Top Stories from 2012
Senate Approves Bill to Extend FISA Outside the US Warrantless Intercept
Authority
12/28. The Senate passed HR 5949
[LOC |
WW],
the "FISA Amendments Act Reauthorization Act of 2012", by a vote of
73-23. See,
Roll Call No 236.
Commentary: Analysis of Senate Votes on the FISA Extension Bill
12/28. The Senate passed HR 5949
[LOC
| WW],
the "FISA Amendments Act Reauthorization Act of 2012", by a vote of
73-23. See,
Roll Call No 236. The Senate first rejected four amendments on roll call
votes. Voting on amendments, and for final passage, correlated with party
affiliation. Senate Democrats were more likely to vote for the amendments,
and against the bill, than Republicans. Voting also correlated with old RBOC
boundaries (Verizon/AT&T states v. US West states).
Richard Taranto and the Federal Circuit
12/24. Richard Taranto is one of four Court of Appeals nominees blocked by
filibuster. He might have a particular impact upon technology law, if confirmed.
This article reviews Taranto's background and experience. It also provides
information regarding why the Taranto nomination has not come up for a vote,
what things might factor into Senators' voting decisions if he were to come up
for a vote, and how he might affect the development of technology related areas
of law if confirmed.
Sen. Wyden Introduces Data Caps
Bill
12/20. Sen. Ron Wyden (D-OR)
introduced S 3703
[LOC |
WW |
PDF], the "Data Cap
Integrity Act of 2012". This bill would provide that internet access
service providers must obtain permission from the Federal Communications
Commission (FCC) before they can impose a "data cap".
FTC
Releases Expanded COPPA Rules
12/19. A divided Federal Trade Commission (FTC)
released a notice,
to be published in the Federal Register, that announces, describes, recites, and
sets the effective date of, its new rules related to the COPPA and the regulation
of privacy related online business practices.
House to Take Up Tech
Bills
12/14. The House floor schedule for Tuesday, December 18, 2012 includes
consideration of three technology related bills, under suspension of the rules:
Sen. Patrick Leahy's (D-VT) recently
introduced "Theft of Trade Secrets Clarification Act",
Rep. Bob Goodlatte's (R-VA) bill to
amend the VPPA (without the SJC's ECPA amendments), and
Rep. Lamar Smith's (R-TX) recently
introduced patent bill (which addresses the post grant dead zone, allocation
of user fees, and pre GATT patent applications, among other issues).
Representatives Introduce Revised Version of Customs Information Sharing Bill
12/13. Rep. Ted Poe (R-TX),
Rep. Steve Chabot (R-IN),
Rep. Zoe Lofgren (D-CA), and
Rep. Linda Sanchez (D-CA)
introduced HR 6654
[LOC |
WW |
PDF], the "Foreign
Counterfeit Merchandise Prevention Act", a bill 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 a revised version of HR 4216
[LOC |
WW].
DC Circuit Upholds FCC's
Data Roaming Rules
12/4. The U.S. Court of Appeals
(DCCir) issued its opinion
[30 pages in PDF] in Cellco Partnership v. FCC, rejecting a challenge
to the Federal Communications Commission's (FCC) data roaming rules.
Sen.
Sanders and Others Urge FCC to Continue Ancient Newspaper Broadcast Cross
Ownership Rule
12/3. Six Democratic Senators sent a
letter [PDF] on November 30 to the Federal Communications Commission (FCC)
urging perpetuation of the FCC's ancient regulatory regime for ownership of
media. On December 3 the FCC solicited further comments, thus effectively
postponing its adoption of new rules.
Ajit
Pai, the Silicon Prairie, and STEM Visas
11/30. FCC Commissioner Ajit Pai,
who is the son of immigrants from India, commented on House passage of HR 6429
[LOC |
WW |
PDF], the "STEM Jobs Act of 2012", on Friday, November 30, 2012. The
bill would enable aliens who obtain advanced degrees in STEM fields from US
universities to obtain visas, and therefore remain in the US, and contribute
to innovation and economic development.
Senate
Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud
Stored E-Mail
11/29. The Senate Judiciary
Committee (SJC) held an executive business meeting at which it amended and
approved HR 2471
[LOC |
WW |
HTML], an
untitled bill that would require a warrant for accessing cloud stored e-mail,
and that would make it easier for social media users to disclose their video
viewing.
Rep.
Eshoo and Rep. Lofgren Complain to FTC about its Google Antitrust
Investigation
11/19. Rep. Anna Eshoo (D-CA) and
Rep. Zoe Lofgren (D-CA), who both represent
Silicon Valley districts, sent a short
letter to the five Commissions of the Federal
Trade Commission (FTC) regarding its antitrust investigation involving Google.
Their complaint has two elements. First, they object to leaks from the FTC
regarding the status of the investigation. Second, they complain that the FTC may
be on the verge of bringing an action against Google under Section 5 of the
FTC Act, rather than under an antitrust statute.
