2/14. President George Bush spoke at a swearing in ceremony for the new Attorney General, Alberto Gonzales. He renewed his call for the Congress to permanently extent all section of the USA PATRIOT Act that are scheduled to sunset at the end of 2005.

Bush said this. "And in return, we must provide you all the tools you need to do your job. And one of those tools is the Patriot Act, which has been vital to our success in tracking terrorists and disrupting their plans. Many key elements of the Patriot Act are now set to expire at the end of this year. We must not allow the passage of time or the illusion of safety to weaken our resolve in this new war. To protect the American people, Congress must promptly renew all provisions of the Patriot Act this year." See, transcript.

President Bush also gave several speeches in April of 2004 in which he advocated extending the sunsetting provisions.

USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

While the PATRIOT Act is a huge bill that addresses a wide range of issues, there are sixteen sections of Title II, which covers electronic surveillance and information technology, that are set to sunset on December 31, 2005. The PATRIOT Act modified numerous sections of the criminal code, which is codified at Title 18, and the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. § 1861, et seq.

The sections of Title II that are scheduled to sunset are as follows"

  § 201 pertaining to "Authority to intercept wire, oral, and electronic communications relating to terrorism"
  § 202 pertaining to "Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses"
  § 203(b) pertaining to "Authority to share electronic, wire and oral interception information" of criminal investigations
  § 203(d) pertaining to sharing "Foreign intelligence information"
  § 204 pertaining to "Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication"
  § 206 pertaining to "Roving surveillance authority under the FISA"
  § 207 pertaining to "Duration of FISA surveillance of non-United States persons who are agents of a foreign power"
  § 209 pertaining to "Seizure of voice-mail messages pursuant to warrants"
  § 212 pertaining to "Emergency disclosure of electronic communications to protect life and limb"
  § 214 pertaining to "Pen register and trap and trace authority under FISA"
  § 215 pertaining to "Access to records and other items under the FISA"
  § 217 pertaining to "Interception of computer trespasser communications"
  § 218 pertaining to "Foreign intelligence information"
  § 220 pertaining to "Nationwide service of search warrants for electronic evidence"
  § 223 pertaining to "Civil liability for certain unauthorized disclosures"
  § 225 pertaining to "Immunity for compliance with FISA wiretap".

Action in the 108th Congress. The is no controversy over extending some of these sections. However, in the 108th Congress, several Senators raised objections to extending several provisions. There were also proposals to sunset additions provisions of the Act. The bipartisan group of Senators included Sen. Larry Craig (R-ID), Sen. Russ Feingold (D-WI), and Sen. Patrick Leahy (D-VT).

Several bills were introduced in the 108th Congress on this subject. The two that received the most attention were S 1695 and S 1709.

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, introduced S 1695, the "PATRIOT Oversight Restoration Act" on October 1, 2003. See, story titled "Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted" in TLJ Daily E-Mail Alert 757, October 14, 2003.

Sen. Larry Craig (R-ID) introduced S 1709, the "Security and Freedom Ensured Act of 2003", or SAFE Act, on October 2, 2003. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

The Leahy and Craig bills would not only reaffirm that many of these sections will sunset, they would also add several additional sections for sunsetting:
  § 213 pertaining to "Authority for delaying notice of the execution of a warrant"
  § 216 pertaining to "Modification of authorities relating to use of pen register and trap and trace devices"
  § 219 pertaining to "Single-jurisdiction search warrants for terrorism"

109th Congress. Sen. Russ Feingold has already reintroduced three of his bills from the 108th Congress.

On February 8, 2005, he introduced S 318, the "Computer Trespass Clarification Act of 2005". See, story in this issue titled "Sen. Feingold Introduces Bill Regarding Interception of Computer Trespasser Communications".

On February 8, 2005, he introduced S 316, the "Reasonable Notice and Search Act". See, story in this issue titled "Sen. Feingold Introduces Bill to Limit Sneak and Peak Authority".

Also on February 8, 2005, he introduced S 317, the "Library, Bookseller, and Personal Records Privacy Act". See, story in this issue titled "Sen. Feingold Introduces Bill To Amend Patriot Act Regarding Library Records and Electronic Communications Providers".

2/8. Sen. Russ Feingold (D-WI) introduced S 318, the "Computer Trespass Clarification Act of 2005", a bill to amend provisions of the USA PATRIOT Act regarding the interception of computer trespasser communications.

