TLJ News from February 11-15, 2013

People and Appointments

2/15. Sen. Frank Lautenberg (D-NJ) announced in a release that he will not run for re-election in 2014.

GAO Releases Report on Cyber Security

2/14. The Government Accountability Office (GAO) released a report [112 pages in PDF] titled "Cybersecurity: National Strategy, Roles, and Responsibilities Need to Be Better Defined and More Effectively Implemented".

It states that "it is critical that the government adopt a comprehensive strategic approach to mitigating the risks of successful cybersecurity attacks. Such an approach would not only define priority problem areas but also set a roadmap for allocating and managing appropriate resources, making a convincing business case to justify expenses, identifying organizations' roles and responsibilities, linking goals and priorities, and holding participants accountable for achieving results."

"However," the report finds that "the federal government’s efforts at defining a strategy for cybersecurity have often not fully addressed these key elements, lacking, for example, milestones and performance measures, identified costs and sources of funding, and specific roles and responsibilities. As a result, the government's cybersecurity strategy remains poorly articulated and incomplete."

It adds that "In fact, no integrated, overarching strategy exists that articulates priority actions, assigns responsibilities for performing them, and sets time frames for their completion. In the absence of an integrated strategy, the documents that comprise the government’s current strategic approach are of limited value as a tool for mobilizing actions to mitigate the most serious threats facing the nation."

People and Appointments

2/14. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nomination of David Medine to be Chairman of the Privacy and Civil Liberties Oversight Board. His nomination is again on the agenda for the SJC's executive business meeting on February 28, 2013.

2/14. The Senate Judiciary Committee (SJC) held an executive business meeting at which Sen. Patrick Leahy (D-VT), the Chairman of the SJC, presented Sen. Orrin Hatch (R-UT) with a gavel on the occasion of his becoming the longest serving Republican member in the history of the SJC. Sen. Leahy and Sen. Hatch both joined the SJC in 1979.

2/14. Sen. Charles Grassley (R-IA) announced at an executive business meeting of the Senate Judiciary Committee (SJC) that a member of his SJC staff, Ralph Johnson, died. He also worked on the staff of Sen. Jeff Sessions (R-AL) on the confirmation of Elena Kagan to be a Justice of the Supreme Court. Sen. Patrick Leahy (D-VT) reflected that the SJC is like a family, and this is a death in the family.

Judicial Appointments

2/14. The Senate Judiciary Committee (SJC) approved the nomination of Patty Schwartz (USCA/3rdCir) by a vote of 11-7, without any debate or discussion. It was a straight party line vote, with all of the Democrats voting yes, and the Republicans voting no, except that Sen. Charles Grassley (R-IA) voted yes. Schwartz was blocked by filibuster in the 112th Congress.

2/14. The Senate Judiciary Committee (SJC) approved the nomination of Caitlin Halligan (USCA/DCCir) by a vote of 10-7. It was a straight party line vote, with all of the Democrats voting yes, and all of the Republicans voting no, except that Sen. Mike Lee (R-UT) missed the vote. Halligan was blocked by filibuster in the 112th Congress.

2/14. The Senate Judiciary Committee (SJC) approved in one en banc voice vote, without any debate or discussion, the nominations of Ketanji Jackson (USDC/DC), Mark Barnett (USITC), and Claire Kelly (USITC), Katherine Failla (USDC/SDNY), Analisa Torres (USDC/SDNY), Pamela Ki Mai Chen (USDC/EDNY), Andrew Gordon (USDC/DNev), Raymond Moore (USDC/DColo), Troy Nunley (USDC/EDCal), Beverly O'Connell (USDC/CDCal), and Derrick Watson (USDC/DHaw).

2/14. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over the nominations of Shelly Dick (USDC/MDLa), William Orrick (USDC/NDCal), and Nelson Roman (USDC/SDNY). These nominations are again on the agenda for the SJC's executive business meeting on February 28, 2013.

