7/6. The House Judiciary Committee (HJC) announced on July 6 that it will mark up nine bills, beginning on July 10, 2012. The agenda includes the remains of the data retention bill, an economic espionage bill, the Intellectual Property Attache Act, and a bill regarding tax return identity theft.

The second item on the agenda is HR 4362 [LOC | WW], the "Stopping Tax Offenders and Prosecuting Identity Theft Act of 2012".

The third item on the agenda is HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012", which is the controversial data retention bill, with the data retention mandate removed. See, related stories in this issue titled "Rep. Smith Introduces Rump of Data Retention Bill", "HR 6063 and Administrative Subpoenas", and "Commentary: HR 6063, Harassment of Witnesses, and Internet Speech".

The fourth item on the agenda is HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012". See, story in this issue titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage".

The fifth item on the agenda is the HR __ [PDF], the yet to be introduced "Intellectual Property Attaché Act". This bill provides that the Department of Commerce (DOC) and U.S. Patent and Trademark Office (USPTO) "shall establish an intellectual property attaché program by appointing and placing intellectual property attachés in United States embassies or diplomatic missions" where they will have the most potential for "reducing in1tellectual property infringement". The bill does not provide an authorization for appropriation. Rather, the USPTO shall use "existing resources at the PTO".

The meeting is scheduled for July 10 at 10:00 AM in Room 2141 of the Rayburn Building.

6/27. Rep. Lamar Smith (R-TX), Rep. John Conyers (D-MI), and others introduced HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012".

On March 30, 2011, Sen. Herb Kohl (D-WI), Sen. Sheldon Whitehouse (D-RI), and Sen. Christopher Coons (D-DE) introduced S 678 [LOC | WW], the "Economic Espionage Penalty Enhancement Act". The Senate Judiciary Committee (SJC) held a hearing on June 22, 2011. The SJC amended and approved that bill on December 8, 2011.

The Senate bill would increase the maximum penalty for economic espionage, which is codified at 18 U.S.C. § 1831, from 15 to 20 years.

The House bill would do this, and increase the maximum fine from $500,000 to $5,000,000.

The House bill would also increase the maximum fine for corporations and other organizations. The statute currently provides that "Any organization that commits any offense described in subsection (a) shall be fined not more than $10,000,000." HR 6029 provides that the maximum fine is "not more than the greater of $10,000,000 or 3 times the value of the stolen trade secret to the organization, including expenses for research and design and other costs of reproducing the trade secret that the organization has thereby avoided".

Hence, under the language of the House bill, a corporation that engages in economic espionage could face a fine in the billions of dollars.

However, it should be noted that the main violators of this statute lie beyond the jurisdiction of US courts. Neither bill would change the underlying prohibition, or make any other changes that would enhance the ability of prosecutors to reach foreign actors.

The statute provides that "Whoever, intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent, knowingly -- (1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains a trade secret; (2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys a trade secret; (3) receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization; (4) attempts to commit any offense described in any of paragraphs (1) through (3); or (5) conspires with one or more other persons to commit any offense described in any of paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy," shall be punished.

The House bill was referred to the House Judiciary Committee (HJC). The bill's original sponsors include the Chairman and ranking Democrat on the full Committee, as well as the Subcommittee on Intellectual Property, Competition and the Internet.

The other original cosponsors are Rep. Bob Goodlatte (R-VA), Rep. Mel Watt (D-NC), Rep. Howard Coble (R-NC), Rep. Howard Berman (D-CA), Rep. Frank Wolf (R-VA), Rep. Adam Schiff (D-CA), Rep. Jason Chaffetz (R-UT), Rep. Ted Deutch (D-FL), Rep. Ted Poe (R-TX), and Rep. Steve Chabot (R-IN).

6/29. Rep. Lamar Smith (R-TX), Rep. Debbie Schultz (D-FL), and others introduced HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012".

The House Judiciary Committee (HJC) published a copy of the bill on July 6. The HJC also announced on July 6 that it will mark up the bill on July 10. This bill is the third of nine items on the agenda.

