5/14. Rep. Adam Schiff (D-CA), Rep. Steve Chabot (R-OH) and others introduced HR 2290, the "Cyber-Security Enhancement Act of 2007".

The bill would make numerous changes to 18 U.S.C. § 1030, which pertains to "Fraud and related activity in connection with computers". It would further the prosecution of creators and users of botnets. It would add § 1030 to the list of predicate offenses under the RICO statute. It would also increase criminal penalties and forfeitures, and authorize the appropriation of additional funds for investigations and prosecutions of computer related crimes.

Rep. Schiff (at right), stated in a release that "Criminals are increasingly using new technologies to prey upon their victims ... As they adapt to these new opportunities to defraud consumers, we must develop better ways to track down the perpetrators and put them away. This legislation will help protect American consumers and businesses from the costly effects of cyber crime and identity theft."

Rep. Chabot stated in the same release that "High tech cyber-criminals are taking advantage of significant gaps in federal criminal statutes ... We must modernize our laws to reflect the rapid technological advancements that make it relatively easy to hijack control of computers, steal personal identities and commit computer fraud."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "For too long. cyber criminals have taken advantage of legal blind spots and an under-resourced law enforcement community to brazenly threaten online confidence and security ... This legislation will give law enforcement updated and improved tools to combat what has become a growing, organized criminal enterprise."

RICO. The Racketeering Influenced and Corrupt Organizations (RICO) statute, which is codified at 18 U.S.C. § 1961, et seq., criminalizes certain acts associated with "a pattern of racketeering activity".

§ 1961(B) defines the term "racketeering activity" to mean "any act which is indictable under any of the following provisions ...". It them enumerates a long list of sections.

HR 2290 would § 1030 to this list of offenses that can service a predicate for RICO prosecutions.

Cyber Extortion. § 1030(a)(7) currently provides that "Whoever ... with intent to extort from any person any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer".

Section 5 of the bill would add to the end of this the phrase "or to access without authorization or exceed authorized access to a protected computer".

That is, currently the cyber extortion section only applies to threats to cause damage to a computer. HR 2290 would add threats to merely access a computer.

Conspiracy. § 1030 prohibits various acts that are in the nature of unauthorized access to computers. § 1030 also currently prohibits "attempts" to violate the basic prohibitions. Section 6 of HR 2290 would also prohibit "conspiracy" to violate.

Obtaining ID Numbers, Routing Codes, and Access Devices. Currently, § 1030(a)(2) provides that "Whoever ... intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains (A) information contained in a financial record of a financial institution, or of a card issuer ... (B) information from any department or agency of the United States; or (C) information from any protected computer if the conduct involved an interstate or foreign communication ... shall be punished ...".

Section 2 of HR 2290 would add a new subsection (D), "a unique electronic identification number, address or routing code, or access device (as defined in section 1029(e)(1)), from a protected computer". (Parentheses in original.)

Interstate Communication and Commerce Requirements. The above quoted § 1030(a)(2)(C) references "an interstate or foreign communication". Section 3 of HR 2290 removes this language.

Also, currently, the definition of a "protected computer", at § 1030(e)(2)(B), requires that the protected computer be "used in interstate or foreign commerce or communication". Section 3 of HR 2290 would relax this requirement. In would switch from "used in" to "affecting".

For example, any computer with an internet connection would be "affecting" interstate or foreign commerce.

Botnets. Botnet is a slang term of recent origin used to describe a collection of software robots that reside on a collection of compromised computers, almost always without the authority or knowledge of the owners or operators, that are controlled remotely for various nefarious purposes. The compromised computers are often referred to as zombies. The purposes for forming botnets include sending spam, running denial of service attacks, committing click fraud, and spyware.

The broadest prohibition of § 1030 is found in § 1030(a)(5). § 1030(a)(5)(A) lists the criminal acts, while § 1030(a)(5)(B) lists the requisite resulting damage to protected computers.

§ 1030(a)(5)(A) covers "knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer", "intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage", and "intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage".

Then (a)(5)(B) enumerates five types of damage that are sufficient to sustain a prosecution. Several are specialized types of damage (government or health care computers, resulting in physical injury, or creating a threat to public safety). The fifth type of damage is broad, but requires a minimum loss of $5,000.

