5/21. Rep. Ed Perlmutter (D-CO), Rep. Peter Welch (D-VT), and others introduced HR 2077 [LOC | WW | PDF], the "Password Protection Act of 2013", a bill that would amend 18 U.S.C. § 1030 to bar employers, under certain circumstances, from compelling the disclosure by their employees or job applicants of passwords for their own computers, e-mail accounts and social media accounts.

Rep. Welch (at right) stated in a release that "Employees have a legitimate expectation of privacy when using Facebook or Twitter. This legislation will prevent fishing expeditions into employees' private lives. While an employer may have a valid concern about the business impact of an employee’s online activity, demanding passwords and unfettered access to private accounts is an over-the-top solution."

Rep. Perlmutter stated in a release that people "have an expectation that their right to free speech and religion will be respected when they use social media outlets. Both users of social media and those who correspond with the user share an expectation of privacy in their personal communications. Without this protection, employers essentially can act as imposters and assume the identity of an employee and continually access, monitor and even manipulate an employee's personal social activities and opinions."

This bill is a reintroduction of HR 5684 [LOC | WW] and S 3074 [LOC | WW], companion bills in the 112th Congress, titled the "Password Protection Act of 2012". Those bills were referred to the House Judiciary Committee (HJC) and Senate Health, Education, Labor, and Pensions Committee (SHELPC), respectively. However, neither Committee took any action on those bills in the 112th Congress.

Subsection 1030(a) currently contains seven numbered prohibitions, some of which contain multiple parts. The just introduced bill would add an eighth prohibition. An employer would be prohibited from demanding that its employees or prospective employees disclose passwords or other information that would enable access to their accounts at social networking websites, but only if the employer engages in monitoring for employment related purposes. This bill would leave employers free to demand passwords for other purposes. It would amend Section 1030(a) to provide as follows:

"(a) Whoever ... (8) acting as an employer, knowingly and intentionally---

(A) for the purposes of employing, promoting, or terminating employment, compels or coerces any person to authorize access, such as by providing a password or similar information through which a computer may be accessed, to a protected computer that is not the employer’s protected computer, and thereby obtains information from such protected computer; or

(B) discharges, disciplines, discriminates against in any manner, or threatens to take any such action against, any person---

(I) for failing to authorize access described in subparagraph (A) to a protected computer that is not the employer’s protected computer; or

(ii) who has filed any complaint or instituted or caused to be instituted any proceeding under or related to this paragraph, or has testified or is about to testify in any such proceeding;

shall be punished as provided in subsection (c) of this section."

Nothing in this bill would subject an employer to prosecution who demands passwords, thereby obtains information, and reports criminal violations to state or federal prosecutors, but does not take employment related action itself.

For example, if this bill were enacted, an employer could demand employees' personal passwords; it could monitor their use of social networking sites and email services; and, if it found evidence of criminal copyright infringement, criminal theft of the employer's trade secrets, or other crimes, it could report such evidence to prosecutors; provided that this employer does not fire, discipline, or take employment related action itself against a monitored employee.

5/22. The Government Accountability Office (GAO) released a report [38 pages in PDF] titled "Spectrum Management: Federal Relocation Costs and Auction Revenues". The GAO prepared this report regarding the 2006 1710-1755 MHz band auction, and forecasts for revenue from an auction of the 1755-1850 MHz band, for the Senate Armed Service Committee (SASC).

This report states that "Actual costs to relocate communications systems for 12 federal agencies from the 1710-1755 MHz band have exceeded original estimates by about $474 million, or 47 percent, as of March 2013."

However, "Although 11 of the 12 agencies plan to spend the same amount or more than they estimated, DOD expects to complete the 1710-1755 MHz transition for about $284 million, or approximately $71 million less than the original estimated cost of about $355 million." (Footnote omitted.)

The report also states that "The Advanced Wireless Services auction of the 1710-1755 MHz band raised almost $6.9 billion in gross winning bids from the sale of licenses to use these frequencies. Our analysis of auction revenue compared to actual relocation costs suggests that the auction of the 1710-1755 MHz band raised $5.4 billion for the U.S. Treasury. This number reflects the difference between the $6.9 billion auction revenue and the approximately $1.5 billion estimated final federal relocation cost."

