2/22. The Attorneys General of a majority of the states signed a letter to Google expressing opposition to its plan to combine information about users collected from its many platforms. They state that it violates user privacy, fails to provide a real opt out option, and will lead to more severe problems arising out of data breaches, hacking and identity theft.

The letter is signed by the Attorneys General (AGs) of the largest states, including California, Texas, New York, Illinois, and Pennsylvania.

The AGs wrote that "Until now, users of Google's many products could use different products in different ways, expecting that information they provide for one product, such as YouTube, would not be synthesized with information they provide for another product, such as Gmail and Maps. The new policy forces these consumers to allow information across all of these products to be shared, without giving them the proper ability to opt out."

It notes for example, that state governments that are using Google productivity applications would face great expense switching to other applications, and Android phone users cannot easily switch either.

They explained that "Google's new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail."

"Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy."

The AGs also warned that "Those consumers who remain in the Google ecosystem may be making more of their personal information vulnerable to attack from hackers and identity thieves. Our offices litigate cases of identity fraud with regularity and it seems plain to us that Google’s privacy policy changes, which suggest your company’s intent to create richer personal data profiles, pose the risk of much more damaging cases of identity theft and fraud when that data is compromised, a risk that will grow as instances of computer hacking grow. With this newly consolidated bank of personal data, we foresee potentially more severe problems arising from any data breach."

Google's plan to consolidate data is scheduled to take effect on March 1, 2012.

2/21. The Electronic Privacy Information Center (EPIC) filed with the U.S. District Court (DC) its reply to the Federal Trade Commission's (FTC) opposition to its Motion for Temporary Restraining Order and Preliminary Injunction [30 pages in PDF].

The EPIC argues in this latest filing that the FTC's failure to enforce a final order under the FTC Act is subject to judicial review.

This action pertains to whether Google's new privacy policy, scheduled to take effect on March 1, violates the FTC's Decision and Order [7 pages in PDF] dated October 13, 2011. The FTC issued that order as a result of Google privacy related misconduct in the launch of its Buzz service.

The EPIC argues in the present action that Google's pending changes to its privacy policies violate the October 13 order, that the FTC has failed to take action to prevent such violation, and that the District Court should compel the FTC to take action against Google, before March 1.

The EPIC stated in its complaint that "Rather than keeping personal information about a user of a given Google service separate from information gathered from other Google services, Google will consolidate user data from across its services and create a single merged profile for each user."

The EPIC argues that this will harm users, that this violates the order, and that if the FTC does not take enforcement action before March 1, irreparable injury will result, because the covered information of Google users will have been combined.

The EPIC filed its complaint the present action on February 8. See, story titled "EPIC Sues FTC to Compel Enforcement of Google Privacy Order" in TLJ Daily E-Mail Alert No. 2,338, February 16, 2012.

The FTC argued in its motion to dismiss and opposition [12 pages in PDF] that the FTC Act gives the FTC enforcement authority, but does not creates a private right of action for the EPIC or any other third parties. It also argues that third parties to government consent decrees generally cannot enforce those decrees via judicial review. See, story titled "FTC Files Opposition to EPIC's Motion to Compel FTC to Enforce Google Order" in TLJ Daily E-Mail Alert No. 2,342, February 20, 2012.

2/22. Microsoft announced that it filed a complaint with the European Commission (EC) asking it to investigate Motorola Mobility and Google for anticompetitive conduct in connection with its abuse of standard essential patents (SEPs) for video on smartphones and tablets. Apple previously complained.

Google announced its plans to acquire Motorola Mobility in August of 2011. See, story titled "Google to Acquire Motorola Mobility" in TLJ Daily E-Mail Alert No. 2,290, August 15, 2011.

The U.S. Department of Justice (DOJ) and EC cleared the transaction on February 13, 2012. See, stories titled "DOJ Closes Investigations of Transactions Involving Communications Patents" and "EC Approves Google Acquisition of Motorola Mobility" in TLJ Daily E-Mail Alert No. 2,335, February 13, 2012.

