5/22. As of publication of this issue (7:30 PM on May 22) the Senate had not yet passed any bill related to those provisions of surveillance law scheduled to expire at the end of this month.

On Friday, May 22 Sen. Richard Burr (R-NC), the Chairman of the Senate Intelligence Committee (SIC), proposed an alternative yet to be introduced bill to be titled the "Foreign Intelligence Surveillance Act (FISA) Improvements Act of 2015".

He did not release the text of this bill to the public, or even to other Senators.

However, Sen. Burr released a short release that describes the bill. It fails to put Senators on notice of material provisions of the bill.

His proposal is to switch from bulk data collection and retention by the National Security Agency (NSA) to an undisclosed "carrier-based process" by June 30, 2017.

His proposal would also make the FISA lone wolf surveillance provision and roving wiretap authority permanent.

Sen. Burr (at right) stated in a release that "the USA Freedom Act doesn't protect our national security as well as it should, so I’m providing a framework to plug the holes in the bill ... My legislation provides a longer transition period to ensure that the metadata collection process moves properly to the carriers without endangering our national security or our personnel overseas. It also contains a bipartisan approach which would provide the government with advance notice of a carrier’s intent to change its data retention policies. This framework also provides a better amicus provision that will enable the Foreign Intelligence Surveillance Court to get expert assistance without injecting unnecessary operational delay into the FISA application process.  These improvements will greatly assist the Intelligence Community in their efforts to keep Americans safe both here and abroad."

Sen. Patrick Leahy (D-VT) responded in a release that "Democrats and Republicans have been working for two years to build consensus on legislation that ends the bulk collection of Americans’ phone records and reforms expiring surveillance authorities."

"Now, just days before a critical deadline and hours before the Senate is set to adjourn, opponents of these reforms are rushing forward with a framework that has not been vetted, has not had public hearings, and does not offer a viable path forward."

"Instead", wrote Sen. Leahy, "it extends an unlawful program, ends important sunset dates, weakens needed FISA Court improvements, and strikes important transparency provisions. We do not even have bill text to review. This is not a responsible way to legislate, nor is this the extensive process the Republican majority promised when they blocked the USA FREEDOM Act last year. It is more of the same kinds of pressure tactics that have been used to prevent real reform."

"The Majority Leader has run out the clock, but there is a responsible choice before us. We must pass the USA FREEDOM Act, and we should pass it today." See, HR 2048 [LOC | WW], the "USA FREEDOM Act".

Rep. James Sensenbrenner (R-WI), the lead sponsor of HR 2048, stated in a release that "Senator Burr's proposal to plug the so-called ``holes´´ in the USA FREEDOM Act is dead-on-arrival in the House. His bill is not stronger on national security, it is just much weaker on civil liberties. This is nothing more than a last-ditch effort to kill the USA FREEDOM Act, which passed the House 338-88. If the Senate coalesces around this approach, the result will be the expiration of important authorities needed to keep our country safe."

Senators spent much of the day and evening debating and voting on amendments to the bill to give the President trade promotion authority.

5/14. The Senate Commerce Committee (SCC) approved without amendment S 1359 [LOC | WW | PDF], the "E-Warranty Act of 2015".

This bill would allow manufacturers to meet the Federal Trade Commission's (FTC) warranty and labeling rules for consumer products by displaying the terms of warranties in their web sites.

The Congress imposed consumer product warranty requirements in 1975 in the Magnuson Moss Warranty Act, Public Law No. 93-637. The FTC has rulemaking and enforcement authority under this Act.

Sen. Deb Fischer (R-NE) and Sen. Bill Nelson (D-FL) introduced this bill on May 14. It is now ready for consideration by the full Senate. The House has not yet passed this bill.

The bill would also require that the FTC complete a rulemaking proceeding within one year that revises its rules to implement the provisions of this bill.

Also, the bill would require that the FTC follow the rulemaking procedural requirements of Magnuson Moss Act, rather than the minimal procedure of the Administrative Procedure Act (APA). Although, the bill would not require that the FTC to hear oral presentations of interested parties. See, stories titled "Magnuson Moss Versus APA Rulemakings" and "What Magnuson Moss Requires of the FTC" in TLJ Daily E-Mail Alert No. 2,267, July 23, 2011.

