TLJ News from September 16-20, 2013

NIH Proposes to Create and Provide Access to a National Genome Database

9/20. The National Institutes of Health (NIH) published a notice in the Federal Register (FR) that announces, and seeks public comments on, its proposal to create, and provide access to, a national electronic database of genomic information.

This notice also contains the text of the NIH's proposed "Draft NIH Genomic Data Sharing Policy " or "GDS Policy". See, FR, Vol.78, No. 183, September 20, 2013, at Pages 57860-57865.

The FR notice does not set a comment deadline. Rather, it states that comments are due "60 days after publication of this notice". TLJ calculates the deadline to be November 19, 2013.

The NIH, the entities that it funds, and the entities that will be permitted to download this data, seek to enhance health, lengthen life, and reduce disease. They use genomic data for these purposes. However, one person's genomic data discloses much information about that person.

Some genomic data is non-human, and therefore does not implicate interests in privacy, security or liberty. However, much genomic data is human. In addition, much of this data is attributable to specific individuals.

This NIH FR notice states that "privacy and confidentiality is paramount".

It continues that genomic data will be "deindentified". That is, "identifiers such as name, date of birth, street address, and social security number should be removed". Then, data will be assigned a "unique code to
protect participant privacy".

Yet, even if the NIH and all of the entities that submit genomic data to the NIH always accomplish this "deindentification", a whole genome sequence is in itself a unique identifier, and may be used to re-associate the genome sequence, and all the information that it discloses, with other identifiers, such as a name and social security number.

The GDS Policy states that entities will be allowed to download genomic data from NIH repositories. It states that such entities will  be required to sign something that states that they are "Not attempting to identify individual participants from whom the data were obtained", and will not sell the data to others.

It also states that the NIH will issue "guidance on security practices that outlines expected data security protections (e.g., physical security measures and user training) to ensure that the data are kept secure and not released to any person not permitted to access the data". (Parentheses in original. Footnote omitted.)

The 110th Congress enacted the "Genetic Information Nondiscrimination Act" (GINA) in 2008. It is Public Law No. 110-233. It provides that genetic information is health information within the meaning of the HIPAA.

The key part is Title II, which prohibits certain employment discrimination. It is codified at 42 U.S.C. SS 2000ff through 2000ff-11.

For example, it provides that "It shall be an unlawful employment practice for an employer ... to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee".

However, the GINA does not affect many other uses of genetic information, such as in issuing life insurance policies.

USTR Seeks Comments on Notorious Foreign Markets

9/20. The Office of the U.S. Trade Representative (OUSTR) published a notice in the Federal Register (FR) that requests comments to assist it in preparing a report on the internet and physical notorious markets that exist outside the US and that may be included in the OUSTR's 2013 Notorious Markets List.

This FR notice states that "Notorious markets are those where counterfeit trademark or pirated copyright products are prevalent to such a degree that the market exemplifies the problem of marketplaces that deal in infringing goods and help sustain global piracy and counterfeiting."

The OUSTR released its last report [9 pages in PDF] titled "Out-of-Cycle Review of Notorious Markets" on December 13, 2012. See, story titled "OUSTR Releases 2012 Notorious Markets Report" in TLJ Daily E-Mail Alert No. 2,492, December 17, 2012.

The OUSTR released its previous notorious markets report on December 20, 2011. See, report [6 pages in PDF] titled "Out-of-Cycle Review of Notorious Markets", and story titled "OUSTR Releases Notorious Markets Report" in TLJ Daily E-Mail Alert No. 2,321, December 21, 2011.

The deadline to submit comments is October 25, 2013. The original notice in the FR (Vol. 78, No. 183, September 20, 2013, at Pages 57924-57925) sets October 11 as the deadline. The OUSTR issued a release on September 23, extending the deadline to October 25. Comments must be in English. The docket number is USTR-2013-0030.

Stanford McCoy, the Assistant USTR for Intellectual Property and Innovation, is once again in charge of this proceeding.

This FR notice does not ask for comment on, or even reference, any particular online online or physical markets.