In the 108th Congress, Sen. Feingold introduced S 2783, the "Computer Trespass Clarification Act of 2004", on September 9, 2004. S 318 is very similar, but not identical, to S 2783. See, story titled "Sen. Feingold Introduces Bill to Amend PATRIOT Act Provisions Regarding Interception of Computer Trespasser Communications" in TLJ Daily E-Mail Alert No. 976, September 14, 2004.

S 318 (109th) and S 2783 (108th) both pertain to § 217 of the PATRIOT Act, which is titled "Interception of computer trespasser communications".

§ 217 amended 18 U.S.C. § 2510 by adding § 2510(21), which is a definition of "computer trespasser". It also amended 18 U.S.C. § 2511 by adding § 2511(2)(i), which provides that it is permissible for law enforcement to intercept wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if, among other requirements, the owner or operator of the protected computer authorizes the interception.

§ 217 is scheduled to sunset at the end of this year.

§ 2510 contains definitions. Subsection 21 defines "computer trespasser". Currently, it "(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and (B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer."

§ 2511(2)(i) currently provides that "It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if -- (I) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (IV) such interception does not acquire communications other than those transmitted to or from the computer trespasser."

First, S 318 (109th) and S 2783 (108th) would revise § 2510(21)(B) to read as follows: "(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual or other relationship with the owner or operator of the protected computer for access permitting access to all or part of the protected computer." (Words highlighted in bold red are added by S 2783 and S 318, while the crossed out words are deleted by S 2783 and S 318.)

S 318 (109th) and S 2783 (108th) would also amend § 2511(2)(i) to provide as follows: "It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if -- (I) the owner or operator of the protected computer is attempting to respond to communications activity that threatens the integrity or operation of such computer and requests assistance to protect rights and property of the owner or operator, and authorizes the interception of the computer trespasser's communications on the protected computer; (II) the person acting under color of law is lawfully engaged in an investigation; (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (IV) such interception ceases as soon as the communications sought are obtained or after 96 hours, whichever is earlier, unless an interception order is obtained under this chapter, and does not acquire communications other than those transmitted to or from the computer trespasser." (Words highlighted in bold red are added by S 2783 and S 318.)

Sen. Feingold (at right) explained these changes. He said that his bill will "more accurately reflect the intent of the provision, and also protect against invasions of privacy." See, Congressional Record, February 8, 2005, at Pages S1133-4

He stated that "Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section by section analysis provided by the Department on September 19, 2001, stated the following: ``Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because service providers often lack the expertise, equipment, or financial resources required to monitor attacks themselves as permitted under current law, they often have no way to exercise their rights to protect themselves from unauthorized attackers. Moreover, such attackers can target critical infrastructures and engage in cyberterrorism. To correct this problem, and help to protect national security, the proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons `acting under color of law' to monitor trespassers on their computer systems in a narrow class of cases.´´''

"Unfortunately," said Sen. Feingold, "the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored -- all without judicial approval.

"Only people who have a ``contractual relationship´´ with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people -- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels -- use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement."

Sen. Feingold continued that "My bill would clarify that a computer trespasser is not someone who has permission to use a computer by the owner or operator of that computer. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: Unauthorized cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant."

He added that "My bill would modify the computer trespass provision in the following ways to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking."

"First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``an ongoing pattern of communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking." And, "Second, the bill limits the length of warrantless surveillance to 96 hours."

This bill has no other original cosponsors. It was referred to the Senate Judiciary Committee. Sen. Feingold is a member.

2/8. Sen. Russ Feingold (D-WI) introduced S 316, the "Reasonable Notice and Search Act", a bill to limit authority to delay notice of search warrants.

This bill pertains to delayed notification of search warrants, which critics, such as Sen. Feingold, refer to as "sneak and peak". Section 213 of the PATRIOT Act addressed these warrants.

Sen. Feingold introduced a very similar bill in the 108th Congress, S 1701, also titled the "Reasonable Notice and Search Act". See, story titled "Sen. Feingold Introduces Bill to Limit Delayed Notice Warrants" in TLJ Daily E-Mail Alert No. 753, October 6, 2003. Although, the present bill contains changes in both the substantive provisions, as well the provision regarding reports to the Congress.

Sen. Feingold explained his bill. "First, my bill would narrow the circumstances in which a delayed notice warrant can be granted to the following: potential loss of life, flight from prosecution, destruction or tampering with evidence, or intimidation of potential witnesses. The ``catch-all provision´´ in section 213, allowing a secret search when serving the warrant would ``seriously jeopardize an investigation or unduly delay a trial´´ can too easily be turned into permission to do these searches whenever the government wants." See, Congressional Record, February 8, 2005, at Pages 1130-1131.

