7/12. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism and Homeland Security held a hearing on HR 1981 [LOC | WW], the "Protecting Children from Internet Pornographers Act of 2011".

The bill would create a mandate that all "electronic communication service" (ECS) and "remote computing service" (RCS) providers retain for 18 months "network addresses the service assigns to each account". However, the bill would exempt wireless providers. The bill would create broad new immunities for service providers. The bill would create no limitations on the reasons for accessing retained data, and it would not limit who could obtain access.

As of July 12, this bill had 19 cosponsors most but not all of whom are Republicans.

Rep. Lamar Smith (R-TX), the Chairman of the HJC, and the sponsor of HR 1981, participated in the hearing. However, Rep. James Sensenbrenner (R-WI) the Chairman of the Subcommittee, presided.

This hearing disclosed that there is substantial opposition from members of both parties to parts of this bill. While Rep. Smith advocated various provisions of this bill, Rep. Sensenbrenner condemned it repeatedly, and with harsh language.

The HJC heard from one panel of three witnesses. See, prepared testimony [8 pages in PDF] of Ernie Allen (National Center for Missing and Exploited Children), prepared testimony [5 pages in PDF] of Michael Brown (Sheriff of Bedford County, Virginia), and prepared testimony [16 pages in PDF] of Marc Rotenberg (head of the Electronic Privacy Information Center). No one from the Department of Justice (DOJ) testified at this hearing.

Rep. Sensenbrenner has a history of support for law enforcement and intelligence agencies. He is a previous Chairman of the HJC. He organized efforts to quickly pass the USA PATRIOT Act in 2001, and later lead efforts to extend sunsetted provisions. He negotiated compromises with other members of Congress and the Bush administration officials. For years, he defended the DOJ against Democratic attacks, and advocated the DOJ's interests.

Then, DOJ Office of the Inspector General (OIG) reports disclosed that the DOJ and its FBI engaged in serial and serious violations of surveillance law, did not observe some of the terms of the Act, and violated bargains that it had struck with the Congress. In recent hearing Rep. Sensenbrenner angrily berated DOJ officials for their betrayal.

Rep. Sensenbrenner stated at this hearing that he is concerned about "this bill being trashed, just like the PATRIOT Act." He said that the bill is bad policy and that he will try to kill it.

He concluded that "this bill needs a lot of fixing up", and that "it is not ready for prime time".

He stated that he is concerned that law enforcement "will use it beyond investigating child pornography". He asked Sheriff Brown if he needed a data retention mandate for other crimes. The Sheriff said he did not.

No one from the DOJ testified at this hearing. However, a DOJ representative testified at a hearing in January that data retention would assist in many other areas. See, subsection below titled "January 25 Hearing".

Rep. Smith read a prepared statement in support of his bill. He said that it "enables law enforcement officials to successfully locate and prosecute those who want to hurt our children."

"Often, the only way to identify a pedophile who operates a website or exchanges child pornography images with other pedophiles is by an Internet Protocol address."

"Law enforcement officials must obtain a subpoena and then request from the Internet Service Provider the name and address of the user of the IP address. Unfortunately, ISPs regularly purge these records, making it difficult if not impossible for investigators to apprehend child pornographers on the Internet." Rep. Smith (at right) continued that "H.R. 1981 directs Internet Service Providers to retain Internet Protocol addresses to assist federal law enforcement officials with child pornography and other Internet investigations."

He added that "This is a narrow provision that addresses the retention of only the Internet Protocol addresses the providers assign to their customers. It does not require the retention of any content. So the bill does not threaten any legitimate privacy interests of Internet users."

Rep. John Conyers (D-MI), the ranking Democrat on the HJC, stated that "the problem is that HR 1981 would not achieve the goal" of protecting kids from child pornographers. One reason for this, he said, is that it exempts wireless service providers. He explained that "criminals will exploit this loophole" and "migrate to a wireless service".

Rep. Conyers also said that the bill's title "is a misnomer". He said that law enforcement agencies could gain access to retained data to investigate "routine street crimes".

He suggested this: "limit law enforcement's access to internet pornography crimes against children".

Rep. Bobby Scott (D-VA), the ranking Democrat on the Subcommittee, stated that law enforcement has the ability to obtain the information that it needs, that "the DOJ already has more data than it has personnel to investigate".

Rep. Scott (at right) said too that with the enactment of HR 1981's data retention mandate, retained data could end up being used in divorce cases, seized by hackers, or used for marketing purposes.

Later he asked witnesses whether retained data would be available in copyright infringement cases. Marc Rotenberg answered yes, by civil subpoena.

Greg Nojeim of the Center for Democracy and Technology (CDT) did not testify at the July 12 hearing. However, he wrote a short piece that is in the CDT web site.

January 25 Hearing. The HJC's Subcommittee on Crime also held a hearing back on January 25, 2011, titled "Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes". The Subcommittee heard from four witnesses.

