7/31. President Bush signed a document titled "Executive Order: Further Amendments to Executive Order 12333, United States Intelligence Activities".

See also, EO 12333 [40 pages in PDF], as amended, short document titled "Statement by the Press Secretary", and White House news office transcript of news teleconference of undisclosed officials.

Former President Ronald Reagan signed the original EO 12333 in 1981. It has been amended several times since.

This is the fundamental Presidential document for the intelligence agencies. It provides some direction as to their activities and operations. As amended, it remains fundamentally vague on issues relating to intercepting and monitoring communications, including voice communications, accessing stored communications, including e-mail, and use of other new information technologies by intelligence agencies.

One official speaking in the above referenced teleconference stated that EO 12333 "has a daily and significant impact on the activities of the intelligence community and the relationships in that important community. At the highest level, of course, the aim here is to create a more effective intelligence community, where these 16 agencies can be better integrated, work more collaboratively with one another, and also share more information freely."

This official continued that "the order was simply out of date. It needed to be updated to conform to the new intelligence structures, to the intelligence reform law passed in 2004, reflect the roles and responsibilities of the Director of National Intelligence, and also provide implementing guidelines for a number of the recommendations from the 9/11 and the WMD commissions."

Some members of Congress are displeased with the lack of Congressional consultation in the drafting of this order.

For example, Rep. Pete Hoekstra (R-MI), the ranking Republican on the House Intelligence Committee, stated in a release that "The president is within his authorities to sign an executive order, but his administration is wrong to suggest that Congress was in any way involved or consulted in this process."

He added that "the text of the order was not provided to the intelligence committee until 30 minutes before the committee was briefed and after it had been released on the Web. Given the impact that this order will have on America’s intelligence community, and this committee's responsibility to oversee intelligence activities, this cannot be seen as anything other than an attempt to undercut congressional oversight."

Communications Privacy and Civil Liberties. The just released order amends EO 12333 with the following language: the government "has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law".

However, another official stated in the teleconference that "The longstanding protections and safeguards, in other words, that are in place or that were in place and have been in place in the original executive order remained unchanged in this revised order."

One reporter asked this: "On the matter of civil liberties, I think one of the concerns that you're going to hear is the terrorist surveillance program or the warrantless wiretapping program went on despite the civil liberties protection. So what do you have to say to folks that say, essentially, it's nice that you have this stuff in the executive order, but it doesn't necessarily mean anything when a President gets it into his mind that he needs or wants to do something that some people would find outside of those bounds?"

One official responded that "what we would say to that is that the executive order reaffirms the nation's longstanding commitment to protecting civil liberties. It maintains all of the protections that are in place to do so. It requires that all procedures have to be approved by the Attorney General. With respect to the terrorist surveillance program, I'm really not going to speak in any detail to that. The administration has spoken to it previously."

Surveillance, Communications and New Technologies. The just released item does little to provide any further transparency regarding the activities and operations of intelligence agencies involving surveillance, especially concerning new technologies.

The just released item states that "The authority delegated pursuant to this paragraph, including the authority to approve the use of electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978, as amended, shall be exercised in accordance with that Act."

The Foreign Intelligence Surveillance Act (FISA), most recently amended by HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", is itself a model of vagueness and muddled drafting on matters of communications surveillance and data acquisition.

The just released item provides that the Department of Homeland Security (DHS), through the U.S. Secret Service, shall "determine the existence and capability of surveillance equipment being used against" the President, Vice President, Executive Office of the President, Secret Service protectees, and U.S. officials.

What little information EO 12333 contains about communications and stored data is found in Section 2.4, titled "Collection Techniques", Section 2.5, titled "Attorney General Approval", and the incomplete definitions section.

Section 2.4 provides that intelligence agencies "shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes."

It continues that these procedures shall not authorize the Central Intelligence Agency (CIA) to "engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance", "Unconsented physical searches in the United States by elements of the Intelligence Community". However, the FBI is excepted, as are certain searches by military counterintelligence, and the CIA.

EO 12333 continues that these procedures shall not authorize "Physical surveillance of a United States person in the United States by elements of the Intelligence Community". FBI surveillance is excepted, as is certain other surveillance.

EO 12333 continues that these procedures shall not authorize "Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means."

Section 2.5 provides that "The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. The authority delegated pursuant to this paragraph, including the authority to approve the use of electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978, as amended, shall be exercised in accordance with that Act."

EO 12333 defines the term "electronic surveillance" as "acquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a nonelectronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of a transmitter."

However, it does not then define "electronic communication" or "party to an electronic communication".

The just released order maintains the existing ban on assassinations.

7/30. The Department of Justice's (DOJ) Office of the Inspector General (OIG) and Office of Professional Responsibility (OPR) released a report on July 28, 2008, titled "An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General".

Goodling worked in the DOJ's Office of the Attorney General (OAG) as the DOJ's White House Liaison.

The report states that "It is not improper to consider political or ideological affiliations in making hiring decisions for political positions. However, both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations."