"Second, I believe that any delayed notice warrant should provide for a specific and limited time period within which notice must be given -- 7 days. This is consistent with some of the pre-PATRIOT Act court decisions and will help to bring this provision in closer accord with the Fourth Amendment to the Constitution. Under my bill, prosecutors will be permitted to seek 7-day extensions if circumstances continue to warrant that the subject not be made aware of the search. But the default should be a week, unless a court is convinced that more time should be permitted."

"Third, Section 213 should include a sunset provision so that it expires along with the other expanded surveillance provisions in Title II of the PATRIOT Act, at the end of 2005. This will allow Congress to determine if the balance between civil liberties and law enforcement has been correctly struck."

Finally, S 316 would require the Department of Justice to submit brief reports to the Congress every six months that provide summary data on the number and disposition of these warrants.

The key provision of S 316 would amend subsection b of 18 U.S.C. § 3103a, which was amended by § 213 of the PATRIOT Act.

Subsection b would be amended as follows. (Words highlighted in bold red are added by the bill. Words with a strikethrough are deleted by the bill.)

"(b) Delay.— With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if—

  (1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705) will endanger the life or physical safety of an individual, result in flight from prosecution, result in the destruction of or tampering with the evidence sought under the warrant, or result in intimidation of potential witnesses;

  (2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and

  (3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown. 7 calendar days, which period, upon application of the Attorney General, the Deputy Attorney General, or an Associate Attorney General, may thereafter be extended by the court for additional periods of up to 7 calendar days each if the court finds, for each application, reasonable cause to believe that notice of the execution of the warrant will endanger the life or physical safety of an individual, result in flight from prosecution, result in the destruction of or tampering with the evidence sought under the warrant, or result in intimidation of potential witnesses."

Sen. Feingold also stated that "In 2003, by a wide bipartisan margin, the House passed an amendment to the Commerce Justice State appropriations bill offered by Representative Otter from Idaho, a Republican, to stop funding for delayed notice searches authorized under section 213. The size of the vote took the Department by surprise, and it immediately set out to defend the provision aggressively. Clearly, this is a power that the Department does not want to lose."

Rep. Butch Otter (R-ID) offered an amendment in the summer of 2003 to HR 2799 (108th), the Commerce, Justice, State and the Judiciary, and Related Agencies Appropriations Act for FY 2004. This was House Amendment 292. The House approved this amendment by a vote of 309-118 on July 22, 2003. See, Roll Call No. 408. This amendment pertained to the PATRIOT Act's provisions regarding delayed notice of search warrants.

This amendment provided, in full, that "None of the funds made available in this act may be used to seek a delay under Section 3103a(b) of title 18 United States Code." Rep. Otter's amendment could not address substantive law, since it was an amendment to an appropriations bill, which can only address appropriations.

This bill has no other original cosponsors. The bill was referred to the Senate Judiciary Committee. Sen. Feingold is a member.

2/8. Sen. Russ Feingold (D-WI) introduced S 317, the "Library, Bookseller, and Personal Records Privacy Act".

This bill is a reintroduction of S 1507 (108th Congress), titled the "Library, Bookseller, and Personal Records Privacy Act", which Sen. Feingold and others introduced on July 31, 2003.

This bills pertains to § 215 of the PATRIOT Act and § 501 et seq. of the Foreign Intelligence Surveillance Act (FISA). The FISA only applies to foreign powers, and agents of foreign powers, including international terrorists. The statutes do not expressly include library records; however, it is not disputed that library records could be obtained. Some groups, and especially the American Library Association (ALA), have been vocal about FISA warrants for library records.

Former Attorney General John Ashcroft has said that there is no issue. Ashcroft stated in September 2003 that this section of the FISA has not been used to obtain library records.

Ashcroft testified before the Senate Judiciary Committee on June 8, 2004. However, no one asked him questions about the use of § 215 of the PATRIOT Act and § 501 of the FISA to obtain library records. Sen. Feingold did focus on a number of other surveillance issues, but not library records.

Basically, in 2001 § 215 rewrote § 501 et seq. of the FISA, which is codified in Title 50 as § 1861. It pertains to "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". § 215 (of the PATRIOT Act) replaced §§ 501-503 (of the FISA) with new language designated as §§ 501 and 502.

