11/27. Sen. Patrick Leahy (D-VT) and Sen. Herb Kohl (D-WI) introduced S 3642 [LOC | WW], the "Theft of Trade Secrets Clarification Act of 2012", on November 27, 2012. The Senate passed this bill, by unanimous consent, without debate, late on the same day. The House has not yet passed this bill.

This is a short amendment to the Economic Espionage Act, which is codified at 18 U.S.C. § 1832, and which criminalizes theft of trade secrets.

This bill is a response to the April 11, 2012 opinion of the U.S. Court of Appeals (2ndCir) in U.S. v. Aleynikov, App. Ct. No. 11-1126, an appeal from the U.S. District Court (SDNY).

Sergey Aleynikov was convicted in the District Court of violation of Section 1832 in connection with his theft of proprietary computer source code for a financial trading system.

He appealed to the Court of Appeals, which reversed. Section 1832 refers to theft of a trade secret that is "included in a product" that is placed in interstate commerce. The Court of Appeals reasoned that Aleynikov did not violate the statute because source code is not a product, and the owner (Goldman Sachs) did not place the source code in interstate commerce. This bill clarifies that the prohibition applies to theft of a trade secret "related to a product or service", and that offering the service in interstate commerce suffices.

Sen. Leahy spoke in support of the bill. See, Congressional Record, November 27, 2012, at Page S6978.

He said that "The court held that the Economic Espionage Act provision applies only to trade secrets that are part of a product that is produced to be placed in interstate commerce. Because the company's proprietary software was neither placed in interstate commerce, nor produced to be placed in interstate commerce, the law did not apply -- even though the stolen source code was part of a financial trading system that was used in interstate commerce every day. The clarifying legislation that the Senate will pass today corrects the court's narrow reading ..."

The sole substantive provision of this bill is as follows:

Section 1832(a) of title 18, United States Code, is amended in the matter preceding paragraph (1), by striking `or included in a product that is produced for or placed in' and inserting `a product or service used in or intended for use in'.

Thus, this bill would amend subsection 1832(a) as follows (with deleted language shown in strikethrough and new language shown in red):

(a) Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in a product or service used in or intended for use in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly---

(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information;
(3) receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization;
(4) attempts to commit any offense described in paragraphs (1) through (3); or
(5) conspires with one or more other persons to commit any offense described in paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy,

shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both.

See also, "More Tech Crimes" in TLJ Daily E-Mail Alert No. 2,048, February 22, 2010, and "Tech Crime Report" in TLJ Daily E-Mail Alert No. 2,211, March 29, 2011.

11/26. Sen. Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee (SJC), sent a letter to Attorney General (AG) Eric Holder explaining why he is delaying the confirmation of Tony West to be Associate Attorney General, the number three position at the Department of Justice (DOJ).

West (at right) is currently the nominal Assistant AG in charge of the DOJ's Civil Division. However, he has been the acting Associate AG since March. President Obama formally nominated West to be Associate AG in September. See also, stories titled "Tony West Named Acting Associate Attorney General" in TLJ Daily E-Mail Alert No. 2,348, March 7, 2012, and "Obama Nominates Tony West to be Associate Attorney General" in TLJ Daily E-Mail Alert No. 2,454, September 22, 2012.

Sen. Grassley wrote that the DOJ has refused to produce documents requested by Sen. Grassley, and by House Republicans, regarding a "quid pro quo" agreement between the DOJ and the city of St. Paul, Minnesota that involved West.

Sen. Grassley (at left) wrote that the DOJ has withheld documents relevant to "our investigation into the quid pro quo deal where the Department agreed to drop two False Claims Act cases against the City of St. Paul, Minnesota in exchange for the City dropping its pending appeal before the Supreme Court in Magner v. Gallagher."

Sen. Grassley elaborated that "It is unfortunate that Mr. West's nomination could be delayed by this request, but it is necessary because you have denied my staff access to documents essential to ensure adequate and appropriate Congressional oversight of the Executive Branch as part of the executive nominations process. Specifically, I have been informed that the Department refused my staff access to the documents ... because there was not a request from the Chairman of the Committee. However, no such request is required by any law, rule, regulation, or judicial precedent. The Department's decision to deny the opportunity for my staff to review these documents is misplaced and threatens to delay the review of Mr. West’s nomination."

