Judicial Appointments

4/15. The Senate confirmed Beverly O'Connell to be a Judge of the U.S. District Court for the Central District of California by a vote of 92-0. See, Roll Call No. 96, and Congressional Record, April 15, 2013, at Page S2655.

4/15. President Obama nominated Vernon Broderick to be a Judge of the U.S. District Court for the Southern District of New York. See, White House news office release and release. He is a partner in the New York City office of the law firm of Weil Gotshal & Manges.

Japan Joins TPP Negotiations

4/12. Kenichiro Sasae, Ambassor of Japan, sent a letter to Demetrios Marantas, the acting U.S. Trade Representative, in which he stated that "Prime Minister of Japan, Mr. Shinzo Abe, has formally announced his decision to seek participation in the TPP negotions."

Sen. Max Baucus (D-MT) stated in a release that "This is encouraging news. Japan's participation in the Trans-Pacific Partnership talks presents an extraordinary opportunity that could open up huge new markets to American goods and services. With Japan included, the TPP would account for nearly 40 percent of the global economy and provide a major shot in the arm to America's manufacturing, business and agriculture industries. It will mean more jobs and faster growth in Montana and all across America."

"The TPP has to be a high-standard agreement in order for it to live up to its promise, and Japan needs to meet those standards as the negotiations progress. By accepting more U.S. beef exports, Japan showed it is willing to take the kind of steps this agreement requires. We will set a high bar moving forward and work closely with the administration to ensure the TPP works for American businesses, ranchers, farmers and workers."

Sen. Orrin Hatch (R-UT) stated in a release that "This is an important and welcome development. American goods and products have faced market access barriers to Japan for decades. Japan's entry into the Trans-Pacific Partnership is an historic opportunity to open up one of the world’s largest export markets to the benefit of both of our countries. By supporting Japan's entry into the Trans-Pacific Partnership, the Administration must believe that Japan has the ability and political will to meet the high-standard, comprehensive commitments that have long defined U.S. trade agreements. I sincerely hope that is the case. I look forward to consulting closely with the Administration to ensure that our negotiations with Japan achieve real market access for American goods and services."

Rep. Dave Camp (R-MI), Chairman of the House Ways and Means Committee (HWMC), stated in a release that "I intend to continue my intensive consultations with the Administration on the TPP agreement. The bottom line is Japan must address its longstanding tariff and non-tariff barriers to U.S. exports – in particular on autos, insurance, and agriculture. I will not support Japan’s entry into TPP unless we obtain airtight assurances that Japan’s participation in the TPP negotiations will neither diminish the comprehensive and ambitious nature of these negotiations nor delay the goal of concluding the negotiations this year."

Rep. Devin Nunes (R-CA), Chairman of the HWMC's Subcommittee on Trade, stated in this release that "Japan's participation in the TPP could greatly benefit U.S. companies, workers, farmers, and ranchers, but only if Japan meaningfully addresses its barriers to U.S. exports, particularly in the agriculture sector. I will work closely with USTR as this process continues. Japan must be prepared to meet TPP's highly ambitious and comprehensive obligations without slowing down the negotiations."

Sen. Leahy Again Introduces Bill to Make USPTO Acceleration Certificates Alienable

4/11. Sen. Patrick Leahy (D-VT) and Sen. Christopher Coons (D-DE) introduced S 712 [LOC | WW], the "Patents for Humanity Program Improvement Act of 2013", a bill to make the U.S. Patent and Trademark Office's (USPTO) acceleration certificates alienable.

The two introduced a substantially identical bill, S 3652 [LOC | WW], near the end of the 112th Congress. See, story titled "Sen. Leahy Introduces a Bill to Make USPTO Acceleration Certificates Alienable" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012.

