1/5. President elect Obama announced that he will appoint Thomas Perrelli to be Associate Attorney General. See, Obama transition office release. He is a leading attorney for the record industry on copyright issues.

Perrelli is currently the Managing Partner of the Washington DC office of the law firm of of Jenner & Block. He is also a Co-Chair of its Entertainment and New Media Practice. He joined Jenner & Block after a judicial clerkship, worked in the Department of Justice (DOJ) from 1997 through 2001, and then returned to Jenner & Block.

He represented the Recording Industry Association of America (RIAA) in proceedings before the U.S. District Court (DC) and U.S. Court of Appeals (DCCir) regarding subpoenas to internet service providers under 17 U.S.C. § 512(h). See, opinion [PDF] in RIAA v. Verizon, and story titled "DC Circuit Reverses in RIAA v. Verizon" in TLJ Daily E-Mail Alert No. 804, December 22, 2003.

He also represented SoundExchange in proceedings before the Copyright Royalty Board.

Responsibilities of the Assistant Attorney General. The organizational structure of the DOJ is convoluted. See, organizational chart. Also, this structure changes over time. In addition, on some issues, DOJ activities are organized with personnel from across the DOJ without regard for the DOJ's organizational structure.

Nevertheless, in the DOJ, as currently configured, the Associate Attorney General (AAG) might be regarded as the third ranking position, behind the Attorney General and the Deputy Attorney General. The AAG has responsibilities with respect to the main civil components of the DOJ, including the Antitrust Division, Civil Division, and the Civil Rights Division (CRD).

The Antitrust Division is the focus of telecommunications regulation at the DOJ. The Civil Division handles a wide range of issues that do not fall within other components. For example, it has handled litigation involving alleged illegal surveillance by communications carriers and others.

The CRD has responsibility for enforcement of the Americans with Disabilities Act (ADA). To date, the CRD has given vague, incomplete, and contradictory indications regarding its position as to whether, and if so how, the ADA applies web sites, software and online services. The plain language of the statute is clear (no regulation of these activities), but the CRD during the Clinton administration issued a contrary opinion (web sites are regulated by the ADA). The few court opinions are inconsistent.

President elect Obama has not yet announced his pick for head of the Antitrust Division, Civil Division, or CRD. Appointments to the position of Assistant Attorney General in charge of the CRD have historically been some of the most controversial in the DOJ, although for reasons related to race, rather than information technologies.

Most surveillance issues, including CALEA and FISA matters, are handled by the Criminal Division, National Security Division, and DOJ law enforcement agencies, which are not supervised by the AAG. Also, some intellectual property and computer and network security issues are handled by the Computer Crimes and Intellectual Property Section (CCIPS), which is a part of the Criminal Division.

Jenner & Block. Jenner & Block is a huge law firm. Its attorneys have represented a wide range of telecommunications and entertainment industry interests.

Tom Perrelli's name is similar to that of Don Verrilli, who is also a partner in the Washington DC office of Jenner & Block, and an entertainment industry copyright lawyer. Verrelli worked with Perrelli in RIAA v. Verizon. Verrilli also argued before the Supreme Court on behalf of the movie industry in the peer to peer infringement case, MGM v. Grokster. See, opinion [55 pages in PDF] and stories titled "Supreme Court Rules in MGM v. Grokster" and "Reaction to the Supreme Court's Opinion in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

Verrilli has also represented telecommunications companies. For example, he successfully argued before the Supreme Court in FCC v. Next Wave Personal Communications, 537 U.S. 293. See, January 27, 2003, opinion, and story titled "Supreme Court Rules Against FCC in NextWave Case" in TLJ Daily E-Mail Alert No. 592, January 28, 2003.

1/5. President elect Obama announced that he will appoint David Ogden to be Deputy Attorney General (DAG) at the Department of Justice (DOJ). See, Obama transition office release.

The DAG is the number two position at the DOJ.

He is currently a partner in the Washington DC office of the law firm of Wilmer Hale. He joined the firm in 2001 after holding several positions at the DOJ during the administration of former President Clinton.

He is currently a co-chair of the Government and Regulatory Litigation Practice Group at Wilmer Hale.

