10/22. Google disclosed in a release that the data that its Street View vehicles collected as part of its WiFi surveillance project included "entire emails and URLs ... as well as passwords".

Google did not disclose this information to Congressional investigators earlier this year. See, story titled "Rep. Markey and Rep. Barton Write FTC Regarding Google Data Collection Activities" in TLJ Daily E-Mail Alert No. 2,085, May 20, 2010; story titled "House Commerce Committee Leaders Write Google Regarding Wi-Fi Data" in TLJ Daily E-Mail Alert No. 2,090, June 2, 2010; and story titled "Google Responds to Congressional Inquiry Regarding Its Collection of Data from WiFi Networks" in TLJ Daily E-Mail Alert No. 2,094, June 15, 2010.

See also, story titled "Canada Finds Google Violated Its Privacy Law" in TLJ Daily E-Mail Alert No. 2,145, October 22, 2010.

Google also stated on October 22 that it would strengthen its internal privacy policies and security practices.

The Google Street View project supplements the Google Maps project by providing 360 degree street level imagery. That is, one can use Google Maps to enter a street address, and locate it on a map. Google Street View then enables users to see images taken at that location. Google obtains images for this by driving Street View vehicles on public streets for the taking of pictures.

Since May of this year, under investigation by governmental entities, Google has been disclosing information about other functions of its Street View vehicles.

Google wrote in a letter [7 pages in PDF] to Congressional investigators dated June 9, 2010, that its Street View cars were outfitted with WiFi antennas to detect and collect "WiFi network data, including SSID, MAC address, signal strength, data rate, channel of the broadcast, and type of encryption method."

SSID is service set identifier. See, Wikipedia. MAC is media access control. See, Wikipedia.

While the Department of Justice (DOJ) has not yet charged Google or any Google employee or agent with a violation of federal law, there is an argument to be made that there have been illegal intercepts of electronic communications.

18 U.S.C. § 2511 provides in part that "any person who ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished".

However, Subsection 2511(2)(g)(i) provides an exception that may be pertinent. "It shall not be unlawful ... for any person ... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public".

That is, Google might argue that its interception of SSID and MAC address data is "readily accessible to the general public".

Moreover, Google might make the more tenuous argument that even the content of e-mail communications that were unencrypted or otherwise unprotected from interception by WiFi antennae such as Google's were also "readily accessible to the general public".

There is perhaps an analogy to be drawn to the DOJ's actions in the 1990s involving interception of voice communications by users of cell phones that employed first generation wireless technology. These conversations were easy to intercept by someone in the vicinity.

TLJ spoke with Joshua Gruenspecht of the Center for Democracy and Technology (CDT), a group that is active in current debates regarding reforming and updating the Electronic Communications Privacy Act (ECPA). See, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

He said that "the scope of the (g) exception in 2511 is kind of murky, but there is a solid analogy to be drawn to the cell phone cases." However, he added that "whether or not a court would draw that analogy is uncertain".

Finally, it should be noted that 18 U.S.C. § 2520 provides a private right of action.

10/22. William Lake, Chief of the Federal Communications Commission's (FCC) Media Bureau sent a letter [PDF] to Cablevision and News Corporation regarding their not having negotiated a new retransmission consent agreement.

Lake wrote that "We are troubled". Under the relevant statute, 47 U.S.C. § 325, the FCC can do little else.

He stated that broadcasters and multichannel video programming distributors (MVPDs) have a statutory duty to engage in good faith negotiations. He asked the two companies to "describe with specificity what has transpired since you initially began your negotiations, and detail the efforts your company is making to end the current impasse. If you are aware of any conduct by the other side that you believe violates the good faith requirement, please so indicate and provide supporting evidence".

He asked for responses by October 25, 2010.

Also on October 22, the Leadership Conference on Civil Rights (LCCR) sent a letter to the FCC urging it "to review all rules governing programming negotiations between and among multichannel video programming distributors and content providers; and to ensure that the same rules are applied to retransmission consent negotiations as well as program access and program carriage rules".

The LCCR wrote that "media consolidation has a negative impact on the creation and distribution of programming created by and for women and people of color".

The LCCR argued that "Congress and the Commission have developed a series of rules governing the relationships between content providers and distributors that are designed to promote a diversity of voices and ensure communities have access to essential local news and information offered by over-the-air broadcasting. Unfortunately, when large companies negotiate carriage agreements, subscribers and viewers are often left in the middle, possibly being deprived of programming if corporate negotiations fail. Even worse, the highly concentrated media marketplace means that independent programming is left on the sidelines, while large cable programmers and broadcasters receive nationwide distribution for programming that offers little that serves the full diversity of the audience."