See, prepared testimony [9 pages in PDF] of Jason Weinstein (DOJ), prepared testimony [5 pages in PDF] of John Douglas (International Association of Chiefs of Police), prepared testimony [9 pages in PDF] of Kate Dean (Internet Service Provider Association), and prepared testimony [10 pages in PDF] of John Morris (Center for Democracy and Technology).

See also, transcript [85 pages in PDF] of January 25 hearing.

The DOJ's Weinstein wrote that data retention would assist in investigating not only CP crimes, but only drug crimes, computer hacking, and national security matters.

He also stressed the importance of a data retention mandate for cell phone providers, because criminals use cell phones to access web sites.

He acknowledged the threat of data retention to the privacy interests of individuals. He wrote, "To be sure, the presence of large databases, by itself, poses privacy concerns."

He also wrote that "we do not have a position on what information should be retained or for how long"

The ISP Association's Dean wrote that "a blanket legal requirement to retain Internet usage data for established time periods is certain to present significant challenges to the communications industry, both for well-established companies and newer online media enterprises, as well as unintended consequences which are incapable of precise identification."

She also wrote that "Maintaining exponentially-increasing volumes of data, in a searchable format that would enable companies to quickly locate a targeted user’s data amidst exabytes of information, would be extremely complicated, and burdensome. While storing huge volumes of data may be possible, providers have concerns about ensuring the integrity and availability of that data to respond to legal demands. The sheer complexity of systems required to perform these tasks increases the probability of crashes, failures, and delays. Thus, despite a provider’s efforts to comply with the data retention obligation, the data, through no fault of the provider, may still not be available to law enforcement."

She also wrote that a data retention mandate would increase search times, which would hamper investigations, such as child abductions, where time is of the essence.

The CDT's Morris urged the Subcommittee to "reject calls for mandatory data retention, whether narrow or expansive".

7/12. Rep. Lamar Smith (R-TX) and Rep. Debbie Schultz (D-FL) introduced HR 1981 [LOC | WW], the "Protecting Children from Internet Pornographers Act of 2011", on May 25, 2011.

The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism and Homeland Security held a hearing on this bill on July 12. See, related story in this issue titled "House Crime Subcommittee Holds Hearing on Data Retention Mandate Bill".

Background on ECPA and SCA. The Electronic Communications Privacy Act (ECPA), which was enacted in 1986, includes the Stored Communications Act (SCA). The data retention provisions of HR 1981 contain amendments to the SCA.

The Congress has amended various parts of the ECPA since 1986, but the ECPA has not kept pace with technological changes. The terms used in the ECPA were included in 1986 based upon the drafters' understanding of technologies that existed in 1986. Law enforcement agents and prosecutors now rely on these 1986 terms when dealing with new technologies not foreseen when the ECPA was drafted.

This bill does nothing to address underlying obsolescence of the ECPA. It adds to the foundation of the ECPA, without clarifying what that foundation means in the context of new technologies developed since 1986, or in the context of the new mandates that would be imposed by this bill.

In March of 2010 a coalition named Digital Due Process (DDP) announced a set of four principles which the DPP members argue should be incorporated into the federal statutes that regulate government searches and seizures of stored communications and data.

These DPP principles state, for example, that the "government should obtain a search warrant based on probable cause before it can compel a service provider to disclose a user's private communications or documents stored online" and it "should obtain a search warrant based on probable cause before it can track, prospectively or retrospectively, the location of a cell phone or other mobile communications device".

See also, story titled "Digital Due Process Coalition Proposes Changes to Federal Surveillance Law" in TLJ Daily E-Mail Alert No. 2,068, March 31, 2010.

Law enforcement entities, and particularly the Department of Justice (DOJ), oppose such principles. Moreover, the DOJ opposes the notion of clarity. It exploits uncertainty to exercise broader powers to obtain intercepts and data, and under lesser standards.

Hence, while there have been repeated calls for updating the ECPA for years, neither the House nor the Senate, nor the HJC or Senate Judiciary Committee (SJC), have passed an ECPA reform bill.

Data Retention Mandate. The bill would amend 18 U.S.C. § 2703, which is the section of the SCA that requires disclosure of stored communications to the government. HR 1981 would also require the retention and storage of certain data.

There are already two data retention mandates. See, related story in this issue titled "Summary of Existing Data Retention Mandates". HR 1981 would greatly expand the requirements imposed upon service providers.

It would add a new subsection (h): "Retention of Certain Records -- A provider of an electronic communication service or remote computing service shall retain for a period of at least 18 months the temporarily assigned network addresses the service assigns to each account, unless that address is transmitted by radio communication (as defined in section 3 of the Communications Act of 1934)." (Parentheses in original. In this article, language that would be added by HR 1981 is shown in red.)

This provision only requires retention of the IP addresses assigned to an account. A service provider has the name and other account information of its subscribers. Proponents argue that this bill does not require disclosure of content.

