12/5. The Federal Trade Commission (FTC) filed an administrative complaint against Epic Marketplace, Inc. (an online behavioral advertising company) and Epic Media Group, LLC (its parent company) alleging violation of Section 5 of the FTC Act, in connection with Epic's misrepresentation of the web browsing information that it collected. The FTC and Epic simultaneously settled the matter. See, proposed consent agreement.

Basically, the FTC accused Epic in its complaint of history sniffing for the purpose of facilitating behavioral advertising, and then deceiving consumers about it in its privacy policy.

The FTC complaint did not assert that history sniffing to support behavioral advertising is in and of itself a violation of law. Rather, the FTC asserted that misrepresenting its practices in its privacy policy constituted the violation.

However, FTC Chairman Jonathan Leibowitz (at right) provided a different narrative in a separate release. He stated that "Consumers searching the Internet shouldn't have to worry about whether someone is going to go sniffing through the sensitive, personal details of their browsing history without their knowledge ... This type of unscrupulous behavior undermines consumers' confidence, and we won't tolerate it."

That is, Leibowitz asserts that history sniffing for behavioral advertising without consumers' knowledge is by itself wrong. Deception is not an element of the offense.

Section 5, which is codified at 15 U.S.C. § 45, provides in part that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

The respondents made no admission of wrongdoing. The settlement imposes no fine or other financial penalty.

The settlement agreement bars future misrepresentations. It also provides that Epic is "prohibited from collecting any data through history sniffing or using any data obtained by history sniffing". It also requires destruction of data.

The deadline to submit comments to the FTC regarding the proposed consent agreement is January 7, 2012. See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73655-73657.

Explanation of History Sniffing. The complaint alleges that "Epic is an advertising company that engages in online behavioral advertising, which is the practice of tracking a consumer's online activities in order to deliver advertising targeted to the consumer’s interests." It "acts as an intermediary between website owners who publish advertisements on their website for a fee ... and advertisers who wish to have their advertisements placed on websites."

The complaint continues that "Epic collects data on consumers who visit the websites within the Epic Marketplace Network. When a consumer visits a website within the Epic Marketplace Network, Epic sets a new cookie in the consumer’s browser or automatically receives a cookie it previously set. Cookies are small text files that are commonly used to store information about a consumer's online activities, including information such as the content of advertisements that a consumer views or the pages a consumer visits within a particular website."

In addition, Epic engaged in "history sniffing", or "the practice of determining whether a consumer has previously visited a webpage by checking how a user’s browser styles the display of a hyperlink. For example, if a consumer has previously visited a webpage, the hyperlink to that webpage may appear in purple, and if the consumer has not previously visited a webpage, the hyperlink may appear in blue."

"Based upon its knowledge of which domains a consumer had visited, Epic assigned the consumer an interest segment.' Then, the complaint states,"Epic used this history-sniffing data for behavioral targeting purposes."

The FTC complaint further explains that "History sniffing circumvents the most common and widely known method consumers use to prevent online tracking: deleting cookies. Deleting cookies does not prevent a website from querying a consumer’s browsing history. Consumers could only protect against history sniffing by deleting their browsing history and using private browsing mode, or, with regard to Epic’s history sniffing, opting out of receiving targeted advertisements from Epic. Once major browser vendors began to implement protections against history sniffing in 2010 and 2011, consumers could also avoid having their browser history sniffed by using updated versions of those browsers."

Epic also published a privacy policy. The complaint alleges that Epic "represented, expressly or by implication, that Epic collected information on consumers’ visits to websites only within the Epic Marketplace Network." But, "Epic did not collect only information on consumers’ visits to websites within the Epic Marketplace Network. Epic used history sniffing to collect information on whether consumers had visited websites outside of the Epic Marketplace Network."

For more on history sniffing, see July 19, 2011 piece titled "Tracking the Trackers: to Catch a History Thief", published by Stanford Law School's Center for Internet and Society.

12/11. Rep. Anna Eshoo (D-CA) and Rep. Darrell Issa (R-CA) sent a letter to the Federal Communications Commission (FCC) regarding unlicensed spectrum.