Overview of Bill. This bill is the rump of the data retention bill that Rep. Smith endeavored, but failed, to pass earlier in this Congress. HR 6063 contains some of the provisions that were in HR 1981 [LOC | WW], but not the provisions that would have mandated data retention and storage by service providers, that would have provided immunity to service providers for retaining data, and that would have imposed criminal liability for "financial facilitation" of access to child pornography (CP).

The deleted provisions were vigorously opposed by a minority of the HJC, as well as by several industry groups, and advocates of privacy interests and constitutional rights. The deletion of these most controversial provisions may enable passage. For example, Rep. Jason Chaffetz (R-UT) was one of the most vocal critics of HR 1981 during mark up last year. He is now a cosponsor of HR 6063.

The just introduced bill retains the provision that expands administrative subpoena power. Such power dismantles 4th Amendment protection. It also diminishes the role of judges in supervising prosecutorial conduct. Predictably, the cosponsors of the just introduced bill include members of the HJC who are former prosecutors, but not those members who are former judges. See, related story in this issue titled "HR 6063 and Administrative Subpoenas".

The just introduced bill also retains the provision that greatly expands the ability of the Department of Justice (DOJ) to obtain orders related to harassment or intimidation of witnesses or victims, and to criminally prosecute those who violate such orders. Such orders would be easy to obtain, would not require actual harassment or intimidation, and could be based upon internet speech.

Notably, the bill contains language regarding "the distribution or publication using the Internet of a photograph of, or restricted personal information regarding, a specific person". This provision, if enacted, might enable prosecutors to restrain online public discussion, and criticism, of federal criminal prosecutions.

The bill is silent as to whether such restraining orders would apply only to speakers, or could also be obtained against intermediaries, such as "interactive service providers", and whether the bill would carve out a statutory exception to the interactive service provider immunity codified at 47 U.S.C. § 230. See, related story in this issue titled "Commentary: HR 6063, Harassment of Witnesses and Internet Speech".

Rep. Smith gave HR 1981 the title "Protecting Children From Internet Pornographers Act of 2011". He gave HR 6063 the title "Child Protection Act of 2012". Both bills are misleadingly titled. The gist of both bills is to expand federal investigatory and prosecutorial authority across a broad range of cases.

However, both bills contain provisions that would raise the maximum penalty for viewing CP online from 15 to 20 years in prison. And, both bills contain provisions regarding sentencing guidelines. It is these provisions that support claims that these are child protection bills.

Data Retention. HR 1981 would have amended 18 U.S.C. § 2703, a section of the Stored Communications Act (SCA), to add broad additional data retention mandates for any "electronic communications service" (ECS) or "remote computing service" (RCS) provider.

Rep. Smith and Rep. Schultz introduced HR 1981 on May 25, 2011. The HJC's Subcommittee on Crime, Terrorism and Homeland Security held a hearing on HR 1981 on July 12, 2011. See, story titled "House Crime Subcommittee Holds Hearing on Data Retention Mandate Bill" in TLJ Daily E-Mail Alert No. 2,257, July 13, 2011. For a summary of the bill as introduced, see story titled "Summary of HR 1981, Data Retention Mandate Bill" in the same issue.

On July 26 the HJC released a manager's amendment (MA). For a summary of this MA, see story titled "Summary of Manager's Amendment to Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,271, July 27, 2011.

The HJC began its mark up the bill on July 27. See, story titled "House Judiciary Committee Begins Mark Up of Data Retention Bill" in TLJ Daily E-Mail Alert No. 2,272, July 28, 2011.

The HJC completed its mark up on July 28. See, stories in TLJ Daily E-Mail Alert No. 2,278, August 3, 2011:

 • House Judiciary Committee Approves Data Retention Bill
 • Amendment by Amendment Summary of the Mark Up of HR 1981, the Data Retention Bill
 • Roll Call Votes on Data Retention Bill
 • Excerpts From 18 U.S.C. § 2703 As Amended by HR 1981
 • Wiretaps, Sneak and Peak Warrants, and the Likely Uses of Retained Data
 • Commentary: How Enactment of HR 1981 Would Benefit Service Providers
 • Judges, Prosecutors and Data Retention

However, neither the House nor the Senate have passed the bill.

