7/31. The Central Intelligence Agency (CIA) disclosed that it searched the computers of the Senate Intelligence Committee (SIC), which is responsible for oversight of the CIA.

The CIA made the admission in advance of the release of a CIA Inspector General report on the matter.

Sen. Patrick Leahy (D-VT) stated in a release that "I am appalled that the CIA searched the computers of Senate staffers who were working to shed light on a very dark chapter in our Nation's history. Congressional oversight of the executive branch, without fear of interference or intimidation, is fundamental to our Nation’s founding principle of the separation of powers. The CIA's misconduct threatens the institution of the Senate and its role in ensuring the proper oversight of our government. The CIA Director owes the Senate and the American people an explanation of how this was allowed to occur."

18 U.S.C. § 1030, which criminalizes unauthorized access to a protected computer systems, contains an exception for intelligence agencies. Subsection 1030(f) provides that "This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States."

7/29. Sen. Patrick Leahy (D-VT) and others introduced S 2685 [LOC | WW | PDF], on July 29, 2014. The House passed its version of this bill in May.

This bill is titled the "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act'', which comes close to providing the acronym of "USA FREEDOM Act".

This legislation responds to the public's and business's concerns over the bulk data collection by the National Security Agency (NSA) that was disclosed by Edward Snowden last year.

Sen. Patrick Leahy (D-VT) (at right) stated in a release that "This is an historic opportunity, and I am grateful that the bill has the support of the administration, a wide range of privacy and civil liberties groups, and the technology industry."

This article, and a related article in this issue, offer the analysis that while this bill would impose more limitations upon data collection than does the House version of the bill, it still contains vague terms and exceptions that might enable the government to engage in somewhat bulky data collection practices. Moreover, some of the speeches and releases of the sponsors of this bill have been overly optimistic about what would be the bill's ability to restrict government data collection practices.

Bill Summary. This bill would authorize the government to collect much telephony and other data from services providers, such as phone companies and e-mail service providers.

As a statutory matter, this bill would actually expand the government's data collection authority codified in provisions such as Section 1861 of Title 50. (Confusingly, this section is also know as 501 and 215.) However, since the Department of Justice (DOJ) and the government body titled "Foreign Intelligence Surveillance Court" (FISC) have construed the statute to allow far broader data collection than the plain meaning of the text of the statute allows, this bill would have the effect of rolling back the among of data collected by the government.

Neither this bill, nor the House passed bill, however, would limit the government to seizing data for specified people, numbers, addresses or devices. Both bills employ vague language and undefined terms; both would impose some limitations upon the data collection practices disclosed by Snowden (all data on all persons from all companies); but, neither bill would limit the government to individualized requests. Nevertheless, this Senate bill would impose more restrictions than the House passed bill would.

Sen. Dean Heller (R-NV) stated in a speech in the Senate that the government's "data collection practices are a massive intrusion of privacy". See, Congressional Record, July 29, 2014, at Page S5065.

He stated optimistically that this bill "tightens the definition of ``specific selection term´´ for Section 215 of the PATRIOT ACT and FISA pen register trap and trace devices so that the information requested is limited to specifically identifying a person, account, address, or personal device."

See also, related story in this issue titled "Analysis of the USA FREEDOM Act's Bulk Data Collection Provisions". It concludes that the Senate bill does not tighten the definition as much as Sen. Heller suggests.

Sen. Heller also said that "With this legislation, bulk collection will be eliminated and the records will stay with the telephone companies. The massive information grabs from the federal government based on geography or email service will no longer be permissible. And of the information that is collected, the legislation imposes new restrictions on the use and retention of it."

This is a huge bill (97 pages in PDF) that addresses many topics. It also provides for special advocates to participate in the Foreign Intelligence Surveillance Court (FISC) process. See also, related story in this issue titled "Analysis of  the USA FREEDOM ACT's Special Advocates Provision".

It provides for annual reports on data collection under both 501/1861 authority (which has been the purported authority for the bulk telephony data program) and 702/1881a authority (which is the "outside" the US surveillance provision). It also provides that companies may publicly disclose more aggregate data about the orders that they have received.

Sen. Al Franken (D-MN) stated in a speech in the Senate that these provisions will "give Americans the information they need to judge the government's surveillance programs for themselves."

The bill also limits bulk data collection under pen register and trap and trace device authority. It also limits bulk data collection under the National Security Letter (NSL) process, and addresses NSL gag orders. It also extends sunsets.

