3/21. Sen. Ron Wyden (D-OR), and Sen. Mark Kirk (R-IL) introduced S 639 [LOC | WW | PDF], the "Geolocational Privacy and Surveillance Act" or "GPS Act" in the Senate. Also on March 21, Rep. Jason Chaffetz (R-UT) and others introduced HR 1312 [LOC | WW], the companion bill in the House.

These bills would require law enforcement agencies to obtain a court warrant to intercept, or acquire or from service providers, geolocation information associated with wireless phones and other devices, subject to emergency and other exceptions.

There was a related bill in the 112th Congress, S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", introduced by Sen. Al Franken (D-MN) on June 16, 2011.

Sen. Wyden stated in a release that "GPS technology has evolved into a useful commercial and law enforcement tool but the rules for the use of that tool have not evolved along with it".

He added that "The GPS Act provides law enforcement with a clear mandate for when to obtain a warrant for the geolocation information of an American. It also provides much-needed legal clarity for commercial service providers who often struggle to balance the privacy of their customers with requests for information from law enforcement. Finally, it protects the privacy and civil liberty of any American using a GPS-enabled device."

Rep. Chaffetz (at right) stated in a release that "the government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent or without obtaining a warrant from a judge."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The GPS Act is vital to protect the privacy and civil liberties of Americans and to set standards that give businesses certainty and citizens greater confidence in their privacy. This is one of several critical privacy policies, which if properly resolved, can have a positive impact on stakeholders from customers to investors and can help boost a booming sector of our economy."

The ACLU's Chris Calabrese stated in a release that "Cell phones are also portable tracking devices, and the law needs to catch up with technology to protect Americans from the indiscriminant use of this type of invasive surveillance ... Police routinely get people's location information with little judicial oversight because Congress has never defined the appropriate checks and balances."

The House bill was referred to the House Judiciary Committee (HJC) and House Intelligence Committee (HIC). The original cosponsors are Rep. John Conyers (D-MI), Rep. Steve Chabot (R-IN), Rep. Sam Farr (D-CA), Rep. Peter DeFazio (D-OR), Rep. Chellie Pingree (D-ME), Rep. Jared Polis (D-CO), Rep. Ted Poe (R-TX), Rep. Zoe Lofgren (D-CA), Rep. Jim Sensenbrenner (R-WI), and Rep. Peter Welch (D-VT).

The Senate bill was referred to the Senate Judiciary Committee (SJC).

3/21. Sen. Ron Wyden (D-OR) introduced S 639 [LOC | WW | PDF], the "Geolocational Privacy and Surveillance Act" or "GPS Act" in the Senate, and Rep. Jason Chaffetz (R-UT) introduced HR 1312 [LOC | WW], the companion bill in the House.

These bills would add a new Section 120 titled "Geolocation Information" to Title 18, the criminal code.

These bills contains four criminal prohibitions on the interception or disclosure of geolocation information. Then, the bills create numerous exceptions to the prohibitions. The key exception is for government entities that have obtained a warrant issued by a federal or state court.

There is also an exception for information acquired during the normal course of business. That is, the pertinent service providers may acquire and use geolocation information.

There is also an exemption for foreign intelligence surveillance.

There is also an exemption for the geolocation information of a person who has given consent.

There two exceptions related to "emergency" situations. First, there is an exception for any "law enforcement officer or other emergency responder to intercept or access geolocation information relating to a person if such information is used ... to respond to a request made by such person for assistance; or ... in circumstances in which it is reasonable to believe that the life or safety of the person is threatened, to assist the person".

Second, there is another "emergency" exception for any law enforcement officer who "reasonably determines" that there is an "immediate danger of death or serious physical injury to any person", that there are "conspiratorial activities threatening the national security interest", or there are "conspiratorial activities characteristic of organized crime", and the officer requires the information before he can with due diligence obtain a warrant.

There is also an exception for stolen devices. That is, the government can intercept or obtain geolocation information when the owner of a device has reported it stolen.

The four prohibitions of the bill, which are subject to the above exceptions, are as follows: First, "it shall be unlawful for any person to ... intentionally intercept ... geolocation information pertaining to another person".

