6/6. The Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee, gave a luncheon speech in Washington DC. He again spoke about the SCC's closed hearings, which he describes as "listening sessions". He explained that it is easier to pass legislation when the Senate acts in secrecy.

He also complained about the sunshine law. He said that the SCC has held secret meetings with Federal Communications Commission (FCC) Commissioners, but that the sunshine law "prohibits the Commission from meeting with Congress except two at a time. As a matter of fact, when they come to a hearing only two of them can be in the room at one time. So, they have to sort of change seats as their time to testify comes up."

The sunshine law, or open meetings act, was enacted in 1976 as one of the post-Watergate reforms. It is Public Law 94-409. It is now codified at 5 U.S.C. § 552b. It requires that for federal agencies, subject to certain exceptions, "every portion of every meeting of an agency shall be open to public observation".

If the SCC were to hold public hearings, all of the Commissioners could participate at once. The FCC complies with the sunshine law by, essentially, not holding meetings. Very little agency business is conducted at events that the FCC titles "Open Meeting".

Stevens (at right) added that the sunshine law "is stupidity", and that he wants to "find a way to modify these existing laws".

Stevens then talked about digital television transition. He said that "these listening sessions have been very helpful to us so far. We've completed the listening sessions on the digital television transition. We're going to put together now a bipartisan bill and both staff, minority and majority, will be working on that."

He continued that a Senate bill may be "quite similar to the House staff draft that has being circulated. We believe that we'll probably put a hard date in the bill of 2009, we're not sure of that yet. But, we're working on options for some type of a program to solve the problem of set-top boxes for the analog sets that will still be in the hands of many people who cannot afford to replace them right away. I personally think that we ought to put our legislation that requires some sort of a warning on analog sets sold after a specific date. These analog sets have every kind of description on them possible to indicate that they are digital, but they are not. And, they’re all made outside of the United States."

He also stated that "We hope that we can move up the date of when analog sets can no longer actually be sold in the interstate commerce in this country and the current deadline is June 1, 2007, for TV sets larger than 13 inches to include digital tuners. One of the great problems is to develop a program that funds the analog translators in rural areas so they can receive and transmit digital signals."

He stated the the SCC has heard in closed meetings with representatives of the Bell Operating Companies that they "seek to enter video markets", and are concerned "about the costs and merits of state regulation or local regulation". He also said that the SCC has heard from the cell phone industry about state regulation.

Stevens spoke vaguely about what the SCC might do. He said that "it appears to us now that we ought to think about some kind of a national solution and this also would apply to the font size on cell phone contracts and advertising. Uniform contract procedures are almost impossible under current circumstances. I am one who basically believes in states’ rights, but this is getting to the point now where we will have to find a way to deal with these issues that, I think, confront the industry. We are going to look at generally, the role of states across the board and when state regulation makes sense and when it becomes an unnecessary financial burden not only to the industry, but to consumers."

Sen. Stevens spoke at a Federal Communications Bar Association's (FCBA) event.

6/6. The Supreme Court issued its opinion [79 pages in PDF] in Gonzales v. Raich, a case regarding the authority of the Congress to enact criminal statutes under the Commerce Clause. The Court upheld a section of the Controlled Substances Act as a valid exercise of federal power.

Justice Stevens wrote in the opinion of the Court that the Congress has broad and sweeping power to enact criminal statutes under the Commerce Clause. It now appears unlikely that the Court would overturn technology related criminal statutes as unconstitutional exercises of Commerce Clause authority.

The significance of this for technology is that many of the bad acts that are related to the use of information technologies are committed by individuals who are not buying or selling anything in interstate commerce. Many are sitting at home, using their personal computers. Yet, the Congress is increasingly  regulating this conduct. The present case indicates that the Supreme Court will not be receptive to constitutional challenges to these statutes when the challenges are based on the assertion of lack of authority under the Commerce Clause.

This case pertains to the growing of rnarijuana in the home, for personal use, for medicinal purposes, with a medical doctor's prescription, in the state of California. The state of California enacted a statute that legalizes this. The Congress enacted a statute, the Controlled Substances Act (CSA), which criminalizes this. The plaintiffs in this case are Angel Raich and Diane Monson, California residents who grow rnarijuana at home, in a manner that is permitted under California law, but prohibited under federal law.

