12/14. The House floor schedule for Tuesday, December 18, 2012 includes consideration of three technology related bills under suspension of the rules: Sen. Patrick Leahy's (D-VT) recently introduced "Theft of Trade Secrets Clarification Act", Rep. Bob Goodlatte's (R-VA) bill to amend the VPPA (without the SJC's ECPA amendments), and Rep. Lamar Smith's (R-TX) recently introduced untitled patent bill (which addresses the post grant dead zone, allocation of user fees, and pre GATT patent applications, among other issues).

Patent Bill. First, the House is scheduled to consider HR 6621 [LOC | WW], an untitled bill that would make 15 changes to the "Leahy Smith America Invents Act" and the Patent Act. Rep. Smith introduced this bill on November 30, 2012. There has been no hearing or markup for any of the sections of this bill.

The Congress enacted the AIA, HR 1249 [LOC | WW], earlier in this Congress. President Obama signed it into law on September 16, 2011. It is now Public Law No. 112-29.

This bill addresses the post grant dead zone issue. It addresses patent term adjustments. It would repeal 35 U.S.C. § 373 regarding improper applicants for international PCT applications at the USPTO. It also addresses allocation of user fees, by amending 35 U.S.C. § 42(c)(3).

This bill also pertains to pre GATT patent applications. It might have the effect of eliminating many of the several hundred of these pre June 7, 1995 applications.

See also, story titled "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012.

Theft of Trade Secrets Clarification Act. Second, the House will consider S 3642 [LOC | WW], the "Theft of Trade Secrets Clarification Act of 2012". Sen. Leahy and Sen. Herb Kohl (D-WI) introduced this bill on November 27, 2012. The Senate passed this bill, by unanimous consent, without debate, late on the same day.

This bill would amend the Economic Espionage Act, which is codified at 18 U.S.C. § 1832, and which criminalizes theft of trade secrets. It 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. It clarifies that theft of software source code can constitute a violation of Section 1882.

See also, story titeld "Senate Passes Theft of Trade Secrets Clarification Act" in TLJ Daily E-Mail Alert No. 2,477, November 28, 2012.

HR 2471 and Video Privacy. Third, the House will consider HR 2471 [LOC | WW], the "Video Privacy Protection Act Amendments Act of 2012". Rep. Goodlatte introduced this bill on July 8, 2011. The House Judiciary Committee (HJC) amended and approved this bill on October 13, 2011. The full House passed this bill on December 6, 2011.

See, story titled "House Judiciary Committee Passes Bill to Ease User Disclosure of Video Viewings in Social Media" in TLJ Daily E-Mail Alert No. 2,307, October 13, 2011.

The VPPA was enacted by the 100th Congress in 1988 just after the public debates and Senate hearings pertaining to the nomination of Judge Robert Bork to be a Justice of the Supreme Court, which involved disclosure of his video rental records. That bill was Public Law No. 100-68. It is codified at 18 U.S.C. § 2710.

The VPPA provides that "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person".

The purpose of current legislative proposals is to allow companies, such as Facebook, to operate a web site that discloses users' video rentals and recommendations with a one time opt-in procedure, rather than requiring consent every time the user wants to recommend a video.

However, the Senate Judiciary Committee (SJC) approved a much different version of HR 2471 on November 29, 2012. See, TLJ's HTML red line mark up of this bill showing changes made by the SJC on November 29.

The SJC approved a bill with different language for amending the VPPA. But, more significantly, its version would also amend the Electronic Communications Privacy Act (ECPA) to require a warrant for accessing cloud stored e-mail. See, story title "Senate Judiciary Committee Approves Leahy Bill to Require Warrant for Accessing Cloud Stored E-Mail" in TLJ Daily E-Mail Alert No. 2,479, November 30, 2012.

Late on December 14, the House Republican leadership release a House floor schedule for the week of December 17, without disclosing which version of HR 2471 would be considered. A spokesman for Rep. Goodlatte informed TLJ on December 15 that the House will consider a bill that contains only the VPPA amendments approved by the SJC on November 29. The House will not take up the ECPA language.

12/12. Rep. Eliot Engel (D-NY) introduced HR 6651 [LOC | WW], a bill to limit border searches of laptop computers and other electronic devices.