However, a law enforcement official or other person requesting retained data would possess an IP address of an internet user, and information regarding content on the web. The requestor who obtains retained data from the service provider would then be able to associate content with a particular user. In this sense, this bill is content related.

This provision exempts wireless service providers. This exemption is inconsistent with the stated purpose of the bill, because people are using their internet connected cell phones and other wireless devices to view child pornography (CP).

This bill imposes its data retention mandate on any "electronic communications service" (ECS) and "remote computing service" (RCS) provider. These 1986 terms are no longer clear, and in the hands of a DOJ lawyer, could be quite elastic and expansive. It should be noted that the definitions, which are found mainly in 18 U.S.C. § 2510, provide that this data retention mandate would apply to a "paging device", "tracking device", and "electronic funds transfer information".

Section 2510 also provides that the term "electronic communications system" means "any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications".

18 U.S.C. § 2711 provides that the term "remote computing service" means "the provision to the public of computer storage or processing services by means of an electronic communications system".

Innovative developers are including internet connectivity into, and assigning IP addresses to, all manner of devices. The proponents of this bill speak about individuals who look at CP by using their computers and laptops with broadband internet access service (BIAS). However, nothing in this bill states that only BIAS providers (or even BIAS and dial-up service providers) are required to save data for 18 months. The DOJ could seek to compel any entity that it asserts is either an RCS or ECS provider to retain data.

This bill could be amended to clarify whether it would only impose data retention mandates on internet access service providers, or also apply to other services providers, including voice over internet protocol service providers, e-mail service providers, or providers of text based services.

Immunity. HR 1981 would amend 18 U.S.C. § 2703 by inserting the words "retaining records or" into subsection (e). This is the provision that provides immunity for providing law enforcement entities stored information.

As amended, this section would provide that "No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for retaining records or providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter."

Similarly, this bill would also amend 18 U.S.C. § 2707 by adding to subsection (e)(1) the phrase "or the requirement to retain records under section 2703(h)".

As amended, this section would provide that "A good faith reliance on (1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization (including a request of a governmental entity under section 2703(f) or the requirement to retain records under section 2703(h) of this title) ... is a complete defense to any civil or criminal action brought under this chapter or any other law."

These are inducements to service providers to diligently retain data, and to follow instructions from the DOJ.

They are also an inducement to support this bill, because they could immunize service providers from a broad range of claims. For example, if this bill were enacted, a service provider retained data, and a hacker accessed that data, and injured subscribers sued the service provider, the service provider would assert this immunity provision as a defense.

Just as this bill builds onto the ECPA without addressing the obsolescence of the ECPA, it imposes broad data retention mandates without addressing data security or privacy.

Similarly, if the DOJ were to make broad demands, either regarding services covered, or data to be retained, legal counsel for the service provider would have little incentive to scrutinize the underlying legality of the demands, because of this grant of immunity.

There is perhaps some comparison to made between these clauses, and the legislative grant of immunity in 2008 to service providers who were sued after cooperating with the government in facilitating surveillance under the Foreign Intelligence Surveillance Act (FISA). The plaintiffs and other critics of that surveillance program asserted that its was an illegal warrantless wiretap program. That immunity was enacted in HR 6304 (110th Congress), the "FISA Amendments Act of 2008", Public Law No. 110-261, at Title II, Section 201.

That act provides that "Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that ..."

Access to Retained Data: No Limitations on Purposes. The title of this bill, "Protecting Children from Internet Pornographers Act", is not descriptive of its consequences. Mandating data retention would assist law enforcement officers and prosecutors in tracking down and obtaining convictions of men of look at CP on their desktop and laptop computers. However, this would likely be only a minor consequence of the bill.

It would enable law enforcement officers and prosecutors to access retained data to investigate all types of activity, not just those related to sex or CP.

It should be recalled that DOJ officials sought and obtained many broad new surveillance powers in the huge bill that was enacted rapidly after the terrorist attacks of September 11, 2001. The DOJ officials argued that the new powers were necessary to fight terrorism. The bill was named the "USA PATRIOT Act" to assert its terrorism related purpose.

However, statistical data on use of some of the provisions of the 2001 Act, such as sneak and peak searches, reveal that the DOJ has used that new power almost exclusively in non-terrorism related cases.

It is possible that the data retention mandate of HR 1981 could be enacted under the guise of fighting CP, and then used extensively, and almost exclusively, for other purposes.

Sneak and peak is the common term for the authority contained in § 213 of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001. § 213 pertains to "Authority for delaying notice of the execution of a warrant".

It was not one of the sunsetted provisions. However, it was controversial, and some legislators, such as former Sen. Russ Feingold (D-WI), sought for years to attach a sunset provision to it.

It would be very easy to impose a limit on purposes. HR 1981 could be amended with a clause that lists predicate offenses for the issuance of a court order, or administrative subpoena, that authorizes access to retained data. See for example, 18 U.S.C. § 2516, regarding predicate offenses for the issuance of a wiretap order.