They wrote that the FCC must "adhere to the statute". See, HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act".

The incentive auctions portion of the statute provides, at Section 6407, that the FCC may use "relinquished or other spectrum to implement band plans with guard bands". However, "guard bands shall be no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands".

Then, Section 6407 provides that the FCC  may permit the use of certain guard bands for unlicensed use, subject to the limitation that it "may not permit any use of a guard band that the Commission determines would cause harmful interference to licensed services".

Rep. Eshoo and Rep. Issa wrote that "We support" the FCC's September 28 Notice of Proposed Rulemaking (NPRM) [205 pages in PDF]. They wrote that the FCC "should implement the incentive auction and resulting reorganization of the band in a manner that optimizes the value of both licensed and unlicensed spectrum access".

They wrote about "the public benefits that unlicensed brings to consumers and businesses".

And, they argued that "we cannot afford to fall behind other nations in the race to deploy new and innovative unlicensed technologies".

12/11. The U.S. Court of Appeals (11thCir) issued its opinion [22 pages in PDF] in US v. Laist, a case involving application of the 4th Amendment ban on unreasonable searches and seizures to laptop computers.

In this case, FBI agents seized a computer and external hard drives from the defendant, a university student, with probable cause, but waited 25 days before applying for a search warrant. With a warrant, they searched the computer and drives, and found evidence of criminal activity.

The District Court denied the defendant's motion to suppress evidence obtained from the computer. The Court of Appeals affirmed.

The Court of Appeals wrote that a temporary warrantless seizure supported by probable cause is reasonable as long as the police diligently obtained a warrant in a reasonable period of time.

And, the Court should evaluate the totality of the circumstances in determining whether a delay renders a seizure unreasonable under the 4th Amendment. This includes consideration of the significance of the interference with the person's possessory interest, the duration of the delay, whether or not the person consented to the seizure, and the government's legitimate interest in holding the property as evidence.

The Court of Appeals noted that "computers are a unique possession, one in which individuals may have a particularly powerful possessory interest". However, the Court of Appeals added that key facts affecting the defendant's possessory interest were that when the FBI agents took the computer, they allowed him to make copies of files that he said he needed for his university work, and he did not make any further requests for files during the FBI's delay in seeking a warrant.

The Court of Appeals also wrote that the complexity of the warrant in this case works in favor of a finding of reasonableness.

The Court of Appeals concluded that while "we have found shorter delays unreasonable under different circumstances, ... the totality of the circumstances in this case demonstrate the reasonableness of the government's actions." The motion to suppress was properly denied. The defendant's conviction is affirmed.

This case U.S.A. v. David Laist, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 11-15531, an appeal from the U.S. District Court for the Northern District of Georgia. Judge Marcus wrote the opinion of the Court of Appeals, in which Judges Pryor and Paul Friedman (USDC/DC sitting by designation) joined.

12/11. The Public Knowledge (PK) named Hal Bringmam (NVPR) to its Board of Directors. See, PK release.

12/11. The World Intellectual Property Organization (WIPO) released a report [198 pages in PDF] titled "2012 World Intellectual Property Indicators". It states that "Patent filings worldwide passed the 2 million mark in 2011, showing significant growth of 7.8 percent over 2010 and exceeding 7 percent growth for the second year in a row. Similarly, trademark filings increased by 13.3 percent, the very same growth rate as in 2010." Also, "For the first time in 2011, more patents were filed at the patent office of China than at any other office in the world."

12/11. The U.S. Court of Appeals (10thCir) issued its opinion [34 pages in PDF] in Hancock v. AT&T, a consumer class action regarding the quality of U-Verse service. The U.S. District Court (WDOkla) dismissed the complaint, pursuant to forum selection and arbitration clauses in the terms of service. The Court of Appeals affirmed. This case is Gayen Hancock, et al.  v. American Telephone and Telegraph Company, Inc., et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 11-6233, an appeal from the U.S. District Court for the Western District of Oklahoma, D.C. No. 5:10-CV-00822-W. Judge Matheson wrote the opinion of the Court of Appeals, in which Judges Murphy and Ebel joined.