His Wilmer Hale biography states that his clients include "leading companies in the ... media, and internet industries".

It adds that he worked on "Obtaining on behalf of booksellers, artists, and internet associations a permanent injunction holding unconstitutional a state statute regulating speech on the internet".

Ogden, through staff, declined speak with TLJ, or provide information about his representation of clients in technology related matters.

While employed at the DOJ as head of the Civil Division, he defended the Child
Online Protection Act (COPA), Public Law No. 105-277, in ACLU v. Reno. The COPA was replacement legislation for the anti-indecency provision of the Communications Decency Act (CDA), which the Supreme Court held unconstitutional. See, June 26, 1997, opinion, reported at 521 U.S. 844. The COPA banned sending to minors over the web material that is harmful to minors. It too was ultimately held unconstitutional. See, July 22, 2008, opinion [57 pages in PDF] of the U.S. Court of Appeals (3rdCir), and story titled "3rd Circuit Holds COPA Unconstitutional" in TLJ Daily E-Mail Alert No. 1,798, July 23, 2008.

Also, while head of the Civil Division, Ogden oversaw the DOJ's defense of the Sonny Bono Copyright Term Extension Act (CTEA), Public Law No. 105-298, which the Supreme Court latter upheld in Eldred v. Ashcroft, 537 U.S. 186. See, January 15, 2003, opinion, and story titled "Supreme Court Upholds CTEA in Eldred v. Ashcroft" in TLJ Daily E-Mail Alert No. 584, January 16, 2003.

Ogden's name also appears on pleadings filed on behalf of the DOJ in Bartnicki v. Vopper. On May 21, 2001, the Supreme Court issued its opinion, reported at 532 U.S. 514, holding that a radio host (Vopper) cannot be sued under 18 U.S.C. § 2511 for playing an audio recording of a cell phone conversation, even though the statute made illegal both the interception of the conversation, and its disclosure. The Court reasoned that the case pitted statutes banning disclosure of illegally obtained electronic communications against the First Amendment freedom of speech claims of persons with illegally obtained recordings to disclose them if their content pertains to a public issue. The Court wrote that the recording violated federal wiretapping law, that Vopper knew this, but that he did not make the illegal intercept. It reasoned that the statute's application in this situation would violate Vopper's free speech rights under the First Amendment. While the Court protected speech rights, it decreased privacy rights. The DOJ argued that Vopper could be sued. See also, story titled "Supreme Court Diminishes Electronic Privacy" in TLJ Daily E-Mail Alert No. 192, May 22, 2001.

Finally, while Ogden was involved in these COPA, CTEA and wiretapping cases, it is the office of the DOJ to defend the constitutionality of the statutes of the U.S.

1/5. President elect Obama announced that he will appoint Elena Kagan to be the Solicitor General at the Department of Justice (DOJ). See, Obama transition office release.

She is currently a professor at Harvard Law School. She has taught administrative law and constitutional law. She previously worked for former President Clinton as Associate Counsel to the President, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council.

She has written about some issues pertinent to information and communications technologies, including the First Amendment and the Chevron doctrine. See, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," 63 University of Chicago Law Review 413 (1996), and "Chevron's Nondelegation Doctrine," 2001 Supreme Court Review 201 (2001), co-authored with David Barron.

1/6. William Blumenthal, the Federal Trade Commission's (FTC) General Counsel, will leave the FTC and join the law firm of Clifford Chance as a partner in its mergers and acquisitions practice, and chairman of its U.S. antitrust group. See, FTC release and Clifford Chance release.

1/6. James Kroeker was named the acting Chief Accountant of the Securities and Exchange Commission (SEC). See, SEC release. Shelley Parratt was named acting Director of the SEC's Division of Corporation Finance. See, SEC release. Peter Kiernan, Deputy Director of the SEC's Office of Legislative and Intergovernmental Affairs, retired after 40 years at the SEC. See, SEC release. Susan Markel, Chief Accountant in the SEC's Division of Enforcement, will leave the SEC in January. See, SEC release.