Second, "it shall be unlawful for any person to ... intentionally disclose ... to any other person geolocation information pertaining to another person, knowing or having reason to know that the information was obtained through the interception of such information".

Third, "it shall be unlawful for any person to ... intentionally use ... any geolocation information, knowing or having reason to know that the information was obtained through the interception of such information".

Fourth, "it shall be unlawful for any person to ... intentionally disclose ... to any other person the geolocation information pertaining to another person intercepted by means authorized by" the bill's exceptions, "except as provided in such subsections ... knowing or having reason to know that the information was obtained through the interception of such information in connection with a criminal investigation".

These bill would apply to "geolocation information", which is defined as information "concerning the location of a wireless communication device or tracking device ... that, in whole or in part, is generated by or derived from the operation of that device"

These bills would apply to such geolocation information that is held by any "electronic communication service, a geolocation information service, or a remote computing service".

These bills also extend the exclusionary rule to unlawfully obtained geolocation information under this bill.

These bills also create a private right of action for damages for violation of the prohibitions of this bill.

3/22. Federal Communications Commission (FCC) Chairman Julius Genachowski announced that he "will be stepping down from his post in the coming weeks". See, FCC release.

Genachowski (at left) did not disclose his plans. President Obama has not yet nominated a replacement.

Genachowski also gave a speech [8 pages in PDF] in which he lauded his accomplishments.

He said only a few words about the most significant action taken by the FCC during his tenure -- the adoption of rules that regulate the network management practices of broadband internet access service providers. Those rules are likely to be overturned later this year by the U.S. Court of Appeals (DCCir).

Genachowski also stated that he has a "healthy working relationship with Congress".

Although, his relationship with Democrats has been much healthier than his relationship with Republicans.

Rep. Henry Waxman (D-CA), the ranking Democrat on the House Commerce Committee (HCC), stated in a release that he "has been a brilliant chair".

Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR), the Chairmen of the HCC and its Subcommittee on Communications and Technology, wrote in a release that "While we did not see eye-to-eye on every policy, we did find common ground on issues including making more spectrum available for wireless broadband and protecting the Internet from international regulation. And even though more changes are needed that only legislation can secure, he did much to improve FCC process. Our meetings were always amiable and constructive, and we wish him and his family all the best."

Sen. Charles Grassley (R-IA), stated in a release that "The FCC's stonewalling over information on LightSquared was one of the worst instances I've seen in 30 years of dealing with federal agencies. It took months of pressure and requests, a hold on two nominees, and the involvement of a House committee for the FCC to begin to share documents on the LightSquared decision. Under Chairman Genachowski’s leadership, the FCC acted like a privileged organization that didn't have to answer basic questions about its decision-making process."

President Obama stated in a release that Genechowski brought to the FCC "a clear focus on spurring innovation, helping our businesses compete in a global economy and helping our country attract the industries and jobs of tomorrow. Because of his leadership, we have expanded high-speed internet access, fueled growth in the mobile sector, and continued to protect the open internet as a platform for entrepreneurship and free speech."

Walter McCormick, head of the US Telecom, praised Genachowski in a release for "putting broadband first", for the FCC's broadband plan, and for "executing fundamental reforms to the nation's universal service program".

AT&T's Jim Cicconi praised the outgoing Chairman in a release for focusing on broadband, for drafting a broadband plan, for contributing to the passage of the incentive auctions bill, and for reforming universal service and intercarrier compensation.

Verizon's Craig Silliman praised Genachowski in a release for his commitment to the adoption of broadband, and for "modernizing outdated policies, including reforms to the antiquated intercarrier compensation system and the Universal Service Fund", and for "addressing the surging demand for wireless spectrum".

Sprint's Vonya McCann stated in a release that "From his decision to block AT&T’s proposed takeover of T-Mobile USA, to his efforts to reform the Universal Service Fund, intercarrier compensation, special access and wireless Lifeline, Federal Communications Commission Chairman Julius Genachowski has repeatedly stood up for consumers and competition."