12/7. President Obama signed HR 6063 [LOC | WW], the "Child Protection Act of 2012", sponsored by Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee (HJC). See, White House news office release. This bill contains much of the content of HR 1981 [LOC | WW], known as the data retention bill, but without the data retention mandates and related provisions.

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The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

The Senate will meet at 9:30 AM. It will resume consideration of S 3637 [LOC | WW], an untitled bill to temporarily extend the transaction account guarantee program.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Keeping the New Broadband Spectrum Law on Track". The witnesses will be the five FCC Commissioners. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on judicial nominations: Ketanji Jackson (to be a Judge of the U.S. District Court for the District of Columbia), Shelly Dick (USDC/MDLa), Andrew Gordon (USDC/DNev), and Beverly O'Connell (USDC/CDCal). The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.

1:00 - 2:30 PM. The Federal Communications Commission (FCC) will hold an event titled "open meeting". There are five items on the agenda: (1) NPRM on small cell use in the 3550-3650 MHz band, (2) R&O and FNPRM on expanding the 911 regime to text messaging and other technologies, (3) R&O on expanding the FCC's universal service tax and subsidy regime for health care providers, (4) R&O and Order of Proposed Modification regarding service rules for several bands, and (5) NPRM regarding service rules for the AWS H block. See also, FCC's December 11 release. Location: FCC, Commission Meeting Room, Room TW-C305, 445 12th St., NW.

1:00 - 2:15 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications and International Telecommunications Committees will host a brown bag lunch titled "Canadian-US Collaboration and Coordination Across the Border". The speakers will Emilie Brown (Public Safety Canada), Brian Marenco (FCC Public Safety and Homeland Security Bureau), Cyndie Walters (U.S. Customs and Border Protection), and Rick Joyce (Venable). No CLE credits. Location: Embassy of Canada, 501 Pennsylvania Ave., NW.

Day two of a three day conference titled "Security Analysis and Risk Management Association’s 6th Annual Conference". One of the risks addressed will be cyber security risk. Location: George Mason University, Arlington Campus, Founders Hall, 3351 Fairfax Drive, Arlington, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Wireless Telecommunications Bureau's (WTB) and Office of Engineering and Technology's (OET) Public Notice (PN) [8 pages in PDF] regarding refreshing the record in its wireless microphones proceedings. See, January 2010 R&O and FNPRM [103 pages in PDF] (FCC 10-16). The FCC released this PN on October 5, 2012. It is DA 12-1570 in WT Docket Nos. 08-166 and 08-167 and ET Docket No. 10-24. See also, notice in the Federal Register, Vol. 77, No. 204, October 22, 2012, at Pages 64446-64450. See also, 2008 NPRM and Order (FCC 08-188) and story titled "FCC Releases NPRM on Wireless Microphones Operating in 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,817, August 21, 2008. See also, story titled "FCC Seeks More Comments on Wireless Microphones" in TLJ Daily E-Mail Alert No. 2,466, October 23, 2012.

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

Day one of a two day event hosted by the Practicing Law Institute (PLI) and the Federal Communication Bar Association (FCBA) titled "30th Annual Institute on Telecommunications Policy & Regulation". The price to attend ranges from free to $1,595. See, registration form. Location: Washington Hilton, 1919 Connecticut Ave., NW.

9:00 - 10:30 AM. The US Telecom and National Emergency Number Association (NENA) will host an on site and webcast event titled "USTelecom Breakfast Briefing on Next Generation 9-1-1". The speakers will be Brian Fontes, Trey Forgety, Roger Hixson and Ty Wooten (all of NENA), and Bob Gojanovich (TCS). Registration is required. See, notice and registration page. Location: USTelecom, Suite 400, 607 14th St., NW.

