7/10. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved S 517 [LOC | WW], the "Unlocking Consumer Choice and Wireless Competition Act".

The SJC approved a substitute amendment, without objection, and then approved the bill as so amended by unanimous voice vote.

Sen. Patrick Leahy (D-VT) and others introduced this bill on March 11, 2013.

The House passed a very similar bill, HR 1123 [LOC | WW], which is also titled the "Unlocking Consumer Choice and Wireless Competition Act", on February 25, 2014, by a vote of 295-114. See, Roll Call No. 64. See also, story titled "House Passes Bill to Allow Consumers to Unlock Their Cell Phones" in TLJ Daily E-Mail Alert No. 2,630, February 25, 2014.

The two bills are largely the same. However, only the House bill does not extend the exemption to bulk unlocking.

Unlocking. Unlocking is the circumvention of computer programs on mobile phones or tablets to enable such devices to connect to alternative wireless networks. Some carriers sell consumer phones at discounted prices, in return for the consumers signing wireless service contracts with a minimum fixed term. Carriers use locking to, among other things, prevent these consumers from switching service providers. Locking has also been used to keep consumers from switching providers after contracts have expired.

There is no law that prohibits cell phone or tablet unlocking. However, there are contracts between service providers and consumers. Also, there is the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), which are codified at 17 U.S.C. § 1201. Unlocking of wireless devices may violate the anti-circumvention provisions of the DMCA. Some argue that it never violates the DMCA.

The DMCA directs the Librarian of Congress (LOC) to conduct a proceeding every three years to adopt rules that create exemptions to the ban on circumvention. Nominally, the rules are adopted by the Librarian, but in practice the Register of Copyright, Maria Pallante, and her staff attorneys write these rules. These triennial rules are codified at 37 C.F.R. § 201.40.

The CO's fourth triennial rules contained exemptions related to unlocking. See, story titled "Copyright Office Releases 4th Triennial DMCA Exemptions" in TLJ Daily E-Mail Alert No. 2,115, July 30, 2010. The CO's fifth set of rules, now in effect, ended the exemption for unlocking phones at the end of January of 2013. See, story titled "Librarian of Congress Adopts 5th Triennial § 1201 Exemptions" in TLJ Daily E-Mail Alert No. 2,467, October 24, 2012. Hence, there is now no exemption.

Summary and Comparison of the Two Bills. Both the bill passed by the House in February, and the bill approved by the SJC on July 10, would replace the provision in the LOC's fifth triennial rules, which ended the exemption for unlocking phones, with the provision that had been in the LOC's fourth triennial rules, which provided an exemption for unlocking phones.

Both bills direct the LOC to determine in its next anti-circumvention exemptions rulemaking whether "to include any other category of wireless devices in addition to wireless telephone handsets".

The two bills also provide that "Circumvention of a technological measure that restricts wireless telephone handsets or other wireless devices from connecting to a wireless telecommunications network", under its exemption rules, "may be initiated by the owner of any such handset or other device, by another person at the direction of the owner, or by a provider of a commercial mobile radio service or a commercial mobile data service at the direction of such owner or other person, solely in order to enable such owner or a family member of such owner to connect to a wireless telecommunications network, when such connection is authorized by the operator of such network."

However, the House bill, but not the Senate bill, adds that "Nothing in this subsection shall be construed to permit the unlocking of wireless handsets or other wireless devices, for the purpose of bulk resale, or to authorize the Librarian of Congress to authorize circumvention for such purpose under this Act, title 17, United States Code, or any other provision of law."

The two bills employ the same set of definitions.

SJC Discussion. There was little discussion of this bill at the July 10 SJC meeting.

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, stated at the meeting that "this bill will help address the issue of whether cell phone users should be able to unlock their devices once they have complied with the original contract terms of service, so they can switch to a new wireless carrier. Ease in portability of devices would allow for more competition and consumer choice. This is what a free market system should do."

Sen. Orrin Hatch (R-UT) reviewed the history of the issue. He then stated that "There is concern that the absence of an exemption will make it difficult for some consumers to transfer their phones to other wireless carriers. It just makes sense that cell phone users should be able to do what they want with their phones after satisfying their initial service contract. The bill before us reinstates that ability while also assuring that copyrights are not violated."