However, one key question for the OUSTR is whether or not to include Taobao on the notorious markets list. It is a consumer to consumer online marketplace owned by the Alibaba Group that operates in the People's Republic of China (PRC) in Chinese language. It is similar to eBay.

See, full story.

NIST Has E-Mail Difficulties

9/20. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register (FR) extending the deadline to submit comments in response to its Request for Information on Computer Security Incident Coordination. The new deadline is 11:59 PM on October 4, 2013.

It is also notable that the NIST disclosed that the reason for this extension is technical difficulties with receipt of e-mail containing comments.

That is, the agency that President Obama is establishing as the regulator of the private sector's cyber security related business practices, has difficulties managing its own e-mail system.

See, FR, Vol. 78, No. 183, September 20, 2013, at Pages 57839-57840.

See also, original notice in the FR, Vol. 78, No. 125, June 28, 2013, at Pages 38949-38951. It requests information to assist it in writing a NIST Special Publication (SP) that will set standards for the private sector.

People and Appointments

9/20. President Obama released a memorandum that sets forth the order of succession in the event of the death or incapacity of the Director of National Intelligence (DNI). See, notice in the Federal Register, Vol. 78, No. 186, September 25, 2013, at Pages 59159-59160.

Sen. Rockefeller Accuses Motorola Solutions of Undermining FirstNet

9/19. Sen. John Rockefeller (D-WV), the soon to retire Chairman of the Senate Commerce Committee (SCC) sent a letter to Motorola Solutions accusing it of undermining the efforts of the First Responder Network Authority, which is also known as the FirstNet, to create a first responder communications network.

He wrote that the construction of this network "threatens the current dominance your company enjoys in the public safety radio device and equipment market".

Sen. Rockefeller continued that "press reports" reveal that Motorola is "financing a public relations and lobbying campaign to erode support for FirstNet's work and mission. They suggest that your company has chosen not to accept the necessary changes the Act is making to our Nation's public safety communications, but instead that you are trying to protect your company's entrenched position".

On the other hand, government lobbying and public communications are things that companies and organized interests do, and Sen. Rockefeller has a history of rhetorical hyperbole regarding these activities.

People and Appointments

9/19. John McCoskey joined the Motion Picture Association of America (MPAA) as Executive Vice President and Chief Technology Officer (CTO). He was previously CTO for the Public Broadcasting Service (PBS). In addition, Alex Deacon joined the MPAA as Senior Vice President, Internet Technology. He will be based in Silicon Valley, California. See, MPAA release.

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Rep. Peter Welch

9/19. Rep. Peter Welch (D-VT) (at right) and Rep. Bob Latta (R-OH) released a statement regarding Federal Communications Commission (FCC) Chairman Mignon Clyburn's September 17 statement that she has circulated an Order and Further Notice of Proposed Rulemaking (FNPRM) regarding rural call completion. The two wrote that "In this day and age, there is simply no good reason why call completion rates in rural areas should differ from rates in urban and suburban areas.We strongly support practical efforts by the Commission and providers to ensure affordable and high quality telecommunications services in rural America. We are encouraged by this good first step and look forward to reviewing the details of the Order." See also, the FCC's February 2013 Notice of Proposed Rulemaking (NPRM). It is FCC 13-18 in WC Docket No. 13-39. Both Rep. Welch and Rep. Latta are members of the House Commerce Committee (HCC) and its Subcommittee on Communications and Technology.

House Passes Rare Earths Bill

9/18. The House passed HR 761 [LOC | WW], the "National Strategic and Critical Minerals Production Act of 2013", a bill that would have the effect of facilitating domestic mining and extraction of rare earth materials (REMs), which are used in information and communications technology (ICT) products. Republicans voted unanimously for the bill. Most Democrats voted against.

Outline of this Article.
   1. Introduction.
   2. Rare Earths.
   3. Bill Summary.
   4. Floor Debate.
   5. Amendments.
   6. Analysis of Votes.
   7. Conclusion.

1. Introduction. Currently, many applications for mineral extraction permits are blocked, not by final orders of administrative agencies, but by continuous delays by agencies. Many oppose mining operations in the U.S. for environmental reasons, and are content with this regime.

