3/6. The Senate Judiciary Committee (SJC) held a hearing titled "Oversight of the Department of Justice". The only witness was Attorney General Eric Holder. Most of the hearing was devoted to non-technology related issues. However, cyber security, theft of intellectual property and trade secrets by cyber intrusion, Section 1030, Aaron Schwartz, and other tech issues were addressed.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, did not address tech issues in either his oral or written open statement [2 pages in PDF].

In his opening statement, Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, listed numerous written requests for information from Senators that remain unanswered by the DOJ. He also complained about DOJ information being made available to the Senate Intelligence Committee (SIC) but not the SJC.

Holder (at right) focused on guns in his written opening statement [4 pages in PDF], which he read at the hearing.

Much of the hearing focused on non-technology related topics, such as elections and voting, guns, and sequestration. The remainder of this article addresses only the technology related matters that came up at this hearing.

Cyber Security. Holder said that "we've worked to combat emerging national security threats, such as cyber intrusions and cyber attacks directed against our systems and infrastructure by nation states and non-state actors, including terrorist groups. Last summer, the Department created the National Security Cyber Specialists network to spearhead these efforts. The network is comprised of prosecutors and other cyber specialists across the country who will work closely with the FBI and other partners to investigate malicious cyber activity, seek any necessary cooperation, and, where appropriate, bring criminal prosecutions as part of our government-wide effort to deter and disrupt cyber threats to our national security."

Sen. Sheldon Whitehouse (D-RI) raised President Obama's "cyber executive order", and said that he also wanted Congressional legislation.

See, Executive Order of February 13, 2013, and story titled "Obama Signs Cyber Security Order and Policy Directive" in TLJ Daily E-Mail Alert No. 2,525, February 19, 2013.

Sen. Whitehouse also asked Holder for a "briefing" on DOJ prosecution of cyber crime, including the Coreflood case, which involves botnets. See, U.S.A. v. John Does, U.S. District Court (D-CT), D.C. No. 3:11-cv-00561-VLB. See, also DOJ release of April 27, 2011.

Cyber Theft of IP and Trade Secrets. Sen. Whitehouse also lamented that the DOJ has not brought "a single cyber prosecution against a hacker", such as one in People's Republic of China (PRC), who has accessed a US computer network and stolen trade secrets for commercial espionage.

See, related story in this issue titled "Mandiant Releases Report on Cyber Espionage by People's Liberation Army".

Sen. Whitehouse asked for a "briefing". Holder said that the DOJ would sent witnesses to such a hearing.

Later in the hearing, Sen. Chris Coons (D-DE) addressed theft by cyber intrusion, the Mandiant report, and whether there should be a new private right of action.

See, related story in this issue titled "Sen. Coons Proposes Private Right of Action for Cyber Theft of Trade Secrets".

Allegations of Improper Cyber Prosecutions. Sen. Leahy asked Holder about improper use of the Computer Fraud and Abuse Act (CFAA) by federal prosecutors, such as prosecutions based merely on a violation of a terms of use agreement.

Holder said that "we constantly monitor that", and "that is something we can look at". Holder made no commitments, and no statements of DOJ policy.

The CFAA, which is codified at 18 U.S.C. § 1030, is the primary statutory authority for both criminal prosecutions, and private rights of action, alleging computer hacking and unauthorized cyber intrusions. However, some of its terms are vague. The DOJ alleged violation of Section 1030 in the prosecutions of Lori Drew and Aaron Schwartz.

The Drew case is U.S.A.  v. Lori Drew, U.S. District Court for the Central District of California, D.C. No. CR-08-0582-GW. See also, stories titled "Lori Drew Pleads Not Guilty in Section 1030 Case" in TLJ Daily E-Mail Alert No. 1,794, June 23, 2008, "Law Professors Argue for Dismissal of MySpace Section 1030 Prosecution" in TLJ Daily E-Mail Alert No. 1,810, August 11, 2008, and "Jury Returns Guilty Verdict in Lori Drew Case" in TLJ Daily E-Mail Alert No. 1,865, December 2, 2008.

The Schwartz case is U.S.A. v. Aaron Schwartz, U.S. District Court for the District of Massachusetts, D.C. No. 1:11-cr-10260-NMG. See also, stories titled "Grand Jury Returns Indictment for Unauthorized Downloading of 4.8 Million JSTOR Articles" in TLJ Daily E-Mail Alert No. 2,264, July 20, 2011, and "Aaron Schwartz Commits Suicide" in TLJ Daily E-Mail Alert No. 2,508, January 15, 2013.

