3/26. A divided Federal Trade Commission (FTC) released a report [112 pages in PDF] titled "Protecting Consumer Privacy in a Era of Rapid Change: Recommendations for Businesses and Policy Makers".

The document "recommends that Congress consider baseline privacy legislation", including "data security and data broker legislation". Although, the report is vague as to what should be in "baseline" legislation.

It also states that industry should implement a "final privacy framework through individual company initiatives and through strong and enforceable self-regulatory initiatives". Although, the report states that while the FTC will be a part of the process of developing and enforcing this "framework", it is nevertheless "self-regulatory".

The report is also vague both as to whether its recommendations for self regulation are also intended as recommendations for the Congress, and whether its recommendations for self regulation will inform its interpretation of the FTC Act for the purpose of bringing future lawsuits and administrative actions.

This document also reflects an expansion of FTC reliance upon the word "unfair" in Section 5 of the FTC Act. Heretofore, FTC enforcement actions related to privacy have relied primarily upon the word "deceptive" in the statute. Going forward, the FTC may increasingly regulate privacy related practices under the guise of "unfair" conduct. See, related story in this issue titled "Commentary: Unfair v. Deceptive Conduct".

This document does not announce any forthcoming rulemaking proceedings. It does announce several upcoming workshops. However, the FTC may view recommendations or guidance contained in this report as a substitute for either promulgated rules, or a new statutory mandate.

The FTC asserted in a release that now the FTC is the "nation's chief privacy policy and enforcement agency".

FTC Chairman Jonathan Leibowitz asserted in a statement that the FTC is the "nation's privacy protection agency".

FTC Commissioner Thomas Rosch, a Republican appointee, wrote a lengthy dissent.

The FTC released a document [122 pages in PDF] on December 10, 2010, titled "Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers". See, story titled "Divided FTC Proposes Do Not Track Regime" in TLJ Daily E-Mail Alert No. 2,169, December 5, 2010.

The just released document states that the 2010 document was its "preliminary report", and that the just released document is its "final report". Yet, it states that the FTC will continue to study the issues addressed by this report, hold workshops, solicit comments, and work with businesses and other government agencies.

The FTC will likely continue to issue documents that contain legislative recommendations, guidance, and policy announcements. Moreover, many of the items labeled as recommendations in this report are lacking in detail, vague, or tentative, and/or refer to unresolved issues and forthcoming workshops. This document would have been more accurately described as a "second report" or "status report".

Legislative Proposals. The report is clear that it recommends Congressional legislation. It is less clear as to what should be in that legislation. The report states, for example, that legislation should address data breaches, but provides no specifics.

The report also employs vague language that suggests that some of its recommendations for private sector initiatives may also be construed as legislative recommendations. The report, for example, includes phrases such as, "to the extent Congress enacts any of the Commission's recommendations through legislation". The report also states that the FTC supports "baseline privacy legislation". It then also uses the term "baseline" to refer to its recommendations for private sector initiatives. See for example, page 17.

The report states that the FTC "supports targeted legislation" to address "the invisibility of, and consumers' lack of control over, data brokers' collection and use of consumer information" that is "similar to that contained in several of the data security bills introduced in the 112th Congress".

See for example:

• HR 1707 [LOC | WW], the "Data Accountability and Trust Act"
• HR 1841 [LOC | WW], the "Data Accountability and Trust Act of 2011"
• S 1207 [LOC | WW], the "Data Security and Breach Notification Act of 2011"

The report also recommends passage of data breach legislation. It states that the FTC "has long supported federal laws requiring companies to implement reasonable security measures and to notify consumers in the event of certain security breaches".

It also states, "To provide clear standards and appropriate incentives to ensure basic privacy protections across all industry sectors, in addition to reiterating its call for federal data security legislation, the Commission calls on Congress to consider enacting baseline privacy legislation that is technologically neutral and sufficiently flexible to allow companies to continue to innovate."

There are numerous pending bills that address date security and data breaches. See for example:

• S 1151 [LOC | WW], the "Personal Data Privacy and Security Act of 2011"
• S 1207 [LOC | WW], the "Data Security and Breach Notification Act of 2011"
• S 1408 [LOC | WW], the "Data Breach Notification Act of 2011"
• S 1434 [LOC | WW], the "Data Security Act of 2011"
• S 1535 [LOC | WW], the "Personal Data Protection and Breach Accountability Act of 2011"
• HR 1707 [LOC | WW], the "Data Accountability and Trust Act"
• HR 1841 [LOC | WW], the "Data Accountability and Trust Act of 2011"
• HR 2577 [LOC | WW], the "Secure and Fortify Electronic Data Act".

