3/10. The Senate Judiciary Committee (SJC) amended and approved S 193 [LOC | WW], the "USA PATRIOT Act Sunset Extension Act of 2011". The vote on approval was 10-7.

Last month, the Congress passed, and President Obama signed, HR 514 [LOC | WW], the "FISA Sunsets Extension Act of 2011". That brief bill simply extended statutory sunsets for lone terrorist, business records, and roving wiretap authority to May 27, 2011. For explanations of these three provisions, see story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, introduced S 193 on January 26, 2011. It addresses these three statutory sunsets in Section 2. However, it is a lengthy bill that also addresses related issues. It is similar to a bill in the 111th Congress, S 1692 [LOC | WW], also titled the "USA PATRIOT ACT Sunshine Extension Act", which the SJC approved on October 8, 2009.

The Department of Justice (DOJ) implemented some of the provisions in S 1692 administratively. See, story titled "Holder Writes Sen. Leahy Regarding Surveillance" in TLJ Daily E-Mail Alert No. 2,177, December 13, 2010. S 193 would have the effect of codifying and making permanent some of these administrative actions.

S 193 would also make changes to existing statutory law. For example, it would create a sunset for national security letter (NSL) authority. The DOJ's Federal Bureau of Investigation (FBI) has a history of abusing NSL authority. See, stories 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; "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; and "Another DOJ Inspector General Report Finds FBI Misconduct in Obtaining Phone Records" in TLJ Daily E-Mail Alert No. 2,037, January 20, 2010.

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, advocated simply extending the three expiring authorities, without further provisions.

Sen. Jon Kyl (R-AZ) said that Sen. Harry Reid (D-NV), the Senate Majority Leader, has agreed to give at least a week of floor time to this bill. Sen. Kyl (at right) also said that amendments will be offered to provide "additional law enforcement authorities".

That is, while the bill currently restricts governmental authority, if it comes to the Senate floor, there will be amendments that would "grant new authorities".

Library and Bookseller Records. The SJC approved an amendment [2 pages in PDF] offered by Sen. Leahy by a vote of 11-7 that pertains to Section 215 business records. It was a straight party line vote.

Section 215 of the 2001 USA PATRIOT Act rewrote Section 501 of the Foreign Intelligence Surveillance Act (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".

This 215/501/1861 authority enables the FBI to obtain from a judge or magistrate an order requiring the production business records. While the statute does not expressly include library or bookseller records, it is not disputed that they are covered.

This section further provides that if the government submits an application to the court that states that there are "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation", then the "judge shall enter an ex parte order as requested". This is a very low standard, and the judge is left with no discretion.

The bill as introduced provides that if the government seeks library records, the government must make a greater showing. The just approved amendment expands this language to also include bookseller records. As amended, it reads, "if the records sought contain bookseller records, or are from a library and contain personally identifiable information about a patron of the library ..."

The just approved amendment further provides that "bookseller records" means "transactional records reflecting the purchase (including subscription purchase) or rental of books, journals, or magazines, whether in digital form or in print, of an individual or entity engaged in the sale or rental of books, journals, or magazines". (Parentheses in original.)

Sen. Grassley argued that this amendment "could hinder investigations". He stated that terrorists could increase the workload of investigators "simply by buying a book".

Sen. Orrin Hatch (R-UT), who also opposed the amendment, noted that one can buy online from Amazon the book titled "The Anarchists Cookbook", and other "how to guides for would be jihadists".

Sen. Kyl argued in opposition to the amendment that Section 215 orders merely enable the FBI to conduct preliminary investigation, and to "connect the dots".

Roving Wiretaps. The SJC also approved an amendment [PDF] offered by Sen. Richard Durbin (D-IL) and Sen. Mike Lee (R-UT) by a vote of 11-6 that pertains to FISA orders for electronic surveillance. Sen. Durbin said that this amendment would require the government to describe with particularity the target of a roving wiretap.

Section 206 of the 2001 USA PATRIOT 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.