Sen. John Cornyn (R-TX) asked about the prosecution of Schwartz by the DOJ, and possible "prosecutorial zeal" and "misconduct".

Holder said that Schwartz's death was a "tragedy". But, he continued that there has been a disconnect between the plea negotiations that actually occurred, and statements that have been made regarding penalties sought by the DOJ. Holder said that the DOJ made a plea offer of 3 months. It made another offer that would have allowed the District Court to impose a sentence of 0 to 6 months. He added that "those offers were rejected". And, "there was never an intention" by the DOJ to seek a lengthy prison sentence.

Holder added that "a good examination has been done" by the DOJ of its actions in this case.

Sen. Cornyn persisted on this subject. He asked whether there was "prosecutorial misconduct or overreach" by the DOJ in the Schwartz case. Holder said no.

Sen. Cornyn used the words "inappropriate" and "bully" to describe prosecutorial conduct in the Schwartz case. He also compared the DOJ's "prosecution of Sen. Ted Stevens" to that of Schwartz. Sen. Cornyn said that Sen. Stevens was "on the receiving end of prosecutorial misconduct".

Sen. Cornyn concluded that "both of these men are dead", so now it is "hard to make recompense".

Antitrust. Holder said in opening that the DOJ "has taken significant steps to ensure robust enforcement of antitrust laws". However, he did not elaborate, and Senators asked no questions regarding antitrust or competition law.

Notably, there was no discussion of standards essential patents, FRAND commitments, and patent assertions.

Surveillance and ECPA Reform. Holder did not address any surveillance, Foreign Intelligence Surveillance Act (FISA), or Electronic Communications Privacy Act (ECPA) issues in his opening statement.

Also, Senators did not raise any of these issues. However, members of the SJC introduced proposals late in the 112th Congress to reform the ECPA.

Sen. Leahy proposed creating a warrant requirement for accessing stored e-mail. See, story titled "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.

Sen. Al Franken (D-MN) introduced in the 112th Congress S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011".

Senators and Holder spent much time discussing the hypothetical issue of drone strikes within the US. On the same day, on the Senate floor, Senators were debating this issue in the context of the confirmation of a new Director of Central Intelligence.

However, the only issue in the SJC was use of drones to kill people. There was no discussion of use of drones for surveillance purposes.

Sen. Coons indirectly referenced the FISA in the context of drone strikes in the US. He asked about the possibility of a form of judicial review, similar to that in the FISA. Otherwise, there was no discussion of the surveillance under either the FISA or Title 18 at this hearing.

Other Matters. The SJC periodically holds Department of Justice (DOJ) oversight hearings at which the Attorney General (AG) appears. This hearing conformed to historic patterns. Senators of the same party as the President and AG complemented the AG and praised the DOJ for being less political and partisan than when the other party last controlled the White House and DOJ. Senators not from the party of the President and AG criticized the AG for refusing to comply with requests for documents, and lamented that the DOJ is now more political and partisan.

Elections and the Voting Rights Act are also perennial issues at these hearings. Democratic Senators pressed the AG on enforcement of those laws that would likely benefit Democratic candidates. Republican Senators pressed the AG on enforcement of those laws that would likely benefit Republican candidates.

3/6. The Senate Judiciary Committee (SJC) held a hearing titled "Oversight of the Department of Justice". Sen. Christopher Coons (D-DE) condemned foreign theft of American trade secrets by cyber intrusion, and proposed creating a private right of action.

Attorney General Eric Holder stated that cyber theft of trade secrets is a huge and growing problem, and that the Department of Justice (DOJ) should work with Sen. Coons on his proposal.

Sen. Coons (at left) said that "In intellectual property, I come out of manufacturing, manufacturing relies on trade secret protection as much as on patenting for critical steps in manufacturing. And there has been just a barrage of assaults, and theft of American intellectual property. A firm called Mandiant, recently released a report, documenting just widespread, and you have spoken to this, theft of American intellectual property. But the number of prosecutions by DOJ around trade secrets has been very light. And I understand the limitations of resources."

Sen. Coons asked, "Would a private right of action, a federal private right of action, help accelerate perhaps some of the assertion of rights, and the ability to pursue justice on behalf of American manufacturers and inventors?"

