8/2. Sen. Kirsten Gillibrand (D-NY) and Sen. Orrin Hatch (R-UT) introduced S 1469 [LOC | WW], the "International Cybercrime Reporting and Cooperation Act".

It provides that a federal agency designated by the President shall research and write annual reports that identify the bad actor nations that have weak laws and/or enforcement regimes with respect to cyber criminals, develop an action plan, and then use various foreign policy tools to attempt to prod those nations into becoming better actors.

The tools available to prod bad actors would include (1) "Suspend, restrict, or withdraw the provision of foreign assistance", (2) "Instruct the United States Executive Director of each multilateral development bank ... to restrict or oppose the approval of any new financing", and (3) "Suspend, limit, or withdraw any preferential treatment for which the country qualifies under the Caribbean Basin Economic Recovery Act ..., the African Growth and Opportunity Act ..., or any other trade preference program".

The bill focuses on cybercrime abroad, but also addresses foreign based threats to US intellectual property rights (IPR) and electronic commerce.

The bill was referred to the Senate Foreign Relations Committee (SFRC).

Similar legislation was introduced, but not enacted, in the 111th Congress. S 1469 is a revised version of S 3155 [LOC | WW], also titled the "International Cybercrime Reporting and Cooperation Act", from the 111th Congress. Sen. Gillibrand introduced that bill on March 23, 2010. Rep. Yvette Clarke (D-NY) introduced the companion bill in the House, HR 4962 [LOC | WW], on March 25, 2010. See, story titled "International Cyber Crime Bills Introduced in Senate and House" in TLJ Daily E-Mail Alert No. 2,067, March 30, 2010.

Sen. Gillibrand (at right) stated in a release that "If we're going to protect our networks, our infrastructure, our economy and our families, we have to go after cyber criminals wherever they may be -- and it must be an international effort. Our legislation requires the president to provide a global assessment, identify threats from abroad, work with other countries to crack down on their own cyber criminals, and urge the president to cut off U.S. assistance and resources for countries that refuse to take responsibility for cybersecurity. Our legislation will make America safer by getting tough on cybercrime globally, and coordinating with our partners in the international community."

Intellectual Property Rights. The process that would be created by this bill is similar to the existing Special 301 process for protecting US IPR abroad.

Section 301 is a statutory means by which the U.S. asserts its rights, including its rights under World Trade Organization (WTO) agreements. In particular, under the "Special 301" provisions of the Trade Act of 1974, the Office of the U.S. Trade Representative (OUSTR) identifies other countries that deny adequate and effective protection of IP or deny fair and equitable market access to U.S. artists and industries that rely upon IP protection. The Special 301 provisions are codified at 19 U.S.C. § 2411, et seq.

The OUSTR conducts periodic reviews, and places certain nations on its "watch list" or "priority watch list". The statute then provides that if the OUSTR determines that "the rights of the United States under any trade agreement are being denied", then the OUSTR "shall take action". For example, it may "impose duties or other import restrictions", or "suspend, withdraw, or prevent the application of, benefits of trade agreement concessions to carry out a trade agreement with the foreign country".

This bill also provides that the annual reports examine any country that is "significant with respect to efforts to combat cybercrime" against the US or US persons, and any country "that disrupts United States electronic commerce or otherwise negatively impacts the trade or intellectual property interests of the United States".

Sen. Hatch (at left), is a keen advocate of intellectual property rights, and the sole original cosponsor of the just introduced bill. He stated in the Senate that this bill would "establish a framework for global cooperation on the fight against cybercrime." See, Congressional Record, August 2, 2011, at Page S5254.

He elaborated that "The countries to be reviewed are those with a significant role in efforts to combat cybercrime impacting U.S. Government, entities and persons, or disrupting U.S. electronic commerce or intellectual property interests."

He added that "Cyberspace remains borderless, with no single proprietor. Accordingly, the United States must take the lead on maintaining the openness of the Internet, while securing accountability. If a country is a haven for cybercrime, or simply has demonstrated a pattern of uncooperative behavior with efforts to combat cybercrime, that nation must be held accountable."

8/9. The Federal Communications Commission (FCC) adopted and released a Notice of Proposed Rulemaking (NPRM) [60 pages in PDF] regarding its review process for foreign ownership of wireless companies.

Much of what the FCC does is regulating, or attempting to influence, ownership. This includes ownership of FCC licenses, broadcasters, phone companies, cable companies, newspapers, and other entities. The FCC delves into the nationality and other attributes of owners, cross ownership, and transfers of ownership, among other things. Much of this is unnecessary.

FCC Chairman Julius Genachowski wrote in his statement that this NPRM proposes "to eliminate unnecessary reporting obligations on U.S. wireless companies that have some foreign shareholders".

47 U.S.C. § 310 limits foreign ownership. Subsection 310(b) provides as follows:

"No broadcast or common carrier or aeronautical en route or aeronautical fixed radio station license shall be granted to or held by (1) any alien or the representative of any alien; (2) any corporation organized under the laws of any foreign government; (3) any corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or their representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country; (4) any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license."

This NPRM addresses FCC implementation of the mandate in Subsection 310(b)(4). This NPRM states that "We seek to reduce to the extent possible the regulatory costs and burdens imposed on wireless common carrier and aeronautical applicants, licensees, and spectrum lessees; provide greater transparency and more predictability with respect to the Commission’s filing requirements and review process; and facilitate investment from new sources of capital, while continuing to protect important interests related to national security, law enforcement, foreign policy, and trade policy." (Footnotes omitted.) This NPRM does not address foreign ownership of broadcast licenses.