On March 9, 2010, numerous MVPDs, including Time Warner Cable, Verizon, DirectTV, and Dish Network, and numerous groups, including the American Cable Association (ACA), Public Knowledge (PK), and New America Foundation (NAF) filed a petition for rulemaking with the FCC. The FCC has not instituted a rulemaking proceeding. That proceeding is Docket No. 10-71. The LCCR submitted its letter for this proceeding.

Also on October 22, the Institute for Policy Innovation (IPI) released a short paper in which it advocated a market based approach. The IPI's Bartlett Cleland wrote that "In any normal functioning market, businesses freely decide to contract for products and services. Retailers in particular decide which product lines they will or will not carry, and there is often intense negotiating because of vigorous competition."

He continued that "The relationship between broadcasters and cable television is something less than a normal functioning market, thanks to a governing regulatory regime that distorts negotiations and fails to take into account the competitive nature of today's video marketplace". But, he argued, "broadcasters are entitled to fair value for their content. Providing prime time shows, sports programming, local news, or other local content, requires considerable time, effort and resources, and broadcasters bear almost all of the market risk of their product."

"Free and direct negotiations should be encouraged, without threats of compulsory solutions, and the right to enter into (or to NOT enter into) private contracts should rule the day." Cleland concluded that "The solution is a more free market, leaving the negotiation of retransmission consent agreements to the private marketplace with government on the sidelines providing law enforcement against wrongdoing." (Parentheses in original.)

See also, stories titled "Sen. Kerry Releases Draft Retransmission Consent Bill" and "Copps Comments on Retransmission Consent" in TLJ Daily E-Mail Alert No. 2,144, October 21, 2010, and "FP and PK Urge FCC to Consider Retransmission Consent Implications of Comcast NBCU Transaction" in TLJ Daily E-Mail Alert No. 2,145, October 22, 2010.

10/19. Rep. Henry Waxman (D-CA) gave a speech [5 pages in PDF] in which he discussed the U.S. Israel Free Trade Agreement (FTA) and protection of intellectual property rights (IPR).

The U.S. and Israel negotiated their FTA 25 years ago. The Office of the U.S. Trade Representative (OUSTR) long kept Israel on its Priority Watch List for failure to protect IPR, but removed it earlier this year.

The OUSTR's 2010 Special 301 report [54 pages in PDF], released on April 30, 2010, lists Israel as "Status Pending". It adds that "Israel will be moved from the Special 301 Priority Watch List to the Watch List."

Rep. Waxman stated that "For years Israel was branded by the USTR as insufficiently protective of intellectual property rights and placed on the Priority Watch List of USTR's annual Special 301 report on international IP violations."

"Over time the issue became more and more intractable despite Israel's passage of laws to protect copyrights, trademarks and patents, and its evolution into a model climate for high-tech innovation." He continued that "Israel was being unfairly criticized alongside major IP violators like China and Russia to an extent that made Israel's designation appear even more arbitrary and excessive and undercut the credibility and effectiveness of the underlying report."

Rep. Waxman's primary concern is pharmaceutical products. However, Israel's copyright protection and enforcement has also long been an issue between the two nations.

The OUSTR's 2010 report states that in addition to addressing pharmaceuticals, "Israel has signaled a new willingness to make progress on other IPR issues of concern. In particular, Israel announced plans to issue a draft copyright-related ``exposure bill´´ (an early step in the legislative process) in one year. Israel has stated that the purpose of this step will be to solicit public comments on specific proposals pertaining to enacting core requirements of the WIPO Internet Treaties. The United States welcomes this step, and encourages Israel to proceed with full accession to, and implementation of, the WIPO Internet Treaties." (Parentheses in original.)

10/19. The Department of Justice's (DOJ) Office of the Inspector General (OIG) released a report [29 pages in PDF] titled "Status of the Federal Bureau of Investigation's Implementation of the Sentinel Project".

This is yet another in a long series of DOJ/OIG and Government Accountability Office (GAO) reports, and Congressional hearings, that have documented the FBI's continuing failure, delays, and/or difficulties in adopting and deploying new information technologies.

