8/4. The U.S. District Court (NDCal) unsealed an indictment that charges Sanford Wallace with violation of the CAN SPAM Act and the Computer Fraud and Abuse Act (CFAA) in connection with his spamming Facebook users. The indictment, which was returned on July 6, also identifies Wallace as "The Spam King".

A grand jury of the District Court returned an indictment that charges Wallace with numerous counts of fraud and related action in connection with electronic mail in violation of the CAN SPAM Act (18 U.S.C. § 1037), intentional damage to a protected computer in violation of in violation of the CFAA (18 U.S.C. §§ 1030(a)(5)(A) and (c)(4)(B)(i)), and one count of criminal contempt (18 U.S.C. § 401(c)).

In a previous civil action brought by Facebook against Wallace, the judgment included a provision barring Wallace from accessing Facebook's computer network. The criminal contempt charge stems from violation of this.

The U.S. Attorneys Office for the Northern District of California stated in a release that "from approximately November 2008 through March 2009, Wallace executed a scheme to send spam messages to Facebook users.  Those messages compromised approximately 500,000 legitimate Facebook accounts, and resulted in more than 27 million spam messages being sent through Facebook’s servers."

This case is U.S. v. Sanford Wallace, U.S. District Court for the Northern District of California, San Jose Division, D.C. No. CR 11-00456 EJD.

7/28. The United Kingdom's High Court of Justice, Chancery Division, issued its Approved Judgment [67 pages in PDF] in Twentieth Century Fox Film v. British Telecommunications.

This judgment states that the Court will issue an order directing British Telecom (BT), the leading British broadband internet access service provider, to block access to the Newzbin web sites, which link to infringing online copies of movies and other works.

Twentieth Century Fox Film and the other movie studio applicants in this proceeding previously won a judgment of copyright infringement against Newzbin.

The Court ordered blocking based upon the blocking regime previously developed to block users' access to child pornography (CP).

The Court ruled that BT must employ internet protocol (IP) address blocking "in respect of each and every IP address from which the said website operates or is available".

Also, BT must employ deep packet inspection (DPI) based blocking "utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains".

8/5. The Federal Communications Commission (FCC) adopted and released a notice of inquiry [19 pages in PDF] titled "Eighth Broadband Progress Notice and Inquiry".

The FCC has not previously issued any "Broadband Progress" NOIs. However, it has released seven Section 706 NOIs. It released its seventh Section 706 report on May 20, 2011. See, story titled "FCC Releases 7th Section 706 Report" in TLJ Daily E-Mail Alert No. 2,246, May 27, 2011.

Section 706 of the Telecommunications Act of 1996, which is codified at 47 U.S.C. § 157 notes, provides, in part, that the FCC shall regularly "initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) ... In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market." (Parentheses in original.)

The 1996 Act requires the FCC to conduct an inquiry, then make a factual conclusion regarding availability, and if its conclusion is in the negative, then take action. During the tenure of Chairman Julius Genachowski, the FCC appears to have reversed the ordering. The starting point is policy objectives. Section 706 findings are then adjusted to support those objectives.

In particular, the FCC now seeks to impose and maintain a network neutrality, or open internet, regulatory regime. The FCC adopted rules for the regulation of broadband internet access service (BIAS) providers late last year. There is no statute that expressly directs of authorizes the FCC to write BIAS rules. The FCC's 6th Section 706 report, released in July of 2010, concluded for the first time that advanced telecommunications capability is not being deployed in a reasonable and timely fashion. See, story titled "FCC Releases 6th Section 706 Report" in TLJ Daily E-Mail Alert No. 2,114, July 29, 2010. The FCC's December 2010 BIAS order seized upon the finding of that 6th report as justification.

The just released NOI reiterates this. It states that "In light of our determination that broadband deployment in the United States is not reasonable and timely, as required by section 706, the Commission has taken numerous actions to accelerate broadband deployment. For example, the Commission adopted the Open Internet Order" in December of 2010.

The first five reports concluded that "advanced telecommunications capability" is being deployed to all Americans in a reasonable and timely fashion. The next two concluded in the negative. They also substituted the clause "broadband deployment" for "advanced telecommunications capability".

The 6th and 7th reports also proceeded as if the statute addresses "subscription", whereas the statute actually addresses "availability".

Also, Genachowski wrote in his statement that "almost one third of Americans -- 100 million of us -- haven't adopted broadband. Some find this acceptable; I do not."

The just released NOI states that the FCC has used Form 477 to determine deployment. This is subscription data, not availability data. The NOI asks if it should continue to do this.

This NOI also asks for comments on an appropriate benchmark for advanced telecommunications capability, and whether the FCC should set technology specific speed thresholds.

The latest NOI uses the phrase "broadband progress" in place of "broadband deployment" and "advanced telecommunications capability". It also refers to previous Section 706 reports as "broadband progress" reports.

The just released NOI also asserts that these reports are "annual". The statute uses the word "regularly", not "annual". Also, the FCC has issued 7 reports in the 14 years since enactment of Section 706, without any fixed schedule.

This NOI is FCC 11-124 in GN Docket No. 11-121. The deadline to submit initial comments is September 6, 2011. The deadline to submit reply comments is October 4, 2011.

8/3. The Public Knowledge (PK) released a paper [16 pages in PDF] titled "4G + Data Caps = Magic Beans". The author is the PK's Michael Weinberg. This paper states that "4G, the next generation of wireless data technology, promises higher speeds and better wireless internet experiences" and "is a performance upgrade by almost any metric". However, it states that "The 4G offered by major wireless carriers (with the notable exception of Sprint) is a waste of money because it comes with strict data caps. These data caps actively discourage the types of activities that 4G enables." (Parentheses in original.) This paper states that the 2GB caps in the 4G data plans offered by AT&T and Verizon do "not completely eliminate the usefulness of having a wireless data connection. It is possible to download emails or browse the internet without hitting the limit. However, it is hard to do the types of activities that 4G is advertised as enabling without quickly flirting with the caps."

