5/5. A three judge panel of the U.S. Court of Appeals (DCCir) heard oral argument in ACE v. FCC. Judge Edwards repeatedly stated, with various blunt terms, that the argument of the Department of Justice (DOJ) and the Federal Communications Commission (FCC) that broadband service providers are subject to the requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA) is nonsense.

This is a consolidation of numerous petitions for review of the order [59 pages in PDF] that the FCC adopted on August 5, 2005, and released on September 23, 2005. This order and further notice of proposed rulemaking (FNPRM) provides that facilities based broadband service providers and interconnected voice over internet protocol (VOIP) providers are subject to requirements under the CALEA.

See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. This order is FCC 05-153 in ET Docket No. 04-295 and RM-10865. See also, story titled "FCC CALEA Order Challenged" in TLJ Daily E-Mail Alert No. 1,240, Wednesday, October 26, 2005.

See also, ACE brief [71 pages in PDF] and FCC brief [52 pages in PDF] filed with the Court of Appeals.

The FCC based its conclusion on two separate grounds. First, it concluded that the definition of "telecommunications carrier" in CALEA is different and much broader than the definition of that term in the Communications Act, and can encompass providers of services that are not classified as telecommunications services under the Communications Act. Second, it asserted that the services covered by the order replace a substantial portion of conventional telecommunications services.

There is a series of articles in TLJ Daily E-Mail Alert 960, August 17, 2004, which offer the legal analysis that neither of these two legal arguments is tenable.

The three judge panel was comprised of David Sentelle, Harry Edwards and Janice Brown. Judges Sentelle was appointed in 1987 by former President Reagan. Judge Edwards was appointed in 1980 for former President Carter. Both have sat on numerous panels that have reviewed final orders of the FCC. Both are very well versed in the Communications Act, the CALEA, and cases involving communications and information technologies.

In contrast, Judge Brown has been on the Court for less than one year. She sat in silence throughout the oral argument.

Both Judges Sentelle and Edwards were active in asking questions, and refuting arguments offered by counsel. Both drew a distinction between VOIP, which they referred to as "voice over", and broadband access service. The difference, they said is that the FCC has not determined that "voice over" is an "information service", while the FCC has determined that broadband access is an information service.

Jacob Lewis argued for the DOJ and FCC. Edwards said that the argument that broadband access service is covered by the CALEA is "just nonsense, and "utter nonsense". He said of the argument that broadband is a substantial replacement, "analytically that argument is wrong". He commented that the term "information service" has meaning, and that the FCC has ruled that broadband access is an information service. Moreover, if it is an information service it cannot be a telecommunications service. He also rejected the Lewis' argument that the transmission component can be disaggregated and regulated separately. Edwards said that, in light of the statutes, and the FCC's prior determinations, this argument is "goobledygook".

Edwards also suggested that the FCC must go "back to Congress" to get authority to impose CALEA obligations on broadband access services.

Edwards also said that the Court of Appeals is not bound by the opinion of the U.S. District Court (DMinn) in Vonage v. Minnesota Public Utilities Commission, which held that Vonage is an information service provider, and that the MPUC cannot apply state laws that regulate telecommunications carriers to Vonage. See, October 16, 2003, Memorandum and Order [PDF], and story titled "District Court Holds that Vonage's VOIP is an Information Service" in TLJ Daily E-Mail Alert No. 760, October 17, 2003.

Edwards and Sentelle suggested that the portion of the FCC's order that pertains to "voice over" might be sustained by the Court of Appeals. They did not elaborate on various types of VOIP. Nor did they discuss peer to peer service.

Hence, it is possible that the Court of Appeals will vacate the FCC's order in part, rejecting the conclusion that broadband access service is subject to CALEA like requirements, but allowing the FCC to impose CALEA like regulation upon VOIP applications that run over broadband.

From the perspective of effectively implementing an expanded CALEA like regime, there are some arguments for regulating the pipes, rather than the services that run over the pipes. However, because of the history of this matter at the FCC, the Court appears to be inclined to allow the FCC to regulate the latter, but not the former.

That is, the Supreme Court held in its June 27, 2005, opinion [59 pages in PDF] in NCTA v. Brand X that the FCC declaratory ruling that cable modem service is an information service is a permissible reading of the statute. Moreover, the FCC adopted its "Report and Order and Notice of Proposed Rulemaking" that classifies wireline broadband internet access services as information services on August 5, 2005. (Ironically, this was the same day that the FCC adopted the CALEA order under review.) See, story titled "FCC Classifies DSL as Information Service" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005.

Also, while Edwards belittled some of the arguments of the counsel for the FCC and DOJ at this oral argument, he remained, at bottom, quite deferential to the FCC in rulemaking.

That is, the CALEA provides that its requirements only apply to a "telecommunications carrier", and that its requirements do not apply to "information services". Then, the substantial replacement clause provides that certain services provided by certain entities are subject to CALEA requirements if their service is "a replacement for a substantial portion of the local telephone exchange service". The FCC has applied implausible meanings to numerous clauses in the statutes to reach its conclusions that broadband access services and interconnected VOIP services are subject to CALEA requirements.

But, Edwards questioned the FCC's conclusions only where, in addition to contorting the statutes, the FCC also reached conclusions that were directly inconsistent with its prior conclusions. Perhaps it is the case that Edwards is willing to let the FCC misconstrue the CALEA and Communications Act, so long as its misconstructions are not also inconsistent with its prior constructions. So long as the FCC has been silent on a particular issue, the FCC remains free to misconstrue and distort the statutes as it sees fit to bring new services and technologies within the reach of the CALEA regulatory regime.