Finally, this bill would do nothing to prevent the federal government from mandating that software developers, device makers, standards setting organizations, or others build in encryption back doors.

Sponsors and Supporters. The original cosponsors are Rep. Mike Lee (R-UT), Sen. Richard Durbin (D-IL), Sen. Dean Heller (R-NV), Sen. Al Franken (D-MN), Sen. Ted Cruz (R-TX), Sen. Richard Blumenthal (D-CT), Sen. Tom Udall (D-NM), Sen. Christopher Coons (D-DE), Sen. Martin Heinrich (D-NM), Sen. Ed Markey (D-MA), Sen. Mazie Hirono (D-HI), Sen. Amy Klobuchar (D-MN), Sen. Sheldon Whitehouse (D-RI), Sen. Charles Schumer (D-NY), and Sen. Bernie Sanders (D-VT).

The majority of the sponsors are members of the Senate Judiciary Committee (SJC). Notably, Sen. Dianne Feinstein (D-CA) is not a cosponsor. She is a senior member of the SJC, and Chairman of the Senate Intelligence Committee (SIC).

The recent history of the Senate legislative process for surveillance related matters been competition between the SJC and the SIC, with the SIC usually prevailing. That is, Sen. Leahy and other members of the SJC, have introduced many bills that have not been passed by the Senate. When the Senate has passed bills, it has more often been SIC bills.

However, given the 303-121 vote in the House in May, recent Obama administration statements, post Snowden public interest in this issue, and lobbying by companies whose reputations have been harmed by recent disclosures, the prospects for passage of this bill are likely greater than for other SJC surveillance related bills.

The groups that support this bill include the American Civil Liberties Union (ACLU), BSA Software Alliance, Center for Democracy and Technology (CDT), Computer and Communications Industry Association (CCIA), Information Technology Industry Council (ITIC), Public Knowledge (PK), and Tech Freedom.

The companies behind this bill include AOL, Apple, Dropbox, Facebook, Google, LinkedIn, Microsoft, Twitter, and Yahoo. See, web site of the coalition titled "Reform Government Surveillance".

House Bill. The House passed its version of this bill, HR 3361 [LOC | WW], on May 22, 2014, by a vote of 303-121. See, Roll Call No. 230. The sponsor is Rep. James Sensenbrenner (R-WI).

For coverage of House passage of its bill, see:

• "Surveillance Reform Bill Update" in TLJ Daily E-Mail Alert No. 2,661, May 21, 2014.
• "House to Consider Bill to Limit Bulk Data Collection", "Analysis: HR 3361 and Bulk Collection of Data", and "Analysis: HR 3361 and Encryption Back Door Mandates" in TLJ Daily E-Mail Alert No. 2,660, May 20, 2014.
• "House Judiciary and Intelligence Committees Approve Bill to Limit NSA Bulk Collection of Data" in TLJ Daily E-Mail Alert No. 2,656, May 8, 2014.
• "House Judiciary Committee to Mark Up Surveillance Reform Bill" and "House Intelligence Committee to Hold Closed Mark Up of Its FISA Reform Bill" in TLJ Daily E-Mail Alert No. 2,654, May 6, 2014.

Reaction. Many technology groups and companies praised this bill. Telephone companies and government agencies involved in surveillance maintained silence.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The Senate bill is a vast improvement over the final House bill, which was unfortunately watered down. The Senate USA Freedom Act narrows key loopholes on bulk data collection and offers greater transparency, which is essential for citizens in a free democracy."

Victoria Espinel, head of the BSA Software Alliance, stated in a release that "This legislation is an important step toward restoring public trust in the underpinnings of the digital economy,” said BSA President and CEO Victoria Espinel. “It significantly improves privacy protections for the public by ending bulk collection of telephone and Internet metadata, improving transparency and allowing for greater oversight when government accesses personal data for national security purposes."

Nuala O'Connor of the Center for Democracy and Technology (CDT) stated in a release that "This new version of the USA FREEDOM Act would be a significant step forward in protecting Americans from unnecessary and intrusive NSA surveillance ... This legislation is a major improvement over the version that passed the House in June. The bill would end bulk collection and enact other important reforms, while also providing government with the necessary flexibility to protect national security. We encourage the Senate to pass this bill as is, and the House to quickly follow suit without weakening the bill."

Brad Smith, General Counsel of Microsoft, stated in a release that "By establishing a panel of advocates to argue before the Foreign Intelligence Surveillance Court and requiring it to issue statements about its decisions, the Senate bill strengthens our privacy rights and civil liberties."