1/5. President elect Obama announced that he will name Don Gips to be White House Director of Presidential Personnel. Obama's transition office stated in a release that Gips is "on leave from his role as Group Vice President of Global Corporate Development" at Level 3 Communications, "where he leads merger and acquisition efforts and is the Chief Strategy Officer". He previously was Chief Domestic Policy Advisor to former Vice President Gore. Before that, he was Chief of the Federal Communications Commission's (FCC) International Bureau. And before that, he worked for McKinsey Company.

1/5. President elect Obama announced that he will appoint Dawn Johnsen to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Counsel (OLC). She is currently a professor at the Indiana University School of Law -- Bloomington, where she teaches courses on constitutional law, courts, and "Sexuality, Reproduction and the Constitution". Before that, she worked in the DOJ during the administration of former President Clinton. And before that, she worked for the National Abortion and Reproductive Rights Action League (NARRAL). See, Obama transition office release and University of Indiana release.

12/30. The U.S. Court of Appeals (6thCir) issued its opinion [9 pages in PDF] in Doe v. SexSearch.com, a case related to Section 230 immunity of interactive computer services. The Court of Appeals affirmed judgment of the District Court, which dismissed on multiple grounds -- failure to state a claim and Section 230 immunity.

However, the Court of Appeals dismissed solely on the grounds that the complaint failed to state a claim. Unlike the District Court, it did not offer Section 230 as an alternative grounds for dismissal of several counts. The Court of Appeals wrote that "we do not adopt the district court's analysis of the Communications Decency Act and explicitly reserve the question of its scope for another day".

A pseudonymous plaintiff, John Doe, used the defendants' web site, which the Court of Appeals described as "an online adult dating service that facilitates sexual encounters between its members". A pseudonymous non-party, Jane Roe, also used the web site, but lied about her age. Doe and Roe met through the web site, and had an encounter. The state of Ohio arrested and criminally charged Doe with having an encounter with a person under the minimum statutory age for such activity. However, the state dismissed the charges, and sealed its records.

Doe then filed a 14 count complaint in the U.S. District Court (NDOhio) against the defendants, alleged owners of the web site, alleging breach of contract, fraudulent misrepresentation, negligent infliction of emotional distress, negligent misrepresentation, breach of warranty, five counts of violation of the Ohio Consumer Sales Practices Act, three counts of common law unconscionability, and failure to warn.

The District Court held, and the Court of Appeals affirmed, that each of these counts fails to state a claim upon which relief can be granted, pursuant to FRCP Rule 12(b)(6).

The Court of Appeals provided its analysis for concluding that each count fails to state a claim. It did not provide any analysis of Section 230.

Rather, it wrote that "Because we agree with the district court that Doe’s complaint failed to state a claim, we do not reach the question of whether the Communications Decency Act provides SexSearch with immunity from suit. We do not adopt the district court’s discussion of the Act, which would read § 230 more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services."

Section 230. 47 U.S.C. § 230 provides certain immunity for an "interactive computer service".

The key subsection, § 230(c)(1), provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".

Subsection 230(d)(3) provides that "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

Section 230 does not immunize interactive computer services from all liability arising out of operating an interactive computer service. It only immunizes them from claims that would hold them liable for the statements of others, such as their users.

While the court did not provide any analysis, one might argue that the claims in the complaint do not fall under the scope of Section 230's immunity, because Doe seeks to hold the defendants liable under theories of breach of contract, breach of warranty, misrepresentation or negligence for not abiding by the web site's own statements that its users are 18 years of age or older. That is, Doe seeks to have the defendants held liable for the web site's statements, not Jane Roe's.

Had Roe not made false statements, the web site would not have listed her, Doe would not have had relations with her, the state would not have charged him, and hence, Doe would not be able to claim any injury. But, Section 230 only prevents a court from treating the web site as the speaker or publisher of Roe's claim to be 18.

Section 230 does not immunize a web site from liability where there is a causal connection between a user's statement and injury to the plaintiff, where the legal theory of web site liability does not include treating the web site as the speaker or publisher of that statement.

Although, this is speculation. The District Court found that Section 230 immunity applies to some counts. And, the Court of Appeals provided no analysis of the Section 230 issue.

