7/23. The U.S. District Court (DC) issued its Memorandum Opinion [PDF] in ACLU v. DOS holding that the ACLU is not entitled to records under the FOIA already published by WikiLeaks.

The American Civil Liberties Union (ACLU) submitted a request to the Department of State (DOS), pursuant to the federal Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552, for certain DOS embassy cables. The DOS did not produce 23 cables.

The ACLU filed a complaint in the District Court against the DOS alleging violation of the FOIA for failure to produce these 23 embassy cables. Both sides filed motions for summary judgment.

The District Court held that these records fall within the FOIA national security exemption. However, these records had already been published by WikiLeaks. Hence, the ACLU also argued that since they are publicly available, they do not fall within the exemption.

The District Court wrote that "when the specific information sought by a plaintiff is already in the public domain by an official disclosure, an agency cannot be heard to complain about further disclosure".

However, it continued that "public disclosure alone is insufficient; the information in the public domain must also be ``officially acknowledged.´´" (The District Court cited DC Circuit's 1990 opinion in Fitzgibbon v. CIA, 911 F.2d 755.)

The District Court elaborated that "there can be a critical difference between official and unofficial disclosures". Just because the records exist in some form in the public domain does not mean that official disclosure will not cause harm.

The District Court wrote, "No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure."

This case is ACLU v. DOS, U.S. District Court for the District of Columbia, D.C. No. 1:11-cv-01072-CKK, Judge Colleen Kotelly presiding.

7/25. The Government Accountability Office (GAO) released a report [45 pages in PDF] titled "Telecommunications: FCC Has Reformed the High-Cost Program, but Oversight and Management Could be Improved".

In concept, the Federal Communications Commission (FCC) provides subsidies to telecommunications carriers that serve rural, remote, and other areas where the costs of providing telephone service are high.

Recently, the FCC adopted a huge order that, among other things, expanded the scope of the program to include broadband internet access service. See, Report and Order and Further Notice of Proposed Rulemaking [752 pages in PDF], adopted on October 27, 2011, and released on November 17, 2011. It is FCC 11-161 in WC Docket No. 10-90, GN Docket No. 09-51, WC Docket No. 07-135, WC Docket No. 05-337, CC Docket No. 01-92, CC Docket No. 96-45, WC Docket No. 03-109, and WT Docket No. 10-208.

The GAO report states that there are "concerns about what the program is accomplishing, whether the fund can be sustained over the long term, and the cost burden it imposes on consumers". It also states that subsidization of "broadband deployment could cause the size of the fund to greatly expand unless policymakers reexamined its purpose, design, and management, and unless FCC improved its management and oversight processes to ensure the program's cost-effectiveness".

This report offers the modest conclusion that "As FCC looks to broaden the scope of the high-cost program by providing support for broadband capable networks, it is therefore important for FCC to ensure that the limited program funds are used as effectively and efficiently as possible to stem further growth in the fund."

This report only recommends that the FCC "establish a specific data-analysis plan for the carrier data and make the information publicly available" It also states that "To help minimize the universal service contribution burden on consumers and businesses, as FCC examines and revises the manner in which carrier support payments are calculated, consult with the Joint Board and/or make appropriate referrals to determine what factors, such as carrier revenues, should be considered in the calculation."

The GAO wrote this report at the request of House Commerce Committee (HCC) Democrats.

7/23. The Cato Institute, Competitive Enterprise Institute (CEI), Free State Foundation (FSF), and Tech Freedom filed an amicus curiae brief with the U.S. Court of Appeals (DCCir) in Verizon v. FCC, a challenge to the FCC's order that adopted rules for the regulation of the network management practices of broadband internet access service providers. They ask the Court to vacate the FCC order.

They wrote that the FCC's "network-neutrality regulation ... benefits content providers at the expense of broadband providers' constitutional rights."

Specifically, "By denying Internet service providers their editorial discretion and by compelling them to convey content providers’ messages with which they may disagree, the Order violates broadband providers' First Amendment rights."

"It is particularly pernicious because it applies only to some speakers. ... The Order therefore requires strict-scrutiny review, ... which it cannot survive."

These amici also argue that the FCC order "violates the Fifth Amendment's prohibition on takings without just compensation: it works a per se taking by giving content providers a permanent easement for nearly unfettered use of network owners' physical property (the cables and wires constituting their networks)." (Parentheses in original.)

The FCC rules under review are contained in the Report and Order (R&O) [194 pages in PDF] adopted on December 21, 2010, and released on December 23, 2010. This R&O is FCC 10-201 in GN Docket No. 09-191 and WC Docket No. 07-52. See also, stories in TLJ Daily E-Mail Alert No. 2,186, December 22, 2010, and TLJ Daily E-Mail Alert No. 2,188, December 24, 2010.