Obama
Nominates Caproni to District Court
11/14. President Obama nominated Valerie Caproni to be a Judge of the
U.S. District Court (SDNY). She
was General Counsel of the Department of
Justice's (DOJ) Federal Bureau of
Investigation (FBI) from 2003 through 2011. She presided over the FBI's
Office of General Counsel (OGC)
while the FBI engaged in the illegal surveillance activities that the DOJ's
Office of the Inspector General (OIG)
disclosed in three reports released in 2007, 2008 and 2010.
AT&T
Files Petition for Rulemaking Regarding Trial Replacement of TDM with IP
11/7. AT&T filed a
petition
for rulemaking [28 pages in PDF] with the Federal Communications Commission
(FCC) regarding allowing incumbent local exchange carriers (ILEC) to replace
time division multiplexed (TDM) with internet protocol (IP) facilities in select
wire centers.
Supreme
Court Hears Oral Argument on Standing to Challenge Outside the US Surveillance
Authority
10/29. The Supreme
Court heard oral argument in Clapper v. Amnesty
International, Sup. Ct. No. 11-1025. At issue is whether the
plaintiffs have standing to challenge the constitutionality of the
"outside the United States" surveillance provision of the
Foreign Intelligence Surveillance Act (FISA).
Copyright
Office Issues Notice of Inquiry on Orphan Works
10/22. The Copyright Office (CO) published
a notice
in the Federal Register (FR) that requests comments regarding "orphan
works". The deadline to submit initial comments is 5:00 PM on January 4,
2012. The deadline to submit reply comments is 5:00 PM on February 4, 2013.
FTC
Releases Staff Report on Facial Recognition Technologies
10/22. A divided Federal Trade Commission (FTC)
released a staff
report [30 pages in PDF] titled "Facing Facts: Best Practices for Common
Uses of Facial Recognition Technologies". This report recommends that social
networks should "provide consumers with (1) an easy to find, meaningful choice
not to have their biometric data collected and used for facial recognition; and
(2) the ability to turn off the feature at any time and delete any biometric data
previously collected from their tagged photos."
Copyright
Office Requests Comments on Creating a Resale Royalty Right for Visual Artists
10/16. The Copyright Office (CO) published a
notice
on September 19
in the Federal Register (FR) that requests comments regarding creating a "resale
royalty right" for visual artists. It published a second
notice
on October 16 that provides an extended comment deadline.
SoftBank
to Acquire 70% Stake in Sprint Nextel
10/15. Sprint Nextel Corporation
and SoftBank announced that they have
entered into agreements that will give SoftBank a 70% stake in Sprint Nextel.
House
Intelligence Committee Report Finds Huawei and ZTE Could Undermine US National
Security
10/8. Rep. Mike Rogers (R-MI) and
Rep. Dutch Ruppersburger (D-MD), the Chairman
and ranking Democrat of the House
Intelligence Committee (HIC) released a
part of a report [60 pages in PDF] titled "Investigative Report on the
U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei
and ZTE". The HIC did not release a "classified annex" to the report.
This report finds that "the risks associated with Huawei's and ZTE's provision
of equipment to U.S. critical infrastructure could undermine core U.S.
national-security interests".
FCC
Lets Expire Its Per Se Ban on Exclusive Program Distribution Contracts
10/5. The Federal Communications Commission (FCC) adopted and released an
item [146 pages in PDF] that, among other things, allows the exclusive
contract prohibition section of the FCC's program access rules to expire.
T-Mobile
USA and MetroPCS to Merge
10/3. Deutsche Telekom and MetroPCS Communications announced that they have
signed a definitive agreement to combine T-Mobile USA and MetroPCS.
FCC
Adopts Spectrum Aggregation NPRM
9/28. The Federal Communications Commission (FCC) adopted and released a
Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum
aggregation limits and analyzing spectrum holdings. In 2001 the FCC ended its
spectrum aggregation limits, or spectrum caps. Since then, the FCC has engaged
in case by case analysis of transactions that involve spectrum licenses. This
NPRM asks whether the FCC should exhume its spectrum cap regulation. It
also proposes new attribution rules.
American
Library Association Demands E-Books from Publishers
9/24. The American Library Association
(ALA) sent an angry
letter to book major publishers criticizing them for not letting libraries
distribute their e-books. This letter, signed by Maureen Sullivan, head of the
ALA, states that "Simon & Schuster, Macmillan, and Penguin have been
denying access to their e-books for our nation's 112,000 libraries". She
demanded that "Simon & Schuster must sell to libraries".
House
Rejects STEM Visas Bill in Suspension Vote
9/20. The House rejected HR 6429
[LOC |
WW |
PDF], the
"STEM Jobs Act of 2012" by a vote of 237-180. Republicans vote 227-5.
Democrats voted 30-153. See, Roll
Call No. 590. The House considered this bill under suspension of the rules,
which meant that a two thirds majority was required for passage.