This roving wiretap authority means that law enforcement officials do not have to file multiple applications when a terrorist disposes of phone after phone or shifts from one communication device to another. It also means that the government does not have to identify an individual who is a target of surveillance.

Section 1805(c)(1)(A) currently provides that "An order approving an electronic surveillance under this section shall specify ... the identity, if known, or a description of the specific target of the electronic surveillance ..." The amendment would add the words "with particularity" after the word "description".

Other Amendments. The SJC also approved an amendment [1 page in PDF] offered by Sen. Leahy by unanimous consent that adjusts the extensions to reflect the temporary three month extension adopted in February.

The SJC also approved a technical amendment [1 page in PDF] offered by Sen. Sheldon Whitehouse (D-RI) by voice vote regarding NSL gag orders.

The SJC also approved an amendment [2 pages in PDF] offered by Sen. Charles Grassley (R-IA) that provides the death penalty for five enumerated terrorist crimes. Sen. Leahy argued that this is a surveillance bill, not a criminal penalties bill. However, a motion to table it failed, and it was then approved by voice vote.

The SJC tabled an amendment [PDF] offered by Sen. John Cornyn (R-TX) by a vote of 10-8 that would have amended immigration law to provide that an administrative terrorism determination is a bar to good moral behavior.

The SJC began its mark up of this bill on February 17. At that time it approved an amendment [2 pages in PDF] offered by Sen. Leahy, and another amendment [2 pages in PDF] offered by Sen. Dianne Feinstein (D-CA).

3/8. The Copyright Office (CO) published two notices in the Federal Register that announce a Notice of Inquiry (NOI) that requests comments to assist it in preparing a report to the Congress regarding possible mechanisms, methods, and recommendations for phasing out the statutory licensing requirements set forth in 17 U.S.C. §§ 111, 119, and 122.

The 111th Congress directed the CO to prepare this report in Section 302 of S 3333 [LOC | WW], the "Satellite Television Extension and Localism Act of 2010", or "STELA", which is now Public Law No. 111-175.

Section 302 requires the CO to submit to the Congress within 18 months of enactment a report containing "proposed mechanisms, methods, and recommendations on how to implement a phase-out of the statutory licensing requirements set forth in sections 111, 119, and 122 of title 17, United States Code, by making such sections inapplicable to the secondary transmission of a performance or display of a work embodied in a primary transmission of a broadcast station that is authorized to license the same secondary transmission directly with respect to all of the performances and displays embodied in such primary transmission".

The statute also requires that the report include "any recommendations for alternative means to implement a timely and effective phase-out of the statutory licensing requirements" of these sections, and "any recommendations for legislative or administrative actions as may be appropriate to achieve such a phase-out".

Initial comments are due by April 18, 2011. Reply comments are due by May 18, 2011. President Obama signed the STELA on May 27, 2010. Hence, the report is due by November 27, 2011.

See, original notice in the Federal Register, March 3, 2011, Vol. 76, No. 42, at Pages 11816-11821, and correction notice in the Federal Register, March 8, 2011, Vol. 76, No. 45, at Pages 12760-12761.

3/8. Business Software Alliance (BSA), Center for Democracy and Technology (CDT), Internet Security Alliance (ISA), TechAmerica, and U.S. Chamber of Commerce released a paper [26 pages in PDF] titled "Improving our Nation’s Cybersecurity through the Public-Private Partnership".

It finds that "The current critical infrastructure protection partnership is sound".

This paper states that "the complexity and interconnected nature of the Internet, and the ever-evolving and sophisticated threat environment, put cybersecurity beyond the reach of any single entity: to secure our critical infrastructure, companies must work together, government must coordinate its efforts, and industry and government must collaborate".

It argues that "Government and industry must develop a menu of market incentives to motivate companies to voluntarily upgrade their cybersecurity. The incentives must be powerful enough to affect behavior without being so burdensome as to curtail U.S. investment, innovation, and job creation".

3/10. The Senate Judiciary Committee (SJC) approved Caitlin Halligan to be a Judge of the U.S. Court of Appeals (DCCir) on a straight party line vote of 10-8. Democrats voted yes. Republicans voted no.