A key provision of this bill would set a time limit of 30 months for government review of permit applications for strategic and critical minerals projects. Other provisions of the bill are directed at facilitating final determinations on the merits in a timely manner.

During floor debate, Republicans emphasized the importance of REMs to ICT products. However, while this bill would accelerate the permitting process for REMs, it would also affect a wide range of other materials that could be deemed critical, including sand and gravel. Democrats focused on this aspect of the bill during floor debate. Republicans defeated proposed amendments that would have narrowed the scope of the bill.

Proponents of the bill also stressed the impact that this bill would have on mining jobs and income in the US. However, this is not just a matter of mining jobs in the US. Currently, almost all REMs are being produced in the People's Republic of China (PRC). Several years ago the PRC began to use its national dominance to favor domestic producers, discriminate against foreign competitors, and leverage technology transfers, to the detriment not only of US ICT and other industry sectors that use REMS, and the consumers of their products, but also producers and consumers in other countries. Not only the US, but also Japan and the European Union, have filed complaints with the World Trade Orgnanization (WTO) regarding the PRC's REM related practices.

The Senate has not yet passed this bill. There is no companion bill in the Senate. Democratic control of the Senate may preclude Senate consideration of this bill. However, Sen. Harry Reid (D-NV) is the Senate Majority Leader. All four Nevada Representatives -- two Republicans and two Democrats -- voted for the House bill. Nevada is a mining state, and Las Vegas is just across state lines from a major mining site with deposits of rare earth elements.

There have been related bills in the Senate. See for example, from the 112th Congress, S 1113 [LOC | WW], the "Critical Minerals Policy Act of 2011", sponsored by Sen. Lisa Murkowski (R-AK).

President Obama's Office of Management and Budget (OMB) has not released a public statement of support or opposition.

See also, story titled "House to Take Up Rare Earths Bill" in TLJ Daily E-Mail Alert No. 2,601, September 16, 2013.

See, full story.

4th Circuit Holds that Facebook Liking of Political Candidates is Protected Free Speech

9/18. The U.S. Court of Appeals (4thCir) issued its opinion [83 pages in PDF] in Bland v. Roberts, a case regarding First Amendment free speech rights, and alleged retaliation by an elected official by not reappointing employees who spoke in support of the opponent's candidacy, including by clicking on a like button in the Facebook web page of the opponent.

(The Court made a minor correction to its opinion on September 23.)

The District Court granted summary judgment against the plaintiffs. The Court of Appeals reversed the grant of summary judgment, reinstated the plaintiffs' claims, and remanded to the District Court.

This lengthy opinion addresses many issues related to retaliation against government employees. However, the one issue addressed by the Court that is of significance to technology relates whether clicking a "like" button for the Facebook web page of a political candidate constitutes Constitutionally protected free speech under the 1st Amendment.

The District Court held that "merely 'liking' a Facebook page is insufficient speech to merit constitutional protection". The Court of Appeals concluded otherwise. It is both pure speech and symbolic speech, and warrants protection.

It wrote that "``Liking创 on Facebook is a way for Facebook users to share information with each other." It elaborated that when one of the plaintiffs visited the Facebook webpage of the opposing candidate, "which was named ``Jim Adams for Hampton Sheriff," and he clicked the ``like创 button on the Campaign Page. When he did so, the Campaign Page's name and a photo of Adams -- which an Adams campaign representative had selected as the Page's icon -- were added to Carter抯 profile, which all Facebook users could view. On Carter抯 profile, the Campaign Page name served as a link to the Campaign Page. Carter抯 clicking on the ``like创 button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter抯 friends. And it caused Carter抯 name and his profile photo to be added to the Campaign Page抯 ``People [Who] Like This创 list."

The Court of Appeals offered this analysis. "In the context of a political campaign's Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance."

"Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood "thumbs up" symbol in association with Adams's campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams抯 candidacy."

The Court of Appeals concluded that "liking a political candidate抯 campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one抯 front yard, which the Supreme Court has held is substantive speech."

