALEA address what intercepts are lawful.

The CALEA was enacted in 1994 to require that cell phone service providers make their networks subject to wiretaps sought by law enforcement agencies. The CALEA applies to "telecommunications carrier", and exempts "information services".

Early in Caproni's tenure at the FBI the FBI and other agencies sought amendment of the CALEA. The point advocate at that time was not Caproni, but rather Laura Parsky, then a Deputy Assistant Attorney General in the DOJ's Criminal Division. The Congress did nothing. However, FCC essentially rewrote the statute to cover facilities based broadband service providers and interconnected VOIP providers. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005.

The FBI had asked for much more back in 2004. It filed one infamous petition asking the FCC to require companies to file petitions with the FCC that disclose and ask for permission to deploy new products and services. The FBI wanted to be involved in product design. Tech companies and some members of Congress mocked the proposal.

The FBI lacks legal authority to compel providers of information services, such as Facebook and Twitter, as well as equipment manufacturers and software producers, to design their products and services in a way that facilitates government interception and access. The FBI seeks this authority.

New technologies constantly enable law enforcement to intercept more communications, to obtain more stored communications and data, and to better store, analyze and access the data that it obtains. And, as new technologies emerge, the FBI enviously wants service providers to design the systems to facilitate its surveillance activities.

The latest FBI lobbying campaign spins the situation with the slogan "going dark".

The HJC's Subcommittee on Crime, Terrorism and Homeland Security held a hearing on February 17, 2011, titled "Going Dark: Lawful Electronic Surveillance in the Face of New Technologies".

The DOJ sent Caproni to testify. Rep. Sensenbrenner, the Chairman of this Subcommittee, did not bother to show up. Rep. Louie Gohmert (R-TX), a former judge, and Vice Chairman of the Subcommittee, did not show up either. Freshman Rep. Tim Griffin (R-AR) presided.

Caproni testified mostly to empty chairs. See, her prepared testimony and hearing record and transcript.

Neither the House nor HJC has passed any CALEA expansion bill in the 112th Congress. Moreover, no such bill has even been introduced. And, in the 21 months since that hearing, the DOJ has not released the text of any proposed bill.

And, on September 28, 2011, the DOJ finally submitted responses written questions. It disclosed that it had no legislative language to propose on topics raised by these questions.

Rep. Conyers attended the February 17 hearing. He said that "I believe that legislatively forcing telecommunications providers to build back doors into systems will actually make us less safe and less secure. I believe further that requiring back doors in all communication systems by law runs counter to how the Internet works and may make it impossible for some companies to offer their services. And finally, it is my belief that our communication companies must be allowed to innovate without technological constraints if they are to continue to develop products and services that successfully compete with foreign companies."

Caproni's CALEA proposals have gained no traction in the Congress.

However, while Caproni, like Parsky, failed to move the Congress to legislate, their efforts have significant effects. Merely by waging legislative campaigns for CALEA amendments, data retention mandates, or other changes to surveillance law, the government effectively pressures service providers to voluntarily provide greater assistance to the government, in order to diminish the likelihood of legislation.

The FBI's rhetoric regarding what changes to law it seeks has fluctuated widely. Caproni offered a toned down statement at this hearing.

Caproni stated at the hearing that "The advances in our ability to communicate have many advantages, but they also have made it exponentially more difficult for law enforcement to execute court-authorized wiretaps. Over the past several years, the FBI and other law enforcement agencies have increasingly found themselves serving wiretap orders on providers that are not covered by CALEA and, therefore, under no preexisting legal obligation to design into their systems a wiretap capability."

She referenced "email accounts, Twitter accounts, Facebook and MySpace pages, BlackBerrys and Androids, iPhones and iPads" in her oral testimony. Her written testimony references "webmail, social networking sites or peer-to-peer services".

BlackBerry email is encrypted, and the service provider does not posses the encryption keys. Caproni did not advocate at this hearing legislation that would require that service providers redesign their systems so that it possesses keys. Google uses encryption for GMail messages in transmission, but also possesses the content of messages in unencrypted form, so the FBI can currently get unencrypted GMail content with a Title III wiretap order.

Caproni said that "We see going dark as a problem with many facets, but they all boil down to this. The combination of carrots and sticks that the Government has are not working to incentivize industries to develop and maintain adequate intercept solutions for their services. As a consequence, when a court issues an order authorizing a wiretap, we are not consistently able to execute that order and promptly begin to collect evidence and intelligence."

Does Caproni advocate government regulation of the private use of encryption technology, and a reopening of the 1999 encryption settlement? Her prepared testimony states that the the FBI would "not require fundamental changes in encryption technology". She did not explain how the government should regulate encryption in non-fundamental ways.

Caproni conceded that some wiretap orders permit "hacking into a device". But, she said, at this hearing, that "this is not about back doors into systems". Although, she is likely playing semantic games.

Rep. Johnson asked about encryption, and referenced BlackBerry email. Caproni gave long answer short on clarity. She did say that "No one is suggesting that Congress should reenter the encryption battles that were fought in the late ’90’s and talk about sequestered keys or escrowed keys or the like." She added that "For individuals who put encryption on their traffic, we understand that there would need to be some individualized solutions if we get a wiretap order for such persons."