Sen. Leahy wrote in a short opening statement that "our bill also directs the Librarian of Congress to consider whether other wireless devices, like tablets, should be eligible for unlocking."

Reaction. Laura Moy of the Public Knowledge (PK) stated in a release that "When consumers purchase a device, they expect to be able to use it as they see fit, not to be bound by software that renders the device useless when they switch from one carrier to another. But until we have unlocking on the books, a flawed copyright law known as the Digital Millennium Copyright Act (DMCA) stands in the way."

Moy added that "Like the House version that passed in February, this bill not only protects consumers' right to unlock their own devices, but also allows for third party help. This is critical for those who need technical assistance to unlock their device. We are also pleased that a recent amendment to the bill removed language about bulk unlocking ..."

Steven Berry, head of the Competitive Carriers Association (CCA), also praised the SJC bill. He wrote in a release that "Allowing consumers to take the device of their choosing to the network that best fits their desires and needs is common-sense policy, and the Committee should be commended for their efforts to reverse the Librarian of Congress’ unfortunate decision."

He added that "Unlocking is especially important for smaller rural and regional carriers who face challenges accessing the latest devices. No carrier, providing the best, most robust service in an area, should have to turn away a customer."

7/8. The House passed HR 4263 [LOC | WW], the "Social Media Working Group Act of 2014", without amendment. This bill would create at the Department of Homeland Security (DHS) a social media working group, to inform people in the emergency preparedness and response community about how to use social media.

The House approved this bill by a vote of 375-19. All of the no votes were cast by Republicans. See, Roll Call No. 369. No one spoke in opposition.

This bill would amend Title III of the Homeland Security Act of 2002. Title III pertains to "Science and Technology in Support of Homeland Security". It is Sections 301-313 of the original Act. It is codified at 6 U.S.C. §§ 181-195c. This bill would add new Section 318 to the Act, titled "Social Media Working Group".

The purpose of this group would be to provide "guidance and best practices ... on the use of social media technologies before, during, and after a terrorist attack or other emergency".

The bill would not impose any mandates upon any government agencies, social media companies, or private sector entities involved in emergency preparedness and response.

Rep. Susan Brooks (R-IN) introduced this bill on March 14, 2014. The House Homeland Security Committee (HHSC) approved it on June 11, 2014.

The Senate has not yet passed this bill.

7/8. The House passed HR 4289 [LOC | WW], the "Department of Homeland Security Interoperable Communications Act", without amendment, by a vote of 393-0. See, Roll Call No. 370.

This bill would revise Section 701 of the Homeland Security Act of 2002, which created the Department of Homeland Security (DHS). Section 701 is codified at 6 U.S.C. § 341. It is a part of Title VII of the Act, which pertains to management of the DHS.

This bill would add to the list of responsibilities of the DHS's Under Secretary for Management "policies and directives to achieve and maintain interoperable communications among the components of the Department".

This bill would also required that the Under Secretary write a "strategy", within 120 days of enactment, "for achieving and maintaining interoperable communications ... among the components of the Department of Homeland Security, including for daily operations, planned events, and emergencies, with corresponding milestones".

Rep. Donald Payne (D-NJ) introduced this bill on March 24, 2014. The House Homeland Security Committee (HHSC) approved it on June 11, 2014.

The Senate has not yet passed this bill.

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The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. It will consider several items under suspension of the rules, including HR 5031 [LOC | WW], the "STEM Education Act of 2013", HR 5035 [LOC | WW], a bill to reauthorize the National Institute of Standards and Technology (NIST), HR 5056 [LOC | WW], the "Research and Development Efficiency Act", and HR 5029 [LOC | WW], the "International Science and Technology Cooperation Act of 2014". Votes will be postponed until 6:30 PM. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