Section 9 of HR 2290 would add a sixth type of damage, "damage affecting ten or more protected computers during any 1-year period". The damage could be of any kind. The damage need not have any minimum monetary value. This would extend the reach of § 1030(a)(5) to anyone who creates, herds, or takes over even the smallest of botnets. It would also reach a range of other activity not now prohibited by the statute.

This new section, in combination with the new conspiracy section, would enable both prosecutors and private litigants to pursue those who conspire to use these botnets.

Private Right of Action. § 1030, at subsection (g), currently provides a provide right of action. However, it is not as broad as the range of criminal prohibitions. It currently provides, in part, that "Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief. A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in clause (i), (ii), (iii), (iv), or (v) of subsection (a)(5)(B)."

An initial question is whether HR 2290, by adding the new subsection (a)(5)(B)(vi) -- "damage affecting ten or more protected computers during any 1-year period" -- broadens the private right of action. § 1030(g) references (a)(5)(B)(i)-(v), but not (vi). HR 2290 does not add (vi) to 1030(g). This is likely merely a drafting oversight that will be addressed by amendment, or addressed as a technical and conforming amendment by staff, during the mark up process. However, it is also possible that Rep. Schiff intends that there be no private right of action associated with damaging "ten or more computers".

If there were a private right of action based upon the new subsection (vi), some businesses lacking malicious or nefarious motives might be subjected to private lawsuits initiated by law firms seeking financial gain. The availability of injunctions under § 1030(g) would provide leverage for obtaining settlements. In contrast, federal prosecutors motivated by a desire to shut down criminal operations would be less likely to bring criminal prosecutions in connection with legitimate business models.

Next, the RICO statute, at 18 U.S.C. § 1964(c), contains a private right of action. HR 2290, by adding § 1030 as a predicate offense for RICO actions, also allows private RICO actions to be brought based upon violations of § 1030.

The purposes of this bill stated by Rep. Schiff and Rep. Chabot are to strengthen federal prosecutors' hands in charging criminals who hijack control of computers, steal personal identities, and defraud consumers.

However, allegations of violation of § 1030 also arise in the context of some employer employee disputes regarding employees' use of computers assigned to them where the conduct at issue falls far short of hijacking, theft, and fraud. This bill would also increase the power of employers to sue and threaten to sue employees and former employees for conduct such as running applications on their computers that their employers assert violates company policy.

Also, if botnet activity does give rise to a private right of action, then the bill would increase the ability of advertisers and web site operators to deal with click fraud, and a wide range of plaintiffs to deal with spam, adware, spyware, and other conduct.

Funding. The bill would also authorize the appropriation of additional funds to the Secret Service, Federal Bureau of Investigation (FBI), and the Department of Justice's (DOJ) Criminal Division to "investigate and prosecute criminal activity involving computers". Each agency would be authorized to have appropriated $10 Million for each of fiscal years 2007 through 2011 -- a total of $150 Million.

The wording may be significant. This authorization is not restricted to investigation and prosecution of cyber security crimes. The wording is sufficiently broad to enable the agencies to spend the appropriations on other computer related crimes, such as criminal online copyright infringement and criminal possession of pornography. Indeed, the language of HR 2290 would not even require that any of the increased funding go to cyber security crimes.

If the bill were adopted as currently drafted, and appropriators followed through with appropriations, then the copyright industries would likely lobby for the funds to be spent on online infringement cases, while anti-porn groups would lobby for the funds to be spend on their preferred cases.

Perhaps it should be noted that Rep. Schiff represents a Los Angeles area district and is a leading advocate of the movie and music industries' copyright related interests.

Spyware. HR 2290 does not directly address spyware. However, there is a related bill, HR 1525, the "Internet Spyware (I-SPY) Prevention Act of 2007", that the House is likely to approve on Tuesday, May 22, 2007. HR 1525 would not amend § 1030. Rather, it would create a new § 1030A.

The structure and prohibition of the new § 1030A would be similar to that of § 1030. HR 2290 would amend § 1030, but not the new § 1030A (if it is enacted into law).

HR 1525 would provide first that "Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and intentionally uses that program or code in furtherance of another Federal criminal offense shall be fined under this title or imprisoned not more than 5 years, or both."

