2/3. The House passed, without amendment, HR 559 [LOC | WW], the "Fair, Accurate, Secure, and Timely Redress Act of 2009", by a vote of 413-3. See, Roll Call No. 49.

This bill provides procedural redress to those who believe they have been denied access to commercial aircraft as a result of listing on a terrorist watch list or database used by the Transportation Security Administration (TSA).

Rep. Yvette Clarke (D-NY) introduced this bill on January 15, 2009. It is a reintroduction of HR 4179 (110th Congress) [LOC | WW], which the House passed on June 18, 2008. The House Homeland Security Committee (HHSC) last held a hearing on this topic on September 9, 2008. See, HHSC web page for this hearing.

The Senate version of the bill was S 3392 (110th Congress) [LOC | WW]. The Senate did not pass either HR 4179 or S 3392.

HR 559 amends the Homeland Security Act of 2002 to provides that within 30 days of enactment the Department of Homeland Security (DHS), of which the TSA is a component, "shall establish a timely and fair process for individuals who believe they were delayed or prohibited from boarding a commercial aircraft or denied a right, benefit, or privilege because they were wrongly identified as a threat when screened against any terrorist watchlist or database used" by the TSA or DHS.

This process must include a "comprehensive list, to be known as the `Comprehensive Cleared List´, of individuals who were misidentified as an individual on any terrorist watchlist or database ... completed an approved Department of Homeland Security appeal and redress request and provided such additional information as required by the Department to verify the individual's identity; and ... permit the use of their personally identifiable information to be shared between multiple Departmental components for purposes of this section".

Rep. Clarke (at right) stated in the House that "this list has grown to have over 1.1 million entries. With so many different names on the list, it is not surprising that every single day countless Americans are misidentified as terrorists".

She added that "The errors most commonly occur when an innocent person's name happens to be similar to the one listed in the database."

Rep. Pete Olson (R-TX) stated in the House that "the terrorist watch list works", but "Nevertheless, the system is not perfect and sometimes mistakes are made." He urged Republicans to support the bill.

The ACLU's Timothy Sparapani stated in a release that "When the terror watch lists hit one million records last summer, it became painfully clear that this system is fatally flawed. Representative Clarke's bill is significant in that it provides the individual with a means of seeking redress through appeal, and those erroneously caught up in the web of watch lists will be well-served. But the burden of correcting the error still remains on the victim and not those responsible for allowing the lists to grow exponentially."

He added that "In order to make the current watch lists more effective in keeping our nation safe, they need to be scrubbed, retaining only individuals for whom there is credible evidence of terrorist ties or activities. But it remains critical that Congress and the Obama administration reexamine and reform our whole approach to the watch list system."

1/15. The U.S. Court of Appeals (9thCir) issued its revised opinion [53 pages in PDF] in Humphries v. County of Los Angeles, a due process challenge to the state of California's maintenance of an electronic database, without providing any process from correcting erroneous information.

The Court of Appeals held that the California database statute at issue violates the due process clause of the 14th Amendment of the U.S. Constitution.

This case turned on the specific California statute's language requiring the creation of the database, and mandating its uses. However, this case stands as authority for the proposition that when the government creates and maintains an electronic database with individually identifiable information, and also mandates that various government and private sector parties access and rely upon information in this database in issuing licenses, permitting employment, or allowing the exercise of certain rights, then the individuals listed in that database have a due process right to challenge information in that database.

The opinion is vague as to just what process is due. However, it includes a post-inclusion right to notice, and opportunity to be heard.

California Database. California maintains an electronic database titled "Child Abuse Central Index" or "CACI".

The Court of Appeals noted that "even California has recognized, in its task force report, that it may have a high error rate on the CACI, perhaps as high as fifty percent". The Court added that "as of 2004, there were an estimated 810,000 suspects on the CACI". The Court concluded that "there is a substantial risk that individuals will be erroneously listed on the CACI".

The Court of Appeals wrote that the applicable state statute requires the state to make information in the CACI available to a broad range of third parties, both government and private sector, and in and out of state, including employers.

The Court also wrote that "other statutory provisions mandate that certain agencies consult the CACI prior to issuing a variety of state-issued licenses or other benefits".