Deadline for the U.S. International Trade Commission (USITC) to submit to the Senate Finance Committee (SFC) its report titled "Digital Trade in the U.S. and Global Economies, Part 2". See, USITC release, and notice in the Federal Register, Vol. 78, No. 162, August 21, 2013, at Pages 51744-51746. See also, story titled "USITC Releases First Report on Digital Trade" in TLJ Daily E-Mail Alert No. 2,589, August 26, 2013.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding wireless broadband services in the 3550-3650 MHz band.. The FCC adopted and released this item on April 23, 2014. It is FCC 14-49 in Docket No. 12-354. See, notice in the Federal Register, Vol. 79, No. 105, June 2, 2014, at Pages 31247-31282. See also, story titled "FCC Adopts NPRM Regarding 3550-3650 MHz Band" in TLJ Daily E-Mail Alert No. 2,645, April 23, 2014.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) that requests comments on a proposal of the National Association of Broadcasters (NAB) to relax FCC rules that require the filtering of Travelers' Information Stations (TIS) audio frequencies between 3 and 20 kHz. The FCC released this PN on April 16, 2014. It is DA 14-508 in PS Docket No. 09-19. See, NAB's November 22, 2013, filing and notice in the Federal Register, Vol. 79, No. 103, May 29, 2014, at Pages 30788-30790.

Deadline to submit applications for membership on the Department of Commerce (DOC) National Advisory Council on Innovation and Entrepreneurship. See, notice in the Federal Register, Vol. 79, No. 116, June 17, 2014, at Pages 34488-34489.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider HR 3086 [LOC | WW], the "Permanent Internet Tax Freedom Act", under suspension of the rules. It may also begin consideration of HR 5016 [LOC | WW], the Financial Services and General Government (FSGG) appropriations bill, subject to rule. This bill includes appropriations for many agencies relevant to information and communications technology, including the Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Financial Crimes Enforcement Network. See, Rep. Cantor's schedule.

The Senate will meet at 10:00 AM.

10:00 AM. The House Financial Services Committee's (HFSC) Subcommittee on Oversight and Investigations will hold a hearing on the Department of Justice's activities titled Operation Choke Point". The witnesses will be Stuart Delery (Assistant Attorney General in charge of the DOJ's Civil Division), Scott Alvarez (General Counsel of the Federal Reserve Board), Richard Osterman (acting General Counsel of the Federal Deposit Insurance Corporation), and Daniel Stipano (Department of the Treasury's Office of the Comptroller of the Currency). See, notice. Location: Room 2128, Rayburn Building.

10:00 AM. The Senate Banking Committee (SBC) will hold a hearing titled "The Semiannual Monetary Policy Report to the Congress". The witness will be Janet Yellen (Chairman of the Federal Reserve Board). See, notice. Location: Room 106, Dirksen Building.

11:00 AM - 2:00 PM. The National Science Foundation's (NSF) Networking and Information Technology Research and Development (NITRD) Program's Large Scale Networking Joint Engineering Team (LSN/JET) meets the third Tuesday of each month. See, notice in the Federal Register, Vol. 78, No. 226, November 22, 2013, at Page 70076. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a panel discussion titled "All Things Spectrum". The speakers will be Jeff Carlisle (LightSquared), Kathleen Ham (T-Mobile USA), Tamara Preiss (Verizon), Jessica Elder (LMI Advisors), and Sean Spivey (Competitive Carriers Association). For more information, contact Lindsey Tonsager at ltonsager at cov dot com or Rachael Bender at rbender at mobilefuture dot org. No webcast. Free. Bring your own lunch. Location: Hogan Lovells, 555 13th St., NW.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled "Moral Rights, Termination Rights, Resale Royalty, and Copyright Term". The witnesses will be Karyn Claggett (Associate Register of Copyrights and Director of Policy & International Affairs), Rick Carnes (Songwriters Guild of America), Casey Rae (Future of Music Coalition), Michael Carroll (American University law school), and Thomas Sydnor (American Enterprise Institute). Webcast. See, notice. See also, story titled "Copyright Office Requests Comments on Creating a Resale Royalty Right for Visual Artists" in TLJ Daily E-Mail Alert No. 2,464, October 18, 2012. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Crime and Terrorism will hold a hearing titled "Taking Down Botnets: Public and Private Efforts to Disrupt and Dismantle Cybercriminal Networks". The witnesses will be Leslie Caldwell (Assistant Attorney General in charge of the DOJ's Criminal Division), Joseph Demarest (Assistant Director of the FBI's Cyber Division), Richard Boscovich (Microsoft), Cheri McGuire (Symantec), Paul Vixie (Farsight Security), and Craig Spiezle (Online Trust Alliance). Webcast. See, notice. Location: Room 226, Dirksen Building.