Section 2703 already contains two data retention provisions. HR 1981 as amended would impose a blanket 12 month retention mandate, with an exemption for wireless service providers.

While neither the House nor the Senate has passed a bill in this Congress to further mandate data retention, the mere acts of introducing and moving a bill through committee has increased the persuasive powers of the DOJ when negotiating with service providers regarding their data retention practices. Many bills are introduced, not with a realistic expectation of passage, but rather to influence events outside of the Congress during consideration of such bills.

Reaction. The Center for Democracy and Technology (CDT) published a short piece, authored by Mark Stanley. He wrote that "It's encouraging to see that Smith and HR 6063 cosponsor Rep. Debbie Wasserman Schultz (D-FL) listened to the legitimate concerns of thousands of Internet users -- who petitioned Congress through sites like EFF and Demand Progress -- and removed the data retention mandate from their bill. Like many ill-conceived legislative provisions, the mandate has died, not with a bang but a whimper. And while data retention has proven to be one of the pet perennial issues of Congress, reappearing session after session, for now its absence from HR 6063 is a victory for Internet privacy and freedom."

Administrative Subpoenas and Harassment of Witnesses. The two key provisions of HR 1981, which remain in HR 6063, would extend administrative subpoena authority to the DOJ's Unites States Marshals Service (USMS), and expand the existing statute that enables the DOJ to obtain from the court a temporary restraining order, and permanent order, to protect witnesses and victims from harassment.

The administrative subpoena provision was the focus of some debate last year during consideration of HR 1981. It is the subject of a related story in this issue titled "HR 6063 and Administrative Subpoenas".

The witness and victim protection provision was barely mentioned during consideration of HR 1981. This provision is the subject of a piece in this issue titled "Commentary: HR 6063, Harassment of Witnesses and Internet Speech".

The analysis of this piece is that this provision would so broadly expand the existing statute as to enable the DOJ to obtain ex parte temporary restraining orders, against both internet speakers, and perhaps service providers, for discussion and criticism of DOJ activities and operations, in the absence of actual harassment or intimidation of witnesses, or attempts to tamper with witnesses.

7/9. HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012", introduced on June 29, 2012, would, among other things, give the Unites States Marshals Service (USMS) the authority to subpoena, without court approval, records and testimony "for the purpose of investigating unregistered sex offenders".

This provision is also in HR 1981 [LOC | WW], the data retention bill approved by the House Judiciary Committee (HJC) last year. It attracted much criticism from a minority of HJC members at that time.

There is already a statute, codified at 18 U.S.C. § 3486, that provides for federal administrative subpoena power, in three situations: (1) investigations of "a Federal health care offense", (2) investigations of "a Federal offense involving the sexual exploitation or abuse of children", and (3) investigations by the Secret Service in which there is an "imminent" threat to someone protected by the Secret Service.

Section 3486 also enumerates the offenses that involve "sexual exploitation or abuse of children". It includes 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, which are the two main sections used to prosecute people who distribute or view child pornography (CP) online.

HR 6063 provides that the USMS may "issue administrative subpoenas in accordance with section 3486 of title 18, solely for the purpose of investigating unregistered sex offenders". It adds that "sex offender" means "an individual required to register under the Sex Offender Registration and Notification Act".

The 4th Amendment of the Constitution provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Critics of this type of power argue that administrative subpoenas are an end run around the 4th Amendment. That is, these subpoenas enable the government to conduct certain searches and seizures, without any a warrant or other order issued by a judge.

The HJC committee report on HR 1981 (Report No. 112-281) explains that obtaining court approval first requires making "a request to a United States Attorney's Office", and that this "process is burdensome and time-consuming".

Rep. John Conyers (D-MI), Rep. Bobby Scott (D-VA), Rep. Zoe Lofgren (D-CA), and Rep. Hank Johnson (D-GA) wrote in a dissent to the committee report that this bill "dramatically expands administrative subpoena power, circumventing judicial oversight".