See also, TLJ stories:

• "Rep. Rush Reintroduces Data Accountability and Trust Act", "Rep. Markey and Rep. Barton Release Draft of Do Not Track Kids Act", and "Sen. Rockefeller Announces Forthcoming Do Not Track and Cyber Security Bills" in TLJ Daily E-Mail Alert No. 2,236, May 9, 2011.
• "Sen. Rockefeller Introduces Bill to Regulate Online Services Providers' Use of Personal Information" in TLJ Daily E-Mail Alert No. 2,237, May 10, 2011.
• "Rep. Mack Introduces SAFE Data Act" and "House Commerce Committee to Mark Up SAFE Data Act" in TLJ Daily E-Mail Alert No. 2,363, July 19, 2011.
• "Senate Judiciary Committee to Take Up Data Privacy, Security and Breach Bills" in TLJ Daily E-Mail Alert No. 2,299, September 1, 2011.

Recommendations for Private Sector Initiatives. The report contains several recommendations for private sector initiatives.

The report addresses do not track. Referring to the Digital Advertising Alliance (DAA) and World Wide Web Consortium (W3C), the report states that the FTC "will work with these groups to complete implementation of an easy-to use, persistent, and effective Do Not Track system".

The report addresses mobile services. It states that the FTC "calls on companies providing mobile services to work toward improved privacy protections, including the development of short, meaningful disclosures. To this end, FTC staff has initiated a project to update its business guidance about online advertising disclosures. As part of this project, staff will host a workshop on May 30, 2012 and will address, among other issues, mobile privacy disclosures and how these disclosures can be short, effective, and accessible to consumers on small screens. The Commission hopes that the workshop will spur further industry self-regulation in this area." (Footnote omitted.)

The report addresses data brokers. It states that the FTC "calls on data brokers that compile data for marketing purposes to explore creating a centralized website where data brokers could (1) identify themselves to consumers and describe how they collect and use consumer data and (2) detail the access rights and other choices they provide with respect to the consumer data they maintain." This is in addition to its recommendation for legislation discussed above.

The report addresses ISPs and large large platform providers. It states that "To the extent that large platforms, such as Internet Service Providers, operating systems, browsers, and social media, seek to comprehensively track consumers’ online activities, it raises heightened privacy concerns. To further explore privacy and other issues related to this type of comprehensive tracking, FTC staff intends to host a public workshop in the second half of 2012."

The report also addresses self regulatory codes. It states that the FTC will participate in developing such codes. It also states that "To the extent that strong privacy codes are developed, the Commission will view adherence to such codes favorably in connection with its law enforcement work. The Commission will also continue to enforce the FTC Act to take action against companies that engage in unfair or deceptive practices, including the failure to abide by self-regulatory programs they join."

Data Retention. The report states that "Companies should promote consumer privacy throughout their organizations and at every stage of the development of their products and services." This includes "data security, reasonable collection limits, sound retention practices, and data accuracy".

It also states, with respect to data retention, that "companies should implement reasonable restrictions on the retention of data and should dispose of it once the data has outlived the legitimate purpose for which it was collected". The report does not, however, recommend any mandatory time limits on data retention.

The report does not discuss pending legislation that would increase data retention requirements, thereby decreasing data security. The House Judiciary Committee (HJC) last year approved such a bill, HR 1981 [LOC | WW], the data retention bill. See stories in TLJ Daily E-Mail Alert No. 2,278, August 3, 2011.

Internet Service, Operating Systems, Browsers and Deep Pack Inspection. The report states that "even if a company has a first-party relationship with a consumer in one setting, this does not imply that the company can track the consumer for purposes inconsistent with the context of the interaction across the Internet, without providing choice. This principle applies fully to large platform providers such as ISPs, operating systems, and browsers, who have very broad access to a user’s online activities."

It continues that "ISPs serve as a major gateway to the Internet with access to vast amounts of unencrypted data that their customers send or receive over the ISP's network. ISPs are thus in a position to develop highly detailed and comprehensive profiles of their customers -- and to do so in a manner that may be completely invisible. In addition, it may be difficult for some consumers to obtain alternative sources of broadband Internet access, and they may be inhibited from switching broadband providers for reasons such as inconvenience or expense. Accordingly, the Commission has strong concerns about the use of DPI for purposes inconsistent with an ISP's interaction with a consumer, without express affirmative consent or more robust protection." (Footnote omitted.)

"Like ISPs, operating systems and browsers may be in a position to track all, or virtually all, of a consumer’s online activity to create highly detailed profiles". The reports then states that "comprehensive tracking by any such large platform provider may raise serious privacy concerns".

It adds that the use by Google and Facebook of "cookies and social widgets to track consumers across unrelated websites may create similar privacy issues", but that the FTC "does not believe that such tracking currently raises the same level of privacy concerns as those entities that can comprehensively track all or virtually of a consumer's online activity".

The FTC concludes that "more work should be done to learn" about this, and the FTC will therefore hold a workshop.