Caproni also suggested that the FBI seeks greater "enforcement mechanisms" to compel service providers to comply.

Gowdy asked what new grant of "authority" the Congress should extend. Caproni gave non-responsive answer. Rep. Johnson asked if she had a request. She said, "we don't have a specific request yet".

Making new IT services susceptible to FBI intrusion pursuant to a Title III order would also make IT systems vulnerable to unauthorized intrusions by insiders at the service providers, and at their private intercept management providers. It would also make these systems more vulnerable to hackers, companies engaging in economic espionage, and foreign governments.

Different components of the Obama administration are lobbying for inconsistent regulatory regimes. On the one hand, the some elements of the administration want a cyber security bill that would give the government authority to impose mandates on companies to compel them to make their information and communications technology systems more secure, and more resilient to outside intrusion and attacks. On the other hand, other elements of the administration, such as the FBI, want a CALEA bill that would give the government authority to impose mandates on companies to compel them to make their ICT systems less secure, and more vulnerable to third party penetration.

If Caproni's proposals were put in a bill, it might be titled "Communications Assistant for Law Enforcement Expansion Act". It might with equal accuracy be titled the "PRC Hackers Assistance Act".

Caproni's Written Record. One of the most important set of skills for any federal judge is the ability to identify legal issues, conduct research, analyze, formulate reasoned legal arguments and conclusions, and then reduce these to writing, with clarity and reference to precedent. Any person under consideration for a federal judgeship can demonstrate these skills by writing published opinions as a judge of a lower or state court, by writing appeals briefs, by publishing articles in law reviews, and by many other means.

However, Caproni has written little. There is not much that would demonstrate that she possess these essential skills. However, in Washington DC, this itself is viewed by many as a skill.

Most of the federal judicial nominees who have failed to win Senate confirmation in the past quarter century have been derailed by something in their written record. A publication record not only demonstrates one's legal writing skills, or the lack thereof, the same record can used by persons who seek to block confirmations, by disclosure, or by distortion. Many persons who harbor judicial ambitions, as early as law school, determine to establish no written record that might include statements that might cause embarrassment in a confirmation battle. And since one does not know what might be controversial or embarrassing decades into the future, this means avoiding a which range of legal and political writing.

This confirmation process was developed in the years leading up to rejection of Judge Robert Bork for a seat on the Supreme Court in 1987, and was solidified and publicized by that event. Judicial aspirants now limit their writing. Presidents seek nominees who have written less. There is some irony that the judicial selection process has been altered to produce a less qualified judiciary.

She has served in numerous senior positions in government, but left little behind. She has eschewed legal scholarship. Her public speeches have been rare and bland.

She served for eight years as General Counsel of the FBI, and oversaw its compliance with surveillance laws. Yet, after three IG reports on her failures, several Congressional hearings on these failures, and numerous oversight hearings on the FBI generally, neither the DOJ/OIG, House or Senate have published a single memorandum written by Caproni regarding application of surveillance law to FBI surveillance activities.

Nor have they published a single "exigent letter" that bears her signature -- not even one of the letters scribbled on a yellow Post It note.

When Congressional committee members submitted supplement hearing questions to her, the DOJ provided responses that bore the signature of someone else.

She advocated legislation that would broaden the CALEA. But, she did not write and publicly release a draft bill, or even a bill summary.

There are few substantive documents in the public record that support the contention that Caproni possesses advanced legal analysis and writing skills, or that reflect her views on various legal issues. But it does not necessarily follow that she lacks these skills.

Confirmation Process. The Constitution states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" judges and justices. In practice, the President nominates District Court and Appeals Court judges and Supreme Court justices, and then the Senate confirms. The House has no function.

More particularly, in the case of U.S. District Court nominees, such as Caproni, the President nominates the person picked by a Senator of his party from the state in which the judicial district is located. The SDNY is in New York. There are two New York Democratic Senators, Sen. Schumer and Sen. Gillibrand. The two have an arrangement. They alternate picks, and then back each other. Former New York Senators Al D'Amato and Patrick Moynihan, even through they were of different parties and ideologies, had a similar agreement to split nominees regardless of the party of the President; Presidents appointed their picks, and other Senators voted to confirm them.

Also, in practice, the Senators of the President's party can almost always be counted upon to support the judicial nominees of the President. Senators show deference to the district court nominees of their fellow Senators; the deference is almost unshakeable when they are Senators of the same party. So, when nominees are criticized, opposed, or blocked, it is by Senators from the opposing party.

Thus, if Caproni is to be opposed, it would likely be from Republicans. But, Republicans are in the minority. Also, in recent decades, Democrats have provided more of the opposition to government search and surveillance practices that invade the privacy and liberty interests of individuals and entities. While there have been some exceptions, Republicans have tended to support aggressive and expanded use of surveillance for the purpose of fighting crime and terrorism.

Some Republicans have actively and publicly opposed expansion of governmental surveillance powers since 2001. However, many of these, such as Rep. Bob Barr (R-GA), Rep. Chris Cox (R-CA), Sen. Larry Craig (R-ID), Rep. Butch Otter (R-ID), and Sen. John Sununu (R-NH) no longer serve in the Congress.

Moreover, many Republican Senators view the Washington Post and New York Times, whose reporters were targeted by FBI "exigent letters", as political allies of the Democratic Party.