It also states that "No government revenue forecast has been prepared for a potential auction of the 1755-1850 MHz band, and a variety of factors could influence auction revenues."

5/23. The Senate confirmed Sri Srinivasan to be a Judge of the U.S. Court of Appeals (DCCir) by a vote of 97-0, on May 23, 2013. See, Roll Call No. 136.

Srinivasan is a consensus nominee. However, there was some last minute maneuvering over the timing of the vote that reflects the animosity between some Democrats and Republican over judicial nominations. The Senate Judiciary Committee (SJC) unanimously approved this nomination one week ago, on May 16. See, story titled "Senate Judiciary Committee Approves Srinivasan for DC Circuit" in TLJ Daily E-Mail Alert No. 2,562, May 15, 2013.

Sen. Charles Grassley (R-IA) stated in the Senate that "He was placed on the Executive Calendar 3 days ago, on Monday, May 20th. One day later, on May 21st, Republicans cleared the nominee to have an up and down vote when we return from the Memorial Day recess." But, Sen. Harry Reid (D-NV) "chose to file cloture". See, transcript.

"This is part of the Majority’s attempt to create the appearance of ``obstruction´´ where none exists. It is nonsense", said Sen. Grassley.

5/23. President Obama released a statement on May 23, 2013 regarding the U.S. Court of Appeals (DCCir). He wrote that "The three remaining vacancies must be filled".

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), backed the President during floor debate in the Senate on May 23.

The confirmation of Sri Srinivasan brings the number of active judges in the DC Circuit to eight. However, the relevant statute, 28 U.S.C. § 44(a), authorizes eleven active judges.

Senate Republicans have argued that this circuit has a very light caseload, and does not need any more judges. Rather, three of its seats should be reallocated to more busy circuits, as provided by S 699 [LOC | WW], the "Court Efficiency Act of 2013". See, story titled "Future Nominees for the DC Circuit May Face Republican Opposition" in TLJ Daily E-Mail Alert No. 2,562, May 15, 2013.

Sen. Leahy argued in the Senate that Republicans urged a full compliment of judges during the Bush administration, but are now demanding elimination of three seats "now that President Obama has been reelected by the American people."

Sen. Leahy said that Senate Republicans have made "misleading comparisons to other Circuits", and that the "D.C. Circuit's need for judges will not be met by Sri Srinivasan alone. We must work hard to fill the three additional vacancies".

There is a pattern. When a Democrat is President, and making judicial appointments, Senate Democrats tend to support appointment of the full compliment of judges to the DC Circuit, while Senate Republicans tend to argue that the full number would be unnecessary. When a Republican is President, Senate Republicans argue for more appointments, while Senate Democrats balk.

And, it might easily be predicted that if a Republican were elected President in 2016, that Senate Democrats and Republicans would once again reverse positions; Sen. Grassley would discover a new need for more DC Circuit judges, while Sen. Leahy would decide that eight really is enough.

5/23. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of the nominations of Patricia Smith and Elaine Kaplan to be Judges of the U.S. Court of Federal Claims.

5/23. President Obama nominated Landya McCafferty to be a Judge of the U.S. District Court for the District of New Hampshire. See, White House news office release.

5/23. President Obama nominated Brian Morris and Susan Watters to be Judges of the U.S. District Court for the District of Montana. See, White House news office release. Morris has been a Justice of the Montana Supreme Court since 2005. Watters has been a Montana trial court judge since 1998.

5/15. Lona Nallengara was named Chief of Staff of the Securities and Exchange Commission (SEC). See, SEC release. She went to work at the SEC in 2011. Before that, she worked in the New York City office of the law firm of Shearman & Sterling.

5/15. Keith Higgins was named Director of the Securities and Exchange Commission's (SEC) Division of Corporate Finance. See, SEC release. He previously worked in the Boston office of the law firm of Ropes & Gray.

5/22. The Bureau of Consumer Financial Protection (BCFP) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the effective date for, its final rules amendments, and "official interpretation" thereof, implementing the Electronic Fund Transfer Act (EFTA). The effective date is October 28, 2013. See, FR, Vol. 78, No. 99, May 22, 2013, at Pages 30661-30721.