Not only does an administrative subpoena remove judicial approval and supervision, Section 3486 removes the requirement that there be probable cause to believe that a crime has been or will be committed. This section merely requires that the subpoena be in writing, be served, and describe the records or testimony that is sought. For child abuse related subpoenas, the request must only be "relevant to an authorized law enforcement inquiry".

Inherent in the 4th Amendment is the principle that the federal government may only conduct searches and seizures when it is investigating crimes and criminals. A Section 3486 administrative subpoena encompasses the contradictory principle that the government may conduct searches and seizures in the absence of any crime, and investigate persons without any suspicion that they have committed a crime.

Moreover, Section 3486 expressly applies to subpoenas directed at internet service providers. It references "electronic communication service" or "remote computing service", which are outdated terms, but are in the Electronic Communications Privacy Act (ECPA).

Recent DOJ activity demonstrates that administrative subpoenas are subject to improper use. For example, National Security Letters (NSLs) are akin to administrative subpoenas. They involve no judicial approval. They seek records held by third parties. And, they have been widely abused by the DOJ and its Federal Bureau of Investigation (FBI). The DOJ's Office of the Inspector General (OIG) has written reports that document this abuse.

On March 9, 2007, the DOJ's OIG released a report [30 MB in PDF] titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters". See also, story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007. That report covered the use of NSLs in 2003 through 2005.

On March 13, 2008, the OIG released a report [187 pages in PDF] titled "A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006". See also, story titled "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008.

The then IG (Glenn Fine), and the assistant most responsible for these reports (Roslyn Mazer), are no longer employed by the DOJ.

At the hearing and markup of HR 1981, most of the testimony and debate focused on data retention. However, administrative subpoenas were also the subject of debate and amendments, which were rejected.

Ernie Allen, head of the National Center for Missing and Exploited Children (NCMEC), wrote in his prepared testimony that "The U.S. Marshals are key players in the fight against child sexual exploitation. They have made remarkable progress in tracking down non-compliant sex offenders. However, their efforts would be dramatically enhanced if they were granted administrative subpoena authority."

Michael Brown, who testified on behalf of the National Sheriffs Association, wrote in his prepared testimony that "H.R. 1981 also ... provides administrative subpoena authority to the U.S. Marshals to access critical travel information and records on fugitive sex offenders ..."

The committee report states that it would be used to obtain "hotel, rental car, or airline records".

In contrast, Rep. James Sensenbrenner (R-WI), the Chairman of the HJC's Subcommittee on Crime, argued that "the administrative subpoena power that is given to the Marshals Service will allow not only the Marshals Service but any other law enforcement agency with existing administrative subpoena power to rummage through Internet service providers' records, whether it is on the subject of child pornography or any other subject relating to law enforcement, and that we should restrict severely administrative subpoena powers that are given to law enforcement for, particularly, the gathering of evidence." (See, pages 1-2, or July 12, 2011, hearing record.)

He also stated that "People should also be aware that I fought vigorously to avoid granting more administrative subpoena power to any Federal law enforcement agency during both the PATRIOT Act consideration and the PATRIOT Act reauthorization in 2005 and 2006."

Arguably, this section might be employed, not only to further a targeted investigation directed at locating one individual previously convicted of a CP offense, but also to engage in broad and periodic data aggregation activities, which collections of data would then be used for other purposes.

However, much is missing from the pubic record. For example, the HJC's hearing on HR 1981 on July 12, 2011, did not include any federal government officials from the DOJ or its USMS, or any other federal department or agency. Hence, no one testified regarding how they would use this administrative subpoena authority, or why they need it.

Nor did the government submit any statements for the record of the July 12, 2011, hearing, or for the committee report on HR 1981. DOJ officials have stated in other fora and in other contexts that the DOJ seeks greater administrative subpoena power. Also, the DOJ may have made non-public communications to HJC regarding HR 1981. Thus, the HJC approved this section of the bill either without relevant information, or without transparency.