Steve Largent, head of the CTIA, praised him in a release, stating that he "was instrumental in overseeing the National Broadband Plan and has been a strong voice on spectrum issues and acceleration of broadband infrastructure deployment so that consumers may continue to enjoy the benefits of the wireless ecosystem. Julius recognized early on the benefits of mobile broadband and made it a priority to deliver additional, cleared spectrum to meet consumer demand".

Comcast's David Cohen praised Genachowski in a release in which he wrote that "Under his leadership, the Commission adopted a National Broadband Plan, the Connect America Fund and the Incentive Auction opportunity to help drive innovation, investment and job creation." Michael Powell, head of the National Cable & Telecommunications Association (NCTA) praised Genachowski in a release for promoting "investment in networks and services that are now delivering important societal benefits".

The Consumer Electronics Association (CEA) praised Genechowski in a release, singling out his role in the drafting of legislation to authorize incentive auctions.

Gordon Smith, head of the National Association of Broadcasters (NAB), praised Genachowski in a release. See also, praise from the National Association of Regulatory Utility Commissioners (NARUC).

Several commenters offered criticism of Genachowski -- some for being too regulatory, and some for not being regulatory enough.

Berin Szoka of the Tech Freedom wrote in a release that Genachowski "wasted two years and limited staff resources hunting down the great white whale of Net Neutrality. His attempted compromise contorted the FCC's legal authority well beyond what Congress intended. If, as is widely expected, the D.C. Circuit strikes down the Net Neutrality rules, the Commission will be back at square one -- four years later."

Szoka also complained that Genachowski has "set the Commission on the path to doing precisely what Congress told the agency not to do in the Spectrum Act: limit participation in incentive auctions."

At the other end of the ICT political spectrum, Craig Aaron of the Free Press wrote bitterly in a release that "instead of acting as the people's champion, he's catered to corporate interests. His tenure has been marked by wavering and caving rather than the strong leadership so needed at this crucial agency."

Aaron wrote that Genachowski "claimed to be a staunch defender of the open Internet, but his Net Neutrality policies are full of loopholes and offer no guarantee that the FCC will be able to protect consumers from corporate abuse in the future." Aaron also faulted Genachowski for continuing "the Bush administration's failed media ownership policies".

Similarly, the Public Knowledge (PK) complained in a release that "Genachowski's term can best be described as one of missed opportunities. He had the opportunity, but declined, to solidify the agency’s authority and ability to protect consumers with regard to broadband -- the communications system of the present and future. As a result, there is a real danger that the FCC will become a powerless and irrelevant agency as the nation’s communications networks change. The Chairman had the opportunity, but declined, to take several important steps that would have promoted more robust competition in the wireline and wireless broadband market. He punted on special access and permitted two major mergers, spelling the end of 'facilities-based' competition between the cable and telephone industries."

The House will not meet. It will next meet at 10:00 AM on March 25 in pro forma session.

The Senate will meet at 9:00 AM. It will resume consideration of SConRes 8, a budget resolution.

Supreme Court conference day. See, Supreme Court calendar.

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Associates under the New HSR Rules". The speakers will be Jeffrey Ayer (WilmerHale), Kathryn Walsh (FTC Premerger Notification Office), John Ingrassia (Proskauer), and Nadia Murad (Kirkland & Ellis). Free. No CLE credits. See, notice.

2:00 - 3:00 PM. The Brookings Institute will host an event titled "What Lies Ahead for Japan and the United States". Kenichiro Sasae (Ambassador of Japan to the United States) will speak and answer questions. Free. Open to the public. See, notice. Location: Brookings, 1775 Massachusetts Ave., NW.

The House will meet at 10:00 AM in pro forma session. The House will not meet the week of March 25 through March 29, or the week of April 1 through April 5, except for pro forma sessions. The House will return on Tuesday, April 9. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet the week of March 25 through March 29, or the week of April 1 through April 5, except for pro forma sessions. The Senate will return on Monday, April 8.