It should also be noted that the while the SJC approved the nomination of William Baer in September to be Assistant AG in charge of the DOJ's Antitrust Division, the full Senate has not confirmed him. The Antitrust Division has not had a confirmed Assistant AG since Christine Varney left in the summer of 2011. Renata Hesse (at right) is the acting Assistant AG. Hesse worked at the law firm of Wilson Sonsini before moving to the DOJ in 2011. Baer now works at the law firm of Arnold & Porter.

11/28. There will be changes in the membership and leadership of House Judiciary Committee (HJC) in the 113th Congress, which begins in January of 2013.

Rep. Howard Berman (D-CA) lost his seat in the November election. He had been placed in the same district as Rep. Brad Sherman (D-CA), who won re-election. Rep. Berman is a long time member of the House Judiciary Committee (HJC), and its intellectual property subcommittee.

Rep. Berman (at left) received hearty and bipartisan praise and applause at an IP subcommittee hearing on November 28.

Rep. Berman is a former Chairman of the IP subcommittee, and former ranking Democrat of this subcommittee. He has long been involved in legislative debates regarding intellectual property. He has especially advocated the interests of various participants in the movie and record sectors.

House Republicans have not yet formally named committee chairmen for the 113th Congress. However, the current Chairman of the HJC, Rep. Lamar Smith (R-TX), has reached the term limitation imposed by House Republican rules. Moreover, the House Republican Steering Committee (HRSC) announced its recommendations for Chairmen for the 113th Congress on November 27. See, release.

Rep. Bob Goodlatte (R-VA) (at right), who is currently Chairman of the HJC's Subcommittee on Intellectual Property, Competition and the Internet, has not yet been named full Committee Chairman. However, the HRSC recommended that he be the next Chairman. Moreover, at a Subcommittee hearing on November 28, other members identified him as the next full Committee Chairman.

Several members of the HJC will not return with the 113th Congress. See, table titled "House Judiciary Committee 2012 Election Results" in TLJ Daily E-Mail Alert No. 2,471, November 7, 2012.

Rep. Elton Gallegly (R-CA) retired. Rep. Mike Pence (R-IN) was elected Governor of Indiana. Rep. Dan Lungren (R-CA) lost in the general election. Rep. Sandy Adams (R-FL) lost in her primary election. Rep. Ben Quayle (R-AZ) lost in his primary. Rep. Berman is the only Democratic member of the HJC in the 112th Congress who will not be a member of the 113th Congress.

Moreover, this turnover will particularly impact the Subcommittee on Intellectual Property, Competition, and the Internet. Rep. Berman, Rep. Pence, Rep. Adams, and Rep. Quayle are all current members.

None of the HJC's most active opponents of the SOPA, PROTECT IP Act, and related proposals are departing the House.

In addition, some HJC members will leave the Committee to receive assignments to other Committees. However, neither House Republicans nor House Democrats have announced departures, or new members.

Rep. Debbie Schultz (D-FL) is a HJC member, who is on leave from the HJC while she chairs the Democratic National Committee (DNC). She won re-election to the House, and is a likely candidate for reassignment to another Committee.

11/27. The House Republican Steering Committee (HRSC) announced its recommendation that Rep. Fred Upton (R-MI) remain Chairman of the House Commerce Committee (HCC) in 113th Congress. See, release.

11/27. The House Republican Steering Committee (HRSC) announced its recommendation that Rep. Jeb Hensarling (R-TX) become the Chairman of the House Financial Services Committee in the 113th Congress. See, release.

11/27. The House Republican Steering Committee (HRSC) announced its recommendation that Rep. Mike Rogers (R-MI) remain the Chairman of the House Intelligence Committee (HIC) in the 113th Congress. See, release. The HIC has oversight and legislative jurisdiction in the areas of electronic surveillance and cyber security. Rep. Rogers is the sponsor of HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA", the bill passed by the House in April.