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The House will meet at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider several bills, under suspension of the rules, including HR 4367 [LOC | WW], the "Electronic Fund Transfer Act", a bill to limit the fee disclosure requirement for an automatic teller machine to the screen of that machine. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Rembrandt Technologies v. Cablevision Systems, App. Ct. No. 2012-1022. See, Federal Circuit calendar. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Liquidnet Holdings v. Pulse Trading, App. Ct. No.2011-1508, an appeal from the U.S. District Court (SDNY). See, Federal Circuit calendar. Location: Courtroom 402.

2:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Africa, Global Health and Human Rights will hold a hearing titled "Continued Human Rights Attacks on Families in China". See, notice. Location: Room 2200, Rayburn Building.

3:00 - 5:00 PM. The American Enterprise Institute (AEI) will host a speech by Keith Alexander (Director of the National Security Agency) "Cybersecurity and American Power: Addressing New Threats to America's Economy and Military". The AEI notice states that this event will focus on "Chinese hackers". Location: AEI, 12th floor, 1150, 17th St., NW..

Deadline to submit comments to the Copyright Office (CO) regarding its proposed rules changes regarding the filing of notices of intention to obtain a compulsory license, pursuant to 17 U.S.C. § 115. The CO proposes to provide an option for electronically filing the notice. Comments are due by 5:00 PM on July 9, 2012. See, notice in the Federal Register (FR), Vol. 77, No. 102, Friday, May 25, 2012, at Pages 31237-31240.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [182 pages in PDF] regarding its collection of universal service taxes. The FCC adopted this item on April 27, 2012, and released the text on April 30. It is FCC 12-46 in WC Docket Nos. 06-122 and GN Docket No. 09-51. See, notice in the Federal Register, Vol. 77, No. 110, Thursday, June 7, 2012, at Pages 33896-33944.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It will begin consideration, subject to a rule, of the "Repeal ObamaCare Act". See, Rep. Cantor's schedule.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing titled "Developing the Framework for Safe and Efficient Mobile Payments, Part 2". See, notice. Location: Room 538, Dirksen Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold an oversight hearing on the Federal Communications Commission (FCC). The witnesses will be the five Commissioners of the FCC. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology 's HIT Policy Committee will meet. See, notice in the Federal Register, Vol. 77, No. 120, Thursday, June 21, 2012, at Pages 37407-37408. Location: Renaissance Washington, DC DuPont Circle Hotel, 1143 New Hampshire Ave., NW.

1:00 - 2:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a webcast presentation titled "Privacy & Information Security Update". The speakers will be Aryeh Friedman (Dun & Bradstreet), Edward McNicholas (Sidley Austin), and Elisa Jillson (Sidley Austin). No CLE credits. See, ABA notice.

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

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It may complete consideration of the "Repeal ObamaCare Act". The House may also begin consideration, subject to a rule, of HR 4402 [LOC | WW], the "National Strategic and Critical Minerals Production Act of 2012". This bill pertains to "China's reduction in exports of rare-earth elements necessary for telecommunications" and other technologies. See, Rep. Cantor's schedule.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Impact on Competition of Exclusion Orders to Enforce Standard-Essential Patents". See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "National Security Leaks and the Law". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM - 12:00 NOON. The Heritage Foundation (HF) will host two panels titled "Scholars & Scribes Review the Rulings: The Supreme Court's 2011-2012 Term". The speakers will be Donald Verrilli (Solicitor General of the US), Richard Epstein (NYU law school), Michael Carvin (Jones Day), Edwin Meese (HF), David Savage (Los Angeles Times and Chicago Tribune), Mark Sherman (The Associated Press), Howard Bashman (How Appealing), and Todd Gaziano (HF). See, notice. Location: HF, 214 Massachusetts Ave., NE.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Technology Patents v. Deutsche Telekom, App. Ct. No. 2011-1581. See, Federal Circuit calendar. Location: Courtroom 402.

