1/23. The U.S. Court of Appeals (7thCir) issued its opinion [20 pages in PDF] in Doe v. Marion County, holding unconstitutional under the 1st Amendment an Indiana state criminal statute that prohibits persons who have been convicted in Indiana or elsewhere of certain sex related crimes from using social networking web sites, instant messaging services, and chat programs.

The statute is a criminal prohibition. Its reach includes persons who have served their sentences, and who are no longer subject to supervision.

The statute applies to persons convicted under Indiana criminal statutes, or similar statutes of "another jurisdiction", for certain enumerated sex related offenses in which the victims are children. However, the list also includes offenses for which the victims are adults, including rape and "deviant conduct" crimes. It also lists viewing of child pornography.

The statute applies to social networking web sites that allow access to persons under 18. It thus prohibits covered persons from using social media to communicate with adults, and for legal purposes.

The plaintiff, named only as John Doe, was convicted of a crime covered by the statute. He filed a complaint in the U.S. District Court (SDInd) against the Prosecutor of Marion County, Indiana, seeking a declaratory judgment that the statute is unconstitutional for violating 1st Amendment free speech rights.

The District Court upheld the statute. It concluded that the statute does implicate 1st Amendment rights, but that it is narrowly tailored to serve a significant state interest and leaves open ample alternative channels of communication.

Doe brought the present appeal. The Court of Appeals reversed, and ordered the District Court to enter an injunction against enforcement of the statute.

The Court of Appeals wrote that the "statute clearly implicates Doe's First Amendment rights as incorporated through the Fourteenth Amendment". Moreover, the statute not only precludes expression through the medium of social media, it also limits his right to receive information and ideas.

The statute is "content neutral because it restricts speech without reference to the expression's content". Hence, the state may impose reasonable time, place and manner restrictions, provided that the statute satisfies the Supreme Court's applicable intermediate scrutiny standard, set forth in Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). That is, it must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information.

The Court of Appeals found that the statute does not meet the narrowly tailored requirement. It did not proceed to the alternative channels prong.

The Court of Appeals wrote that "the Indiana law targets substantially more activity than the evil it seeks to redress". It also wrote that "Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders," and in fact, has statutes that do so. For example, another criminal prohibition makes it a felony in Indiana for persons over 21 to solicit children under 16 to engage in certain enumerated sexual activities.

The Court concluded that the statute is unjustifiably over-inclusive, because "With little difficulty, the state could more precisely target illicit communication".

The opinion adds that "The state also makes the conclusory assertion that ``the State need not wait until a child is solicited by a sex offender on Facebook.´´ Of course this statement is correct, but the goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm. Moreover, the state never explains how the social network law allows them to avoid ``waiting.´´"

The Court of Appeals opinion also includes dicta that speculates about arguments that may come up in future Constitutional challenges to similar statutes. It wrote that "Despite the infirmity of the statute in this case, we do not foreclose the possibility that keeping certain sex offenders off social networks advances the state's interest in ways distinct from the existing justifications. For example, perpetrators may take time to seek out minors they will later solicit. This initial step requires time spent on social networking websites before the solicitation occurs. In the future, the state may argue that prohibiting the use of social networking allows law enforcement to swoop in and arrest perpetrators before they have the opportunity to send an actual solicitation. This argument remains speculative. And it is uncertain whether such a law could advance this interest without burdening a ``substantially broader´´ than necessary group of sex offenders who will not use the Internet in illicit ways. ... But perhaps such a law could apply to certain persons that present an acute risk -- those individuals whose presence on social media impels them to solicit children. Currently, the state presents no evidence that covered individuals present this sort of risk. We speculate only to make clear that this decision should not be read to limit the legislature's ability to craft constitutional solutions to this modern-day challenge."

This case is John Doe v. Prosecutor, Marion County, Indiana, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 12-2512, an appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division, D.C. No. 1:12-cv-00062-TWP-MJD, Judge Tanya Pratt presiding. Judge Joel Flaum wrote the opinion of the Court of Appeals, in which Judges John Tinder and John Tharp (USDC/NDIll sitting by designation) joined.

