7/18. Rep. Larry Bucshon (R-IN), Rep. Lamar Smith (R-TX) and Rep. Chris Collins (R-NY)  introduced HR 5035 [LOC | WW], the "NIST Reauthorization Act of 2014", on July 9, 2014.

The House Republican leadership announced on July 18 that the House will consider this bill under suspension of the rules on Tuesday, July 22, 2014. See, Rep. Cantor's schedule.

This is a 29 page bill that authorizes appropriations for the NIST, and addresses numerous activities and operations of the NIST.

However, the key provision is Section 12, which provides, in full, that "Section 20(c)(1) of the National Institute of Standards and Technology Act (15 U.S.C. 278g–3(c)(1)) is amended by striking ``the National Security Agency,´´."

This removes the provision that involved the National Security Agency (NSA) in the NIST's standards setting process. The NSA proceeded to dumb down the NIST's computer security standards to make its easier for the NSA and others to break encryption.

Public disclosure of this function of the NSA last year damaged the credibility of the NIST standards setting process, and reduced confidence in both NIST standards and products that rely on those standards.

This section, 15 U.S.C. § 278g-3, provides that the NIST "shall ... have the mission of developing standards, guidelines, and associated methods and techniques for information systems". It gives the NIST the mission of setting minimum security standards for information systems used by government agencies and contractors. However, the standards are also adopted by many outside of government.

The subsection to be amended provides that "In developing standards and guidelines" the NIST "shall ... consult with other agencies and offices (including, but not limited to, the Director of the Office of Management and Budget, the Departments of Defense and Energy, the National Security Agency, the Government Accountability Office, and the Secretary of Homeland Security) ..." (Parentheses in original.)

The 107th Congress rewrote this section, adding the reference to the NSA, in HR 2458, the "E-Government Act of 2002", Public Law No. 107-374.

Rep. Bucshon is also the sponsor of HR 4186 [LOC | WW], the "Frontiers in Innovation, Research, Science, and Technology Act of 2014", or "FIRST Act of 2014'". That bill, as marked up by the House Science Committee (HSC) on May 21 and 28, 2014, contains identical language.

See, amendment offered by Rep. Alan Grayson (D-FL), the HSC's web page on this mark up, and story titled "House Science Committee Passes FIRST Act" in TLJ Daily E-Mail Alert No. 2,664, May 28, 2014.

Also, on June 19, Sen. John Walsh (D-MT) introduced S 2500 [LOC | WW], the "American Digital Security and Commerce Act of 2014", a bill that would go further than HR 5035 and HR 4186.

That bill would amend Section 278g-3 to direct the NIST not to undermine privacy, security, or encryption protections included in any standard or guideline.

It would leave the NSA in the process, but provide that Each agency or office that the Institute consults with ... may not intentionally weaken, circumvent, undermine, or create any mechanism through which any agency or office of the Federal Government may bypass, the privacy, security, or encryption protections included in any standard or guideline ..."

See, story titled "Sen. Walsh Introduces Bill to Prevent NIST and NSA From Dumbing Down Encryption Standards" in TLJ Daily E-Mail Alert No. 2,672, July 8, 2014.

Joseph Hall of the Center for Democracy and Technology (CDT) wrote a short piece on May 23, 2014 titled "House Committee Moves to Break Statutory Link Between NSA and NIST".

He wrote that "It is especially crucial that NIST be independent from the NSA given recent revelations. Last September, the computing and cryptographic communities were dismayed to learn that the NSA had been working to undermine encryption products and their underlying standards, including planting a backdoor in a NIST cryptographic standard."

Hall continued that "The NSA has historically played a crucial role in supporting NIST’s cryptographic standards process with mathematical analysis and computation from NSA’s world-class cadre of mathematicians and cryptographers. However, the NSA has apparently abused this relationship and compromised key standards. In the face of past subversion by the NSA, NIST must be wary of NSA participation in standards processes and certainly there should be no statutory requirement to work with the NSA any more than NIST works with other stakeholders."

7/16. Apple and state plaintiffs reached a settlement in the e-books antitrust case filed in April of 2012.

All of the book publisher defendants settled before trial in the U.S. District Court (SDNY) in July of 2013. Only defendant Apple proceeded to trial. The Department of Justice (DOJ) and state plaintiffs prevailed at trial. Apple filed an appeal with the U.S. Court of Appeals (2ndCir), which is pending.