12:00 NOON - 1:30 PM. The Technology Policy Institute (TPI) will host an event titled "The Effect of File Sharing on Music and Movie Sales: Reviewing the Research". Stan Liebowitz (University of Texas at Dallas) will present a paper titled "The Metric is the Message: How much of the Decline in Sound Recording Sales is due to File-Sharing?" See, notice. Location: First Amendment Lounge, National Press Club, 529 14th St., NW.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced presentation titled "Recent Developments in Insider Trading and Market Abuse Regulation in the US, UK/EU and Asia". The speakers will be Edward Greene (Cleary Gottlieb), Manfred Ketzer (Hausmaninger Kletter), Piyasena Perera (Anderson Mori & Tomotsune), and Cheryl Nichols (Howard University School of Law). Prices vary. See, ABA notice.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a panel discussion titled "Summer Associate and Intern Panel on Advertising, Privacy, and Consumer Protection Law: Exciting Career Opportunities in an Emerging Practice". The speakers will be Daniel Blynn (Kelley Drye & Warren), Katherine Campbell (FTC), Sang Lee (DOJ), Adrienne Fowler (DOJ), Kristin McPartland (Kelley Drye & Warren), and David Conway (Venable). No CLE credits. See, notice. Location: Bryan Cave, 1155 F St., NW.

1:00 PM. The DC Bar Association will host a panel discussion titled "The Politics of Copyright". The speakers will be Ernesto Falcon (Public Knowledge), Susan Ferrechio (D.C. Examiner), James Losey (New America Foundation), and Paige Gold. The price to attend ranges from $10 to $45. No 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.

6:00 PM. Deadline to submit short form applications to the Federal Communications Commission's (FCC) Wireless Telecommunications Bureau (WTB) and Wireline Competition Bureau (WCB) in connection with Auction 901. This is the reverse auction, scheduled to commence on September 27, 2012, to award $300 Million in one time Mobility Fund Phase I support scheduled to commence on September 27, 2012. See, notice in the Federal Register, Vol. 77, No. 105, Thursday, May 31, 2012, at Pages 32092-32111.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Trivia Night". For more information, contact Matt Gerst at MGerst at ctia dot org or Justin Faulb at Faulb at lojlaw dot com. Location: Laughing Man Tavern, 1306 G St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. It may complete consideration of HR 4402 [LOC | WW], the "National Strategic and Critical Minerals Production Act of 2012". See, Rep. Cantor's schedule.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Manufacturing and Trade will hold a hearing on HR __, a yet to be introduced bill to reauthorize the U.S. SAFE WEB Act. This Act, which sunsets in December, increases the investigatory and information sharing powers of the Federal Trade Commission (FTC). See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of the nominations of Terrence Berg (USDC/EDMich), Jesus Bernal (USDC/CDCal), and Lorna Schofield (USDC/SDNY). See, notice. The SJC will webcast this meeting. Location: Room 226, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cy Technology v. Groupon, App. Ct. No. 2011-1568. See, Federal Circuit calendar. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Function Media v. Google, App. Ct. No. 2012-1020. See, Federal Circuit calendar. Location: Courtroom 402.

12:00 NOON - 1:15 PM. The American Bar Association (ABA) will host a webcast and teleconferenced presentation titled "The JOBS Act in Ninety Minutes: What Business Lawyers Need to Know". See, HR 3606 [LOC | WW], the "Jumpstart Our Business Startups Act", an act that reduces regulatory burdens to increase access to the public capital markets for emerging growth companies. President Obama signed it into law on April 5, 2012. It is now Public Law No. 112-106. CLE credits. Prices vary. See, notice.

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

4:00 - 7:15 PM. The DC Bar Association will host a presentation titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Ray Hartwell (Hunton & Williams), Donald Klawiter (Sheppard Mullin), and Ann O'Brien (DOJ Antitrust Division). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

The House will not meet. See, Rep. Cantor's schedule.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Fox Group v. Cree, App. Ct. No. 2011-1576, an appeal from the U.S. District Court (EDVA). See, Federal Circuit calendar. Location: Courtroom 201.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. USITC, App. Ct. No. 2011-1592. See, Federal Circuit calendar. Location: Courtroom 201

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced presentation titled "June Antitrust Update for In-House Counsel". No CLE credits. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [MS Word], DA 12-818, regarding the privacy and data security practices of mobile wireless services providers with respect to customer information stored on their users' mobile communications devices. See also, notice in the Federal Register, Vol. 77, No. 114, Wednesday, June 13, 2012, at Pages 35336-35338.