There are also outside groups that are frequently involved in supporting or opposing judicial nominees. They often lobby Senators. There are groups that have been active in lobbying against legislation that expands government surveillance powers, and in litigating against certain surveillance practices. The ACLU is one such group. Yet, it has little traction with Republican Senators. Moreover, it does not challenge Democrats. A spokesman for the American Civil Liberties Union (ACLU) told TLJ by e-mail that "we won't be able to make someone available to comment on this". Hence, the one group best situated to challenge Caproni, may take no action. The California based group, Electronic Frontier Foundation (EFF), has the expertise and incentive to challenge Caproni's nomination, but has few connections in the Senate, especially with Republicans. (The EFF has not yet responded to an inquiry from TLJ.)

Sen. Charles SchumerFinally, it should be noted that back in 2005 Sen. Schumer (at left) was elected Chairman of the Democratic Senatorial Campaign Committee. He excelled in this post, and Democrats took control of the Senate in the 2006 elections. One of the campaign issues that he skillfully developed was surveillance. While he artfully associated Bush, Cheney and Republicans with this surveillance, it was appointees, including Caproni, who were responsible for these programs.

Sen. Schumer campaigned against Republicans based upon what people like Caproni were doing. Now, he is certain to back the appointment of Caproni to the bench in his state. (The office of Sen. Schumer has not responded to inquiries from TLJ about this nomination.)

The Senate Judiciary Committee (SJC) has jurisdiction over judicial nominees. Sen. Schumer is a senior member. The SJC requires judicial nominees to respond to a form questionnaire. Caproni has not yet submitted her responses. The SJC holds hearings on judicial nominees. The SJC then votes on whether or not to recommend nominees.

The SJC had a member who was also the Senate's most active defender of individuals' rights to be free from unreasonable searches and seizures and surveillance, former Sen. Russ Feingold (D-WI). He was the only Senator to vote against the 2001 USA PATRIOT Act. He sponsored numerous bills to restrain government surveillance authority. If he could have overcome his party loyalty on judicial confirmations, he might have been relied upon to question the appointment of Caproni. However, he lost his seat in the 2010 elections.

There is another SJC member who actively seeks to protect privacy interests via hearings, oversight, and legislative proposals -- Sen. Al Franken (D-MN). However, he a loyal Democrat. For example, he has made public his concerns that the cyber security bill favored by President Obama and the Senate Democratic leadership fails to protect privacy. He prepared amendments, but Sen. Harry Reid (D-NV) did not allow the full Senate to consider them. Nevertheless, Sen. Franken loyally voted the Democratic line on both cloture votes.

Also, the main focus of Sen. Franken is protecting individual privacy in the commercial marketplace, rather than from governmental incursions. He may be more concerned about how Google, Apple, and phone companies treat their users and customers than how the government conducts surveillance.

Another member of the SJC is Sen. Dianne Feinstein (D-CA). She is also Chairman of the Senate Intelligence Committee, where she has devoted much effort to expanding the surveillance capabilities and authority of the US government.

The Senate then holds up or down votes on whether or not to confirm nominees. Senate Democrats began a procedure during the Bush administration, when Republicans also held a majority of seats, of blocking nominees with the filibuster, which takes a supermajority of 60 votes to end. Republicans have also relied upon this procedure to block a few of President Obama's judicial nominees. But, it would still take 40 Senators to block Caproni.

In the 113th Congress, Senate Republicans are likely to delay some judicial nominees, and resort to the filibuster for small select set of mostly Court of Appeals nominees. Republicans are likely to target a few nominees whose written record suggests that they would substitute their own ideologies for Congressional statutes on matters that Republicans care most. But, surveillance is not one of these Republican issues.

Hence, it is difficult to foresee any significant opposition in the Senate to Caproni's confirmation.

Analysis. This article offers nothing regarding how effective Caproni was at the FBI in furthering its statutory goals, such as fighting terrorism. She acted in secret, and most of her work there remains a secret.

She has not produced a published record that demonstrates skills in legal analysis and writing. However, there may be unpublished internal memoranda.

The public record of hearing testimony and speeches reveals little about her level of legal expertise. She has not demonstrated a sharp legal mind, legal knowledge, or familiarity with technology, in her public appearances. But then, it is difficult for someone attending hearings, or reading hearing records, to distinguish between a witness who is withholding information and refraining from controversy, from a witness who possesses limited understanding.

Since, there is so little in the public record regarding Caproni's work at the FBI, it is difficult to sound her out, or pluck out the heart of her mystery.

One thing that her work history suggests is that she possesses considerable expertise in maneuvering her career through the byzantine politics of federal agencies, and winning appointments to ever higher positions. And, her exchange with Rep. Sensenbrenner is not inconsistent with the hypothesis that she possesses Machiavellian skill in manipulating career politicians.

Her exact role in the illegal activities that occurred at the FBI during her tenure has not been disclosed.

It is possible that she was long aware, for example, that the FBI was using baseless "exigent letters" to obtain records from phone companies, and did nothing. This might reflect on her commitment to the rule of law, and hence, suitability for judicial office. It might reflect a willingness to ignore the statutes enacted by the Congress. This may suggest a capacity, if confirmed to be a federal judge, to decide cases that arise under federal statutes contrary to the directives of those statutes.