This case is Verizon v. FCC, U.S. Court of Appeals for the District of Columbia, D.C. No. 11-1356.

7/20. The Executive Office of the President's (EOP) President's Council of Advisors on Science and Technology (PCAST) release a report [192 pages in PDF] titled "Realizing the Full Potential of Government-Held Spectrum to Spur Economic Growth".

This report states that "clearing and reallocation of Federal spectrum is not a sustainable basis for spectrum policy due to the high cost, lengthy time to implement, and disruption to the Federal mission. Further, although some have proclaimed that clearing and reallocation will result in significant net revenue to the government, we do not anticipate that will be the case for Federal spectrum."

"Historically, spectrum was managed by assigning exclusive rights to use a specific frequency in a specific location." The report continues that "Since the mid-1990s, long term commercial licenses have generally been assigned through competitive auctions. Winning bidders typically receive spectrum access in the form of exclusive assignments of frequencies to chosen services (i.e., licenses), ensuring that no other services infringe on that assignment (i.e., no interference)." (Parentheses in original.)

This report states that "today's apparent shortage of spectrum is in fact an illusion brought about because of the way spectrum is managed." It asserts that by changing the way spectrum is managed, scarcity can be transformed to abundance.

Moreover, "This expansion can be done in such a way that it will not result in a loss of revenue to the Federal Government and may result in new revenue either from enhanced economic growth and innovation or from modest leasing fees. But in either case, the value to the Federal Government will be greater if the spectrum is available for reuse or relicensing more often than it is today. The new system for Federal spectrum management that this report calls for -- a new spectrum architecture and a corresponding shift in the architecture of future radio systems that use it -- can multiply the effective capacity of spectrum by a factor of 1,000." (Footnote omitted.)

"The essential element of this new Federal spectrum architecture is that the norm for spectrum use should be sharing, not exclusivity." And, "spectrum should be managed not by fragmenting it into ever more finely divided exclusive frequency assignments, but by specifying large frequency bands that can accommodate a wide variety of compatible uses and new technologies that are more efficient with larger blocks of spectrum."

Lawrence Strickling, head of the National Telecommunications and Information Administration (NTIA), stated in a release that "I am particularly pleased that this panel of experts has validated what we at NTIA have been saying for the past year: We need to find a new way of making spectrum available for commercial broadband, and that new way has to embrace the sharing of spectrum between federal agencies and industry."

In contrast, AT&T's Joan Marsh stated in a release that "we are concerned with the report's primary conclusion that the norm for spectrum use should be sharing, not exclusivity.’ The report fails to recognize the benefits of exclusive use licenses, which are well known. Those licenses enabled the creation of the mobile Internet and all of the ensuing innovation, investment and job creation that followed."

She continued that "While we should be considering all options to meet the country's spectrum goals, including the sharing of federal spectrum with government users, it is imperative that we clear and reallocate government spectrum where practical. We fully support the NTIA effort of determining which government bands can be cleared for commercial use, and we look forward to continuing to work with NTIA and other stakeholders to make more spectrum available for American consumers and businesses."

Gigi Sohn, head of the Public Knowledge (PK) stated in a release that "The path to sustainaible spectrum growth must take advantage of our power to innovate and our leadership in open spectrum technologies such as Wi-Fi and Super Wi-Fi."

She wrote that government and industry have quarreled "over whether to embrace more exclusive licensing or spectrum sharing as if a gain for one means a loss for the other. We are happy the PCAST report rejects this false choice that has deadlocked our spectrum policy for too long. By embracing sharing while continuing to find clearable spectrum for auction, we can not only ensure an endless supply of cat videos for our smart phones, but also provide enough open spectrum for technological innovation, job creation, and lower connection prices for consumers."

The House will meet at 2:00 PM in pro forma session only. See, Rep. Cantor's schedule for the week.

The Senate will meet at 2:00 PM. The Senate will consider the nomination of Robert Bacharach to be a Judge of the U.S. Court of Appeals (10thCir).

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its its draft SP 800-130 [112 pages in PDF] titled "A Framework for Designing Cryptographic Key Management Systems".

Deadline to submit reply 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.

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. The House will consider numerous items under suspension of the rules, including HR 3120 [LOC | WW], the "Student Visa Reform Act", HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012", HR 6063 [LOC | WW], the "Child Protection Act of 2012", and HR 4362 [LOC | WW], the "STOP Identity Theft Act of 2012". Votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule for the week.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee's (SHSGAC) Subcommittee on Oversight of Government Management will hold a hearing titled "State of Federal Privacy and Data Security Law: Lagging Behind the Times?". The witnesses will be Mary Ellen Callahan (DHS Chief Privacy Officer), Greg Long (Federal Retirement Thrift Investment Board), Greg Wilshusen (Government Accountability Office), Peter Swire (Ohio State University law school), Chris Calabrese (ACLU), and Paul Rosenzweig (Heritage Foundation). See, notice. Location: Room 628, Dirksen Building.