Access to Retained Data: No Limitations on Who Can Access Retained Data. HR 1981 merely requires service providers to retain data. It imposes no limitations upon who can then obtain access to that data. Such data would be business records, and available to a wide range of requestors in civil, criminal and administrative proceedings or investigations.

This mandate would benefit federal, state and local governments agencies that seek such data.

Also, with the US entering into more and more, and broader, international law enforcement cooperation agreements, it would expand the power of foreign governments to surveil the activities of people in the U.S., or who use U.S. based services.

Nor would anything in the bill prevent civil litigants from subpoenaing retained data. It could be requested in tort cases, contract disputes, or divorce actions.

Corporations and public figures could seek such retained data to attempt to learn who is engaging in First Amendment protected activities that is critical of such corporations or public figures. Employers could seek retained data in litigation arising out of termination of employment.

There is also the matter of the cost and inconvenience to the service providers of complying with the torrent of subpoenas that would follow the enactment of a data retention mandate without a limitation upon those who can subpoena the data.

Access to Retained Data: No Requirement for Judicial Involvement. HR 1981 imposes a data retention mandate, but does not address how the DOJ or any other person or entity can obtain such retained data.

The SCA addresses how one obtains stored content under the SCA. But, the SCA is basically a statute regarding protection of stored content of the subscriber, and government access to that stored content. In contrast, the data which must be retained under HR 1981 would be business records of the service provider.

Current law allows the Attorney General to issue administrative subpoenas in CP investigations. But, the data that would be retained under the bill would likely be sought mostly for other matters.

The bill is silent regarding whether or when a court order would be required for accessing data retained pursuant to this bill, and if so, what standards the court would apply, and when and under what circumstances the subscriber would be notified of the order and the seizure of the data.

Access to Retained Data: Administrative Subpoenas. This bill would change the administrative subpoena process for obtaining access to retained data, as well as other records and testimony. The Attorney General already has authority to issue administrative subpoenas to investigate CP.

This bill would also give administrative subpoena power to the Unites States Marshals Service (USMS) to investigate unregistered sex offenders. The USMS is the unit of the DOJ that protects courts, judicial personnel, and judicial processes, and finds and arrests fugitives. This bill would not extend administrative subpoena authority to anyone to access the data retained by service providers for purposes unrelated to sex crimes.

18 U.S.C. § 3486 already provides that "In any investigation of ... a Federal offense involving the sexual exploitation or abuse of children, the Attorney General ... may issue in writing and cause to be served a subpoena requiring the production and testimony" that is "relevant to the investigation".

This section also enumerates the offenses that involve "sexual exploitation or abuse of children". It includes 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, which are the two main sections used to prosecute people who distribute or view child pornography online.

HR 1981 provides that the USMS shall also "issue administrative subpoenas in accordance with section 3486 of title 18, solely for the purpose of investigating unregistered sex offenders". It adds that "sex offender" means "an individual required to register under the Sex Offender Registration and Notification Act".

This section might be employed, not only to further a targeted investigation directed at one individual, but also to engage in broad and periodic data aggregation activities by the USMS.

Online Financial Transactions. Law enforcement entities long ago shut down brick and mortar commercial CP sales operations. But then, the development and widespread adoption of the internet provided a new venue for commercial CP operations.

However, in recent years, groups such as the National Center for Missing & Exploited Children (NCMEC) and the Financial Coalition (which includes banks, credit card companies, electronic payment networks, third party payments companies and internet access providers), working with law enforcement entities, have largely shut down commercial CP distribution on the internet.

Ernie Allen, head of the NCMEC, wrote in his prepared testimony [PDF] for the July 12 hearing that "What once was believed to be a multi-billion dollar global industry has recently been estimated to be less than a million dollar a year industry worldwide". He made similar statements in response to questions.

CP is still being viewed, but via free platforms, particularly through peer to peer file sharing programs.

Yet, despite these developments, HR 1981 includes sections that appear on their face to target financial intermediaries to commercial CP transactions. That is, they address a problem that has already been solved.

Allen, who is often regarded by members of Congress as an authority on fighting CP, expressed concern about the provision, which is set out below. He said that voluntary action has had a dramatic effect, and he is concerned that this provision could change that.

First, the bill would add a new section to the criminal code, to be codified at a new 18 U.S.C. § 1960A, that would provide that "Whoever knowingly conducts, or attempts or conspires to conduct, a financial transaction (as defined in section 1956(c)) in or affecting interstate or foreign commerce, knowing that such transaction will facilitate access to, or the possession of, child pornography (as defined in section 2256) shall be fined under this title or imprisoned not more than 20 years, or both." (Parentheses in original.)

This new section would come immediately after 18 U.S.C. § 1960, which prohibits unlicensed money transmitting businesses.

Second, the bill would add several crimes to the list of predicate offenses for money laundering under 18 U.S.C. § 1956. (CP under 18 U.S.C. § 2252A is already on the list.) The bill would add the proposed Section 1960A.