Judge Hollander dissented in part on the issue of qualified immunity.

This case is Bobby Bland, et al. v. B.J. Roberts, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 12-1671, an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. 4:11-cv-00045-RAJ-TEM, Judge Raymond Jackson presiding. Judge Traxler wrote the opinion of the Court of Appeals, in which Judge Thacker joined. Judge Hollander dissented in part.

MPAA Reports that Search Engines Facilitate Access to Infringing Video Content

9/18. The Motion Picture Association of America (MPAA) released an outsourced report [15 pages in PDF] titled "Understanding the Role of Search in Online Piracy".

This report states that "search engines influenced 20% of the sessions in which consumers accessed infringing TV or film content online between 2010 and 2012." Also, it states that "74% of consumers surveyed cited using a search engine as either a discovery or navigational tool in their initial viewing sessions on domains with infringing content".

"For the infringing film and TV content URLs measured, the largest share of search queries that lead to these URLs (82%) came from the largest search engine, Google."

It also states that "The share of referral traffic from Google to sites included in the Google Transparency Report remained flat in the three months following the implementation of Google抯 ``signal demotion创 algorithm in August 2012."

Chris Dodd
Chris Dodd
Photo by Marissa Rauch

Chris Dodd (at right), head of the MPAA, stated in a release that "This study reaffirms the significant responsibility that search engines share with all of us in the Internet ecosystem to help prevent the theft of movies and TV shows online".

Dodd added that "Search engines bear responsibility for introducing people to infringing content -- even people who aren't actively looking for it. The television and movie community is working every day to develop new and innovative ways to watch content online, and as the Internet抯 gatekeepers, search engines share a responsibility to play a constructive role in not directing audiences to illegitimate content."

Rep. Adam Schiff (D-CA) stated in this release that search engines "have a responsibility and a self-interest to take voluntary, good faith steps against rampant online piracy".

Members of the House and Senate tried to pass legislation in the 112th Congress that would exposed search engines to government compulsion.

There were multiple versions of these bills, with different language. The House bill, as introduced, for example, would have empowered the Department of Justice (DOJ) to issue orders directing search engines to take "technically feasible and reasonable measures ... to prevent the foreign infringing site ... from being served as a direct hypertext link".

The Senate bill was S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", "PROTECT IP Act", or "PIPA". The related bill in the House was HR 3261 [LOC | WW], the "Stop Online Piracy Act" or "SOPA". Senate and House proponents of these bills all but abandoned their efforts to pass these bills after a masterful lobbying effort by Google and others eroded Congressional support.

Michael PetriconeMichael Petricone (at left) of the Consumer Electronics Association (CEA) stated in a release that the just released MPAA report "is a Hollywood formula as familiar as a rom-com: Blame the technology instead of providing your customers with the experiences and products they want. Yesterday, it was the VCR and the MP3 player. Today, it's search engines, Aereo and the Dish Hopper."

Petricone added that "Search engines don't 'introduce' consumers to infringing content -- most consumers simply want legal, conveniently accessed digital content at a reasonable price. Indeed, studies show that unauthorized downloading decreases as legal alternatives proliferate."

Clyburn Circulates AM Radio Regulatory Relief NPRM

9/18. Federal Communications Commission (FCC) Chairman Mignon Clyburn announced in a speech [4 pages in PDF] that she circulated a Notice of Proposed Rulemaking (NPRM) regarding AM radio. She did not release the text of this draft NPRM to the public.

Clyburn gave this speech on September 18 in Orlando, Florida, at the NAB Radio Show 2013.

Mignon ClyburnClyburn (at right) said that "the sustainability of the AM broadcast service has been threatened by the migration of AM listeners to newer, higher-fidelity, media services." She said that the FCC has taken, and with this NPRM will continue to take, steps to ease regulatory burdens on AM broadcasters.

She said that this NPRM proposes "opening a one-time filing window, limited to current AM licensees and permittees, which will allow each to apply for one new FM translator station to fill in its service area".