1/22. The Department of Justice (DOJ) filed its merits brief [131 pages in PDF] in FTC v. Watson Pharmaceuticals, a pharmaceutical patent case in which the issue is whether reverse payment settlement agreements are per se unlawful. These are also sometimes referred to as pay for delay settlements.

That is, the holder of a name brand drug files a patent infringement action against a generic competitor, but settles by agreeing to pay the generic competitor, while the generic competitor agrees not sell for a term of years.

The DOJ brief states that the question is "Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud, or instead are presumptively anticompetitive and unlawful."

While this case is commonly understood as an antitrust case, and the briefs contain much discussion of the Sherman Act, the FTC pled violation of Section 5 of the FTC Act, not Section 1 of the Sherman Act.

The Federal Trade Commission (FTC) filed its complaint [45 pages in PDF] in the U.S. District Court (NDGa). The District Court dismissed for failure to state a claim. The FTC appealed. The U.S. Court of Appeals (11thCir) issued its opinion on April 25, 2012, affirming the dismissal of the FTC's complaint.

The DOJ's Office of the Solicitor General (OSG) filed a petition for writ of certiorari on October 4, 2012. See, story titled "Solicitor General Files Cert Petition in FTC v. Watson" in TLJ Daily E-Mail Alert No. 2,459, October 5, 2012.

The DOJ urges reversal. It wrote that "Reverse-payment agreements exist at the intersection of competition law, patent law, and the Hatch-Waxman Amendments' framework for regulating generic drugs."

It explained that "Because reverse-payment agreements closely resemble other horizontal agreements between competitors that this Court has categorically condemned, respondents’ defense of the practice necessarily depends on the contention that either the Patent Act or the Hatch-Waxman Amendments implicitly legitimize conduct that would ordinarily be viewed as a paradigmatic antitrust violation. That argument is misconceived. Absent unusual circumstances, reverse-payment agreements disserve rather than further the purposes of patent law and the Hatch-Waxman Amendments, and they should accordingly be treated as presumptively unlawful."

This case is FTC v. Watson Pharmaceuticals, Inc., et al., Supreme Court of the U.S., Sup. Ct. No. 12-416, a petition for writ of certiorari to the U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 10-12729-DD. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of Georgia, D.C. No. 1:09-CV-00955-TWT.

See also, Supreme Court docket, and FTC web page with hyperlinks to pleadings.

1/23. The House Judiciary Committee (HJC) held its organizational meeting for the 113th Congress, at which it announced subcommittee assignments.

IP Subcommittee. The Chairman of the Subcommittee on Courts, Intellectual Property and the Internet will be Rep. Howard Coble (R-NC). He also served as Chairman of this Subcommittee for three terms back in the 1990s. He has been a reliable advocate of intellectual property based industries, as has been the full Committee Chairman, Rep. Bob Goodlatte (R-VA).

This subcommittee is responsible for patent, copyright and trademark law. The Congress passed major patent reform legislation in the 112th Congress. Major patent bills tend to be long in the making. Hence, while the Subcommittee may begin work on some patent issues, the Congress is not likely to pass another major patent bill in the 113th Congress.

There are, however, numerous copyright issues that the HJC and this Subcommittee may tackle in the 113th Congress, such as many music royalty issues, limitation of rights in "orphan works", and creation of a copyright small claims process.

Copyright based industries would like new laws that would result in less infringement in the US and abroad. However, there are also well organized interests that oppose such proposals. Hence, major legislation is unlikely. Similarly, there are groups that would like to expand fair use, limit Section 512 notice and takedown, and scale back Section 1201 anti-circumvent laws. But, these proposals all have their well organized opponents. Hence, major legislation is unlikely.

The Vice Chairman of the IP Subcommittee will be Rep. Tom Marino (R-PA). The other Republican members will be Rep. Jim Sensenbrenner (R-WI), Rep. Lamar Smith (R-TX), Rep. Steve Chabot (R-IN), Rep. Darrell Issa (R-CA), Rep. Ted Poe (R-TX), Rep. Jason Chaffetz (R-UT), Rep. Mark Amodei (R-NV), Rep. Blake Farenthold (R-TX), Rep. George Holding (R-NC), Rep. Doug Collins (R-GA), Rep. Ron DeSantis (R-FL), Rep. Keith Rothfus (R-PA).