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

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) that proposes rules for the regulation of the network management practices of broadband internet access service (BIAS) providers. The FCC adopted and released this item on May 15, 2014. It is FCC 14-61 in GN Docket No. 14-28. See also, stories titled "FCC Adopts Net Neutrality NPRM", "Summary of the FCC's Proposed Net Neutrality Rules", and "Net Neutrality NPRM and Pay for Priority Agreements" in TLJ Daily E-Mail Alert No. 2,659, May 19, 2014.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider HR 5016 [LOC | WW], the Financial Services and General Government (FSGG) appropriations bill, subject to rule. This bill includes appropriations for many agencies relevant to information and communications technology, including the Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and Financial Crimes Enforcement Network. See, Rep. Cantor's schedule.

9:30 AM - 3:00 PM. The Department of Health and Human Services' (DHHS) Office of the National Coordinator for Health Information Technology's (ONC/HIT) HIT Standards Committee will meet. See, notice in the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627-76628.

10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing on trade policy and the World Trade Organization (WTO). See, notice. Location: Room 1100, Longworth Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nomination of Robert Holleyman to be a Deputy U.S. Trade Representative. See, notice. Location: Room 215, Dirksen Building.

10:15 AM. The House Judiciary Committee (HJC) will meet to mark up HRes 646, a resolution of inquiry directing the Attorney General to turn over emails related to Lois Lerner, and HR 744 [LOC | WW], the "STOP Identity Theft Act of 2013". See, notice. Location: Room 2141, Rayburn Building.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "At a Tipping Point: Consumer Choice, Consolidation and the Future Video Marketplace". The witnesses will be David Cohen (Comcast), John Stankey (AT&T), Gene Kimmelman (Public Knowledge), Shawn Ryan (Writers Guild of America, West), Jeffrey Blum (Dish Network), and Justin Hurwitz (University of Nebraska College of Law). Webcast. Location: Room 253, Russell Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) to assist it in preparing its report to the Congress, as required by Section 16 of the America Invents Act, regarding virtual marketing of patented articles. See, notice in the Federal Register, Vol. 79, No. 115, June 16, 2014, at Page 34291. See also, story titled "USPTO Seeks Comments on Virtual Marking" in TLJ Daily E-Mail Alert No. 2,670, June 24, 2014.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

9:00 AM. The House Intelligence Committee (HCC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Building.

9:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Regulatory Reform, Commercial and Antitrust Law will hold a hearing titled "Guilty until Proven Innocent? A Study of the Propriety & Legal Authority for the Justice Department’s Operation Choke Point". Webcast. See, notice. Location: Room 2141, Rayburn Building.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology and Subcommittee on Health will hold a hearing titled "21st Century Technology for 21st Century Cures". The witnesses will be __. Webcast. See, notice. Location: Room 2123, Rayburn Building.

9:30 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration of the nominations of Pamela Harris (USCA/4thCir), Pamela Pepper (USDC/EDWisc), Brenda Sannes (USDC/NDNY), Patricia McCarthy (U.S. Court of Federal Claims), and Jeri Kaylene Somers (U.S. Court of Federal Claims). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Role of Trade and Technology in 21st Century Manufacturing". The witnesses will be __. See, notice. Location: Room 215, Dirksen Building.

1:00 - 2:00 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Talking SMAC: Contracting for Social, Mobile, Analytics and Cloud Computing". The speakers will be Lei Shen, Mark Oram, Mark Irving, and Joseph Pennell. Prices vary. CLE credits. See, notice.

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

Rep. Cantor's schedule states that "no votes are expected in the House".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft SP 800-82 Rev. 2 [255 pages in PDF] titled "Guide to Industrial Control Systems (ICS) Security".

12:30 - 5:30 PM. The National Science Foundation's (NSF) Advisory Committee for Mathematical and Physical Sciences will meet. See, notice in the Federal Register, Vol. 79, No. 118, June 19, 2014, at Pages 35191-35192. Location: NSF, 4201 Wilson Boulevard, Suite 1235, Arlington, VA.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Mobile Transformation: The Extraordinary Legal Implications of Billions of Mobile Devices". The speakers will be Lori Chang, Damier Xandrine, Stephen Wu, Lucy Thomson, and Ruth Bro. Prices vary. CLE credits. See, notice.