Holder responded to Sen. Coons. "I think that this is certainly something we should talk about, we should discuss. My instincts take me in a direction that I think where you are, that perhaps that is something we should do, but what I would like to do is work with you, have the appropriate people from the Department sit down, and meet perhaps with your staff, and talk about that possibility. But I do think that the theft of intellectual property, trade secrets, has a devastating impact on our economy, threatens our national security, and is worthy of our attention. This is a problem that is large, but is getting larger, and as you look over the horizon, this is an area where we are going to have to devote more attention as a nation."

Sen. Coons said that "I am glad to hear you say that because I think all of us are on notice that there is probably the greatest widespread theft in human history going on at the moment, and it really does have a negative and cumulative impact."

Sen. Coons did not elaborate on what private right of action he would envision.

The Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030, already contains a private right of action.

However, it only provides a right of action against the "violator" who gained or exceeded authorized access to a protected computer system. So for example, if an economic espionage unit of the military of a foreign government stole trade secrets by cyber intrusion, and then transferred those secrets to a company within that country, there would be no private right of action under Section 1030 against that company.

The Tariff Act of 1930, as amended at Section 337, provides a private right of action by rights holders before the U.S. International Trade Commission (USITC) for orders that exclude importation of articles that infringe patents or trademarks, or violate certain other intellectual property rights.

However, Section 337 does not reference trade secrets -- either articles that practice stolen trade secrets, or that are made by processes that practice stolen trade secrets. See, 19 U.S.C. § 1337.

There is also the Economic Espionage Act. The domestic section, which is codified at 18 U.S.C. § 1832, criminalizes theft of trade secrets, but does not contain a private right of action.

The espionage section, which criminalizes theft of trade secrets by any "foreign government, foreign instrumentality, or foreign agent", and which is codified at 18 U.S.C. § 1831, contains no private right of action.

18 U.S.C. § 1836 provides that the DOJ may obtain a civil injunction.

In the 112th Congress, former Sen. Herb Kohl (D-WI), Sen. Coons, and Sen. Whitehouse introduced S 3389 [LOC | WW], the "Protecting American Trade Secrets and Innovation Act of 2012", a bill to amend Section 1836 to create private rights of action under both Sections 1831 and 1832.

This bill would affect all theft of trade secrets, including by insiders, not only theft by cyber intrusion. However, the bill contemplates cyber intrusion because it authorizes ex parte orders for the seizure of computers used to steal trade secrets.

This bill provides for the award of compensatory damages, and under some circumstances, exemplary damages. It also provides for orders for the payment of royalties. It also authorizes "appropriate injunctive relief against any violation", but does not expressly provide for injunctions against manufacture or importation.

As for private rights of action directed at foreign governments, it might be noted that a U.S. District Court is not likely to be able to, among other things, exercise jurisdiction over an espionage unit of the People's Liberation Army.

2/19. Mandiant, a US based cyber security firm, released a report [76 pages in PDF] on February 19, 2013, titled "APT1: Exposing One of China's Cyber Espionage Units". See also, Mandiant release. It pertains to advanced persistent threats (APT) originating in the People's Republic of China (PRC).

The report states that "Mandiant continues to track dozens of APT groups around the world; however, this report is focused on the most prolific of these groups. We refer to this group as ``APT1´´ and it is one of more than 20 APT groups with origins in China. APT1 is a single organization of operators that has conducted a cyber espionage campaign against a broad range of victims since at least 2006. From our observations, it is one of the most prolific cyber espionage groups in terms of the sheer quantity of information stolen."

"Though our visibility of APT1's activities is incomplete, we have analyzed the group’s intrusions against nearly 150 victims over seven years. From our unique vantage point responding to victims, we tracked APT1 back to four large networks in Shanghai ..."

The report also states that "Our analysis has led us to conclude that APT1 is likely government-sponsored and one of the most persistent of China’s cyber threat actors. We believe that APT1 is able to wage such a long-running and extensive cyber espionage campaign in large part because it receives direct government support. In seeking to identify the organization behind this activity, our research found that People’s Liberation Army (PLA’s) Unit 61398 is similar to APT1 in its mission, capabilities, and resources. PLA Unit 61398 is also located in precisely the same area from which APT1 activity appears to originate."