One possible consequence of enactment of these provisions of HR 1981 would be that the DOJ might use them to stop financial intermediaries from processing financial transaction in which a registered sex offender attempts to purchase a computer, or seeks to subscribe to broadband internet access.

If such a program were implemented, members of Congress, and the organized interests that lobby the Congress, might seek to apply a similar regime to persons convicted of violation of other internet related crimes, such as hacking under 18 U.S.C. § 1030, or criminal copyright infringement under 17 U.S.C. § 506 and 18 U.S.C. § 2319.

Non-Technology Related Changes to CP Law. HR 1981 also includes some changes to CP law that do not implicate information or communications technologies.

It would provide for increased prison time. It would raise the maximum prison sentence under both 18 U.S.C. § 2252 and 18 U.S.C. § 2252A for mere viewing of CP online (first time possession with intent to view) to 20 years.

The bill would also direct the U.S. Sentencing Commission to amend its guidelines and policies to cause CP offenders to receive longer prison sentences.

Finally, HR 1981 would amend 18 U.S.C. § 1514 which pertains to "Civil action to restrain harassment of a victim or witness". Like the data retention mandate, it could assist the investigation of CP cases, but likely would be used in other situations.

The bill would amend this section to provide that "the court shall issue a protective order prohibiting harassment or intimidation of the minor victim or witness if the court finds evidence that the conduct at issue is reasonably likely to adversely affect the willingness of the minor witness or victim to testify or otherwise participate in the Federal criminal case or investigation".

The bill does not elaborate, but "protective order" would include such things as removing children from the home of a person under investigation. Such orders would be issued ex parte, without notice or opportunity to be heard. The grounds would be minimal, such as "fear or apprehension". The bill also would create a rebuttable presumption in favor of the government, but in an ex parte hearing, there is no one present to rebut.

Children and adult family members of persons under investigation may have a reluctance to provide truthful information to law enforcement agencies that would contribute to a conviction of a family member. This provision would assist law enforcement agencies in overcoming such a reluctance.

On the other hand, children and adult family members of persons under investigation may have a reluctance to provide false or perjurious information to law enforcement agencies that would contribute to a wrongful conviction of a family member. This provision would assist overzealous law enforcement agencies in overcoming such a reluctance.

The Wenatchee, Washington prosecutions of the 1990s serve as the leading example of overzealous law enforcement in child sex cases. See for example, July 31, 2001, story in the Seattle Post Intelligencer titled "Jury finds city, county negligent in child sex ring case", and Wikipedia article titled "Wenatchee child abuse prosecutions".

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule for the week of July 11.

The Senate will meet at 9:30 AM.

8:00 AM - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) and National Journal will host an event titled "National Journal Innovation Works Conference". See, ITIF notice. Location: Ronald Reagan Building and International Trade Center Atrium Ballroom, Concourse Level. 1300 Pennsylvania Ave., NW.

8:45 - 11:00 AM. The Free State Foundation (FSF) will host an event titled "Universal Service and Intercarrier Compensation: Will the FCC Finally Bite the Reform Bullet?" The speakers will be James Assey (NCTA), Jerry Ellig (Mercatus Center), Mike Romano (NTCA), Tom Tauke (Verizon), and Deborah Tate. See, notice. A light breakfast will be served. This event is free and open to the public. To register to attend, e-mail Kathee Baker at kbaker at freestatefoundation dot org Location: National Press Club, 13th Floor, 529 14th St., NW.

10:00 AM. The House Appropriations Committee (HAC) will mark up HR __, the FY 2012 Commerce, Justice, Science Appropriations Bill. See, notice. Location: Room 2359, Rayburn Building.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Monetary Policy and the State of the Economy". The witness will be Ben Bernanke, Chairman of the Federal Reserve Board (FRB). See, notice. Location: Room 2128, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Unauthorized Charges on Telephone Bills: Why Crammers Win and Consumers Lose". The witnesses will be Lisa Madigan (Attorney General of Illinois), Elliot Burg (Office of the Vermont Attorney General), Susan Eppley, David Spofford (CEO of Xigo, LLC), and Walter McCormick (U.S. Telecom Association). See, notice. Location: Room 253, Russell Building.

10:00 - 10:30 AM. The Federal Communications Commission (FCC) will host an event to announce the opening of a "Technology Experience Center". The speakers will include Julius Genachowski (FCC Chairman), Michael Copps, Mignon Clyburn, Michael Powell (NCTA), Kevin Gage (NAB), and others. See, notice. Location: FCC, Library, 445 12th St., SW.