Currently, § 501 (as amended by § 215) requires that an application to a judge or magistrate "shall specify that the records concerned are sought for an authorized investigation 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." Allowing § 215 to sunset, or passing a bill such as Sen. Feingold's, would raise the standards for obtaining a FISA order for business records.

Sen. Feingold's bill would also provide that "The term `library´ means a library ... whose services include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally to patrons for their use, review, examination, or circulation."

Sen. Feingold explained his bill. "This bill would amend Sections 215 and 505 of the USA-PATRIOT Act to protect the privacy of law-abiding Americans. It would set reasonable limits on the Federal Government's access to library, bookseller, medical, and other sensitive, personal information under the Foreign Intelligence Surveillance Act (``FISA´´) and related foreign intelligence authority." See, Congressional Record, February 8, 2005, at Pages S1131-3.

He said that "Section 215 of the PATRIOT Act requires the FBI to show in an application to the court that the documents are ``sought for´´ an international terrorism or foreign intelligence investigation. There is no requirement that the FBI make a showing of individualized suspicion that the documents relate to a suspected terrorist or spy. In other words, under current law, the FBI could serve a subpoena on a library for all the borrowing records of its patrons or on a bookseller for the purchasing records of its customers simply by asserting that they want the records for a terrorism investigation."

He added that "Librarians and booksellers are concerned that under the PATRIOT Act, the FBI could seize records from libraries and booksellers in order to monitor what books Americans have purchased or borrowed, or who has used a library's or bookstore's internet computer stations, even if there is no evidence that the person is a terrorist or spy, or has any connection to a terrorist or spy."

Sen. Feingold acknowledged that this section has been used little, if at all. He said that "In testimony before the Judiciary Committee, Attorney General Ashcroft stated that as of September 18, 2003, the Department of Justice had never used Section 215. The Department has not made that claim in public testimony since then, leading many to speculate that the provision has now been used. Whether it has been used once, or dozens of times, the problem with the section remains -- it is too broad and does not permit adequate judicial supervision. There is a potential for overreaching that Congress must address."

He also said that "my concerns with the PATRIOT Act go beyond library and bookseller records. Under section 215 of the PATRIOT Act, the FBI could seek any records maintained by a business. These business records could contain sensitive, personal information -- for example, medical records maintained by a doctor or hospital or credit records maintained by a credit agency. All the FBI would have to do is simply assert that the records are ``sought for'' its terrorism or foreign intelligence investigation."

He also offered this explanation. "Suppose the FBI is conducting an investigation of an international terrorist organization. It has information that suspected members of the group live in a particular neighborhood. The FBI would like to obtain records from the library in the suspects' neighborhood. Under current law, the FBI could decide to ask the library for all records concerning anyone who has ever borrowed a book or used a computer, and what books were borrowed, simply by asserting that the documents are sought for a terrorism investigation. But under my bill, the FBI could not do so. The FBI would have to set forth specific and articulable facts giving reason to believe that the person to whom the records pertain is a suspected terrorist. The FBI could obtain only those library records -- such as borrowing records or computer sign-in logs -- that pertain to the suspected terrorists. The FBI could not obtain library records concerning individuals who are not suspected terrorists."

Sen. Feingold also discussed libraries and electronic communications providers. He said that "My bill would amend section 505 of the PATRIOT Act. Part of this section relates to the production of records maintained by electronic communications providers. Libraries or bookstores with internet access for customers could be deemed ``electronic communication providers´´ and therefore be subject to a request by the FBI under its NSL authority."

He elaborated that "safeguards are needed to ensure that any individual who accesses the internet at a library or bookstore does not automatically give up all expectations of privacy. Like the section 215 fix I've discussed, my bill would require an individualized showing by the FBI of how the records of internet usage maintained by a library or bookseller pertain to a suspected terrorist or spy."

This bill has nine original cosponsors. It was referred to the Senate Judiciary Committee.

2/8. Rep. Chris Cox (R-CA) and other Representatives wrote a letter to George Yin, the Chief of Staff of the Joint Committee on Taxation, criticizing the January 31, 2005 report [435 pages in PDF] of the JCT that proposed to expand the existing excise tax on phone service to include various internet protocol services.

The JCT report is titled "Options to Improve Tax Compliance and Reform Tax Expenditures". It includes a listing and analysis of three options for expanding the scope of the current excise tax on phone service. The broadest proposal calls for taxing "digital wireless, satellite and VOIP, or any combination" and "all data communications services". See, story titled "Joint Committee on Taxation Offers Recommendations for Expanding Excise Tax on Phones to IP Services" in TLJ Daily E-Mail Alert No. 1,074, February 10, 2005.