5/22. The Federal Communications Commission (FCC) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the effective date (October 8, 2013) for, its rules that implement 47 U.S.C.§ 619, which was enacted as Section 104 of the "Twenty-First Century Communications and Video Accessibility Act of 2010" or "CVAA". Section 104 requires that internet browsers built into mobile phones to be accessible to individuals who are blind or visually impaired. The FCC adopted its Report and Order [30 pages in PDF] containing these rules on April 26, 2013. It released the text on April 29, 2013. That R&O is FCC 13-57 in CG Docket No. 10-213, WT Docket No. 96-198, and CG Docket No. 10-145. See, FR, Vol. 78, No. 99, May 22, 2013, at Pages 30226-30231.

5/15. The Federal Trade Commission (FTC) sent one of four letters to 90 app developers regarding compliance with the FTC's Childrens' Online Privacy Provection Act (COPPA) rules changes, adopted in December of 2012. See, story titled "FTC Releases Expanded COPPA Rules" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012. See also, letter to U.S. companies that may be collecting images or sounds of children, letter to U.S. companies that may be collecting persistent identifiers from children, letter to foreign companies that may be collecting images or sounds of children, and letter to foreign companies that may be collecting persistent identifiers from children.

5/2. The National Academy of Sciences (NAS) published report titled "Copyright in the Digital Era: Evidence for Policy". It calls for more data collection and more research. See also, statement by the Computer and Communications Industry Association (CCIA), statement by the Motion Picture Association of America (MPAA), statement by the Authors Guild, and statement by the Copyright Alliance (CA).

The House will meet at 10:00 AM. Rep. Cantor's schedule states that "no votes are expected" in the House.

The Senate will meet at 12:30 PM in pro forma session.

12:00 NOON - 1:15 PM. The Internet Caucus will host a panel discussion titled "Enabling Do Not Track Privacy: Is It Dead or Alive?". The speakers will include Michelle De Mooy (Consumer Action), Ashkan Soltani, Peter Swire (Georgia Institute of Technology), Mike Zaneis (Interactive Advertising Bureau). Free. Some box lunches will be provided. Location: Room B-339, Rayburn Building.

12:00 NOON - 1:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Copyright Trolls Are Never in Fashion: Copyright Infringement Suits and Strategies for Fighting Back". The speakers will be Sarah Burstein (University of Oklahoma College of Law), Charles Colman (Charles Colman Law), Matthew Hintz (Servilla Whitney), Samuel Van Eichner. Prices vary. CLE credits. See, notice.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [47 pages in PDF] regarding implementation of the 2012 spectrum act's provisions regarding deployment of a nationwide public safety broadband network in the 700 MHz band under a nationwide license issued to the FirstNet. See, HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act of 2012", Public Law No. 112-96. The FCC adopted this item on March 7, 2013, and released the text on March 8. It is FCC 13-31 in PS Docket Nos. 12-94 and 06-229, and WT Docket No. 06-150. See, notice in the Federal Register, Vol. 78, No. 79, April 24, 2013, at Pages 24138-24147.

The House will not meet the week of May 27 through May 31. See, House calendar for the 113th Congress, 1st Session.

The Senate will not meet the week of May 27 through May 31. See, Senate calendar for the 113th Congress, 1st Session.

Memorial Day. This is a federal holiday. See, OPM list of 2013 federal holidays.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a discussion of the book [Amazon] titled "Masters of Nothing: How the Crash Will Happen Again Unless We Understand Human Nature". The speakers will be the authors, Matthew Hancock (UK Member of Parliament) and Nadhim Zahawi (UK Member of Parliament), and Joe Kennedy and Robert Atkinson (ITIF), Free. Open to the public. See, notice. Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.

9:30 AM - 4:00 PM. Georgetown University will host a closed event titled "Cyber Threat Intelligence Exchange Project Meeting". See, notice. Location: Georgetown University, Bunn Center, 7th Floor Executive Conference Room, 37th and O Streets, NW.