Rep. Rogers and Rep. Ruppersberger Re-Introduce CISPA

2/13. Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersberger (D-MD) introduced HR 624 [LOC | WW | PDF], the "Cyber Intelligence and Sharing Protection Act" or CISPA. This is a revised version of HR 3523 [LOC | WW], a bill with the same titled, that the House passed in the 112th Congress.

Rep. Rogers is the Chairman of the House Intelligence Committee (HIC). Rep. Ruppersberger is the ranking Democrat on the HIC.

Rep. Ruppersberger (at right) stated in a release that "American industry is under attack, costing our country and our economy billions of dollars and thousands of jobs. We need to do everything we can to enable American companies to defend themselves against these devastating cyber attacks. Our bill does just that by permitting the voluntary sharing of critical threat intelligence while preserving important civil liberties".

The bill would incent companies to share cyber threat information with relevant government agencies. Opponents of the bill equate this with surveillance, and a diminution of privacy.

The bill would also allow the government to share cyber threat intelligence with certain approved companies and other entities.

The bill would not create a new government regulatory regime. This is a source of opposition for those he seek such a regime, such as President Obama.

Legislative History. Rep. Rogers and Rep. Ruppersberger introduced the first version of this bill on November 30, 2011. See, story titled "Representatives Introduce Cyber Threat Information Sharing Bill" in TLJ Daily E-Mail Alert No. 2,316, November 30, 2011.

The HIC approved it by a vote of 17-1 on December 1, 2011.

The full House considered this bill, and numerous amendments, on April 26, 2012. The vote on final passage was 248-168. See, Roll Call No. 192. See also, stories titled "House Passes CISPA" and "Amendment by Amendment Summary of House Consideration of CISPA" in TLJ Daily E-Mail Alert No. 2,380, April 25, 2012.

President Obama opposed the bill. See, story titled "Obama EOP Opposes CISPA" in TLJ Daily E-Mail Alert No. 2,379, April 24, 2012.

See also, stories titled,

Neither any Senate Committee, nor the full Senate, considered the CISPA during the 112th Congress.

The bill backed by Sen. Harry Reid (D-NV) and President Obama was S 3414 [LOC | WW], the "Cybersecurity Act of 2012", or "CSA". This bill would have created a new cyber security regulatory regime. Neither any Senate Committee, nor the full Senate, approved S 3414 during the 112th Congress. However, Sen. Reid twice tried, but failed, to ram the CSA through the Senate without debate or opportunity to amend the bill.

Also, Sen. John McCain (R-AZ) introduced another cyber security bill, S 2151 [LOC | WW], the "Secure IT Act", in the 112th Congress.

Bill Summary. The CISPA is bill that would promote, but not mandate, information sharing. It would allow sharing, by the private sector, and by the government. It would create new immunities. On the other hand, it would create no new regulatory regime, no new criminal prohibition regime, and no data retention mandate.

It provides that the Director of National Intelligence (DNI) "shall establish procedures to allow elements of the intelligence community to share cyber threat intelligence with private-sector entities and utilities and to encourage the sharing of such intelligence."

This bill would amend Title 50, which pertains to national defense and intelligence, to authorize U.S. intelligence agencies to provide "classified cyber threat intelligence" to certain private sector entities, namely, "cybersecurity providers", "protected entities" (of cyber security providers), and "self-protected entities" (which provide their own cyber security). The bill further allows these entities to further share this intelligence, but prohibits "unauthorized disclosure".

This bill would also allow "cybersecurity providers" and "self-protected entities" to provide "cyber threat information" to others, and to the federal government.

Such information would be exempt from disclosure under the Freedom of Information Act. It would also be "considered proprietary information and shall not be disclosed to an entity outside of the Federal Government except as authorized by the entity sharing such information". Moreover, such information "shall not be used by the Federal Government for regulatory purposes".

The bill would also grant sweeping immunity from state and federal, and civil and criminal, actions and liability.

It provides that "No civil or criminal cause of action shall lie or be maintained in Federal or State court against a protected entity, self-protected entity, cybersecurity provider, or an officer, employee, or agent of a protected entity, self-protected entity, or cybersecurity provider, acting in good faith -- (A) for using cybersecurity systems to identify or obtain cyber threat information or for sharing such information in accordance with this section; or (B) for decisions made based on cyber threat information identified, obtained, or shared under this section."