FCC
Grants NCTA Petition for Forbearance to Allow Cable Companies to Acquire
CLECs
9/17. The Federal Communications Commission (FCC) released an
order [26 pages in PDF] that grants the
National Cable & Telecommunications Association's
(NCTA) petition for forbearance from the statutory ban on cable companies
acquiring competitive local exchange carriers (CLECs) in the same markets.
House
Passes Bill to Extend FISA Outside the US Surveillance Authority
9/12. The House passed HR 5949
[LOC |
WW], the "FISA
Amendments Act Reauthorization Act of 2012", without amendment, by a vote of 301-118.
See, Roll Call No. 569. Republicans
voted 227-7. Democrats voted 74-111. President Obama publicly supported this bill. The Senate
has not yet passed its version of the bill, S 3276
[LOC |
WW].
Sen. Ron Wyden (D-OR), who opposed the bill in the
Senate Intelligence Committee (HIC), has
placed a hold on the bill.
FCC Files
Brief with DC Circuit in Challenge to BIAS Rules
9/10. The Federal Communications Commission (FCC) filed its
brief [121 pages in PDF] with the
U.S. Court of Appeals (DCCir) in Verizon v. FCC, the challenge
to the FCC's 2010 rules that regulate the business practices of broadband
internet access service (BIAS) providers. These rules are also sometimes
referred to as open internet rules or network neutrality rules.
FCC Releases
Tentative Agenda for September 28 Meeting
9/7. Federal Communications Commission (FCC) released a
tentative
agenda for its event titled "Open Meeting", scheduled for September 28,
2012. First, the FCC is scheduled to adopt a NPRM related to incentive auctions. Second, the FCC
is scheduled to adopt a NPRM regarding "mobile spectrum holdings". Third, the FCC is
scheduled to adopt a NPRM regarding its licensing and operating rules for satellite services.
USPTO Releases
Patent Fees NPRM
9/5. The U.S. Patent and Trademark Office (USPTO) released
a notice
[213 pages in PDF] to be published in the Federal Register (FR) on September 6,
2012, that announces, describes, and recites proposed rules to adjust patent
fees, pursuant to Section 10 of the America Invents Act.
Republican
Platform Addresses Tech Related Issues
8/31. The Republican National Committee (RNC) released the
2012
Republican Party platform [62 pages in PDF]. It addresses numerous
technology related topics, including trade related intellectual property issues,
violation of trade agreements by the People's Republic of China, negotiation of
new trade agreements, cyber security, spectrum auctions and inventory, FCC
regulation generally, and proposals internet regulation to be considered at the
December meeting of the World Conference on International Communications.
2nd Circuit Rules
Internet Streaming of TV Programming is Not a Cable Service
8/27. The U.S. Court of Appeals
(2ndCir) issued its
opinion [38 pages in PDF] in WPIX v. ivi, holding that a
business that streams copyrighted broadcast TV programming over the internet
without consent is not a "cable system" within the meaning of
17 U.S.C. § 111
that is entitled to a compulsory license. This is a victory for TV broadcasters.
Divided
FCC Adopts Special Access Order
8/23. The Federal Communications Commission (FCC) released a
Report and Order [107 pages in PDF] that suspends the FCC's rules, which have been in effect
for 13 years, that allow for automatic grants of pricing flexibility for special access services.
This pertains to FCC price regulation for connections that provide voice and
data for government entities and businesses.
DOJ/FBI Seize Domain
Names by Warrant
8/21. The Department of Justice (DOJ) issued a vaguely
worded release on
August 21 that announces the seizure of three domain names by warrant, rather
than following adjudication. See also, identical Federal Bureau of Investigation (FBI)
release. The three domains are applanet.net, appbucket.net, and snappzmarket.com. The DOJ and
FBI releases state that "Seizure orders have been executed against three website domain names
engaged in the illegal distribution of copies of copyrighted Android cell phone apps".
District Court Issues
Preliminary Denial of Proposed Settlement in One Facebook Class Action
8/17. The U.S. District District Court (NDCal)
issued an order
[8 pages in PDF] in Fraley v. Facebook that denies preliminary approval of a
proposed settlement of a putative class action arising out of Facebook's use of users' names
and likenesses in paid advertisements.
DOJ Approves Verizon
Cable Deals
8/16. The Department of Justice's (DOJ)
Antitrust Division and state of New York filed a
complaint [19 pages in PDF]
in the U.S. District Court (DC) against Verizon,
Verizon Wireless, Comcast, Time Warner Cable, Cox Communications, and Bright House Networks
that alleges violation of Section 1 of the Sherman Act in connection with a series of agreements
between Verizon and cable companies. Under these agreements, Verizon Wireless agreed to acquire
unused Advanced Wireless Services (AWS) spectrum licenses from several cable companies, and
Verizon and Verizon Wireless and cable companies agreed to market each other's services. Also,
subsequently Verizon Wireless conditionally agreed to sell 700 MHz A and B block licenses to
T-Mobile USA. Nominally, the complaint seeks court injunction of the agreements. However,
the parties simultaneously announced that they have settled this action. Verizon
Wireless will acquire the AWS spectrum. The cross marketing agreements are
allowed, but must be amended, and be of limited duration -- four years.