12:00 NOON - 1:30 PM. The Department of Health & Human Services (DHHS) will hold a webcast and on site event titled "Hear from the Federal Experts! Understanding the Final HIPAA Rules". The speakers will be Susan McAndrew (DHHS) and Joy Pritts (DHHS). The price to attend ranges from $15 to $35. No CLE credits. For more information, call 202-626-3463. Reporters are barred. The DC Bar Association's notice states that this is a DC Bar event. Location: DC Bar Conference Center, 1101 K St., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Online Radicalization: Myths and Realities". The speakers will be Peter Bergen (NAF), Mohamed Elibiary (Lone Star Intelligence), Peter Neumann (International Centre for the Study of Radicalisation), Imam Suhaib Webb (Islamic Society of Boston Cultural Center), Rabia Chaudry (NAF), Rashad Hussein (U.S. Special Envoy to the Organization of Islamic Cooperation), and Haris Tarin (Muslim Public Affairs Council). Free. Open to the public. See, notice. Location: NAF, Suite 400, 1899 L St., NW.

1:00 -2:30 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Crowdfunding 2.0: The JOBS Act Game Changer". The speakers will be Brian Meece (RocketHub), Dan Sartorius, and Kirk Schroder (Schroder Fidlow). Prices vary. CLE credits. See, notice.

Deadline for laboratory accreditation bodies to submit responses to the Department of Homeland Security's (DHS) Request for Expressions of Interest (REI) regarding providing accreditation services for laboratories participating in the Project 25 (P25) Compliance Assessment Program (P25 CAP), which pertains to enabling interoperability among digital two way land mobile radio communications products created by and for public safety professionals. See, notice in the Federal Register, Vol. 78, No. 80, April 25, 2013, at Pages 24428-24429.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) in response to its Public Notice (PN) regarding rural call completion. This PN is DA 13-780 in WC Docket No. 13-39. The FCC released it on April 18, 2013. See also, notice in the Federal Register, Vol. 78, No. 88, May 7, 2013, at Pages 26572-26573.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "Co-Chair Election and Planning Meeting". Location: Eckert Seamans, 1717 Pennsylvania Ave., NW.

Supreme Court conference day. See, Supreme Court calendar.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Committee will host a brown bag lunch to "turn the tables on the telecommunications trade press". The speakers will be Paul Barbagallo (BNA), Brooks Boliek (Politico), Howard Buskirk (Comm Daily), and Paul Kirby (TR Daily). Location: Hogan Lovells, 555 13th St., NW.

12:30 - 2:00 PM. The American Bar Association (ABA) will host a webcast and teleconferenced panel discussion titled "Social Media Law and Order: Effective and Ethical Use of Social Media in Litigation". The speakers will be Samir Ghia (Kubicki Draper) and Ethan Wall (Richman Greer). Prices vary. CLE credits. See, notice.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "From Theory to Reality: Nuts and Bolts of the FCC’s Incentive Auction". The speakers will include John Feore (Dow Lohnes), Rick Kaplan (National Association of Broadcasters), and Lawrence Krevor (Sprint). CLE credits. Prices vary. Registrations and cancellations due by 12:00 NOON on May 29. See, notice. Location: Arnold & Porter, 555 12th St., NW.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) in response to its March 14, 2013 Public Notice [4 pages in PDF] requesting comments to refresh the record regarding fraudulent 911 calls made from Non-Service Initialized (NSI) devices, blocking NSI devices used to make fraudulent 911 calls, and other possible solutions to the problem of fraudulent 911 calls from NSI devices. This item is DA 13-430 in EB Docket No. 08-51. See, notice in the Federal Register, Vol 78, No. 62, April 1, 2013, at Pages 19442-19443.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its "interim final" rules of practice regarding patent term adjustment. These changes implement Section 1(h) of HR 6621 [LOC | WW], which was enacted into law in the closing days of the lame duck session of the 112th Congress. See, notice in the Federal Register, Vol. 78, No. 62, April 1, 2013, at Pages 19416-19421. See also, stories titled "Obama Signs Patent, Economic Espionage and Intelligence Authorization Bills" in TLJ Daily E-Mail Alert No. 2,508, January 15, 2013, "House Passes Rep. Smith's Patent Bill" in TLJ Daily E-Mail Alert No. 4,494, December 19, 2012, and "Rep. Smith Introduces Patent Bill" in TLJ Daily E-Mail Alert No. 2,487, December 10, 2012.

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