Patent applications and other proceedings take time. The USPTO created a program in February of 2012 under which it grants "acceleration certificates" to patent applicants, owners and licensees, based upon value judgments regarding USPTO policy goals, who have used patented technologies to "address humanitarian needs". See, notice in the Federal Register, Vol. 77, No. 26, Wednesday, February 8, 2012, Pages 6544-6548.

However, the USPTO program does not allow those awarded "acceleration certificates" to sell or otherwise alienate these "certificates" to others.

This bill would confirm the USPTO program, make these certificates alienable, and thereby create a market for preferential treatment at the USPTO.

The December 10, 2012 TLJ story contains a more detailed description of the USPTO program. See, subsection titled "USPTO Acceleration Certificates Program". That story also offers the analysis that both the USPTO's program, and the proposal contained in Sen. Leahy's bill, lie outside of the mission of the Constitutionally ordained patent system, which is to secure for limited times to inventors the exclusive right to their discoveries. See, subsection titled "Commentary".

Sen. Leahy stated in the Senate on April 11, 2013 that "limited exclusive rights for inventors incentivize research and development", and that "These limited rights can also be applied to incentivize research and discoveries that advance humanitarian needs." See, Congressional Record, April 11, 2013, at Page 2592.

He continued that his bill "improves on a program created by the" USPTO by making "these acceleration certificates transferrable."

He added that "It is a straightforward, cost-neutral bill that will strengthen this useful program. When Congress can establish policies that provide business incentives for humanitarian endeavors, it should not hesitate to act. I urge the Senate to work swiftly to pass this legislation."

This bill was referred to the Senate Judiciary Committee (SJC).

Rep. Boustany Writes IRS Regarding Searching E-Mail and Social Media

4/11. Rep. Charles Boustany (R-LA), Chairman of the House Ways and Means Committee's (HWMC) Subcommittee on Oversight, sent a letter to the Internal Revenue Service (IRS) in which he asked questions about IRS search practices involving electronic communications and social media.

Rep. Boustany (at right) wrote that "Recent media reports have disturbingly claimed that it is the IRS's view that it does not need a search warrant to review certain electronic communications by private citizens. Other reports state that IRS officials have used social media, such as Facebook and Twitter, to mine additional information about taxpayers."

He also propounded interrogatories, to be answered by the IRS by April 26, 2013.

He asked, for example, that the IRS explain its "current policy on searching taxpayer emails, including when it believes it must obtain a search warrant and when it does not", and provide copies of any relevant IRS memos or guidelines.

He also asked that the IRS explain its "current policy on searching and reviewing taxpayer social media profiles", and provide copies of any IRS memos or guidelines.

David Dreier Recommends that PRC Join TPP Negotiations

4/11. Former Rep. David Dreier (R-CA) wrote an opinion piece that the Wall Street Journal published on April 12, 2013, titled "China Belongs in the Pacific Trade Talks".

Dreier (at right) served in the House for 32 years, through the 112th Congress, including as Chairman of the House Rules Committee.

He wrote that "Japan's impending entry into the TPP means that the deal's participants already account for 40% of global gross domestic product. Yet an obvious and vital participant is still missing: China."

"China's growing political and economic power generates two reactions among its neighbors. One is a desire, which the U.S. shares, for close economic and trade links to Asia's largest economy. The other is a desire among Asian nations for close security ties with Washington, as a hedge against Chinese policies that many fear may turn increasingly aggressive." But, Dreier argued that the TPP "shouldn't be about hedging".

"China can ultimately be one of the biggest beneficiaries of the TPP and its high standards on investment, services and intellectual property. Yet the country's leaders don't currently see their interests that way. This is an important moment. The U.S. must find ways to talk to a wide spectrum of stakeholders in China -- from entrepreneurs to Communist Party officials -- on TPP and a shared future as leaders in global trade."

House to Accelerate Consideration of the CISPA

4/11. Rep. Pete Sessions (R-TX), Chairman of the House Rules Committee (HRC), announced in a letter to members of the House of Representatives that the HRC "may meet the week of April 15th to grant a rule that could limit the amendment process for floor consideration of" HR 624 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act".