Sen. Fischer (at right) issued a release on May 15 that states that the FTC's rules "are unclear as to whether manufacturers are permitted to meet their warranty notice requirements online. The E-Warranty Act streamlines warranty notice rules and provides explicit direction to manufacturers that they have the option to meet their warranty requirements on their company’s website."

This bill would require that the FTC's rules "shall allow" manufacturers to satisfy the FTC's requirements by:

"(i) making available such terms in an accessible digital format on the Internet website of the manufacturer of the consumer product in a clear and conspicuous manner; and
(ii) providing to the consumer (or prospective consumer) information with respect to how to obtain and review such terms by indicating on the product or product packaging or in the product manual--
    (I) the Internet website of the manufacturer where such terms can be obtained and reviewed; and
    (II) the phone number of the manufacturer, the postal mailing address of the manufacturer, or another reasonable non-Internet based means of contacting the manufacturer to obtain and review such terms." (Parenthess in original.)

The Consumer Electronics Association (CEA) supports passage of this bill.

5/19. Sen. Tom Udall (D-NM) and others introduced S 1389 [LOC | WW | PDF], the "Cuba Digital and Telecommunications Advancement Act" or "Cuba DATA Act".

This bill would authorize exportation of consumer communications devices, and the provision of telecommunications services, to Cuba.

President Obama announced in December of 2014 that he wants to increase trade with Cuba, including in information and telecommunications (ICT). The U.S. has imposed a trade embargo on Cuba since Fidel Castro established his dictatorship almost 60 years ago. The Castro regime's confiscation of property, and long running record of human rights violations, has caused the U.S. to keep this embargo in place. The law underlying the Cuban embargo is written into numerous statutes enacted by the Congress over the years, and is further implemented by regulations.

President Obama has not sought a legislative repeal of all statutes related to the Cuban embargo. There is no chance that the Congress would enact such legislation with the Castros in power.

Nor has President Obama asserted authority to expressly lift the statutory embargo. The 1992 Act provides that the President cannot lift the embargo until certain conditions are met, including free elections in Cuba.

Rather, he is proceeding by executive action to undo elements of the embargo while maintaining the posture that the statutorily mandated embargo remains in effect. He gave a speech in which he announced policy changes. He gave instructions to the Department of State (DOS) to negotiate with the Cuban government. The Department of the Treasury's (DOT) Office of Foreign Assets Control (OFAC) and the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) adopted rules that implement elements of the President's speech.

(The DOT's OFAC amended the Cuban Assets Control Regulations (CACR). See, notice in the Federal Register (FR), January 16, 2015, Vol. 80, No. 11, at Pages 2291-2302. The DOC's BIS amended the Export Administration Regulations (EAR). See, notice in the FR, January 16, 2015, Vol. 80, No. 11, at Pages 2286-2291.)

Over the past six years, but especially since Democrats lost control of the House in 2010, he has established a pattern of pursuing policy goals by executive action in the absence of statutory authority, or contrary to existing statute. This pattern especially holds in ICT related areas.

Nevertheless, the Cuba trade embargo remains a creature of statute. Thus, Sen. Udall (at right) and his cosponsors are attempting to carve out statutory exemptions for ICT goods and services.

Of course, there is also the question of how much difference a legislative change, or change by executive fiat, would make. The Cuban government has long asserted that Cubans do not have access to ICT because of the U.S. embargo. President Obama made the same assertion in his December 17, 2014 speech.

However, there exists the alternative hypothesis, which was discussed at a Senate hearing on May 20, that Cubans do not have access to ICT because the repressive Cuban government does not want them to have ICT.

ICT enables people to communicate, organize, and express opinions. These activities tend to undermine repression, and repressive governments. Hence, those regimes seek to repress ICT. If the later hypothesis is true, then enactment of Sen. Udall's bill would have little impact.

The original cosponsors of the bill are Sen. Jeff Flake (R-AZ), Sen. Richard Durbin (D-IL), and Sen. Mike Enzi (R-WY). The bill was referred to the Senate Foreign Relations Committee (SFRC). Sen. Udall and Sen. Flake are members of the SFRC.