Enforcement. The report is vague regarding when the FTC has authority, and when the FTC will, initiate administrative adjudication proceedings, or file complaints in the U.S. District Court, against businesses that violate any of this report's recommendations, or any private sector self-regulatory principles.

Rep. Joe Barton (R-TX), who is sponsoring privacy legislation, stated in a release that "While the FTC makes good recommendations to businesses, it is important to remember they are not law. These recommendations are not enforceable".

On the one hand, the report states that "To the extent the framework goes beyond existing legal requirements, the framework is not intended to serve as a template for law enforcement actions or regulations under laws currently enforced by the FTC."

On the other hand, the report also states that the FTC "will also continue to enforce the FTC Act to take action against companies that engage in unfair or deceptive practices, including the failure to abide by self-regulatory programs they join."

The report also states that the FTC will "vigorously enforce existing laws". Existing laws include Section 5 of the FTC Act. This report construes the meaning of the FTC Act. Therefore, the question remains, does "vigorously enforce existing laws" include taking action under Section 5 against businesses that act inconsistently with the statements in the report.

Rosch Dissent. Commissioner Rosch (at right) listed numerous objections to the report.

First, he wrote that the report "is rooted in its insistence that the ``unfair´´ prong, rather than the ``deceptive´´ prong ... should govern information gathering practices", and "take it or leave it".

He also questioned the constitutionality of banning "take it or leave it" choice because "that prohibition may chill information collection, and thus impact innovation".

He also raised numerous concerns regarding "Do Not Track". For example, he wrote that "it is not clear that all the interested players in the Do Not Track arena ... will be able to come to agreement about what ``Do Not Track´´ even means".

He also wrote that "I am concerned that ``opt-in´´ will necessarily be selected as the de facto method of consumer choice for a wide swath of entities that have a first-party relationship with consumers".

He also wrote that "I question the Report's apparent mandate that ISPs, with respect to uses of deep packet inspection, be required to use opt-in choice."

Finally, he wrote that when the report refers to recommendations and best practices, it also "broadly hints at the prospect of enforcement".

3/26. Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), stated in a release that "This report encourages Congress to pass legislation to promote consumer online privacy protection, and I think that's a recommendation the Committee needs to seriously consider."

Sen. Rockefeller (at right) added that "I also agree with the FTC's conclusion that online companies need to do a better job of honoring consumer requests when they make a `do-not-track´ request on their Internet browsers. Those companies said they'd do that, and they need to make good."

Rep. Joe Barton (R-TX) stated in a release that "I am pleased to know that the Federal Trade Commission has released a final report regarding consumer privacy. I have been a long time advocate and champion of consumer choice when it comes to personal information being used online. While the FTC makes good recommendations to businesses, it is important to remember they are not law. These recommendations are not enforceable, which is why I loudly echo the FTC's call for privacy legislation. It is not until a law is passed that all companies will truly abide by consumer protection policies."

Rep. Barton added that "I believe that it is imperative that my colleagues pay close attention to the advancement of the online world and consider personal privacy a priority. I will continue to stress the importance of consumer protection and work towards privacy reforms."

Rep. Ed Markey (D-MA) and Rep. Barton and introduced HR 1895 [LOC | WW],"Do Not Track Kids Act of 2011", last May. See, story titled "Rep. Markey and Rep. Barton Release Draft of Do Not Track Kids Act" in TLJ Daily E-Mail Alert No. 2,236, May 9, 2012.

Rep. Markey wrote in a release that "I commend the FTC for this comprehensive and timely set of recommendations, which reflects and reinforces many of the same safeguards contained in the Do Not Track Kids Act."

"As in our legislation, the Commission appropriately highlights the importance of providing teens with clear information about how their personal data is used so they can be empowered to exercise control over these uses. The FTC notes that teens are especially vulnerable to targeted advertising due to their use of social media and mobile devices, making it all the more important that legally-enforceable privacy protections for this age group are updated for the 21st century."

Jonathan Banks of US Telecom stated in a release that "we support the general principles outlined in the framework for increasing consumer privacy protections."

He stated that "all companies should work cooperatively to assure Americans that their personal information is carefully safeguarded. Following on the heels of the Commerce Department’s recent white paper on privacy, today's report takes another positive step toward building a system that provides workable privacy protections for consumers."

Leslie Harris, head of the Center for Democracy and Technology (CDT) stated in a release that "Today, the FTC joins the Administration in a growing chorus of support for baseline consumer privacy legislation".

The CDT's Justin Brookman stated in this release that "The FTC has delivered an important reminder that Do Not Track standards must address the collection of behavioral data as well as its use ... Moreover, the FTC rightfully refocuses attention on the heightened privacy concerns presented when ISPs, operating systems, and browsers have broad access to consumers’ online activities."