The House Intelligence Committee (HIC) amended this bill in a closed session on April 10. See, HR 624 as amended [31 pages in PDF].

The deadline for members to submit proposed amendments to the HRC is 10:00 AM on Tuesday, April 16, 2013. The HRC will meet to adopt a rule at 3:00 PM on April  16 in Room H-313 of the Capitol Building.

The HIC announced in a release, backdated to April 10, that "The bill is expected to be considered by the full House next week."

Marking up a bill that would create public law in secret session is extraordinary procedure. The general House rule is that markups must be open to the public. However, the open mark up rule only applies to standing committees, and the HIC is a select committee. See, Rule XI(g)(1) of the Rules of the House of Representatives [48 pages in PDF] at page 17.

Bringing up a bill in the House so soon after mark up is also extraordinary, and even more so given the length and complexity of the bill, the extensive changes made in the mark up, and the delay in releasing the amendments to the public.

The extent to which the bill is enacted under closed and non-transparent procedure will also be affected by the decisions of the HRC regarding what amendments it makes in order.

These procedures have the effect of prejudicing the opposition's ability to analyze the bill, and inform affected entities and voters of its contents. Such rapid and closed procedure inhibits the organization of opposition, open debate, and public understanding of and participation in democratic processes.

However, it might be said in defense of the House and HIC leadership that when Sen. Harry Reid (D-NV), the Senate Majority Leader, attempted to pass the cyber security bill backed by President Obama in the 112th Congress, he followed even less open and transparent procedure. That bill was not marked up by any Senate committee, and Sen. Reid barred amendments on the floor.

See, stories titled "Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,419, August 3, 2012, and "Senate Again Rejects Cloture on Bill to Impose Cyber Security Regulatory Regime" in TLJ Daily E-Mail Alert No. 2,473, November 14, 2012.

Critics Comment on Draft CFAA Amendments Bill

4/11. Members of the House have not yet introduced a bill in the 113th Congress that would revise the Computer Fraud and Abuse Act (CFAA). Also, the House Judiciary Committee (HJC), which would have jurisdiction, has not yet announced a hearing or mark up. However, opponents of a draft bill have circulated and criticized this draft bill.

The CFAA, which is codified at 18 U.S.C. § 1030, provides for both criminal prosecution, and private rights of action, for unauthorized access to protected computer systems. It is the primary anti computer hacking statute.

The Center for Democracy and Technology (CDT) and others sent a letter dated April 2 to leaders of the HJC to express their opposition to "draft legislation reportedly slated for consideration this month to amend the Computer Fraud and Abuse Act by increasing penalties and expanding the scope of conduct punishable under the statute".

The signers of the letter are members of groups that span the ideological spectrum, from the ACLU, Free Press and Electronic Frontier Foundation (EFF) to the Heritage Foundation (HF), Tech Freedom (TF) and Competitive Enterprise Institute (CEI).

The letter states that "As currently written, the CFAA imposes criminal and civil liability for accessing a protected computer without or ``in excess of authorization.´´ ``Exceeds authorized access´´ is vague, and the government and civil litigants have pressed courts to find CFAA violations whenever someone uses computers in a fashion that the system owner doesn't like. This means private companies write federal criminal law when they draft their computer use policies. As a result, CFAA cases have been brought against users who violate websites’ terms of service (TOS), employees who violate their employers’ policies, and customers who breach software licenses."

The letter raises that matter of Aaron Schwartz. See, stories titled "Grand Jury Returns Indictment for Unauthorized Downloading of 4.8 Million JSTOR Articles" in TLJ Daily E-Mail Alert No. 2,264, July 20, 2011, "Aaron Schwartz Commits Suicide" in TLJ Daily E-Mail Alert No. 2,508, January 15, 2013, and "Senate Judiciary Committee Holds DOJ Oversight Hearing" in TLJ Daily E-Mail Alert 2,532, March 7, 2013.