As a consequence, the FCC may proceed with its CALEA based regulation of VOIP services. But also, if the Court of Appeals lets stand the FCC's reasoning as to the meaning of the substantial replacement clause, the FCC may, in the future, be able to sweep into the CALEA regime other services and technologies not at issue in the case, including those that have not yet been invented.

Comparison to the Broadcast Flag Case. Both Judges Sentelle and Edwards sat on the panel that vacated the broadcast flag order of the FCC in American Library Association v. FCC. (Judge Judith Rogers was the third member of that panel.)

The broadcast flag case is similar in many respects to the present CALEA case. Both are petitions for review of a final order of the FCC on a topic in which the FCC lacks statutory authority to issue the order.

The cases are different in the legal reasoning of the FCC. In the CALEA case the FCC asserts statutory authority based upon gross contortions of clauses in the CALEA and Communications Act that have plain meanings. In the broadcast flag case the FCC did not assert that it had specific statutory authority to regulate devices after a broadcast transmission is complete. Rather, it relied exclusively on its limited ancillary jurisdiction under Title I of the Communications Act.

In the broadcast flag case, the FCC's argument before the Court of Appeals was inconsistent with prior assertions of the FCC regarding authority to devices. In the present case, the FCC's arguments, as to broadband access services, are clearly inconsistent with other orders of the FCC. However, while the FCC's arguments, as to VOIP services, are inconsistent with the plain meaning of the statute, they are not also inconsistent with other orders of the FCC. The FCC has been careful not to determine that VOIP services are an information service.

A broadcast flag is digital code embedded in a digital broadcasting stream. It signals digital television (DTV) reception equipment to limit redistribution. For it to be effective, DTV equipment must give effect to a broadcast flag. Hence, the FCC wrote rules that contains technology mandates for equipment manufacturers. The FCC has statutory authority to license and regulate the use of electromagnetic spectrum, including devices that transmit and receive radio frequency signals. It does not have statutory authority to protect copyrights, or to regulate consumer electronic equipment for the purpose of protecting copyrights.

The FCC Commissioners recognized that the FCC faced a statutory authority problem from the outset. See, story titled "FCC Debates Its Authority to Promulgate Broadcast Flag Rule" in TLJ Daily E-Mail Alert No. 489, August 12, 2002. Nevertheless, the FCC proceeded to promulgate broadcast flag rules. The foreseen challenges came, and the Court of Appeals ruled with blunt and broad language that the FCC lacks statutory authority to write broadcast flag rules. The Court of Appeals issued its opinion [34 pages in PDF] in American Library Association v. FCC on May 6, 2005. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005.

The Court of Appeals began its opinion with the statement that "It is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them by Congress."

The FCC Commissioners also recognized that their CALEA actions faced a statutory authority problem. When the FCC issued its NPRM on August 9, 2004, several Commissioners wrote separate statements regarding the lack of statutory authority.

Former Commissioner Kathleen Abernathy, who supported the NPRM, warned in a separate statement [PDF] that "at the end of the day, the federal courts -- rather than this Commission -- will be the arbiter of whether we are authorized to take the actions proposed in this rulemaking, and we must remain mindful of that fact as we consider final rules."

Matt Brill (at right) was a legal advisor to Abernathy at the time. He now works in the Washington DC office of the law firm of Latham & Watkins. He argued the case for the petitioners.

FCC Commissioner Michael Copps was bluntly critical of the substantial replacement analysis back in 2004. He wrote in a separate statement [PDF] that the NPRM "is flush with tentative conclusions that stretch the statutory fabric to the point of tear. If these proposals become the rules and reasons we have to defend in court, we may find ourselves making a stand on very shaky ground. It would be a shame if our reliance on thin legal arguments results in the CALEA rules being thrown out."

He also wrote that "it strains credibility to suggest that Congress intended ``a replacement for a substantial portion of the local telephone exchange´´ to mean the replacement of any portion of any individual subscriber's functionality. Capturing VoIP under the rubric of substantial replacement, ignoring the Ninth Circuit's decision in Brand X, and trying to slice and dice managed and non-managed services is not the way to proceed here."

FCC Commissioner Jonathan Adelstein wrote in a separate statement [PDF] that this NPRM "seizes upon notable but thin distinctions between definitions in CALEA and the Communications Act."

Judge Edwards wrote the opinion of the Court in the broadcast flag case. He also savaged the FCC's argument in the CALEA case regarding broadband access services.

The petitioners include the American Council on Education (ACE), and other library, university and education groups, including the American Library Association (ALA), Association of Research Libraries (ARL), American Association of State Colleges and Universities, Association of American Universities, National Association of College and University Business Officials, National Association of Independent Colleges and Universities, National Association of Statute Universities and Land Grant Colleges, Corporation for Education Network Initiatives in California, Internet2, and Educause.

The petitioners also include the Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), Electronic Privacy Information Center (EPIC), and the American Civil Liberties Union (ACLU)

The petitioners also include CompTel, Pulver.com, Sun Microsystems, Pacific Northwest GigaPOP, and National LambdaRail

This case is American Council on Education, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 05-1404, 1408, 1438, 1451 and 1453, Judges Sentelle, Brown and Edwards presiding.

5/5. This article comments on the nature of the administrative process generally, but particularly at the Federal Communications Commission (FCC), and especially in its proceeding related to the Communications Assistance for Law Enforcement Act (CALEA).

Several models have been advanced to explain the nature and operation of executive branch commissions, administrative law, and administrative procedure.

One model, which FCC personnel often use to describe and explain their activities, is that the Congress legislates statutes of general applicability, some of which regulate specific industry sectors, or areas of economic activity. In these statutes the Congress often sets general statutory principles, but then delegates to an administrative commission various functions, which may include promulgation of detailed and technical regulations that implement the statute, administrative enforcement of the statute and regulations, administrative adjudication of disputes, and/or licensing of products, services and industry participants.