This report states that "In March 2006, the FBI launched development of Sentinel in an attempt to implement a paperless case management system throughout the FBI. Sentinel was originally planned to cost $425 million and be fully deployed by December 2009. Sentinel’s development followed an earlier failed attempt at a case management system called the Virtual Case File (VCF), a part of the Trilogy project that was initiated in 2001 and terminated in 2005 after the FBI spent $170 million on the development of the VCF."

It finds that "As of August 2010, the FBI’s Sentinel system is at least 2 years behind schedule and at least $100 million over budget."

The report also states that "Sentinel's budget and schedule overruns affect the daily work of the FBI’s 35,000 employees. If Sentinel had stayed on schedule, FBI agents, analysts, and other employees would now have a complete electronic case management system, including streamlined workflows for managing and assigning work, advanced name and document search capabilities, and paperless case files. Instead, they have to continue to rely on ACS and its time consuming paper-based case management processes. The manual processes required by ACS are susceptible to errors and limit information sharing, inhibiting the FBI’s ability to ``connect the dots´´ using information stored in its case files."

Moreover, "The FBI’s plan for completing Sentinel is still evolving, and is not yet fully developed or officially approved. However, our initial consideration of the plan, after an oral briefing, raises significant concerns and questions about the FBI’s planned approach, including ones relating to the cost, schedule, and amount of work to complete Sentinel. We are also concerned that budget and schedule constraints might reduce the functionality ultimately delivered to the FBI’s agents and analysts."

Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), which oversees the FBI, stated in a release that "The FBI's efforts to improve its case management system have been riddled with error. Years have been wasted, as well as millions in taxpayer dollars. It is disheartening that once again, the Department of Justice's Inspector General has found that the FBI’s current effort, the Sentinel case management program, continues to have costly delays and to fall short of its performance goals."

Sen. Leahy added that "Information exchange is critical to protecting our national security. These stumbles continue to be alarming. I have used the Judiciary Committee's oversight authority for years to press the FBI to work aggressively to fix these problems, and I will continue to do so until this expensive and important program is working as it should be."

He concluded that "I will continue to vigilantly monitor the progress of this program".

For further background, see:

• story titled "DOJ OIG Reports on FBI's IT Adoption Problems" in TLJ Daily E-Mail Alert No. 2,016, November 17, 2009.
• story titled "GAO Releases Report on FBI IT Deployment Project" in TLJ Daily E-Mail Alert No. 1,834, September 29, 2008.
• stories titled "DOJ Report Discusses FBI's Failures in Creating a Secure Web Accessed File System" in TLJ Daily E-Mail Alert No. 1,499, December 5, 2006, and "FBI Director Mueller Testifies Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,500, December 7, 2006.

Also, on September 27 2010, the DOJ/OIG released a report [37 pages in PDF] titled "Investigation of Allegations of Cheating on the FBI’s Domestic Investigations and Operations Guide (DIOG) Exam".

The report states that "a significant number of FBI employees engaged in some form of improper conduct or cheating on the DIOG exam, some in clear violation of FBI directives regarding the exam. Some consulted with others while taking the exam when that was specifically forbidden by the test-taking protocols. Others used or distributed answers sheets or study guides that essentially provided the answers to the test. A few exploited a programming flaw to reveal the answers to the exam."

10/22. Google named Alma Whitten its "director of privacy across both engineering and product management". Google stated in a release that "Her focus will be to ensure that we build effective privacy controls into our products and internal practices. Alma is an internationally recognized expert in the computer science field of privacy and security. She has been our engineering lead on privacy for the last two years, and we will significantly increase the number of engineers and product managers working with her in this new role."

10/1. Mark Bohannon joined Red Hat, Inc. as Vice President, Corporate Affairs & Global Public Policy. He previously worked for ten years for the Software and Information Industry Association (SIIA). Red Hat is a provider of open source software, including Red Hat Enterprise Linux.

The House is in recess until November 15.

The Senate is in recess until November 12, except for pro forma sessions.

8:45 - 11:30 AM. The New America Foundation (NAF) will host an event titled "The Internet's Midlife Crisis". The speakers will be Sascha Meinrath (NAF), Tim Wu (Columbia University law school), Bruce Gottlieb (Atlantic Media Company), Link Hoewing (Verizon), and Andres Martinez (NAF). See, notice and registration page. This event is free and open to the public. Location: NAF, 4th floor, 1899 L St., NW.