It also states that "the draft under discussion is a significant expansion of the CFAA at a time when public opinion is demanding the law be narrowed".

This is a large bill that addresses many subjects other than amendments to the CFAA. It would also create a new criminal prohibition, with significant penalties, including 30 year prison sentences, for "Aggravated Damage to a Critical Infrastructure Computer". It would also create a federal data security and data breach notification regime. See, related story in this issue titled "Summary of Draft CFAA Amendments Bill".

Summary of Draft CFAA Amendments Bill

4/11. Members of the House have not yet introduced a bill in the 113th Congress that would revise the Computer Fraud and Abuse Act (CFAA). However, a draft bill has been circulated. This article summarizes some of the key provisions of this draft bill.

The draft bill has also been criticized. See, related story in this issue titled "Critics Comment on Draft CFAA Amendments Bill".

The CFAA, which is codified at 18 U.S.C. § 1030, provides for both criminal prosecution, and private rights of action, for unauthorized access to protected computer systems. It is the primary anti computer hacking statute.

Title I of this draft bill pertains mostly to computer hacking, the CFAA, and related matters. Title II pertains to data security and data breach notification.

Economic Espionage. Section 101 would amend 18 U.S.C. § 1831, regarding economic espionage, by raising the maximum prison term from 15 to 20 years. This picks up where the 112th Congress left off late last year.

The Congress passed HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", late in the 112th Congress. Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and others introduced this bill on June 27, 2012. See, story titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,405, July 9, 2012. The House passed this bill on August 1. See, story titled "House Passes Bill that Increases Penalties for Economic Espionage" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012. The Senate amended and passed this bill on December 19, 2012. See, story titled "Senate Passes Economic Espionage Penalties Bill" in TLJ Daily E-Mail Alert No. 2,496, December 21, 2012. The House then passed this Senate version on January 1, 2013. See, story titled "House Passes Senate Version of Foreign and Economic Espionage Penalty Enhancement Act of 2012" in TLJ Daily E-Mail Alert No. 2,501, January 1, 2013.

In short, the House bill would have increased the maximum penalty from 15 to 20 years. The Senate took out this provision. And, that is what became law. Now, the draft bill at hand would enact the clause that got deleted late last year.

Another proposal for addressing hacking for economic espionage and theft of trade secrets, which is not in this bill, is to amend the Foreign Sovereign Immunities Act (FSIA) to confer jurisdiction in the federal courts over private rights of action against foreign governments, and government owned business entities, for such conduct.

RICO Predicate Offenses. Section 102 of this draft bill would amend 18 U.S.C. § 1961 to make violation of the CFAA a predicate offense for prosecution or civil action under the Racketeering Influenced and Corrupt Organizations (RICO) statute. The list of predicate offenses is already huge.

This draft bill would also add violation of 18 U.S.C. § 1029, regarding access device fraud, to the list of predicate offenses.

This draft bill would also add violation of 18 U.S.C. § 1084, regarding transmission of gambling information, to the list of predicate offenses. This is not germane to a bill regarding computer hacking and cyber security.

Trafficking in Passwords. Section 103 of this bill would add trafficking in passwords to the list of actions barred by the CFAA.

It provides that whoever "knowingly and with intent to defraud traffics (as defined in section 1029) in any password or similar information or means of access through which a protected computer ... may be accessed without authorization" shall be punished. (Parentheses in original.)

Increased Penalties for Violations of the CFAA. Section 103 of this draft bill would also increase penalties for many types of violation of the CFAA.

Critical Infrastructure. Section 104 of this draft bill would add a new Section 1030A, titled "Aggravated Damage to a Critical Infrastructure Computer".

