12/9. The House Judiciary Committee's (HJC) Subcommittee on the Constitution, Civil Rights, and Civil Liberties will held a hearing titled "Civil Liberties and National Security".

This hearing covered a wide range of topics involving detention, interrogation, torture, prosecution and trial of defendants, prisoners of war, foreign detainees, and terrorism suspects. It also addressed covert military operations. However, some of the hearing addressed information and communications technology (ICT) related topics, including the state secrets privilege, warrantless wiretaps, government access to consumers' phone call records, and a potential CALEA like statute for the internet.

This hearing, which was sparsely attended by members, staff, and the public, was held days before the end of a lame duck session, and just before a change of party control. Rep. John Conyers (D-MI), the Chairman of the HJC, conducted the two and one half hour hearing on his own.

Rep. Conyers (at left) and some witnesses focused their criticism on the Bush administration. Rep. Conyers stated that it created an "expanded national security state". He cited "civil rights abuses", including "widespread warrantless wiretapping", and abuse of the state secrets privilege.

Rep. James Sensenbrenner (R-WI), the ranking Republican on the Subcommittee, stated in opening that "I don't see why we need to have this hearing today because it is talking about things in the past". He added that "next year, when this Committee is under new management, we will be much more productive, much more relevant, and we won't be looking at the calendar of last year or two years ago." He then left the hearing room.

Rep. Conyers and Laura Murphy (ACLU) conceded that the Bush administration policies that they condemned at this hearing have been continued by the Obama administration. Thomas Pickering stated at the end of the hearing that the hearing had a "partisan flavor".

State Secrets Privilege. This is not inherently ICT related. And, the government invokes it in cases that do not involve ICT. However, the government has relied upon it in recent years to evade legal claims arising out of allegation of illegal and warrantless wiretapping.

For an explanation of the doctrine, see story titled "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,927, April 29, 2009, story titled "Holder Advocates Some Constitutional Principles" in TLJ Daily E-Mail Alert No. 1,927, April 15, 2009, and story titled "Holder Issues Memorandum on State Secrets Privilege" in TLJ Daily E-Mail Alert No. 1988, September 24, 2009.

Rep. Conyers said that "invocation of the state secrets privilege, which has gone on in recent years, including this administration, to an incredible new height, to shut down complaints, investigations and lawsuits challenging executive branch action, such as illegal domestic surveillance".

Thomas Pickering wrote about the state secrets privilege, among other topics, in his prepared testimony. He is a former career diplomat. He was Ambassador to Russia and Undersecretary of State for Political Affairs during the Clinton administration, and U.S. Ambassador to the United Nations during the elder Bush's administration. He now works at Hills & Company.

Pickering wrote that "The application of the state secrets doctrine is also an area of growing concern, particularly as it affects the rights of citizens and aliens to seek redress in court for actions of the government which negatively impact them or their interests. Blanket efforts to block all such claims seeking redress are both unfair and improper. Any doctrine that leaves the Executive Branch entirely immune, on its own say so, from all claims for redress against mistakes, errors, or bad or improperly applied policy seems overly broad and peremptory. We need to look carefully at how to assure the right to redress while fully protecting the government’s responsibility to keep its legitimate secrets secure."

He added that it "should be restored to its proper role as an evidentiary privilege, safeguarding particular pieces of evidence against disclosure. The privilege should not be used as an immunity doctrine, completely blocking challenges to government actions. Judges should independently examine the evidence asserted to be secret to determine whether the privilege applies, and should assess whether there is sufficient non-privileged evidence for the case to proceed. This would help to assure the executive branch is not left to police itself."

The ACLU's Murphy wrote in her prepared testimony that "the Bush administration began using the privilege to dismiss entire lawsuits at the onset -- and the Obama Administration has supported and continued that abuse of power."

There have been unsuccessful efforts to address abuse of the state secrets privilege by legislation in the 110th and 111th Congresses. The HJC approved HR 984 [LOC | WW], the "States Secret Protection Act", on December 5, 2009. However, the full House did not pass the bill. See also, story titled "House Constitution Subcommittee Approves States Secrets Protection Act" in TLJ Daily E-Mail Alert No. 1,954, June 12, 2009.