It is also possible that she engaged in due diligence, learned of misconduct, and worked without success within the FBI to stop it. It is further possible that Sen. Gillibrand and Sen. Schumer possess such non-public information, and the nomination is in part a recognition of, and reward for, superior service.

It is also possible that she opined that the FBI was acting within the law. If this were the case, it would call into question her competence to analyze legal issues.

It is also possible that she did not learn of misconduct that transpired in her presence. If this were the case, it might reflect upon her ability maintain control of a courtroom, or manage a docket.

Finally, to this point, this article has been premised upon the assumptions that statutes matter, that their words have meaning, and that they apply universally to all persons within the jurisdiction of the US. Yet, in the context of the use of surveillance to fight terror, for many, these assumptions may not hold.

There is one description of law and government for public statements, school books, and ceremonies for the unknowing world. All laws are enacted by the people's Congress, apply equally to all persons regardless of position or power, and are applied uniformly by law enforcement authorities. Those who break laws are punished, not rewarded with elevation to higher office.

Then, there is the way laws and government really work. In the case of surveillance, Senators may possess a more Tacitean appreciation of recent history, and how federal laws and government agencies should and actually do work. The notion that all legislative powers, including the power to make all laws, shall be vested in the Congress, is an untenable Constitutional impediment to the good work FBI agents and federal prosecutors. Similarly, the notion that the FBI shall take care that the Congress's laws shall be faithfully executed is obsolete.

Under this latter approach, if Caproni was in the thick of FBI violation of the letter of the ECPA, it was not a derogation of duty, but rather a superlative performance.

There was no Islamic terrorist threat to persons in the US when the Constitution and the ECPA were drafted. It is difficult to pass legislation to expand surveillance powers. Hence, law enforcement and intelligence officials, with tacit approval of some in the administration and Congress, implement unenacted principles.

Under this second understanding of law and government, people like Rep. Conyers might be dismissed as naive adherents to obsolete notions of the rule of law, civil rights and equality before the law. He is merely one of the inevitable anomalies produced by an electoral system based upon universal suffrage and 435 single member districts.

Rep. Sensenbrenner might be dismissed as a disgruntled politician. Caproni may have played the Washington political system. She may have played Rep. Sensenbrenner like a musical instrument. She advanced the policy goals of the FBI, the institutional interests of the FBI, and her own career; and he got burned.

Caproni may have been nominated, and may be confirmed by the Senate, because she has performed well under this second understanding of the nature of law and government.

More Information. For more on the DOJ/OIG reports and Caproni, see:

Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime

11/14. The Senate rejected a motion to invoke cloture on S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", by a vote of 51-47, late on Wednesday, November 14. See, Roll Call No. 202.

The Senate rejected a cloture motion on the same bill, with an almost identical roll call vote, on August 2. See, Roll Call No. 187. That motion failed by a vote of 52-46. A super majority of 60 is required to pass a cloture motion.

The outcome of the November 14 vote was not in doubt. Rather, Sen. Harry Reid (D-NV), the Senate Majority Leader, may seek to create a record that President Obama will reference if he issues an executive order that attempts to establish a cyber security regulatory regime.

Sen. Reid stated in a release after the vote that "Given Republican intransigence, I hope President Obama uses all the authority of the executive branch at his disposal to fully protect our nation from the cyber security threat. Republicans today showed we cannot count on them to take this threat seriously."

Sen. John Rockefeller (D-WV) stated in a release after the vote that "Once again, Senate Republicans have chosen to filibuster much-needed cybersecurity legislation".

Sen. Charles Grassley (R-IA) stated in the Senate that "No one disputes the need for Congress to address cybersecurity. However, members do disagree with the notion this problem requires legislation that increases the size of the federal government bureaucracy and places new burdens and regulation on businesses."

He continued that "Disagreements over policy should be openly and freely debated. Unfortunately, this isn’t how the debate on cybersecurity proceeded. Instead, before a real debate began last August, the majority cut it off. This was contrary to the majority’s promise earlier this year of an open amendment process to address cybersecurity."

Sen. Grassley also took issue with the bill's delegation of authority to the Department of Homeland Security (DHS). He reviewed the DHS's recent performance in implementing the Chemical Facility Anti-Terrorism Standards (CFATS) program. He then stated, "I'm baffled why the Senate would take an agency that has proven problems with overseeing critical infrastructure, and give them chief responsibility for our country's cybersecurity."

And, he complained about the failure to follow Senate procedure -- particularly the lack of a "full and open amendment process".

Sen. Kay Hutchison (R-TX) stated that the lack of debate and an amendment process "is unacceptable because though we have worked diligently with the sponsors of the cybersecurity bill on the floor, a number of ranking members of the relevant committees that have jurisdiction over cybersecurity have an alternative bill, the SECURE IT Act, that we would like to be able to put forward as an alternative or have an amendment process that would allow our approach to have a chance to prevail anyway." See, release.

See also, Business Software Alliance (BSA) release.

Analysis of Vote. Expectedly, the roll call votes on August 2 and November 14 were almost identical. Not only were the totals almost the same, but almost all individual Senators voted the same way in both votes.

For the most part, Democrats voted to invoke cloture, and Republicans voted against invoking cloture.