The Department of Homeland Security (DHS) U.S. Immigration and Customs Enforcement conducts suspicionless searches. See, DHS policy directive titled "Border Searches of Electronic Devices".

This bill would provide that "no search of the digital contents of the device or media may be based on the power of the United States to search a person and that person's possessions upon entry into the United States, unless that search is based on a reasonable suspicion regarding that person".

It would also provide that "No seizure of the digital contents of a device or media, or of the device or media itself, may be based on the power of the United States to search a person and that person's possessions upon entry into the United States, but must be based on some other constitutional authority to make the seizure."

It would also provide that "Any search of the digital contents of a device or media must be conducted only by officers who have received appropriate training, in order to minimize the possibility of irreparable damage to, or erasure of, files and the hardware itself, and must be conducted in the presence of a supervisor."

This bill defines "digital electronic device" as "any electronic device that contains digital data, including laptops, personal digital assistants, wireless phones, ipods, iphones, blackberries, and digital cameras".

This bill would also require the DHS to write rules "detailing ... policies for protecting the integrity of the data", "policies for the length of time seized data will be stored and where and how it will be stored", and "policies for whether the downloaded information will be shared and, if so, with what other governmental entities and under what circumstances".

The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution, Civil Rights and Property Rights held a hearing on June 25, 2009, titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel".

HR 6651 was referred to the House Judiciary Committee (HJC) and House Homeland Security Committee (HHSC). This bill has no original cosponsors.

Rep. Engel (at right), and others, have been introducing related bills over the course of three Congresses, to no avail.

In the 110th Congress, on July 31, 2008, Rep. Engel and Rep. Ron Paul (R-TX) introduced HR 6702 [LOC | WW], the "Securing Our Borders and Our Data Act of 2008".

In the 111th Congress, on On January 7, 2009, Rep. Engel and Rep. Paul, introduced HR 239 [LOC | WW], the "Securing our Borders and our Data Act of 2009".

For more information, see the following TLJ stories:

• "Customs Service Loses 2,251 Computers" in TLJ Daily E-Mail Alert No. 488, August 9, 2002.
• "9th Circuit Holds Government Can Conduct Warrantless Random Searches of Laptops of Persons Entering US at Airports" in TLJ Daily E-Mail Alert No. 1,417, July 25, 2006.
• "Rep. Sanchez Introduces Bill Regarding Customs Searches of Laptops" in TLJ Daily E-Mail Alert No. 1,825, September 15, 2008.
• "ACLU Seeks DHS Records Regarding Unwarranted Laptop Searches" and "Summary of Cases Regarding DHS/CBP Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009.
• "DHS/CBP Supervisor Embezzles Laptop from Airline Passenger" in TLJ Daily E-Mail Alert No. 1,963, June 30, 2009.
• "ACLU Sues DHS Over Suspicionless Searches of Electronic Devices at Borders" in TLJ Daily E-Mail Alert No. 2,129, September 9, 2010.
• "Update on Abidor v. DHS" and "Michigan Police Use CelleBrite Devices to Extract Data from Cell Phones" in TLJ Daily E-Mail Alert No. 2,224, April 20, 2011.
• "Court Hears Motion to Dismiss Challenge to DHS's Suspicionless Searches of Laptops" in TLJ Daily E-Mail Alert No. 2,254, July 8, 2011.

12/10. The U.S. Court of Appeals (5thCir) issued its opinion [12 pages in PDF] in TelTech Systems v. Bryant, holding that a Mississippi state statute that regulates caller identification spoofing is preempted by the federal Truth in Caller ID Act of 2009, or TCIA.

This is significant because the federal TCIA is a toothless statute which lacks any express preemption. Now, states in the 5th Circuit cannot enact consumer protection statutes directed at misleading commercial uses of caller ID spoofing. Although, other courts have reached different conclusions.

The Congress enacted S 30 [LOC | WW], the TCIA, in 2010. It is now Public Law No. 111-331. This Act amended 47 U.S.C. § 227 to provide that "It shall be unlawful for any person within the United States, in connection with any telecommunications service or IP-enabled voice service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value, unless such transmission is exempted ..."

The TCIA requires the Federal Communications Commission (FCC) to write implementing regulations. It also authorizes states to bring actions for violation of this Act.