9:00 - 10:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "China's Indigenous Innovation Policy and the Semiconductor Industry". The speakers will be Robert Atkinson (ITIF), Dieter Ernst (East West Center), Brian Toohey ( Semiconductor Industry Association), and Alan Wolff (McKenna Long & Aldridge). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

9:30 AM - 2:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. Location: FCC, 445 12th St., SW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", sponsored by Sen. Al Franken (D-MN). See, notice. See also, story titled "Senate Judiciary Committee Holds Over Geolocation Data Bill" in TLJ Daily E-Mail Alert No. 2,485, December 7, 2012. Location: Room 226, Dirksen Building.

10:00 AM. The Federal Communications Commission's (FCC) North American Numbering Council will meet. See, notice in the Federal Register, Vol. 77, No. 223, Monday, November 19, 2012, at Page 69453. The FCC has also stated that this event will be at 9:30 AM. Location: FCC, Room 5-C162, 445 12th St., SW.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed business meeting. The agenda includes "Investigative Report on the U.S. National Security Issues Posed by Chinese Telecommunications Companies Huawei and ZTE".See, HIC notice. See also, story titled "House Intelligence Committee Report Finds Huawei and ZTE Could Undermine US National Security" in TLJ Daily E-Mail Alert No. 2,461, October 15, 2012. Location: Room HVC-304, Capitol Visitor Center.

10:30 AM. The House Intelligence Committee (HIC) will hold a closed hearing. See, notice. Location: Room HVC-304, Capitol Visitor Center.

12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "Obviousness Since KSR: Views From the Bench and the Bar Regarding Recent Developments in the Law". See, 2007 opinion of the Supreme Court, and story titled "Supreme Court Rules on Patent Obviousness in KSR v. Teleflex" in TLJ Daily E-Mail Alert No. 1,576, May 7, 2007. The speakers will be former Judge Paul Michel, Theodore Essex (Administrative Law Judge, U.S. International Trade Commission), Roderick McKelvie (Covington & Burling), Jonas Anderson (American University law school), and Jeffrey Fougere (Sterne Kessler). The price to attend ranges from $25 to $35. 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: Sterne Kessler, 9th floor, 1100 New York Ave., NW.

12:30 - 1:45 PM. The Center for Strategic and International Studies (CSIS) will host an event titled "China, Japan, South Korea Trilateral Cooperation: Implications for Northeast Asian Politics and Order". See, notice. Location: CSIS, B1 C conference room, 1800 K St., NW.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed business meeting with an undisclosed agenda. See, notice. Location: Room 219, Hart Building.

LOCATION CHANGE. 3:00 PM. The Tech Freedom (TF) and Competitive Enterprise Institute (CEI) will host a panel discussion titled "CopyRIGHT: Can Free Marketeers Agree On Copyright Reform?". The speakers will be Berin Szoka (TF), Jerry Brito (Mercatus Center at George Mason University), Larry Downes, Geoffrey Manne (Lewis & Clark Law School), and Adam Mossoff (George Mason University School of Law), and Ryan Radia (CEI). Location: Room HC-8, Capitol Building Room 1310, Longworth Building.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Annual Chairman's Dinner". Prices vary. Location: Washington Hilton, 1919 Connecticut Ave., NW.

Day three of a three day conference titled "Security Analysis and Risk Management Association’s 6th Annual Conference". One of the risks addressed will be cyber security risk. Location: George Mason University, Arlington Campus, Founders Hall, 3351 Fairfax Drive, Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) in response to its Public Notice (PN) regarding Next Generation 911 (NG911) services. This PN is DA 12-1831 in PS Docket Nos. 10-255, 11-153, and 12-333. The FCC released it on November 13, 2012.

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

Day two of a two day event hosted by the Practicing Law Institute (PLI) and the Federal Communication Bar Association (FCBA) titled "30th Annual Institute on Telecommunications Policy & Regulation". The price to attend ranges from free to $1,595. See, registration form. Location: Washington Hilton, 1919 Connecticut Ave., NW.