APT1 engages in "large-scale thefts of intellectual property". Also, the report states, "The industries APT1 targets match industries that China has identified as strategic to their growth, including four of the seven strategic emerging industries that China identified in its 12th Five Year Plan".

The House will not meet. It will next meet at 10:00 AM on Monday, March 11. See, Rep. Cantor's schedule.

The Senate will not meet. It will next meet at 2:00 PM on Monday, March 11.

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its February 2013 unemployment data.

12:00 NOON - 1:30 PM. The Net Caucus will host a panel discussion titled "Combating Piracy Online: The Copyright Alert System, A Voluntary Approach". The speakers will be Jill Lesser (Center for Copyright Information), Jerry Berman (Net Caucus), Jules Polonetsky (Future of Privacy Forum), Gigi Sohn (Public Knowledge), Thomas Dailey (Verizon), Mitch Glazier (Recording Industry Association of America), Marianne Grant (Motion Picture Association of America), and Brent Olson (AT&T). Free. A box lunch will be served. See, notice. Location: Room 2168, Rayburn Building.

EXTENDED FROM JANUARY 10. Deadline to submit comments to the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) in connection with their joint workshop on December 10, 2012, titled "Patent Assertion Entity Activities". See, notice and agenda.

The House will meet at 10:00 AM. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM. Sen. Reid's schedule includes consideration of the nomination of Richard Taranto to be a Judge of the U.S. Court of Appeals (FedCir). See, story titled "Richard Taranto and the Federal Circuit" in TLJ Daily E-Mail Alert No. 2,497, December 24, 2012.

12:00 NOON - 2:30 PM. The law firm of Venable will host a webcast briefing on President Obama's Executive Order regarding cyber security. The speakers will be Ari Schwartz (NIST), Jamie Barnett, Stuart Inglis (Venable), Anthony Rosso (Venable), Brian Zimmet (Venable), James Burnley (Venable), John Bowman (Venable). See, registration page. See, story titled "Obama Signs Cyber Security Order and Policy Directive" in TLJ Daily E-Mail Alert No. 2,525, February 19, 2013.

1:00 - 2:30 PM. The New America Foundation (NAF) will host a panel discussion titled "Foreign Policy for the Information Age: Managing Transparency and Volatility". The speakers will be Lorelei Kelly (NAF), Gerald Hyman (Center for Strategic and International Studies), Joseph Siegle (National Defense University), Jim Herlong, Tim Maurer (NAF), and Shanthi Kalathil. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

4:30 PM. Secretary of Homeland Security Janet Napolitano will give a speech at the Jewish Council for Public Affairs Plenum. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

9:00 - 10:30 AM. The Center for Strategic and International Studies (CSIS) will host
a panel discussion titled "Implementation of the KORUS FTA: A One-Year Anniversary Commemoration". The speakers will be John Hamre (CSIS), Donald Manzullo (Korea Economic Institute of America), Y.J. Choi (Korea Ambassador to the US), Kathy Stephens, Karan Bhatia (GE), Scott Miller (CSIS), and Matthew Goodman (CSIS). See, notice. Location: CSIS, B-1 Conference Center, 1800 K St., NW.

10:00 AM - 12:00 NOON. The Senate Banking Committee (SBC) will hold a hearing on the nomination of Mary Jo White to be Chairman of the Securities and Exchange Commission (SEC). See, notice. Location: Room 538, Dirksen Building.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will hold an event at which Willaim Lake and other officials from the FCC's Media Bureau will speak. Free. Bring your own lunch. The FCBA states that this is an FCBA event. Location: National Association of Broadcasters (NAB), 1771 N St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Oversight of the Federal Communications Commission". See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a hearing titled "Current and Projected National Security Threats to the United States". This event is open to the public. See, notice. Location: Room 216, Hart Building.

3:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services and General Government will hold a hearing on the Securities and Exchange Commission (SEC). The witness will be SEC Inspector General Carl Hoecker. See, notice. Location: Room 2359, Rayburn Building.