The bill also imposes limits on the use of information given to the federal government. "The Federal Government may use cyber threat information shared with the Federal Government ... for cybersecurity purposes ... for the investigation and prosecution of cybersecurity crimes ..."

But then the bill would broadly allow use of such information for "for the protection of individuals from the danger of death or serious bodily harm and the investigation and prosecution of crimes involving such danger of death or serious bodily harm".

The bill adds that the federal government could not search its databases of cyber threat information, except for the above listed purposes.

Support for CISPA. This bill is back by many information technology companies and groups. For example, Peter Cleveland of Intel wrote in a letter to the HIC that "We applaud you for adopting a voluntary and non-regulatory approach to improving cybersecurity that incentivizes industry participation by providing much-needed legal certainty and liability protection to businesses engaged in responsible information sharing practices, and leverages existing public-private partnerships rather than creating new bureaucracies."

See also, statements of support from IBM, Internet Security Alliance and TechAmerica.

This bill is also backed by many voice, programming, and broadband service providers and their trade groups. For example, Walter McCormick, head of the US Telecom, stated in a release that "USTelecom is pleased to again support the "Cyber Intelligence Sharing and Protection Act," a bill that would enable the government and private sector to more efficiently detect, deter and respond to cyber threats. The legislation addresses this critical need, while providing the appropriate safeguards necessary for facilitating real-time information sharing. As threats and attacks continue to increase, this bill is needed even more urgently now than when it passed the House on a bipartisan vote last April. We look forward to working with Congressmen Rogers and Ruppersberger on this legislation."

Steve Largent, head of the CTIA, stated in a release that "Recent attacks on The New York Times, The Wall Street Journal and the Federal Reserve highlight the pressing need to enhance America’s ability to address cyberthreats. Our members are committed to helping, but they need the government to be a willing partner to share intelligence and develop solutions to protect our consumers and our networks."

Largent added that the "CTIA welcomes the introduction of the Rogers-Ruppersberger bill because Congress can help facilitate this collaboration by enacting a sensible framework to enable information sharing and provide appropriate liability protections. This bipartisan bill does that and CTIA urges the Congress to act quickly to make it law."

See also, statements of support from AT&T, Verizon, Comcast, Time Warner Cable, and National Cable & Telecommunications Association.

See also, letter signed by numerous groups, including Information Technology Industry Council (ITIC) and the Software and Information Industry Association (SIIA), as well as oil and gas, airline, railroad, electricity groups, and the U.S. Chamber of Commerce and the National Association of Manufacturers. Finally, financial services groups expressed their support.

Opposition to CISPA. Several groups announced their opposition to the just introduced CISPA on privacy grounds.

Michelle Richardson of the American Civil Liberties Union (ACLU) stated in a release that "The ACLU still opposes CISPA, which once again allows companies to share sensitive and personal American internet data with the government, including the National Security Agency and other military agencies ... CISPA does not require companies to make reasonable efforts to protect their customers’ privacy and then allows the government to use that data for undefined ‘national-security’ purposes and without any minimization procedures, which have been in effect in other security statutes for decades."

The Electronic Frontier Foundation (EFF) stated in a release that "EFF is adamantly opposed to CISPA".

Leslie Harris, head of the Center for Democracy and Technology (CDT), state in a release that the "CISPA remains fundamentally flawed".

She said that "It allows private Internet communications and information of American citizens to go directly to the NSA, a military intelligence agency that operates secretly with little public accountability. Once that private information is in the hands of the military, it can be used for purposes completely unrelated to cybersecurity."

"In seeking to promote cybersecurity information sharing, CISPA creates a sweeping exception to all privacy laws," said Harris. "It dismantles years of hard fought privacy protections for Americans. We urge all Members of Congress to oppose this bill and to work instead for cybersecurity legislation that enhances both privacy and security. CDT will work with all Members of Congress and all stakeholders to achieve that goal."

