4/15. Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in "our current struggle against international terrorism".

It was a plea for adherence to Constitutional principles. However, it was as significant for what he said -- about detention of people in places like Guantanamo Bay -- as for what he did not say -- about interception of communications and seizure of data.

He spoke with specificity about Guantanamo Bay, detainees, and the history of American treatment of detained soldiers and citizens.

But, he said nothing that suggested an intent to reverse, or halt, the deterioration of Constitutional protection of privacy and liberty interests in the context of new communications and information technologies.

Holder (at right) said, "And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes."

He said that "we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger -- it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are."

This statement could equally apply to government surveillance activities. But, he did not say so. Perhaps Holder intends to speak in a similar speech about surveillance at a later date. Or perhaps, he does not, and his concern for Constitution rights is selective and does not extend to surveillance.

He did make one statement that may pertain to electronic surveillance and data. He said that "many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars".

He did not reference the state secrets privilege, or the government's assertion of it in legal proceedings involving warrantless wiretaps.

On April 3, 2009, the Department of Justice (DOJ) filed a motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, a case against the NSA, DOJ, Holder and officials, arising out of the NSA's warrantless wiretap program.

The DOJ asserts the state secrets privilege, sovereign immunity, and other arguments, to evade litigation of this case on the merits.

The Electronic Freedom Foundation (EFF) stated in a release that "These are essentially the same arguments made by the Bush administration".

This case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release issued in response to Holder's speech that "It's disturbing that instead of helping investigate the extent of spying by the Bush administration, the new administration is not just defending those policies, but taking them a step further. In its April court brief (Jewel v. NSA), the Obama DOJ argued that the government is completely immune from litigation for illegal spying and even that it can never be sued for violating federal privacy laws with surveillance techniques. Those arguments sound more like `1984´ than 2009".

Black continued that "President Obama appreciates more than most people how the Internet can be used as a tool to allow greater participation in a democracy. That same tool could also be the greatest innovation for surveillance and repression in the wrong regime. Defending practices like this sets a dangerous precedent down the road and makes it easier for a government to expand the programs from surveilling terrorists to surveilling political opponents".

"The Obama administration had the courage to change policy on the treatment of terrorism suspects and how they were treated and sometimes tortured", said Black. "But the abuse of the privacy rights of millions of U.S. citizens is a greater long term threat to the rule of law and the Constitutional rights of all Americans. The failure to allow the full investigation of the surveillance abuse by both the government and major collaborating industry giants would be a tragic betrayal by an administration so many were looking to for greater honesty, openness, and respect for all citizens’ constitutional rights."

4/15. The Securities and Exchange Commission (SEC) released a notice [4 pages in PDF], to be published in the Federal Register, that pertains to the privacy provisions of the Gramm Leach Bliley Act. See also, SEC release and Federal Trade Commission (FTC) release.

In 1999 the Congress passed the Financial Modernization Act of 1999, Public Law No. 106-102, which is better known as the Gramm Leach Bliley Act, or GLB, to enable financial institutions, such as banks and insurance companies, to associate.

Since this process provided financial institutions with increased access to the personal financial information of customers, the Congress also included provisions intended to protect financial privacy. The Congress left implementation, including rulemaking authority, to various federal financial regulatory agencies, including the SEC and FTC.

The infamous Section 503 of the GLB Act requires disclosures to customers. It is codified at 15 U.S.C. § 6803.

In 2006, the Congress passed the Financial Services Regulatory Relief Act of 2006. It was S 2856 in the 109th Congress. It is now Public Law No. 109-351. Title VII, at Section 728, provides for the financial regulatory agencies to jointly develop a model form which may be used, at the option of financial institutions, for the provision of the privacy disclosures required by Section 503 of the GLB Act.