FTC Sues and Settles
With Google for Circumventing Apple Safari Browser's Blocking of Third Party Cookies
8/9. The United States, acting on behalf of the
Federal Trade Commission (FTC), filed a
complaint
[26 pages in PDF] in the U.S. District Court
(NDCal) against Google alleging violation of Sections 5(l) and 16 of the FTC
Act in connection with Google's circumvention of the Apple Safari browser's
default setting for blocking of third party cookies.
10th Circuit Denies
Qwest's Challenge to FCC's Denial of Forbearance
8/6. The U.S. Court of Appeals (10thCir) issued
its opinion [43 pages in PDF]
in Qwest v. FCC, denying Qwest's petition for review of a Federal
Communications Commission (FCC) order denying a request for forbearance under
47 U.S.C. § 160. The order under
review is the FCC's
Memorandum Opinion and Order (MOO) [67 pages in PDF], adopted on June 15,
2010, and released on June 22, 2010.
Senate Rejects
Cloture on Sen. Lieberman's Cyber Security Bill
8/2. The Senate rejected a motion to invoke cloture on S 3414
[LOC |
WW |
PDF],
the "Cybersecurity Act of 2012", by a vote of 52-46. A super majority of 60 is
required to pass a cloture motion. Later in the day the Senate recessed until September.
The two main causes of opposition were the inclusion of Title I of the bill, which imposes
a regulatory regime on private sector entities, and the ruthlessly fast and closed process
by which Sen. Harry Reid (D-NV) attempted to force
this bill upon the Senate.
FTC Releases COPPA
Further NPRM
8/1. The Federal Trade Commission (FTC) released a
notice [43 pages in PDF], to
be published in the Federal Register, that announces, describes, and recites proposed changes
to its rules that implement the Children's Online Privacy Protection Act (COPPA). The deadline
to submit written comments is September 10, 2012.
Rep. Smith
Introduces Bill to Tweak Trademark Dilution Statute
7/26. Rep. Lamar Smith (R-TX), Chairman of the
House Judiciary Committee (HJC), introduced
HR 6215 [LOC |
WW |
PDF], an untitled bill to amend the Trademark Act regarding remedies for dilution.
FCC Asserts Broad
MVPD Program Carriage Authority
7/24. The Federal Communications Commission (FCC) released a
redacted copy
[47 pages in PDF] of its Memorandum Opinion and Order (MOO) in the matter of the Tennis
Channel's complaint against Comcast. This MOO affirms the conclusion of an administrative
law judge (ALJ) that Comcast violated the FCC's program carriage rules, and must provide
equal carriage to Tennis Channel (TC). The MOO discloses that the majority of the FCC
Commissioners assert that the FCC has broad authority to make decisions for cable companies,
and other multichannel video programming distributor (MVPD), regarding what programming to
distribute, and at what tier to distribute them.
Senate Judiciary
Committee Approves Outside the US Surveillance Bill
7/19. The Senate Judiciary Committee (SJC)
held an executive business meeting at which it amended and approved S 3276
[LOC |
WW], a bill to extend
the sunset on government authority to conduct surveillance related to persons "outside"
the US, without individualized court approval. A 2008 Act created this authority, with a sunset
at the end of this year. Surveillance of persons "outside of the United States" is
a term of art that also enables surveillance of persons inside of the US who fall within the
protection of the 4th Amendment.
Senate Judiciary
Committee to Take Up Access to Federal Information Bill
7/19. The Senate Judiciary Committee (SJC)
announced that the agenda for its executive business meeting on July 26 includes consideration
of S 225 [LOC |
WW], the "Access
to Information About Missing Children Act of 2011", a bill that would have greater
impact than its title suggests.
US, Japan and EU
Request WTO DSP for REM Complaint Against PRC
7/10. On June 27, 2012, the Office of the U.S. Trade
Representative (OUSTR), along with representatives of Japan and the European Union (EU),
requested that the World Trade Organization (WTO) establish
a dispute settlement panel (DSP) to rule on their complaints against the People's Republic of
China (PRC) that allege that the PRC is imposing export restraints, export duties, and export
quotas on rare earth materials (REM) in violation of its WTO commitments. The WTO's Dispute
Settlement Body (DSB) met on July 10. The WTO announced that "The DSB deferred the
establishment of a panel."