They filed a complaint in U.S. District Court (NDCal), asserting, among other claims, that the pertinent section of the CSA is an invalid exercise of federal power. The U.S. argued that it is a valid exercise of Commerce Clause power. The District Court denied injunctive relief. The U.S. Court of Appeals (9thCir) reversed. These opinions are reported at 248 F. Supp. 2d 918 (ND Cal. 2003) and 352 F. 3d 1222 (2003). The U.S. petitioned for writ of certiorari. The Supreme Court granted certiorari, under the case name of Ashcroft v. Raich. This case is Sup. Ct. No. 03-1454.

This case does not involve any technology. However, the analysis of the Supreme Court will likely affect pending and future constitutional challenges to certain federal technology related criminal statutes.

There is no general grant of criminal law making authority in the Constitution. There is an implied power to enact certain criminal laws as "necessary and proper for carrying into Execution" other enumerated powers. See, Article I, Section 8, Clause 18. Some federal criminal statutes, such as the CSA and some technology related criminal statutes, are based upon the authority of the Commerce Clause. See, Article I, Section 8, Clause 2.

For example, the Supreme Court has received a petition for writ of certiorari in U.S. v. James Maxwell, Sup. Ct. No. 04-1382. This case involves the constitutionality of 18 U.S.C. § 2252A(a)(5)(B), which addresses pormography on computer disks or computers hard drives.

The Office of the Solicitor General (SG) filed a brief with the Supreme Court in April, 2005, urging the Supreme Court to hold the Maxwell petition for writ of certiorari until it decides Raich case on the merits. The SG wrote that the issue in Maxwell is "Whether 18 U.S.C. 2252A(a)(5)(B), which prohibits the knowing possession of child pormography ``that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce,´´ is unconstitutional, as exceeding Congress's Commerce Clause authority, as applied to respondent's intrastate possession of child pormography stored on computer disks that had traveled in interstate commerce."

In its June 6 opinion, the Supreme Court upheld the CSA in a manner that makes it appear that most challenges to other federal criminal statutes based upon the commerce clause will also fail.

The court wrote that under Perez v. United States, 402 U.S. 146 (1971), there are "three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. ... Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. ... Third, Congress has the power to regulate activities that substantially affect interstate commerce."

The court held that the present regulation of the home cultivation for personal meets the third basis. It substantially affects interstate commerce.

In so doing, it relied on a New Deal era case, Wickard v. Filburn, 317 U. S. 111 (1942). This case, which has been criticized over the years, represents the anything goes application of the Commerce Clause by Justices appointed by former President Franklin Roosevelt.

In Wickard, the Congress enacted a statute that purported to improve the economy through government control and planning. In particular, it directed the government to set production levels and prices for wheat grown by farmers. The issue in that case was a small amount of wheat grown by farmer named Filburn, not for sale, but for consumption on his own farm. The Supreme Court held that the Commerce Clause reaches this conduct because, while this wheat was not sold in interstate commerce, other wheat is sold in interstate commerce.

The present case further expands this Wickard authority of Congress. Filburn was a farmer who did also sell crops in interstate commerce. In the present case, Angel Raich and Diane Monson do not also sell rnariuana, or any other crops, in interstate commerce.

The Court, quoting from Wickard, wrote that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." The Court added that "Congress can regulate purely intrastate activity that is not itself ``commercial,´´ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

The Court then went on to state that it will not engage in any significant review of the Congress' determination that something substantially affects interstate commerce.

It was not clear, before the present ruling, that the Court would read such broad powers into the Commerce Clause. In 1995 the Supreme Court held unconstitutional the Gun-Free School Zones Act of 1990, which made it a crime for an individual to possess a gun in a school zone. The Congress had asserted authority under the Commerce Clause. See, U.S. v. Lopez, 514 U. S. 549.

The present case suggests that Wickard, not Lopez, is the guiding case, and that almost anything will pass constitutional muster, no matter how small or vague the connection to interstate commerce.

6/6. President Bush gave a speech in Ft. Lauderdale, Florida, in which he advocated free trade, and urged the Congress to approve the Central America Free Trade Agreement (CAFTA).