The obligations imposed upon Apple under the just announced settlement are dependent upon the outcome of the appeal. Apple will pay much to consumers if it loses its appeal.

The position of the DOJ and states is that "In late 2009 and early 2010, Apple orchestrated and participated in a conspiracy with five major book publishers1 to take control of retail pricing for electronic books (ebooks) and to raise prices to agreed-upon levels. The conspiracy was successful: retail ebook prices for the vast majority of the Publisher-Defendants’ new releases and bestsellers rose from $9.99 to $12.99 or $14.99. Consumers paid almost 20% more, on average, for all of the Publisher-Defendants' ebooks." See, appeal brief.

New York Attorney General Eric Schneiderman stated in a July 16 release that "This settlement proves that even the biggest, most powerful companies in the world must play by the same rules as everyone else".

He wrote that "our settlement has the potential to result in Apple paying hundreds of millions of dollars to consumers to compensate them for paying unlawfully inflated E-book prices."

Schneiderman did not release documents that constitute the settlement. However, his release states that "Under the settlement, the amount that Apple must pay E-book consumers is contingent on what happens in Apple’s appeal of the court’s July 2013 finding that Apple violated antitrust laws by orchestrating a conspiracy with five publishers to artificially raise E-book prices."

The release continues that "Consumers nationwide (including those represented by private counsel in a related class action) will receive $400 million if the Court’s ruling that Apple violated antitrust laws is ultimately affirmed." (Parentheses in original.)

"If the Court’s ruling is not affirmed, the settlement provides for a smaller recovery of $50 million if liability must be retried, or no recovery if Apple is determined not to have violated antitrust laws". Also, "In the event that the Court’s decision is upheld on appeal, Apple will also make payments to the 33 states of $20 million to resolve the states’ claims for costs, fees, and civil penalties."

Also, on July 15, 2014, the DOJ and states filed their final brief with the Court of Appeals. See also, DOJ Antitrust Division web page with hyperlinks to pleadings.

Background. The DOJ filed its complaint on April 11, 2012 alleging that Apple and the five publishers violated Section 1 of the Sherman Act, 15 U.S.C. § 1, by conspiring to increase the prices that consumers pay for e-books. Three publishers (Hachette, HarperCollins, and Simon & Schuster) settled with the DOJ in April, while Apple and two other publishers (Pearson/Penguin and Holtzbrinck/Macmillan) continued to contest the action.

Numerous states, including Texas New York, filed a parallel action. The two cases are consolidated.

See, "DOJ Sues Apple and Book Publishers Alleging E-Book Price Collusion", "Analysis of DOJ's Sherman Act Claim Against Apple and E-Book Publishers", and related stories in TLJ Daily E-Mail Alert No. 2,368, April 11, 2012.

Apple opposed the DOJ's settlement with Hachette, HarperCollins, and Simon & Schuster in the District Court. However, the District Court approved that settlement. See, stories titled "Update on DOJ v. Apple eBooks Case" in TLJ Daily E-Mail Alert No. 2,437, August 25, 2012, and "District Court Approves Settlement in Apple E-Books Case" in TLJ Daily E-Mail Alert No. 2,442, September 6, 2012.

Penguin settled with the DOJ in December of 2012. See, stories titled "DOJ Settles With Penquin in E-Books Antitrust Action" in TLJ Daily E-Mail Alert No. 2,494, December 19, 2012, and "DOJ Publishes Second Tunney Act Notice in Apple E-Books Antitrust Case" in TLJ Daily E-Mail Alert No. 2,500, December 31, 2012.

Holtzbrinck/Macmillan settled in February of 2013. See, story titled "Holtzbrinck/Macmillan Settles with DOJ in Apple E-Books Antitrust Action" in TLJ Daily E-Mail Alert No. 2,522, February 8, 2013.

Only Apple went to trial. On July 10, 2013, after a three week bench trial, the District Court released its Opinion and Order [160 pages in PDF], finding that Apple conspired to raise e-book prices in violation of Section 1 of the Sherman Act. However, that order did not address remedies. See, story titled "District Court Finds that Apple Conspired to Raise E-Book Prices" in TLJ Daily E-Mail Alert No. 2,583, July 10, 2013.