The TCIA is silent on the issue of state preemption. Hence, there is no express preemption in the 2010 Act. However, the TCIA amended the Telephone Consumer Protection Act (TCPA), which does reference preemption.

This federal anti spoofing law is a largely symbolic and toothless prohibition. It enabled members of Congress to assert that they were acting to protect consumers, without bringing about any substantive changes in business practices.

The Act's qualification that it only bars caller ID spoofing that is conducted with "intent to defraud, cause harm, or wrongfully obtain anything of value" has left businesses free to conduct a wide range of caller ID spoofing. This has left ordinary phone service consumers unable to identify the origin of annoying, and often robocalling, solicitations.

The Act does prohibit spoofing when there is "intent to defraud". Yet, under theses circumstances, federal prosecutors and consumer protection agencies already possesses authority to prosecute and take other actions for the underlying fraud. The Act therefore accomplished little, other than allowing the Congress and FCC to posture.

In contrast, the Mississippi statute contains a broader prohibition. It provides that a "person may not enter or cause to be entered false information into a telephone caller identification system with the intent to deceive, defraud or mislead the recipient of a call" and a "person may not place a call knowing that false information was entered into the telephone caller identification system with the intent to deceive, defraud or mislead the recipient of the call."

That is, under the state statute, merely intending to mislead is a violation.

The plaintiffs in the District Court, and appellants in the Court of Appeals, are TelTech Systems, Inc., a New Jersey based company that provides caller ID spoofing services, Wonderland Rentals, Inc., a Michigan based company that uses these spoofing services, and Meir Cohen, President of TelTech.

TelTech's spoofing services are used by Wonderland in a manner that violates the Mississippi statute, but not the federal statute.

The plaintiffs filed a complaint in the U.S. District Court (SDMiss) seeking declaratory and  injunctive relief. They alleged that the state statute is invalid under the doctrine of conflict preemption, the dormant commerce clause, and the First Amendment.

The District Court held on cross motions for summary judgment that the state statute is invalid under the dormant commerce clause because it has the practical effect of regulating commerce occurring wholly outside of the state. It also held that there is no conflict preemption because compliance with both statutes is not physically impossible, and because the plaintiffs failed to show that the state statute constituted an obstacle to the accomplishment of a federal objective. Finally, the District Court did not decide the First Amendment issue.

The state of Mississippi brought the present appeal. The Court of Appeals affirmed the judgment of invalidity, but on different grounds.

It wrote that "Our inquiry begins with the presumption that federal statutes do not supersede States' historic police powers, unless Congress clearly and manifestly intended to do so." It continued that "Although interstate telecommunications has been an area of ``significant federal presence´´", the Mississippi Anti Spoofing Act (ASA) "is grounded instead in consumer protection, an area traditionally reserved to the States", and therefore, "here the presumption remains in favor of no preemption."

The Court then turned to the preemption language of the TCPA. 47 U.S.C. § 227(f) provides, in relevant part, as follows:

(f) Effect on State law
  (1) State law not preempted
... nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits--
      (A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;
      (B) the use of automatic telephone dialing systems;
      (C) the use of artificial or prerecorded voice messages; or
      (D) the making of telephone solicitations.
   (2) ...

But in addition, Subsection 227(e)(9) provides that "Notwithstanding any other provision of this section, subsection (f) shall not apply to this subsection or to the regulations under this subsection."

The Court of Appeals noted that different courts have reached different conclusions regarding the preemptive effect of this language. It wrote that "At bottom, 47 U.S.C. § 227(e)(9)'s exempting TCIA from the savings clause in § 227(f) is arguably unclear, both in purpose and in effect, concerning spoofing."

The Court concluded, however, that "In the light of 47 U.S.C. § 227(e)(1)'s carefully-drafted language and legislative history, and in spite of the presumption against preemption that attaches to a State's exercise of its police power, there is an inherent federal objective in TCIA to protect non-harmful spoofing. ASA's proscription of non-harmful spoofing -- spoofing done without ``intent to defraud, cause harm, or wrongfully obtain anything of value´´ -- frustrates this federal objective and is, therefore, conflict-preempted.