Second, HR 1525 would provide that,

"Whoever intentionally accesses a protected computer without authorization, or exceeds authorized access to a protected computer, by causing a computer program or code to be copied onto the protected computer, and by means of that program or code--
   (1) intentionally obtains, or transmits to another, personal information with the intent to defraud or injure a person or cause damage to a protected computer; or
   (2) intentionally impairs the security protection of the protected computer with the intent to defraud or injure a person or damage a protected computer;
shall be fined under this title or imprisoned not more than 2 years, or both."

If both HR 2290 and HR 1525 were enacted into law, then one category of computer crimes (§ 1030), but not the other (§ 1030A), could serve as a predicate offense under the RICO statute. Also, one category of computer crimes (§ 1030) would also extend to attempts and conspiracies, while the other would not.

For a summary of HR 1525, see story titled "House Crime Subcommittee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 1,573, May 2, 2007.

Legislative Process. The other original cosponsors of HR 2290 are Rep. William Delahunt (D-MA), Rep. Dan Lungren (R-CA), Rep. Artur Davis (D-AL), Rep. Julia Carson (D-IN), Rep. Bob Goodlatte (R-VA), Rep. Anna Eshoo (D-CA), Rep. Bob Wexler (D-FL), Rep. Darrell Issa (R-CA), Rep. Linda Sanchez (D-CA), Rep. Mike McCaul (R-TX), and Rep. Bennie Thompson (D-MS).

The bill was referred to the House Judiciary Committee (HJC). Rep. Schiff and Rep. Chabot are members.

5/17. The Copyright Alliance held an event on Capitol Hill to announce its formation, and advocate its principles. It states that it is "a non-profit, non-partisan educational organization dedicated to promoting the value of copyright as an agent for creativity, jobs and growth".

Its founder and Executive Director is Patrick Ross. He was previously a Senior Fellow at the Progress & Freedom Foundation (PFF), where he focused on copyright issues, and especially the rights and interests of creators and artists. Before that he was a journalist, writing for Warren News' Communications Daily and Washington Internet Daily, and briefly for CNET. And before that, he worked for Sen. Harry Reid (D-NV). He is also a former musician, and the son of a novelist.

Ross stated that the group would be involved in education, providing witnesses, publishing information, and maintaining a web site. He also stated that the Copyright Alliance would not litigate, or enforce copyrights.

Eight persons spoke at the event, in addition to Ross -- four singers and songwriters, one photographer, one economist, and one of the academic advisors to the Copyright Alliance. Rep. Howard Berman (D-CA), Chairman of the House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property also spoke. He praised the new group for "broadening the coalition" for protection of the works of creators.

Many companies and groups are involved in a wide range of current debates over copyright law. Many of these assert that they also represent the interests of creators and artists. Perhaps what is new about the Copyright Alliance is that it may actually represent a broad array of creators and artists.

The members of the Copyright Alliance include artists' groups, such as the American Federation of Television & Radio Artists (AFTRA), American Society of Composers, Authors and Publishers (ASCAP), American Society of Media Photographers (ASMP), Professional Photographers of America (PPA), and the Recording Artists' Coalition (RAC).

However, the members of the Copyright Alliance also include numerous aggregators and distributors of copyrighted works.

The members include movie, record and TV companies and groups, including the Motion Picture Association of America (MPAA), Recording Industry Association of America (RIAA), National Music Publishers' Association (NMPA), CBS Corporation, NBC Universal, Broadcast Music, Inc. (BMI), Sony Pictures Entertainment, Time Warner, Viacom, Vin Di Bona Productions, and The Walt Disney Company.

The members also include news, book and other text publishers, including the Association of American Publishers (AAP), Newspaper Association of America (NAA), and Magazine Publishers of America (MPA)

The members also include software companies and groups, including Microsoft, the Business Software Alliance (BSA), and Entertainment Software Association (ESA).

The members also include sports leagues, including Major League Baseball (MLB), NBA Properties, and the National Collegiate Athletic Association (NCAA).

The members also include News Corporation, Directors Guild of America (DGA), National Association of Broadcasters (NAB), and the Software & Information Industry Association (SIIA).

In contrast, others groups that are active in debates over copyright law, and that often advocate limiting the scope of copyright, and the rights and remedies of copyright holders, are not a part of this new group.