Reps. Holding, Collins, DeSantis and Rothfus are all newly elected freshmen. Rep. Farenthold is a member of the class of 2010, but new to the HJC.

The Democratic members of the IP Subcommittee will be Rep. Mel Watt (D-NC), Rep. John Conyers (D-MI), Rep. Hank Johnson (D-GA), Rep. Judy Chu (D-CA), Rep. Ted Deutch (D-FL), Rep. Karen Bass (D-CA), Rep. Suzane DelBene (D-WA), Rep. Hakeem Jeffries (D-NY), Rep. Jerrold Nadler (D-NY), Rep. Zoe Lofgren (D-CA), and Rep. Sheila Lee (D-TX).

Rep. DelBene (a former Microsoft executive) and Rep. Jeffries (a former New York state legislator) are newly elected. Rep. Bass is a member of the class of 2010, but was just named to the HJC.

Historically, the IP Subcommittee has attended to the interests of major copyright and patent based industries. However, a core group of veteran members who have actively opposed copyright legislation advanced by the movie and music have all be assigned to this Subcommittee for the 113th Congress -- Reps. Sensenbrenner, Issa, Chaffetz, and Lofgren.

On the other hand, Rep. Jared Polis (D-CO), who was the HJC's most informed critic of the SOPA and PIPA in the 112th Congress, will not a member of the HJC in the 113th Congress. He is now a member of the House Rules Committee (HRC).

Those who admired Rep. Polis' work on the HJC are likely to be disappointed by his replacements, and particularly by Rep. Jeffries (at right). He graduated from law school in 1997. He worked at the law firm of Paul Weiss for several years. He also worked for CBS/Viacom. Federal Election Commission (FEC) records show that he raised over $1 Million for his election campaign. Many of his contributors are attorneys at Paul Weiss and other New York law firms. Many represent music, movie, television, and other media companies and groups. Many are CBS/Viacom employees.

His contributors include the Chairman of Paul Weiss's Media and Entertainment Group, and the lead attorney in the Associated Press's copyright infringement case against Meltwater. See, story titled "PK & EFF Argue Fair Use in AP v. Meltwater" in TLJ Daily E-Mail Alert No. 2,514, January 22, 2013.

Crime Subcommittee. Rep. Sensenbrenner will be Chairman of the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. This subcommittee has jurisdiction over Electronic Communications Privacy Act (ECPA) reform, data retention mandates, other wiretap and surveillance issues, and Section 1030, including likely amendments to be associated with the late Aaron Schwartz.

Rep. Louie Gohmert (R-TX) will be Vice Chairman. The other Republican members will be Rep. Coble, Rep. Spencer Bachus (R-AL), Rep. Randy Forbes (R-VA), Rep. Trent Franks (R-AZ), Rep. Chaffetz, Rep. Trey Gowdy (R-SC), and Rep. Raul Labrador (R-ID). Rep. Labrador is in his second term, but new to the HJC.

The Democratic members will be Rep. Bobby Scott (D-VA), Pedro Pierluisi (PR), Rep. Chu, Rep. Luis Gutierrez (D-IL), Rep. Bass, and Rep. Cedric Richmond (D-LA). Rep. Richmond is in his second term, but new to the HJC.

Tax Issues. The HJC also has jurisdiction over bills that would allow states to impose sales taxes, and other taxes, on distant business, as well as bills that would affect state taxation of internet access or wireless service. See for example, story titled " House Judiciary Committee Holds Hearing on Internet Sales Tax Bill" in TLJ Daily E-Mail Alert No. 2,410, July 24, 2012.

New HJC member Rep. DelBene was most recently the state of Washington's chief tax collector.