Four Republicans backed President Obama and voted yes both times: Sen. Scott Brown (R-MA), Sen. Susan Collins (R-ME), Sen. Olympia Snowe (R-ME) and Sen. Richard Lugar (R-IN). Notably, all but Sen. Collins are now lame duck Senators, who will not return for the 113th Congress in January.

Five Democrats defied President Obama and the Senate Democratic leadership, and voted no both times: Sen. Jon Tester (D-MT), Sen. Max Baucus (D-MT), Sen. Mark Pryor (D-AR), Sen. Jeff Merkley (D-OR), and Sen. Ron Wyden (D-OR) voted no both times. All five will return for the 113th Congress.

Two Senators switched their votes, in opposite directions. Sen. Dan Coats (R-IN) voted yes on August 2, and no November 14. Sen. Harry Reid (D-NV), the Senate Majority Leader, voted no on August 2, but only to preserve his procedural right to bring a motion to reconsider. He voted yest on November 14.

Sen. Mark Kirk (R-IL) and Sen. Marco Rubio (R-FL) did not vote on August 2. Sen. Daniel Inouye (D-HI) and Sen. Kirk did not vote on November 14. Sen. Rubio voted no on November 14, while Sen. Inouye voted yes on August 2.

There is no reason, based on the August 2 and November 14 votes, and the results of the November 6 Senate elections, to expect that President Obama and Sen. Reid could garner 60 votes to invoke cloture to obtain an up or down vote without further process in the 113th Congress.

See also, story titled "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012.

Summary of S 3414 and Competing Bills. Title I of S 3414 would impose a new regulatory regime on private sector entities to be specified by regulators. The bill would give the federal government authority to impose cyber security standards on such companies and other entities. Much of the opposition to this bill, both inside and outside the Senate, derives from this Title I.

However, S 3414 would also create end runs around the 4th Amendment, 5th Amendment due process, the Wiretap Act, Stored Communications Act, state wiretap laws, and generally, individuals' and business's legitimate expectations of privacy in electronic communications and stored data. Some Senators, such as Sen. Wyden, oppose the bill for this reason.

See also, story titled "Summary of S 3414" and related stories in TLJ Daily E-Mail Alert No. 2,415, July 30, 2012.

Sen. Lieberman did not introduce this bill until July 19. Moreover, it is 214 pages long, complex, technical, and on some topics, vague or incomplete. On August 2 Senators had not yet had time to study the bill, and receive input from constituents and affected entities. The only thing that changed for the November 14 vote was time available to study the bill.

What has remained unchanged is the text of the bill, and the closed process that Sen. Reid has imposed upon the Senate. There have been committee hearings, no committee markups, no opportunity to consider alternative proposals, and no opportunity to amend the bill on the Senate floor.

There is a competing bill with much support that Sen. Reid will not bring up on the floor, S 2151 [LOC | WW], the "Secure IT Act", sponsored by Sen. John McCain (R-AZ). This bill would not impose government mandates.

Also, the House has already passed a bill, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA", which Sen. Reid will not bring up on the floor. The CISPA is a limited bill, directed at incenting cyber threat information sharing, in part by providing immunities. CISPA would not provide create a new government regulatory regime.

For more on the CISPA, see:

House Republicans Elect Leadership for 113th Congress

11/14. House Republicans met to elect its leaders for the 113th Congress. Rep. John Boehner (R-OH) will once again be the Republican candidate for Speaker of the House. See, Rep. Boehner's release. His election in January is a formality.

Rep. Eric Cantor (R-VA) was re-elected House Majority Leader. He stated in a release that "we went through a tough week last week as a party, but clearly the House majority is intact and we are strong".

Rep. Kevin McCarthy (R-CA) was re-elected House Majority Whip.

Rep. Pete Sessions (R-TX) will be the Chairman of the House Rules Committee (HRC). See, Rep. Sessions' release. The current Chairman, Rep. David Dreier (R-CA), did not run for re-election to the House.

Rep. Kathy Rodgers (R-WA) was elected Conference Chairman. See, Rep. Rodgers' release. She defeated Rep. Tom Price (R-GA).

Rep. Greg Walden (R-OR) was elected Chairman of the National Republican Campaign Committee (NRCC). Rep. Walden is also the Chairman of the House Commerce Committee's (HCC) Subcommittee on Communications and Technology. Rep. Walden stated in a release that he "will also remain as chairman of the House subcommittee that oversees communications and technology policy in the House".

Rep. Sessions was Chairman of the NRCC for the 112th Congress.

The NRCC is responsible for electing Republicans to the House in the 2014 elections. Hence, Rep. Walden will be fund raising, recruiting candidates, providing assistance to candidates, and generally working to maintain and expand the Republican majority in the House.

Rep. James Lankford (R-OK) was elected Policy Committee Chairman, Rep. Lynn Jenkins (R-KS) was elected Conference Vice-Chair, Rep. Virginia Foxx (R-NC) was elected Conference Secretary, Rep. Tim Scott (R-SC) was elected Sophomore Representative, and Rep. elect Ann Wagner (R-MO) was elected Freshman Representative.

People and Appointments

11/14. Rep. Nancy Pelosi (D-CA) announced that she will run for Democratic Majority Leader for the 113th Congress. See, transcript.