11/27. The House Republican Steering Committee (HRSC) announced its recommendation that Rep. Pete Sessions (R-TX) become the Chairman of the House Rules Committee in the 113th Congress. See, release. The outgoing Chairman, Rep. David Dreier (R-CA), is retiring.

11/27. The House Republican Steering Committee (HRSC) announced its recommendation that Rep. Dave Camp (R-TX) remain the Chairman of the House Ways and Means Committee (HWMC) in the 113th Congress. See, release. The HWMC has jurisdiction over technology related tax issues, including the research and development tax credit.

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The House will meet at 10:00 AM for legislative business. The schedule for the week includes consideration of HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012". See, Rep. Cantor's schedule for the week.

The Senate will meet at 10:00 AM.

9:30 - 10:30 AM. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "Crafting Asia Economic Strategy in 2013". See, notice. Location: CSIS, B1 Conference Center, 1800 K St., NW.

10:00 AM - 12:00 NOON. The Center for Strategic and International Studies (CSIS) and George Washington University (GWU) will host an event titled "Homeland Security: A Look Back and Ahead". The speakers will be Sen. Joe Lieberman (D-CT) and others. See, notice. Location: GWU, Jack Morton Auditorium, 805 21st St., NW.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "Music Licensing Part One: Legislation in the 112th Congress". See, notice. Location: Room 2141, Rayburn Building.

12:00 NOON to 5:30 PM. Day one of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering. See, notice in the Federal Register, Vol. 77, No. 216, November 7, 2012, at Page 66873. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

3:00 PM. The House Rules Committee (HRC) will meet to adopt a rule for consideration of HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012". See, notice. Location: Room H-313, Capitol Building.

3:30 - 5:00 PM. Reed Hundt (REH Advisors, and Intel Director) and David Goldberg will speak regarding the challenge brought by Verizon and others to the Federal Communications Commission's (FCC) rules that regulate the practices of broadband internet access service (BIAS) providers pending in the U.S. Court of Appeals (DCCir). See, Goldberg's amicus curiae brief, and notice of event. This is App. Ct. Nos. 11-1355, 11-1356, 11-1403 and 11-1404. Location: Room HVC-215, Capitol Visitor Center.

6:00 PM. The New America Foundation (NAF) will host a dinner titled "Who Should Govern the Internet?". The speaker will be Jonathan Koppell (Arizona State University). Location: Smith & Wollensky, 1112 19th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Committee and Young Lawyers Committee will host an event titled "Covering the Spectrum: An Essential Primer for Lawyers". CLE credits. Prices vary. See, notice. Location: Wiley Rein, 1776 K St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The schedule for the week again includes consideration of HR 6429 [LOC | WW | PDF], the "STEM Jobs Act of 2012". See, Rep. Cantor's schedule for the week.

8:30 AM - 1:45 PM. The Center for Strategic and International Studies (CSIS) and the MITRE Corporation will host a conference titled "Toward Strategic Outcomes: Envisioning the Future of the Homeland Security Enterprise". There will be panels titled "Maturing the Homeland Security Enterprise", "Enterprise Screening and Credentialing", "Border Security Intelligence and Information Sharing", and "Cyber Threat Information Sharing". See, notice. Location: CSIS, B1 Conference Center, 1800 K St., NW.

8:30 AM - 2:30 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Computer and Information Science and Engineering. See, notice in the Federal Register, Vol. 77, No. 216, November 7, 2012, at Page 66873. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

9:00 AM - 12:00 NOON. The New America Foundation (NAF) will host an event titled "Who Should Govern the Internet?". The speakers will be Jonathan Koppell (Arizona State University), Andrew McLaughlin (betaworks), Ellery Biddle (Center for Democracy and Technology), Milton Mueller (Syracuse University School of Information Studies), Sascha Meinrath (NAF), Sunil Abraham (Centre for Internet and Society), Jim Cicconi (AT&T), David Post (Temple University law school), Derrick Cogburn (American University law school), Rebecca MacKinnon (NAF), and Christine Rosen (NAF). See, notice. Location: NAF, Suite 400, 1899 L St., NW.