He added that "We’re also pleased that the bill bans the bulk collection of data and allows companies to be more transparent about requests we receive from the government."

7/29. This article compares and analyses the provisions of the various House and Senate versions of the USA FREEDOM Act that restrict bulk data telephony data.

These bill are S 2685 [LOC | WW | PDF] and HR 3361 [LOC | WW]. Both are titled the "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act'', or "USA FREEDOM Act".

The most important provisions of the House bill, as introduced on October 29, 2013, were amendments to several different statutory sections to provide that they do not authorize bulk collection of data.

The key amendment in the original version of the House bill (HR 3361 IH) was to the statutory authority codified at 50 U.S.C. § 1861. It is also known as Section 501 of the Foreign Intelligence Surveillance Act (FISA). Also, since the 2001 surveillance act (Section II of the USA PATRIOT Act) amended Section 1861/501 in its Section 215, this authority is also sometimes referred to as Section 215 authority.

This 1861/501/215 authority does not authorize bulk collection of telephony data. The Department of Justice (DOJ), National Security Agency (NSA), and the entity titled "Foreign Intelligence Surveillance Court" (FISC), in both the Bush and Obama administrations, asserted with Dodgsonian logic that it does authorize bulk data collection. HR 3361 IH would have amended Section 1861 to state that it does not.

Currently, Section 1861(a)(1) provides that the DOJ "may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." (Parentheses in original.)

Section 1861(b)(2)(A) provides that "Each application ... shall include ... a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation".

There is no authority for bulk data collection in this current statutory language. Nevertheless, the DOJ and FISC determined the the FISC can order Verizon, AT&T and every other company with telephony records to produce every piece of data on everybody.

This Section 1861/501 authority is addressed in Title I of the House bill, and Title I of the just introduced Senate bill.

The House passed bill and the Senate bill both contain the words "Prohibition of Bulk Collection of Tangible Things". But, this is in section headings, and is not substantive law. Moreover, the actual text of both bills would not prohibit bulk collection under Section 1861/501. Rather, both address, in vague language, the extent to which bulk data may be collected pursuant to Section 1861/501.

The House passed bill (at Section 103) provides that an application for a Section 1861 order shall also include "a specific selection term to be used as the basis for the production of the tangible things sought". Also, the order issued by the FISC must include reference to "each specific selection term to be used as the basis for the production".

House bill (at Section 107) defines "specific selection term" as "a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.''

The version of the bill reported by the House Judiciary Committee (HJC) would also have required the DOJ to apply for business records associated with a "specific selection term". But, it provides a clear definition: "a term used to uniquely describe a person, entity, or account". That is, under the HJC passed version of this bill, the DOJ could no longer get everything on everyone from every company, or even broad swaths of data.

In contrast, the definition of "specific selection term" in the House passed bill opens Section 1861/501 to broad data collection. First, it uses the term "such as". One does not find clauses beginning with "such as" in well drafted statutes. These words mean that the government need not include any of the enumerated specific selection terms. It also leaves the DOJ and FISC free to apply their own meaning to "specific selection term". They have already demonstrated the capacity to construe Section 1861/501 contrary to its plain meaning.

Also, the House passed bill adds the terms "address" and "device" in the "such as" clause. These are vague terms, and are left undefined by the bill. In the hands of DOJ and FISC lawyers, the terms "address" and "device" might be construed in a manner that allows broad data collection. They might be construed, for example, to encompass a uniform resource locator or domain name and anyone who accesses either, a Wi-Fi hot spot and everyone who connects to it, a local area network, a wide area network, a server, a computer system, a network, or many other things that would enable the government to sweep in large amounts of data.

The just introduced Senate bill (at Section 103), like the House passed bill, would require that an application for a Section 1861/501 order shall also include "a specific selection term to be used as the basis for the production of the tangible things sought", and that an order issued by the FISC must include reference to "each specific selection term to be used as the basis for the production".

The Senate bill (at Section 107) would then define "specific selection term" as "a term that specifically identifies a person, account, address, or personal device, or another specific identifier, that is used by the Government to narrowly limit the scope of tangible things sought to the greatest extent reasonably practicable, consistent with the purpose for seeking the tangible thing".

The Senate bill drops the words "such as". It also replaces "device" with "personal device".

But, it leaves "specific selection term" defined as "specific identifier", which in turn is left undefined. Thus, the DOJ and FISC are left to construe a term without plain meaning. They are constrained only the words "narrowly limit" and a reasonableness standard ("greatest extent reasonably practicable").