He said that "In the new Americas of the 21st century, one of the surest ways to make opportunity real for all our citizens is by opening our doors to trade. My government is pursuing this goal at all levels: at the global level through the Doha Round of the World Trade Organization, at the regional level through Free Trade Area of the Americas, and at the bilateral level with Free Trade Agreements with individual countries like Chile and Mexico and Canada. And the United States Congress is now considering the Central American and Dominican Republic Free Trade Agreement, which offers an historic opportunity to bring prosperity to the citizens of our hemisphere who have not known it."

He added that "CAFTA would expand opportunity by creating a more level playing field for our goods and services. Under existing rules, most of Central America's exports already enter the United States duty free -- but U.S. exports still face hefty tariffs. By passing CAFTA, the United States would open up a market of 44 million consumers for our farmers and small business people. CAFTA will replace a system that is often arbitrary with one that is fair and transparent and based on common rules."

The text of the CAFTA also contains sections that pertain to intellectual property rights [PDF], electronic commerce [PDF], and telecommunications [PDF]. Bush did not reference any of these sections in his speech.

The House will meet 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 continue its consideration of the nomination of Janice Brown to be a Judge of the U.S. Court of Appeals (DCCir).

The Supreme Court is in recess until Monday, June 13, 2005. See, Order List [13 pages in PDF] at page 13.

8:00 AM. The U.S. Chamber of Commerce will host a breakfast. The speaker will be Rep. Bill Thomas (R-CA), the Chairman of the House Ways & Means Committee. The price to attend ranges from free to $55. See, notice. Location: US Chamber, 1615 H Street, NW.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. The agenda includes updates on encryption controls, AES, and the proposed rule on deemed export related regulatory requirements. See, notice in the Federal Register, May 23, 2005, Vol. 70, No. 98, at Page 29478. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in International Rectifier Corp. v. Samsung. This is App. Ct. No. 04-1429. This is an appeal from the U.S. District Court (CDCal) in a patent case. Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 402.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Current Intellectual Property Issues in Europe". The speakers will be Alexander Leisten, Peter Ruess, and Barbara Berschler. The price to attend ranges from $10-$30. For more information, contact 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The House Appropriations Committee will meet to consider the defense appropriations bill, and the Departments of State, Justice and Commerce appropriations bill. Location: Room 2359 Rayburn Building.

2:30 PM. The Senate Foreign Relations Committee's Subcommittee on East Asian and Pacific Affairs will hold a hearing titled "The Emergence of China Throughout Asia: Security and Economic Consequences for the U.S." See, notice. Location: Room 419, Dirksen Building.

5:30 PM. The House Rules Committee will meet to adopt a rule for the consideration of HR 2475, the "Intelligence Authorization Act for Fiscal Year 2006". Location: Room H-312, Capitol Building.

The House will meet at 10:00 AM for legislative business. The House may consider HJRes 27, a resolution pertaining to the World Trade Organization (WTO), and/or HR 2475, the Intelligence Authorization Act for FY 2006. See, Republican Whip Notice.

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:30 AM. The Senate Commerce Committee's Subcommittee on Technology, Innovation, and Competitiveness will hold a hearing titled "Manufacturing Competitiveness in a High-Tech Era". See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Reauthorization of the USA PATRIOT Act". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee's (SCC) Subcommittee on Disaster Prevention and Prediction will hold a hearing. The SCC's notice states that "The hearing will examine the National Institute of Standards and Technology's recent World Trade Center report, as well as their computer security, and chemical, biological and radiological detection standards. Additionally, the hearing will focus on the National Science Foundations' scientific research in areas such as computer security and data mining ..." (Emphasis added.). The witnesses will be Hratch Semerjian (Director of the National Science Foundation), Conrad Lautenbacher (NOAA Administrator), and Arden Bement (Director of the National Institute of Standards and Technology). Location: Room 253, Russell Building.

RESCHEDULED FOR SEPTEMBER 8. 3:00 - 5:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 1 (Terrestrial and Space Science Services) will meet. See, notice [PDF]. Location: Lockheed Martin, 1550 Crystal Drive, Suite 300, Arlington, VA. See, FCC's June 3 notice [PDF].