9:00 - 11:00 AM. There will be a panel discussion titled "Privacy and the Identity Economy". The speakers will be Becky Burr (Neustar), Michelle Dennedy (McAfee/Intel), Ben Isaacson (Experian), Jeremy Grant (NIST), and Andy Land (UnboundID). For more information, contact Jennifer Pett at 512-402-5857 x30 or rsvp at phillipscompany dot com. See, notice. Location: First Amendment Lounge, National Press Club, 13th Floor, 529 14th St., NW.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "The Role of Receivers in a Spectrum Scarce World". The witnesses will be Brian Markwalter (Consumer Electronics Association), Ron Repasi (FCC), and Pierre de Vries. See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The House Oversight and Government Reform Committee (HOGRC) will hold a hearing titled "Identity Theft and Tax Fraud: Growing Problems for the Internal Revenue Service". See, notice. Location: Room 2247, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of HR 2471 [LOC | WW], an untitled bill to amend the "Video Privacy Protection Act" or VPPA. The House passed this bill on December 6, 2011. See, story titled "Senate Judiciary Committee to Take Up Tech Bills and Baer Nomination" in TLJ Daily E-Mail Alert No. 2,445, September 11, 2012. The agenda also includes consideration of the nominations of Katherine Failla (USDC/SDNY), Troy Nunley (USDC/EDCal), Sheri Chappell (USDC/MDFl), Pamela Ki Mai Chen (USDC/EDNY), and Mark Barnett (U.S. Court of International Trade). See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "November Antitrust Update for In-House Counsel". The speakers will be Atleen Kaur (Yazaki North America) and Ankur Kapoor, Taline Sahakian and Gordon Schnell (all of Constantine Cannon). Free. No CLE credits. See, notice.

2:00 PM. The House Foreign Affairs Committee (HRAC) will meet to mark up HR 1798 [LOC | WW] the "Judgment Evading Foreign States Accountability Act of 2011". See, notice. Location: Room 2172, Rayburn Building.

2:00 PM. The House Financial Services Committee's (HFSC) Subcommittee on Monetary Policy and Technology will hold a hearing titled "The Future of Money: Dollars and Sense". See, notice. Location: Room 2220, Rayburn Building.

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

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) [MS Word] regarding access technology and enhanced database operations for video relay service (VRS). The FCC released this PN on October 15, 2012. It is DA 12-1644 in CG Docket Nos. 03-123 and 10-51. See also, notice in the Federal Register, Vol. 77, No. 209, October 29, 2012, at Pages 65526-65530.

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

TIME CHANGE. 10:30 AM. 10:00 AM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". The only item on the agenda is adoption of a Fifth Order on Reconsideration and Sixth Report and Order regarding approval of pending FM translator radio applications and implementation of the Local Community Radio Act (LCRA). Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., NW.

12:30 - 1:30 PM. The Heritage Foundation (HF) will host a panel discussion titled "Filibuster Reform or Power Grab: A Discussion of the Senate's Rules". See, notice. Location: HF, 214 Massachusetts Ave., NE.

1:00 - 5:00 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold another in a series of meetings regarding consumer data privacy in the context of mobile applications. See, notice in the Federal Register, Vol. 77, No. 149, Thursday, August 2, 2012, Pages 46067-46068. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". Location: American Institute of Architects, 1735 New York Ave., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-88 Rev. 1 [57 pages in PDF] titled "Guidelines to Media Sanitization".