And see, S 417 [LOC | WW], which the Senate Judiciary Committee (SJC) did not pass, and in the 110th Congress, S 2533 [LOC | WW], which the SJC, but not the full Senate, passed.

Warrantless Wiretaps. Laura Murphy (ACLU) wrote that "our spy agencies have departed radically from their supposedly exclusive focus on overseas spying, and have turned their eyes and ears inward upon the American people."

She wrote that in December of 2005,  "the New York Times first reported that the NSA was tapping into telephone calls of Americans in violation of existing laws and the Constitution. Furthermore, the agency gained direct access to the telecommunications infrastructure through some of America's largest companies. Using that access, the agency appeared to be using broad data-mining techniques to evaluate the communications of millions of people within the United States."

The New York Times published a story by James Risen and Eric Lichtblau titled "Bush Lets U.S. Spy on Callers Without Courts". It stated that "President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials." See also, story titled "President Bush Discloses Interception of Communications Without Court Approval" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005, and story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005.

Murphy continued that "In May 2006, Americans learned that at least some of the major telecommunications companies granted the NSA direct, wholesale access to their customers' calling records -- once again, outside the law -- and that the NSA was compiling a giant database of those records."

The USA Today published an article by Leslie Cauley titled "NSA has massive database of Americans' phone calls". See, story titled "Bush Responds to USA Today Story Regarding NSA Database of Phone Calls" in TLJ Daily E-Mail Alert No. 1,369, May 12, 2006.

Murphy also said that "Congress worsened the situation in 2008 by passing the Foreign Intelligence Surveillance Act Amendments Act (FAA), which permits the government to get annual court orders that can capture all communications coming into or going of the United States -- even if an American citizen is on one end, and even if that person is not suspected of doing something wrong. The amount of private American communications that can be collected under this law is staggering, and this un-American and unconstitutional spying continues under President Obama. The ACLU has challenged the constitutionality of this law and our case is pending before the Second Circuit."

CALEA for the Internet. The ACLU's Murphy also discussed in her written testimony, and oral statement, a Communications Assistance for Law Enforcement Act (CALEA) like statute for the internet. She said that in the 112th Congress, there will be an Obama administration proposal "to change the very architecture of the Internet in order to make eavesdropping easier".

She elaborated that "the administration is expected to submit legislation to Congress early next year that would require all online services even those which operate by putting individuals in direct contact with each other to make it possible for the government to eavesdrop upon demand. This would require companies to completely restructure the way their services work. The proposed measure would mandate that all online communications services allow the government to collect private communications and decode encrypted messages that Americans send over texting platforms, BlackBerries, social networking sites and other ``peer to peer´´ communications software."

Murphy argued that "This is particularly problematic because many of the privacy protections that governed the government’s wiretapping powers when CALEA passed in 1994 no longer exist or have been significantly weakened. For example, Congress has granted the executive branch virtually unchecked power to conduct dragnet collection of Americans' international e-mails and telephone calls without a warrant or suspicion of any kind under the FISA Amendments Act of 2008."

Moreover, she wrote, "This proposal would interfere with technological innovation, create significant new cybersecurity vulnerabilities, reduce privacy and chill expression on the Internet, and pose dangers of government and third-party abuse. Under the guise of a mere technical fix, the executive branch seeks significant new power to reconfigure the Internet and conduct easy dragnet collection of Americans’ most private communications."

The other witnesses, who addressed non ICT related issues, were Jamil Jaffer (Kellogg Huber), Michael Lewis (Ohio Northern University law school), Jeremy Scahill (Democracy Now), Mary Ellen O'Connell (University of Notre Dame Law School), and Bruce Fein (Litchfield Group). See also, HJC web page with hyperlinks to the prepared testimony of all of the hearing witnesses.

12/9. Attorney General Eric Holder sent a letter to Sen. Patrick Leahy (D-VT) regarding extending expiring surveillance provisions of the FISA and Title II of the USA PATRIOT Act, Sen. Leahy's letter [4 pages in PDF] to Holder of March 17, 2010, and S 1692 [LOC | WW], the "USA PATRIOT ACT Sunshine Extension Act".

Holder tries to assure Sen. Leahy in his letter that in utilizing some of the more controversial surveillance tools of the FISA, such as Section 215 orders and NSLs, the DOJ now has standards, oversight and accountability in place to protect civil liberties.