7/9. HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012", introduced on June 29, 2012, would, among other things, broadly expand an existing witness protection statute. However, it might be utilized by the government to enjoin internet speech that does not involve witness tampering.

Victims of crimes, and prosecution witnesses, are sometimes the target of intimidation directed at stopping them from testifying, or inducing them to provide false testimony. The DOJ already has a wide range of tools to protect victims and witnesses, numerous statutory offenses to charge, and other judicial remedies.

One such remedy is currently codified at 18 U.S.C. § 1514. It pertains to a "Civil action to restrain harassment of a victim or witness".

Currently, Section 1514 enables the Department of Justice (DOJ) to obtain a "temporary restraining order prohibiting harassment of a victim or witness in a Federal criminal case if the court finds, from specific facts shown by affidavit or by verified complaint, that there are reasonable grounds to believe that harassment of an identified victim or witness in a Federal criminal case exists or that such order is necessary to prevent and restrain an offense under" 18 U.S.C. § 1512. Section 1512 is the criminal prohibition of tampering with a witness, victim or informant.

HR 6063 would greatly expand this section. See, mark up version of Section 1514, showing additions in red, and deletions in cross through. (Section 3(a) of HR 6063 is the same as Section 8 of HR 1981 IH.)

This new language, if enacted into law in its current form, might be used by the DOJ to obtain a no notice restraining order against bloggers and tweeters, and perhaps even their service providers, for online discussion or criticism of the activities and operations of federal prosecutors, in the absence of any intent to harass or intimidate anyone, as those terms are commonly understood.

Moreover, this section affects federal prosecutions broadly, and not just CP and child abuse cases.

HR 6063 would enable a civil action by the DOJ which differs from the existing civil action is several ways. First, it removes that requirement that the court order be necessary to prevent witness tampering.

Second, it lowers the standard of proof from "preponderance of the evidence that harassment ... exists" to "reasonably likely to adversely affect the willingness ... to testify". That is, currently, the government must show that there has been actual harassment. This bill would allow the government to merely show a hypothetical possibility.

Third, it removes the requirement that the DOJ submit an affidavit or verified complaint.

Fourth, it expands the time period covered from "Federal criminal case" to "Federal criminal case or investigation".

When Rep. Lamar Smith (R-TX), the sponsor of HR 1981 and HR 6063, described this section at the July 12, 2011 hearing, he said that witnesses and victims "are often subjected to harassment and intimidation throughout the trial period". (See, July 12, 2011, hearing record, at page 17.)

That is, Rep. Smith identified the problem as occurring during trial. However, the current statute allows actions for restraining orders to be brought as early as upon return of an indictment or filing of a complaint or information. This bill would allow restraining orders to be issued yet earlier -- as soon as there is an investigation.

There is a notice problem here. Individuals and service providers may be subjected to restraining orders for engaging about speech about matters being investigated, when they have no knowledge that there is an investigation under way.

Furthermore, Section 1514 provides that the DOJ can obtain an order restraining either "harassment" or "intimidation" of witnesses or their relatives. It contains vague but very minimal definitions of "harassment" and "intimidation". The term "harassment' is not defined in terms of violence, threats or inducements, but rather merely as causing "substantial emotional distress" and having "no legitimate purpose". Similarly, "intimidation" is merely causing "apprehension" and having "no legitimate purpose". Many people experience "apprehension" at the thought of testifying at a trial, or being cross examined, in the absence of any improper conduct.

The effect of all of these changes would be that it would become easy for the DOJ to obtain restraining orders, in the absence of actual harassment, intimidation, or tampering, and judges would have limited discretion to deny requests.

One likely use of this new action would be to prevent defense attorneys in some cases from contacting witnesses and relatives of witnesses. This is a fundamental function of defense attorneys, and implicates the due process and effective assistance of counsel rights of defendants. However, it is not a technology related issue, and hence, mentioned here without further elaboration.

