3/27. Spamhaus, which provides lists of spammers that enable others to weed out spam e-mail messages, has been the target of escalating and broadening distributed denial of service (DDOS) attacks that have slowed internet access service in some regions.

Spamhaus stated in a release that it "experienced a large-scale DDoS attack over the past weekend and extending into this week. Although this site and our mail were knocked down for awhile, our data systems continued to work normally throughout the attack".

Spamhaus states in its website that its "mission is to track the Internet's spam operations and sources, to provide dependable realtime anti-spam protection for Internet networks, to work with Law Enforcement Agencies to identify and pursue spam gangs worldwide, and to lobby governments for effective anti-spam legislation".

Spamhaus recently added Cyberbunker, a Dutch company that provides services to spammers, to its lists. Others use Spamhaus's lists to weed out spam e-mail messages. As of the writing of this article, TLJ's efforts to access the URL for Cyberbunker's home page produced only error messages.

The New York Times published an article on March 26 by John Markoff and Nicole Perlroth titled "Firm Is Accused of Sending Spam, and Fight Jams Internet". It suggests that the attacks are retaliation for listing Cyberbunker as a spammer.

CloudFlare, a company that provides internet security services, including for Spamhaus, wrote a description of the evolution of the tactics used by the attackers, how the attacks worked, and how various entities mitigated their effects.

The attackers first targeted Spamhaus, then CloudFlare, then the Tier 2 providers and internet exchanges (IXs) to which CloudFlare connects, and finally, Tier 1 providers.

CloudFlare wrote that "we have been told by one major Tier 1 provider that they saw more than 300Gbps of attack traffic related to this attack. That would make this attack one of the largest ever reported."

It also wrote that "Over the last few days, as these attacks have increased, we've seen congestion across several major Tier 1s, primarily in Europe where most of the attacks were concentrated, that would have affected hundreds of millions of people even as they surfed sites unrelated to Spamhaus or CloudFlare. If the Internet felt a bit more sluggish for you over the last few days in Europe, this may be part of the reason why."

Adam Benson of the Digital Citizens Alliance stated in a release on March 27 that "this is more than just an inconvenience slowing down your computer. Cyberbunker is showing just how much damage they can do to the Internet economy by slowing and in some cases disabling businesses with these attacks on the web. This is an effort to threaten and intimidate creators and online businesses like we saw from the Mafia when they took control of neighborhoods in American cities. It's deplorable and as citizens we can't let them get away with it."

3/21. The American Civil Liberties Union of Northern California (ACLUNC) and others filed a complaint [56 pages in PDF] in the Superior Court for the State of California against the City and County of San Francisco seeking declaratory and injunctive relief regarding the police practice of conducting warrantless searches of the cellular telephones of arrestees.

Marley Degner, of the San Francisco office of the law firm of Pillsbury Winthrop Shaw Pittman, the plaintiffs' attorney, stated in a release that "Cell phones today are virtual home offices that contain personal, professional, and financial information not just about us, but about anyone we communicate with in any way. Police need a warrant to search our home office. Our cell phones should be treated the same way".

This is a six count complaint. The first two counts allege violation of the California Constitution's right to privacy and right to be free from unreasonable searches and seizures.

The California Supreme Court previously held that warrantless cell phone searches incidental to arrest do not violate the U.S. Constitution's 4th Amendment search and seizure clause. See, 2011 opinion in People v. Diaz, 51 Cal.4th 84.

The facts of the Diaz case involved a police search incidental to an arrest in 2007 of a cell phone for text messages. In contrast, people now use smart phones that contain a vastly greater amount of personal and private information.

The complaint in the present case also pleads violation of 42 U.S.C § 1983, based upon violation of the U.S. Constitution's 1st Amendment free speech clause. It also pleads violation of the California Constitution's liberty of speech clause.

The complaint states that "The California Constitution provides greater privacy protections than the federal constitution Cell phones today are essentially compact home offices that can be carried on the person or in briefcase and searching them poses special privacy concerns beyond what is typical in the search and seizure context The California Constitution and First Amendment of the United States Constitution also safeguard the rights of free speech and free association against governmental interference in particular against the compelled disclosure of speech and associational information."

The complaint states that one of the individual plaintiffs, in an act of "peaceful civil disobedience", camped in a public plaza to protest a proposed ordinance regarding camping and sleeping in public. Police arrested him, and then searched his cell phone without a warrant.

The complaint states that the other individual plaintiff is an attorney, and member of the ACLUNC Board of Directors, who uses her Apple iPhone in the course of legal representation, and that it contains matters covered by the attorney client and work product privileges.