The Representatives wrote that "We were extremely disappointed to read your staff's recent suggestion that Congress consider taxing Internet access and extending the regressive, anti-consumer Federal Excise Tax on telephone service to other communications technologies."

"We were also perplexed that JCT would gratuitously suggest tax increases in response to a request from Senators about methods to reduce underreporting and underpayment by taxpayers." They continued that "Consumers who now enjoy freedom from regressive taxes on Internet access are not tax cheats. Nor or Internet users benefiting from a "loophole" simply because Congress has wisely rejected the transplantation of regressive, discriminatory, 1930s-era telephone taxes into the digital economy."

Rep. Cox (at left) has led the House efforts to pass the Internet Tax Freedom Act, and bills to extend its provisions.

They also wrote that "The request that JCT received from Senators Grassley and Baucus gave no hint that its authors would be interested in proposals to crush innovation, discourage broadband deployment, or reduce America's Internet-led productivity growth. Since both Senators have voted at least twice in the last ten months against new taxes on Internet access, we're baffled as to how you could interpret a desire to reduce noncompliance with our tax laws as a request for new ways to tax the Internet."

They concluded, "The question demanding an answer now is why any consumers still have to pay a telephone tax created in 1898 to fund the Spanish-American War. Please report back to use on the policy benefits of ending the Federal Excise Tax on telecommunications."

The Representatives who signed the letter include, but are not limited to, Chris Cox (R-CA), Walter Jones (R-NC), Jeff Miller (R-FL), Patrick McHenry (R-NC), Mark Foley (R-FL), Chip Pickering (R-MS), Gerry Weller (R-IL), Ron Paul (R-TX), Mike Rogers (R-MI), Robert Simmons (R-CT), Fred Upton (R-MI), Charles Bass (R-NH), Anna Eshoo (D-CA), Vito Fosella (R-NY), and John Lewis (D-GA).

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

The Senate will meet at 9:45 AM. It will consider the nomination of Michael Chertoff to be Secretary of Homeland Security.

The Supreme Court is in recess until February 22, 2005.

9:30 AM. The Senate Foreign Relations Committee will hold a hearing on the nomination of Robert Zoellick to be Deputy Secretary of State. Location: Room 419, Dirksen Building.

10:00 AM. The Senate Commerce Committee will hold a hearing on President Bush's FY 2006 budget proposal for the Department of Homeland Security's (DHS) Transportation Security Administration (TSA) and related programs. Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Andy Davis (Inouye) at 202 224-4546. Location: Room 253, Russell Building.

12:00 NOON. The Cato Institute will host a book forum. William Eggers will discuss his book titled Government 2.0: Using Technology to Improve Education, Cut Red Tape, Reduce Gridlock, and Enhance Democracy [Amazon]. Robert Atkinson (Progressive Policy Institute), Stephen Slivinski (Cato) and Jim Harper (Cato) will comment on the book. Lunch will follow the program. This event is free and open to the public. The event will be webcast by Cato. See, notice and registration form. Location: Cato, 1000 Massachusetts Ave., NW.

5:00 PM. The House Rules Committee will meet to adopt rules for consideration of HR 310, the "Broadcast Decency Enforcement Act of 2005" and S 5, the "Class Action Fairness Act of 2005". Location: Room H-312, Capitol Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Engineering for Communications Lawyers 101". The price to attend varies from $50 to $125. Reservations and cancellations are due by 5:00 PM on February 14. See, registration form [PDF]. Location: Skadden Arps, 1440 New York Ave., NW.

Day three of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "2005 Winter Committee Meetings". See, notice. Location: Hyatt Regency Washington.

Effective date of the Federal Communications Commission's (FCC) final rule regarding wireless services in rural areas. On September 27, 2004, the FCC released the text [137 pages in PDF] of its Report and Order and Further Notice of Proposed Rulemaking. The FCC adopted this item at its July 8, 2004 meeting. This item is 04-166 in WT Docket Nos. 02-381, 01-14, and 03-202. See, notice in the Federal Register, December 15, 2004, Vol. 69, No. 240, at Pages 75143 - 75173.