Those who articulate this model further explain that these commissions are independent of outside pressures. Moreover, they and are comprised of technical personnel, including engineers, scientists, and accountants, who possess special expertise in the technology and business practices of the business activity that they regulate.

While this model may often assist in explaining the work of some commissions, including the FCC, it is largely useless in explaining what the FCC is doing in the present CALEA proceeding.

The FCC is not implementing a statute. Rather, it has repeatedly announced conclusions that are inconsistent of the plain meaning of the CALEA statute, and relevant definitions in the Communications Act.

The FCC has not promulgated detailed technical regulations. In its just announced order it essentially transfers this function to outside interests. The FCC possesses no special expertise on the emerging information technologies over which the government seeks universal surveillance. The FCC is an agency comprised largely of lawyers. It does have a small minority of engineers, but their expertise is largely in older technologies over which the FCC actually has statute based regulatory authority.

The FCC is not acting independently; it is responding to pressures from the DOJ, FBI, Bush administration, and some members of Congress.

The FCC is acting, in a time honored manner, in the pursuit of the noble policies of fighting terrorism and crime. Yet, it is not acting pursuant to the official model of administrative law. It is following a second model of the administrative process described in this article.

This model describes administrative commissions, in part, as a response to the inherent difficulty of government action, including enactment of statutes. The Founding Fathers deliberately created a system of government in which it would be difficult for the government to act. James Madison explained and defended this notion of separation of powers in Federalist No. 10 and No. 51.

He wrote in No. 51 that "We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."

He continued that "In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit."

Madison also wrote that "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other ..."

Former Sen. Ernest Hollings (D-SC), who for years was the Chairman or ranking Democrat of the Senate Commerce Committee, summed up the Madisonian concept in a saying that went something like this: Anybody can stop a bill, but it takes a lot of folks to pass a bill.

It is hard to enact a telecommunications bill. For example, while the Department of Justice (DOJ) would like to see an expansion of many surveillance related statutes, getting a statute enacted is another matter. Simply getting the USA PATRIOT extended was a major undertaking for the DOJ.

Several institutions have been created that to some extent facilitate the enactment of policies in the face of institutional barriers to the enactment of bills. One is the federalization of functions once performed at multiple levels of government. Another is the development of organized political parties.  Yet another is the creation of executive branch commissions, such as the FCC. This article addresses only this third development.

While it is hard to get a bill through the Congress, with its bicameral structure, committees and subcommittees, filibusters, transparent operations, and Presidential veto threats, it takes only three out of five FCC Commissioners on any given day to make law.

The Congress and President are not removed from the administrative process. The FCC has been structured to be subject to political pressure from the President and Congress. The same pressures and interests involved in the Madisonian process can also become involved in this second process. The main difference is that the minimum level of consensus required for action is much higher under the Madisonian process.

The President exerts considerable influence over the FCC by appointing its members, designating its Chairman, proposing its budget, and providing or withholding support services from executive branch departments. For example, the DOJ likely leveraged its control over the certiorari process in the Brand X case to pressure the FCC to adopt the 2004 CALEA NPRM, and the 2005 order and FNPRM. See, for example, story titled "Rep. Pickering Suggests Relationship Between the DOJ's Brand X Cert Petition and the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 974, September 10, 2004.

The Congress exerts considerable influence over the FCC by confirming members, granting or withholding appropriations, attaching riders to appropriations bills, and oversight and investigations.

Moreover, while there is judicial review of final orders of the FCC, the impact of this is limited. First, the standards set by the Congress in the Administrative Procedure Act ("arbitrary and capricious"), and the judicial Chevron standard, are high.

Also, the FCC is adept at evading judicial review. Many of its actions are not in the form of final orders (such as policy statements, further guidance in orders in non-rulemaking proceedings, and unwritten rules), and hence, are not subject to review. Many of its actions are in the nature of consent agreements, and hence, are not subject to review. There is also the matter that many regulated entities are repeat players before the FCC and, as former Chairman William Kennard warned, must be cautious to maintain their goodwill at the FCC.

Hence, under this second model of the administrative process, commissions, such as the FCC, exist and operate, in part, to evade the constraints of a Madisonian system of separation of powers, and the resulting governmental inertial. Proponents of this model find that economic regulation is just too important to be subjected to the cautious and consensus building process of Madisonian republicanism.

Under this second model, commissions do not implement statutes. They create law in matters where there is substantial pressure from the Congress and executive branch to do so, but insufficient support to move a bill through the Congress. Under this model, the commission performs a function that is legislative in nature.

The gist of this piece is that in the present CALEA proceeding, the FCC's actions cannot be explained by the official model of the administrative process. However, the FCC's actions can be well explained by this second model.

First, the FCC's claim to be implementing the CALEA statute is feable. The FCC has repeatedly taken words that appear in the CALEA and the Communications Act, and given them meaning contrary to their plain meanings in the English language, and contrary to prior interpretations by the FCC.

The FCC has asserted, for example, the same service is both an information service and telecommunications, depending upon which statutory regulatory regime the FCC wants to apply to it for which purposes. On May 5, Judge Harry Edwards, speaking in the context of the official model of the administrative process, called the FCC's argument "goobledygook".

The FCC has taken the substantial replacement language of the CALEA, and subjected it to a phrase by phrase deconstruction and reassignment of the meaning of words. Commissioner Copps, who joined in the latest FCC order, nevertheless wrote that "the challenge is complicated by the Commission's theory of substantial replacement that collapsed the statutory dichotomy between information services and telecommunications services in a stretch ..."

The FCC has just decided that it has administrative enforcement authority, even though the wording of the statute is clear that there exists only judicial enforcement authority.