It also proposes "relaxing the AM daytime community coverage rule to allow existing AM broadcasters more flexibility to propose antenna site changes", and "relaxing the AM nighttime community coverage standards, which will also provide broadcasters, who may have difficulty finding suitable sites, relief for towers and directional arrays".

She enumerated other proposals in this NPRM related to interference, Modulation Dependent Carrier Level (MDCL) control technologies, and use of shorter antennas.

FCC Commission Ajit Pai stated in a release that this NPRM "outlines many promising ideas for improving the service offered by AM broadcasters and reducing the regulatory burdens placed on AM stations."

He added that "the AM band faces many challenges today, which is why I proposed one year ago tomorrow that the FCC launch an initiative to revitalize it. Since then, I've heard from AM broadcasters and listeners all across the country asking the FCC to take action. Today, thanks to Chairwoman Clyburn抯 leadership, we have taken the first step in responding to their voices."

See also, Pai's September 20 speech.

Clyburn and Smith Address Putting Radio Receivers in Phones

9/18. Federal Communications Commission (FCC) Chairman Mignon Clyburn announced in a speech [4 pages in PDF] that she circulated a Notice of Proposed Rulemaking (NPRM) regarding AM radio. Clyburn's enumeration of proposals in this NPRM did not include any sort of mandate that phones be built with radio tuners.

However, Clyburn commented on putting radio receivers in smart phones. She said that people use their smart phones to "listen to their favorite music or talk program".

She continued that "I know every radio broadcaster is thinking every day about how to reach listeners on these devices, and I am encouraged that Sprint announced earlier this year its commitment to order and sell smartphones equipped with FM radio chips, along with software to provide an enhanced listening experience."

"It makes sense: employing FM chips in smartphones enables users to hear their local FM radio stations on their devices, using only a fraction of the power that they would use to hear those stations if they streamed them over the Internet. The NextRadio hybrid radio app supplied with those phones provides enhanced data features, as well as song-sharing and purchasing, without significantly impacting the listener抯 data usage," said Clyburn.

Gordon SmithGordon Smith (at right), head of the NAB, also gave a speech at this event. He said that "Radio's future lies in our willingness to embrace new platforms and to go where listeners want to go. Now, to that end, NAB is continuing to work with the wireless industry and the government to promote a particular innovation that would greatly serve the public -- the inclusion and activation of radio receivers in mobile devices."

Smith also said that "NAB Labs -- our innovation team -- has been at the forefront of developing "hybrid FM radio" and bringing it to smartphones and other platforms. If you're not familiar with hybrid FM radio, this technology uses over the-air radio receivers in conjunction with online connectivity to provide listeners with the best of both worlds -- through the built-in radio receiver they are able to access their favorite local radio stations, but they also get a more interactive experience they can view song information, tag their favorite songs and purchase them, or give a station their feedback."

He also commented that Sprint has announced that that two of its smartphones will include FM capability through its NextRadio app.

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

Smith also commented on the legislation that would create performance rights for music recording artists. Currently, under copyright law, recording artists do not have a performance right for their works played by terrestrial radio broadcasters. Bills have been introduced in recent Congresses to create such a right, but have not been enacted.

Smith said that "Recently, we heard that performance tax legislation may soon be introduced in Congress yet again, perhaps even as I'm speaking to you now. But we won't stand idly by卆nd as we've done in the past, we will unite and stand firmly against any government mandate that threatens' radio's ability to serve their local communities."

He also commented on webcaster royalties. "Increasingly, webcasters are facing challenges as the music industry is pushing for more royalties for streaming music. It is my hope that both the streaming and broadcast platforms can have a business model that advances the interests of everyone with a stake in the music industry.

He added that "Recent direct deals between broadcasters, record labels and artists demonstrate that there are market-based solutions."

FTC Seeks Comments on Proposed COPPA Safe Harbor Program

9/18. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) seeking public comments regarding a proposed COPPA safe harbor program.

On August 15, 2013 Samet Privacy, LLC, operator of the kidSAFE Seal Program, submitted a filing [38 pages in PDF, redacted] titled "kidSAFE Seal Program's Application for COPPA Safe Harbor Approval".