The Court concluded that "it is apparent that the CACI listing plays an integral role in obtaining many rights under California law, including employment, licenses, volunteer opportunities, and even child custody".

Finally, it wrote the statute "offers no procedure for challenging a listing on the CACI".

Erroneous Database Listings. The plaintiffs are Craig and Wendy Humphries. California listed them in this CACI electronic database, based on false information provided to it by the County of Los Angeles.

The Court of Appeals wrote that they were once wrongfully accused of child abuse, but "a doctor confirmed that the abuse charges could not be true". It also wrote that they "petitioned the criminal court, which found them ``factually innocent´´ of the charges for which they had been arrested, and ordered the arrest records sealed and destroyed." In addition, "the juvenile court dismissed all counts of the dependency petition as ``not true.´´"

Nevertheless, the County of Los Angeles and the state of California maintained the Humphries in the database as "substantiated" child abusers.

The Court of Appeals wrote that "California offers no procedure to remove their listing on the database as suspected child abusers, and thus no opportunity to clear their names. More importantly, California makes the CACI database available to a broad array of government agencies, employers, and law enforcement entities and even requires some public and private groups to consult the database before making hiring, licensing, and custody decisions."

District Court. The Humphries filed a complaint in U.S. District Court (CDCal) against the County of Los Angeles, and various county and state officials, alleging, among other things, violation of 42 U.S.C. § 1983, asserting violation of the due process clause of the 14th Amendment.

Section 1983 provides a federal cause of action against states for violation of Constitutional rights. It provides, in part, that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...".

The Humphries sought, among other relief, an injunction regarding their erroneous listing in the CACI database, and a declaratory judgment that the state statute and procedure violate the 14th Amendment due process clause.

The District Court granted summary judgment to government on certain issues. This appeal followed.

Court of Appeals. The Court of Appeals reversed and remanded. It held that the statute violates the Humphries' due process rights.

The Court of Appeals held that "What California has done is not just maintain a central investigatory file, but attach legal consequences to the mere listing in such files. Once California effectively required agencies to consult the CACI before issuing licenses, the CACI ceased to be a mere investigatory tool. The fact of listing on the CACI became, in substance, a judgment against those listed."

And this, the Court held, requires due process of law.

However, the Court of Appeals did not state what process is due. It concluded that "we do not propose to spell out here precisely what kind of procedure California must create".

It stated that it did not require any pre-inclusion notice and/or right to be heard.

It did write that "California must promptly notify a suspected child abuser that his name is on the CACI and provide ``some kind of hearing´´ by which he can challenge his inclusion."

The Court also wrote that "opportunity to be heard on the allegations ought to be before someone other than the official who initially investigated the allegation and reported the name for inclusion on the CACI".

This stops far short of the impartial decision maker standard historically associated with due process.

Also, "the standards for retaining a name on the CACI after it has been challenged ought to be carefully spelled out."

The Court required only that the state identify its standard. It did not specify what that standard may be -- such as preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt.

Hypothetically, the state might evade the consequences of this opinion by adopting a scintilla of evidence standard.

This revised opinion is also accompanied by orders denying the governments' petitions for rehearing and rehearing en banc.

This case is Craig and Wendy Humphries v. County of Los Angeles, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 05-56467, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-00697-JVS, Judge James Selna presiding. Judge Jay Bybee wrote the opinion of the Court of Appeals, in which Judges Milan Smith and Richard Mills (USDC/CDIL) joined.

2/5. The Department of Justice's (DOJ) Antitrust Division published in its web site heavily redacted copies of antitrust leniency letters, also known as amnesty letters, issued between August 10, 1993, and November 18, 2008. See, DOJ web page with hyperlinks to leniency letters.

The release was required the the July 25, 2008, opinion [10 pages in PDF] of the U.S. Court of Appeals (DCCir) in Stolt-Nielsen Transportation Group v. US, App. Ct. No. 07-5191, which is reported at 534 F.3d 728, and the following settlement agreement.

Under the DOJ's Corporate Leniency Policy, the DOJ provides amnesty for the first company in a cartel that comes forward, admits its participation in a cartel, fully cooperates with the investigation of other corporate and individual conspirators, and meets the other requirements.