9:00 AM. The Tech America (TA) will release and discuss a report regarding the Office of Management and Budget's (OMB) information technology project review plan. The speakers will be Phil Bond (TA), Linda Gooden (Lockheed Martin), and Steve Kelman (Harvard). A light breakfast will be served starting at 8:30 AM. For more information, contact Jennifer Kerber at 703-284-5337 or jkerber at techamerica dot org. Location: Zenger Room, 13th floor, National Press Club, 529 14th St., NW.

6:00 - 8:15 PM. The Federal Communications Commission (FCC) will hold a meeting that pertains to its open rulemaking proceeding titled "In the Matter of Amendment of the Commission's Ex Parte Rules and Other Procedural Rules". The FCC adopted its Notice of Proposed Rulemaking (NPRM) [27 pages in PDF] on February 18, 2010, and released the text on February 22, 2010. It is FCC 10-31 in GC Docket No. 10-43. The FCC officials responsible for this rule making proceeding, and who will participate in this meeting, include Austin Schlick (FCC General Counsel) and Joel Kaufman (Chief of the FCC's OGC's Administrative Law Division). The Federal Communications Bar Association (FCBA) asserts that this is an FCBA event titled "Ethics, Social Media, and Administrative Procedure: Ex Parte Rules for a Digital Age". See, FCBA notice and registration form. The deadline to register is 12:00 NOON on October 25, 2010. Prices vary. The FCBA bars reporters from some of its events. Location: Holland & Knight, 2099 Pennsylvania Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) [79 pages in PDF] regarding expanding the FCC's disability access technology mandates. The FCC adopted and released this item on August 5, 2010. It is FCC 10-145 in WT Docket No. 07-250. See, notice in the Federal Register, September 8, 2010, Vol. 75, No. 173, at Pages 54546-54560, and story titled "FCC Adopts Disability Access Policy Statement, Order, and NPRM" in TLJ Daily E-Mail Alert No. 2,120, August 6, 2010. See also, S 3304 [LOC | WW], previously titled the "Equal Access to 21st Century Communications Act", and then S 3828 [LOC | WW], the "Twenty-First Century Communications and Video Accessibility Act of 2010", signed into law on October 8, 2010. The FCC published a second notice in the Federal Register requesting comments on the effects of this Act, if any, on this proceeding. See, Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63764-63766.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry [102 pages in PDF] regarding the use of microwave for wireless backhaul. The FCC adopted and released this item on August 5, 2010. It is FCC 10-146 in WT Docket Nos. 10-153, 09-106, and 07-121. See, story titled "FCC Adopts Wireless Backhaul NPRM and NOI" in TLJ Daily E-Mail Alert No. 2,120, August 6, 2010, and notice in the Federal Register, August 24, 2010, Vol. 75, No. 163, at Pages 52185-52209.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee (SITAC) will hold a partially closed meeting. This meeting will be held on site, and by teleconference. See, notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Page 62508. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 - 11:30 AM. The Heritage Foundation will host a panel discussion titled "What If Anything Will the Congress Do About Cybersecurity?". The speakers will be Brandon Milhorn (Senate Homeland Security and Governmental Affairs Committee Republican staff), Michelle Richardson (ACLU), John Kneuer (Fairfax Media Partners), and Paul Rosenzweig (Heritage). This event is free and open to the pubic. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

10:00 - 11:30 AM. The Brookings Institution will host a panel discussion titled "Privacy and Security in the Cloud Computing Age". The speakers will be Darrell West (Brookings), Greg Nojeim (Center for Democracy and Technology), Marjory Blumenthal (Georgetown University), Allan Friedman (Brookings), Irfan Saif (Deloitte & Touche), and Harry Wingo (Google). See, notice. Location: Brookings, 1775 Massachusetts Ave., NW.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2012 World Radiocommunication Conference will meet. See, notice in the Federal Register: October 6, 2010, Vol. 75, No. 193, at Pages 61756-61757. Location: FCC, Room TW-C305445 12th St., SW.