The Children's Online Privacy Protection Act (COPPA), which is codified at 15 U.S.C. Ё 6501-6506, bans operators of web sites and online services that are directed to children from collecting information from children under thirteen without parental consent.

The FTC has promulgated, and amended, rules that implement the COPPA. The FTC stated in a release that "The Rule includes a ``safe harbor创 provision designed to encourage increased industry self-regulation in this area. Under this provision, industry groups and others may ask the Commission to approve self-regulatory guidelines that implement the protections of the Rule. Companies that comply with the FTC-approved guidelines receive safe harbor from agency enforcement action under the Rule."

Samet's filing proposes self regulatory guidelines pursuant to the safe harbor provision of the FTC's COPPA rules. If approved by the FTC, this would become the sixth such program.

The deadline to submit comments to the FTC is October 18, 2013. See, FR, Vol. 78, No. 181, September 18, 2013, at Pages 57319-57320.

People and Appointments

9/17. President Obama nominated Leslie Caldwell to be the Assistant Attorney General (AAG) in charge of the Department of Justice's (DOJ) Criminal Division. See, White House news office release and release. She is a partner in the New York City office of the law firm of Morgan Lewis & Bockius. She gave $2500 to the Obama campaign in the 2012 election cycle. See, FEC disclosure form. The acting AAG is Mythili Raman, a career DOJ attorney.

More News

9/17. Microsoft announced in a release that its Board of Directors has increased its quarterly dividend to shareholders, and approved a new Microsoft share repurchase program "authorizing up to $40 billion in share repurchases. The new share repurchase program, which has no expiration date, replaces the previous $40 billion share repurchase program that was set to expire Sept. 30, 2013."

9/17. Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) adopted and released a Report and Order (R&O) [144 pages in PDF] regarding to its special access rules. This R&O pertains to the FCC's data and information collection efforts. This R&O is FCC 13-1909 in WC Docket No. 05-25.

9/17. Federal Communications Commission (FCC) Chairman Mignon Clyburn announced in a statement that she has circulated an Order and Further Notice of Proposed Rulemaking (FNPRM) regarding rural call completion. See, Notice of Proposed Rulemaking (NPRM). It is FCC 13-18 in WC Docket No. 13-39. The FCC adopted this NPRM on February 4, 2013, and released it on February 7, 2013. See also, April 18, 2013 Public Notice (DA 13-780). See also, notice in the Federal Register, Vol. 78, No. 88, May 7, 2013, at Pages 26572-26573. See also, May 22, 2013 Public Notice (DA 13-1196) extending the reply comment deadline.

9/17. The U.S. District Court (SDNY) issued an Opinion and Order [30 pages in PDF] in In Re Petition of Pandora Media, granting summary judgment to Pandora. It concluded that "Pandora's July 1, 2013 motion for summary judgment that ASCAP publisher withdrawals of New Media licensing rights during the term of Pandora抯 five year license beginning on January 1, 2011 do not affect the scope of the ASCAP repertory subject to that license is granted." This case is In Re Petition of Pandora Media, Inc, related to USA v. American Society of Composers, Authors & Publishers, U.S. District Court for the Southern District of New York, D.C. No. 12 Civ 8035 (DLC), Judge Denise Cote presiding.

House to Take Up Rare Earths Bill

9/16. The House of Representatives is scheduled to consider this week, subject to a rule, HR 761 [LOC | WW], the "National Strategic and Critical Minerals Production Act of 2013", a bill to facilitate and incent domestic mining and extraction of rare earth materials (REMs), which are used in information and communications technology (ICT) products.

The House Republican leadership also temporarily placed this bill on schedule for the House for the week of July 8, 2013.

The House Rules Committee (HRC) will meet on Tuesday evening to adopt a rule for consideration of this bill, including a list of which offered amendments are in order.

Rep. Mark Amodei (R-NV) and others introduced this bill on February 15, 2013. The House Natural Resources Committee (HNRC) approved it on May 15, 2013.