3/26. The Federal Trade Commission (FTC) released a report [112 pages in PDF] titled "Protecting Consumer Privacy in a Era of Rapid Change: Recommendations for Businesses and Policy Makers".

This report lacks a discussion of FTC regulation or enforcement based upon either unfair or deceptive conduct. However, the report contains statements that may imply a forthcoming increased reliance upon unfairness, rather than deception, as the basis for FTC interpretation of its statutory authority under Section 5 of the FTC Act.

The report attempts to deny this in a solitary footnote buried deep in the report. Footnote number 245 asserts that "This Report is not intended to reflect Commission guidance regarding Section 5's prohibition on unfair methods of competition."

Yet, this report, in the least, provides guidance regarding the "unfair" word of Section 5.

For example, the just released report concludes that the "``take it or leave it´´ approach is problematic from a privacy perspective, in markets for important services where consumers have few options. For such products or services, businesses should not offer consumers a ``take it or leave it´´ choice when collecting consumers' information in a manner inconsistent with the context of the interaction between the business and the consumer."

The FTC report makes no argument that this "take it or leave it" approach is "deceptive" within the meaning of Section 5. It can only be "problematic", therefore, because it is "unfair".

It provides as an example, "the provision of broadband Internet access. As consumers shift more aspects of their daily lives to the Internet -- shopping, interacting through social media, accessing news, entertainment, and information, and obtaining government services -- broadband has become a critical service for many American consumers. When consumers have few options for broadband service, the take-it-or-leave-it approach becomes one-sided in favor of the service provider. In these situations, the service provider should not condition the provision of broadband on the customer's agreeing to, for example, allow the service provider to track all of the customer’s online activity for marketing purposes. Consumers' privacy interests ought not to be put at risk in such one-sided transactions."

There is no general privacy statute. Rather, most privacy related enforcement actions brought by the FTC rest upon Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45. It is essentially an anti-fraud provision.

It provides that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

Almost all of the FTC's privacy related Section 5 actions have alleged deceptive conduct. For example, the FTC has long and frequently asserted that if a business publishes a web site privacy policy, and then violates that policy, that is deceptive conduct in violation of Section 5.

Although, the FTC has brought a small number of Section 5 actions based upon unfairness. For example, in 2005, in an action against BJ's Wholesale Club, the FTC alleged unfairness in the context of data security. The FTC alleged in its administrative complaint that BJ's "did not employ reasonable and appropriate measures to secure personal information collected at its stores", such as encryption, and that "This practice was an unfair act or practice". See also, FTC web page with hyperlinks to pleadings in that proceeding.

Also, criminals engaged in a scheme to obtain the credit and debit card numbers by wardriving and hacking into the wireless computer networks of major retailers, including BJ's. See, story titled "DOJ Announces Cyber Crime Indictments" in TLJ Daily E-Mail Alert No. 1,808, August 7, 2008, and story titled "Hacker Gonzalez Receives 20 Year Sentence" in TLJ Daily E-Mail Alert No. 2,067, March 30, 2010.

Also, in 2011, in FTC v. Frostwire, the FTC alleged unfairness in the context of default privacy settings. It filed a complaint in the U.S. District Court (SDFl) that alleged, in Count III, that "FrostWire for Android mobile file-sharing application was likely to cause a significant number of consumers installing and running it to unwittingly share personal files stored on their mobile computing devices with the public", thus increasing "consumers' vulnerability to identity theft", and that this constitutes "unfair acts or practices in violation of Section 5 of the FTC Act". See also, FTC web page with hyperlinks to pleadings in that proceeding.

In each of these unfairness based proceedings, the FTC's theory was in the nature of violation of an implied duty to protect consumer data from malicious parties, as a result of negligence, that resulted in financial harm to consumers. In contrast, in the just released report, the FTC's argument that "take it or leave it" is unfair does not rest upon any theory of negligent conduct that results in actual financial harm.

The word "deceptive" in Section 5 has meaning in both common and legal usage. It gives persons and businesses some notice as to what actions may subject them to enforcement actions. It provides limits to FTC action.

In contrast, the word "unfair" in Section 5 lacks meaning. Whether or not a certain activity is unfair varies from person to person, group to group, business to business, and FTC regulator to FTC regulator. It does not put businesses on notice. It does not limit FTC action.

The task of developing a collective determination as to what activities are unfair, and should be subject to prohibition by law, is inherently legislative. In democratic societies, this task is the province of the elected legislature.

The FTC, by expanding from reliance upon a theory of deception, to reliance upon a theory of unfairness, is expanding the scope of its activities from enforcement of a legislative prohibition of the Congress, to regulation of conduct unaddressed by the Congress, and assumption of a legislative power. The expertise of the FTC lies in adjudicatory and rulemaking implementation of Congressionally enacted prohibitions, not in conceiving collective societal judgments.