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [59 pages in PDF] regarding the 4940-4990 MHz (4.9 GHz) public safety band. The FCC adopted and released this FNPRM on June 13, 2012. It is FCC 12-61 in WP Docket No. 07-100, PS Docket No. 06-229, WT Docket No. 06-150. See, original notice in the Federal Register (FR), Vol. 77, No. 148, August 1, 2012, at Pages 45558-45571, and August 3 Public Notice (DA 12-1268). See also, extension notice in the FR, Vol. 77, No. 199, October 15, 2012, at Pages 62480-62481.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) [146 pages in PDF] regarding its program access rules. The FCC adopted and released this item on October 5, 2012. It is FCC 12-123 in MB Docket No. 12-68. See, notice in the Federal Register, Vol. 77, No. 211, October 31, 2012, at Pages 66052-66065, and stories titled "FCC Lets Expire Its Per Se Ban on Exclusive Program Distribution Contracts", "FCC Adopts Report and Order on Program Access Rules", "FCC Adopts NPRM on Case by Case Analysis of Exclusive Contracts", and "Reaction to FCC's Program Access Order" in TLJ Daily E-Mail Alert No. 2,460, October 6, 2012.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host an on site and teleconferenced panel discussion titled "The FTC Report That K-Dur Ignored". See, July 16, 2012 opinion of the U.S. Court of Appeals (3rdCir) in In Re K-Dur Antitrust Litigation. The speakers will be Shylah Alfonso (Perkins Coie), Kelly Smith (Arnold & Porter), Michael Kades (FTC), and Joanna Tsai (Charles River Associates). Free. No CLE credits. See, notice. Location: Perkins Coie, 700 13th St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petitions for reconsideration of its First Report and Order [67 pages in PDF] regarding spectrum for the operation of Medical Body Area Networks (MBAN). This R&O is FCC 12-54 in ET Docket No. 08-59. See, petition and petition. See also, FCC Public Notice, and notice in the Federal Register, Vol. 77, No. 222, November 16, 2012, at Pages 68721-68722.

12:00 NOON - 1:15 PM. The George Mason University's (GMU) School of Public Policy will host book presentation. Robert Atkinson (Information Technology and Innovation Foundation) will discuss his recently published book [Amazon] titled "Innovation Economics: the Race for Global Advantage". Location: GMU, Room 475, Founders Hall, 3351 Fairfax Drive, Fairfax, VA.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Building or Sabotaging the Enterprise? Squaring Cyber Security with Technologies that Undermine It". The speakers will be James Clark (Oasis), Charles Palmer (IBM Research), Candace Jones (Federal Reserve Bank of New York), and Roland Trope (Trope & Schramm). Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Videotaping Police, Wiretapping Laws and the First Amendment CLE Teleconference". Prices vary. No CLE credits. See, notice.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on numerous pending nominations, including Joshua Wright (to be an FTC Commission) and Mignon Clyburn (reappointment to FCC). See, notice. The SCC will webcast this hearing. Location: Room 253, Russell Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) International Committee and Wireless Telecommunications Committee will host an event titled "Holiday Program and Networking Reception". No CLE credits. Prices vary. See, notice. Location: House of Sweden, 2900 K St., NW.

PRESCHEDULED FROM SEPTEMBER 20. 10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "The Impact of International Technology Transfer on American Research and Development". The HSC will webcast this hearing. Location: Room 2318, 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 (ONCHIT) HIT Policy Committee will meet. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Pages 65691-65692. Location: Dupont Circle Hotel, 1500 New Hampshire Ave., NW.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Perspectives on Canada's New Copyright Laws: Bill C-11". The speakers will be Jerry Cohen (Burns Levinson), David Kent (McMillan), Sarah Kilpatrick (McMillan), Stephen Zolf (Heenan Blaikie), and Johanna Dennis (Southern University Law Center). Prices vary. No CLE credits. See, notice.

TIME?. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., SW.

POSTPONED. 6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Committee will host an event titled "Verizon/SpectrumCo: Issues and Process -- Anatomy of a Transaction". CLE credits. Prices vary. See, notice.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 C [50 pages in PDF] titled "Recommendation for Random Bit Generator (RBG) Constructions".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-90 B [78 pages in PDF] titled "Recommendation for the Entropy Sources Used for Random Bit Generation".

Deadline to submit comments to the Copyright Office (CO) regarding creating a "resale royalty right" for visual artists. See, original notice in the Federal Register (FR), Vol. 77, No. 182, September 19, 2012, at Pages 58175-58179, and extension notice in the FR, Vol. 77, No. 200, October 16, 2012, at Page 63342. See also, story titled "Copyright Office Requests Comments on Creating a Resale Royalty Right for Visual Artists" in TLJ Daily E-Mail Alert No. 2,464, October 18, 2012.