The rare earth elements from which REMs are made are Scandium, Yttrium, Lanthanum, Cerium, Praseodymium, Neodymium, Promethium, Samarium, Europium, Gadolinium, Terbium, Dysprosium, Holmium, Erbium, Thulium, Ytterbium, and Lutetium. See also, periodic table.

REMs have a wide range of uses. They are used in such ICT products as fiber optic cable and smart phone screens. However, one of their keys uses is in making permanent magnets, which have the properties of compactness, high strength, and very strong magnetic fields. These magnets are used in computer hard drives, cell phones, loudspeakers, headphones, magnetic resonance imaging, cordless electric tools, and other products.

Rare earth elements are located in many locations, including the U.S. The U.S. was once a leading producer of REMs. However, almost all of the world's supply of REMs now comes from the People's Republic of China (PRC).

In 2010 the Congress began to examine the PRC's abuse of its dominant position with respect to REMs, the growing worldwide demand for REMs, and whether and how the US should incent domestic production.

Since then, numerous bills have been introduced. However, there is also strong opposition to any legislation that would increase development of U.S. resources, mainly from within the Democratic Party and the Obama administration.

In addition, the U.S. and other nations have complained to the World Trade Organization (WTO) that the PRC is imposing export restraints, export duties, and export quotas on REMs in violation of its WTO commitments. That is, the US, Japan and European Union have alleged that the PRC is exploiting its dominance in REM production to favor domestic producers, discriminate against foreign competitors, and leverage technology transfers. These complaints are pending.

See, story titled "US, Japan and EU Take Rare Earths Issue to WTO" and story titled "OUSTR Explains Rare Earths Request for Consultations" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012. And see, and story titled "US, Japan and EU Request WTO DSP for REM Complaint Against PRC" in TLJ Daily E-Mail Alert No. 2,406, July 10, 2012.

See also, US's complaint [5 pages in PDF] in WTO Docket DS 431, Japan's complaint [5 pages in PDF, English] in WTO Docket DS 433, and EU's complaint [5 pages in PDF] in WTO Docket DS 432.

REMs must be mined and extracted. The US has more stringent environmental protection regulation, as well as more tedious permitting processes, than the PRC. HR 761 is intended to ease the permitting process.

The bill recites in its findings that "out of 25 major mining countries, the United States ranked last with Papua New Guinea in permitting delays".

For more TLJ coverage, see the following stories:

Bills Introduced in the 113th Congress:

PCLOB Schedules Hearing and Comments Deadline Regarding Sections 215 and 702 Surveillance

9/16. The Privacy and Civil Liberties Oversight Board (PCLOB) published a notice in the Federal Register (FR) in which it announced a hearing and comment period regarding government surveillance activities.

The hearing will be held from 9:00 AM to 4:30 PM on Friday, October 4, 2013 at the Mayflower Hotel, 1127 Connecticut Ave., NW.  The deadline to submit written comments is 11:59 PM ET on October 25, 2013.

The PCLOB also announced that it will "address the activities and responsibilities of the executive and judicial branches of the federal government regarding the government's counterterrorism surveillance programs", including "the federal government's surveillance programs operated pursuant to Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance Act."

The PCLOB added that "Recommendations for changes to these programs and the operations of the Foreign
Intelligence Surveillance Court will be considered at the hearing to ensure that counterterrorism efforts properly balance the need to protect privacy and civil liberties."

Section 215 and Section 702 have long been two of the most controversial statutory sections that authorize federal surveillance. They are also the authorities relied upon by the Department of Justice (DOJ) and National Security Agency (NSA) for the surveillance activities disclosed by Edward Snowden in June of this year.

Section 215. Section 215 of the 2001 USA PATRIOT ACT amended 50 U.S.C. 1861 to enable the government to obtain records from phone companies, and others, pursuant to a very low standard -- mere relevance to an investigation.

It 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" of terrorism, intelligence activities, or activities of foreign powers, then the "judge shall enter an ex parte order as requested".

This Section 1861 of Title 50, as amended by Section 215 of the 2001 Act, is the authority for issuance of the Verizon order disclosed by Snowden, and published by the Guardian in June. See, story titled "FISC Orders Verizon to Produce Call Data for Everyone Every Day" in TLJ Daily E-Mail Alert No. 2,571, June 5, 2013.