Perhaps it should be noted that the FTC has a smaller number of employees, and a smaller budget, when compared to some other federal commissions, as well as the Magnusson Moss Act limitations on FTC rulemaking authority, because in the 1970s the FTC usurped authority to make judgments that were both of a legislative nature, and which the actual legislature would not have made.

3/26. The House Homeland Security Committee (HHSC) announced that it will meet to mark up several bills, including HR 3563 [LOC | WW], the "Integrated Public Alert and Public Warning System Modernization Act of 2011", on Wednesday, March 28, 2012. See, notice.

The HHSC will consider an amendment in the nature of a substitute [14 pages in PDF] offered by Rep. Gus Bilirakis (R-FL), the sponsor of the bill.

This bill (as it is to be amended) would add a new Section 526 to the Homeland Security Act of 2002 that would require the Department of Homeland Security (DHS) to "establish or adapt, as appropriate, common alerting and warning protocols, standards, terminology, and operating procedures for the public alert and warning system Integrated Public Alert Warning System Modernization".

It would also provide that the DHS "shall ensure that the system ... incorporates redundant and diverse modes to disseminate homeland security information and other information in warning messages to the public so as to reach the greatest number of individuals

The bill as introduced would give no role to the Federal Communications Commission (FCC). The amendment would create an advisory committee, and provide that the FCC be one agency with representation on that committee. This amendment also lists or describes other members of this advisory committee.

The bill lacks specificity regarding the regulatory authority to be created by the bill. The bill would give the DHS standards setting authority. It is silent regarding authority to compel companies to comply with the standard.

The bill does not specify whether or not the DHS would have authority to regulate the design, manufacture, sale, or import of cell phones, smart phones, tablet computers, other devices, or software.

There is a similar bill, HR 2904 [LOC | WW], also titled the "Integrated Public Alert and Public Warning System Modernization Act of 2011", that would give the Federal Emergency Management Agency (FEMA) authority to establish standards.

The House Transportation Committee (HTC) has oversight jurisdiction with respect to the FEMA. HR 2904 was referred to the HTC.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider the Senate passed version of HR 3606 [LOC | WW], the "Jumpstart Our Business Startups Act" or "JOBS Act", a bill to reduce regulatory barriers to capital formation by small and start up companies. The House will also begin consideration of HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2012". See, stories titled "House Commerce Committee Approves FCC Reform Bills", "Amendment by Amendment Summary of Mark Up of HR 3309", and "Summary of HR 3309, the FCC Process Reform Act " in TLJ Daily E-Mail Alert No. 2,345, March 6, 2012.

The Senate will meet at 10:00 AM. It will resume consideration of S 2204 [LOC | WW], a tax bill pertaining to coal, biofuels, electric vehicles, energy efficiency, and oil companies.

8:30 AM - 5:00 PM. Day two of a five day event hosted by the Department of Homeland Security's (DHS) National Cyber Security Division (NCSD), Department of Defense (DOD), and National Institute of Standards Technology (NIST) titled "16th Semi-Annual Software Assurance (SwA) Forum". On Tuesday, March 27, the agenda is "Securing a Mobile World". The opening keynote speakers will include Joe Jarzombek (DHS), John Streufert (Director of the DHS' NCSD), Tony Sager (NSA). There will then be panels titled "Panel on Securing Mobile Operating Systems", "Securing Mobile Applications" and "Acquiring and Operating Secure Mobile Solutions". Free. Registration required. See, notice and agenda. Location: Mitre Corporation, Building MITRE-1, 7525 Colshire Drive, McLean, VA.

9:00 AM - 5:00 PM. Day one of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). The agenda includes an update on Exascale computing and the Magellan Report for Cloud Computing in Science [170 pages in PDF]. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Page 12823. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

9:00 AM. Day two of a four day event hosted by the National Emergency Number Association (NENA) titled "9-1-1 Goes to Washington". See, notice and agenda. Location: L’Enfant Plaza Hotel, 480 L’Enfant Plaza, SW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "IT Supply Chain Security: Review of Government and Industry Efforts". The witnesses will be Gregory Wilshusen (GAO), Mitchell Komaroff (Department of Defense), Gil Vega (Department of Energy), Larry Castro (Chertoff Group), and Dave Lounsbury (The Open Group). See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Fostering the U.S. Competitive Edge". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on Immigration, Refugees and Border Security will hold a hearing titled "The Economic Imperative for Promoting International Travel to the United States". The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