11/14. Senate Republicans held a closed meeting at which they re-elected Sen. Mitch McConnell (R-KY) to be Senate Minority Leader for the 113th Congress. Sen. John Cornyn (R-TX) was elected Senate Minority Whip, Sen. Jerry Moran (R-KS) was elected Chairman of the National Republican Senatorial Committee (NRSC). Sen. elect Ted Cruz (R-TX) was elected NRSC Vice Chairman for grass-roots organizing. Sen. Rob Portman (R-OH) was elected NRSC Vice Chairman for fundraising. Sen. John Thune (R-SD) was elected Conference Policy Chairman, and Sen. Roy Blunt (R-MO) was elected Vice Chairman. Sen. John Barrasso (R-WY) was elected Policy Committee Chairman.

11/14. Senate Democrats held a closed meeting at which they re-elected Sen. Harry Reid (D-NV) to be Senate Majority Leader for the 113th Congress.

More News

11/14. The U.S. China Economic and Security Review Commission released its 2012 annual report [509 pages in PDF] to the Congress.

11/14. The U.S. Court of Appeals (DCCir) heard oral argument in Gresham Communications, Inc. v. FCC, App. Ct. No. 11-1343. This is an appeal of a Memorandum Opinion and Order of the FCC regarding involuntary transfer of licenses of delinquent debtor licensees. See, FCC brief 39 pages in PDF].

Public Knowledge Seeks Continuation of Old Regulatory Frameworks

11/13. The Public Knowledge (PK) published a piece titled "Shutting Down The Phone System Gets Real: The Implications of AT&T Upgrading To An All IP Network". The author is the PK's Harold Feld.

The gist of his concerns are that by shifting from copper to internet protocol (IP) facilities AT&T will also move services out from under Title II regulatory regimes and state price controls, that services will be priced higher to consumers, and that usage rates may decline. He also argues that service may not be as resilient during disasters.

"In other words, while the new network will definitely be a better network, offering a more valuable bundle of services, it may not be either available or affordable to all Americans in the way existing phone service has been for decades."

He wrote that "This network upgrade raises critical questions that go to the very basis of the FCC's authority over core communications in this country and the 100-year old social contract that made voice service in the United States universally available, affordable, and reliable".

He urged the Federal Communications Commission (FCC) to address a wide range of issues, including special access, unbundled network elements, privacy, regulation of billing practices, and the universal service tax and subsidy regime.

He also urged the FCC to "decide the question of whether IP networks must interconnect with one another".

He argued that regulators must "figure out how to take the values of the 100-year old social contract in telecom that has served us so well as a nation and decide how to express those values in concrete terms for the next generation of networks".

The PK also wrote in a message soliciting signatures and comments to an online petition that "this network upgrade also raises critical questions that go to the very heart of the 100-year-old social contract that made voice service in America universally available, affordable, and reliable".

Perhaps it should not go unnoticed the the PK is making frequent use to the concept of "social contract". This is a metaphor based upon a metaphor of one school of political philosophy. See for example, the 1762 book [Amazon] titled "On the Social Contract", translated from the French, "Du Contrat Social", by Jean-Jacques Rousseau.

The social contract of Rousseau and Locke, and the college professors that adore them, theorizes the source of governmental authority. However, neither Rousseau nor Locke wrote that there is any obligation arising out of the social contract that is imposed upon the providers of IP based services.

FCC Seeks Comments Regarding Legislative Proposals for NG911 Regulation

11/13. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) released a Public Notice (PN) regarding Next Generation 911 (NG911) services. The FCC is required by statute to write a report to the Congress that recommends legislative changes.

NG911 involves the concept of incorporating text messages, photos, video and e-mail into 911 systems.

Among questions asked in this PN are what should be the regulatory authority of federal, state and local governments; what existing federal, state or local laws may hinder NG911 deployment; what federal laws should be repealed; what new preemption authority should the FCC be given; who should be taxed to fund 911 systems; and what should be the limitations on liability of service providers.

In February of 2012 the Congress enacted HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012". President Obama signed it on February 22, 2012. It is now Public Law No. 112-96. This bill includes provisions authorizing the FCC to conduct incentive auctions and reallocating the D Block for a public safety broadband network. It also includes, at Section 6501-6509, the "Next Generation 9-1-1 Advancement Act of 2012". This had previously been a stand alone bill, HR 2629 [LOC | WW].

Section 6503 defines NG911as "an IP-based system comprised of hardware, software, data, and operational policies and procedures that -- (A) provides standardized interfaces from emergency call and message services to support emergency communications; (B) processes all types of emergency calls, including voice, data, and multimedia information; (C) acquires and integrates additional emergency call data useful to call routing and handling; (D) delivers the emergency calls, messages, and data to the appropriate public safety answering point and other appropriate emergency entities; (E) supports data or video communications needs for coordinated incident response and management; and (F) provides broadband service to public safety answering points or other first responder entities."

Section 6509 requires the FCC within one year of enactment, in coordination with the Department of Homeland Security (DHS), National Highway Traffic Safety Administration (NHTSA), and the National Telecommunications and Information Administration's (NTIA) 9-1-1 Implementation Coordination Office, to submit a "report to Congress that contains recommendations for the legal and statutory framework for Next Generation 9-1-1 services, consistent with recommendations in the National Broadband Plan ..."