EXTENDED FROM FEBRUARY 19. Extended deadline to submit reply 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 reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding IP Captioned Telephone Service. This item is FCC 13-13 in CG Docket Nos. 13-24 and 03-123. The FCC adoptd this item on January 24, 2013, and released the text on January 25. See, notice in the Federal Register, Vol. 78, No. 24, February 5, 2013, at Pages 8090-8096.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, Homeland Security and Investigations will hold a hearing titled "Investigating and Prosecuting 21st Century Cyber Threats". The witnesses will be __. See, notice. Location: Room 2237, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution and Civil Justice will hold a hearing titled "Examination of Litigation Abuses". The witnesses will be __. See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "U.S. India Trade Relations". The witnesses will be __. The HWMC notice states that the hearing will address several topics, including "India’s National Manufacturing Policy and other forced localization policies including the Preferential Market Access (PMA) on information technology products ... protection of intellectual property rights ... issuance of compulsory licenses, patent revocations, and other policies on pharmaceuticals ... Information Technology Agreement expansion". Location: Room 1100, Longworth Building.

1:30 PM. The American Enterprise Institute (AEI) will host an event titled "The US-Japan alliance in action: Threats to thwart, opportunities to seize". The speakers will be Michael Auslin (AEI), Jim Zumwalt (Department of State), Yusuke Anami (Tohoku University Graduate School), Bruce Klingner (Heritage Foundation), Tetsuo Kotani (Japan Institute of International Affairs) and Yoshiji Nogami (Japan Institute of International Affairs). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

2:00 PM. The House Foreign Affairs Committee's (HFAC) Subcommittee on Asia and the Pacific will hold a hearing titled "The Rebalance to Asia: Why South Asia Matters: Part II". The witnesses will be Walter Lohman (Heritage Foundation), Vikram Nehru (Carnegie Endowment for International Peace), Sadanand Dhume (American Enterprise Institute), and Sanjay Puri (Alliance for U.S. India Business). See, notice. Location: Room 2172, Rayburn Building.

9:00 - 10:30 AM. The US Telecom will host an on site and webcast panel discussion titled "Implementing the Cybersecurity Executive Order: A Communications Industry Perspective". The speakers will be Rudy Brioche (Comcast), Chris Boyer (AT&T), Kathryn Condello (CenturyLink), Kate Dean (US Internet Service Provider Association), and Robert Mayer (US Telecom). Free. Open to the public. Breakfast will be served from 8:30 AM. See, notice. Location: US Telecom, Suite 400, 607 14th St., NW.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, Science, and Related Agencies will hold a hearing on the Department of Justice (DOJ). The witness will be Michael Horowitz (DOJ Inspector General). See, notice. Location: Room H-309, Capitol Building.

10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Financial Services and General Government will hold a hearing on the Supreme Court. The witnesses will be Associate Justices Anthony Kennedy and Stephen Breyer. See, notice. Location: Room 2359, Rayburn Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing on undisclosed matters. See, notice. Location: Room HVC-304, Capitol Visitor Center.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Oversight of the First Responder Network Authority (FirstNet) and Emergency Communications". The witnesses will be __. See, notice. Location: Room 2123, Rayburn Building.

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.

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.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Mobile Payments: Turning Your Cellphone into Your Wallet". Jackie McCarthy (CTIA), Spencer White (ISIS), Jenelle Tortorella (LevelUp), Trey Hanbury (Hogan Lovells), Pattie Allouise (Federal Reserve Bank of Boston), Jules Polonetsky (Future of Privacy Forum), Jason Oxman (Electronic Transactions Association), and Cindy Jenkins (NACHA). CLE credits. Prices vary. See, notice. Location: Hogan Lovells, 555 13th St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notices (PNs) regarding development of the forward looking cost model for Connect America Phase II. These PNs are DA 12-1561, DA 12-1687, DA 12-2011, DA 12-2029, and DA 13-70 in WC Docket Nos. 10-90 and 05-337. See, notice in the Federal Register, Vol. 78, No. 18, January 28, 2013, at Pages 5765-5767.

Supreme Court conference day. See, Supreme Court calendar.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register (FR) regarding software patents. See, FR, Vol. 78, No. 2, January 3, 2013, at Pages 292-295. See also, story titled "USPTO Announces Roundtables on Software Patents" in TLJ Daily E-Mail Alert No. 2,503, January 3, 2013.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register (FR) regarding potential practices that patent applicants can employ at the drafting stage of a patent application in order to facilitate examination and bring more certainty to the scope of issued patents. See, FR, Vol. 78, No. 10, January 15, 2013, at Pages 2960-2961. See also, story titled "USPTO Seeks Comments on Preparation of Patent Applications" in TLJ Daily E-Mail Alert No. 2,512, January 20, 2013.

Deadline to submit applications to Google for its "Google Policy Fellowships". See, notice.

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