This article first provides some historical background information that may be useful in understanding Holder's letter. It then summarizes Sen. Leahy's letter to Holder. Finally, it summarizes Holder's response.

Quick Review of History. The Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It is codified in Title 50. It pertains to surveillance of a "foreign power" and an "agent of a foreign power". The term "foreign power" is defined to include "a group engaged in international terrorism". The FISA gives the government broader powers to conduct surveillance of foreign powers and their agents, and under lower standards, than the government possesses under Title 18 when conducting surveillance of U.S. persons.

Terrorists attacked targets in the U.S. on September 11, 2001. The Congress quickly enacted the huge and multi-faceted USA PATRIOT Act, HR 3162 (107th Congress). Title II expanded the surveillance powers of the federal government under both Title 50 and 18, and blurred the lines between foreign and domestic surveillance. Due to the haste of passage, and concerns for civil liberties and privacy, the Congress added sunset provisions to many sections of Title II.

In 2004, the 108th Congress enacted S 2845, the "Intelligence Reform and Terrorism Prevention Act of 2004", Section 6001 of which amended the FISA to allow FISA surveillance of individuals; it two contains a sunset provision.

In 2006, the Congress enacted HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", which removed all but three of the sunsets, which it extended through December 31, 2009. The three provisions pertain to (1) roving wiretap orders, (2) FISA surveillance of individuals, and (3) easy access under FISA to business records, including library, phone, ISP and other business records.

(1) Section 206 of the 2001 Act amended Section 105(c)(2)(B) of the FISA, which is codified at 50 U.S.C. § 1805, to have the effect of allowing the court to authorize roving wiretaps.

(2) The FISA authority is restricted to surveillance and activities directed at foreign governments and terrorist organizations. The 2001 Act gave the government FISA authority with respect to certain individuals. This authority is sometimes referred to as "lone wolf".

(3) Section 215 of the 2001 Act rewrote Section 501 of the FISA, which is codified at 50 U.S.C. § 1861. This is the section of the FISA that provides for "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". The 2001 Act set a very low standard for issuance of these orders, which can be directed at phone companies, ISPs, and libraries in the US. This authority is sometimes referred by as "Section 215".

On September 22, 2009, Sen. Leahy introduced his bill, S 1692. The Senate Judiciary Committee (SJC) amended and approved this bill on October 8, 2009. AG Holder endorsed it. However, the Senate did not pass it.

Rather, the Congress, after short term extensions, enacted HR 3961 [LOC | WW] in late February of 2010. That bill merely extended sunset dates from February 28, 2010, to February 28, 2011. See, story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010.

Sen. Leahy's bill, S 1692, in contrast, is a large bill, that would have extended the three sunsets through 2013, added a 2013 sunset to National Security Letter (NSL) authority, and also created new oversight and judicial review processes to protect civil liberties and privacy.

Sen. Leahy's Letter to AG Holder. President Obama signed HR 3961 into law on February 27, 2010. Sen. Leahy sent his letter to Holder on March 17. Basically, he asked that the Department of Justice (DOJ) adhere to some of the provisions of the unpassed bill, even in the absence of a statutory mandate.

He wrote that "A number of the improvements that were included in the bill should not require statutory changes". He began by citing the writing of reports.

He also wrote that the government has "significantly misused" its NSL authority. He argued that "It is important that there be increased accountability for this authority. I urge you to proceed without delay to implement the accountability measures that were in our bill with respect to NSLs. Some improvements can be achieved through the issuance of internal policies, procedures, and guidance."

With regard to Section 215 orders for access to business records under the FISA, he wrote, "please explain the policy guidance you will issue in order to realize the changes to section 215 orders that you supported in the bill". Also, "I urge you to issue guidance that requires the FBI to present the FISC with a complete statement of facts sufficient to show relevance of the section 215 order to an authorized investigation."

S 1692 would have required court approved minimization procedures for both Section 215 orders and pen register and trap and trace (PRTT) devices. PRTT device orders apply in the context of both telephone numbers to which or from which calls are made, and e-mail addressing information.

Hence, Sen. Leahy also asked, "Please explain how you will institute appropriate guidelines that are consistent with the intent of the bill in this regard, and whether you will seek the approval of the FISC prior to implementing the provisions."