The purpose of this amnesty process is to give companies incentives to report criminal activity and cooperate with the Antitrust Division. See also, April 1, 1998, speech titled "The Corporate Leniency Policy: Answers to Recurring Questions".

2/6. The Progress & Freedom Foundation (PFF) announced that it will hold its annual Aspen conference this August, not in Aspen, Colorado, but in Sundance, Utah. It will be titled "A New Deal for the Digital Age?". It will be on August 9-11, 2009. See, release and conference web site.

2/5. The Internal Revenue Service (IRS) published a notice in the Federal Register announcing that from March 16, 2009 through April 30, 2009, it is accepting applications from individuals to become members of its Taxpayer Advocacy Panel. See, Federal Register, February 5, 2009, Vol. 74, No. 23, at Pages 6220-6221. IT tax issues on which the IRS is in need of advice include treatment of cell phones and other devices under 26 U.S.C. § 280F(d)(4) as income to employees, and depreciation versus expensing, and depreciation schedules, for IT equipment and devices.

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This issue contains the following items:
 • House Passes Watch List Database Redress Bill
 • 9th Circuit Holds Government Database With No Redress Process Violates Due Process
 • DOJ Releases Redacted Copies of Leniency Letters

The House will meet at 2:00 PM for legislative business. Votes will be postponed until Tuesday. The House will consider several non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of February 9.

The Senate will meet at 1:00 PM. It will resume consideration of HR 1 [LOC | WW], a huge spending bill.

9:00 AM - 4:30 PM. Day one of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

11:00 AM. Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), will give a speech titled "Restoring Trust in the Justice System: The Senate Judiciary Committee's Agenda in the 111th Congress". A SJC notice states that "Reporters interested in attending the symposium must RSVP to Rachel Pugh" at 202-687-4328 or rmp47 at georgetown dot edu. Location: Georgetown University, Bunn Intercultural Center Auditorium, 37th & O Streets, NW.

11:00 AM - 12:00 NOON. The Heritage Foundation and the Border Trade Alliance will host an event titled "Facilitating Trade and Travel at America's Ports of Entry". The speakers will be Lurita Doan, Ron Reinas, and Ronald Utt (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee will host a brown bag lunch for planning purposes. Location: Wilkinson Barker Knauer, 2300 N St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Homeland Security / Emergency Communications Committee will host a brown bag lunch titled "Public Safety Issues to Watch in 2009". The speakers will be Brian Fontes (National Emergency Number Association) and Bob Gurss (Association of Public-Safety Communications Officials International). RSVP to Marianne Trana at 202-419-2476 or marianne dot trana at hklaw dot com. Location: Holland & Knight, 2099 Pennsylvania Ave., NW.

11:59 PM. Deadline for broadcasters who want to terminate analog broadcasts on February 17, 2009, to submit notices to the Federal Communications Commission (FCC). See, FCC public notice [9 pages in PDF] and story titled "FCC Announces Procedures for Terminating Analog Service Prior to June 12" in TLJ Daily E-Mail Alert No. 1,893, February 6, 2009.

Deadline to submit reply 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 comments to the Federal Trade Commission (FTC) in advance of its event titled "Town Hall", regarding "Digital Rights Management Technologies", to be held on March 25, 2009, in Seattle, Washington. See, notice and online comment form and event web site.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House is scheduled to consider numerous items under suspension of the rules on February 10 or later, including HR 554 [LOC | WW], the "National Nanotechnology Initiative Amendments Act of 2009". See, Rep. Hoyer's schedule for week of February 9.

8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash broadbandcensus dot com] will host a breakfast event titled "The Role of Wireless Frequencies in Widespread Broadband Deployment". The speakers will be John Kneuer, John Muleta (M2Z Networks), Steve Sharkey (Motorola), Don Brittingham (Verizon), and Tom DeRiggi (Rapid DSL & Wireless). 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 AM - 4:30 PM. Day two of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Elena Kagan to be Solicitor General, and Thomas Perrelli to be Associate Attorney General. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "A Service to the Economy: The Importance of Free Trade in Services". The speakers will be Bob Vastine (U.S. Coalition of Services Industries), Christine Bliss (Assistant U.S. Trade Representative for Services and Investment), Aaditya Mattoo (World Bank), and Sallie James (Cato). The Cato Institute will webcast this event. Lunch will be served after the program. This event is free and open to the public. See notice. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "DTV Transition, Now or Later: Final Mechanics from Here to the End". See, notice and registration page. Location: National Association of Broadcasters, 1771 N St., NW.