This order, and subsequent government statements, disclosed that the NSA is using this authority to collect from other companies, all call record data, on all persons, on an ongoing basis. See also, story titled "Government Surveillance Programs Extend to Other Phone Companies and Internet Companies", and related stories, in TLJ Daily E-Mail Alert No. 2,572, June 6. 2013.

Section 1861 of Title 50 has a storied history. It is also known as Section 501 of the FISA. The 2001 surveillance act (Section II of the USA PATRIOT Act) amended Section 1861/501 in its Section 215. And since, there have been contentious debates over, and amendments to, this controversial provision. These debates have usually been conducted with reference to "Section 215", rather than 1861 or 501.

See, HR 3162, 107th Congress, titled "USA PATRIOT Act", signed on October 26, 2001, Public Law 107-56.

Section 1851 requires that such application "shall include ... a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to -- (i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation".

The referenced subsection (a)(2) merely requires that the investigation be conducted pursuant to "guidelines approved by the Attorney General" and that it "not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution".

Section 1851 also requires that the FBI's application contain an "enumeration of the minimization procedures adopted by the Attorney General". However, the above referenced Verizon order does not reference minimization.

Section 1861 also grants broad immunity from liability for anyone, such as Verizon, who complies with a Section 1861 order.

Section 702. 50 U.S.C. 1881a codifies Section 702 authority for acquisition of "outside" the U.S. communications.

Section 702 was added to the Foreign Intelligence Surveillance Act of 1978 by the 110th Congress with enactment of HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

On June 8, 2013, James Clapper, the Director of National Intelligence (DNI), released a statement titled "Facts on the Collection of Intelligence Pursuant to Section 702 of the Foreign Intelligence Surveillance Act".

The 112th Congress extended this controversial authority by passage of HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012". See, stories titled "Senate Approves Bill to Extend FISA Outside the US Warrantless Intercept Authority", "Senate Debate: Case For the FISA Extension Bill", "Senate Debate: Case Against the FISA Extension Bill", "Senate Rejects Amendments to FISA Extension Bill", and "Commentary: Analysis of Senate Votes on the FISA Extension Bill" in TLJ Daily E-Mail Alert No. 2,499, December 30, 2012, and stories cited in these stories.

Section 702 authority is scheduled to sunset on December 31, 2017.

This section, which was originally enacted in 2008 with a December 31, 2012 sunset, allows federal surveillance, without individualized court approval, under the FISA, of people believed to be outside of the US. More specifically, it pertains to "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information".

However, US citizens are located abroad, persons abroad communicate with persons inside the US, and those conducting surveillance often do not know the location of the persons they are attempting to surveil. Hence, this provision enables the government to conduct warrantless wiretaps and other surveillance of US citizens located in the US when communicating with persons whom the government believes are abroad.

Foreigners located outside the US are not protected by the 4th Amendment. The US government can wiretap them at will without court approval without violating US law. However, the 2008 Act authorizes surveillance that also results in the interception of communications of persons who are protected by the 4th Amendment.

It should be noted that the provision in the 2008 Act does require a court order. However, it allows broad generalized orders. It allows orders that cover entire surveillance programs, without identification or description of any person, phone, or email account. The 4th Amendment requires individualized orders. That is, it requires orders "particularly describing the place to be searched, and the persons or things to be seized".

The 2008 Act also contains some limitations on this broad surveillance authority. For example, the government "may not intentionally target any person known at the time of acquisition to be located in the United States" under this authority.

More Information. The members of the PCLOB are David Medine, Rachel Brand, Elisebeth Cook, James Dempsey, and Patricia Wald. See, their PCLOB biographies, and story titled "Senate Judiciary Committee Holds Hearing on PCLOB Nominees" in TLJ Daily E-Mail Alert No. 2,375, April 19, 2012.

This hearing is free, and open to the public. For more information, contact Susan Reingold at 202-331-1986 or info at pclob dot gov. See, FR, Vol. 78, No. 179, September 16, 2013, at Pages 56951-56952.