In furtherance of the policy goal of attaining universal surveillance of terrorists, drug dealers, pornographers, and all other users of information services, rough lawyers at the FCC stand ready to visit violence upon the English language.

Second, under the official model of administrative procedure, the commission implements a statute. But, in the CALEA proceeding, the FCC is not even attempting to implement a statute. The FCC has not, and on May 3 announced that it will not, promulgate technical rules to identify what CALEA compliance means for broadband access services and interconnected VOIP services.

Third, under the official model of administrative procedure, the commission is both an independent and expert body. But, in the CALEA proceeding, the FCC is responding to pressures from the DOJ, administration and some members of Congress.

There are, however, differences between what is transpiring in this CALEA proceedings, and what has usually transpired at the FCC in the last 70 years.

These rule making proceedings have largely involved regulation of economic activity. Also, to the extent that Constitutional rights have been infringed, it has been the commercial and property rights of those who own the businesses being regulated. If other businesses and individuals have been harmed, it has been through lower economic efficiency and loss of consumer welfare.

In contrast, in the present CALEA proceeding, a broader exercise of Constitutional rights is affected. It is the 4th Amendment and privacy rights of the vast population of individuals who use the products and services offered by these businesses. Moreover, the present proceeding may adversely impact the network and information security of businesses and consumers in a manner that FCC rulemakings historically have not.

5/5. Attorney General Alberto Gonzales gave a speech in Vienna, Austria, at an European Union interior ministers conference. He again advocated requiring service providers to electronically surveil their customers.

He said that "we must preserve data and have it available to be shared with another country".

Gonzales advocated a data retention mandate in a speech on April 20, 2006. See, story title "Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code" in TLJ Daily E-Mail Alert No. 1,357, April 25, 2006. However, in his May 5 speech he also argued that the fruits of this surveillance should be shared, not only with law enforcement agencies in the U.S., but also with foreign governments.

Gonzales did not elaborate in the prepared text of his speech on what procedure the governments of the People's Republic of China, Syria, and North Korea would follow to obtain information from service providers in the U.S. under his proposal.

However, Gonzales (at right) did state in his May 5 speech that "in many European states the practice of obtaining electronic surveillance without a judicial warrant has long been accepted, and is not seen as offensive to a proper respect for liberty and privacy interests."

He continued. "In contrast, as you know, in the United States there has been extensive debate over whether the Terrorist Surveillance Program violated the U.S. Constitution or civil rights because judicial warrants were not required. The answer to that question is ``No´´ -- the program is fully constitutional and protective of civil liberties. But the very fact that the debate took place reflects different U.S. and European perspectives on electronic surveillance."

He added, "So too with the intersection of freedom of speech and terrorism: observers have long noted the difference between broader American and stricter European conceptions of free speech. In the context of fighting terrorism, this has meant that European countries may go farther to punish speech than would be possible in the United States. This has relevance in our discussions about shutting down websites that recruit jihadists."

He also said, "I am not advocating that America adopt a European model, or vice versa, in fighting terrorism. Instead, I seek merely to point out that our democracies have developed different governmental structures to fight terrorism in a manner that protects rights in different ways."

5/5. Rep. Diana DeGette (D-CO) offered and withdrew an amendment to broadly mandate data retention at the House Commerce Committee's (HCC) mark up of the COPE Act on April 26, 2006. Chairman Joe Barton (R-TX) stated at that mark up that he supports the concept, and wants to amend the bill when it goes to the House floor. In addition, Attorney General Alberto Gonzales has given at least two speeches recently in which he has proposed mandatory data retention by service providers.

Rep. Barton has not spoken in detail about the proposal. Gonzales has not specified what a data retention bill would require. However, the draft amendment offered by Rep. DeGette provides some specifics.

Rep. Barton said at the mark up that the DeGette amendment "on the face of it has great merit.", but that "we have some germaneness questions and some jurisdictional questions". He added that he supports either adding this to a managers amendment or as a free standing amendment when the COPE Act goes to the House floor.

"We think the policy has merit", said Barton. "We will get it in the bill."

Rep. DeGette (at right) said at the mark up that "law enforcement authorities cannot find these perpetrators because they cannot get the records of where they are. Many witnesses in law enforcement feel that it would be very helpful if the internet service providers would retain certain records for a year,  in case they need to subpoena those records to help capture people ..."

She continued that "I think that they should just have to preserve identifying information of people who close down their accounts". She added that ISPs should not have to provide this information "willy nilly to anybody who asks for it". But she said that a subpoena should be sufficient. However, she did also reference "probable cause".

No one else spoke about the amendment at the mark up.

On April 20, 2006, Attorney General Alberto Gonzales gave a speech in Alexandria, Virginia, in which he proposed that internet service providers (ISPs) be required to retain data. While the DOJ released proposed statutory language for some other proposals that Gonzales advanced in this speech, it released no proposed data retention language. See, Gonzales' letter and proposed bill [10 pages in PDF].

Gonzales said in his speech that "we have to make sure law enforcement has all the tools and information it needs to wage this battle. The investigation and prosecution of child predators depends critically on the availability of evidence that is often in the hands of Internet service providers. This evidence will be available for us to use only if the providers retain the records for a reasonable amount of time." See also, story titled "Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code" in TLJ Daily E-Mail Alert No. 1357, April 25, 2006.

Gonzales gave his second speech on May 5. He added in this speech that the fruits of this program should be made available to foreign governments. See, story in this issue titled "Gonzales Says Foreign Governments Should Have Access to Information Collected under Data Retention Mandate".

Rep. DeGette offered her amendment late in the day during the HCC's mark up of HR 5252, the "Communications Opportunity, Promotion, and Enhancement Act of 2006", or COPE Act. It is short, and hence, set out in full beneath this article.