POSTPONED. 12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Committee and Video Programming and Distribution Committee will host a brown bag lunch regarding the FCC’s encoding rules for cable and satellite providers. The speakers will be Stephanie Roy (Steptoe & Johnson), Robert Schwartz (Constantine & Cannon), and Paul Glist (Davis Wright & Tremaine). Location: Wiley Rein, 1776 K St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [34 pages in PDF] regarding rates for telecommunications services in prisons. The FCC adopted this NPRM on December 24, 2012, and released the text on December 28. It is FCC 12-167 in WC Docket No. 12-375. See, notice in the Federal Register, Vol. 78, No. 14, January 22, 2013, at Pages 4369-4376.

The House will not meet.

The Senate will meet at 4:30 PM in pro forma session only.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Apple v. Samsung, App. Ct. No. 2012-1600, an appeal from the U.S. District Court (NDCal) in a patent infringement case involving technology for smart phones and tablets. The District Court case is 11-CV-1846-LHK, Judge Lucy Koh presiding. See also, stories titled "Trial Jury Returns Verdict In Apple v. Samsung" in TLJ Daily E-Mail Alert No. 2,437, August 25, 2012, and "Apple Files Patent Infringement Complaint Against Samsung" in TLJ Daily E-Mail Alert No. 2,222, April 18, 2011. Location: Courtroom 201.

12:00 NOON - 1:30 PM. The Georgetown University's Center for Business and Public Policy (CBPP) will host a panel discussion titled "Europe/U.S. Trade Deal: Promise and Reality". The speakers will be John Herrmann (Kelly Drye), Thea Mei Lee (AFL-CIO), Dave Salmonsen (American Farm Bureau Federation), Michael Smart (Rock Creek Global Advisors), and Bob Vastine (CBPP). Lunch will be served. See, notice. Location: Room B-318, Rayburn Building.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "The iPad for Lawyers: Incorporating Tablet Computing Into Your Practice". Prices vary. CLE credits. See, notice.

4:30 - 6:00 PM. The American Enterprise Institute (AEI) will host an event titled "Arbitration and the Constitution". The speakers will be Lee Otis, Peter Rutledge (University of Georgia School of Law), Paul Bland (Public Justice), James Chen (Brandeis School of Law), and Michael Greve (George Mason University School of Law). See, notice. Location: AEI, 1150 17th St., NW.

The House will not meet.

The Senate will not meet.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Why Every Lawyer Should Understand The Basic Concepts Of Enterprise Risk Management (ERM) -- 2013". Prices vary. CLE credits. Registrations and cancellations are due by 12:00 NOON on March 26. See, notice. Location: Bingham McCutchen, 2020 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding implementing allocation decisions from the World Radiocommunication Conference held in Geneva in 2007 (WRC-07) regarding spectrum between 108 MHz and 20.2 GHz, and changing service rules for this spectrum. The FCC adopted this NPRM on November 15, 2012, and released the text on November 19. It is FCC 12-140 in ET Docket No. 12-338. See, notice in the Federal Register, Vol. 77, No. 248, December 27, 2012, at Pages 76250-76287.

The House will meet at 11:00 AM in pro forma session only.

The Senate will not meet.

9:30 AM. The Internet Innovation Alliance (IIA) will host an event titled "Where Are We Going, Where Have We Been?". The speakers will be former Rep. Rick Boucher (D-VA) and former Rep. Mike Oxley (R-OH). Breakfast will be served. RSVP to info at internetinnovation dot org. Location: Room 2322, Rayburn Building.

2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "Monopoly Differential Pricing and Welfare". See, paper [30 pages in PDF] with the same title by Yongmin Chen (University of Colorado at Boulder) and Marius Schwartz. The speaker will be Chen. Differential pricing is employed, for example, when producers of intellectual property based products such as books sell at different prices in different countries or to different classes of consumers. It is the practice that the Supreme Court undermined in its March 19, 2013 opinion [74 pages in PDF] in John Wiley & Sons v. Supap Kirtsaeng. See, story titled "Supreme Court Holds First Sale Doctrine Applies Regardless of Location" in TLJ Daily E-Mail Alert No. 2,536, March 19, 2013. Also, geographically based differential pricing in telecommunications is barred by regulation. For more information, contact Christopher Metcalf at cmetcalf at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M St., NW.