The Senate bill further lists several things that cannot be considered a "specific selection term". But, the bill also builds in exceptions.

The bill states that "a city, State, zip code, or area code" cannot be used as a "specific selection term", except when used "as part of a specific identifier". The bill also states that "a term identifying an electronic communication service provide or a provider of remote computing service" (these are terms that were written into the Electronic Communications Privacy Act or (ECPA) in 1986) cannot be used as a "specific selection term", except when used as "used as part of a specific identifier".

Sen. Leahy stated optimistically in the Senate that "The bill specifies the term cannot be a broad geographic area, such as city or State or ZIP Code or area code, nor can it simply be a service provider." See, Congressional Record, July 29, 2014, at Page S5065.

But, the exceptions could be construed in a manner that would swallow the basic rules. Using a zip code alone would not qualify as a "specific selection term". Nor would using the name of a service provider alone. But, if either of these were used as part of a "specific identifier", then this could meet the requirements of the bill for issuance of an order by the FISC.

So, for example, if the DOJ were to ask for all Verizon call records for area code 202 for a specified time period, or all Google e-mail transaction records for users believed to be in New York City, those requests might be considered by the FISC to meet the bill's requirements for a specific selection term. Of course, the DOJ would still need to convince the FISC that these requests "narrowly limit the scope of tangible things sought to the greatest extent reasonably practicable".

This Senate bill would allow the DOJ and FISC less opportunity for bulk data collection than the definition in the House passed bill. But, it falls far short of the HJC version of the bill, which would have limited the government to demanding data that identifies a "person, entity, or account".

In sum, the Senate bill would enable the government to sweep in much data.

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

The Senate will meet at 9:30 AM.

Day three of a three day conference hosted by the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) titled "Update Conference on Export Controls and Policy". On July 31 at 9:00 AM there will be a panel titled "Encryption Controls and Information Security Session"; at 1:00 PM there will be a panel titled "Encryption Controls". See, conference web site. Location: Hilton Hotel, 815 14th St., NW.

9:30 AM - 5:00 PM. The DC Bar Association will host a program titled "Cybersleuth’s Guide to Effective Internet Research Strategies for Lawyers". The speakers will be Carole Levitt and Mark Rosch (both of Internet For Lawyers). The price to attend ranges from $169 to $219. CLE credits. 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.

10:00 AM. The House Small Business Committee's (HSBC) Subcommittee on Health and Technology will hold a hearing titled "Telemedicine: A Prescription for Small Medical Practices?" See, notice. Location: Room 2360, Rayburn Building.

CANCELLED. 10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes __. Webcast. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 1:00 PM. The National Nanotechnology Coordination Office (NNCO) will host a webcast event to discuss its "Progress Review on the Coordinated Implementation of the National Nanotechnology Initiative (NNI) 2011 Environmental, Health, and Safety Research Strategy". See, notice in the Federal Register, Vol. 79, No. 140, July 22, 2014 at Pages 42559-42560.

12:00 NOON - 1:30 PM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "From Big Data to Cloud Computing: How IT is Creating a New Era of Disruptive Innovation". The speakers will be Robert Atkinson (ITIF), Daniel Castro (ITIF), Larry Downes (Tech Freedom), David Moschella (CSC), Malcolm Frank (Cognizant), Ben Pring (Cognizant), and Paul Roehrig (Cognizant). See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

12:15 - 2:00 PM. The Tech Freedom (TF) will host a panel discussion titled "First Apple, Now Amazon: Where is the FTC Heading on Digital Consumer Protection?" The keynote speaker will be Joshua Wright (FTC Commissioner). The panel speakers will be __. Free. Open to the public. Webcast. Lunch will be served from 11:45 AM to 12:15 PM. See, TF notice. See also, the FTC's July 10, 2014 complaint in FTC v. Amazon (USDC/WDWash, D.C. No. 2:14-cv-01038). Location: Woolly Mammoth Theatre Company, Rehearsal Hall, 641 D St., NW.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "A Whole New World at the ITC: Jurisdiction over Electronic Transmissions". The speakers will be Elizabeth Winston, Charles Duan, and John Thorne. See, April 10, 2014 opinion [174 pages in PDF] of the U.S. International Trade Commission (USITC) in In the Matter of Certain Digital Models, Inv. No. 337-TA-833. Prices vary. CLE credits. See also, ABA notice.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register (FR) requesting comments regarding the Supreme Court's June 19, 2014 opinion in CLS Bank v. Alice Corporation, and its June 25, 2014 memorandum to its patent examining corps that contains preliminary examination instructions. See, FR, Vol. 79, No. 125, June 30, 2014, at Page 36786, and story titled "Supreme Court Rules on Patent Ineligibility of Computer Implemented Ideas" in TLJ Daily E-Mail Alert No. 2,668, June 19, 2014.