House Commerce
Committee to Consider Extension of Sunset on US SAFE WEB Act
7/3. The US SAFE WEB Act is scheduled to sunset next year. The
House Commerce Committee (HCC) announced that
its Subcommittee on Commerce, Manufacturing and Trade will hold a hearing on July 12 on
a yet to be introduced bill that would extend this sunset. This Act increased the investigatory
and information sharing powers of the Federal Trade Commission
(FTC). For example, the Act gave the FTC new powers to compel third party service providers
to disclose the contents of stored wire and electronic communications, without notice to the
owner of the communications, and with a gag order imposed upon the service provider.
Rep. Smith
Introduces Rump of Data Retention Bill
6/29. Rep. Lamar Smith (R-TX),
Rep. Debbie Schultz (D-FL), and others
introduced HR 6063
[LOC |
WW |
PDF], the "Child Protection Act of 2012". This bill is the rump of the data
retention bill that Rep. Smith endeavored, but failed, to pass earlier in this Congress.
HR 6063 contains some of the provisions that were in HR 1981
[LOC |
WW], but not the
provisions that would have mandated data retention and storage by service providers, that
would have provided immunity to service providers for retaining data, and that would have
imposed criminal liability for "financial facilitation" of access to child
pornography.
Representatives
Introduce Bill to Increase Penalties for Economic Espionage
6/27. Rep. Lamar Smith (R-TX),
Rep. John Conyers (D-MI), and others introduced
HR 6029 [LOC |
WW], the
"Foreign and Economic Espionage Penalty Enhancement Act of 2012". On March 30,
2011, Sen. Herb Kohl (D-WI) and others introduced
S 678 [LOC |
WW], the "Economic
Espionage Penalty Enhancement Act". The Senate bill would increase the maximum penalty
for economic espionage, which is codified at
18
U.S.C. § 1831, from 15 to 20 years. The House bill would do this, and increase the maximum
fine from $500,000 to $5,000,000.
House Judiciary
Committee Approves FISA Bill
6/19. The House Judiciary Committee (HJC) approved
HR 5949 [LOC |
WW], the "FISA
Amendments Act Reauthorization Act of 2012", by a vote of 23-11. See, Table in this issue
titled "HJC Roll Call Votes on HR 5949, June 19, 2012". The HJC rejected four
amendments offered by Democrats, including one that would have shortened the extension period.
This bill would extend for five years government authority to conduct surveillance related to
persons "outside" the US, without individualized court approval. Surveillance of
persons "outside of the United States" is a term of art that also enables surveillance
of persons inside of the US who fall within the protection of the 4th Amendment.
FTC and DOJ
Release Annual HSR Report
6/13. The Federal Trade Commission (FTC) and the
Department of Justice's (DOJ) Antitrust Division
released a report [46 pages in
PDF] titled "Hart Scott Rodino Annual Report Fiscal Year 2011". The total number
of covered transactions rose for the second straight year in FY2011, after declining from a
peak in FY2007. There were 1,450 transactions in FY2011, up from 1,166 in FY2010, and 716 in
FY2009. The percentage of transactions in which either the DOJ or FTC made a second request
has been steady at about 4 percent during the Obama administration. This is higher than
during the Bush administration.
SASC Approves Defense
Authorization Bill with Cyber Warfare and ICT Provisions
6/4. Sen. Carl Levin (D-MI), the Chairman of the
Senate Armed Services Committee (SASC), introduced
S 3254 [LOC |
WW], the "National
Defense Authorization Act for Fiscal Year 2013" on June 4, 2012. The SASC approved it on
June 4. See, Senate
Report No. 112-173. It contains numerous provisions that relate to cyber warfare and
information and communications technology.
Overall Unemployment
Rate Steady; Tech Employment Up; Communications Employment Down
6/1. The Department of Labor's (DOL) Bureau of Labor
Statistics (BLS) released employment data for the U.S. for the month of May, 2012. This
latest ICT employment data shows that trends, reported in previous TLJ stories, continue. That
is, employment in both telecommunications services and equipment manufacturing is declining.
Employment in manufacturing of both computers and peripheral equipment and semiconductors and
electrical components is increasing. Also, employment in computer systems design and related
services continues to grow. Also, if one examines overall ICT data, employment is increasing.
Gains in tech are greater than loses in communications.
FTC/DOJ File Amicus
Brief on Antitrust Standing of Direct Purchasers Who Allege Fraud Upon USPTO
5/22. The Federal Trade Commission (FTC) and the
Department of Justice's (DOJ) Antitrust Division
filed an amicus curiae
brief with the U.S. Court of Appeals (FedCir)
in Ritz Camera & Image v. SanDisk, in support of Ritz. At issue is the the
circumstances in which Section 4 of the Clayton Act, which is codified at
15 U.S.C. § 15, authorizes direct
purchasers to recover overcharge damages resulting from a monopoly obtained and
maintained through enforcement of a fraudulently procured patent.