The House will meet at 10:00 AM for legislative business. The House may consider HJRes 27, a resolution pertaining to the World Trade Organization (WTO), and/or HR 2475, the Intelligence Authorization Act for FY 2006. See, Republican Whip Notice.

8:30 AM - 12:00 NOON. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 20, 2005, Vol. 70, No. 97, at Page 29279. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

9:00 AM. The House Judiciary Committee's Subcommittee on Courts the Internet and Intellectual Property will hold a hearing titled "H.R. __, "The Patent Act of 2005". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF]. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee (SJC) has scheduled an executive business meeting. The SJC frequently cancels meetings without notice. See, notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 224, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Broadcast Innovation v. Charter Communications. This is App. Ct. No. 05-1008. It is a patent infringement case appealed from the U.S. District Court (DColo). Location: U.S. Court of Appeals, LaFayette Square, 717 Madison Place, Courtroom 203.

RESCHEDULED FOR JULY 21. 12:15 PM - 2:00 PM. The Forum on Technology will host a luncheon panel discussion titled "Basic Research - The Foundation of the Innovation Economy". See, notice. Location: Room 902, Hart Building, Capitol Hill.

1:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Issues before The U.S.-China Joint Commission on Commerce and Trade". The hearing will be webcast by the HCC. See, notice. Location: Room 2123, Rayburn Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "2nd Annual Spring Reception with FCC Commissioners and Legal Advisors". The price to attend ranges from $30 to $60. The FCBA requests an RSVP. See, registration form [PDF]. Location: Washington Hilton Hotel, 1919 Connecticut Ave., NW.

The Federal Trade Commission (FTC), American Intellectual Property Law Association (AIPLA), and National Academies' Board on Science, Technology, and Economic Policy (STEP) will jointly host a public meeting on patent reform. See, FTC notice. See also, story titled "FTC, AIPLA, and National Academies to Host Series of Public Meetings on Patent Reform" in TLJ Daily E-Mail Alert No. 1,043, December 23, 2004.

The House may meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will hold a meeting. See, FCC notice [PDF] and notice in the Federal Register, June 1, 2005, Vol. 70, No. 104, at Pages 31469 - 31470. Location: Commission Meeting Room (TW-C305), 445 12th Street, SW.

The Supreme Court will meet. It is possible that it will issue opinions in MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and/or Merck v. Integra (regarding a research exemption to patent infringement).

9:30 AM. The Intellectual Property Owners Association (IPO) will hold a news conference to announce the winners of its Inventor of the Year Awards. For information call 202 466-2396. Location: National Press Club, 529 14th St. NW, 13th Floor.

8:30 AM - 3:15 PM. The Chamber of Commerce will host a program titled "The Global Potential of Radio Frequency Identification". The speakers will include Daniel Caprio (Deputy Assistant Secretary for Technology Policy, and Chief Privacy Officer, at the Department of Commerce), Claus Heinrich (SAP Executive Board Member), Bill McDermott (P/CEO of SAP America), and Patrick Gauthier (SVP of Visa USA). The price to attend ranges from free to $195. For more information, contact Andrew Persson at 202 463-5500. See, notice and agenda [PDF]. Location: Chamber of Commerce, 1615 H Street, NW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a luncheon. The speaker will be Dan Glickman, P/CEO of the Motion Picture Association of America (MPAA). For more information, contact Brooke Emmerick at 202-289-8928 or bemmerick at pff dot org. Press contact: Patrick Ross at 202 289-8928 or pross at pff dot org. See, notice and registration page. Location: Rotunda Room, Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

2:00 - 4:00 PM. The Federal Communications Commission's (FCC) WRC-07 Advisory Committee's Informal Working Group 5 (Regulatory Issues) will meet. See, notice [PDF]. Location: Boeing, 1200 Wilson Boulevard, Arlington, VA. The nearest Metro is Rosslyn.

6:00 PM. The Intellectual Property Owners Association (IPO) will host a reception for its Inventor of the Year Award winners. Rep. Zoe Lofgren (D-CA) will present the awards. For information call 202 466-2396. Location: Caucus Room, Cannon House Office Building.

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