12:15 - 1:45 PM. The Federal Communications Commission (FCC) and National Telecommunications and Information Administration (NTIA) will host a lunch will host an event titled "The Road Ahead for Spectrum". It will address the spectrum provisions of HR 3630, [LOC | WW], which President Obama signed into law on February 22, 2012. See, stories titled "House and Senate Negotiators Reach Agreement on Spectrum Legislation", "Summary of Spectrum Bill", and "Reaction to Spectrum Bill" in TLJ Daily E-Mail Alert No. 2,339, February 17, 2012, and story titled "Obama Signs Spectrum Bill into Law" in TLJ Daily E-Mail Alert No. 2,345, February 23, 2011. The speakers will be Bill Lake (Chief of the FCC's Media Bureau), Rick Kaplan (Chief of the FCC's Wireless Telecommunications Bureau), Jennifer Manner (Deputy Chief of the FCC's Public Safety & Homeland Security Bureau), Karl Nebbia (Associate Administrator of the NTIA's Office of Spectrum Management), and Mark Brennan (Hogan Lovells). The price to attend is $17. Lunch will be served. Registrations and cancellations due by 12:00 NOON on Friday, March 23, 2012. The FCBA states that this is an FCBA event. Location: Wiley Rein, 1776 K St., NW.

2:00 PM. The House Foreign Affairs Committee (HFAC) will meet to mark up bills, including HR 3605 [LOC | WW], the "Global Online Freedom Act of 2011". See, notice. Location: Room 2172, Rayburn Building.

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

6:00 - 9:15 PM. The DC Bar Association will host an event titled "How to Protect and Enforce Trademark Rights". The speakers will be Steven Hollman (Hogan Lovells) and Shauna Wertheim (Marbury Law Group). 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.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business.

8:30 AM - 5:00 PM. Day three of a five day event hosted by the Department of Homeland Security's (DHS) National Cyber Security Division (NCSD), Department of Defense (DOD), and National Institute of Standards Technology (NIST) titled "16th Semi-Annual Software Assurance (SwA) Forum". On Wednesday, March 28, the agenda is "Designed-in Security". The opening speakers will include Douglas Maughan (DHS). There will then be panels titled "Designed-In Security Enabling Trustworthy Cyberspace", "Education and Training Programs Relevant to Software Assurance" and "SwA Initiatives Supporting the Blueprint for a Secure Cyber Future". Free. Registration required. See, notice and agenda. Location: Mitre Corporation, Building MITRE-1, 7525 Colshire Drive, McLean, VA.

9:00 AM. Day three of a four day event hosted by the National Emergency Number Association (NENA) titled "9-1-1 Goes to Washington". At 11:00 AM there will be a panel comprised of Congressional committee staff. At 12:00 NOON Jamie Barnett, Chief of the FCC's Public Safety and Homeland Security Bureau, will give a lunch speech. See, notice and agenda. Location: L’Enfant Plaza Hotel, 480 L’Enfant Plaza, SW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Transforming Higher Education with IT". The speakers will be Robert Atkinson (ITIF), Stephen Ruth (George Mason University's School of Public Policy), and Steve Crawford (George Washington University's Institute of Public Policy). See, notice. Location: ITIF/ITIC: Suite 610, 1101 K St., NW.

9:00 AM - 12:00 NOON. Day two of a two day meeting of the Department of Energy's (DOE) Advanced Scientific Computing Advisory Committee (ASCAC). The agenda includes an update on Exascale computing and the Magellan Report for Cloud Computing in Science [170 pages in PDF]. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Page 12823. Location: American Geophysical Union (AGU), 2000 Florida Ave., NW.

10:00 AM. The House Homeland Security Committee (HHSC) will meet to mark up several bills, including HR 3563 [LOC | WW], the "Integrated Public Alert and Public Warning System Modernization Act of 2011". See, notice. See also, story titled "House Homeland Security Committee to Mark Up IPAWS Bill" in TLJ Daily E-Mail Alert No. 2,357, March 26, 2012. Location: Room 311, Cannon Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on several bills, including HR 4216 [LOC | WW], the "Foreign Counterfeit Prevention Act", and HR  3668 [LOC | WW], the "Counterfeit Drug Penalty Enhancement Act of 2011". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Cybersecurity: Threats to Communications Networks and Public-Sector Responses". The witnesses will be Fiona Alexander (National Telecommunications and Information Administration), James Barnett (Chief of the FCC's Public Safety and Homeland Security Bureau), Bob Hutchinson (Sandia National Laboratories), Greg Shannon (CERT, Carnegie Mellon University), and Roberta Stempfley (acting DHS Assistant Secretary for Cyber Security and Communications). See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The House Foreign Affairs Committee (HFAC) will hold a hearing titled "Investigating the Chinese Threat, Part One: Military and Economic Aggression". The witnesses will be Dean Cheng (Heritage Foundation), John Tkacik (International Assessment and Strategy Center), and Larry Wortzel (Commissioner, US-China Economic and Security Review Commission). See, notice. Location: Room 2172, Rayburn Building.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will co-host a lunch. The speaker will be Jamie Barnett, Chief of the FCC's Public Safety and Homeland Security Bureau. This lunch is a part of the National Emergency Number Association (NENA) four day conference titled "9-1-1 Goes to Washington". Location: Monet Ballroom, L’Enfant Plaza Hotel, 480 L'Enfant Plaza, SW.