The report found that "Goodling improperly subjected candidates for certain career positions to the same politically based evaluation she used on candidates for political positions, in violation of federal law and Department policy."

This is a huge report that details hiring practices in many different components of the DOJ. However, the report does not identify any illegal or improper practices in any of the components involved in technology related areas of law.

That is, it does not identify any illegal or improper practices in hiring for the Antitrust Division (which reviews communications sector mergers and single firm conduct by technology companies), or the Criminal Division's Computer Crimes and Intellectual Property Section (which prosecutes computer hacking and intellectual property crimes).

One of the persons whose practices are examined by the report is Kyle Sampson. He was DOJ Chief of Staff until he resigned, effective March 12, 2007. Sampson had also served as Chairman of the DOJ's Task Force on Intellectual Property.

The Senate Judiciary Committee (SJC) held a hearing on this topic on July 30, 2008. See, prepared testimony of the Glenn Fine, the DOJ's Inspector General.

Sen. Patrick Leahy (D-VT), Chairman of the SJC, wrote in his opening statement that "These reports confirm what I and others have suspected all along -- that senior officials within the Department of Justice used illegal political and ideological loyalty tests in making hiring decisions for career positions that, by law and the Department’s own rules, are non-partisan. They broke the law. They did so as political partisans and cronies."

He added that "One of the many excuses we heard from the administration’s political allies last year as the truth about the U.S. Attorney firings began to come out was that the firings of U.S. Attorneys did not matter because the real work of law enforcement was carried out by the dedicated, non-partisan career staff. Now we know the truth that we have long suspected and feared -- that even the ranks of professional career prosecutors were being subverted by partisan politics."

Attorney General Michael Mukasey stated in a release that "it is neither permissible nor acceptable to consider political affiliations in the hiring of career Department employees".

The DOJ released the IG's report on illegal political hiring at the DOJ at about the same time that it announced, and gave maximum publicity to, the indictment of Sen. Ted Stevens (R-AK). This lends the appearance that the DOJ used the Stevens story to limit the extent of the news coverage its own illegal activities.

7/30. Sen. Kay Hutchison (R-TX) was named ranking Republican on the Senate Commerce Committee (SCC). She replaces Sen. Ted Stevens (R-AK), who was indicted on July 29, 2008. See, story titled "DOJ Obtains Indictment of Sen. Stevens in DC" in TLJ Daily E-Mail Alert No. 1,803, July 29, 2008. Sen. Hutchison stated in a release that "I have every expectation that Senator Stevens will return to his role as Ranking Member in the future."

7/31. Sen. Ted Stevens (R-AK) entered a plea of not guilty in U.S. District Court (DC). The Department of Justice (DOJ) has charged him with seven counts of violation of 18 U.S.C. § 1001 in connection with his alleged failure to disclose receipt of things of value on his annual Senate Financial Disclosure Forms (SFDF) for the years 1999 through 2006. The District Court set a trial date of September 24, 2008.

7/31. President Bush nominated Anthony Ryan to be an Under Secretary of the Treasury for Domestic Finance. He is currently Assistant Secretary for Financial Markets. If confirmed by the Senate, he would replace Robert Steel, who has resigned.

7/31. President Bush nominated John Tharp to be Judge of the U.S. District Court for the Northern District of Illinois. See, White House release.

7/31. President Bush nominated Thomas Marcelle to be a Judge of the U.S. District Court for the Northern District of New York. See, White House release.

7/31. President Bush nominated Richard Barry to be a Judge of the U.S. District Court for the Southern District of Mississippi. See, White House release.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for the week of July 28.

9:00 AM - 4:30 PM. Day one of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, July 2, 2008, Vol. 73, No. 128, at Page 37975-37976. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security will hold a hearing titled "Offline and Off-budget: The Dismal State of Information Technology Planning in the Federal Government". The witnesses will be Karen Evans (Office of Management and Budget), Paul Denett (OMB), David Powner (Government Accountability Office), Al Grasso (P/CEO of MITRE Corporation), Norm Brown (Center for Program Transformation), and Thomas Jarrett (Delaware Department of Technology and Information). See, notice. Location: Room 342, Dirksen Building.

POSTPONED. 10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up several bills, including S 3274 [LOC | WW], the "National Nanotechnology Initiative Amendments Act of 2008". See, notice. Location: Room 253, Russell Building.

UPDATED AGENDA. 10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda once again includes consideration of S 2746 [LOC | WW], the "OPEN FOIA Act of 2008". It also includes consideration of S 3325 [LOC | WW], the "Enforcement of Intellectual Property Rights Act of 2008". The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Oversight of the Federal Networking and Information Technology Research and Development (NITRD) Program". The witnesses will be Chris Greer (NITRD), Daniel Reed (Microsoft), Craig Stewart (Indiana University), and Don Winter (Boeing Company). Location: Room 2318, Rayburn Building.10:00 AM. The House Small Business Committee (HSBC) will hold a hearing titled "Cost and Confidentiality: The Unforeseen Challenges of Electronic Health Records in Small Specialty Practices". Location: Room 1539, Longworth Building.10:30 AM.