The complaint does not allege that she has been arrested, or that she has been subjected to a warrantless search of her smartphone. Rather, she is "concerned" about the loss of confidential communications, "in the event she were arrested in San Francisco".

3/21. The Federal Communications Commission (FCC) released a report [339 pages in PDF] titled "Sixteenth Report" that partially complies with the statutory requirement that the FCC write annual reports on the state of wireless competition. The evidence collected for this report documents competition. The report, however, declines to makes this conclusion.

The relevant statute, codified at 47 U.S.C. § 332(c)(1)(C), requires the FCC to write annual reports on competition in "commercial mobile services" or CMS, which is defined in Section 332 and Section 153. While the statute requires that these reports be annual, the FCC during Chairman Genachowski's tenure has treated this annual requirement as optional.

The statute also requires that the FCC determine "whether or not there is effective competition". The FCC stopped making this required determination in its 14th, 15th and 16th reports. A conclusion that there is effective competition would undermine the FCC's claims that regulation of wireless is required. The policy goals of the FCC are driving its factual conclusions.

The report states that it "makes no formal finding as to whether there is, or is not, effective competition in the industry. Rather, given the complexity of the various inter-related segments and services within the mobile wireless ecosystem, the Report focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry."

FCC Chairman Julius Genachowski wrote in his statement that "America’s mobile marketplace has strengthened, with increased private investment and innovation, and revitalized competitors, though competition challenges remain. This 16th Report’s analytical framework reflects the Commission’s commitment to fact-based, data-driven analyses. We will continue that focus as we tackle the challenges of promoting competition, protecting consumers, and unleashing spectrum, all to drive U.S. leadership in mobile."

FCC Commissioner Robert McDowell wrote in his statement that this report "does not conclude, despite the wealth of evidence before us, ``whether or not there is effective competition,´´ as the statute requires. Instead, the report ``focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry.´´ Congress, however, tasked us with making a finding as to whether this sector is competitive. Clearly, it is. For this reason, I vote to concur to the Sixteenth Mobile Wireless Competition Report, as I have for the last two reports." (Footnote omitted.)

FCC Commissioner Ajit Pai wrote in his statement that "I cannot approve today’s report in every respect because it does not carry out all the tasks that Congress has assigned us. Specifically, Congress has directed us to include in our annual wireless competition report ``an analysis of whether or not there is effective competition.´´ The report simply does not do this. To be sure, some might not like answering this question. But the Communications Act does not give us the discretion to dodge. The binary choice of yes or no doesn’t countenance a hedge based on ``the complexity of the various inter-related segments and services within the mobile wireless ecosystem.´´" (Footnotes omitted.)

The relevant portion of the statute provides that "The Commission shall review competitive market conditions with respect to commercial mobile services and shall include in its annual report an analysis of those conditions. Such analysis shall include an identification of the number of competitors in various commercial mobile services, an analysis of whether or not there is effective competition, an analysis of whether any of such competitors have a dominant share of the market for such services, and a statement of whether additional providers or classes of providers in those services would be likely to enhance competition. As a part of making a determination with respect to the public interest under subparagraph (A)(iii), the Commission shall consider whether the proposed regulation (or amendment thereof) will promote competitive market conditions, including the extent to which such regulation (or amendment) will enhance competition among providers of commercial mobile services. If the Commission determines that such regulation (or amendment) will promote competition among providers of commercial mobile services, such determination may be the basis for a Commission finding that such regulation (or amendment) is in the public interest." (Parentheses in original.)

Steve Largent, head of the CTIA, stated in a release that the report "reveals a wealth of data that clearly highlights the innovation, investment and competition that epitomizes the U.S. mobile wireless ecosystem. We believe that a clear-eyed assessment of the level of investment, network deployment, world-leading operating systems, devices, applications and services conclusively demonstrates the value and benefits that consumers and businesses receive from the U.S. wireless industry. In this respect, we regret that the Commission again misses an opportunity to make a finding about the robust level of competition that consumers enjoy in the U.S."

 See also, statement by Verizon arguing that there is plenty of evidence of strong competition.

This report is FCC 13-34 in WT Docket No. 11-186.

3/27. The U.S. Patent and Trademark Office (USPTO) announced in a release the 2013 inductees to the National Inventors Hall of Fame. The inductees, and the subjects of their inventions, include:

• Don Bitzer and Gene Slottow -- plasma display technology
• Irwin Jacobs and Andrew Viterbi -- code division multiple access (CDMA)
• Joseph Lechleider -- digital subscriber line (DSL)

3/26. Sen. Tim Johnson (D-SD) announced in a release that he will not run for re-election to the Senate in 2014. See also, statement by President Obama.