This bill defines "critical infrastructure computer" as "a computer that manages or controls systems or assets vital to national defense, national security, national economic security, public health or safety, or any combination of those matters, whether publicly or privately owned or operated, including -- (A) gas and oil production, storage, and delivery systems; (B) water supply systems; (C) telecommunication networks; (D) electrical power delivery systems; (E) finance and banking systems; (F) emergency services; (G) transportation systems and services; (H) government operations that provide essential services to the public."

The prohibition, would be as follows: "Whoever, during and in relation to a felony violation of section 1030, intentionally causes or attempts to cause damage to a critical infrastructure computer, and such damage results in (or, in the case of an attempt, would, if completed have resulted in) the substantial impairment -- (1) of the operation of the critical infrastructure computer, or (2) of the critical infrastructure associated with the computer, shall be fined under this title, imprisoned for not more than 30 years, or both." (Parentheses in original.)

More Provisions. Section 105 of this draft bill would require the Administrative Office of the United States Courts to write a report" providing an assessment of the vulnerability of the Federal courts’ computer and network systems to cyber intrusion and attacks that includes recommendations on changes and improvements to the Federal courts’ computer and network security systems ..."

Section 106 of this draft bill would authorize the Department of Justice (DOJ) to create a National Cyber Investigative Joint Task Force.

This draft bill does not contain definitions of either "without authorization" or "exceeds authorized access". Nor does it address the Lori Drew, or terms of service, issue. However, it does address "without authorization" and "exceeds authorized access" in the context of just one of the many categories of actions barred by the CFAA -- Subsection 1030(a)(2).

Data Security and Data Breach Notification. Title II of this draft bill would create a federal data security and data breach notification regime, with a strong federal preemption clause.

House Intelligence Committee Releases CISPA Amendments

4/11. The House Intelligence Committee (HIC) released on April 11 the amendments to HR 634 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or CISPA considered at its closed meeting on April 10, 2013.

The HIC approved by voice vote a managers' amendment [3 pages in PDF] offered by Rep. Mike Rogers (R-MI) and Rep. Dutch Ruppersberger (D-MD), the Chairman and ranking Democrat on the HIC.

The HIC approved by voice vote an amendment [2 pages in PDF] offered by Rep. Mike Thompson (D-CA). See also, Rep. Thompson's release.

The HIC approved by voice vote an amendment [1 page in PDF] offered by Rep. Jim Langevin (D-RI).

The HIC approved by voice vote an amendment offered by Rep. Joe Heck (R-NV) and Rep. Jim Himes (D-CT).

The HIC approved by voice vote an amendment offered by Rep. Himes.

The HIC approved by voice vote an amendment offered by Rep. Terri Sewell (D-AL).

The HIC rejected an amendment offered by Rep. Janice Schakowsky (D-IL) by a vote of 5-14. Rep. Schakowsky, Rep. Adam Schiff (D-CA), Rep. Pastor, Rep. Himes, and Rep. Sewell voted yes.

The HIC rejected a second amendment offered by Rep. Schakowsky by a vote of 3-16. Rep. Schakowsky, Rep. Schiff and Rep. Pastor voted yes.

The HIC rejected a third amendment offered by Rep. Schakowsky by a vote of 4-16. Rep. Schakowsky, Rep. Schiff, Rep. Pastor, Rep. Himes voted yes.

The HIC rejected an amendment offered by Rep. Schiff by a vote of 4-16. Rep. Schakowsky, Rep. Schiff, Rep. Pastor, Rep. Himes voted yes.

Finally, the HIC approved the bill as amended by a vote of 18-2. Rep. Schakowsky and Rep. Schiff voted no.

People and Appointments

4/11. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over the nomination of Gregory Phillips to be a Judge of the U.S. Court of Appeals for the 10th Circuit. This nomination is again on the agenda for the SJC's meeting of April 18.

4/11. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved by voice vote the nomination of Kenneth Gonzales to be a Judge of the U.S. District Court for the District of New Mexico.

Go to News from April 6-10, 2013.