Obama Signs Cyber Security Order and Policy Directive

2/13. President Obama signed an Executive Order (EO) titled "Improving Critical Cybersecurity Infrastructure" and Presidential Policy Directive 21 (PPD-21), titled "Critical Infrastructure Security and Resilience".

The EO states that "It is the policy of the United States to enhance the security and resilience of the Nation's critical infrastructure and to maintain a cyber environment that encourages efficiency, innovation, and economic prosperity while promoting safety, security, business confidentiality, privacy, and civil liberties." The PPD similarly states that "It is the policy of the United States to strengthen the security and resilience of its critical infrastructure against both physical and cyber threats."

The EO and PPD direct the federal government to increase the flow of information from the government to the private sector regarding cyber threats. This is not controversial.

However, the EO and PPD take no meaningful steps to increase the flow of information from private sector entities about cyber attacks directed at them to the relevant government agencies. Indeed, this would require changes to law by the Congress.

Moreover, this is a controversial topic. On the one hand, some argue that this is a necessary component of any national cyber security strategy. The government needs this data to develop cyber threat intelligence. On the other hand, some argue that if private companies transfer more information to the government, that would entail diminishing the privacy of individuals.

Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that the EO "says that privacy must be built into the government's cybersecurity plans and activities, not as an afterthought but rather as part of the design ... By explicitly requiring adherence to fair information practice principles, the order adopts a comprehensive formulation of privacy. The annual privacy assessment, properly done, can create accountability to the public for government actions taken in the name of cybersecurity."

On the other hand, HR 624 [LOC | WW | PDF], the "Cyber Intelligence and Sharing Protection Act" or CISPA, introduced on February 13, seeks to incent the flow of information in both directions. See, related story in this issue titled "Rep. Rogers and Rep. Ruppersberger Re-Introduce CISPA".

There is also the matter of the role of the government in regulating or influencing the cyber security related practices of the entities that operate critical networks and systems. The federal government has authority to manage the cyber security practices of governmental and military networks and systems. And, the PDD addresses this.

However, most of the networks and systems that are or will be targeted by cyber attacks are owned and operated privately. There is no specific statute that enables the federal government to regulate private sector entities for the purpose of improving their cyber security.

President Obama sought, but failed to obtain passage of, a bill in the 112th Congress that would have created a cyber security regulatory regime. The just introduced CISPA would not create such a regulatory regime.

The EO and PPD are models of obfuscation on this matter government compulsion of private sector entities.

The EO is clear that the federal government will identify "critical infrastructure" and write "standards" for them.

The EO also states that "Nothing in this order shall be construed to provide an agency with authority for regulating the security of critical infrastructure in addition to or to a greater extent than the authority the agency has under existing law."

This EO calls for a partnership "partnership" and "collaboration" with the private sector.

It requires the Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) to write a "Cybersecurity Framework" that includes "standards". It then requires that the DOC "shall establish a voluntary program to support the adoption of the Cybersecurity Framework by owners and operators of critical infrastructure and any other interested entities", and "a set of incentives designed to promote participation".

Moreover, various departments shall "make recommendations" regarding whether "incentives would require legislation or can be provided under existing law". Also, various government entities shall make recommendations regarding incorporating the "standards into acquisition planning and contract administration".

The EO states that "Agencies with responsibility for regulating the security of critical infrastructure shall engage in a consultative process with DHS, OMB, and the National Security Staff to review the preliminary Cybersecurity Framework and determine if current cybersecurity regulatory requirements are sufficient given current and projected risks."

Then, "these agencies shall submit a report to the President ... that states whether or not the agency has clear authority to establish requirements based upon the Cybersecurity Framework to sufficiently address current and projected cyber risks to critical infrastructure, the existing authorities identified, and any additional authority required".

Also, "If current regulatory requirements are deemed to be insufficient, within 90 days of publication of the final Framework, agencies ... shall propose prioritized, risk-based, efficient, and coordinated actions ... to mitigate cyber risk."

That is, while the EO asserts that it merely creates a "voluntary" program, the EO also states that the government writes standards, decides who is covered by those standards, and then pursues numerous procedures to compel compliance with these standards.