3/26. President Obama nominated Julia Pierson to be Director of the Department of Homeland Security's (DHS) Secret Service. See, White House news office release, and DHS release. She is a career Secret Service employee.

3/27. The Office of Management and Budget (OMB) released a memorandum [11 pages in PDF] for the heads of executive departments and agencies titled "Fiscal Year 2013 PortfolioStat Guidance: Strengthening Federal IT Portfolio Management".

3/26. The Department of Justice's (DOJ) Antitrust Division filed with the U.S. District Court (DC) its Motion and Supporting Memorandum to Entry of Final Judgment [4 pages in PDF] in US v. Verizon Communications. This is the action that the US and the state of New York brought on August 16, 2012, in conjunction with the approval of the Verizon cable deals. See, complaint [19 pages in PDF] and story titled "DOJ Approves Verizon Cable Deals" in TLJ Daily E-Mail Alert No. 2,429, August 15, 2012. This case is USA and State of New York v. Verizon Communications, Inc., et al., U.S. District Court for the District of Columbia, D.C. No. Case 1:12-cv-01354 (RMC).

3/25. The Federal Trade Commission (FTC) released a short report regarding adherence of video game retailers and movie theaters to age based restrictions. This report finds that "video game retailers continue to enforce age-based ratings, while movie theaters have made marked improvement in box office enforcement." The FTC, which conducted an undercover survey, stated that "Only 13 percent of underage shoppers were able to purchase M-rated video games, while a historic low of 24 percent were able to purchase tickets to R-rated movies."

3/25. The Government Accountability Office (GAO) released a report [56 pages in PDF] titled "Critical Infrastructure Protection: DHS List of Priority Assets Needs to Be Validated and Reported to Congress".

3/22. Microsoft released a report titled "2012 Law Enforcement Requests Report". It contains summary data, by nation, on law enforcement requests and court orders received by Microsoft and its Skype service. See, report and data tables [PDF].

3/21. The Securities and Exchange Commission (SEC) filed a civil complaint in the U.S. District Court (SDNY) that charges Rajarengan Rajaratnam with violation of federal securities law (Section 10b and Rule 10b5 thereunder) in connection with his alleged insider trading involving stock in several companies, including Clearwire, Akamai Technologies, and Advanced Micro Devices. This is another in the series of Galleon related cases. This case is SEC v. Rajarengan Rajaratnam, U.S. District Court for the Southern District of New York, D.C. No. 13 CV 1894. In addition, the same District Court unsealed a parallel indictment that charges Rajarengan Rajaratnam with criminal securities fraud and conspiracy. See, USAO release.

3/19. Rep. Howard Coble (R-NC) and Rep. Judy Chu (D-CA) announced the formation of a Congressional Creative Rights Caucus. The 36 members include Rep. John Conyers (D-MI), Rep. Mel Watt (D-NC), and Rep. Henry Waxman (D-CA). It is a largely Democratic group. However, the members also include Rep. Louie Gohmert (R-TX) and Rep. Marsha Blackburn (R-TN). See, release. See also, ACT release.

3/11. The American Antitrust Institute (AAI) released a paper [56 pages in PDF] titled "Coordinating Extensive Trademark Rights and Competition Policy". The author is the AAI's Kexin Li. This paper states that "federal trademark law should work coherently with competition laws and policies to facilitate interstate commerce and competition. However, as the scope of trademarkable subject matter is expanding, as well as the current efforts by corporations to seek trademark protection instead of or in addition to patents and/or copyrights, trademarks start to raise competition concerns as well."

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

The Senate will not meet.

8:00 AM - 4:00 PM. Day two of a two day meeting of the Department of Transportation's (DOT) Intelligent Transportation Systems Program Advisory Committee (ITSPAC). The agenda includes "Shared Use Frequency Spectrum Issues Update". See, notice in the Federal Register, Vol. 78, No. 49, March 13, 2013, at Page 16030. Location: Courtyard Marriott Capitol Hill/Navy Yard Hotel, 140 L St., SE.

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.

1:00 PM. The US Telecom will host a webcast seminar titled "The Future of 10G Ethernet Service Aggregation & Transport". Free. See, notice.

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.

Deadline to submit initial comments to the Federal Communications Commission's (FCC) Wireline
Competition Bureau (WCB) in response to its Public Notice (PN) regarding implementation of Connect America Phase II subsidy program. This PN is DA 13-284 in WC Docket No. 10-90. The WCB released it on February 26, 2013. See also, notice in the Federal Register, Vol. 78, No. 51, March 15, 2013, at Pages 16456-16460.