On September 6, 2013, the District Court issued its final judgment and permanent injunction [17 pages in PDF], and "District Court Issues Final Judgment in Apple E-Books Antitrust Case" in TLJ Daily E-Mail Alert No. 2,597, September 9, 2013.

Apple filed a notice of appeal with the U.S. Court of Appeals (2ndCir) in October. It filed its initial appeal brief on February 25, 2014. The DOJ and states filed their initial brief on May 27, 2014. See, story titled "DOJ and States File Brief in Apple's Appeal in E-Books Antitrust Case" in TLJ Daily E-Mail Alert No. 2665, June 2, 2014.

This case is is U.S., et al. v. Apple, Inc., et al., U.S. Court of Appeals for the 2nd Circuit, App. Ct. Nos. 13-3741, 13-3748, 13-3783, 13-3857, 13-3864, 13-3867, consolidated appeals from U.S. District Court (SDNY), D.C. No. 1:12-cv-02826-DLC, Judge Denise Cote presiding.

7/15. Rep. Henry Waxman (D-CA), Rep. Anna Eshoo (D-CA), and Rep. Diana DeGette (D-CO) sent a letter to John Roth, Inspector General of the Department of Homeland Security (DHS), urging him to "initiate an investigation" into "Motorola's business practices in the public safety equipment market".

The three Democrats cite articles in newspapers owned by the McClatchy Company. It is based in, and owns several newspapers in, the state of California, which Rep. Waxman and Rep. Eshoo represent.

The gist their concern is that some federal grant funding for public safety communications may have been wasted, or spent inefficiently.

Waste is a attribute of most federal grant programs.

The three wrote that "We are concerned that the state and local jurisdictions discussed in the McClatchy articles, as well as many other jurisdictions, may have squandered federal grants, provided in part by DHS, as a result of questionable practices by Motorola. If the allegations in the McClatchy articles are true, millions of federal tax dollars may have been wasted, and millions more are at risk."

The letter uses the words "abuses" and "wasted". It does not use the word "fraud".

No Republicans, and no members of the House Homeland Security Committee (HHSC), which has jurisdiction over the DHS, joined in the letter.

The House will not meet. See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

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.

6:00 - 8:15 PM. The DC Bar Association will host a panel discussion titled "Where Was It Made? Legal Analysis of "Country of Origin" for Government Procurement, International Trade, and General Commerce". The speakers will be Myron Barlow, Don Luther (19CFR Trade Consulting), and Kimberly Welch (Meridian Law Group). The price to attend ranges from $89 to $129. CLE credits. No webcast. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. The House will consider HR 5035 [LOC | WW], a bill to reauthorize the National Institute of Standards and Technology (NIST) and remove the NSA from the NIST information systems standards setting process, and HR 4572 [LOC | WW], the "STELA Reauthorization Act of 2014", under suspension of the rules. See, story titled "NIST Authorization Bill Would Remove NSA's Statutory Role in Setting Computer Security Standards" in TLJ Daily E-Mail Alert No. 2,676, July 17, 2014. HR 4572 is the bill approved by the House Commerce Committee (HCC) on May 7, not HR 5036 [LOC | WW], the "Satellite Television Access Reauthorization Act", which the House Judiciary Committee (HJC) approved on July 10. See, story titled "House Judiciary Committee Approves Satellite Television Access Reauthorization Act" 2,674, July 15, 2014. See, Rep. Cantor's schedule.

8:50 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host an event titled "Who Governs the Internet? A Conversation on Securing the Multistakeholder Process". The speakers will be Jeffrey Eisenach (AEI), Danny Sepulveda (Department of State), Steve DelBianco, (NetChoice), Laura DeNardis (American University), David Gross (Wiley Rein), Shane Tews (AEI), and Larry Strickling (National Telecommunications and Information Administration). Free. Open to the public. No CLE credits. Webcast. See, notice. Location: AEI, 12th Floor, 1150 17th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "CLS Bank and the Future of Patent-Eligibility for Computer-Implemented Inventions". The speakers will be Erika Arner (Finnegan Henderson), Michelle Holoubek (Sterne Kessler Goldstein & Fox), Michael Kiklis (Oblon Spivak), and Jeffrey Fougere (Hewlett Packard). The price to attend ranges from $25 to $35. No CLE credits. No webcast. No reporters allowed. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast presentation titled "iPad for Lawyers". The speakers will be Thomas Mighell and Paul Unger. The price to attend ranges from $150 to $195. CLE credits. See, notice.