On the other hand, so are Sen. Marco Rubio (R-FL) and Sen. David Vitter (R-LA). The two introduced S 1388 [LOC | WW], the "Cuban U.S. Claims Settlement Act" on May 19. Their bill would bar President Obama from easing the Cuban trade embargo unless the Castros first pay people for the property they confiscated back in 1959.

Sen. Rubio is also the son of Cuban immigrants.

Sen. Rubio's bill would provide that "the President may not take any action to ease restrictions on travel to or trade with Cuba under the Cuban Assets Control Regulations, the Export Administration Regulations, or any other regulations relating to the economic embargo of Cuba before the date on which the President submits to Congress the plan ... for resolving outstanding claims relating to confiscated property to ensure that -- (A) all property taken by the Government of Cuba from United States nationals on or after January 1, 1959, has been returned to such nationals; or (B) full compensation for such property has been provided to such nationals."

Sen. Udall's bill provides that "Notwithstanding any other provision of law, the President may permit any person subject to the jurisdiction of the United States (1) to export consumer communication devices
and other telecommunications equipment to Cuba; (2) to provide telecommunications services involving Cuba or persons in Cuba; (3) to establish facilities to provide telecommunications services connecting Cuba with another country or to provide telecommunications services in Cuba; (4) to conduct any transaction incident to carrying out an activity described in any of paragraphs (1) through (3); and (5) to enter into, perform, and make and receive payments under a contract with any individual or entity in Cuba with respect to the provision of telecommunications services involving Cuba or persons in Cuba."

Sen. Udall stated in a release on May 19 that "Americans are eager to do business with Cubans and share information efficiently, but Cuba lacks the 21st-century technology needed for companies operating in a global economy. The Cuba DATA Act opens up opportunities for American businesses while creating the tools needed to empower Cuban entrepreneurs, and permit increased dialogue between Cubans and the world."

Sen. Durbin stated in this release that "Lifting restrictions on telecommunications will open new markets for American businesses and new lines of communications between our two countries, as well as between the Cuban people themselves."

5/20. The Senate Foreign Relations Committee (SFRC) held a hearing on May 20, 2015 titled "US Cuban Relations -- The Way Forward".

Roberta Jacobson (Assistant Secretary of State for Western Hemisphere Affairs) wrote in her prepared testimony that "the regulatory changes we announced are intended to increase the financial and material resources available to the Cuban people and the emerging Cuban private sector. They also enable U.S. companies to offer expanded telecommunications and internet services".

See also, prepared testimony of Thomas Shannon (Department of State).

Sen. Bob Corker (R-TN), the Chairman of the SFRC, said that the Cuban government does not now allow much access to communications and technology in Cuba.

Jacobson responded that "we are hopeful that that will happen", and that American companies should be part of that.

She added that "The Cuban government has not yet made decisions to move forward with that, but there are American companies that are talking with the Cuban government". She did not name any companies.

Sen. Marco Rubio (R-FL) stated that the Cuban government's views on human rights are "immoral". He also said that if you travel to Cuba, you are probably contributing to the Cuban government, because most hotels are owned by the Cuban military. He also said that staying in hotels in Cuba implied trafficking in stolen property, because hotels are on confiscated property.

So, he asked, if the U.S. is to allow travel to Cuba, why not also prohibit visitors from staying in military owned hotels, and hotels on confiscated property.

Sen. Rubio (at left) also addressed the subject of trade in information and communications technology (ICT). He said that President Obama was wrong in his December 17 speech when he asserted that "our sanctions on Cuba have denied Cubans access to technology". Sen. Rubio pointed out that there is no Japanese embargo on Cuba, and no Korean embargo on Cuba. These countries could provide Cuba with ICT, but they do not.

Sen. Rubio said that the lack of internet access in Cuba "is the result of Cuban government censorship".

He asked rhetorically, "Why isn't Cuba awash in Samsungs?"

He responded that "The reason people don't have access to the internet in Cuba is because the government won't allow it."

Jacobson had no alternative explanation for why another country without an embargo has not already built or provided communications services in Cuba.

Sen. Bob Menendez (D-NJ) also stated that Cuban government prevents the public from accessing the internet from home or cell phones.

Sen. Tom Udall (D-NM) praised the President's Cuban policy shift, and stated that opening Cuba up to U.S. ICT is a cornerstone of the policy shift.