For example, the Copyright Alliance does not include library groups, museums, or universities.

Nor does the Copyright Alliance include the makers of equipment, software and services that are used by consumers in connection with their infringement of copyrighted works, including computer electronics makers, computer makers, telecommunications carriers, internet service providers, and certain interactive computer services.

Nor does the new group include satellite radio companies, cable companies, or internet radio companies.

Nor does the new group include Google as a member. Members of the Copyright Alliance have sued Google and YouTube (which is now owned by Google). See for example, March 12, 2007, complaint [PDF] filed by Viacom and others in the U.S. District Court (SDNY), and story titled "Viacom Files Complaint Against Google and YouTube Alleging Violation of Copyright Law" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

Also, members of the AAP, which is a member of the Copyright Alliance, have sued Google in connection with its books program which involves digitizing of books under copyright without authorization. Former Rep. Pat Schroeder (D-CO), who is now the head of the AAP, attended the May 17 event, but did not speak.

See, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005. See also, story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005; story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005; and story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005;

In contrast, Microsoft, which is also a member of the Copyright Alliance, has its own book program which involves obtaining permissions. See also, story titled "Microsoft Counsel Says Google Systematically Violates Copyright" in TLJ Daily E-Mail Alert No. 1,547, March 6, 2007.

The Copyright Alliance's membership is broad. Hence, Ross conceded that there will be issues on which some members disagree. Although, he did not identify any.

One such issue will be orphan works. Many of the content industry groups advocate an orphan works bill, while artists, and especially photographers, vehemently oppose the proposal.

Another area of disagreement is the proposed World Intellectual Property Organization (WIPO) broadcast treaty. The NAB, which is a member of the Copyright Alliance, advocates creating a proprietary right, akin to copyright, in broadcast signals, but without exceptions such as fair use. The sports leagues, which are also members, have serious objections to the recent drafts of the proposed treaty.

Another area of disagreement is the over the air terrestrial broadcasters exemption from paying royalties for performing copyrighted music. Yet, both the NAB and music industry groups are members of the new coalition.

The academic advisors of the Copyright Alliance are James Gibson (who teaches intellectual property and computer law courses at the University of Richmond School of Law), Michael Ryan (Shearman & Sterling and George Washington University Law School), Michael Einhorn (Rutgers University), Stan Liebowitz (who teaches economics at the University of Texas at Dallas), Ronald Mann (University of Texas law school), Polk Wagner (who teaches intellectual property law at the University of Pennsylvania Law School), and Lee Hollaar (University of Utah School of Computing).

Gibson spoke at the May 17 event. He argued that there is a "fundamental need for a moral conviction" to copyright "that is sorely lacking today".

"You should be able to make a living from your creativity", said Gibson. "It is a part of our national character."

Steve Siwek of Economics, Inc., presented data on the contributions of copyright industries to employment, income, and economic growth.

The creative speakers were Lamont Dozier [Wikipedia], Steve Cropper [Wikipedia], Tim O’Brien [Wikipedia], Tom Paxton [Wikipedia], and Leif Skoogfors (photographer).

The event was attended by reporters, representatives of members of the Copyright Alliance, Congressional staff, and representatives of the U.S. Patent and Trademark Office (USPTO) and Copyright Office.

The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. It will consider several items under suspension of the rules, including HR 2272, the "21st Century Competitiveness Act of 2007", a huge composite bill that contains numerous other bills pertaining to science, technology, engineering, and math (STEM) education and research bills. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's weekly calendar [PDF].

The Senate will meet at 1:00 PM. It will consider immigration legislation.

The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. It will consider HR 1525, the "Internet Spyware (I-SPY) Prevention Act of 2007". See, story titled "House Crime Subcommittee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 1,573, May 2, 2007. See, Rep. Hoyer's weekly calendar [PDF].

9:00 - 10:00 AM. Rep. Adam Schiff (D-CA) and Robert Atkinson, head of the Information Technology and Innovation Foundation (ITIF), will release a report on patent reform. RSVP to Torey Liepa at tliepa at itif dot org. Location: Room 2226, Rayburn Building.