1:00 - 2:00 PM. The National Science Foundation's (NSF) National Science Board's (NSB) Committee on Strategy and Budget Task Force on Data Policies will meet to discuss "data policies". The meeting will be teleconferenced. See, notice in the Federal Register, Vol. 77, No. 50, Wednesday, March 14, 2012, at Page 15141. Location: Federal Register, Vol. 77, No. 50, Wednesday, March 14, 2012, at Page 15141. Location: 4201 Wilson Blvd., Arlington, VA.

1:00 - 4:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Page 12839. Location: FCC, 445 12th St.,  SW.

2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services and General Government will hold a hearing on the FY 2013 budget for the Judiciary. See, notice. Location: Room 2359, 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.

2:30 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Oversight and Investigations will hold a hearing titled "The Price of Public Diplomacy with China". The witnesses will be Steven Mosher (Population Research Institute), Kai Chen, and Greg Autry. See, notice. Location: Room 2172, Rayburn Building.

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

8:30 AM - 5:00 PM. Day four of a five day event hosted by the Department of Homeland Security's (DHS) National Cyber Security Division (NCSD), Department of Defense (DOD), and National Institute of Standards Technology (NIST) titled "16th Semi-Annual Software Assurance (SwA) Forum". On Thursday, March 29, there will be a Static Analysis Tool Exposition (SATE) workshop. Free. Registration required. See, notice and agenda. Location: Mitre Corporation, Building MITRE-1, 7525 Colshire Drive, McLean, VA.

9:00 AM - 4:00 PM. Day four of a four day event hosted by the National Emergency Number Association (NENA) titled "9-1-1 Goes to Washington". This day is set aside for "Hill Visits". See, notice and agenda. Location: L’Enfant Plaza Hotel, 480 L’Enfant Plaza, SW.

9:30 AM - 2:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Pages 12839-12840. Location: Room 5-C162, FCC, 445 12th St., SW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of the nominations of Richard Taranto to be a Judge of the U.S. Court of Appeals (FedCir), Robin Rosenbaum to be a Judge of the U.S. District Court (SDFl), and Gershwin Drain to be a Judge for the USDC/EDMich. The agenda also includes, for the first time, the nominations of William Kayatta, to be a Judge of the U.S. Court of Appeals (1stCir), John Fowlkes (USDC/WDTenn), Kevin McNulty (USDC/DNJ), Michael Shipp (USDC/DNJ), and Stephanie Rose (USDC/SDIowa). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing tilted "Balancing Privacy and Innovation: Does the President's Proposal Tip the Scale?". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "Federally Funded Research: Examining Public Access and Scholarly Publication Interests". See, notice. Location: Room 2318, Rayburn Building.

10:00 AM - 5:00 PM. The Commodity Futures Trading Commission's (CFTC) Technology Advisory Committee will meet. The agenda includes "automated and high frequency trading, final recommendations of the subcommittee on data standardization, and market structure and technology issues relating to credit limit checks". Written comments are due by March 28. See, notice in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Page 15737. Location: CFTC, Three Lafayette Centre, 1155 21st St., NW.

1:00 PM. The Office of the U.S. Trade Representative (OUSTR) will hold a hearing to assist it in preparing its 2011 Annual GSP Product Review. The hearing will cover only the petitions for new products and CNL waivers that have been previously submitted and accepted for review in the 2011 GSP Annual Review. Post hearing comments are due by 5:00 PM on April 16, 2012. See, original notice in the Federal Register, Vol. 77, No. 34, Tuesday, February 21, 2012, at Pages 10034-10036. See also, notice of change of date in the Federal Register, Vol. 77, No. 52, Friday, March 16, 2012, at Page 15841. Location: OUSTR, 600 17th St., NW.

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

TIME? The U.S. China Economic and Security Review Commission will hold a hearing titled "European Union Relations and Implications for the U.S.". Location: :__.

Rep. Cantor's schedule states that "no votes are expected in the House".

Supreme Court conference day. See, calendar. Closed.

8:30 AM - 5:00 PM. Day five of a five day event hosted by the Department of Homeland Security's (DHS) National Cyber Security Division (NCSD), Department of Defense (DOD), and National Institute of Standards Technology (NIST) titled "16th Semi-Annual Software Assurance (SwA) Forum". Free. Registration required. See, notice and agenda. Location: Mitre Corporation, Building MITRE-1, 7525 Colshire Drive, McLean, VA.

RESCHEDULED FOR APRIL 13. 12:00 NOON - 1:00 PM. Federal Communications Commission (FCC) Commissioner Robert McDowell will speak. Free. Brown bag lunch. The FCBA states that this is an FCBA event of its Young Lawyers Committee. Location: FCC, 8th floor South Conference Room, 445 12th St., SW.