Senators Casey
and Schumer Condemn Facebook's Saverin
5/17. Sen. Robert Casey (D-PA) and
Sen. Charles Schumer (D-NY) held a news
conference at which they announced that they will introduce a bill titled the
"Expatriation Prevention by Abolishing Tax-Related Incentives for Offshore Tenancy
Act", which comes close to producing the acronym of EXPATRIOT Act. The two Senators
discussed the renunciation of US citizenship last September by Eduardo Saverin, one of the
founders and owners of Facebook. Under US tax law he would have realized a taxable capital
gain at the time of Facebook's initial public offering. Saverin resides in Singapore, which
has no capital gains tax.
House Passes
Bill to Limit State Taxation of Mobile Workers
5/15. The House passed HR 1864
[LOC |
WW], the
"Mobile Workforce State Income Tax Simplification Act of 2011", by voice
vote. This bill provides that a state may not impose its income tax on non-resident
employees unless they earn wages in the taxing state for more than 30 days.
House and Senate
Bills Would Affect Employer Demands for Employees' Personal Passwords
5/9. Sen. Richard Blumenthal (D-CT) and other
Senate Democrats introduced S 3074
[LOC |
WW], the "Password
Protection Act of 2012", a bill that pertains to employers' practice of
demanding and using employees' personal passwords. On the same day, Rep. Martin Heinrich (D-NM) and
other House Democrats introduced HR 5684
[LOC |
WW], the companion
bill in the House.
House Passes
Cybersecurity Enhancement Act
4/27. The House passed HR 2096
[LOC |
WW], the
"Cybersecurity Enhancement Act of 2012" by a vote of 395-10. See,
Roll Call No. 193. The Senate has
not passed this bill, or the companion bill in the Senate. Title I of the bill pertains to
cyber security research and development, and education. Title II of the bill pertains to
federal cyber security standards.
House Passes
CISPA
4/26. The House amended and passed HR 3523
[LOC |
WW], the "Cyber
Intelligence Sharing and Protection Act of 2011" or "CISPA", a bill that would
incent cyber threat information sharing, and surveillance. The vote on final passage was 248-168.
See, Roll Call No. 192.
Rep. Stearns and
Rep. Matsui Introduce 1755-1780 MHz Band Bill
4/26. Rep. Cliff Stearns (R-FL) and
Rep. Doris Matsui (D-CA) introduced HR 4817
[LOC |
WW], the "Efficient
Use of Government Spectrum Act", a bill that require that the Federal Communications
Commission (FCC) to pair the 1755-1780 MHz block and the 2155-2180 MHz block, which is already
set for auction, for reallocation and auction for commercial wireless use.
Supreme Court Rules
in Kappos v. Hyatt
4/18. The Supreme Court issued its
opinion in Kappos v.
Hyatt, regarding procedure in the District Court when a patent applicant whose claims
have been denied by the U.S. Patent and Trademark Office's
(USPTO) examiner files an action under 35
U.S.C. § 145. The Supreme Court held that the patent applicant may submit evidence to the
District Court not submitted to the patent examiner, and that there are no evidentiary
restrictions.
Senate Judiciary
Committee Holds Hearing on PCLOB Nominees
4/18. The Senate Judiciary Committee (SJC) held a
hearing on the five nominees to the Privacy and Civil Liberties Oversight Board (PCLOB). The
five nominees -- James Dempsey, David Medine, Patricia Wald, Elisebeth Cook, Rachel Brand --
appeared as witnesses. Three of the nominees are notable for their lack of experience with
information or communications technologies, or in legal fields involving privacy or
surveillance.
Supreme Court
Grants Certiorari in Case Regarding First Sale Doctrine
4/16. The Supreme Court of the U.S. granted certiorari in Kirtsaeng v.
John Wiley & Sons, a case regarding whether the first sale doctrine of
the Copyright Act applies to goods made abroad. See, April 16, 2012,
Orders
List [21 pages in PDF] at page 2.
DOJ Sues Apple and
Book Publishers Alleging E-Book Price Collusion
4/11. The Department of Justice's (DOJ) Antitrust Division
filed a complaint [36 pages
in PDF] in the U.S. District Court (SDNY) against
Apple and five book publishers alleging violation of Section 1 of the Sherman Act in connection
their alleged conspiring to increase the prices that consumers pay for e-books.
Allegations of Race
Discrimination at Tech Companies
4/9. The web site titled "Online IT Degree" published a
short piece titled "Is Tech
Racist" last July. It is a short collection of graphics, with little text. It states that
"It's one of the world's most rapidly growing industries, and yet from where it starts in
Silicon Valley to where it ends in the hands of consumers, technology presents an irreconcilable
flaw: It seems to be racist." This piece states that the Silicon Valley "employment
population" is 1.5% black and 4.7% hispanic, while the overall U.S. population is 12.8%
black and 15.4% hispanic.
Court of Appeals
Issues Opinion in Viacom v. YouTube
4/5. A two judge panel of the U.S.