2:00 - 6:00 PM. The New America Foundation (NAF) will host an event titled "How to Ignite, or Quash, a Revolution in 140 Characters or Less: The Promise and Limitations of New Technologies in Spreading Democracy". There will be numerous speakers and panels. Michael Posner (Assistant Secretary of State for Bureau of Democracy, Human Rights and Labor) will address "Internet Freedom and Human Rights: The Obama Administration's Perspective". Ian Schuler (Senior Program Manager for the Department of State's Internet Freedoms Program) will address "Bypassing the Master Switch". See, notice. Location: NAF, Suite 400, 1899 L St., NW.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Morgan Christen (to be a Judge of the U.S. Court of Appeals for the 9th Circuit), Yvonne Rogers (USDC/NDCal), Richard Andrews (USDC/DDel), Scott Skavdahl (USDC/DWyo), and Sharon Gleason (USDC/DAk). See, notice. The SJC will webcast this hearing. Location: Room 226, Dirksen Building.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It will consider HR 2354 [LOC | WW], the "Energy and Water Appropriations Act, 2012". See, Rep. Cantor's schedule for the week of July 11.

The Senate will meet at 9:30 AM.

9:00 - 11:00 AM. The Internet Caucus and the European Internet Foundation (EIF) will host an event titled "Transatlantic Roundtable on Privacy and Intellectual Property". The speakers will include Rick Boucher (Sidley Austin), Erika Mann, James Elles (European Parliament), Pilar del Castillo (EP), Ivailo Kalfin (EP), Catherine Trautmann (EP), and Marietje Schaake (EP). Register by emailing rsvp at netcaucus dot org or by calling 202-407-8829. Location: Reserve Officers Association, One Constitution Ave., NE.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up bills. The fourth of four items on the agenda is HR 1002 [LOC | WW], the "Wireless Tax Fairness Act of 2011". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM - 12:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Intelligence Oversight". See, notice. Location: Room HVC-304, Capitol Building.

10:00 AM. The Senate Energy and Natural Resources Committee (SENRC) will hold a meeting to mark up numerous bills. The agenda includes consideration of S 1113 [LOC | WW], the "Critical Minerals Policy Act of 2011", and S 383 [LOC | WW], the "Critical Minerals and Materials Promotion Act of 2011", bills pertaining to rare earth materials, which have many applications in information and communications technology products and devices. See, notice. Location: Room 366, Dirksen Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of Steve Six (to be a Judge of the U.S. Court of Appeals for the 10th Circuit), Stephen Higginson (USCA/5thCir), Jane Milazzo (USDC/EDLa), Alison Nathan (USDC/SDNY), Katherine Forrest (USDC/SDNY), and Susan Hickey (USDC/WDArk). The agenda also includes consideration of Christopher Droney (USCA/2ndCir), Robert Mariani (USDC/MDPenn), Cathy Bissoon (USDC/WDPenn), Mark Hornak (USDC/WDPenn), and Robert Scola (SDFl). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM - 12:00 PM. The Senate Banking Committee (SBC) will hold a hearing titled "Semiannual Monetary Policy Report to the Congress". The witness will be Ben Bernanke, Chairman of the Federal Reserve Board (FRB). See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The Senate Commerce Committee's (SCC) Subcommittee on Science and Space will hold a hearing titled "National Nanotechnology Investment: Manufacturing, Commercialization, and Job Creation". The witnesses will be Chad Mirkin (Northwestern University), Charles Romine (National Institute of Standards and Technology), Diandra Pelecky (West Virginia University), Thomas O'Neal (University of Central Florida), and George McLendon (Rice University). See, notice. Location: Room 253, Russell Building.

11:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing, and Trade and Subcommittee on Communications and Technology will hold a joint hearing titled "Internet Privacy: The Views of the FTC, the FCC, and NTIA". The witnesses will be Julius Genachowski (Chairman of the FCC), Lawrence Strickling (head of the NTIA), and Edith Ramirez (FTC Commissioner). See, notice. The HCC will webcast this event. Location: Room 2123, Rayburn Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host an event titled "Calculating Reasonable Royalty Damages After Uniloc v. Microsoft". See, January 4, 2011, opinion [59 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, May 16, 2011, order denying rehearing and rehearing en banc. The speakers will be Maureen Browne (Covington & Burling), Carla Mulhern (Analysis Group, Inc.), Peter Strand (Shook Hardy & Bacon). The price to attend ranges from $30 to $40. For more information, contact 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a telecast panel discussion titled "Privacy and Information Security Update". The speakers will be Erin Egan (Covington & Burling), and Deborah Peden, Catherine Meyer and Wayne Matus (all of Pillsbury Winthrop). See, notice.

1:30 - 4:30 PM. The House Oversight and Government Reform Committee's (HOGRC) Subcommittee on Technology, Information Policy, Intergovernmental Relations, and Procurement Reform will hold a hearing titled "Transparency And Federal Management IT Systems". See, notice. Location: Room 2247, Rayburn Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing. Location: Room 219, Hart Building.