Microsoft's Dave Heiner stated in a short piece that "We have taken this step because Motorola is attempting to block sales of Windows PCs, our Xbox game console and other products."

He explained that "the industry came together years ago to define common technical standards that every firm can use to build compatible products for video and Wi-Fi. Motorola and all the other firms that contributed to these standards also made a promise to one another: that if they had any patents essential to the standards, they would make their patents available on fair and reasonable terms, and would not use them to block competitors from shipping their products. Motorola has broken its promise. Motorola is on a path to use standard essential patents to kill video on the Web, and Google as its new owner doesn’t seem to be willing to change course."

The DOJ's Antitrust Division stated in a release on February 13 that it "continues to monitor the use of SEPs in the wireless device industry, particularly in the smartphone and computer tablet markets. The division will not hesitate to take appropriate enforcement action to stop any anticompetitive use of SEP rights".

The EC stated in a release on February 13 regarding the Google acquisition of Motorola Mobility that "All smartphones also need to adhere to certain telecommunications standards such as 3G or 4G/LTE. Motorola, as some other market participants, holds patents that are essential for these standards to operate. Access to such "standard essential" patents is therefore crucial for players on the smartphone market. However, the Commission concluded that the proposed transaction would not significantly change the existing market situation in this respect."

It also stated that this "decision is without prejudice to potential antitrust problems related to the use of standard essential patents in the market in general". And, it added that "Access to standard essential patents is crucial for all market players. It is for this reason that standard setting organisations require the holders of standard essential patents to license these patents to any interested third parties on fair reasonable and non-discriminatory ("FRAND") terms. The absence of such licences would hinder competitors or indeed the entire industry to the detriment of consumers and innovation."

In addition, three days earlier, Joaquín Almunia, the EC VP for Competition Policy gave a speech in which he cautioned companies about misuse of SEPs. See, story titled "EC's Alumnia Addresses Patents and Communications Standards" in TLJ Daily E-Mail Alert No. 2,335, February 13, 2012.

"I am notably thinking of the surge in the strategic use of patents that confer market power to their holders. The potential abuses around standard-essential patents are a specific illustration of this concern." Almunia continued that "Standards are the best tool to promote interoperability of devices or to define safety or quality benchmarks. In the communications technologies, standards are key for a universal interconnection and seamless communication. Once a standard is adopted, it becomes the norm and the underlying patents are indispensable. Owners of such standard essential patents are conferred a power on the market that they cannot be allowed to misuse."

He stated that "Standardisation processes must be fair and transparent, so that they are not in the hands of established firms willing to impose their technologies. But it is not enough. We must also ensure that, once they hold standard essential patents, companies give effective access on fair, reasonable and non discriminatory terms."

He concluded that "I am determined to use antitrust enforcement to prevent the misuse of patent rights to the detriment of a vigorous and accessible market.

Microsoft's Heiner elaborated that "Motorola is demanding that Microsoft take its products off the market, or else remove their standards-based ability to play video and connect wirelessly. The only basis for these actions is that these products implement industry standards, on which Motorola claims patents. Yet when the industry adopted these standards, we all were counting on Motorola and every contributor to live up to their promises.

Heiner also disclosed that Motorola is not refusing to license its SEPs. It is just asking too much. He wrote that "For a $1,000 laptop, Motorola is demanding that Microsoft pay a royalty of $22.50 for its 50 patents on the video standard", while Microsoft is only demanding two cents to license its SEPs for the same product.

Google has complained publicly about assertion of patents against its Android. See, story titled "Google Says Patents Attack Android" in TLJ Daily E-Mail Alert No. 2,280, August 5, 2011.

Microsoft added that "there are big differences between Google's approach and Microsoft’s. Microsoft is not seeking to block Android manufacturers from shipping products on the basis of standard essential patents. Rather, Microsoft is focused on infringement of patents that it has not contributed to any industry standard. And Microsoft is making its patents -- standard essential and otherwise -- available to all Android manufacturers on fair and reasonable terms. In fact, more than 70 percent of Android devices are now licensed to use Microsoft’s patent portfolio."