On March 29, 2007, the federal agencies published a notice in the Federal Register that contains their proposed rule implementing Section 728. See, Federal Register: March 29, 2007, Vol. 72, No. 60, at Pages 14939-15000. See also, correction notice in the Federal Register, April 5, 2007, Vol. 72, No. 65, at Pages 16875-16876. And see, PDF copy of corrected notice.

The just released notice contains a proposal to create a safe harbor for a model form that financial institutions may use to provide disclosures in initial and annual privacy notices required under Regulation S-P.

The just released notice also reopens the comment period for the 2007 notice. The old deadline was May 29, 2007.

The SEC announced that the deadline to submit comments in response to the just released notice will be 30 days after publication of the notice in the Federal Register. As of the April 16, 2009, issue of the Federal Register, this publication had not yet taken place.

See also, the FTC's web page titled "Financial Privacy Rule: Interagency Notice Research Project", which contains hyperlinks to the reports, data, and other documents referred to in the just released notice.

4/15. The Free Press (FP) announced in a release on April 10, 2009, that it urges its members "to voice their opposition to Congress" to Time Warner Cable's "new pricing model".

This is a trial pricing plan under which the amount that consumers would pay for broadband access service would be a function for how much they consume.

The FP asserted that this will "limit consumers' Internet use".

It also stated that "many see this as an attempt to stifle the emerging online video market -- a competitive threat to Time Warner Cable's television service".

The FP's Timothy Karr stated in this release that "instead of meeting broadband demand, Time Warner is penalizing consumers for using the Internet. This nickle-and-dime approach flies in the face of efforts by Congress and President Obama to make cheaper, faster Internet a key component of our economic recovery."

Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA), responded on April 15, 2009, that "Despite Free Press's hyperbole, the facts are these: Time Warner Cable has merely suggested that they are interested in conducting a limited set of trials of a new pricing model -- in a careful and transparent manner -- that may serve the vast majority of their customers better by reflecting the growing reality that some consumers utilize far more high speed bandwidth than others. They have engaged in an open conversation with their customers and other interested parties about how they are thinking through their plans, and I would expect that only after gathering input would they announce more specific plans for what, where and how such tests would be conducted."

In November of 2007, the FP and Public Knowledge (PK) complained to the Federal Communications Commission (FCC) that Comcast was "degrading specific peer-to-peer applications", and that this violates the FCC's 2005 policy statement [3 pages in PDF].

See, FP/PK document [48 pages in PDF] and story titled "Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

The FCC used this complaint as the vehicle for issuing its August 2008 order [67 pages in PDF] asserting authority to regulate the network management practices of Comcast and other broadband internet access providers. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

McSlarrow also made the point that back in their 2007 filing, the FP and PK argued that Comcast, instead of degrading transmission speeds for bandwidth hogging P2P applications, "could charge by usage". (See, page number 26, PDF page 30.)

That is, the FP's latest criticism of the cable industry is inconsistent with its previous criticism.

McSlarrow also stated that "it is somewhat tiresome to have Free Press repeatedly assert that every effort by network providers to examine any new approach or idea in our or related industries is somehow designed to protect against the supposed ``threat´´ of ``Internet video.´´"

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The House will not meet the week of April 6-10 or 13-17. It will next meet at 2:00 PM on April 21, 2009. See, HConRes 93.

The Senate will not meet the week of April 6-10 or 13-17. It will next meet on April 20, 2009, at 2:00 PM, at which time it may begin consideration of S 386 [LOC | WW], the "Fraud Enforcement and Recovery Act".

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host an untitled seminar by Ken Hendricks (University of Texas). He is an economist who has written extensively about competition, collusion, mergers, the Hirschmann Herfindahl Index (HHI), the computational bilateral oligopoly (CBO) model, and government merger reviews. See, paper [PDF] titled "Evaluating the Likely Effects of Horizontal and Vertical Mergers". He has also written about product discovery in the market for recorded music. See, paper [PDF] titled "Information and the Skewness of Music Sales". Location: FTC, New Jersey Ave. Building, Room 4100.