6:00 PM. The National Press Club (NPC) will host a discussion of the book titled "Innovative State: How New Technologies Can Transform Government". The main speaker will be Aneesh Chopra, the author. The price to attend is $10. No webcast. See, notice. Location: NPC, 13th floor, 529 14th St., NW.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

11:00 AM - 12:15 PM. The Heritage Foundation (HF) will host a panel discussion titled "Alliance Challenges in Northeast Asia: Perspectives on U.S.-Japan-South Korea Relations". The speakers will be Takeo Kawamura (Member of the Japanese House of Representatives), Bruce Klinger (HF) and Walter Lohman (HF). Free. Open to the public. Webcast. See, notice. Location: HF, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Social Impact of Open Data". The speakers will be Maureen Ohlhausen (FTC Commissioner), Sandra Moscoso (World Bank), Laurie Actman (Penn Center for Innovation), Daniel Castro (ITIF), Brian Rayburn (Symcat), and Emily Shaw (Sunlight Foundation). See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

1:00 - 4:15 PM. The DC Bar Association will host a program titled "Copyright Law and Litigation". The speaker will be Kenneth Kaufman (Manatt Phelps & Phillips). The price to attend ranges from $89 to $129. CLE credits. No webcast. For more information, call 202-626-3488. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

2:30 PM. The Senate Commerce Committee (SCC) will meet in executive session. The agenda includes consideration of no technology related items. Webcast. Location: Room 253, Russell Building.

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

10:15 AM. The House Commerce Committee (HCC) will hold a hearing titled "Legislative Hearing on the Anti-Spoofing Act, the LPTV and Translator Act, and the E-LABEL Act". The witnesses will be __. Webcast. See, notice. Location: Room 2322, Rayburn Building.

10:15 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Nominations". See, notice. Location: Room 226, Dirksen Building.

12:00 NOON. The Cato Institute will host a discussion of the book titled "Licensed to Lie: Exposing Corruption in the Department of Justice". The speakers will be Sidney Powell (author), Ronald Weich (University of Baltimore law school), Judge Alex Kozinski (USCA/9thCir), and Tim Lynch (Cato). Free. Open to the public. Webcast. Lunch will be served after the program. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Future of Bulk Data Collection". The speakers will be Yael Weinman (Information Technology Industry Council), Todd Hinnen, Shirin Sinnar, and Elizabeth Goiten. Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The Fundamentals of Antitrust Economics". The speakers will be David Weiskopf, Donald Stockdale, Laila Haider, Joanna Tsai (advisor to FTC Commissioner Joshua Wright), and Aditi Mehta. Prices vary. CLE credits. See, notice.

24 2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property, and the Internet Subcommittee" will hold a hearing titled "Copyright Remedies". The witnesses will be __. See, notice. Location: Room 2141, Rayburn Building.

EXTENDED FROM JUNE 9. Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (NPRM) regarding whether to eliminate or modify the network non-duplication and syndicated exclusivity rules. The FCC adopted and released this FNPRM on March 31, 2014. It is FCC 14-29 in MB Docket No. 10-71. See, notice in the Federal Register, Vol. 79, No. 69, April 10, 2014, at Pages 19849-19860, and Public Notice (DA 14-525) extending deadlines.

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

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to Part VI(B-H) of its Further Notice of Proposed Rulemaking (FNPRM) regarding closed captioning of video programming. The FCC adopted this FNPRM on February 20, 2014, and released it on February 24, 2014. It is FCC 14-12 in CG Docket No. 05-231. See, notice in the Federal Register, Vol. 79, No. 59, March 27, 2014, at Pages 17093-17106.

Deadline to submit to the U.S. Patent and Trademark Office (USPTO) nominations for membership on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC). See, notice in the Federal Register, Vol. 79, No. 118, June 19, 2014, Pages 35152-35153.

Day one of a two day event hosted by the Minority Media & Telecom Council (MMTC) titled "12th Annual Access to Capital and Telecom Policy Conference". See, notice. Location: Embassy Suites Convention Center Hotel, 900 10th St., NW.

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