DeGette said at the mark up that she is not satisfied with the language. A staff assistant told TLJ that she would revise the proposal and offer it as an amendment to the COPE Act, or as a stand alone bill. She has not yet introduced a stand alone bill. The COPE Act has not yet come up for consideration on the House floor. It is not on the House calendar for the week of May 8.

The draft amendment appears to be a hastily and inexpertly drafted amendment. It is not clear as to what entities and persons would be covered. Nor is it clear as to what mandates would be imposed upon them.

The amendment would require "each provider of Internet access services to retain records to permit the identification of subscribers to such services for appropriate law enforcement purposes. Such records shall ... be retained for not less than one year after a subscriber ceases to subscribe to such services.". It uses, but does not define, the terms "records", "service", and "subscriber".

While the title of the draft amendment uses the term "ISPs", the statutory language in the amendment provides instead that it would regulate any "Internet access service". Moreover, this term is defined by the amendment in a manner contrary to the plain meaning of these words. It is defined broadly as "a service that enables users to access content, information, electronic mail, or other services offered over the Internet" and includes "a service that enables users to ... access ... information". This would include any individual who operates an e-mail list or subscription based web site or blog. It may be the case that Rep. DeGette had not given much thought to her amendment before she offered it.

While the amendment is unclear as to who would be regulated, and what would be the regulatory mandates, the bill clearly identifies several fundamental changes to the process by which law is made.

First, this is an amendment to a bill over which the House Commerce Committee has sole jurisdiction. Moreover, this amendment specifies that it would amend the Communications Act of 1934. Also, it would amendment Title 47 of the U.S. Code, rather than Title 18. Heretofore, legislation regarding government surveillance, authority to surveil, access to stored communications, and investigation of crimes, has been a matter for consideration by the House Judiciary Committee (HJC).

This amendment is an end run around HJC jurisdiction. The HJC has jurisdiction over crime, criminal procedure, search and seizure. It also has the staff and members with expertise in this area. Also, it members, both Republican and Democratic, tend to be more concerned with protecting privacy rights against government encroachment than their counterparts on the HCC.

The HCC has a history of encroaching on the jurisdiction of the HJC. However, in recent years it has focused on obtaining jurisdiction over matters that are intellectual property related, rather than crime related.

Second, this amendment would convert one aspect of what has heretofore been a matter of criminal law and procedure, and make it a matter of telecommunications law.

Third, this amendment, by delegating authority to write implementing regulations to the FCC, would convert what has heretofore been a matter of statutory law into administrative law.

This has consequences. For example, the FCC's proceedings regarding extending CALEA like obligations to VOIP service providers and extending the E911 regulatory regime to VOIP service providers have demonstrated that the FCC is far more likely to respond to the requests of the DOJ than is the HJC and the Congress.

AMENDMENT TO THE COMMITTEE PRINT OFFERED BY MS. DEGETTE OF COLORADO

Records retention by ISPs

At the end of the bill add the following new title:

TITLE VI—RECORDS RETENTION

SEC. 601. RECORD RETENTION REGULATIONS REQUIRED.

Title VII of the Communications Act of 1934 (47 U.S.C. 601 et seq.) is further amended by adding after section 718 (as added by section 501 of this Act) the following new section:

SEC. 719. RECORD RETENTION BY PROVIDERS OF INTERNET ACCESS SERVICE.

(a) REGULATIONS REQUIRED.—Within 90 days after the date of enactment of this section, the Commission shall prescribe regulations requiring each provider of Internet access services to retain records to permit the identification of subscribers to such services for appropriate law enforcement purposes. Such records shall, in accordance with such regulations, be retained for not less than one year after a subscriber ceases to subscribe to such services.

(b) DEFINITION.—For purposes of this section:

(1) INTERNET.—The term ‘Internet’ means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information.

(2) INTERNET ACCESS SERVICE.—The term ‘Internet access service’ means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

5/3. The Federal Communications Commission (FCC) adopted, but did not release, a document titled "Second Report and Order and Memorandum Opinion and Order" in its proceeding related to the Communications Assistance for Law Enforcement Act (CALEA).

The FCC issued a short and vague release [2 pages in PDF] that describes this item, and the four Commissioners read and released short prepared statements.

See, statement [PDF] of Kevin Martin, statement [PDF] of Michael Copps, statement [PDF] of Jonathan Adelstein, and statement [PDF] of Deborah Tate.

The FCC's release states that the FCC reiterates it prior assertions that facilities based broadband internet access and interconnected VOIP providers are subject to CALEA requirements. It further states that the FCC sticks to its May 14, 2007, deadline for coming into compliance. It further states that the FCC will not write rules that identify what are the compliance requirements. It leaves this to outside interests. It also asserts that the FCC has authority to bring administrative enforcement actions for non-compliance. It also permits private intercept management providers to conduct intercepts.

Martin (at right) wrote that "We address important issues under CALEA such as cost recovery, compliance processes, and enforcement, providing further clarity for entities subject to CALEA to continue to work toward full CALEA compliance. I remain committed to ensuring that these providers take all necessary actions to incorporate surveillance capabilities into their networks in a timely fashion. Further we will continue to work to address and overcome any challenges that stand in the way of effective lawful electronic surveillance."

Perhaps the most significant component of this item is the FCC's announcement that it has not, and will not, write rules that define what it means to come into compliance with the CALEA in the context of broadband access services or interconnected VOIP services. That is, affected entities have a deadline for compliance, but no specification as to what compliance is.

Perhaps it should also be noted here what else the FCC has not yet done. While the FCC has been working on this issue for years, it has yet to make a detailed finding, based upon a factual inquiry, that the internet and other information technologies are hindering law enforcement efforts. Nor has the FCC engaged in an inquiry into how new technologies have enhanced law enforcement efforts, by enabling law enforcement agencies to obtain more stored communications and data, and to electronically store, analyze and access the data that it obtains.