FISC is the Foreign Intelligence Surveillance Court, the body authorized under 50 U.S.C. § 1803 to issue FISA orders.

Holder's Response. Holder reminded Sen. Leahy that three surveillance provisions sunset on February 28, 2011, and added "I strongly urge that Congress again take action to ensure that these provisions remain in force."

Last month, Rep. Pete Hoekstra (R-MI) introduced HR 6429 [LOC | WW], a bill that would simply extend the three sunsets for one more year. See, story titled "Rep. Hoekstra Introduces Bill to Extend Sunset Date for Three FISA Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,160, November 19, 2010.

Holder (at right) also wrote that "Assuming these authorities are reauthorized, the Department has determined that many of the privacy and civil liberties  provisions of S. 1692 can be implemented without legislation. Indeed, in a number of instances, we have already taken steps to do so. I am confident that these measures will enhance standards, oversight and accountability ..."

With respect to NSLs, he wrote that now, "all NSLs are required to include a notice that informs recipients of the opportunity to contest the nondisclosure requirement through the government initiated judicial review." (What Holder terms a "non-disclosure requirement" is called a "gag order" by some others.)

He continued that "in any case in which a recipient challenges a nondisclosure order, the recipient is notified when compliance with the order is no longer required."

He disclosed that "there have been only four challenges to the non-disclosure requirement, and in two of the challenges, the FBI permitted the recipient to disclose the fact that an NSL was received."

Holder also wrote that he has approved new procedures for NSLs, and the "FBI's current practice is consistent with the procedures".

Regarding public reporting on the use of NSLs, Holder said that the FBI will continue to merely release "the aggregate numbers of NSLs on an annual basis".

NSLs, which do not require a warrant or other prior court authorization, enable the DOJ's FBI to obtain records, including subscriber, billing and call records of phone companies and ISPs. NSLs also apply to libraries to the extent that they are providing an electronic communication service.

The FBI has a history of serious and serial violation of NSL and other authority. See:

• January 20, 2010, DOJ Inspector General (IG) report [PDF], and story titled "Another DOJ Inspector General Report Finds FBI Misconduct in Obtaining Phone Records" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.
• March 13, 2008, DOJ/IG report [PDF] titled "A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006", and story titled "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008.
• March 9, 2007, DOJ/IG report [PDF] titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters", and story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007.

With respect to Section 215 orders, Holder wrote that it is current FBI practice to present the FISC "with a complete statement of facts sufficient to show relevance of the tangible things requested to an authorized investigation". In the case of Section 215 orders for bookseller or library records that contain personally identifiable information, "we are prepared to require a statement of specific and articulable facts as would be required under S. 1692".

Regarding minimization procedures for Section 215 and PRTT orders, he wrote that "Minimization procedures are already required by statute in relation to section 215 orders. The proposal to extend this requirement to PR/TT orders is intended to apply only to certain intelligence collection activities. Procedures governing these operations are currently in effect ..."

As for providing "an annual unclassified report on the use of FISA authorities", Holder wrote that "there may be little information that can be provided in an unclassified format". Hence, he committed only to "work with the committee".

12/2. The U.S. Court of Appeals (7thCir) issued a short order that amends its September 9, 2010, opinion [13 pages in PDF] in USA v. David Szymuskiewicz, a case regarding application of the Wiretap Act to the use of software for the unauthorized forwarding of e-mail messages.

The Court of Appeals' September opinion affirmed the judgment of the District Court, which convicted and sentenced the defendant for violation of the Wiretap Act (18 U.S.C. § 2511). The December order removes a huge chunk of the reasoning from the original opinion, but otherwise leaves the holding intact. The unauthorized use of Microsoft Outlook to forward someone else's e-mail can constitute a violation of the Wiretap Act.

The Court of Appeals wrote that the defendant, who worked for the IRS, used the office computer of his supervisor, without authorization, to set up a rule in Microsoft Outlook that automatically forwarded the supervisor's e-mail to his e-mail account. The forwarding lasted for three years. A grand jury returned an indictment that charged Szymuskiewicz with violation of the Wiretap Act. A trial jury returned a verdict of guilty.

The Court of Appeals affirmed.