He stated that the goals of his bill, the Cuba DATA Act, are to give U.S. telecommunications companies the opening and certainty they need to invest in Cuba, and to open Cuba up to the global internet.

Jacobson said that she has spoken with U.S. "tech companies" about "wiring" Cuba. But, she did not name any.

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

The Senate will meet at 9:30 AM. The Senate will continue its consideration of HR 1314 [LOC | WW], a bill that would address trade promotion authority,. The Senate might also take up HR 2048 [LOC | WW], the "USA FREEDOM Act", and/or S 1357 [LOC | WW], a short untitled bill that would extend sunsets on Section 215, lone wolf, and roving wiretap authority from June 1, 2015 to July 31, 2015.

10:30 AM - 12:00 NOON. The Center for Strategic and International Studies (CSIS) will host a panel discussion titled "China Reality Check: Xi Jinping's Economic Reforms: Progress, Challenges, and Contradictions". The speakers will be Barry Naughton (UC San Diego), Tom Orlik (Bloomberg's Chief Asia Economist), and Christopher Johnson (CSIS). Webcast. See, notice. Location: CSIS, 1616 Rhode Island Ave., NW.

Memorial Day. This is a federal holiday. See, Office of Personnel Management's (OPM) 2015 calendar of federal holidays.

The Senate will not meet the week of May 25-29. See, 2015 Senate Schedule.

The House will not meet the week of May 25-29.

11:45 AM - 1:15 PM. The DC Bar Association will host a presentation titled "Social Media, E-Discovery and Ethics". The speaker will be Robert Keeling (Sidley Austin). Free. No CLE credits. No reporters. No webcast. Registration required. Send e-mail to Kevin Clark at kclark at complianceds dot com.  See, notice. Location: Sidley Austin, 1501 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mobile Payments Committee will host "a panel discussion regarding potential regulation by the FTC, FCC, and CFPB of the security of mobile payments data. The speakers will be Rick Hindman (Chief of the FCC's Enforcement Bureau's Telecommunications Consumers Division), Katherine McCarron (FTC Bureau of Consumer Protection's Division of Privacy and Identity Protection), and Scott Talbott (ETA). Free. No CLE credits. No webcast. Bring your own lunch. See, notice. Location: Harris Wiltshire & Grannis, 8th floor, 1919 M St., NW.

12:15 - 1:30 PM. The Federal Communications Commission (FCC) will host an event titled "Meet the FCC Enforcement Bureau Front Office". The speakers will be Travis LeBlanc (Chief of the FCC's Enforcement Bureau), William Davenport (Deputy Chief), Paula Blizzard (Deputy Chief), and Phillip Rosario (Deputy Chief). The Federal Communications Bar Association (FCBA) asserts that this is event of its Enforcement Committee. No webcast. No CLE credits. Bring your own lunch. Free. See, notice. Location: Wiley Rein, 1776 K St., NW.

12:30 - 2:00 PM. The American Bar Association (ABA) will host a panel discussion titled "Trade Legislation and Policy Update". The speakers will be Angela Ellard (Republican Chief International Trade Counsel, House Ways and Means Committee), Jason Kearns (Democratic Chief Trade Counsel, HWMC), Everett Eissenstat (Republican Chief International Trade Counsel, Senate Finance Committee), and Jayme White (Democratic Chief Adviser for International Competitiveness and Innovation, SFC). The price to attend ranges from $15 to $25. No CLE credits. No webcast. Lunch will be served. See, notice. Location: Barnes & Thornburg, 1717 Pennsylvania Ave., NW.

Supreme Court conference day. See, 2014-2015 calendar. Closed to the public.

10:30 AM - 12:00 NOON. The Brookings Institution (BI) will host a panel discussion titled "The Digital Single Market: Implications for the Transatlantic Relationship ". The speakers will be Andrus Ansip (European Commission), Miriam Sapiro (BI), and Cameron Kerry (BI). See, notice. Location: JHU School of Advanced International Studies, 1740 Massachusetts Ave., NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Removing Barriers to Online Medical Care". The speakers will be Rene Quashie (Epstein Becker & Green), Jeff Rowes (Institute for Justice), Josh Sharfstein (Johns Hopkins University), and Simon Lester (Cato). Free. Open to the public. Webcast. See, notice. Location: Cato, 1000 Massachusetts Ave., NW.