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

8:30 AM. The Department of Labor's (DOL) Bureau of Labor Statistics (BLS) is scheduled to release its July 2014 employment data.

8:30 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC) will meet on site and via teleconference. The agenda includes a "Deemed export exemption proposal", "Space security", "Unmanned Aerial Vehicles", "Text mining", "Additive manufacturing", "Semiconductor Process Design Kits", and other topics. Open to the public. See, notice in the Federal Register, Vol. 79, No. 132, July 10, 2014, at Page 39366. Location: Room 6087B, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

Deadline to submit reply 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 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 comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its second draft of NIST IR 7924 [94 pages in PDF] titled "Reference Certificate Policy".

Deadline to register to attend, and to submit comments in advance of, the Department of the Air Force's Global Positioning System Directorate (GPSD) August 22, 2014 event in El Segundo, California titled "2014 Public Open Forum". See, notice in the Federal Register, Vol. 79, No. 131, July 9, 2014, at Pages 38857-38858.

1:00 - 4:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Summer Social". For more information, contact Rachael Bender at RBender at mobilefuture dot org or Lindsey Tonsager at LTonsager at cov dot com. Location: American Ice Company, 917 V St., NW.

The House is scheduled to be in recess, except for pro forma sessions, until September 8, 2014. See, House 2014 calendar.

The Senate is scheduled to be in recess, except for pro forma sessions, until September 8, 2014. See, Senate 2014 calendar.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Halo Electronics v. Pulse Electronics, App. Ct. No. 13-1472, an appeal from the U.S. District Court (DNev), D.C. No. 2:07-cv-00331, in a case involving surface mount technology. Panel B. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in T.M. Patents v. Cisco Systems, App. Ct. No. 14-1161, an appeal from the U.S. District Court (DMass), D.C. No. 12-11418-WGY, in a case involving transmitting computer messages across a processor network using wormhole routing, which is also known as cut through routing and cut through switching. See, November 13, 2013 Opinion and Order. Panel A. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Malico v. LSI Logic, App. Ct. No. 13-1680, an appeal from the U.S. District Court (NDCal), D.C. No. 5:11-cv-04537-HRL. Panel B. Location: Courtroom 402, 717 Madison Place, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its quadrennial review of its broadcast ownership rules, and the FCC's Report and Order (FCC 07-217), sometimes referred to as the diversity order, which the U.S. Court of Appeals (3rdCir) remanded in its July 7, 2011 opinion in Prometheus Radio Project v. FCC. The FCC adopted this FNPRM on March 31, 2014, and released it on April 15, 2014. It is FCC 14-28 in MB Docket Nos. 14-50, 09-182, 07-294, and 04-256. See, notice in the Federal Register, Vol. 79, No. 97, May 20, 2014, at Pages 29009-29064. See also, story titled "3rd Circuit Issues Opinion Regarding FCC Regulation of Media Ownership" in TLJ Daily E-Mail Alert No. 2,256, July 12, 2011.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Materials Processing Equipment Technical Advisory Committee (ETRAC) will hold a partially closed meeting. See, notice in the Federal Register, Vol. 79, No. 132, July 10, 2014, at Pages 39366-7. Location: Room 3884, DOC, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Internet Machines v. Cyclone Microsystems, App. Ct. No. 13-1516, an appeal from the U.S. District Court (EDTex), D.C. No. 6:11-cv-00250. Panel D. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Qcue v. Digonex Technologies, App. Ct. No. 14-1028, an appeal from the U.S. District Court (WDTex), D.C. No. A-12-CA-484-SS. Panel C. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in KI Ventures v. Fry's Electronics, App. Ct. No. 14-1187, an appeal from the U.S. District Court (SDTex), D.C. No. 4:13-cv-01407. Panel C. Location: Courtroom 201, 717 Madison Place, NW.

12:00 NOON - 1:00 PM. The law firm of Venable will host a webcast panel discussion titled "Managing Liabilities from Cyber Threats Using the SAFETY Act". The speakers will be Dismas Locaria, Brian Zimmet, and Jason Wool. For more information, contact Jilian Foley at JMFoley at Venable com com or 202-344-4395.