1/24. The following are some of the technology companies that recently released their latest quarterly financial results:

• Apple: release, Form 8-K, and data sheet (1/23).
• Google: release, Form 8-K, and financial tables (1/22).
• Nokia: release (1/24).
• Verizon: release and Form 8-K (1/22).

1/23. Time Warner Cable (TWC) announced "changes to its organizational structure". TWC stated in a release that its "management structure will no longer be defined by geographic regions; instead, the company will be organized by reference to the customer served (residential, business or media clients) and the functions necessary to serve those customers". (Parentheses in original.)

1/22. AT&T announced in a release that "it has signed an agreement with Atlantic Tele-Network, Inc. (ATNI) to acquire the company’s U.S. retail wireless operations, operated under the Alltel brand, for $780 million in cash. Under terms of the agreement, AT&T will acquire wireless properties, including licenses, network assets, retail stores and approximately 585,000 subscribers." See also, Atlantic Tele Network release.

1/22. The Government Accountability Office (GAO) released a report [25 pages in PDF] titled "Information Technology: OMB and Agencies Need to Fully Implement Major Initiatives to Save Billions of Dollars".

The House will not meet.

The Senate will meet at 9:30 AM.

9:00 - 10:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Data Innovation in Government". The speakers will be Robert Bectel (Department of Energy), Teresa Carlson (Amazon Web Services), Richard Culatta (Department of Education), David Forrest (Department of Health and Human Services), Jason O'Connor (Lockheed Martin), and Daniel Castro (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

10:00 AM. The Senate Foreign Relations Committee (SFRC) will hold a hearing on the nomination of John Kerry to be Secretary of State. See, notice. Location: Room 216, Hart Building.

12:00 NOON - 1:15 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "Recent Developments in Two-Sided Markets in US and Canada". The speakers will be Micah Wood (Blakes), David Evans (Global Economics Group), Roger Ware (Queens University), and Leah Brannon (Cleary Gottlieb). Free. No CLE credits. See, notice.

12:00 NOON - 3:00 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Data Innovation in the U.S. Economy". The speakers will be William Chernicoff (Toyota Motor North America), Scott Neuman (Opower), and Daniel Castro (ITIF). See, notice. Location: Reserve Officers Association, 5th Floor, One Constitution Ave., NE.

1:00 PM. The US Telecom and ADTRAN will host a webcast seminar titled "Vectoring Demystified". Free. See, notice.

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

6:30 - 8:00 PM. The Federal Communications Bar Association (FCBA) Legislative Committee will host an event titled "Communications and Technology Policy in the 113th Congress". The participants will include House and Senate staff. No webcast. Closed to reporters. No CLE credits. Location: Georgetown University law school, Gewirz Student Center, 12th Floor, 120 F St., NW.

The House will meet at 2:00 PM in pro forma session.

12:00 NOON - 1:00 PM. The American Bar Association's (ABA) Section of Antitrust Law will host a teleconferenced panel discussion titled "Criminal Antitrust Update". The speakers will be Anne Marie Cushmac (SunTrust Banks), Mark Rosman (Wilson Sonsini), Jeff VanHooreweghe (Wilson Sonsini), and Creighton Macy (Wilson Sonsini). Free. No CLE credits. See, notice.

Deadline to submit written comments to the U.S. Patent and Trademark Office (USPTO) regarding its 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 FROM DECEMBER 21. Extended 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.

The House will not meet the week of January 28 through February 1. See, House calendar for 113th Congress, 1st Session.

11:00 AM - 12:00 NOON. The Heritage Foundation (HF) will host a panel discussion titled "REAL ID Realities: Perspectives on the Future of the REAL ID Program". The speakers will be Jennifer Cohan (Delaware Division of Motor Vehicles), Lori Rectanus (Government Accountability Office), Andrew Meehan (Coalition for A Secure Driver’s License), and Jessica Zuckerman (HF). Free. Open to the public. Webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Committee will host a closed brown bag lunch. The speakers will discuss HR 6480 and S 3609 (112th Congress), the "Internet Radio Fairness Act". The speakers will be Harley Geiger (staff of Rep. Zoe Lofgren (D-CA)), Troy Stock (staff of Rep. Jason Chaffetz (R-UT)), Brieanne Elpert (SoundExchange), Lee Knife (Digital Media Association), and Brendan Kelsay (Clear Channel). Free. Closed to reporters. No CLE credits. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) in response to its notice that announces proposed removals from the Commerce Control List of certain Category XI items, which pertain to military electronics, and which include telecommunications equipment and software. See, Federal Register, Vol. 77, No. 229, November 28, 2012, at Pages 70945-70955.

9:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will meet. See, notice in the Federal Register, Vol. 78, No. 5, January 8, 2013, at Page 1198. Location: DOC, Hoover Building, Room 6087B, 14th Street between Constitution and Pennsylvania Aves., NW.

9:30 - 10:30 AM. The Washington Legal Foundation (WLF) will host an on site and web cast event event titled "Same Administration, New Management: What to Expect from DOJ and FTC on Antitrust and Consumer Protection". The speakers will be Dick Thornburgh (K&L Gates), Janet McDavid (Hogan Lovells), Brady Dugan (Squire Sanders), and Andrea Murino (Wilson Sonsini). RSVP to glammi at wlf dot org. See, notice. Location: 2009 Massachusetts Ave., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee and Wireline Committee will host a brown bag lunch titled "Growing the Skill Set -- a Focus on Continuous Career Development". The speakers will include Jessica Almond (Chief of Staff of the FCC's Wireless Telecommunications Bureau), Chris McCabe ( CTIA), Melissa Newman (CenturyLink), Barry Ohlson (Cox Enterprises), Mike Senkowski (Wiley Rein), and Davina Sashkin (Fletcher Heald & Hildreth). Free. No CLE credits. Location: Wiley Rein, 10th Floor Conference Room, 1750 K St., NW.

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

9:00 - 10:30 AM. The Georgetown University business school's Georgetown Center for Business and Public Policy (GCBPP) will host a panel discussion titled "Regulation and the IP Transition: Laying a Predicate for Growth". The speakers will be James Cicconi (AT&T), Jennifer Fritzsche (Wells Fargo Securities), Blair Levin (Aspen Institute), and Carolyn Brandon (GCBPP). Breakfast will be served. See, notice. Location: National Press Club, 529 14th St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "What Should America Do About Gun Violence?". See, notice. Location: Room 216, Hart Building.

12:00 NOON. The Federalist Society will host a discussion of the book titled "Laws of Creation: Property Rights in the World of Ideas". The speakers will be the authors, Ronald Cass and Keith Hylton. Free. Open to the public. Lunch will be served. Registration required. See, notice. Location: National Press Club, 529 14th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Committee will host an event titled "Verizon Spectrum Co: Anatomy of a Transaction". The speakers will include Donald Stockdale (Mayer Brown), Joseph Matelis (DOJ Antitrust Division), Rick Kaplan (National Association of Broadcasters), Kathleen Grillo (Verizon), Kathy Zachem (Comcast), Charles McKee (Sprint Nextel), and Jodie Griffin (Public Knowledge). CLE credits. Prices vary. See, notice. Reservations and cancellations are due by 12:00 NOON on January 29. Location: Mayer Brown, 1999 K St., NW.

10:30 AM. The Federal Communications Commission (FCC) will host an event titled "open meeting". See, tentative agenda. Location: FCC, Commission Meeting Room, TW-C305, 445 12th St., SW.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold another in its series of meetings regarding mobile application transparency. See, notice. This event will also be teleconferenced. Location: American Institute of Architects, 1735 New York Ave., NW.

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

6:00 - 8:15 PM. The DC Bar Association will host a program titled "For Lawyers Who Lobby and their Firms: Legal Ethics and Unauthorized Practice Update". The speakers will be Arthur Burger (Jackson & Campbell) and Albert Turnbull (Hogan Lovells). The price to attend ranges from $89 to $129. CLE credits. See, notice. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR-7904 [42 pages in PDF], titled "Trusted Geolocation in the Cloud: Proof of Concept Implementation", released on December 21, 2012.

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