Another likely use of the new language is technology related. The bill provides that internet speech can be restrained.

It provides that the term "no legitimate purpose" is further qualified by this: "a court shall presume, subject to rebuttal by the person, that the distribution or publication using the Internet of a photograph of, or restricted personal information regarding, a specific person serves no legitimate purpose, unless that use is authorized by that specific person, is for news reporting purposes ...". (Emphasis added.)

The term "specific person" means any victim, witness, or their family members. The term "restricted personal information" is broadly defined, by reference to 18 U.S.C. § 119, to include information as basic as a name and email address.

The Constitution guarantees defendants a "public trial". In an open society people discuss, communicate information, and express opinions regarding trials, as well as investigatory and prosecutorial activities of the government. Today, people use the internet to engage in such speech. Very little of this done with any intent to tamper with witnesses. Yet, the language contained in the bill defines harassment and intimidation so minimally, and even presumes the impropriety of internet expression, that legitimate internet speech may be enjoined or chilled.

Section 230 Immunity. The bill provides that the DOJ can obtain an order from the court. It states that the order may be based upon internet distribution or publication. However, the bill does not specify against whom an order may be issued.

The bill does state that the court may issue an "order prohibiting harassment or intimidation". Since the speech at issue will often be in a web site operated by a third party, it might be expected that that DOJ will argue, and some judges will concur, that the order may also be directed at the third party.

The bill raises a number of issues. For example, can the DOJ obtain a Section 1514 order enjoining Facebook, or another interactive computer service, for statements made by its users regarding DOJ investigations or cases?

If so, would this be in the nature of a take down order, similar to a DMCA take down notice under 17 U.S.C. § 512?

Could the order direct the service provider to monitor future user generated content, and self censor its web site?

Does the phrase "distribution ... using the Internet" encompass email, text messages, or tweets?

Would this bill carve out an exception to Section 230 immunity for actions by the DOJ under Section 1514, and/or criminal prosecutions for violation of Section 1514 orders?

47 U.S.C.§ 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Constitutional Procedural Rights. In addition, the bill creates a presumption, binding upon the judge, that internet distribution or publication serves no legitimate purpose. The presumption is rebuttable. But, the bill provides for, and the DOJ is likely to utilize, ex parte filings and ex parte orders.

There would be no opportunity to rebut a presumption in a closed ex parte proceeding. And since criminal liability would attach to a violation of an ex parte order, there is the question of whether such a procedure is consistent with 5th amendment due process rights, and 6th amendment rights to notice, a pubic trial, and confrontation of witnesses.

The removal of the requirement that the DOJ submit anything by way of affidavit of verification may add an additional due process infirmity.

Free Speech Rights of Bloggers. There is another potential Constitutional infirmity in this bill's internet speech clause. There is an exception for "news reporting purposes". The statute thus creates two categories of speakers -- those that report news, and other persons. News entities may be permitted to engage in a category of speech which might be denied to bloggers or Twitter and Facebook users.

The Supreme Court, in its free press cases, has not recognized any right in news media that is distinct from that held by any person.

As former Chief Justice Warren Burger wrote in his concurring opinion in FNB v. Belotti, "The very task of including some entities within the ``institutional press´´ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country."

Chief Justice Burger continued that "Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination".

"In short, the First Amendment does not ``belong´´ to any definable category of persons or entities: It belongs to all who exercise its freedoms." See, First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

See also, the 1972 opinion of the Supreme Court in Branzburg v. Hayes, which is reported at 408 U.S. 665. The Court wrote that "Freedom of the press is a `fundamental personal right´ which `is not confined to newspapers and periodicals."

Public Record. This provision was barely mentioned during the July 12, 2011 hearing. The committee report (Report No. 112-281) contains a few cursory paragraphs that mostly reference local news stories regarding allegations of witness intimidation.

No one from the DOJ testified at the hearing, or submitted a statement for the hearing record, or committee report, explaining why this provision is necessary, or how it would be used.

The committee report does not address the internet speech clause. None of the anecdotal news reports cited in the report involved internet based speech.