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.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding state applications for renewal of the certification of their state TRS programs pursuant to Title IV of the Americans with Disabilities Act (ADA). See, DA 13-275 in CG Docket No. 03-123, and notice in the Federal Register, Vol. 78, No. 48, March 12, 2013, at Pages 15722-15724.

Deadline to submit to the Federal Communications Commission's (FCC) comments and oppositions to petitions for exemption from the FCC's requirements to closed caption television programming. See, Public Notice [3 pages in PDF], DA 13-312 in CG Docket No. 06-181, released on February 28, 2013.

? 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.

Deadline to submit comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) in response to its Public Notice (PN) regarding "Rate of Return for Connect America Cost Model". The FCC released this PN on February 28, 2013. It is DA 13-311 in WC Docket No. 10-90. See also, notice in the Federal Register, Vol. 78, No. 56, March 22, 2013, at Pages 17624-17625.

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petitions for reconsideration filed in the FCC's low power radio service proceeding, MB Docket No. 99-25. See, FCC notice, and notice in the Federal Register, Vol. 78, No. 44, March 6, 2013, at Page 14490. See for example, petition filed by the Prometheus Radio Project.

The Senate will meet at 10:45 AM in pro forma session only.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cisco Systems v. Alberta Telecommunications Research Center, App. Ct. No. 2012-1687, an appeal from the U.S. District Court (NDCal) in a patent case involving technology for telecommunications networks. Panel D. Location: Courtroom 402, 717 Madison Place, NW.

1:00 - 2:00 PM. The law firm of Fulbright & Jaworski will host a webcast seminar titled "International Brand Management -- How to Protect Your Company's Most Important Asset Worldwide". The speakers will be Travis Bachman (Carlson Companies), Frances Drummond (Norton Rose Australia), Patrick Gallagher (Fulbright & Jaworski), Paul Mussell (NCS Pearson, Inc.), and Ann Wessberg (Target Corporation).

6:00 - 9:00 PM. The DC Bar Association will host a reception and panel discussion titled "Defending Against Cyber-Intrusions from Both State-Sponsored and Civilian Hackers". The speakers will be Michael Hayden (Chertoff Group), Ronald Lee (Arnold & Porter), Suzanne Spaulding (DHS National Protection and Programs Directorate), and Steven Cash (Deck Prism). The price to attend ranges from free to $20. No CLE credits. The reception will be from 6:00 - 7:00 PM. See, notice. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. Location: Arnold & Porter, 555 12th St., NW.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the e-book and book titled "The Need for Speed: A New Framework for Telecommunications Policy for the 21st Century". The speakers will be the co-authors, Robert Litan and Hal Singer, and Robert Atkinson (ITIF). See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Production and Distribution of Video Programming: Basics and Advanced Issues". Prices vary. CLE credits. See, notice. The first panel is titled "Basic Rights and Clearance Issues for Video Programming and Distribution". The speakers will be Ben Golant (USPTO), Mike Beller (PBS), Jennifer Elgin (Wiley Rein), Michael Turner (Discovery Communications), and Ben Ivins (National Association of Broadcasters). The second panel is titled "Advanced Issues in Video Programming and Distribution". The speakers will be Michael Nilsson (Wiltshire Grannis), Bob Garrett (Arnold & Porter), John Hane (Pillsbury Winthrop), Seth Davidson (Edwards Wildman), and Jeff Blum (DISH Network). Location: Drinker Biddle & Reath, 1500 K St., NW.

9:00 AM - 3:00 PM. The U.S. China Economic and Security Review Commission will host a hearing titled "China’s Maritime Disputes in the East and South China Seas". See, notice. Free. Open to the public. Location: Room G-50, Dirksen Building.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Interdigital Communications v. ITC, App. Ct. No. 2012-1628. LG Electronics is the intervenor. This is an appeal from the U.S. International Trade Commission (USITC) in No. 337-TA-800. Panel H. Location: Courtroom 402, 717 Madison Place, NW.

1:00 PM. The US Telecom will host a webcast seminar titled "Monitoring & Optimizing Real Time IP Networks". Free. See, notice.

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.

Deadline to submit to the Federal Communications Commission (FCC) petitions to deny AT&T's acquisition of Atlantic Tele-Network's U.S. retail wireless operations. See, AT&T release of January 22, 2013, and FCC Public Notice [5 pages in PDF], DA 13-352 in WT Docket No. 13-54.

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