2:30 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Broadband's Role in the Economy and the Stimulus Package". The speakers will be Robert Hahn (AEI), Robert Crandall (Brookings Institution), Michael Katz (New York University), Robert Shapiro (Sonecon), and Gigi Sohn (Public Knowledge). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

Day one of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day three of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Electronic Waste: Investing in Research and Innovation to Reuse, Reduce, and Recycle". The witnesses will be Valerie Thomas (Georgia Institute of Technology), Jeff Omelchuck (Green Electronics Council), and Paul Anastas (Yale University). See, notice. For more information, contact 202-225-6375. The HSC will webcast this event. Location: Room 2318, Rayburn Building.

10:00 AM. Federal Communications Commission (FCC) Chairman Michael Copps will host an event titled "first news briefing with reporters covering the FCC". Location: FCC, 8th floor, conference room 1.

4:00 - 5:00 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The Korean Strategy for Green Technology Development and Role of IT". The speakers will be Suk Joon Kim, President of the Korean Science and Technology Policy Institute (STEPI), and Jung Hyup, Senior Research at the STEPI. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

200th anniversary of the birth of former President Abraham Lincoln. (This is not a federal holiday.)

Day two of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day four of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

9:00 AM - 12:30 PM. The U.S. Patent and Trademark Office (USPTO) will hold a roundtable on regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947. Location: USPTO, Madison Auditorium, Madison Building, 600 Dulany St., Alexandria, VA.

9:00 AM - 12:00 NOON. The U.S. Chamber of Commerce will host an event titled "Day Without Space". It will focus on "the economic and national security ramifications if our space assets were compromised for a period of time". The keynote speaker will be General James Cartwright, Vice Chairman of the Joint Chiefs of Staff. For more information, contact David Logsdon dlogsdon at uschamber dot com or 202-463-5479. Location: Chamber, 1615 H St., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of John Holdren to be Director of the Office of Science and Technology Policy (OSTP) in the Executive Office of the President, and Jane Lubchenco to be head of the National Oceanic and Atmospheric Administration (NOAA). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a business meeting to adopt rules for the 111th Congress. See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "Structuring National Security and Homeland Security at the White House". See, notice. Location: Room 342, Dirksen Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Libel Tourism". See, stories titled "New York Senate Passes Libel Terrorism Protection Act" in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008, "Rep. King Introduces Free Speech Protection Act" in TLJ Daily E-Mail Alert No. 1,756, April 29, 2009, and "Sens. Specter and Lieberman Introduce Bill Regarding Foreign Forum Shopping Libel Actions" in TLJ Daily E-Mail Alert No. 1,765, May 13, 2008. See also, HR 5814 [LOC | WW] and S 2977 [LOC | WW], in the 110th Congress, both titled the "Free Speech Protection Act of 2008".The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its "Interim final rules with request for comment" regarding its administrative adjudications. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1803-1836. See also, story titled "FTC Writes Rules to Bolster Power of Antitrust Regulators" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding application of the closed captioning rules to digital broadcasting, specifically to broadcasters that choose to use their digital allotment to multicast several streams of programming. The FCC adopted this item on November 3, 2008, and released the text [57 pages in PDF] on November 7, 2008. It is FCC 08-255 in CG Docket No. 05-231. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1654-1661.

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

9:00 AM - 4:30 PM. Day five of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

George Washington's birthday observed. See, Office of Personnel Management's (OPM) list of 2009 federal holidays.

The House will not meet the week of February 16-20 for a District Work Period.

10:00 AM. The Federal Trade Commission (FTC) is scheduled to begin its hearing in In the Matter of Whole Foods Markets, Inc. See, scheduling order [14 pages in PDF]. See also, story titled "DC Circuit Reverses in FTC v. Whole Foods" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008. Location: Room 532, FTC, 600 Pennsylvania Ave., NW.

5:00 PM. Deadline to register for the Federal Communications Bar Association's (FCBA) February 18 event titled "Investing in Foreign Telecoms Markets: Challenges and Opportunities". See, notice and registration page.