18 U.S.C. § 2511(1) provides, in part, that "any person who (a) 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

The defendant argued on appeal that he should have been charged under the Stored Communications Act (SCA), 18 U.S.C. §§ 2701-12, rather than the Wiretap Act.

The Court of Appeals wrote that the software used caused the e-mail to be forwarded by an e-mail server, rather than by the supervisor's client. It concluded that copying and forwarding of e-mail at the server is interception.

But, it continued that "it does not matter which computer did the copying. To see why, we need to take a brief foray into the world of packet switching, the method by which nearly all electronic communications between computers are now sent. When the Wiretap Act was enacted in 1968, the normal communications pathway was circuit switching: the telephone company's machinery (initially switchboards, then mechanical solenoids, and finally computers) would establish a single electronic pathway, or circuit, between one telephone and another. Computers can communicate over dedicated circuits, but usually they break each message into packets, which can be routed over a network without the need to dedicate a whole circuit to a single message." (Parentheses in original.)

The Court of Appeals, citing Wikipedia, continued with its explanation of internet protocol (IP) based packet switching. The Court's key point was that the e-mail in question was broken down into packets.

The defendant's "understanding of ``interception´´ as ``catching a thing in flight´´ is sensible enough for football, but for email there is no single ``thing´´ that flies straight from sender to recipient. When sender and recipient are connected by a single circuit, and the spy puts a ``tap´´ in between, the football analogy makes some sense (though the tap does not prevent the recipient from getting the message; the spy gets a copy, just as Szymuszkiewicz did). For email, however, there are no dedicated circuits. There are only packets, segments of a message that take different routes at different times."  (Parentheses in original.)

The Court discussed and relied upon the 2005 en banc opinion of the U.S. Court of Appeals (1stCir) in US v. Bradford Councilman, 418 F.3d 67.

The three judge panel of the First Circuit issued its split opinion on June 29, 2004. The Court held that there was no violation of the Wiretap Act, as amended by the ECPA, when stored e-mail was accessed, because, since it was in storage, there was no interception within the meaning of the statute. See, story titled "1st Circuit Holds Wiretap Act Does Not Apply to E-Mail in Storage" in TLJ Daily E-Mail Alert No. 930, July 1, 2004. On August 11, 2005, the en banc panel issued its opinion. See, story titled "1st Circuit Issues En Banc Opinion in Councilman Case" in TLJ Daily E-Mail Alert No. 1,194, August 12, 2005. It held that the Wiretap Act does apply to e-mail in transient storage.

The 7th Circuit continued that "The difference between circuit-switch and packet-switch transmission methods thus is irrelevant under §2510. We agree with Councilman's conclusion on that subject (as well as its conclusion that the Stored Communications Act does not repeal any part of the Wiretap Act by implication; each statute is fully enforceable according to its own terms)."  (Parentheses in original.)

"Several circuits have said that, to violate §2511, an interception must be “contemporaneous´´ with the communication." But, the Court wrote, contemporaneous "differs from ``in the middle´´ or any football metaphor. Either the server in Kansas City or Infusino's computer made copies of the messages for Szymuszkiewicz within a second of each message's arrival and assembly; if both Szymuszkiewicz and Infusino were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between. That's contemporaneous by any standard."

The Court of Appeals opinion then elaborated on the meaning of "contemporaneous". However, that portion of the original opinion was deleted by the order of December 2. The original opinion also went on to discuss the SCA. That portion too was deleted by the December 2 order.

The December 2 order provides that "The opinion of this court issued on September 9, 2010, is amended as follows:
   Page 8, delete the entire paragraph beginning on the bottom of this page starting with, ``In saying that ...´´
   Page 9, delete the entire paragraph beginning on the bottom of this page starting with, ``The Stored Communication Act ...´´"

This case is USA v. David Szymuskiewicz, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 10-1347, an appeal from the U.S. District Court for the Eastern District of Wisconsin, D.C. No. 07-CR-171, Judge Lynn Adelman presiding. Judge Easterbrook wrote the opinion of the Court of Appeals, in which Judges Posner and Kanne joined.

The House will meet at 10:00 AM in pro forma session only. See, Rep. Hoyer's notice.

The Senate will meet at 2:30 PM. The Senate will resume consideration of HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions.