Deadline to submit comments to the Judicial Conference of the United States (JC) its proposed amendments to court rules regarding electronic filings. The JC has proposed amendments to Civil Rule 5, Appellate Rule 25, and Bankruptcy Rule 5005. Each of these proposed amendments would permit the applicable court, by local rules, to "permit or require papers to be filed, signed, or verified by electronic means" (or similar language). Current rules provide that the applicable court may "permit" filing by electronic means. See, JC notice [PDF] and notice in the Federal Register, Federal Register, December 2, 2004, Vol. 69, No. 231, at Page 70156.

The House will meet at 10:00 AM for legislative business. It may take up HR 310, the "Broadcast Decency Enforcement Act of 2005", and/or S 5, the "Class Action Fairness Act of 2005". See, Republican Whip Notice.

8:45 - 10:00 AM. The New America Foundation (NAF) will host a breakfast and panel discussion titled "Education Revolution: How Investing in E-Learning R&D Could Dramatically Improve Educational Productivity". The speakers will be Michael Calabrese (NAF), Newton Minow (Sidley Austin), Sen. Chris Dodd (D-CT), Thomas Stratmann (George Mason University), Eamon Kelly (Tulane University), and Larry Grossman. See, notice. RSVP to Naveen Lakshmipathy at 202-986-2700 or lakshmipathy@newamerica.net. Location: Room 628, Dirksen Building, Capitol Hill.

9:00 AM. The Campaign Legal Center (CLC) will host a news conference titled "Public Interest Public Airwaves". For more information, contact Stephanie Collier (CLC) at 202 736-2200. Location: Zenger Room, National Press Club, 529 14th St. NW, 13th Floor.

10:00 AM. The House Commerce Committee's Subcommittee on Trade, Commerce and Consumer Protection will meet to mark up HR 29, the "The Securely Protect Yourself Against Cyber Trespass Act" or Spy Act. The meeting will be webcast by the Committee. Press contact: Jon Tripp (Barton) at 202 225-5735 or Paul Flusche (Stearns) at 202 225-5744. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Banking Committee will hold a hearing titled "The Federal Reserve's First Monetary Policy Report to Congress for 2005". Federal Reserve Board Chairman Alan Greenspan will testify. See, notice. Location: Room 106, Dirksen Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "Transforming Government for the 21st Century". See, notice. Location: Room 342, Dirksen Building.

11:00 AM - 1:00 PM. The House Science Committee will hold a hearing titled "An Overview of the Federal R&D Budget for Fiscal Year 2006". The scheduled witnesses are John Marburger (Director of the White House Office of Science and Technology Policy), Samuel Bodman (Secretary of Energy), Arden Bement (Director of the National Science Foundation), Charles McQueary (Undersecretary for Science and Technology at the Department of Homeland Security), and Theodore Kassinger (Deputy Secretary of Commerce). Press contact: Joe Pouliot at 202 225-0581. Location: Room 2318, Rayburn Building.

12:00 NOON. Intel will host a news conference titled "Benchmarks of Innovation". For more information, contact Jennifer Greeson at 202 320-8532. Location: Murrow Room, National Press Club, 529 14th St. NW, 13th Floor.

12:30 - 1:45 PM. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be Mel Karmazin, CEO of Sirius Satellite Radio. Prices range from $35 to $65. The deadline to register is February 11. See, registration form [MS Word]. Location: Mayflower Hotel, East Room, 1127 Connecticut Ave., NW.

2:00 PM. The House Homeland Security Committee's Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment will hold a hearing titled "The Proposed Fiscal Year 2006 Budget: Building the Information Analysis Capability of DHS". Location: undisclosed.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet by teleconference to prepare for the International Telecommunications Union's (ITU) Telecommunication Standardization Advisory Group (TSAG) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the call in information, contact Julian Minard at minardje@state.gov.

3:00 PM. The Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Property Rights will hold a hearing titled "Obscenity Prosecution and the Constitution". The witnesses will be Robert Destro (Catholic University of America), William Wagner (Thomas M. Cooley Law School), and Frederick Schauer (John F. Kennedy School of Government). See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

Day four of a four day event hosted by the National Association of Regulatory Utility Commissioners (NARUC) titled "2005 Winter Committee Meetings". See, notice. Location: Hyatt Regency Washington.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding BellSouth's and Sprint's petition for reconsideration of the FCC's schools and libraries Fifth Report and Order. The FCC adopted this 5th R&O at its August 4, 2004 meeting, and released it on August 13, 2004. See, FCC Public Notice (DA 05-103). This 5th R&O is FCC 04-190 in CC Docket No. 02-6.