12:00 NOON - 1:30 PM. The Federal Bar Association's (FBA) Capitol Hill Chapter will host an event titled "Luncheon with Chief Justice John G. Roberts Jr., Chief Justice of the United States". See, notice and registration form [PDF]. Location: West Conference Room, Supreme Court of the United States (enter through either the Maryland Ave. or 1st Street, NE, entrances.)

12:00 NOON - 2:00 PM. The Institute for Policy Innovation (IPI) will host a lunch titled "Intellectual Property: Fueling the Growth of India’s Knowledge Economy". The speaker will be Prabuddha Ganguli (CEO VISION-IPR). RSVP to Sonia Blumstein at 205-620-2087 or soniab at ipi dot org Location: Bobby Van's Grill, 1201 New York Ave., NW (12th and New York Ave.).

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Internet Tax Freedom Act: Internet Tax Moratorium". See, notice Location: Room 2141, Rayburn Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a continuing legal education (CLE) seminar titled "The Evolution of Common Carrier Regulation and Its Future Applicability in an IP World". The price to attend ranges from $50 to $125. See, registration form [PDF]. Location: Sidley Austin, 1501 K St., NW.

TIME? The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee's (COMSTAC) working groups will meet. Location: undisclosed.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

9:00 AM - 1:00 PM. The Department of Homeland Security (DHS) will host an event titled "Privacy Impact Assessments at DHS -- A Tutorial on How to Write PIAs". See, notice in the Federal Register, May 11, 2007, Vol. 72, No. 91, at Page 26821. Location: GSA Regional Headquarters Building, 7th and D Streets, SW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Communications, Taxation and Federalism". See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Science Committee (HSC) will meet to mark up bills. See, notice. Location: Room 2318, Rayburn Building.

3:00 - 5:00 PM. Day one of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 385, Russell Building, Capitol Hill.

TIME? The Federal Aviation Administration's (FAA) Commercial Space Transportation Advisory Committee (COMSTAC) will meet. Location: FAA, Headquarters Building, 800 Independence Ave., SW.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committee (YLC) will host an event titled "End of the YLC Year Party". For more information, contact Chris Fedeli at 202-973-4274 or chrisfedeli at dwt dot com. Location: Karma, 1919 I St., NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Effects of Communications Towers on Migratory Birds". This NPRM [40 pages in PDF] is FCC 06-164 in WT Docket No. 03-187. The FCC adopted this NPRM on November 3, 2006. It released it on November 17, 2006. See, FCC's notice of extension [PDF] (DA 07-72), and notice in the Federal Register, January 26, 2007, Vol. 72, No. 17, at Pages 3776-3777.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its rules governing wireless licenses in the 698-806 MHz Band (700 MHz Band). See, notice in the Federal Register, May 2, 2007, Vol. 72, No. 84, at Pages 24238-24253. The FCC adopted its Report and Order and FNPRM [170 pages in PDF] on April 25, 2007, and released it on April 27, 2007. This FNPRM is FCC No. 07-72 in WT Docket No. 06-150, CC Docket No. 94-102, WT Docket No. 01-309, WT Docket No. 03-264, WT Docket No. 06-169, PS Docket No. 06-229, and WT Docket No. 96-86.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's weekly calendar [PDF].

8:30 AM - 5:00 PM. Day two of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 562, Dirksen Building, Capitol Hill.

12:00 NOON. The Cato Institute will host a panel discussion titled "Are Civil Liberties at Risk in the War on Terror?". The speakers will be Andrew McCarthy (Foundation for Defense of Democracies' Center for Law & Counterterrorism), Bruce Fein (American Freedom Agenda), and Timothy Lynch (Cato). See, Cato notice. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireless Committee will host a lunch titled "A Discussion on Carterfone in the Wireless World". The speakers will be Michael Altschul (CTIA), Christopher Libertelli (Skype Communications), Mary Beth Richards (Deputy Director of the FTC's Bureau of Consumer Protection). The price to attend is $15. See, registration form [PDF]. Registrations and cancellations are due by May 22. Location: Latham & Watkins, 10th Floor, 555 11th St., NW.

Rep. Hoyer's weekly calendar [PDF] states that "no votes are expected in the House".