Agencies such as the Federal Communications Commission (FCC) are already adept at compelling companies to promise to take actions against their interest, and then calling this submission "voluntary commitments". Consider, for example, the outcomes of FCC antitrust merger reviews.

This EO and PPD do not in plain and clear language purport to create a federal cyber security regulatory regime. However, they are full of vague phrases regarding regulatory activities, ambiguities, euphemisms, and carefully crafted linguistic goobledygook, that in the hands of government lawyers could be interpreted to mean whatever they want it to mean, including compelling companies to comply with standards set by the government.

People and Appointments

12/13. The Senate confirmed William Kayatta to be a Judge of the U.S. Court of Appeals (1stCir) by a vote of 88-12. See, Roll Call No. 20. All of the no votes were cast by Republicans. He was the subject of a filibuster in the 112th Congress.

Representatives Reintroduce Bill to Allow CBP to Share Information with IP Rights Holders

2/12. Rep. Ted Poe (R-TX), Rep. Zoe Lofgren (D-CA), and others introduced HR 22 [LOC | WW], the "Foreign Counterfeit Merchandise Prevention Act", a bill to amend both the Trade Secrets Act and the Lanham Act to allow the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP) to share certain information with the owners of copyrights and registered marks.

This is very similar, but not identical, to HR 6654 [LOC | WW | PDF], a bill with the same title, that was introduced late in 112th Congress. And, HR 6654 was a revised version of HR 4216 [LOC | WW], the "Foreign Counterfeit Prevention Act".

See, story titled "Representatives Introduce Revised Version of Customs Information Sharing Bill" in TLJ Daily E-Mail Alert No. 2,492, December 17, 2012, and story titled "titled "Rep. Poe and Rep. Chabot Introduce Bill to Allow Customs to Share Information with Rights Holders" in TLJ Daily E-Mail Alert No. 2,354, March 23, 2012.

HR 22 was referred to the House Judiciary Committee (HJC), which has jurisdiction over intellectual property matters, rather than the House Homeland Security Committee (HHSC), which oversees the DHS's CBP. However, this bill was referred to the HJC's Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, rather than its Subcommittee on Courts, Intellectual Property and the Internet (SCIPI).

Rep. Ted PoeRep. Poe (at right) and Rep. Lofgren are members of the HJC and SCIPI, but not the Crime Subcommittee. The other original cosponsors of this bill are Rep. Steve Chabot (R-IN), Rep. Buck McKeon (R-CA), Rep. William Keating (D-MA), Rep. Linda Sanchez (D-CA), and Rep. Mike McCaul (R-TX). Rep. McCaul is the Chairman of the HHSC.

Since introduction on January 3, other Representatives have joined in cosponsoring this bill, including Rep. Anna Eshoo (D-CA), the ranking Democrat on the House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT). Also, on February 12, Rep. Howard Coble (R-NC), Chairman of the HJC's SCIPI, joined as a cosponsor.

However, neither Rep. Bob Goodlatte (R-VA) nor Rep. John Conyers (D-MI), Chairman and ranking Democrat on the full Committee, are cosponsors. Nor is Rep. Mel Watt (D-NC), the ranking Democrat on SCIPI. Nor are Rep. James Sensenbrenner (R-WI) or Rep. Bobby Scott (D-VA), the Chairman and ranking Democrat on the Crime Subcommittee.

Rep. Scott criticized an earlier version of this bill as overbroadly allowing the sharing of proprietary and confidential supply chain information.

CBP Information Sharing. The CBP manages border and point of entry operations. This includes enforcing laws pertaining to importations of merchandise bearing recorded trademarks or recorded trade names, and circumvention devices banned by the Digital Millennium Copyright Act (DMCA). It is a function of the CBP to detect and block the importation of counterfeit goods and circumvention devices.

This protects the proprietary interests of rights holders. It also protects consumers. It also protects public safety, for example, in cases involving counterfeit and fake pharmaceutical products.