Section 6509 specifies that the content of the report include three things. First, "A legal and regulatory framework for the development of Next Generation 9-1-1 services and the transition from legacy 9-1-1 to Next Generation 9-1-1 networks."

Second, "Legal mechanisms to ensure efficient and accurate transmission of 9-1-1 caller information to emergency response agencies."

Third, "Recommendations for removing jurisdictional barriers and inconsistent legacy regulations including -- (A) proposals that would require States to remove regulatory roadblocks to Next Generation 9-1-1 services development, while recognizing existing State authority over 9-1-1 services; (B) eliminating outdated 9-1-1 regulations at the Federal level; and (C) preempting inconsistent State regulations."

The FCC released a staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future", in March of 2010. Chapter 16 (pages 311-329) is titled "Public Safety". Subchapter 16.3 (at pages 323-327) is titled "Leveraging Broadband Technologies to Enhance Emergency Communications with the Public". It pertains to NG911.

This staff report states (at page 326) that the Congress "should also give the FCC the authority to implement a NG911 federal regulatory framework".

This 2010 report states that "Federal and state regulations that focus on legacy 911 systems have hampered NG911 deployment. Many rules were written when the technological capabilities of NG911 did not exist. Congress should consider establishing a federal legal and regulatory framework for development of NG911 and the transition from legacy 911 to NG911 networks. This framework should remove jurisdictional barriers and inconsistent legacy regulations and provide legal mechanisms to ensure efficient and accurate transmission of 911 caller information to emergency response agencies. Without such a comprehensive framework and a funding mechanism, it is unlikely all Americans will receive the benefits of NG911 in the near term."

It continues that "The legislation should recognize existing state authority over 911 services but require states to remove regulatory roadblocks to NG911 development. It should also give the FCC the authority to implement a NG911 federal regulatory framework, eliminate outdated 911 regulations at the federal level and preempt inconsistent state regulations. This legislation should be coordinated with the NHTSA report to ensure federal regulation of NG911 is consistent."

There are also arguments that have been covered in previous TLJ stories, but are not again addressed here in detail, that while some in the FCC and Congress are now focused on a new statutory regime designed to bring about adoption of IT functionalities in emergency communications by FCC regulation, the FCC has a history of taking actions that have suppressed efforts to do so by private initiative in the past. See, for example, story titled "E911 Bills Introduced in House and Senate" in TLJ Daily E-Mail Alert No. 2,065, March 26, 2010.

This PN is DA 12-1831 in PS Docket Nos. 10-255, 11-153, and 12-333. The FCC released it on November 13, 2012. The deadline to submit initial comments is December 13, 2012. The deadline to submit reply comments is January 14, 2013. The deadline for the FCC to submit its report to the Congress is February 22, 2012.

Google Releases Report on Government Requests for User Data

11/13. Google released another in a series of reports that it titles "Transparency Report". This latest report states that "government demands for user data have increased steadily since we first launched the Transparency Report. In the first half of 2012, there were 20,938 inquiries from government entities around the world. Those requests were for information about 34,614 accounts."

Google reports that it received 15,744 such government requests to produce information about its users in the first half of 2011, and 18,257 requests in the second half of 2011.

Google also provides a page with data on requests per country, accounts specified, and the percentage of requests with which Google complied. Google received the most requests by far from US government entities. Other leading requesters were India, Brazil, France, Germany and the UK. Google complied with 90% of US government requests. Japan submitted few requests, but Google complied with 86%, the second highest rate.

This report also provides data on the number of government requests to Google to remove content from its services. There were 1,791 such requests in the first half of 2012, up from 1,048 in the second half of 2011.

This report also discloses that the most common grounds for removal requests is "defamation", followed by "privacy and security". There are few government requests for removal based upon either "copyright" or "trademark".

However, Google also reported on requests from copyright owners and their representatives for the removal of search results.

Google states that it "regularly receives requests from copyright owners and reporting organizations that represent them to remove search results that link to material that allegedly infringes copyrights."

Google's data, updated November 13, 2012, shows that for the "past month" the copyright owner that has requested the most URL removals from search results is Froytal Services, Ltd.

Google does not disclose here that Froytal is a porn company.

Second and third in the past month are the the BPI and RIAA, the music industry trade groups for the United Kingdom and the United States. However, Google has aggregated the requests of the member companies of these trade groups.

Google also provides data on "reporting organizations". For the past month, the top reporting organization was Degban. Google's data also shows that the top copyright owners represented by Degban include Froytal, RK NetMedia, Inc., and, Inc. -- porn providers all.

The Constitution provides that the underlying purpose of copyright is "To promote the Progress of Science and useful Arts". Yet, Google's data shows that some of the main beneficiaries of the DMCA regime are companies that do not promote the progress of science and useful arts, and that much of the service providers' compliance burden is imposed by these companies.

It is beyond the scope of Google report, but it might also be noted that these companies also avail themselves of the WIPO's Domain Name Dispute Resolution.

Also, these companies are sometimes represented by leading law firms. For example, when the Federal Trade Commission (FTC) sued RK NetMedia and BangBros in the U.S. District Court (SDFl) for violation of the CAN SPAM Act, they were represented by the law firm of Wilmer Cutler Pickering Hale & Dorr. See, complaint and stipulated order.