Court of Appeals (2ndCir) issued its
opinion [39 pages in PDF] in Viacom v. YouTube, affirming in part and vacating
the judgment of the U.S. District Court (SDNY). The
District Court granted summary judgment to Google/YouTube on all claims in 2010. It held that the
Section 512(c) safe harbor of the Digital Millennium Copyright Act (DMCA) requires knowledge or
awareness of specific infringing activity. The Court of Appeals affirmed this. However, the Court
of Appeals also vacated for several reasons, reversed other holdings of the District Court, and
remanded to the District Court for further proceedings. This opinion neither provides finality
in these proceedings, nor clarity to several legal issues. No party obtained the holding that it
had sought.
IP Enforcement
Coordinator Releases 2011 Report
3/30. The Executive Office of the President's (EOP)
Office of the Intellectual Property
Enforcement Coordinator (OIPEC) released a
report [130 pages in PDF] titled "2011 U S Intellectual Property
Enforcement Coordinator Annual Report on Intellectual Property Enforcement".
House Passes FCC
Process Reform Act
3/27. The House passed the HR 3309
[LOC |
WW], the
"Federal Communications Commission Process Reform Act of 2012". The vote on final
passage was 247-174. See, Roll Call No.
138. Republicans voted 235-0. Democrats vote 12-174. HR 3309 is a huge and complex
bill that pertains to decision making processes at the Federal Communications Commission (FCC),
including for rulemaking proceedings, antitrust merger reviews, and other adjudications. It
adds a new Section 13 to the Communications Act of 1934. The bill contains numerous provisions
that would increase transparency. However, it leaves untouched many practices that decrease
transparency. Also, it would decrease transparency by allowing Commissioners to meet in secret.
FCC CSRIC Makes
Recommendations Regarding ISP Cyber Security
3/22. The Federal Communications Commission (FCC) announced in a
release that its
Communications Security, Reliability and Interoperability Council (CSRIC)
"adopted recommendations for voluntary action by Internet service providers
(ISPs) to combat three major cyber security threats, including botnets, attacks
on the Domain Name System (DNS), and Internet route hijacking". See also,
second release, and
speech by FCC Chairman Julius Genachowski.
Supreme Court Rules
in Mayo v. Prometheus Regarding Patentable Subject Matter
3/20. The Supreme Court of the US issued its unanimous
opinion [28 pages in
PDF] in Mayo v. Prometheus, a patent case regarding whether certain processes
used by doctors are patentable subject matter. The Supreme Court held that the claims at issue
in the patents in suit cover processes that merely apply laws of nature that are not patentable
under Section 101 of the Patent Act.
Groups File
Amicus Briefs Regarding Warrantless Seizure of Historical Cell Site Location Data
3/16. The American Civil Liberties Union (ACLU),
Electronic Frontier Foundation (EFF),
Center for Democracy and Technology (CDT), and others
filed an amicus curiae brief with the
U.S. Court of Appeals (5thCir) in In the Matter
of the Application of the United States of America for Historical Cell Site Data.
US, Japan and EU
Take Rare Earths Issue to WTO
3/13. The United States filed a complaint (nominally a request for consultations) with the
World Trade Organization (WTO) against the People's Republic
of China (PRC) alleging that it is imposing export restraints, export duties, and export quotas
on rare earth materials (REM) in violation of its WTO commitments.
US China
Commission Reports that US Is Threatened by PRC Computer Network Operations
3/8. The US China Economic and Security Review
Commission released a
report [139 pages in PDF] titled "Occupying the Information High Ground:
Chinese Capabilities for Computer Network Operations and Cyber Espionage". It
finds that "Chinese capabilities in computer network operations
have advanced sufficiently to pose genuine risk to U.S. military operations in
the event of a conflict." See, also
summary.
House Commerce
Committee Approves FCC Reform Bills
3/6. The House Commerce Committee (HCC)
amended and approved two bills, HR 3309
[LOC |
WW],
the "Federal Communications Commission Process Reform Act of 2011", and HR 3310
[LOC |
WW],
the "Federal Communications Commission Consolidated Reporting Act of 2011".
Senate Commerce
and Judiciary Committees Face Turnover
2/28. Sen. Olympia Snowe (R-ME) announced that she
will not run for re-election in November. She is a senior member of the
Senate Commerce Committee (SCC), which has jurisdiction
over telecommunications and other technology related issues.
Microsoft Complains
to EC Regarding Google's Abuse of Standard Essential Patents
2/22. Microsoft announced that it filed a complaint with the European
Commission (EC) asking it to investigate Motorola Mobility and Google for
anticompetitive conduct in connection with its abuse of standard essential
patents (SEPs) for video on smartphones and tablets. Apple previously complained.
Sen. Baucus
Discusses Trade and WTO Issues with Russian Officials
2/22. Sen. Max Baucus (D-MT), Chairman of the
Senate Finance Committee (SFC), which has jurisdiction
over trade issues, traveled to the Russian Federation on February 17-22, 2012, to discuss trade
disputes and Russian accession to the World Trade Organization
(WTO).