Historically, the CBP has obtained assistance from rights holders to assist it in determining if goods are counterfeit. This entails giving information about suspected goods to rights holders.

However, information sharing can also harm lawful importers, for example, when CBP provides sensitive information to the rights holders who are their competitors. The sharing of information by the CBP can entail providing competitors with information regarding where goods are made, by whom, when, and at what prices. It can also entail revealing sensitive information about the identity of wholesalers, exporters and other parties.

The American Free Trade Association (AFTA), stated in a release regarding HR 22 that "It is critical that CBP do everything possible to prevent entry of counterfeit merchandise which threatens or potentially threatens the health or welfare of American consumers. However, it is equally important to protect the valuable trade secrets and proprietary supply chain information of lawful U.S. importers. AFTA is committed to protecting against confusing, duplicative, unnecessary and conflicting rules and regulations impacting global trade in genuine branded consumer products, and is closely monitoring HR 22 which, in the guise of an anti-counterfeiting tool, has the much greater likelihood of decreasing product supply and escalating prices for genuine, brand name merchandise."

CBP Interpretation of Trade Secrets Act. In 2008 the CBP interpreted the Trade Secrets Act, which is codified at 18 U.S.C. § 1905, to bar this practice of sharing information with rights holders. Section 1905 is a broad criminal prohibition of disclosure of information by officers or employees of the federal government of certain trade secrets, proprietary information, and certain confidential commercial data that they obtain in the course of investigations.

Currently, the Section 1905 provides as follows: "Whoever, being an officer or employee of the United States or of any department or agency thereof ... publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures ... shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment."

This 2008 CBP interpretation made it more difficult for the CBP to block importation of counterfeits, and circumvention devices banned by 17 U.S.C. § 1201. This interpretation had the effect of harming rights holders, consumers and public safety.

Bill Summary. Section 2 of HR 22 would amend the Trade Secrets Act to clarify that the CBP can forward information, and samples, to rights holders and other injured parties, but only with respect to "tangible goods" presented to the CBP.

It would provide that it is not a violation of § 1905 for the CBP,

It would also provide that it is not a violation of § 1905 for the CBP,

Section 3 would revise the Lanham Act, at 15 U.S.C. § 1124, to provide that,

The term "critical merchandise" is critical this bill. It is defined to include only certain enumerated classes of merchandise. The list includes "semiconductors", which in turn is defined as a "semiconductor chip product" as defined by 17 U.S.C. § 901.

Section 901 defines "semiconductor chip product" as "having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a predetermined pattern; and (B) intended to perform electronic circuitry functions".

However, the just introduced HR 22 shortens the list of "critical merchandise" from the list contained in HR 6654 (112th Congress).

HR 22 covers only aircraft engines and parts, "motor vehicle equipment", semiconductors, and "any other article of manufacture that the Secretary determines could, if permitted entry into the United States in violation of the laws of the United States pose a danger to the health, safety, or welfare of consumers, or to the national security of the United States".

HR 6654 had more broadly covered things such as cosmetics, tobacco products, and "devices".

EU and US Announce Beginning of Transatlantic Trade and Investment Partnership Negotiations

2/12. The European Union and the US released a joint statement that announces that the EU and US "will each initiate the internal procedures necessary to launch negotiations on a Transatlantic Trade and Investment Partnership" or TTIP.

This statement discloses little. It does state that this bilateral TTIP would be "high-standard", "would advance trade and investment liberalization and address regulatory and other non-tariff barriers", and "expand trade and investment across the Atlantic".

The statement also predicts that this TTIP may "contribute to the development of global rules that can strengthen the multilateral trading system."

President Obama referenced this announcement in his speech on the evening of February 12, 2013. He said that "we will launch talks on a comprehensive Transatlantic Trade and Investment Partnership with the European Union -- because trade that is fair and free across the Atlantic supports millions of good-paying American jobs."

The EU elaborated in a release that "it will focus on aligning rules and technical product standards which currently form the most important barrier to transatlantic trade".