9:00 AM - 4:30 PM. The Department of Commerce's (DOC) Bureau of the Census's Federal Economic Statistics Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Page 70992. Location: Census Bureau Conference Center, 4600 Silver Hill Road, Suitland, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in inContact, Inc. v. FCC, App. Ct. No. 12-1133. This is a challenge to a universal service tax assessment. See, FCC brief [37 pages in PDF]. Judges Garland, Griffith and Randolph will preside. This is the second of three items on the Court's agenda. Location: USCA Courtroom, 5th floor, Prettyman Courthouse, 333 Constitution Ave., NW.

10:30 AM - 3:30 PM. The Federal Communications Commission's (FCC) Emergency Access Advisory Committee will meet. See, notice in the Federal Register, Vol. 77, No. 228, November 27, 2012, at Pages 70777-70778. Location: FCC, Commission Meeting Room, 445 12th St., SW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-164 [33 pages in PDF] titled "Guidelines on Hardware-Rooted Security in Mobile Devices".

EXTENDED FROM NOVEMBER 30. Extended 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. See also, extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72295-72296.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The 10th Anniversary of the E-Government Act: A Discussion of the Past and Future of E-Government". The speakers will be Alan Balutis (Cisco Systems), Doug Bourgeois (VMware), Dan Chenok (IBM), William Eggers (Deloitte Research), Mark Forman (Government Transaction Services), Tom Davis (Deloitte), Karen Evans, David Mihalchik (Google), and Robert Atkinson (ITIF). See, notice. Location: Room 215, Capitol Visitor Center.

4:00 - 6:00 PM. The Center for Strategic and International Studies (CSIS) will host a book talk. Andrew Nathan (Columbia University) and Andrew Scobell (RAND Corporation) will discuss their book titled "China's Search for Security". The other discussants will be David Lampton (Johns Hopkins University), Randy Schriver (Armitage International), and Bonnie Glaser (CSIS). See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

EXTENDED TO JANUARY 14. Deadline to submit reply 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. See also, extension notice in the Federal Register, Vol. 77, No. 234, December 5, 2012, at Pages 72295-72296.

Day one of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

3:30 PM. The Senate Commerce Committee (SCC) will hold an executive session at which it may vote on the nominations of Mignon Clyburn (FCC) and Joshua Wright (FTC). See, notice. Location: Room 253, Russell Building.

TIME? 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, August 2, 2012, Pages 46067-46068. See also, NTIA web page titled "Privacy Multistakeholder Process: Mobile Application Transparency". Location?

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [42 pages in PDF] regarding disability access to televised emergency information. This NPRM is FCC 12-142 in MB Docket No. 12-107. The FCC adopted it on November 16, and released the text on November 19. See, notice in the Federal Register, Vol. 77, No. 229, November 28, 2012, at Pages 70970-70987.

Day two of a two day closed meeting of the U.S.-China Joint Commission on Commerce and Trade.

8:30 AM - 12:00 NOON. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Smart Grid Advisory Committee. The agenda includes presentations on cyber security coordination. See, notice in the Federal Register, Vol. 77, No. 230, November 29, 2012, at Pages 71169-71170. Location: NIST, Lecture Room A, Administration Building, 100 Bureau Drive, Gaithersburg, MD.

9:00 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONCHIT) HIT Standards Committee will meet by webcast. Open to the public. See, notice in the Federal Register, Vol. 77, No. 210, October 30, 2012, at Pages 65690-65691.

12:00 NOON - 2:00 PM. The Georgetown University's (GU) Georgetown Center for Business and Public Policy (GCBPP) will host an event titled "Challenge to the Net: What Happened in Dubai?" The speakers will be Jonathan McHale (Office of the U.S. Trade Representative, Deputy Assistant USTR for Telecommunications and Electronic Commerce Policy), Michael Wack (Department of State, Office of the U.S. Coordinator for International Communications and Information Policy), David Gross (Wiley Rein), Amy Alvarez (AT&T), and Jacquelynn Ruff (Verizon Communications). Lunch will be served. Twitter #GCBPPontheHill. See, notice and registration page. Location: Room B-318, Rayburn Building..