1:00 PM. The USTelecom will host a webcast event titled "Government Cybersecurity Policies and Initiatives: Are we headed towards an Australian ISP model?". See, notice and registration page. The speaker will be Robert Mayer. Free.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a presentation titled "Supersize It: The Growth of Retail Chains and the Rise of the Big Box Retail Format". The speaker will be Emek Basker (University of Missouri) one co-author of a paper [PDF] with the same title. For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Protecting Business Secrets and Key Personnel: How How Far Can Companies Go?". This panel will address USA v. Adobe, et al., D.C. No. 1:10-CV-01629. See, story titled "DOJ Stops Tech Companies' Anticompetitive Hiring Practices" in TLJ Daily E-Mail Alert No. 2,133, September 27, 2010. The speakers will be Melvin Schwartz (Marsh McLennan), Veronica Lewis (Vinson Elkins), and Eric Welsh (Parker Poe). See, notice. Free.

12:30 - 1:30 PM. The Center for American Progress (CAP) will host an event titled "American Religion and Politics in the Digital Age". The speaker will be Susan Thistlethwaite, author of the book [Amazon] titled "Dreaming of Eden: American Religion and Politics in a Wired World". This event is free and open to the public. See, notice and registration page. Location: CAP, 10th floor, 1333 H St., NW.

6:00 - 7:30 PM. The DC Bar Association will host an event titled "Antitrust and Consumer Law Section Meet and Greet". This event is free. Reporters are barred from attending most DC Bar events. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 91. This auction, which is scheduled to commence on March 29, 2011, pertains to FM Broadcast Construction Permits. See, September 21, 2010, FCC Public Notice (DA 10-1711 in AU Docket No. 10-183) and notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61752-61756.

Deadline for Facebook to respond to the October 18, 2010, letter [PDF] from Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) that propounds interrogatories and requests documents regarding reports that third party applications in Facebook's web site gathered and transmitted personally identifiable information about Facebook users and those users' friends to third parties. See, story titled "Representatives Markey and Barton Write Facebook About User Privacy" in TLJ Daily E-Mail Alert No. 2, 143, October 20, 2010.

2:40 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Supersize It: The Growth of Retail Chains and the Rise of the Big Box Retail Format". The speaker will be Emek Basker (University of Missouri) one co-author of a paper [PDF] with the same title. For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: ground floor Conference Center, 601 New Jersey Ave., NW.

4:00 - 5:30 PM. Vivek Wadhwa will give lecture titled "What is a Tech Entrepreneur, and How Can We Make More of Them?". This event is free and open to the public. To register, e-mail iep dot gmu at gmail dot com. Location: Room 120, George Mason University School of Law, 3301 Fairfax Drive, Arlington, VA.

7:00 - 9:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and the FCBA Foundation will host an event titled "21st Annual Charity Auction". For more information, contact Micah Caldwell at FCBAAuction at gmail dot com. Location: Hamilton Crowne Plaza Hotel, 1315 K St., NW.

Deadline to register for the two day event hosted by the National Institute of Standards and Technology (NIST) titled "Cloud Computing Forum & Workshop II". See, event web page and notice in the Federal Register, October 19, 2010, Vol. 75, No. 201, at Page 64258.

9:00 AM. The Arizona State University (ASU) will host an event titled "Can Open Innovation Regain America's Competitive Edge?". The speakers will include Diana Wells (Ashoka), Amy Stursberg (Blackstone Charitable Foundation), Jim Whitehurst (Red Hat, Inc.), Santokh Badesha (Xerox), Matthew Von Ertfelda (Marriot International), Chris Thomas (Intel), Mitzi Montoya (ASU), Rob Pegoraro (Washington Post), and Michael Crow (ASU). See, notice. For more information, contact Kate Wells, 602-703-5231 or kate dot wells at asu dot edu. Location: Ballroom, 13th floor, National Press Club, 529 14th St., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) and Federal Communications Bar Association's (FCBA) Mass Media and Video Programming and Distribution Committees will host a brown bag lunch titled "Perspectives from the FCC Media Bureau". The FCBA bars reporters from some of its events. Location: National Association of Broadcasters, 1771 N St., NW.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) International Trade Administration's (ITA) Office of Intellectual Property Rights (OIPR) regarding protecting intellectual property rights abroad. See, notice in the Federal Register, September 30, 2010, Vol. 75, No. 189, at Pages 60408-60409, and story titled "Department of Commerce Commences Review of Foreign Barriers to Protection of IPR" in TLJ Daily E-Mail Alert No. 2,137, October 1, 2010.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-56 C [13 pages in PDF] titled "Recommendation for Key Derivation through Extraction then Expansion".

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register requesting comments on how to conduct a survey on consumer fraud. See, Federal Register: September 1, 2010, Vol. 75, No. 169, at Pages 53697-53699.

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