12:00 NOON - 1:30 PM. The DC Bar Association will host a presentation titled "Hot Apps and Tech for the Modern Lawyer". The price to attend ranges from free to $30. No CLE credits. For more information, call 202-626-3463. The DC Bar has a history of barring reporters from its events. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a panel discussion titled "Celebrating the ITU’s 150th Anniversary and the 50th Anniversary of the Creation of INTELSAT". The speakers will be Henry Goldberg (Goldberg Godles Weiner & Wright), Brian Fontes (National Emergency Numbering Association), David Leive, and Jennifer Manner (EchoStar). No webcast. No CLE credits. Bring your own lunch. Free. See, notice. Location: Wiley Rein, 1776 K St., NW.

1:00 PM. The US Telecom will host a webcast presentation titled "Telecom Cyber Frameworks, Policies and Business Processes". The speakers will be Jeff Goldtrop (FCC/PSHSB Associate Chief for Cybersecurity and Communications Reliability) and Adam Sedgewick (DOC/NIST Senior Information Technology Policy Advisor). See, notice.

1:00 - 2:30 PM.The American Bar Association (ABA) will host a webcast panel discussion titled "Online Privacy & Data Security Soup to Nuts: A Primer and Update on Important Developments for the Business Lawyer". The speakers will be Lisa Lifshitz, Richard Balough, Theodore Claypoole, and Jonathan Rubens. Prices vary. Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "The New EU Unitary Patent & Unified Patent Court: Strategic Considerations for US Applicants/Patentees". The speakers will be Bernd Aechter, Brad Hattenbach, Charles Larsen, Willard Jones, and Margaret Welsh. Prices vary. CLE credits. See, notice.

1:00 - 2:30 PM. The American Bar Association (ABA) will host a webcast panel discussion titled "Dealing With Cybersecurity Threats & Breaches". The speakers will be Henry Talavera (Polsinelli PC), Brian Johnston (Polsinelli PC), Lisa Sotto (Hunton & Williams), Lisa Van Fleet (Bryan Cave). Prices vary. CLE credits. See, notice.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Uncle Sam’s Broadband Plan: Which Way Forward for the New Interagency Broadband Council?". The speakers will be Doug Brake (ITIF), Blair Levin (Brookings Institute), and Thomas Power (CTIA Wireless Association). Free. Open to the public. Live and archived webcast. See, notice. Location: ITIF/ITIC, Suite 610, 1101 K St., NW.

Deadline to submit comments to the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council (NSTC) regarding the draft [15 pages in PDF] titled "2015 National Space Weather Strategy". This draft addresses, among other things, the effect of solar flares, solar energetic particles, and coronal mass ejections upon telecommunications. See, notice in the Federal Register, Vol. 80, No. 83, April 30, 2015, at Pages 24296-24297.

Sunset of three provisions of surveillance law: Section 215, lone wolf FISA authority, and roving wiretaps.

The House will return from its Memorial Day recess.

The Senate will return from it Memorial Day recess.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 8058 [42 pages in PDF] titled "Security Content Automation Protocol (SCAP) Version 1.2 Content Style Guide: Best Practices for Creating and Maintaining SCAP 1.2 Content".

12/17. President Obama gave a speech on December 17, 2014 regarding U.S. Cuba relations. The following are excerpts.

"I've instructed Secretary Kerry to immediately begin discussions with Cuba to reestablish diplomatic relations that have been severed since January of 1961. Going forward, the United States will reestablish an embassy in Havana, and high-ranking officials will visit Cuba."

"... we are taking steps to increase travel, commerce, and the flow of information to and from Cuba."

"... our sanctions on Cuba have denied Cubans access to technology that has empowered individuals around the globe."

"So I've authorized increased telecommunications connections between the United States and Cuba. Businesses will be able to sell goods that enable Cubans to communicate with the United States and other countries." 

"Neither the American, nor Cuban people are well served by a rigid policy that is rooted in events that took place before most of us were born.  Consider that for more than 35 years, we've had relations with China -- a far larger country also governed by a Communist Party.  Nearly two decades ago, we reestablished relations with Vietnam, where we fought a war that claimed more Americans than any Cold War confrontation."

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