Nor has the FCC made a detailed finding of fact regarding whether telecommunications carriers, or other entities, are complying with their wiretap and CALEA obligations or demands, or cooperating with law enforcement agencies. The facts that the FCC has not yet brought a single judicial enforcement action, or administrative enforcement proceeding, suggest that there is no substantial non-compliance problem. Finally, the FCC has made no detailed findings regarding the impact of expanding the CALEA regime on individual privacy and information security. The FCC has, at best, made several conclusory statements, at the urging of the DOJ, without engaging in a substantial review.

This item is FCC 06-56 in ET Docket No. 04-295.

Deadlines and Standards. The FCC's release states that "the CALEA compliance deadline for facilities-based broadband Internet access and interconnected VoIP services will be May 14, 2007". Like some other FCC imposed deadlines, this one may be more illusory than real.

There are no standards with which to come into compliance. The FCC announced in its first order, adopted on August 5, 2005, that May 14, 2007, is the compliance deadline. But that order contained no standards. Essentially, it only identified, in broad strokes, which entities are covered. The just issued release states that the second order contains no standards either. Rather, it states that "it would be premature for the Commission to intervene in the ongoing process by which telecommunications standards-setting bodies, acting in concert with LEAs and other interested persons, are developing assistance capability standards."

Nine months of the compliance period have already lapsed. The FCC has announced that certain information services have CALEA obligations, but not promulgated any body of rules that identify what those obligations are. And now, all the FCC has done in the present order is delegate authority to outside entities to negotiate standards.

The FCC will not likely expect providers of new services to be in compliance until a reasonable period of time after there are standards for those entities.

Administrative Enforcement by the FCC. The FCC's release states that "the Order finds that the Commission may, in addition to law enforcement remedies available through the courts, take separate enforcement action under section 229(a) of the Communications Act against carriers that fail to comply with CALEA."

The FCC has never initiated an administrative enforcement action, or judicial enforcement proceeding, against any entity, carrier or information service, for failing to comply with CALEA obligations. (Julius Knapp discussed this at a news conference on May 3, and parties have addressed this in comments submitted to the FCC.) There are likely several reasons for this. One reason is likely that, contrary to the arguments of the DOJ and LEAs, and the conclusory statements of the FCC, carriers and others are cooperating with law enforcement, and are providing intercepts. That is, there have been few entities against which the FCC would want to bring an enforcement action.

Second, in the case of providers of new information services, if the FCC were to wish bring an enforcement action, it might be deterred by the circumstance that it lacks the in house technical expertise to investigate and pursue an action that would withstand judicial review.

However, even if there had been serious violators, and the FCC had had the expertise and resources to bring enforcement actions, it likely would not have brought any administrative enforcement actions. Simply put, it lacks statutory authority. The CALEA is clear. The only formal enforcement option is through judicial action.

The FCC's release states that the FCC's order concludes that the FCC has enforcement authority under Section 229(a) of the Communications Act. Yet, Section 229 provides that "The Commission shall prescribe such rules as are necessary to implement the requirements of the Communications Assistance for Law Enforcement Act". It is a grant of rulemaking authority, not a grant of enforcement authority.

Neither the FCC's release, nor the statements of any of the Commissioners articulates an argument for how Section 229 creates administrative enforcement authority.

The FCC has not initiated a single administrative enforcement action in the 14 years that the CALEA has been in effect. It is not likely to bring an action any time soon.

Private Intercept Management Providers. The FCC's release states that "the Order permits telecommunications carriers the option of using Trusted Third Parties (TTPs) to assist in meeting their CALEA obligations and providing LEAs the electronic surveillance information those agencies require in an acceptable format. The record indicates that TTPs are available to provide a variety of services for CALEA compliance to carriers, including processing requests for intercepts, conducting electronic surveillance, and delivering relevant information to LEAs."

Commission Copps wrote that "trusted third parties are a legitimate way for carriers to manage their CALEA obligations. The record shows TTP availability and capability to perform a number of services to advance CALEA compliance. Trusted third party participation should also mean more cost-effective options for compliance, particularly for smaller carriers."

The FCC's use of the phrase "Trusted Third Parties" presumes as true a question that remains in dispute -- whether private entities that manage intercepts for carriers and information services can be trusted to the same extent that entities involved in the intercept process today can be trusted.

Reaction. The National Cable & Telecommunications Association (NCTA) and CableLabs released a joint statement: "Cable has long supported efforts to provide appropriate legal assistance to law enforcement agencies, while addressing subscriber privacy and security, as law enforcement agencies seek to apply U.S. laws to new technologies and services. Cable was among the first to develop means to accommodate legitimate law enforcement needs with respect to Voice over Internet Protocol (VoIP) services even before the FCC determined that CALEA applied to cable’s VoIP services. In addition, CableLabs has been working with the FBI and others on a similar accommodation with respect to cable modem services. Today’s FCC action is a logical next step in setting CALEA compliance ground rules as they apply to broadband services.  CableLabs and the cable industry look forward to addressing any unresolved issues involving the application of CALEA to cable modem service consistent with the customer privacy rights embodied in that statute."

The House will meet at 2:00 PM in pro forma session only. See, Republican Whip Notice.

9:30 AM - 5:00 PM. The Antitrust Modernization Commission (AMC) will hold another in a series of hearings. This one will address criminal remedies and civil remedies. See, notice in the Federal Register, April 21, 2006, Vol. 71, No. 77, at Page 20643. Location: Federal Trade Commission (FTC), Conference Center, 601 New Jersey Ave., NW.