4:00 - 7:15 PM. The DC Bar Association will host an event titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Kathryn Fenton (Jones Day), Ray Hartwell (Hunton & Williams), Donald Klawiter (Sheppard Mullin Richter & Hampton), and Ann O'Brien (DOJ's Antitrust Division). The price to attend ranges from $89 to $129. CLE credits. The DC Bar has a history of barring reporters from its events. For more information, call 202-626-3488. See, notice. Location: DC Bar, 1101 K St., NW.

6:30 PM. There will be a panel discussion titled "Up Next -- Hyperlocal Coverage: Neighborhood Blogs, Community Websites, and the Future of the News". The price to attend is $10. Tickets are required. See, notice. Location: National Press Club, First Amendment Lounge, 13th Floor, 529 14th St., NW.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule for the week of July 11.

8:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Spectrum and Public Safety Issues". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on HR __, the "Innovative Design Protection and Piracy Prevention Act". See, notice. Location: Room 2141, Rayburn Building.

The House will be in recess the week of Monday, July 18 through Friday, July 22.

6:00 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "FCBA Trivia Night". Location: Laughing Man Tavern, 1306 G St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding ex parte communications with the FCC. The FCC adopted this item on February 1, 2011, and released it on February 2, 2011. It is FCC 11-11 in GC Docket No. 10-43. See, notice in the Federal Register, May 2, 2011, Vol. 76, No. 84, at Pages 24434-24436.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [27 pages in PDF] regarding rights of way policies and wireless facilities siting requirements. The FCC adopted and released this item on April 7, 2011. It is FCC 11-51 in WC Docket No. 11-59. See, notice in the Federal Register, Vol. 76, No. 95, Tuesday, May 17, 2011, at Pages 28397-28403.

8:00 -10:00 AM. Broadband Census News LLC will host a panel discussion titled "Making the Universal Service Fund Into a Universal Broadband Fund". Breakfast will be served. See, notice and registration page. This event is also sponsored by the National Cable & Telecommunications Association (NCTA), US Telecom, Telecommunications Industry Association (TIA), and ICF International. Location: Clyde's of Gallery Place, 707 7th St., NW.

8:30 - 9:45 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "What Would Pro-Growth Corporate Tax Reform Look Like?". The speakers will be Ike Brannon (American Action Forum), Robin Beran (Catepillar, Inc.), and Rob Atkinson (ITIF). See, notice and registration page. This event is free and open to the public. A light breakfast will be served. Location: Room B-340, Rayburn Building.

10:30 - 11:30 AM. The Heritage Foundation (HF) will host a lecture by Alan Leong Kah-kit (Legislative Councillor and 2007 Candidate for Chief Executive, Hong Kong SAR) titled "The Centennial of the 1911 Revolution: A Look Into the Future of Hong Kong and China". The HF will webcast this event. This event is free and open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:00 NOON - 3:00 PM. The Tech Freedom (TF) will host an event titled "Sorrell: The Supreme Court Confronts Free Speech, Marketing & Privacy". See, the Supreme Court's June 23, 2011, opinion [53 pages in PDF] in Sorrell v. IMS Vermont, TF's amicus curiae brief [PDF], and story titled "Supreme Court Applies Heightened Scrutiny to State Regulation of Commercial Data" in TLJ Daily E-Mail Alert No. 2,258, July 14, 2011. The first panel is titled "Towards Greater Commercial Free Speech Protections?". The speakers will be Greg Stohr (Bloomberg), Tom Julin (Hunton & Williams), Bob Revere (Davis Wright Tremaine), Greg Beck (Public Citizen), and Richard Ovelmen (Jordan Burt). The second panel is titled "Reconciling Data Restrictions & the First Amendment". The speakers will be Jim Harper (Cato Institute), John Verdi (Electronic Privacy Information Center), Jonathan Emord (Emord & Associates), John Morris (Center for Democracy & Technology), and Berin Szoka (TF). See, notice and registration page. This event is free and open to the public. Lunch will be served. Location: Hunton & Williams, 2200 Pennsylvania Ave., NW.

12:00 NOON - 2:00 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The Atlantic Century 2011: Benchmarking U.S. and EU Innovation and Competitiveness". The speakers will include Chan Heng Chee (Singapore's Ambassador to the US), Lenny Mendonca (McKinsey), and Rob Atkinson (ITIF). See, ITIF notice. This event is free and open to the public. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