The House will not meet.

The Senate will not meet.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in NCTA v. FCC, App. Ct. No. 08-1016 and 08-1017. Judges Tatel, Garland and Silberman will preside. This is the challenge by the NCTA and apartment owners to the FCC's MDU order, that asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies. The FCC asserted authority under Subsection 628(b) of the Communications Act, which is codified at 47 U.S.C. § 548(b). The order, adopted on October 31, 2007, is FCC 07-189 in MB Docket No. 07-51. See, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007. See, FCC's brief [68 pages in PDF]. Location: Courtroom 11, 333 Constitution Ave.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Alvin Lou Media, Inc. v. FCC, App. Ct. No. 08-1067. Judges Ginsburg, Rogers and Kavanaugh will preside. See, FCC's brief [80 pages in PDF]. Location: 333 Constitution Ave.

9:30 AM - 4:15 PM. The Federal Trade Commission (FTC) will hold another in its series of hearings regarding the market for intellectual property. See, agenda [PDF]. Location: FTC, 601 New Jersey Ave., NW.

Deadline to submit initial comments to the The Federal Communications Commission (FCC) in response to its Public Notice [4 pages in PDF] regarding its implementation of Subsections 103(b) and 103(c)(1) of the Broadband Data Improvement Act (BDIA). President Bush signed S 1492 [LOC | WW], the BDIA, into law on October 10, 2008. It is now Public Law No. 110-385.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking [25 pages in PDF] regarding extending until June 30, 2010, the freeze of Part 36 category relationships and jurisdictional cost allocation factors used in jurisdictional separations. This freeze is set to expire on June 30, 2009. This NPRM is FCC 09-24 in CC Docket No. 80-286. See, notice in the Federal Register, April 3, 2009, Vol. 74, No. 63, at Pages 15236-15239.

The House will not meet.

The Senate will meet at 2:00 PM. It may begin consideration of S 386 [LOC | WW], the "Fraud Enforcement and Recovery Act".

12:00 NOON - 2:00 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property and Legislative Practice Committees, and the DC Chapter of the Copyright Society of the U.S.A. will host a brown bag lunch titled "Communications and Copyright in the 111th Congress". The FCBA has a history of excluding persons from its lunches. Location: NCTA, 25 Massachusetts Ave., NW.

6:00 - 9:15 PM. The DC Bar Association will host the first part of a three part series titled "Preserving Intellectual Property Rights in Goverment Contracts". The speakers will include David Bloch (Winston & Strawn), Richard Gray (Department of Defense), John Lucas (Department of Energy), and James McEwen (Stein McEwen). The price to attend ranges from $89 to $129 per part, or $169 to $299 for the series. See, notice. This event qualifies for continuing legal education credits. The DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

The House will return from its two week Easter District Work Period.

8:00 AM - 3:30 PM. The Motion Picture Association of America (MPAA) will host an event titled "American Creativity at Work". For more information, contact 202-378-9118.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Verizon Washington DC v. Communications Workers of America, App. Ct. No. 08-7092. Judges Ginsburg, Rogers and Kavanaugh will preside. Location: 333 Constitution Ave.

10:00 AM - 12:00 NOON. The Heritage Foundation will host an event titled "The Taiwan Relations Act's Enduring Legacy on Capitol Hill". The speakers will include Rep. Shelley Berkley (D-NV). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Matt Osborne (DOJ) on his paper titled "Consumer Inventory Behavior, Price Sensitivity and Its Implications for Price Elasticities and Consumer Welfare". To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.

2:00 - 3:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement". Location: Room LJ 162, Thomas Jefferson Building, Library of Congress, Independence Ave., NW.

2:00 - 4:00 PM. The Department of State's (DOS) Advisory Committee on International Economic Policy (ACIEP) will meet. See, notice in the Federal Register, March 30, 2009, Vol. 74, No. 59, at Page 14181. Location: DOS, Room 1107, 2201 C St.,  NW.