More News

11/13. The New America Foundation (NAF) hosted an event titled "Future of Music Summit". Sen. Ron Wyden (D-OR) advocated passage of his bill, S 3609 [LOC | WW], the "Internet Radio Fairness Act of 2012". He stated, in response to questions, that if lawyers can agree that Section 5 of the bill, regarding antitrust exemptions, violates freedom of speech, then it should be revisited.

District Court's Legal Analysis in Fox v. Dish

11/12. This article provides a more detailed summary of the U.S. District Court's (CDCal) November 7, 2012 opinion, titled "Order Re Plaintiff's Motion for Preliminary Injunction", in Fox v. Dish.

The District Court addressed several underlying claims, including direct infringement by reproduction, direct infringement by distribution, vicarious infringement by inducing or contributing to users' direct infringement, and breach of contract.

The District Court concluded that there was direct infringement by reproduction, and breach of one of the contracts at issue. It rejected Dish's fair use defense. It held that Fox is not entitled to injunctive relief on the contract claim, and that it was not entitled to injunctive relief on the infringement claim because it failed to show that it was likely to suffer irreparable harm; monetary damages would suffice.

The District Court wrote that "A plaintiff seeking injunctive relief must show that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in its favor; and (4) that an injunction is in the public interest".

As to the first element, likelihood of success on the merits, the District Court wrote that "To establish infringement by reproduction, the plaintiff must show (1) ownership of the copyright and (2) copying by the defendant." The Court then concluded that Fox had shown ownership of copyrights. The more complex question was who made copies, Dish or its customers.

The court discussed at length the U.S. Court of Appeals' (2ndCir) 2008 opinion [44 pages in PDF] in Cartoon Network v. CSC Holdings, 536 F.3d 121, also sometimes referred to as the Cablevision case, in which the Court of Appeals attributed the copying to users, not Cablevision. See also, story titled "2nd Circuit Reverses in Remote Storage DVR Copyright Case" in TLJ Daily E-Mail Alert No. 1,806, August 5, 2008.

The District Court in Fox v. Dish found, as to PrimeTime Anytime (PTAT), that while Dish exercised more control than did Cablevision, it did not amount to copying by Dish. However, Dish did conduct copying in connecti on with AutoHop.

The next question, regarding likelihood of success on the merits, was whether this AutoHop copying was protected fair use. 17 U.S.C. § 107 provides the four prong statutory test for the fair use defense. It provides, in full, that,

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
   (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
   (2) the nature of the copyrighted work;
   (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
   (4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

As to purpose and character of the use, the District Court found that Dish's commercial purpose weighed against a finding of fair use.

As to nature of the copyrighted work, the District Court found that the creative nature of the copied programs weighed against a finding of fair use.

As to the amount and substantiality of the use, the District Court found that copying of entire works weighed against a finding of fair use.

As to the effect of the use on the market, the District Court found that since other companies were paying Fox for licenses, while Dish was copying without license, Dish was adversely affecting the market, and therefore, this weighs against a finding of fair use.

Finally, the Court concluded that considering all four fair use factors together, on balance Dish's use does not constitute fair use. And hence, Fox has demonstrated a likelihood of success on the merits of its direct infringement by reproduction claim.

The District Court did not find a likelihood of success on the merits of Fox's direct infringement by distribution claim.

Also, the District Court did find a likelihood of success on the merits of its breach of contract claims (as to the RTC Agreement, but not as to a 2010 Letter Agreement or the VOD provisions.)

The District Court next proceeded to the irreparable harm element of the requirement for issuance of injunctive relief.

The District Court noted that the previous presumption of irreparable harm that flowed from a showing of likelihood of success on the merits of an infringement claim ended with the Supreme Court's 2006 opinion in eBay v. MercExchange, 547 U.S. 388.

The Supreme Court held that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases. See, story titled "Supreme Court Rules on Availability of Injunctive Relief in Patent Cases" in TLJ Daily E-Mail Alert No. 1,371, May 16, 2006.

The District Court also wrote that money damages is the appropriate remedy for contractual violations. And, it found that there would not be irreparable harm from the copying.

The District Court made the point that while Fox may be harmed by the loss of ad revenues and loss of control of copyrighted works from ad-skipping use, the infringement is in the making of copies by Dish, not in the ad-skipping use to which the infringing copies are put.

The District Court rejected Fox's alternative arguments that Dish was vicariously liable for inducing or contributing to direct infringement by the customers who use Dish's Hopper. Unlike in MGM v. Grokster, Dish's users were not making infringing copies.

See, 2005 Supreme Court opinion [55 pages in PDF] in MGM v. Grokster, reversing the judgment of the U.S. Court of Appeals (9thCir) regarding vicarious copyright infringement by the distributors of peer to peer (P2P) systems. The Supreme Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See also, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

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

People and Appointments

11/12. Microsoft announced in a release that Steven Sinofsky, President of Windows and Windows Live, will leave Microsoft, and that Julie Green "will be promoted to lead all Windows software and hardware engineering". Also, Tami Reller remains CFO and Chief Marketing Officer and "will assume responsibility for the business of Windows". Microsoft released Windows 8 to manufacturers on August 1, 2012, and to the public on October 26, 2012.

Go to News from November 6-10, 2012.