Deadline to submit comments to the Copyright Office in response to its notice in the Federal Register requesting comments regarding whether the 2005 cable statutory license rate adjustment proceeding should take place under the auspices of the Copyright Arbitration Royalty Panel (CARP) system or the new Copyright Royalty Judge (CRJ) system. See, Federal Register, January 26, 2005, Vol. 70, No. 16, at Pages 3738 - 3739.

The House will meet at 10:00 AM for legislative business. It may take up HR 310, the "Broadcast Decency Enforcement Act of 2005", and/or S 5, the "Class Action Fairness Act of 2005". See, Republican Whip Notice.

9:00 - 11:00 AM. The DC Bar Association will host a panel discussion titled "Broadband Over Power Lines: Does It Work, How Does It Work, and How Will It Be Regulated?" The scheduled speakers are Kathleen Abernathy (FCC Commissioner), Nora Brownell (Federal Energy Regulatory Commission), Laura Chappelle (Chairman of the Michigan Public Service Commission), James Bolin (Current Technologies), Jonathan Frankel (Wilmer Cutler Pickering Hale & Dorr), and David Konuch (Fleischman & Walsh). See, notice. Prices vary from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Role of Technology in Achieving a Hard Deadline for the DTV Transition". The hearing will be webcast by the Committee. Press contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in SBC Communications v. FCC, No. 03-1147, a petition for review of a Forfeiture Order in which the FCC held that SBC violated the provision of the FCC's order approving the merger of SBC and Ameritech which required SBC to offer access to the shared transport element of its telephone network to competitors in five midwestern states. See, FCC's brief [38 pages in PDF]. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in MGM v. Marybeth Peters, No. 04-5142, and Universal City Studios v. Marybeth Peters, No.04-5138.  Judges Edwards, Rogers and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM - 12:00 NOON. The Federal Communications Commission's (FCC) will host an event titled "Telecommunications Services Priority (TSP) Summit". See, notice and agenda [PDF]. Location: FCC, Commission Meeting Room (TW-C305), 445 12th St., SW.

10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR 683, the "Trademark Dilution Revision Act of 2005". Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. Alan Greenspan, Chairman of the Federal Reserve Board, will testify before the House Financial Services Committee on monetary policy and the state of the economy. Location: Room 2128, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Developments In U.S.-Russian Trade And Business Relations". The scheduled speakers are Andrey Dolgorukov (Trade Representative of the Russian Federation to the U.S.), Eugene Lawson (P/CEO of the U.S.-Russia Business Council), Richard Dean (Coudert Brothers), and Geoffrey Goodale (Gardner Carton & Douglas). See, notice. Prices vary from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

1:30 PM. The House Ways and Means Committee's Subcommittee on Trade will hold an organizational meeting. Location: Room 1129, Longworth Building.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC 07 Advisory Committee, Informal Working Group 3: IMT-2000 and 2.5 GHz Sharing Issues will meet. See, FCC notice [PDF]. Location: FCC, 445 12th Street, SW, South Conference Room (6th Floor, Room 6-B516).

4:00 PM. Glynn Lunney (Tulane University Law School) will present a draft paper titled "Patents and Growth: Empirical Evidence from the States". See, abstract of paper, and notice of event. This event is part of the Spring 2005 Intellectual Property Workshop Series sponsored by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. The event is free and open to the public. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking (2FNPRM) regarding reducing barriers to secondary markets for spectrum rights. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77560 - 77568. This 2FNPRM is a part of a larger item that the FCC adopted on July 8, 2004, and released on September 2, 2004. See, story titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004; and story titled "FCC Releases Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 969, September 3, 2004. See also, story titled "FCC Sets Comment Deadlines on 2FNPRM Regarding Secondary Markets for Spectrum" in TLJ Daily E-Mail Alert No. 1,045, December 28, 2004.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Qualcomm's Petition for Declaratory Ruling seeking clarification of rules and the establishment of a streamlined review process to accelerate the deployment of new services in the 700 MHz band. See, FCC Public Notice (DA 05-87). This proceeding is WT Docket No. 05-7.