Possible date for the Office of the U.S. Trade Representative (OUSTR) to release its annual report titled "National Trade Estimate Report on Foreign Trade Barriers".

Deadline to submit nominations for the National Medal of Technology and Innovation (NMTI) to the U.S. Patent and Trademark Office (USPTO). See, notice in the Federal Register, Vol. 77, No. 9 Friday, January 13, 2012, at Pages 2047-2048. For more information about this program, see stories titled "Bush Awards National Medals of Technology and Science", "House Democrats Promote Their Innovation Agenda", and "Commentary: National Medal of Technology Program" in TLJ Daily E-Mail Alert No. 1,312, February 17, 2006.

The House will not meet on the week of Monday, April 2, through Friday, April 6, or on the week of Monday, April 9, through Friday, April 13.

The Senate will not meet on the week of Monday, April 2, through Friday, April 6, or on the week of Monday, April 9, through Friday, April 13.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in 1st Media v. Electronic Arts, App. Ct. No. 2011-1435. Panel B. Location: Courtroom 402.

6:00 PM. Deadline to submit draft papers to the National Science Foundation (NSF) National Coordination Office (NCO) for Networking and Information Technology Research and Development (NITRD) for its June 11, 2012, event titled "National Symposium on Moving Target Research". The purpose of this symposium is to examine whether there is scientific evidence to show that moving target techniques are a substantial improvement in the defense of cyber systems. See, notice in the Federal Register, Vol. 77, No. 45, Wednesday, March 7, 2012, at Page 13656.

Deadline to submit requests to testify at any of the Copyright Office's (CO) hearings regarding its triennial review of exemptions to the anticircumvention provisions of 17 U.S.C. § 1201. These hearing will be on May 11 in Washington DC, May 17 and 18 in Los Angeles, and May 31, June1, and June 4-6 in Washington DC. See, notice in the Federal Register, Vol. 77, No. 51, Thursday, March 15, 2012, at Pages 15327-15329. Location: CO, Copyright Hearing Room, LM-408, James Madison Building, Library of Congress, 101 Independence Ave., SE.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) [339 pages in PDF] regarding it Lifeline and Link Up universal service tax and subsidy programs. The FCC adopted this FNPRM on January 31, 2012 and released the text on February 6, 2012. It is FCC 12-11 in WC Docket Nos. 11-42, 03-109, and 12-23, and CC Docket No. 96-45. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Pages 12784-12791.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to NextG Networks of California, Inc.'s December 21, 2011, Petition for Declaratory Ruling (part 1 and part 2) regarding whether it is a "commercial mobile radio service" or "CMRS" within the meaning of the FCC's rules. See, FCC's Wireless Telecommunications Bureau's (WTB) February 16, 2012 Public Notice (DA 12-202 in WT Docket No. 12-37). See also, notice in the Federal Register, Vol. 77, No. 39, Tuesday, February 28, 2012, at Pages 12055-12056. And see, NextG Networks web site.

Deadline to submit comments to the Office of Management and Budget (OMB) regarding the information collection burdens imposed by the Federal Communications Commission (FCC) in connection with implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010. See, notice in the Federal Register, Vol. 77, No. 42, Friday, March 2, 2012, at Pages 12837-12839.

EXTENDED FROM MARCH 26. 5:00 PM. Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its request for comments in its wide ranging private sector data privacy inquiry. The NTIA seeks comments regarding "substantive consumer data privacy issues that warrant the development of legally enforceable codes of conduct, as well as procedures to foster the development of these codes". See, original notice in the Federal Register, Vol. 77, No. 43, Monday, March 5, 2012, at Pages 13098-13101. See also, NTIA's extension notice.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Personalized Media Communications v. Scientific Atlanta, App. Ct. No. 2011-1466. Panel D+. Location: Courtroom 402.

1:00 - 2:00 PM. The law firm of Fulbright & Jaworski will host a webcast panel discussion titled "The Latest on the ADA: A Review of the Final Regulations on Their One-Year Anniversary and Recent Noteworthy Court Decisions". The speakers will be Laurie Vasichek (Equal Employment Opportunity Commission), Jennifer Mathis (Bazelon Center for Mental Health Law), Jeff Wray (F&J) and Barbara D'Aquila (F&J). CLE credits. See, notice and registration page.

3:00 - 5:00 PM. The DC Bar Association will host an event titled "International Trade Law & Policy Debate". The topics to be covered include US PRC relations. The speakers will be Gary Horlick (solo practice) and Paul Rosenthal (Kelley Drye & Warren). The price to attend ranges from $5 to $15. No CLE credits. See, notice. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. Location: U.S. International Trade Commission, 500 E St., SW.

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