The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing on HR 5884 [LOC | WW], the "Sunshine in Litigation Act of 2008", a bill to amend 28 U.S.C. § 111 to limit the use of protective orders and the sealing of cases and settlements. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

12:30 PM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution will hold a hearing on HR 5607 [LOC | WW], the "State Secrets Protection Act of 2008". The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Extended deadline to submit initial comments to the Copyright Office (CO) in response to its proposed rule changes regarding retransmission of digital television broadcast signals by cable operators pursuant to 17 U.S.C. § 111. See, notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Page 40203, and original notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31399-31415.

The House will meet at 9:00 AM for legislative business. It will consider HR 6599 [LOC | WW], the "Military Construction and Veterans Affairs Appropriations Act, 2009". See, Rep. Hoyer's schedule for the week of July 28 and schedule for Friday, August 1.

The Senate will meet at 9:30 AM. It will resume consideration of the motion to proceed to S 3001 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2009".

8:30 AM - 4:30 PM. Day two of a two day meeting of the Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee. See, notice in the Federal Register, July 2, 2008, Vol. 73, No. 128, at Page 37975-37976. Location: Bolger Center, 9600 Newbridge Drive, Potomac, MD.

10:00 AM. The Federal Communications Commission (FCC) may hold an event titled "Open Commission Meeting". See, FCC agenda and story titled "FCC Announces Tentative Agenda for August 1 Meeting" in TLJ Daily E-Mail Alert No. 1,795, July 18, 2008. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit reply comments regarding broadband availability mapping (BAM) to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding BAM and modifications to the FCC Form 477 data collection. The FCC adopted this FNPRM on March 19, 2008, but did not release the text [81 pages in PDF] until June 12, 2008. It is FCC 08-89 in WC Docket No. 07-38.See, notice in the Federal Register, July 2, 2008, Vol. 73, No. 128, at Pages 37911-37922. See also, story titled "FCC Adopts Order Regarding Broadband Data Collection" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

Deadline to submit initial comments regarding issues other than broadband availability mapping (BAM) to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding BAM and modifications to the FCC Form 477 data collection. The FCC adopted this FNPRM on March 19, 2008, but did not release the text [81 pages in PDF] until June 12, 2008. It is FCC 08-89 in WC Docket No. 07-38. See, notice in the Federal Register, July 2, 2008, Vol. 73, No. 128, at Pages 37911-37922. See also, story titled "FCC Adopts Order Regarding Broadband Data Collection" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Lexicon Medical v. Northgate Technologies, App. Ct. No. 2007-1420. This is an appeal from the U.S. District Court (NDIll) in a patent infringement case involving the post KSR v. Teleflex obviousness standard. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Griffin Broadband Communications v. U.S., App. Ct. No. 2008-5032. This is an appeal from the U.S. Court of Federal Claims in a 5th Amendment takings case involving government termination of a contract relationship regarding the provision of communications services on a military base. Location: Courtroom 402, 717 Madison Place, NW.

2:00 - 3:00 PM. The President's National Security Telecommunications Advisory Committee will hold a partially closed meeting by teleconference. See, notice in the Federal Register, June 19, 2008, Vol. 73, No. 119, at Pages 34945-34946.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Qualcomm v. Broadcomm, App. Ct. No. 2007-1545. Location: Courtroom 402, 717 Madison Place, NW.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Devin Crock at dcrock at kelleydrye dot com or Tarah Grant at tsgrant at hhlaw dot com. Location: Tony and Joe’s Seafood Place at the Georgetown Waterfront, 3000 K St., NW.

Deadline to submit comments to the Department of Justice (DOJ) in response to its notice of proposed rulemaking regarding inspection of records relating to the depiction of simulated sexually explicit performances. See, notice in the Federal Register, June 6, 2008, Vol. 73, No. 110, at Pages 32262-32273. This notice states that this "means conduct engaged in by real human beings, not conduct engaged in by computer-generated images".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding assignment of Educational Broadband Service (EBS) spectrum in the Gulf of Mexico. The FCC adopted this item on March 18, 2008, and released the text [111 pages in PDF] on March 20, 2008. This item is FCC 08-03 in WT Docket Nos. 03-66; 03-67, and 02-68, IB Docket No. 02-364, and ET Docket No. 00-258.

No events listed.

TIME? The U.S. Patent and Trademark Office's (USPTO) Patent Public Advisory Committee (PPAC) will meet. Location:?

Day one of a two day conference hosted by the U.S. Patent and Trademark Office (USPTO) titled "13th Annual Independent Inventors Conference". See, USPTO release. Location: USPTO, Alexandria, VA.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding information collected in Board of Patent Appeals and Interferences (BPAI) actions. See, notice in the Federal Register, June 9, 2008, Vol. 73, No. 111, at Pages 32559-32561.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-124 [48 pages in PDF] titled "Guidelines on Cell Phone and PDA Security (Draft)".

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rulemaking regarding post-reconfiguration 800 MHz band plans for the Puerto Rico region. See, notice in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Pages 40274-40276.

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