12:00 NOON. Glynn Lunney (Tulane University Law School) will give a lecture titled "Direct and Indirect Stock Price Reactions to Patent Decisions" as part of the Georgetown Law Colloquium on Intellectual Property & Technology Law. For more information, contact Julie Cohen at 202 662-9871 or jec@law.georgetown.edu, or Jay Thomas at 202 662-9925. Location: Faculty Lounge, Fifth Floor, Georgetown University Law Center, 600 New Jersey Ave., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding reserve prices or minimum opening bids and other procedures for Auction 60, the auction of five licenses in the Lower 700 MHz band C block (710-716/740-746 MHz), which is scheduled to begin on July 20, 2005. See, FCC's Public Notice numbered DA 05-171.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding reserve prices or minimum opening bids and other procedures for Auction 61, the auction of of ten Automated Maritime Telecommunications System (AMTS) licenses scheduled to commence on August 3, 2005. See, notice in the Federal Register, February 11, 2005, Vol. 70, No. 28, at Pages 7270-7274.

The Senate will not meet on Monday, February 21 through Friday, February 25 for its Presidents Day recess. See, Senate calendar.

The Federal Communications Commission (FCC) and other federal offices will be closed in observance of George Washington's birthday. See, Office of Personnel Management's (OPM) list of federal holidays.

2/14. Verizon Communications and MCI WorldCom announced that "Verizon has agreed to acquire MCI for $4.8 billion in equity and $488 million in cash", and that "The Boards of Directors of both companies have approved the agreement". See, Verizon release and substantially identical MCI WorldCom release.

The two companies elaborated that "MCI shareowners will receive 0.4062 shares of Verizon common stock for each common share of MCI. This is worth $4.795 billion and equivalent to $14.75 per MCI share, based on Verizon's closing price on Friday, Feb. 11."

"MCI shareowners will also receive $1.50 per MCI share in cash, worth $488 million. This consideration is subject to adjustment at closing and may be decreased based on MCI's bankruptcy claims-related experience." They added that "MCI will pay its shareowners quarterly and special dividends of $4.50 per share, worth $1.463 billion. This includes a 40-cent-per-share quarterly dividend approved by the MCI Board on Friday, Feb 11."

The transaction is also subject to regulatory approvals.

On January 31, 2005, SBC Communications announced that it would acquire AT&T. See, story titled "SBC to Acquire AT&T" in TLJ Daily E-Mail Alert No. 1,067, February 1, 2005.

Critics of telecom industry mergers again criticized the Verizon MCI WorldCom deal. For example, Mark Cooper of the Consumer Federation of America stated in a release that "As a result of these mergers and the push to deregulate markets with feeble competition, it will be harder and more expensive for budget conscious households to get basic local and long distance service."

2/14. President Bush renominated twelve persons to be Judges of various U.S. Courts of Appeals. He announced that he would make these twelve nominations back on December 23, 2004. These are all persons whose previous nominations were delayed or obstructed by Senate Democrats in the 108th Congress. The twelve are as follows:
Terrence Boyle (4th Circuit)
William Haynes (4th Circuit)
Priscilla Owen (5th Circuit)
David McKeague (6th Circuit)
Susan Neilson (6th Circuit)
Henry Saad (6th Circuit)
Richard Griffin (6th Circuit)
William Myers (9th Circuit)
William Pryor (11th Circuit)
Janice Brown (DC Circuit)
Brett Kavanaugh (DC Circuit)
Thomas Griffith (DC Circuit).
Bush also renominated eight persons to be U.S. District Court Judges. Each of these had been nominated in the 108th Congress. The eight are as follows:
Paul Crotty (S.D. New York)
James Dever (E.D. North Carolina)
Robert Conrad (W.D. North Carolina)
Judge Thomas Ludington (E.D. Michigan)
Judge Daniel Ryan (E.D. Michigan)
Judge Sean Cox (E.D. Michigan)
Michael Seabright (District of Hawaii)
Peter Sheridan (District of New Jersey).
See, White House release. See also, story titled "Bush to Renominate 20 for Federal Judgeships" in TLJ Daily E-Mail Alert No. 1,044, December 27, 2004.

2/14. President Bush nominated John Bellinger to be Legal Adviser of the Department of State, Nicholas Burns to be an Under Secretary of State (Political Affairs), and David Welch to be an Assistant Secretary of State (Near Eastern Affairs). See, White House release.

2/14. The Federal Election Commission (FEC) adopted an advisory opinion [PDF] in response to a request for an advisory opinion from the Missouri Broadcasters Association (MBA). The FEC concluded that the MBA did not make an in-kind contribution, within the meaning of the Federal Election Campaign Act (FEC), and the regulations thereunder, to Sen. Kit Bond (R-MO) by charging his campaign the Lowest Unit Charge (LUC) for advertising time, when he may not have been entitled to the LUC under the Communications Act. This opinion is number AO 2004-43.

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