8:30 AM - 12:30 PM. Day three of a three day meeting of the U.S.-China Economic and Security Review Commission titled "The Extent of the Government's Control of China's Economy, and Implications for the United States". See, notice in the Federal Register, May 10, 2007, Vol. 72, No. 90, at Page 26688. Location: Room 385, Russell Building, Capitol Hill.

Deadline to submit comments to the Privacy and Civil Liberties Oversight Board (PCLOB) regarding its interim final rule that establishes procedures for the public to obtain information from the PCLOB under the federal Freedom of Information Act (FOIA). The comment deadline and the effective date are both May 25. See, notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17789-17792.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding installation of smaller antennas by Fixed Service (FS) operators. This NPRM is FCC 07-38 in WT Docket No. 07-54. See, notice in the Federal Register, April 25, 2007, Vol. 72, No. 79, at Pages 20494-20499.

Memorial Day.

The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103.

The House will not meet due to the Memorial Day District Work Period. See, House 2007 calendar.

The House will not meet due to the Memorial Day District Work Period. See, Senate 2007 calendar.

5/16. President Bush named William Behrens to be Special Assistant to the President for Intergovernmental Affairs. He previously worked at the Department of State. See, White House release.

5/16. President Bush nominated Susan Dudley to be Administrator of the Office of Information and Regulatory Affairs at the Executive Office of the President's (EOP) Office of Management and Budget (OMB). She currently holds a recess appointment for this position. See, White House release.

5/16. President Bush nominated Elizabeth Duke to be a Member of the Board of Governors of the Federal Reserve System for the unexpired term of fourteen years from February 1, 1998. This nomination is for the position previously held by Susan Bies. She is currently Senior Executive Vice President and Chief Operating Officer of TowneBank. She has also worked for Wachovia's Merger Project Office, SouthTrust Bank's Community Bank Development, and the Bank of Tidewater. White House release and release.

5/16. President Bush nominated Larry Allan Klane to be a Member of the Board of Governors of the Federal Reserve System for the unexpired term of fourteen years from February 1, 1996. This nomination is for the position previously held by Mark Olson. He is currently President of Global Financial Services at Capital One Financial Corporation. Previously, he was Managing Director of Corporate Trust and Agency Services at Deutsche Bank / Bankers Trust. Before that, he for the Walt Disney Company. See, White House release and release.

5/16. President Bush nominated Randall Kroszner to be a Member of the Board of Governors of the Federal Reserve System for a term of fourteen years from February 1, 2008. He is currently a member. This is a reappointment. He is an economist. See, White House release and release.

5/17. The Government Accountability Office (GAO) released a report [47 pages in PDF] titled "Greater Synergies Possible for DOD’s Intelligence, Surveillance, and Reconnaissance Systems". The report pertains to Army, Air Force, and Navy airborne intelligence, surveillance, and reconnaissance (ISR) systems, most of which gather signals intelligence. The report finds that "Nearly all of the ISR development programs that we reviewed have experienced some cost or schedule growth. Cost and schedule growth in these programs is largely the result of a poor business case or acquisition strategy that failed to capture sufficient knowledge about the product technologies and design before committing to the development and demonstration of a new system."

5/16. The U.S. Court of Appeals (5thCir) issued its opinion [42 pages in PDF] in Oscar Privates Equity Investments v. Allegiance Telecom, a 10b-5 and 20(a) securities fraud action against a bankrupt telecommunications company, relying upon the theory of fraud on the market, in which the District Court certified the plaintiff class. The Court of Appeals vacated the class certification, and remanded. This case is Oscar Privates Equity Investments, et al. v. Allegiance Telecom, Inc., et al., U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 05-10791, an appeal from the U.S. District Court for the Northern District of Texas.

5/16. The Federal Communications Commission (FCC) published a notice in the Federal Register that announces, describes, and sets comments deadlines for its Notice of Proposed Rulemaking (NPRM) regarding its collection of data on broadband deployment. Initial comments are due by June 15, 2007. Reply comments are due by July 16, 2007. This NPRM is FCC 07-17 in WC Docket No. 07-38. See, Federal Register, May 16, 2007, Vol. 72, No. 94, at Pages 27519-27535.

5/14. Roger Parloff of Fortune Magazine wrote an article titled "Microsoft takes on the free world" which pertains to free and open source software (FOSS). He wrote that "Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents."

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