She has served as General Counsel for the New York County District Attorney's Office. Previously, she worked at the law firm of Weil Gotshal & Manges for several years. Before that, she was Solicitor General of New York State. Before that, she held several positions in the Office of the New York State Attorney General, including Chief of the Internet Bureau. She was also briefly worked for the Washington DC law firm of Wiley Rein.

See, story titled "Obama Nominates Caitlin Halligan for DC Circuit" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

Sen. Charles Grassley (R-IA) stated that the seat for which she has been nominated has a history. Former President Bush nominated Peter Keisler for this seat in 2006. Senate Democrats successfully delayed consideration of Keisler until the end of the Bush administration.

Sen. Grassley (at right) stated that Keisler "waited 918 days for a committee vote that never came". He stated on July 17, 2008, with reference to Keisler and others, that "The Democrats have employed a lot of fancy footwork to dance around their constitutional responsibility to give fair consideration of President Bush's judicial nominees. They are doing nothing more than burning down the clock, having dreamt up every stalling tactic in the book to prevent qualified Americans from serving on the federal bench."

Sen. Grassley reviewed her record, and the information she provided to the SJC, and concluded that she "has not been forthcoming", and that she is a liberal political activist, particularly with respect to the 2nd Amendment.

He said that she has "an activist view of the legal system", and that "the record is clear and well documented that Ms. Halligan has a record of advocating extreme liberal positions on Constitutional issues"

He also stated that he hopes that this nomination does not reach the Senate floor. He added that some Democrats do not want to vote on this nomination.

Keisler served as Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Division, and briefly as acting Attorney General, during the Bush administration.

Sen. Patrick Leahy (D-VT) defended Halligan as "superbly qualified".

The House will meet at 9:00 AM for legislative business.

The Senate will not meet.

8:30 AM - 5:30 PM. Day two of a two day workshop of the National Nanotechnology Coordination Office (NNCO). See, notice in the Federal Register, February 15, 2011, Vol. 76, No. 31, at Page 8788. Location: American Association for the Advancement of Science, 1200 New York Ave., NW.

9:30 AM. The President's Export Council (PEC) will meet. The PEC will webcast this event. See, notice in the Federal Register, February 18, 2011, Vol. 76, No. 34, at Page 9550. Location?

10:00 AM. The House Oversight and Government Reform Committee's (HOGRC) Subcommittee on Technology will hold a hearing titled "Transparency Through Technology: Evaluating Federal Open-Government Initiatives". See, notice. Location: Room 2154, Rayburn Building.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7670 [17 pages in PDF] titled "Proposed Open Specifications for an Enterprise Remediation Automation Framework".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7756 [54 pages in PDF] titled "CAESARS Framework Extension: An Enterprise Continuous Monitoring Technical Reference Architecture".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-147 [25 pages in PDF] titled "Basic Input/Output System (BIOS) Protection Guidelines".

The Senate will meet at 2:00 PM. It will begin consideration of the nomination of James Boasberg to be a Judge of the U.S. District Court (DC).

9:00 AM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council will meet. See, notice in the Federal Register, February 24, 2011, Vol. 76, No. 37, at Page 10362. Location: FCC, Room TW-C305, 445 12th St., SW.

Deadline to submit to the Copyright Royalty Judges a Petition to Participate in its proceeding to determine the Phase II distribution of 2000, 2001, 2002, and 2003 royalties collected under the cable statutory license, and the accompanying $150 filing fee. See, notice in the Federal Register, February 10, 2011, Vol. 76, No. 28, at Pages 7590-7591.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will meet. See, notice in the Federal Register, February 22, 2011, Vol. 76, No. 35, at Pages 9744-9745. Location: DOC, Room 4830, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM. The Federal Communications Commission's (FCC) Emergency Response Interoperability Center Public Safety Advisory Committee will meet. See, notice in the Federal Register: February 28, 2011, Vol. 76, No. 39, at Page 10898. See also, FCC's ERIC web page. Location: FCC, Commission Meeting Room.

1:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Commercial, and Administrative Law will hold a hearing titled "Wireless Tax Fairness Act of 2011". See, notice. Location: Room 2141, Rayburn Building.

9:30 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The National Purposes in the National Broadband Plan: One Year Later". The speakers will be Blair Levin, Jennifer Manner (FCC), Steve Midgley, Nick Sinai, Phoebe Yang, Elana Berkowitz, Mohit Kaushal, and Robert Atkinson (ITIF). See, notice. Location: Jenner & Block, Suite 900, 1099 New York Ave., NW.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies will hold a hearing titled "Examining the Cyber Threat to Critical Infrastructure and the American Economy". See, notice. Location: Room 311, Cannon Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "The State of Consumer Online Privacy". See, notice. Location: Room 253, Russell Building.

1:00 AM. The House Judiciary Committee (HJC) will hold an oversight hearing on the Federal Bureau of Investigation (FBI). See, notice. Location: Room 2141, Rayburn Building.

1:00 PM. The House Small Business Committee (HSBC) will hold a hearing titled "Spurring Innovation and Job Creation: The SBIR Program". See, notice. Location: Room 2360, Rayburn Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "16th Copyright Office Speaks Luncheon with Hon Maria Pallante -- Register of Copyrights". This event is closed to reporters. See, notice. The price to attend ranges from $55 to $65. Location: City Club of Washington at Franklin, 1300 I St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Edward Chen to be a Judge of the U.S. District Court (NDCal) and James Cole to be Deputy Attorney General. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:45 PM. The DC Bar Association will host an event titled "Estate Planning with Digital Assets and Tech Savvy Clients". The speakers will be Anne W Coventry (Pasternak & Fidis) and Karin Prangley (Krasnow Saunders Cornblath). See, notice. The price to attend ranges from free to $35. For more information, call 202-626-3463 Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding how it might use the Patent and Trademark Depository Libraries (PTDLs) more effectively. See, notice in the Federal Register, February 8, 2011, Vol. 76, No. 26, at Pages 6764-6765.

Supreme Court conference day (discussion of argued cases, and decision on cert petitions). Closed.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [46 pages in PDF] regarding TV band rules and incentive auctions. The FCC adopted and released this item on November 30, 2010. It is FCC 10-196 in ET Docket No. 10-235. See, notice in the Federal Register, February 1, 2011, Vol. 76, No. 21, at Pages 5521-5537. See also, story titled "FCC Adopts NPRM on TV Band Rules" in TLJ Daily E-Mail Alert No. 2,168, December 4, 2010.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its CORES Registration System. The FCC adopted this NPRM on November 19, 2010, and released the text on December 7, 2010. It is FCC 10-192 in MD Docket No. 10-234. See, Federal Register, February 1, 2011, Vol. 76, No. 21, at Pages 5651-5677.

3/10. The Senate confirmed Max Cogburn to be a Judge of the U.S. District Court (WDNC) by a vote of 96-0. See, Roll Call No. 38.

3/10. The Senate Judiciary Committee (SJC) approved Jimmie Reyna to be a Judge of the U.S. Court of Appeals (FedCir) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved John Kronstadt to be a Judge of the U.S. District Court (CDCal) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved Vincent Briccetti to be a Judge of the U.S. District Court (SDNY) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved Arenda Allen to be a Judge of the U.S. District Court (EDVa) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved Michael Urbanski to be a Judge of the U.S. District Court (WDVa) by voice vote.

3/10. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration Edward Chen to be a Judge of the U.S. District Court (NDCal). His nomination is on the agenda for the SJC's March 17 meeting.

3/7. The Senate confirmed Anthony Battaglia to be a Judge of the U.S. District Court (SDCal) by a vote of 89-0. See, Roll Call No. 33. See also, statement by Sen. Patrick Leahy (D-VT).

3/7. The Senate confirmed James Shadid to be a Judge of the U.S. District Court (CDIll) by a vote of 89-0. See, Roll Call No. 32.

3/7. The Senate confirmed Sue Myerscough to be a Judge of the U.S. District Court (CDIll). See, Congressional Record, March 7, 2011, at Page 1333.

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