5:00 PM. Deadline to submit comments to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) in response to notice in the Federal Register (FR) regarding "Big Data and Consumer Privacy in the Internet Economy". See, FR, Vol. 79, No. 109, June 6, 2014, at Pages 32714-32716.

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 Policy Committee will meet. See, DHHS notice and notice in the Federal Register, Vol. 78, No. 243, December 18, 2013, at Page 76627. Location: __.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Internet Patents v. Active Network, App. Ct. No. 14-1048, an appeal from the U.S. District Court (NDCal), D.C. No. 4:12-cv-05035-DMR. Panel E. Location: Courtroom 201, 717 Madison Place, NW.

1:00 - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee (HSINAC) will meet by web conference and teleconference. See, notice in the Federal Register, Vol. 79, No. 132, July 10, 2014, at Page 39407.

Deadline to submit comments to the Export Import Bank of the U.S. regarding a proposed loan guarantee "to support the export of U.S.-manufactured Boeing 777 and Boeing 737 passenger aircraft that will be operated by an airline in China". See, notice in the Federal Register, Vol. 79, No. 141, July 23, 2014, at Page 42791.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Benefit Funding Systems v. Advance America Cash, App. Ct. No. 14-1122. Panel F. Location: Courtroom 201, 717 Madison Place, NW.

1:00 PM. The US Telecom will host a webcast program titled "The Business Shock of A Data Breach Incident - Who are you going to call?". The speaker will be Craig Spiezel (Online Trust Alliance). Free. See, notice.

7/29. Article III of the Constitution provides that federal courts have the power to hear "Cases" and "Controversies between" certain litigants. The Foreign Intelligence Surveillance Court (FISC) does not hear cases or controversies. Moreover, it is entirely non-adversarial. Only the government appears before the FISC.

S 2685 [LOC | WW | PDF], the version of the USA FREEDOM Act introduced on July 29, 2014, would make one very minor step towards making the FISC process adversarial. The bill (at Section 401) provides for the appointment by the FISC of "not fewer than 5 attorneys to serve as special advocates", and to act as "amicus curiae" to advocate "individual privacy and civil liberties".

The ethical duty of attorneys is to zealously advocate the interests of their clients. But, these special advocates would have no clients -- only abstract concepts.

The Senate bill also states that they must be persons "who possess expertise in privacy and civil liberties, intelligence collection, telecommunications, or any other relevant area of expertise and who are determined to be eligible for access to classified information ...".

Missing from this list of selection criteria is expertise in computer and information security, internet protocol based communications, IP based services, and information technology (IT) generally.

It should also be noted that the selection process for the members of the FISC is biased towards judges from the Washington DC area, and against judges with knowledge about IT. Since the first appointments were made in 1979, only one Judge from California has been appointed to the FISC, and he served for only one year over thirty years ago.

This bill does not take other steps that would make the FISC process more adversarial in the judicial sense. First, the bill would not make the companies that are ordered to turn over data parties to the proceeding. That is, if the DOJ wants a FISC order instructing Verizon or Microsoft to turn over certain records, neither Verizon's General Counsel (former Attorney General William Barr) nor Microsoft's General Counsel (Brad Smith) would be entitled to notice or an opportunity to be heard.

Second, the bill does not provide for any notice or opportunity to be heard to the persons whose data is being collected, either before issuance of the order, or at any time thereafter. Nor is there any notice or opportunity to be heard when the government queries the databases that it builds.

7/24. Rep. Steve Stockman (R-TX) introduced HR 5202 [LOC | WW], the "Personal Information Notification Act", a bill that would require federal agencies to give notice to individuals when those agencies disclose their personally identifying information (PII) outside of the federal government.

It was referred to the House Oversight and Government Reform Committee (HOGRC).

It represents a novel legislative proposal. But, it has little chance of passage. It contains a basic concept, but does not provide details or exceptions. Also, Rep. Stockman is not running for re-election, and the bill has no cosponsors.

This bill recites in its finding that "when personally identifying information is obtained through an agency by an entity outside of the Government without the knowledge of the individual it pertains to, it may constitute an unwarranted invasion of personal privacy, and such individual should be notified that the information was accessed in order to be afforded the opportunity to respond".

It would require that the Office of Management and Budget (OMB) "shall establish and oversee policies and procedures that require an agency to send a written notification to any individual whose personally identifying information is" accessed.

The bill would also require that the agency notification "shall identify the information accessed and the name of the entity who accessed the information".

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