The EU release adds that "Both the EU and the United States are committed to maintaining and promoting a high level of intellectual property protection, including enforcement. Given the efficiency of their respective systems, the intention is not to strive towards harmonisation, but to identify a number of specific issues where divergences will be addressed."

Finally, the EU wrote that "The US administration plans to send a notification to Congress triggering a 90-day layover period. Both sides aim to advance fast once negotiations are started."

Karel De GuchtAlso, EU Trade Commissioner Karel De Gucht (at left) gave a speech on February 13 in which he stated that "this undertaking won't be easy. Ideally, we'd like to complete this work in about two years from now -- but, more paramount than speed is achieving an ambitious deal."

"First of all, we still need to dismantle any remaining traditional tariffs and then we need to make head-way on market access issues in other areas such as public procurement, services and investment." But, said De Gucht, "our main focus has to be to tackle those barriers which are behind the customs border -- such as differences in technical regulations, standards and certifications".

He said that this is "An opportunity for us ... to work toward global rules".

In November of 2001 representatives of 140 nations met in Doha, Qatar, to launch negotiations toward global trade rules. Those negotiations, sometimes referred to as the Doha round, produced no new trade agreement. See, for example, story titled "Doha, WTO and Intellectual Property Rights" in TLJ Daily E-Mail Alert No. 307, November 12, 2001, and story titled "Doha Round on Brink of Failure" in TLJ Daily E-Mail Alert No. 2,229, April 29, 2011.

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "Completing negotiations on a Trans-Pacific Partnership and launching talks on a comprehensive trans-Atlantic trade deal can provide a huge boost for the digital economy as we move further into the cloud era".

Holleyman added that "We need to foster the growth of a cohesive international marketplace where commercial data can flow easily across borders. Companies should be able to do business wherever there is a market for their products and services -- and customers everywhere should be able to choose from the best solutions the world has to offer. That will require countries to embrace policy frameworks that promote innovation, provide incentives to build the infrastructure to support it, and foster confidence that using information technologies will bring the anticipated benefits without sacrificing expectations of privacy, security and safety."

Tom Donohue, head of the US Chamber of Commerce, stated in a release that "The stars are finally aligned, and we urge the U.S. and EU governments to move forward swiftly to negotiate a high-standard agreement that will foster economic growth and job creation for all our citizens."

Obama Mentions Trans Pacific Partnership Trade Agreement

2/12. President Obama stated in his speech of February 12, 2013, that "To boost American exports, support American jobs and level the playing field in the growing markets of Asia, we intend to complete negotiations on a Trans-Pacific Partnership."

The only parties to the ongoing Trans-Pacific Partnership (TPP), also known as TPPA, negotiations are Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the US.

Neither Japan, the People's Republic of China (PRC), Taiwan, or Korea are parties. Neither is the EU or any of its member states.

However, some companies and organized interests hope that a TPP agreement will become a model for other bilateral and multilateral trade agreements, and serve as a foundation for a stronger set of global trade rules.

US IP based industries seek strong IP related provisions. On the other hand, other organized interests in the US hold a competing vision for any TPP agreement.

Numerous entities addressed the matter of IP provisions in the TPP in comments submitted to the IPEC in August of 2012. See, story titled "IPEC Receives Comments Regarding Next Version of Joint Strategic Plan for IP Enforcement" and related stories in TLJ Daily E-Mail Alert No. 2,428, August 14, 2012, and "OUSTR Pleased With Progress in TPPA Negotiations" and "Rep. DeFazio Expresses Protectionist Opposition to TPPA" in TLJ Daily E-Mail Alert No. 2,448, September 14, 2012.

President Obama said nothing in his February 12 speech regarding where he stands on IP provisions in the TPP, or any other matters to be addressed by the TPP.

State of the Union Speeches

2/12. President Obama gave a speech in the chamber of the House of Representatives titled "State of the Union Address". He said very little about technology related areas of law or policy.

Article II, Section 2 of the Constitution states that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient". While Presidents give annual "State of the Union" speeches, they long ago stopped reporting on the "State of the Union".