8:30 AM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72792-72793. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:00 AM. 9:30 AM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. See, original notice in the Federal Register, November 30, 2010, Vol. 75, No. 229, at Pages 74050-74051, and supplemental notice in the Federal Register, December 8, 2010, Vol. 75, No. 235, at Pages 76465-76466. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

9:30 AM. Rep. Steny Hoyer (D-MD), the House Democratic Leader, will give a speech. Location: National Press Club,13th Floor, 529 14th St. NW.

11:00 AM - 2:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet by teleconference. The call in number is 1-888-769-8761; the passcode is 2684385. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Page 72792. The agenda includes discussion of a report of the SMAC's Incentives Subcommittee, including spectrum fees, strengthening OMB Circular A11, and the Spectrum Innovation Fund.

TIME? Michael Punke (Deputy USTR and representative to the WTO) and other officials of the Office of the U.S. Trade Representative (OUSTR) officials will hold a closed meeting with officials of the People's Republic of China to discuss the Doha Development Agenda. See, OUSTR calendar.

Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division regarding the proposed final judgment in USA v. American Express, et al., D.C. No. CV-10-4496. The DOJ initiated an action against American Express, MasterCard and Visa alleging violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, in connection with their alleged anticompetitive conduct at the point of sale. The settlement, which covers only MasterCard and Visa, requires public notice and comment, and approval by the District Court. The DOJ's notice in the Federal Register states that comments are due within 60 days of publication of its notice in the Federal Register. However, it does not fix an actual date. See, Federal Register, October 13, 2010, Vol. 75, No. 197, at Pages 62858-62874. See also, story titled "DOJ and States Bring Antitrust Action Against Credit Card Companies" in TLJ Daily E-Mail Alert No. 2,139, October 5, 2010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [25 pages in PDF] regarding commercial radio operator licenses for maritime and aviation radio stations who perform certain functions performed within the commercial radio operators service. The FCC adopted this item on August 31, 2010, and released the text on September 8, 2010. It is FCC 10-154 in WT Docket No. 10-177. See, notice in the Federal Register, October 29, 2010, Vol. 75, No. 209, at Pages 66709-66715.

Deadline for Federal Communications Commission (FCC) Commissioner Michael Copps to respond to Rep. Joe Barton's (R-TX) interrogatories regarding his proposal that broadcasters be subjected to a public value test (PVT). See, story titled "Copps Wants to Impose Public Value Test on Broadcasters" in TLJ Daily E-Mail Alert No. 2,168, December 4, 2010. See also, Rep. Barton's letter and story titled "Barton Questions Copps Regarding Public Value Test" in TLJ Daily E-Mail Alert No. 2,171, December 7, 2010.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:00 PM. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

RESCHEDULED FOR FEBRUARY 8. 8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Meet The Chinese Embassy IP Attache". The speakers will be Fuli Chen (Intellectual Property Rights Attache for the Chinese Embassy to the US), Steven Adkins (Orrick), Drew Clark, and others. Breakfast will be served. This event is free and open to the public. See, notice and registration page. This event is also sponsored by the National Cable & Telecommunications Association (NCTA) and the Public Knowledge (PK). Location: Clyde's of Gallery Place, 707 7th St., NW.

8:30 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee. See, notice in the Federal Register, November 26, 2010, Vol. 75, No. 227, at Pages 72792-72793. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "Generation Mobile Forum". The speakers will include FCC Chairman Julius Genachowski. The topics to be discussed include cyber bullying. Location: McKinley Technology High School, Auditorium, 151 T St., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Committee will host a brown bag lunch titled "Views from the Fourth Estate". The speakers will be Amy Schatz (Wall Street Journal), Cecilia Kang (Washington Post), Kim Hart (Politico), and Dennis Wharton (NAB). The FCBA bars reporters from some of its events. Location: Wiley Rein, 1776 K St., NW.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation by Wallace Mullin (George Washington University Department of Economics). He will present a paper [PDF] titled "Diversity, Social Goods Provision, and Performance in the Firm". For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M St., NW.