FCC Commissioner Robert McDowell wrote in his statement that "Foreign investment continues to be an important source of equity financing for U.S. telecommunications companies, and ultimately fosters technical innovation, economic growth and job creation within America’s own borders. Yet, in most instances, wireless licensees face significant regulatory hurdles in obtaining approval of foreign ownership under Section 310(b)(4) of the Act. These include considerable time commitments and an investment of significant expenses, to name just two."

He added that "Regulatory barriers such as these inhibit investment in U.S. companies and our economic resilience is what suffers most as a result."

In contrast, FCC Commissioner Michael Copps wrote in his statement that "Anecdotal evidence suggests to me that the regulatory burdens associated with our foreign ownership reviews have hardly discouraged foreign investment in the United States telecom market". He added that "we need to be vigilant that nothing we do in any of these proceedings ham-strings us from conducting the depth and breadth of analysis necessary to ensure that the intent of Congress in section 310 is met."

Ruth Milkman was until recently Chief of the FCC's Wireless Telecommunications Bureau. Genachowski assigned her the title "Special Counsel for Innovation in Government". She wrote a short piece in which she asserted that the FCC is improving its regulatory processes, with this NPRM, and other actions.

This NPRM is FCC 11-121 in IB Docket No. 11-133. Initial comments will be due within 45 days of publication of a notice in the Federal Register. Reply comments will be due within 75 days. As of the August 9, 2011, issue of the Federal Register, this notice had not yet been published.

8/9. The Federal Communications Commission (FCC) adopted and released an item [89 pages in PDF] titled "Report and Order, Further Notice of Proposed Rulemaking, and Memorandum Opinion and Order" that pertains to wireless backhaul.

FCC Chairman Julius Genachowski wrote in his statement that "Backhaul is the skeleton supporting broadband, and wireless backhaul is often a very efficient means of transmitting data among cell sites, or between cell sites and network backbones. Spectrum, in other words, can be an important part of the ``middle mile´´ of broadband networks."

He added that this item eliminates "unnecessary restrictions on the use of this spectrum", and the FNPRM "explores additional ideas for making microwave communications more flexible and cost-effective".

FCC Commissioner Robert McDowell elaborated in his statement that "we are removing regulatory barriers that unnecessarily hamper the ability to enter the marketplace for wireless backhaul and other point-to-point and point-to-multipoint communications. We are also making additional spectrum available for this purpose, as well as seeking comment on allowing wider channels and smaller antennas in certain bands."

This NPRM is FCC 11-120 in WT Docket No. 10-153. Initial comments are due by October 4, 2011. Reply comments are due by October 25, 2011.

8/9. The Copyright Alliance (CA) announced the formation of a legal advisory board, comprised of the law firms of Loeb & Loeb, Jenner & Block, Mitchell Silberberg & Knupp, Munger Tolles & Olson, Covington & Burling, Crowell & Moring, Skadden Arps, Proskauer Rose, Kendall Brill & Klieger, Arnold & Porter, Drinker Biddle & Reath, Shearman & Sterling, Cravath Swaine & Moore, and Cowan DeBaets. The CA stated in a release that this board "will work with the Alliance and its membership to advance copyright strategy, and develop a variety of projects and programs, including providing assistance to individual artists and creators; hosting educational events and webinars; expanding work with law schools and young lawyers, and contributing writing and research."

8/8. The Federal Communications Commission (FCC) announced the membership of its Communications Security, Reliability, and Interoperability Council (CSRIC). Glen Post, CEO of CenturyLink, is the CSRIC Chairman. See, FCC release.

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.

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.

10:30 AM - 3:30 PM. The Federal Communications Commission's (FCC) Emergency Access Advisory Committee (EAAC). See, notice in the Federal Register, Vol. 76, No. 153, Tuesday, August 9, 2011, at Pages 48861-48862. Location: FCC, Commission Meeting Room, 445 12th St., SW.

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".

The House will meet in pro forma session at 11:30 AM.

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

12:30 - 1:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Tax Aspects of Technology Transactions". The speakers will be Roger Royse (Royse Law Firm) and Kenneth Appleby (Foley & Lardner). Prices vary. CLE credits. See, notice.

8/9. The U.S. Court of Appeals (9thCir) issued an order and amended opinion [PDF] in Dish Network v. FCC. The order denies the Dish Network's petition for rehearing en banc. The Court of Appeals affirmed the District Court, which denied the Dish Network's motion for a preliminary injunction of Section 207 of the Satellite Television Extension and Localism Act of 2010 (STELA), which is codified at 47 U.S.C. § 338, on the basis that it is a Constitutionally
impermissible content based regulation its First Amendment free speech rights. The amended opinion removes a statement in the original opinion that "Section 207 is content-neutral". This case is Dish Network Corporation and Dish Network LLC v. FCC, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 10-16666, an appeal from the U.S. District Court for the District of Nevada, Judge James Mahan presiding. Judge Richard Tallman wrote the opinion of the Court of Appeals, in which Judges Clifford Wallace and Barry Silverman joined.

8/9. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the ODVA,Inc. filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48884.

8/9. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the Institute of Electrical and Electronics Engineers (IEEE) filed a notification of additions or changes to its standards development activities, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48884.

8/9. The Department of Justice's (DOJ) Antitrust Division published a notice in the Federal Register (FR) that announces that the PXI Systems Alliance filed a notification of a change in its membership, pursuant to the National Cooperative Research and Production Act of 1993, which pertains to limiting antitrust liability of standard setting consortia. See, FR, Vol. 76, No. 153, Tuesday, August 9, 2011, at Page 48884.

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
3034 Newark St. NW, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2011 David Carney. All rights reserved.