Having affirmed the judgment of invalidity of the state statute on non-constitutional grounds, the Court of Appeals did not address either of the constitutional issues -- the dormant commerce clause or the First Amendment challenge.

This case is TelTech Systems, Inc. v. Phil Byrant and Jim Hood, U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 12-60027, an appeal from the U.S. District Court for the Southern District of Mississippi. Judge Rhesa Barksdale wrote the opinion of the Court of Appeals, in which Judges Smith and King joined.

The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. The House will consider two non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

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.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider numerous items under suspension of the rules, including HR 6621 [LOC | WW], an untitled bill that would make numerous changes to the Patent Act, HR 2471 [ LOC | WW], and S 3642 [LOC | WW], the "Theft of Trade Secrets Clarification Act of 2012". See, Rep. Cantor's schedule.

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.

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

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..

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

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda contains no technology related items. Location: Room 226, Dirksen Building.

12:00 NOON - 1:30 PM. The Center for Strategic and International Studies (CSIS) will host panel discussion titled "The Results and Impact of the 2012 Korean Presidential Elections". See, notice. Location: CSIS, basement conference room, 1800 K St., NW.

Rep. Cantor's schedule states that the House will meet at 9:00 AM for legislative business.

Deadline to submit requests to participate in the U.S. Patent and Trademark Office (USPTO) January 11, 2013 roundtable on the possibility of changing USPTO rules of practice to require the disclosure of real party in interest information during patent prosecution and at certain times post-issuance. See, notice in the Federal Register, Vol. 77, No. 227, November 26, 2012, at Pages 70385-70389. See also, story titled "USPTO to Host Roundtable on Requiring Real Party in Interest Disclosures" in TLJ Daily E-Mail Alert No. 2,483, December 5, 2012.

EXTENDED TO JANUARY 25. Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [205 pages in PDF] regarding incentive auctions. The FCC adopted this NPRM on September 28, and released the text on October 2. It is FCC 12-118 in Docket No. 12-268. See, notice in the Federal Register,  Vol. 77, No. 225, November 21, 2012, at Pages 69933-69992. See also, stories titled "FCC Adopts NPRM on Incentive Auctions" and "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012. See, extension notice in the Federal Register, Vol. 77, No. 239, December 12, 2012, at Page 73969.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) regarding implementation of Phase II of the Mobility Fund, which pertains to universal service fund subsidies for mobile broadband. The FCC released this PN on November 27, 2012. It is DA 12-1853 in WC Docket No. 10-90 and WT Docket No. 10-208.  See, notice in the Federal Register, Vol. 77, No. 238, December 11, 2012, at Pages 73586-73589.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [50 pages in PDF] regarding spectrum aggregation limits and analyzing spectrum holdings. The FCC adopted and released this item on September 28, 2012. It is FCC 12-119 in WT Docket No. 12-269. See, notice in the Federal Register Vol. 77, No. 195, October 9, 2012, at Pages 61330-61350. See also, TLJ story titled "FCC Adopts Spectrum Aggregation NPRM" in TLJ Daily E-Mail Alert No. 2,455, October 1, 2012.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [18 pages in PDF] regarding the amateur radio service. The FCC adopted this NPRM on October 1, 2012, and released the text on October 2. It is FCC 12-121 in WT Docket Nos. 12-283 and 09-209. See, notice in the Federal Register, Vol. 77, No. 206, October 24, 2012, at Pages 64947-64949.

12/12. Rep. Jerrold Nadler (D-NY) introduced HR 6652 [LOC | WW | PDF], the "Making United States Independents Competitive Act" or "MUSIC Act", a bill to pay artists of independent music labels to travel to international trade music shows.

This bill provides that the Department of Commerce (DOC) "shall provide assistance to United States independent music label companies for purposes of facilitating exports of recorded music by such companies".

The bill provides that "assistance" means spending up to $1 Million per year to pay the artists of independents to travel to and perform at "international music trade shows".

This bill provides that "Independent" means having annual revenues of $50,000,000, and not being owned by a company that has $50,000,000 or more in annual revenues.

This bill would do nothing to help artists or record companies in the context of foreign based copyright infringement. This bill would not affect copyright law in any way. This bill was referred to the House Foreign Affairs Committee (HFAC). Rep. Nadler is not a member. There are no original cosponsors of this bill.

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