DATE AND TIME CHANGE. 12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Powering the Mobile Revolution: Principles of Spectrum Allocation". The speakers will be Richard Bennett (ITIF), Christopher McCabe (CTIA), Morgan Reed (Association for Competitive Technology), John Liebovitz (FCC), and Thomas Tower (OSTP). See, notice. Location: Room B-318, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will meet in executive session. The agenda includes consideration of S 3410 [LOC | WW], a bill to extend the Undertaking Spam, Spyware, And Fraud Enforcement with Enforcers beyond Borders Act of 2006.

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

4:00 PM. The House Commerce Committee (HCC) will begin its mark up of four bills, including HR 6131 [LOC | WW], a bill to extend the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers Beyond Borders Act of 2006" or "SAFE WEB Act". The HCC will hear opening statements of members on July 31. See, notice. Location: Room 2123, Rayburn Building.

The House will meet at 10:00 AM for morning hour and at 2:00 PM for legislative business. See, Rep. Cantor's schedule for the week.

9:30 AM. Two Subcommittees of the House Ways and Means Committee (HWMC) will hold a hearing on removing social security numbers from Medicare cards. See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The House Commerce Committee (HCC) will meet to mark four bills. The fourth item on the agenda is HR 6131 [LOC | WW], a bill to extend the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers Beyond Borders Act of 2006" or "SAFE WEB Act". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee (HJC) will meet to mark up numerous bills. The first item on the agenda is HR 6215 [LOC | WW], an untitled bill to amend the Trademark Act regarding remedies for dilution. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "The Relationship Between Business and Research Universities: Collaborations Fueling American Innovation and Job Creation". The witnesses will be William Green (Accenture), Ray Johnson (Lockheed Martin Corporation), John Hickman (Deere and Company), and Jilda Garton (Georgia Tech Research Corporation). The HSC will webcast this event. See, notice. Location: Room 2318, Rayburn Building.

2:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing on HR 3889 [LOC | WW], the "Promoting Automotive Repair, Trade, and Sales Act", or "PARTS Act". This bill, sponsored by Rep. Darrell Issa (R-CA) and Rep. Zoe Lofgren (D-CA), would amend the Patent Act to provide an exemption from infringement for certain component parts of motor vehicles. See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on legislation that would give states authority to impose and collect sales taxes from distant internet sellers. See, notice. Location: Room 253, Russell Building.

The House will meet at 10:00 AM for morning hour and at 2:00 PM for legislative business. See, Rep. Cantor's schedule for the week.

9:30 - 11:00 AM. Sen. Rand Paul (R-KY) will give a speech titled "Will the Real Internet Freedom Please Stand Up". See, notice. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 225 [LOC | WW], the "Access to Information About Missing Children Act of 2011". The agenda also again includes consideration of three U.S. District Court nominees: Jon Tigar (USDC/NDCal), William Orrick (USDC/NDCal), and Thomas Durkin (USDC/NDIll). The SJC will webcast this event. Location: Room 226, Dirksen Building.

1:00 - 2:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "New Age of Discovery: Government’s Role in Transformative Innovation". The speakers will include former Rep. Bart Gordon (D-TN), Kathleen Kingscott (IBM), Eric Toone (ARPA-E), and Arun Majumdar (ARPA-E). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

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

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule for the week.

The House will not meet on the weeks of Monday, August 6, through Friday, August 10, Monday, August 13, through Friday, August 17, Monday, August 20, through Friday, August 24, Monday, August 27, through Friday, August 31, or Monday, September 3, through Friday, August 7.

The Senate will not meet on the weeks of Monday, August 6, through Friday, August 10, Monday, August 13, through Friday, August 17, Monday, August 20, through Friday, August 24, Monday, August 27, through Friday, August 31, or Monday, September 3, through Friday, August 7.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Accenture Global Services v. Guidewire Software, App. Ct. No. 2011-1486, an appeal from the U.S. District Court (NDCal) in a patent infringement case. Location: Courtroom 201.

Deadline to submit reply 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.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [22 pages in PDF] regarding creating a Do-Not-Call registry for public safety answering points (PSAPs). The FCC adopted this item on May 21, 2012, and released the text on May 22. It is FCC 12-56 in CG Docket No. 12-129. See, notice in the Federal Register, Vol. 77, No. 120, Thursday, June 21, 2012, Pages 37362-37367.

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