This case is John Doe v. SexSearch.com, et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 07-4182, an appeal from the U.S. District Court for the Northern District of Ohio at Toledo, D.C. No. 07-00604, Judge Jack Zouhary presiding. Judge Merritt wrote the opinion of the Court of Appeals, in which Judges Boggs and Griffin joined.

This issue contains the following items:
 • Obama Names Perrelli to be DOJ Associate Attorney General
 • Obama Names David Ogden to be Deputy Attorney General
 • Obama Names Elena Kagan to be Solicitor General
 • More People and Appointments (Johnsen picked for DOJ/OLC; Blumenthal to leave FTC for Clifford Chance; Gips named Director of Presidential Personnel)
 • 6th Circuit Rules in Section 230 Case
 • 7th Circuit Upholds Traffic Fines Based Upon Camera Surveillance

The House will meet at 12:00 NOON to convene the 111th Congress. It will hold a quorum call, elect the Speaker of the House, administer the oath of office, and adopt rules for the 111th Congress.

The Senate will meet at 12:00 NOON to convene the 111th Congress.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Autogenomics v. Oxford Gene Tech, App. Ct. No. 2008-1217, a appeal from the U.S. District Court (CDCal) in a case regarding personal jurisdiction in patent cases. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in E-Pass Technologies v. 3Com, App. Ct. No. 2008-1144, a patent infringement case. Location: Courtroom 203, 717 Madison Place, NW.

Deadline to submit comments to the Copyright Office (CO) regarding its interim regulation to clarify the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries (DPDs). See, notice in the Federal Register, November 7, 2008, Vol. 73, No. 217, at Pages 66173-66182. See also, story titled "Copyright Office Releases Interim Section 115 Digital Phonorecord Delivery Regulation" in TLJ Daily E-Mail Alert No. 1,854, November 10, 2008.

The House will meet at 10:00 AM. See, Rep. Hoyer's schedule for week of January 5, 2009.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a news conference to announce and release a paper titled "The Digital Road to Recovery: A Stimulus Plan to Create Jobs, Boost Productivity and Revitalize America". Location: National Press Club, 13th floor, 529 14th St.,  NW.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Priorities for the Next Administration: Use of TARP Funds under EESA". See, notice. The HFSC will webcast this hearing. Location: Room 2128, Rayburn Building.

The House and Senate will meet in joint session at 1:00 PM to conduct the formality of counting electoral votes for President. See, Rep. Hoyer's schedule for week of January 5, 2009.

RESCHEDULED FOR JANUARY 15. 9:30 AM. The Senate Judiciary Committee (SJC) may hold a hearing on the likely nomination of Eric Holder to be Attorney General in the Obama administration. The SJC will webcast this hearing. Location? See, notice of extension.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Narton v. Schukra USA, App. Ct. No. 2008-1363. This is an appeal to the U.S. District Court (EDMich) in a patent infringement case involving the issue of lack of standing to sue based upon failure of all inventors to be named on a patent and to join in the suit. Location: Courtroom 402, 717 Madison Place, NW.

10:30 - 11:45 AM. Federal Communications Commission (FCC) Chairman Kevin Martin will give a speech titled "Balancing Deregulation and Consumer Protection". See, notice. Location: American Enterprise Institute, 12th floor, 1150 17th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding implementation of S 3663 [LOC | WW], "Short-term Analog Flash and Emergency Readiness Act". The FCC adopted and released this NPRM [21 pages in PDF] on December 24, 2008. It is FCC 08-281in MB Docket No. 08-255. See, notice in the Federal Register, December 31, 2008, Vol. 73, No. 251, at Pages 80332-80349.

The House may meet at 10:00 AM. See, Rep. Hoyer's schedule for week of January 5, 2009.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in RFID Tracker v. Wal-Mart Stores, App. Ct. No. 2008-1412. Location: Courtroom 402, 717 Madison Place, NW.

12:00 - 1:30 PM. Google and the New America Foundation (NAF) will host a panel discussion titled "Wiki White House: Can Obama Use Technology to Transform Government?". The speakers will be Craig Newmark (Craigslist), Mindy Finn (former Director of E-Strategy for Mitt Romney for President), Ellen Miller (Sunlight Foundation), Sascha Meinrath (NAF), and Nicholas Thompson (NAF). The NAF states in its notice for this event that it is full. Location: Google, 1101 New York Ave., NW.