5:00 PM. Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking (NPRM) regarding practice before the Board of Patent Appeals and Interferences (BPAI) in ex parte patent appeals. See, notice in the Federal Register, November 15, 2010, Vol. 75, No. 219, at Pages 69827-69849.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Intellectual Property Law 2010: Year in Review Series:Copyright and Trademark Update". The speakers will be Brian Banner (H&A Intellectual Property Law) and Terence Ross (Crowell & Moring). The price to attend ranges from $89 to $129. For more information, contact 202-626-3488. See, notice. CLE credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

TIME? U.S. Trade Representative Ron Kirk, Secretary of Commerce Gary Locke, and others will participate in a closed meeting of the U.S.-China Joint Commission on Commerce and Trade (JCCT). See, OUSTR calendar.

The House will meet at 10:00 AM for legislative business. The schedule includes consideration of S 30 [LOC | WW], the "Truth in Caller ID Act of 2009", and S 3386 [LOC | WW], the "Restore Online Shoppers' Confidence Act". The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

9:30 AM. The Common Cause will host a news conference regarding Senate filibuster reform. For more information, contact Mary Boyle at 202-736-5770 or mboyle at commoncause dot org. Location: National Press Club.

RESCHEDULED FOR DECEMBER 21. 10:30 AM. The Federal Communications Commission (FCC) may hold an event titled "open meeting". The agenda may include adoption of a network neutrality order. Location: FCC, Commission Meeting Room, 445 12th St., SW.

6:00 - 8:15 PM. The DC Bar Association will host an event titled "Intellectual Property Law 2010: Year in Review Series: Patent Update". The speakers will be Eric Wright (Stites & Harbison) and Bradley Wright (Banner & Witcoff). The price to attend ranges from $89 to $129. For more information, contact 202-626-3488. See, notice. CLE credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline to submit applications to participate in the Federal Communications Commission's (FCC) Auction 90, regarding certain VHF construction permits. See, FCC September 8, 2010, Public Notice (DA 10-1351 in AU Docket No. 10-147) and notice in the Federal Register, September 23, 2010, Vol. 75, No. 184, at Pages 57947-57952. See also, November 1, 2010, Public Notice (DA 10-2008 in in AU Docket No. 10-147). And see, notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Page 74719-74731.

The House will meet at 10:00 AM for legislative business. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

8:00 AM - 2:00 PM. The Atlantic and Government Executive will host an event titled "Cyber Security Forum". See, notice. Location: National Press Club,13th Floor, 529 14th St. NW.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 30, 2010, Vol. 75, No. 229, at Pages 74051-74052. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th St., SW.

9:30 AM. The House Judiciary Committee (HJC) will hold a hearing titled "Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks". See, notice. The HJC will webcast this event. Location: Room 2141, Rayburn Building.

9:30 AM - 4:00 PM. The Department of Justice's (DOJ) Civil Right Division (CRD) will hold a hearing regarding its four notice of proposed rulemakings (NPRMs) that propose to expand the scope of the Americans with Disabilities Act (ADA) to regulate certain communications and information technologies. See, story titled "DOJ/CRD Releases Advance NPRMs Proposing Expansion of ADA" in TLJ Daily E-Mail Alert No. 2,111, July 26, 2010. Location: U.S. Access Board, 1331 F St., NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) will host a lunch. The speaker will be Erwin Chemerinsky. The topic will be "Approaches to First Amendment regulations with the distinctions between traditional mediums disappearing with a lot of discussion of the Fox indecency case". The price to attend ranges from $25 to $40. See, registration form. Registrations and cancellations are due by 12:00 NOON on December 14. Location: Hogan Lovells, 555 13th St., NW.

5:30 - 7:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will host an event titled "Holiday Happy Hour Mentoring Opportunity for Young Lawyers. The speakers will include James Barnett (Chief of the FCC's Public Safety and Homeland Security Bureau). For more information, contact Jeff Cohen at jeff dot cohen at mail dot house.gov or Mark Brennan at mark dot brennan at hoganlovells dot com. Location: Mandarin Hotel, Empress Lounge, 1330 Maryland Ave., SW.

TIME? U.S. Trade Representative Ron Kirk and European Commissioner for Trade Karel DeGucht will hold a closed meeting. See, OUSTR calendar.