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 1998-2012 David Carney. All rights reserved.

Ash Wednesday.

The House will not meet.

The Senate will not meet.

10:30 AM - 12:00 NOON. The Bipartisan Policy Center (BPC) will host an event titled "Cyber Security". Federal Communications Commission (FCC) Chairman Julius Genachowski will give a speech. There will then be a panel discussion. The other participants will be Greg Schaffer (head of the DHS's Office of Cybersecurity and Communications), Michael Hayden (Co-chair of the BPC Cyber Security Task Force), Stewart Baker (Steptow & Johnson), Michael Glenn (CenturyLink), and Andy Ogielski (Renesys Corporation). See, notice. For more information, contact Ashley Clark at 202-637-1456 or aclark at bipartisanpolicy dot org. The FCC will webcast this event. Location: BPC, Suite 1000, 1225 Eye St., NW.

The House will not meet.

The Senate will not meet.

10:00 AM - 12:30 PM. The Office of the U.S. Trade Representative (OUSTR) will hold a hearing titled "Special 301 Review". Location: OUSTR, 1724, F St., NW.

10:00 - 11:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "Eddie Lazarus Reflects on a Dramatic Tenure as Chief of Staff of the FCC". See, notice. Location: ITIF/ITIC: Suite 610, 1101 K St., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast event titled "From Metatags to Sponsored Ads: The Evolution of the Internet-Related Trademark Infringement Doctrine". The speakers will be Chad Doellinger (Katten Muchin Rosenman), Jennifer Mikulina (McDermott Will & Emery), and Uli Widmaier (Pattishall McAuliffe). CLE credits. Prices vary. See, notice.

Deadline to submit comments to the Copyright Office (CO) in response to it notice in the Federal Register regarding revisions to its fee schedule. The CO seeks comments on two questions: "First, with respect to the basic registration fee, should special consideration be provided to individual author-claimants registering a single work that is not a work made for hire? Second, are there any special services and corresponding fees the Office should expand, improve or add to its offerings at this time, including, for example, additional expedited services and fee options for copyright owners and their representatives?" See, Federal Register, Vol. 77, No. 15, Tuesday, January 24, 2012, at Pages 3506-3508.

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

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

Supreme Court conference day. See, calendar. Closed.

8:30 AM - 4:00 PM. The Department of Defense's (DOD) Defense Intelligence Agency Advisory Board will hold a closed meeting. See, notice in the Federal Register, Vol. 77, No. 10, Tuesday, January 17, 2012, at Pages 2277-2278. Location: Boling Air Force Base.

8:45 AM - 1:30 PM. The George Mason University School of Law will host a conference titled "The Digital Inventor: How Entrepreneurs Compete on Platforms". There will be two panel discussions, titled "Platforms, Modularity, and Complementary Goods" and "Patent Litigation: Software Patents, Licensing, and Mobile OS Platforms". There will also be several presentations and speeches, including "Design, Institutions, and the Evolution of Platforms" and "Why Walled Gardens Isn't Inconsistent with Open Innovation: Understanding How Ecosystems Management Promotes Progress". CLE credits. Prices vary. Location: GMU law school, 3301 N. Fairfax Dr., Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [21 pages in PDF] regarding Auction 901, which will auction high cost universal service subsidies through reverse competitive bidding. It is also titled "Mobility Fund Phase I Auction". The FCC released this PN on February 2, 2012. It is DA 12-121 in AU Docket No. 12-25. See also, notice in the Federal Register, Vol. 77, No. 28, Friday, February 10, 2012, at Pages 7152-7162.

The House will return from its one week recess. Votes will be postponed until 6:30 PM.

4:00 PM. The House Intelligence Committee (HIC) will hold a closed closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response the FCC's Public Notice (PN) regarding LightSquared's Petition for Declaratory Ruling. The FCC released this PN on January 27, 2012. See also, correction to this PN, also released on January 27. This PN is DA 12-103 in IB Docket No. 11-109 and ET Docket No. 10-142.