House and Senate
Pass Spectrum Bill
2/17. The House and Senate passed the
conference
report [270 pages in PDF] on HR 3630
[LOC |
WW], the "Middle
Class Tax Relief and Job Creation Act of 2012". The House passed the bill by a vote of 293
to 132. See, Roll Call No. 72. The
Senate passed the bill by a vote of 60 to 36. See,
Roll Call No. 22. This bill gives the Federal Communications Commission (FCC) authority
to conduct incentive auctions. It also reallocates the D Block for an interoperable public
safety broadband network, and provides for the creation, governance, and funding of such a
public safety network. It also includes the "Next Generation 9-1-1 Advancement Act"
and other provisions.
Google Tracked
Users Online by Circumventing Apple Safari Browser's Blocking of Third Party Cookies
2/17. Jonathan Mayer, a graduate student at Stanford University, published a
paper on February 17, 2012,
that explains how Google and three other companies used surreptitious code to circumvent the
block third party cookies feature of Apple's web browser, Safari, thereby enabling these
companies to track the web browsing of users of Apple iPhones and iPads, without their
permission or knowledge, and contrary to Apple's and users' efforts to protect their privacy.
EC's Alumnia
Addresses Patents and Communications Standards
2/10.
Joaquín Almunia, the European Commission's (EC) VP for Competition Policy" gave a
speech in Paris on February 10, 2012, titled "Industrial Policy and Competition
Policy: Quo vadis Europa?" He addressed, among other topics, communications standards
and patents. He said that the EC will use antitrust enforcement to prevent misuse of patent
rights.
EPIC Sues FTC to
Compel Enforcement of Google Privacy Order
2/8. The Electronic Privacy Information Center
(EPIC) filed a
complaint [9 pages
in PDF] in the U.S. District Court (DC) against the
Federal Trade Commission (FTC) alleging that the FTC has
failed to enforce its
Decision and Order [7 pages in PDF] dated October 13, 2011, which relates to Google's
privacy related practices.
Senate Judiciary
Committee Approves Watford for 9th Circuit
2/2. The Senate Judiciary Committee (SJC) approved
the nomination of Paul Watford to be
a Judge of the U.S. Court of Appeals (9thCir) by a
vote of 10-6-2, in a party line vote. Watford has represented clients in appellate proceedings
in many significant technology related cases. For example, he represented Rambus in patent and
antitrust litigation, defended Verizon in phone bill cramming litigation, and represented
Jeppesen DataPlan in a landmark state secrets privilege case.
Sen. Reid Postpones
Senate Consideration of PROTECT IP Act
1/20. Sen. Harry Reid (D-NV), the Senate Majority
Leader, announced in a
release that "In light of recent events, I have decided to postpone Tuesday's vote
on the PROTECT I.P. Act". In addition, Rep. Lamar
Smith (R-TX), sponsor of the Stop Online Piracy Act (SOPA) in the House, announced that the
House Judiciary Committee (HJC) "will postpone
consideration of the legislation until there is wider agreement on a solution".
Indictment Charges
Megaupload With Criminal Copyright Infringement
1/19. The U.S. District Court (EDVa) unsealed
an indictment that charges several individuals and businesses connected to the Megaupload web
site with criminal copyright infringement, money laundering, and related crimes. The business
styles itself as a storage locker, but is dedicated to commercially exploiting the uploading
and downloading of copyrighted movies, music and other works without authorization.
Genachowski
Addresses Incentive Auctions and Unlicensed Spectrum
1/11. Federal Communications Commission (FCC) Chairman Julius Genachowski gave a
speech at the Consumer Electronics Show (CES) in Las Vegas in which he
addressed legislation to give the FCC incentive auction authority.
Facebook Provides
Nonresponsive Answers Regarding Patent Application that Discloses Privacy Invasive
Technology
1/10. Facebook sent a
letter [6 pages in PDF] dated December 21, 2011, to
Rep. Joe Barton (R-TX) and Rep. Ed Markey
(D-MA) that responds to a letter sent to it by Rep. Barton and Rep. Markey on November 10,
2011. The two publicly released the Facebook's response on January 10, 2012.
Department of
Commerce Release Competes Act Report
1/6. The Department of Commerce (DOC) released a
document [160 pages in PDF] titled "The Competitiveness and Innovative Capacity of the
United States". The just released document is full of election year praise for the work of
the Obama administration, and Obama quotations.
USPTO Announces
America Invents Act Implementation Rulemaking Proceedings
1/5. The U.S. Patent and Trademark Office (USPTO)
published three notices in the Federal Register that propose changes to its rules of practice
to implement various provisions of HR 1249
[LOC |
WW], the
"Leahy-Smith America Invents Act", which was signed into law in September of 2011.
These proceedings pertain to post patent reviews, pre patent issuance submissions by third parties,
and USPTO disciplinary proceedings.