8/2. The National District Attorneys Association (NDAA) sent a letter to Senate leaders, and a letter to House leaders, urging passage of S 968 [LOC | WW], the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011", or the PROTECT IP Act. The NDAA wrote that "Criminals have turned to the Internet, abusing its virtually unlimited distribution opportunities to expand their illicit activities and fatten their profits." It continues that "A growing number of these rogue sites are based overseas, presenting law enforcement with unique enforcement challenges." It concludes that "To effectively disrupt the rogue sites' business model, law enforcement needs the authority to enlist the help of other players in the Internet ecosystem, including infrastructure providers like ISPs and financial service providers like payment processors, to cut these sites off from the American marketplace."

7/26. The Software and Information Industry Association (SIIA) released a paper [27 pages in PDF] titled "Guide to Cloud Computing for Policymakers". It argues that "to provide for the safe and rapid growth of cloud computing, there is no need for cloud-specific legislation or regulations, and in fact, such actions could impede the potential of cloud computing." It adds that "There are currently a number of existing and proposed policies that could hurt the development of cloud computing. These include such things as requirements for the location of computer facilities in particular jurisdictions or restrictions of cross-border data flows."

7/25. The Entertainment Software Association (ESA) announced in a release that it filed a motion for $1.1 Million in attorneys fees with the Supreme Court in Brown v. EMA & ESA, previously known as Schwartzenegger v. EMA. The Supreme Court issued its opinion on June 26, 2011, holding that the First Amendment freedom of speech clause bars states from mandating labels for video games. See, story titled "Supreme Court Holds First Amendment Protects Video Games" in TLJ Daily E-Mail Alert No. 2,250, June 28, 2011. Michael Gallagher, head of the ESA, stated that "From the start of this misguided legislation, then-Governor Schwarzenegger and specific California legislators knew that their efforts to censor and restrict expression were, as court after court ruled, unconstitutional and thus a waste of taxpayers’ money, government time, and state resources."

The House will not meet. It is in recess until 2:00 PM on September 7. However, it will hold pro forma sessions twice per week until then.

The Senate will not meet. It is in recess until 2:00 PM on September 6. However, it will hold pro forma sessions twice per week until then.

EXTENDED TO AUGUST 15. Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291. See, notice of extension.

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 11:00 AM.

10:30 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". See, tentative agenda, and story titled "FCC Releases Tentative Agenda for August 9 Meeting" in TLJ Daily e-Mail Alert No. 2,264, July 20, 2011. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [17 pages in PDF] regarding Terrestrial Trunked Radio, or TETRA, technology. The FCC adopted this item on April 18, 2011, and released the text on April 26, 2011. It is FCC 11-63 in WT Docket No. 11-69 and ET Docket No. 09-234. See, notice in the Federal Register, Vol. 76, No. 91, Wednesday, May 11, 2011, at Pages 27296-27300.

Deadline set by Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) for Groupon to respond the interrogatories propounded in their July 26 letter regarding the July 11 article in the Washington Post titled "Groupon changes privacy policy to collect, share more information". See also, Rep. Markey's release.

10:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Technical Advisory Committee will hold a partially closed meeting. See, notice in the Federal Register, Vol. 76, No. 146, Friday, July 29, 2011, at Page 45508. Location: DOC, Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] regarding whether to make the grandfathered providers permanently eligible for universal service subsidies under the FCC's rural health care program. The FCC adopted this NPRM on June 20, 2011, and released the text on June 21, 2011. It is FCC 11-101 in WC Docket No. 02-60. See, notice in the Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37307-37309.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-56 C [17 pages in PDF] titled "Recommendation for Key Derivation through Extraction-then-Expansion".

The House will meet in pro forma session at 10:00 AM.

The Senate will meet in pro forma session at 12:00 NOON.

1:00 - 4:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Summer Rooftop BBQ and Pool Party". The price to attend is $15. For more information, contact Justin Faulb at faulb at lojlaw dot com or Brendan Carr at BCarr at wileyrein dot com.

11:00 AM - 12:30 PM. The Heritage Foundation (HF) will host a panel discussion titled "National EMP Recognition Day: The Threat That Can't Be Ingnored". The speakers will be Rep. Roscoe Bartlett (R-MD), Peter Pry (EMPact America), Frank Gafney (Center for Security Studies), Drew Miller, and James Carafano (HF). This event is free and open to the public. See, notice. Location: HF, 214 Massachusetts Ave., NE.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the report submitted to the FCC on June 30, 2011, by the technical working group co-chaired by LightSquared and the U.S. Global Positioning System Industry Council (USGIC). See, FCC International Bureau's (IB) order dated June 30, 2011. It is DA 11-1133 in DA 11-1133. See also report, part 1, part 2, part 3, part 4, part 5, part 6, and part 7.

EXTENDED FROM AUGUST 8. Extended deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice in the Federal Register regarding the proposed self-regulatory guidelines submitted to the FTC by Aristotle International, Inc. under the safe harbor provision of the Children's Online Privacy Protection Act (COPPA) Rule. See, Federal Register, Vol. 76, No. 123, Monday, June 27, 2011, at Pages 37290-37291. See, notice of extension.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7275 Rev. 4 [77 pages in PDF] titled "Specification for the Extensible Configuration Checklist Description Format (XCCDF) Version 1.2".

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