12:30 - 2:30 PM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council (HSAC) will hold a closed meeting. See, notice in the December 30, 2008, Vol. 73, No. 250, at Pages 79894-79895. Location: DHS, Nebraska Avenue Complex.

Effective date of the U.S. Patent and Trademark Office's (USPTO) rules of practice amendments that adjust the transmittal and search fees for international applications filed under the Patent Cooperation Treaty (PCT). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66754-66759.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rule Making (2ndFNPRM) regarding rules to protect AM stations from the potential effects of nearby tower construction. The FCC adopted this 2ndFNPRM on September 24, 2008, and released the text [28 pages in PDF] on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, notice in the Federal Register, December 11, 2008, Vol. 73, No. 239, at Pages 75376-75381.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding creating a new replacement digital television translator service that will permit full service television stations to continue to provide service to viewers within their coverage area who have lost service as a result of those stations' digital transition. The FCC adopted this item on December 22, 2008, and released the text [14 pages in PDF] on December 23, 2009. It is FCC 08-278 in MB Docket No. 08-253. See, notice in the Federal Register, January 2, 2009, Vol. 74, No. 1, at Pages 61-67.

8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash broadbandcensus dot com] will host a breakfast event titled "What Will Broadband Do to the Universal Service Fund?" The speakers will include Greg Rhode (E-Copernicus/E9-1-1 Institute). For more information, contact Drew Clark at drew at broadbandcensus dot com or 202-580-8196. Breakfast begins at 8:00 AM. The program begins at 8:40 AM. The price to attend these monthly events is $45. These events are open to the public. Location: Old Ebbitt Grill, 675 15th St., NW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host panel discussion titled "Globalization and Technology Standards: The Case for Expanded U.S. Leadership". The speakers will be Rob Atkinson (ITIF), Donald Purcell (Center for Global Standard Analysis), Jeff Weiss (Office of the U.S. Trade Representative), and Mary Saunders (Department of Commerce). A light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "Understanding BIA/Arbitron Reports and the Local Radio Ownership Rule". The speakers will be Mark Fratrik (BIA Financial Network), John Pelkey (Garvey Schubert Barer), and Bill Getz (Carl T. Jones Corp.). See, notice and registration page. Location: National Association of Broadcasters, 1771 N St., NW.

5:00 - 7:00 PM. The Center for Democracy and Technology's (CDT) Internet Caucus will host a reception and technology demonstration associated with its January 14 event titled "State of the Net Conference". Location?

1/5. The U.S. Court of Appeals (7thCir) issued its opinion in Idris v. Chicago, affirming the judgment of the District Court, which upheld the constitutionality of a city ordinance that allowed the city to fine car owners for traffic violations based solely on the evidence of automatic camera surveillance, and precluded the defense that the owner was not the driver of the car at the time of the alleged violation.

Parveen Idris and other plaintiffs are car owners who allege that they were fined after someone else drove their cars and violated the traffic laws. They filed a complaint in the U.S. District Court (NDIll) against the City of Chicago alleging that the ordinance violates the equal protection and due process clauses of the 14th Amendment of the Constitution.

Frank Easterbrook, writing the Court of Appeals, concluded that the due process "argument is a dud" because the penalty is only $90 and there is no chance of imprisonment. He continued that the rational basis test applies, and it is not irrational for a governments to fine some people for violations committed by others.

This case is Parveen Idris, et al. v. City of Chicago, Illinois, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 08-1363, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 06 C 6085, Judge Robert Gettleman presiding. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Ripple and Rovner joined.

1/5. The National Telecommunications and Information Administration (NTIA) announced in a release that "starting Sunday, January 4, consumers requesting coupons from the agency's TV Converter Box Coupon Program will be placed on a waiting list and coupons will be mailed on a first-come-first-served basis, as funds from expired coupons become available. Because of the high demand for coupons, the program reached its $1.34 billion ceiling, which consists of ordered and redeemed coupons".

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