9:30 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will release a report, and host a panel discussion, titled "Confronting Chinese Innovation Mercantilism". The speakers will be Sen. Jeff Merkley (D-OR), Robert Atkinson (ITIF), Morgan Reed (Association for Competitive Technology), and Alan Wolff (Dewey & LeBoeuf). Free. Open to the public. See, notice. Location: Room G11, Dirksen Building, Capitol Hill.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "An Overview of the National Science Foundation Budget for Fiscal Year 2013". The witnesses will be Subra Suresh, Director of the National Science Foundation (NSF), and Ray Bowen, Chairman of the National Science Board. The HSC will webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on Counterterrorism and Intelligence will hold a hearing titled "Federal Government Intelligence Sharing with State, Local and Tribal Law Enforcement: An Assessment Ten Years After 9/11". See, notice. Location: Room 311, Cannon Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Critical Infrastructure Cybersecurity: Assessments of Smart Grid Security". See, notice. Location: Room 2322, Rayburn Building.

12:00 NOON - 1:30 PM. Julie Brill (FTC Commissioner) and Anne Cavoukian (Commissioner of Canada's Office of the information and Privacy) will speak at an event hosted by the American Bar Association (ABA) titled "Privacy by Design: What All Companies Need to Do Now". No CLE credits. The price to attend is $50. See, notice.

12:00 NOON - 1:30 PM. The Federal Communications Commission's (FCC) Enforcement Bureau (EB) will hold an event at which EB Bureau Chief Michele Ellison and EB division chiefs and front office managers will speak. The FCBA states that this is an FCBA event. Location: Hogan Lovells, 555 13th St., NW.

2:00 - 3:15 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. The agenda includes an update from Gregory Schaffer (DHS Assistant Secretary for Cybersecurity and Communications), an update on the cloud computing from Mark McLaughlin, and an update on the national public safety broadband network scoping effort from Scott Charney and Michael Laphen. See, notice in the Federal Register, Vol. 77, No. 27, Thursday, February 9, 2012, at Page 6813.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and the Women's Bar Association of the District of Columbia (WBADC) will host an event titled "An Evening of Mentoring for Communications Lawyers". Prices vary. See, WBADC notice. Register at the WBADC web site, using the password FCBAMENTOR. Location: Hogan Lovells, 555 13th St., NW.

TIME? The U.S. China Economic and Security Review Commission will hold a hearing titled "Chinese State-Owned and State-Controlled Enterprises". Location: Room 562, Dirksen Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Promoting Innovation, Competition, and Economic Growth: Principles for Effective Domestic and International Standards Development". The witnesses will be Mary Saunders (National Institute of Standards and Technology) and Joe Bhatia (American National Standards Institute). The HSC will webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

12:15 - 5:00 PM. The New America Foundation (NAF) will host an event titled "Tinkering With Tomorrow: Will the DIY Movement Craft the Future?" There will be several panel discussions, including one titled "Can Our Patent System Support or Survive the DIY Movement?" Free. Open to the public. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

12:30 - 2:00 PM. The American Bar Association (ABA) will host a teleconferenced event titled "Hot Legal Issues in Social Media Marketing". The speakers will be John Feldman (Reed Smith), Catherine Bate (Heenan Blaikie), Ed Chansky (Greenberg Traurig), and Anthony Diresta (Winston & Strawn). No CLE credits. Free. See, notice.

2:00 PM. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "NASA Cybersecurity: An Examination of the Agency’s Information Security". The HSC will webcast this hearing. See, notice. Location: Room 2318, Rayburn Building.

2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Nominations". See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.

4:00 - 7:15 PM. The DC Bar Association will host an event titled "Privacy in The Workplace: Where It Is and Where it Isn't". The speakers will be Gerard Stegmaier (Wilson Sonsini) and Diane Seltzer. The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline for Apple to respond to the letter sent by Rep. Henry Waxman (D-CA) and Rep. GK Butterfield (D-NC). See, story titled "Representatives Question Apple About iOS Apps that Seize Address Book Data" in TLJ Daily E-Mail Alert No. 2,338, February 16, 2012.