Deadline to submit initial comments to the Copyright Office (CO) and the U.S. Patent and Trademark Office (USPTO) in response to their notice of inquiry (NOI) regarding facilitating access to copyrighted works for blind or disabled people. See, notice in the Federal Register, March 26, 2009, Vol. 74, No. 57, at Pages 13268-13270.

9:00 AM - 4:00 PM. The American Enterprise Institute (AEI) will host an event titled "High-Skilled Immigration in a Globalized Labor Market". See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Day one of a two day convention hosted by the Consumer Electronics Association (CEA) titled "CEA Washington Forum". Location: JW Marriott.

12:00 NOON - 6:00 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Engineering Advisory Committee. See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Page 14821. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

6:00 - 9:15 PM. The DC Bar Association will host the second part of a three part series titled "Preserving Intellectual Property Rights in Goverment Contracts". The speakers will be David Bloch (Winston & Strawn), Richard Gray (Department of Defense), John Lucas (Department of Energy), and James McEwen (Stein McEwen). The price to attend ranges from $89 to $129 per part, or $169 to $299 for the series. See, notice. This event qualifies for continuing legal education credits. The DC Bar Association has a history of excluding persons from its events. For more information, call 202-626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

8:00 AM - 12:00 NOON. Day two of a two day meeting of the National Science Foundation's (NSF) Engineering Advisory Committee. See, notice in the Federal Register, April 1, 2009, Vol. 74, No. 61, at Page 14821. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

8:30 AM - 5:00 PM. Day one of a two day meeting of the Judicial Conference of the United States' Advisory Committee on Rules of Evidence. This meeting is open to the public for observation, but not participation. See, notice in the Federal Register, January 26, 2009, Vol. 74, No. 15, at Page 4459. Location: Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE.

12:00 NOON - 5:00 PM. The Center for Democracy and Technology (CDT) will host an event titled "State of the Mobile Net". There will be panels titled "What is the Mobile Net? Understanding the Mobile Net Ecosystem", "Spectrum: Is the Lifeblood of the Mobile Net Running Dry?", "Mobile Network Infrastructure Trends", "Cloud Computing and Emerging Business Models in the Mobile Space", "Privacy on the Go", and "What Policy Framework Will Enable Innovation on the Mobile Net?". See, agenda. Location: Hyatt Regency Capitol Hill.

1:00 - 3:00 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "The Role of the SBIR and STTR Programs in Stimulating Innovation at Small High-Tech Businesses". The Department of Defense (DOD) administers the Small Business Innovation Research (SBIR) program and the Small Business Technology Transfer (STTR) program. See, DOD SBIR/STTR web page. The witnesses will be Robert Berdahl (Association of American Universities), Jim Greenwood (Biotechnology Industry Organization), Sally Rocky (National Institutes of Health), and Jerry Glover (Small Business Technology Council). The HSC will webcast this hearing. Location: Room 2318, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host an untitled seminar by Lanier Benkard (Stanford University). He is an economist who has written extensively about competition and mergers. Location: FTC, New Jersey Ave. Building, Room 4100.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers and Wireline Practice Committees will host an event titled "Happy Hour". For more information, contact Matt Gerst at mgerst at ctia dot org. Location: Poste Moderne Brasserie, 555 8th St., NW.

Day two of a two day convention hosted by the Consumer Electronics Association (CEA) titled "CEA Washington Forum". Location: JW Marriott.

The Consumer Electronics Association (CEA) will host an event titled "Digital Patriots Dinner". Location: JW Marriott.

Deadline for the Federal Communications Commission (FCC) to respond to letter [PDF] from leaders of the House Commerce Committee (HCC) requesting data about subsidies disbursed under the FCC's universal service high cost program. See, story titled "House Commerce Committee Seeks FCC Data on High Cost Universal Service" in TLJ Daily E-Mail Alert No. 1,922, April 6, 2009.