Day one of a two day conference hosted by the American Cable Association (ACA) titled "Washington Summit". See, event brochure [PDF]. Location: __.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its second further notice of proposed rulemaking (2ndFNPRM) regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. See, text [14 pages in PDF] of this 2ndFNPRM. The FCC adopted this item at its meeting of March 17, 2006. See, notice in the Federal Register, March 27, 2006, Vol. 71, No. 58, at Pages 15145-15147; and story titled "FCC Adopts Further NPRM Re Children's Programming Obligations" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. This item is FCC 06-33 in MM Docket No. 00-167.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for three members of the Patent Public Advisory Committee and for three members of the Trademark Public Advisory Committee. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13358-13359.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) that proposes to eliminate the Disclosure Document Program. See, notice in the Federal Register, April 6, 2006, Vol. 71, No. 66, at Pages 17399-17401.

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

7:45 AM - 3:45 PM. Day one of a two day, partially closed, meeting of the National Science Foundation (NSF). See, notice in the Federal Register: May 3, 2006, Vol. 71, No. 85, at Pages 26117-26118. Location: 4201 Wilson Blvd, Room 1235, Arlington, VA.

9:00 AM - 3:00 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, April 26, 2006, Vol. 71, No. 80, at Pages 24645-24646. Location: NIST, Administration Building, Employees' Lounge, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Earthlink v. FCC, App. Ct. No. 05-1087. This is a petition for review of Federal Communications Commission (FCC) orders granting petitions for forbearance from the obligations of 47 U.S.C. § 271 to provide unbundled access to certain broadband elements. See, FCC brief [50 pages in PDF]. Judges Sentelle, Brown and Edwards will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.II (Radiocommunication including Broadcasting) meetings on June 20-23, 2006, in Lima, Peru, and on October 17-20, 2006, in San Salvador, El Salvador. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

Day two of a two day conference hosted by the American Cable Association (ACA) titled "Washington Summit". See, event brochure [PDF]. Location: __.

? May 9 may be the deadline to submit reply comments to the Federal Communications Commission (FCC) in response to ENUM LLC's petition for limited waiver to allow it to obtain North American Numbering Plan (NANP) numbering resources. The FCC's notice [PDF] states that this deadline is both May 5 and May 9.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5122, the "National Defense Authorization Act for Fiscal Year 2007". See, Republican Whip Notice.

7:45 AM - 3:45 PM. Day two of a two day, partially closed, meeting of the National Science Foundation (NSF). The agenda of the 8:15 AM session on May 10 includes several topics, including "Global Environment for Networking Innovations" and "NSF's Cyberinfrastructure Vision", See, notice in the Federal Register: May 3, 2006, Vol. 71, No. 85, at Pages 26117-26118. Location: 4201 Wilson Blvd, Room 1235, Arlington, VA.

9:00 AM - 5:30 PM. The Securities and Exchange Commission (SEC) and the Public Company Accounting Oversight Board (PCAOB) will host a roundtable meeting regarding the reporting and auditing requirements of the Sarbanes-Oxley Act of 2002, including Section 404 requirements. See, SEC notice. Location: SEC.

9:00 AM - 5:00 PM. The Progress and Freedom Foundation (PFF) will host a conference titled "Internet Security Summit". The speakers will include Federal Trade Commission (FTC) Chairman Deborah Majoras. See, notice. Press contact: Amy Smorodin at 202-289-8928 or asmorodin at pff dot org. Location: Hyatt Regency Washington on Capitol Hill, 400 New Jersey Ave., NW.

9:15 AM - 1:30 PM. The American Enterprise Institute (AEI) will host a conference titled "Key Issues in Telecommunications Policy". See, notice. Press contact: Veronique Rodman at 202-862-4871 or vrodman at aei dot org. Location: 12th floor, 1150 17th St., NW.

9:15 AM - 3:30 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet. Most of this meeting will be closed to the public. From 9:15 through 10:15 AM the NSTAC will discuss in open session the work of the Emergency Communications & Interoperability Task Force, Telecommunications and Electric Power Interdependency Task Force, Legislative and Regulatory Task Force, and Research and Development Task Force. From 10:15 AM through 3:30 PM the NSTAC will meet in closed session to discuss emergency communications & interoperability, international implications of the NGN, and regional coordination, planning, and exercises. See, notice in the Federal Register, April 27, 2006, Vol. 71, No. 81, at Page 24859. Location: Ronald Reagan Building and International Trade Center.

10:30 AM. The House International Relations Committee will hold a hearing titled "A Resurgent China:  Responsible Stakeholder or Robust Rival?". The witness will be Robert Zoellick (Deputy Secretary of State). See, notice. Location: Room 2172, Rayburn Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "Parental Power: TV Indecency, the FCC, and the Media's Response". The speakers will include Jack Valenti (former head of the Motion Picture Association of America) and Penny Nance (Special Advisor in the FCC's Office of Strategic Planning and Policy Analysis). Lunch will follow the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

12:00 NOON - 1:15 PM. The DC Bar Association will host an event titled "Software and Business Method Patentability: A Changing Landscape?". The speakers will include Scott Alter (Wilmer Hale). The price to attend ranges from $10 to $30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Social Security Numbers in Commerce: Reconciling Beneficial Uses with Threats to Privacy". See, notice. The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

Federal Communications Commission (FCC) Auction 65 is scheduled to begin. This is an auction of 800 MHz Air-Ground Radiotelephone Service Licenses.

The House will meet at 10:00 AM for legislative business. The House may consider HR 5122, the "National Defense Authorization Act for Fiscal Year 2007". See, Republican Whip Notice.

9:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime will hold a hearing on HR __, the "Cyber-Security Enhancement and Consumer Data Protection Act of 2006". See, notice. 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 U.S. Court of Appeals (DCCir) will hear oral argument in Charter Communications and Advance/Newhouse Communications v. FCC, a case regarding cable operators and integrated navigation devices. It is App. Ct. No. 05-1237. See, FCC's brief [43 pages in PDF]. Judges Ginsburg, Tatel and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

MOVED TO MAY 3. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee will meet to prepare for meetings of the Organization for Economic Co-operation and Development (OECD) WPIE and CISP committee meetings of May 29-31, 2006. See, notice in the Federal Register, April 19, 2006, Vol. 71, No. 75, at Pages 20153-20154. Location: Room 2533, Harry Truman Building, 2201 C Street, NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the CITEL PCC.I (Telecommunication) meetings on May 23-26, 2006 in San Domingo, Dominican Republic, and on September 12-15, 2006, in Washington DC. See, notice in the Federal Register, March 29, 2006, Vol. 71, No. 60, at Page 15798. Location: __.

2:30 PM. The Senate Foreign Relations Committee will hold a hearing on the nomination of Daniel Sullivan to be Assistant Secretary of State for Economic and Business Affairs. See, notice. Location: Room 106, Dirksen Building.

3:00 - 5:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a continuing legal education (CLE) seminar titled "Master Class: Engineering Essentials and the Role of Technology in Telecommunications Policy Reform". See, registration form [PDF]. Location: Hogan & Hartson, 555 13th Street, NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding ACA International's petition for an expedited clarification and declaratory ruling concerning the Telephone Consumer Protection Act (TCPA) rules. See, notice in the Federal Register, April 26, 2006, Vol. 71, No. 80, at Pages 24634-24635. This is CG Docket No. 02-278.

The Republican Whip Notice states that "there are no votes expected in the House".

10:00 AM. The Federal Communications Commission's (FCC) entity titled "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will hold a meeting. See, notice in the Federal Register, April 26, 2006, Vol. 71, No. 80, at Pages 24708-24709. Location: FCC Commission Meeting Room, Room TW-C305,FCC, 445 12th Street, SW.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding the proposed free trade agreement (FTA) between the U.S. and Malaysia. The USTR seeks comments on "electronic commerce issues", "trade-related intellectual property rights issues", "barriers to trade in services", and other topics. See, notice in the Federal Register, March 22, 2006, Vol. 71, No. 55, at Pages 14558-14559.

12:00 NOON - 1:15 PM. The DC Bar Association will host a panel discussion titled "Software and Business Method Patentability: A Changing Landscape?". The speakers will include Scott Alter (Wilmer Hale). The price to attend ranges from $10-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a lunch. The topic will be former FCC Bureau Chief's perspectives on the wireless industry. The speakers will be John Muleta, Michele Farquhar, Regina Keeney, and Dan Phythyon. The price to attend is $15. Reservations and cancellations are due by May 9 at 5:00 PM. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, 6th Floor.

Recommended deadline to submit comments to the Office of the U.S. Trade Representative (USTR) and the Department of Labor regarding the proposed free trade agreement (FTA) between the United States and Malaysia on U.S. employment, including labor markets. See, notice in the Federal Register, March 31, 2006, Vol. 71, No. 62, at Pages 16349-16350.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding pulver.com's and Evslin's petition [18 pages in PDF] for a rulemaking regarding number porting in emergencies. See, FCC notice [PDF] and story titled "Pulver Asks FCC to Require Greater Number Porting in Emergencies" in TLJ Daily E-Mail Alert No. 1,329, March 14, 2006.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Complx Covad Comm v. FCC, App. Ct. No. 05-1095. Judges Ginsburg, Tatel and Garland will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) IP-Based Communications Practice Committee will host a brown bag lunch. The topic will be the Communications Assistance for Law Enforcement Act (CALEA). The speakers will include Matt Brill (Latham & Watkins), Chris Bubb (AOL), Samir Jain (Wilmer Cutler Pickering Hale & Dorr). Location: Pillsbury Winthrop, 2300 N St., NW.

EXTENDED TO MAY 19. Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding privacy of consumer phone records. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13317-13323. The FCC adopted this NPRM on February 10, 2006, and released the text [34 pages in PDF] on February 14, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006, and story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail alert No. 1,310, February 15, 2006. This NPRM is FCC 06-10 in CC Docket No. 96-115 and RM-11277.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding mandatory thousands-block number pooling. See, notice in the Federal Register, March 15, 2006, Vol. 71, No. 50, at Pages 13323-13328. This NPRM is FCC 06-14 in CC Docket No. 99-200.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to various petitions for reconsideration of the FCC's Report and Order regarding the equipment authorization requirements for Unlicensed National Information Infrastructure (U-NII) devices employing dynamic frequency selection (DFS). See, notice in the Federal Register, May 3, 2006, Vol. 71, No. 85, at Pages 26004-26006. This proceeding is ET Docket No. 03-122.

5/6. President Bush gave a speech at Oklahoma State University. He said that "advances in technology will transform lives -- and they will present you with profound dilemmas. Science offers the prospect of eventual cures for terrible diseases, and temptations to manipulate life and violate human dignity. With the Internet, you can communicate instantly with someone halfway across the world -- and isolate yourself from your family and your neighbors. Your generation will have to resolve these dilemmas. My advice is, harness the promise of technology without becoming slaves to technology. My advice is, ensure that science serves the cause of humanity, and not the other way around."

5/5. Porter Goss resigned as Director of the Central Intelligence Agency (CIA). See, statements by Goss and President Bush.

5/4. The Senate confirmed Brian Cogan to be a Judge of the U.S. District Court for the Eastern District of New York. See, Congressional Record, May 4, 2006, at Page S4092.

5/4. The Senate confirmed Thomas Golden to be a Judge of the U.S. District Court for the Eastern District of Pennsylvania. See, Congressional Record, May 4, 2006, at Page S4092.

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