TIME? Miriam Sapiro (Deputy USTR) will hold a closed meeting with the member companies of the Information Technology Industry Council (ITIC). See, OUSTR calendar.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [58 pages in PDF] regarding universal service subsidies and certain 3G and next generation wireless services. The FCC adopted and released this item on October 14, 2010. It is FCC 10-182 in WT Docket No. 10-208. See, notice in the Federal Register, November 1, 2010, Vol. 75, No. 210, at Pages 67060-67077. See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the FCC's universal service program to subsidize certain 3G and next generation wireless services. The FCC calls this its "Mobility Fund". The FCC adopted and released this item on October 14, 2010. It is FCC 10-182 in WT Docket No. 10-208. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, Page 69374-69395. See also, story titled "FCC Adopts NPRM Regarding Universal Service Subsidies for 3G and Next Generation Wireless" in TLJ Daily E-Mail Alert No. 2,142, October 19, 2010.

The House may meet at 9:00 AM for legislative business. The schedule for the week also includes HR 4853 [LOC | WW], the vehicle for extending certain expiring tax provisions. See, Rep. Hoyer's notice.

10:00 AM. Deadline for foreign governments to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding its Special 301 out of cycle review of the Philippines and Thailand. These reviews pertain to identifying countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, November 12, 2010, Vol. 75, No. 218, at Pages 69519-69520.

12:00 NOON. Deadline to submit initial comments to the Office of the U.S. Trade Representative (OUSTR) regarding its review of the operation, effectiveness, and implementation of and compliance with various telecommunications agreements, including the World Trade Organization (WTO) General Agreement on Trade in Services. See, notice in the Federal Register, November 18, 2010, Vol. 75, No. 222, at Pages 70770-70771.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding the appropriate date for the termination of analog operations in the low power television and Class A television services. The FCC adopted and released this item on September 17, 2010. This item is FCC 10-172 in MB Docket No. 03-185. See, notice in the Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63766-63773.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding assignment of telephone numbers associated with internet based Telecommunications Relay Service (iTRS), Video Relay Service (VRS) and IP Relay. The FCC adopted this item on September 16, 2010, and released the text on September 17. It is FCC 10-161 in CG Docket No. 03-123, WC Docket No. 05-196, and WC Docket No. 10-191. See, notice in the Federal Register, November 2, 2010, Vol. 75, No. 211, at Pages 67333-67341.

EXTENDED TO JANUARY 31. Deadline to submit initial comments to the Library of Congress's (LOC) Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding federal coverage of sound recordings fixed before February 15, 1972. See, notice in the Federal Register, November 3, 2010, Vol. 75, No. 212, at Pages 67777-67781. This proceeding is LOC Docket No. 2010-4. See also, story titled "Library of Congress Issues NOI on Extending Copyright Act to Pre 1972 Sound Recordings" in TLJ Daily E-Mail Alert No. 2,150, November 8, 2010. See also, extension notice in the Federal Register, December 1, 2010, Vol. 75, No. 230, at Pages 74749-74750.

12/10. The Interactive Advertising Bureau (IAB) promoted Mike Zaneis to SVP and General Counsel. He had been VP for Public Policy. The IAB stated in a release that "Zaneis will continue to lead the IAB's public policy office and guide the strategy of the self-regulatory privacy program. Additionally, he will oversee outside counsel and coordinate all IAB legal resources in industry relations, public policy and other critical initiatives. The IAB also named Patrick Dolan EVP and COO; he was previously EVP and Chief Administrative Officer. The IAB also named David Doty SVP and Chief Marketing Officer; he was previously SVP for Marketing & Thought Leadership.

12/9. Bruce Fein told Rep. John Conyers (D-MI), the Chairman of the House Judiciary Committee (HJC), during a HJC hearing on December 9, 2010, that because of Republican and Democratic administrations' refusals to comply with Congressional subpoenas, "you know more about the U.S. from reading WikiLeaks than you get from classified briefings".

12/6. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft SP 800-51 Rev. 1 [13 pages in PDF], titled "Guide to Using Vulnerability Naming Schemes". January 3, 2011 is the deadline to submit comments.

12/6. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7694 [24 pages in PDF], titled "Specification for the Asset Reporting Format 1.1". January 3, 2011 is the deadline to submit comments.

12/6. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft NIST IR-7693 [32 pages in PDF], titled "Specification for Asset Identification 1.1". January 3, 2011 is the deadline to submit comments.

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