President Obama delivered a political speech, bearing many of the attributes of his election campaign speeches. Sen. Marco Rubio (R-FL) delivered a political speech in rebuttal on behalf of Congressional Republicans. Neither speech had much to do with law or policy related to information and communications technology.

However, the President spoke in vague terms about science, technology, engineering and math (STEM) education. Sen. Rubio said that "We need student aid that does not discriminate against programs that non-traditional students rely on -- like online courses".

President Obama urged legislative reform of immigration laws to "attract highly skilled entrepreneurs and engineers". Similarly, Sen. Rubio said, "We can also help our economy grow if we have a legal immigration system that allows us to attract and assimilate the world's best and brightest."

The President also stated that he signed an executive order regarding cyber security, and urged the Congress to pass cyber security legislation. But, he did not describe the contents of either.

He also announced the commencement of trade negotiations with the European Union (EU). He also said that his administration intends "to complete negotiations on a Trans-Pacific Partnership".

He did not discuss the intellectual property (IP) related components of these trade negotiations. Nor did he discuss any other IP related matters. However, he did state that "3D printing that has the potential to revolutionize the way we make almost everything". 3D printing involves numerous IP issues.

He also said that "We’ll give new tax credits to businesses that hire and invest." He did not elaborate.

Representatives Introduce Trade Protectionism Bills

2/12. Numerous bills with protectionist components have been introduced in the House in the 113th Congress. The following is an overview.

On January 23, Rep. David Cicilline (D-RI) and other Democrats introduced HR 375 [LOC | WW], the "Make It In America Manufacturing Act of 2013", a bill to provide subsidies to US manufacturers. It was referred to the House Financial Services Committee.

On January 14, Rep. Marsh Blackburn (R-TN) and Rep. Bill Huizenga (R-MI) introduced HR 221 [LOC | WW], the "Stop Mergers, Acquisitions, and Risky Takeovers Supplied by American Labor and Entrepreneurship Act of 2013" or the "SMART SALE Act of 2013". It would create a new regulatory regime at the Department of Energy (DOE) affecting mergers with, and acquisitions by, companies of the People's Republic of China (PRC) and any other country designated by the President, of US companies that have received federal energy research and development funding. Rep. Blackburn issued a release that identifies wasted federal spending, under the pretext of stimulating the economy, for companies such as Solyndra, Beacon Power and A123, as the motivation for this bill. It was referred to the House Commerce Committee (HCC) and the House Science Committee (HSC).

On January 4, Rep. Charles Boustany (R-LA) and Rep. Cedric Richmond (D-LA) introduced HR 166 [LOC | WW], the "Preventing Recurring Trade Evasion and Circumvention Act" or "PROTECT Act", a bill to create at the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP) a Trade Law Remedy Enforcement Division to enforce countervailing duty orders and antidumping duty orders. It was referred to the House Ways and Means Committee (HWMC).

On January 4, Rep. Mike McIntyre (D-NC) introduced HR 156 [LOC | WW], and Rep. Marcy Kaptur (D-OH) introduced HR 191 [LOC | WW]. The two bills are different, but both would provide for US withdrawal from the North American Free Trade Agreement (NAFTA). Both bills were referred to the House Ways and Means Committee (HWMC).

On January 4, Rep. Kaptur introduced HR 192 [LOC | WW]. the "Balancing Trade Act of 2013". This bill would provide that "If in 3 consecutive calendar years the United States has a trade deficit with another country of $10,000,000,000 or more, the President shall take the necessary steps to create a trading relationship with the country that would eliminate or substantially reduce that trade deficit". This bill would apply to many countries. See for example, US Census Bureau data regarding US trade deficits with the People's Republic of China (PRC), Japan, Korea, Thailand, Germany, Saudi Arabia, and India. This bill would not require the President to balance trade with nations for which there is a trade surplus. It was referred to the House Ways and Means Committee (HWMC).

On January 4, Rep. Kaptur introduced HR 194 [LOC | WW], the "Congressional Made in America Promise Act of 2013". It was referred to the House Administration Committee and the House Oversight and Government Reform Committee.

Go to News from February 6-10, 2013.