12:30 - 2:00 PM. The Computer & Communications Industry Association (CCIA) will host a panel discussion titled "How Public Policy Can Enable Cloud Computing -- Driving Innovation, Investment & Job Creation Beyond the IT Sector". The speakers will include Michael Nelson (Georgetown University). This event is free and open to the public. Lunch will be served. Register by contacting Maggie Clark at mclark at ccianet dot org or 202-783-0070 ext 120. Location: Room B-340, Rayburn Building.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Implications of AT&T Mobility v. Concepcion: Has the Supreme Court Sounded the Death Knell for Some Class Actions?". See, April 27, 2011, opinion of the Supreme Court, and story titled "Supreme Court Holds Class Action Waiver Clauses in Arbitration Contracts Are Enforceable" in TLJ Daily E-Mail Alert No. 2,228, April 28, 2011. The speakers will be Amy Brown (Squire Sanders), Paul Bland (Chavez & Gertler), Sarah Cole (Ohio State law school), and Julia Strickland (Stroock Stroock & Lavan). Prices vary. CLE credits. See, notice.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "An App Store for Energy: eKNOW and Data-Driven Innovation for Smart Buildings". See also, S 1029 [LOC | WW], the "Electric Consumer Right to Know Act" or "e-KNOW Act". The speakers will include Sen. Scott Brown (R-MA), Lorie Wigle (Intel), Nick Sinai (EOP's Office of Science and Technology Policy), Dean Garfield (ITIC), and Rob Atkinson (ITIF). See, ITIF notice. This event is free and open to the public. Location: Room SVC 201-00, Capitol Visitor Center.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Are Products of Nature Patentable Subject Matter?". The speakers will be Eileen Kane (Penn State law school), John Hendricks (Hitchcock Evert), Harold Wegner (Foley & Larnder), and Jacqueline Bonilla (Foley & Lardner). Prices vary. CLE credits. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response its 3rd Further Notice of Proposed Rulemaking (NPRM) [110 pages in PDF] regarding extensive revisions to its Part 11 rules governing the Emergency Alert System (EAS). The FCC adopted this NPRM on May 25, 2011, and released the text on May 26, 2011. It is FCC 11-82 in EB Docket No. 04-296. See, notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35810-35831.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice regarding whether certain docketed FCC proceedings should be terminated as dormant. See, June 3, 2011, Public Notice (DA 11-992 in CG Docket No. 11-99), and notice in the Federal Register, Vol. 76, No. 118, Monday, June 20, 2011, at Pages 35892-35893.

7/12. The cornerstone provision of HR 1981 [LOC | WW], the "Protecting Children from Internet Pornographers Act of 2011", is its data retention mandate. There are already two data retention mandates.

The term commonly used for these two existing mandates is "preservation", while the term commonly used for proposals for an even broader mandate is "retention".

First, the 1996 amendments to the Stored Communications Act (SCA) added a data retention mandate. The SCA, at 18 U.S.C. § 2703(f), currently provides that "A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process."

A government entity can compel data preservation under this section for 180 days.

HR 1981 would add to Section 2703 a broader and longer data preservation or retention mandate. It would amend the SCA by adding an 18 month data retention mandate. It would apply to every covered entity regardless of whether or not the government has asked it to do so. It also contains an exception for wireless, and two immunity provisions.

It may also be significant that HR 1981 does not eliminate, or phase out this existing retention mandate.

Second, the Congress enacted HR 1738 (110th Congress), the "Providing Resources, Officers, and Technology To Eradicate Cyber Threats to Our Children Act of 2008" or "PROTECT Our Children Act of 2008". It is now Public Law No. 110-401.

Section 501 of that act added a reporting and data retention mandate for all "electronic communication service" (ECS) or a "remote computing service" (RCS) providers.

This section, which is now codified at 18 U.S.C. § 2258A, requires ECSs and RCSs to report to the CyberTipline of the National Center for Missing and Exploited Children (NCMEC) any "actual knowledge of any facts or circumstances" that constitute an apparent violation of CP statutes, including either 18 U.S.C. § 2252 and 18 U.S.C. § 2252A.

It also requires any ECS or RCS that makes such a report to retain not only data, but also content, for 90 days. The ECS or RCS "shall preserve any images, data, or other digital files that are commingled or interspersed among the images of apparent child pornography within a particular communication or user-created folder or directory".

This section provides that the ECS's or RCS's report to the CyberTipline "shall be treated as a request to preserve, as if such request was made pursuant to section 2703(f)".

This section also requires the NCMEC to forward information to relevant law enforcement agencies.

7/7. Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee (SJC), sent a letter to Attorney General Eric Holder regarding the Department of Justice's (DOJ) decision not to prosecute an Assistant U.S. Attorney (AUSA) who was found to have used his work computer to view pornography, including at least one image of child pornography (CP).

Sen. Grassley (at right) quoted from a DOJ Office of the Inspector General (OIG) report that states that "The investigation determined that the AUSA routinely viewed adult content during official duty hours, and that there was at least one image of child pornography recovered on the AUSA's government computer. The AUSA acknowledged that he had spent a significant amount of time each day viewing pornography. The U.S. Attorney's Office declined prosecution."

Sen. Grassley wrote that "This is simply unacceptable".

Sen. Grassley also propounded numerous interrogatories to be answered by the DOJ. For example, he asked if the AUSA still works at the DOJ, what type of cases he handles, who made the decision not to prosecute, and how was the AUSA able to evade the DOJ's porn filters.

Sen. Grassley also issued a release that states that he "learned that 33 employees at the Securities and Exchange Commission who were found to have viewed pornography during work hours were not terminated and were given uneven and light disciplinary action".

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