5:30 - 7:30 PM. Deborah Cohn, Commissioner for Trademarks at the U.S. Patent and Trademark Office (USPTO) and Gerard Rogers, Chief Administrative Trademark Judge of the Trademark Trial and Appeal Board, will speak at an event titled "The Trademark Office Speaks". The USPTO states that this is a DC Bar Association event. The DC Bar bars reporters from this event. No webcast. Prices vary. No CLE credits. See, notice. Location: Hotel Monaco, 700 F. St., NW.

The House will not meet.

The Senate will meet at 10:30 AM in pro forma session only.

Supreme Court conference day. See, Supreme Court calendar.

? 5:00 PM. Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for the National Medals of Technology and Innovation. See, USPTO notice The USPTO subsequently published a notice in the Federal Register that sets the deadline at April 1. See, FR, Vol. 78, No. 1, January 2, 2013, at Page 90.

The House will not meet the week of April 1 through April 5, except for pro forma sessions. The House will return on Tuesday, April 9. See, House calendar for 113th Congress, 1st Session.

The Senate will not meet the week of April 1 through April 5, except for pro forma sessions. The Senate will return on Monday, April 8.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Chrimar Systems v. Foundry Networks, App. Ct. No. 2012-1641, an appeal from the U.S. District Court (EDMich) in a patent case. Panel A. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit nominations to the U.S. Patent and Trademark Office (USPTO) for the National Medal of Technology and Innovation. See, notice in the Federal Register, Vol. 78, No. 1, January 2, 2013, at Page 90. See also, "National Medal of Technology and Innovation Recipients Announced" in TLJ Daily E-Mail Alert No. 2,498, December 26, 2012. (The USPTO announced in an earlier notice that the deadline is 5:00 PM on March 31.)

Tentative date for the Federal Trade Commission (FTC) to announce the winners of its competition regarding developing a solution for blocking illegal robocalls on landlines and mobile phones. See, notice in the Federal Register, Vol. 77, No. 205, October 23, 2012, at Pages 64802-64808.

3/22. President Obama withdrew the nomination of Caitlin Halligan to be a Judge of the U.S. Court of Appeals (DCCir). See, White House news office release. President Obama has not yet announced his next selection for this position.

The Senate rejected a motion to invoke cloture on the nomination earlier this month. It also rejected a cloture motion early in the 112th Congress. See, story titled "Senate Rejects Cloture on Halligan Nomination for DC Circuit" in TLJ Daily E-Mail Alert No. 2,535, March 18, 2013.

President Obama stated in a release that "I am deeply disappointed that even after nearly two and a half years, a minority of Senators continued to block a simple up-or-down vote on her nomination. This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction. The D.C. Circuit is considered the Nation’s second-highest court, but it now has more vacancies than any other circuit court. This is unacceptable."

From the outset, President Obama had reasons to expect that the Halligan nomination would fail. First, this seat is open because Senate Democrats keep this seat open during in the Bush administration. Senate Republicans are loath to allow Democrats to succeed at this tactic. Whomever the President nominates may face this same objection.

Second, some of Halligan's actions and statements at the New York County District Attorney's Office and the Office of the New York State Attorney General led many Republican Senators and voters to view her as a judicial activist on Second Amendment and terrorism related issues. Also, some red state Democrats had reason to want to avoid an up or down vote.

3/22. The Senate confirmed Ketanji Jackson to be a Judge of the U.S. District Court (DC). See, Congressional Record, March 22, 2013, at Page S2346.

3/22. The Senate confirmed Raymond Moore to be a Judge of the U.S. District Court (DColo). See, Congressional Record, March 22, 2013, at Page S2346.

3/22. The Senate confirmed Troy Tunley to be a Judge of the U.S. District Court (EDCal). See, Congressional Record, March 22, 2013, at Page S2346.

3/21. President Obama nominated Patricia Wald to be a Member of the Privacy and Civil Liberties Oversight Board (PCLOB) for a term expiring January 29, 2019. This is a reappointment. See, White House news office release and release.

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