TLJ News from June 6-10, 2005

Supreme Court Watch

6/10. The Supreme Court will meet on Monday, June 13, 2005. It is likely to release opinions, and an order list announcing whether or not to grant pending petitions for writ of certiorari.

It is possible that it will issue opinions on June 13 in MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and/or Merck v. Integra (regarding a research exemption to patent infringement).

The Supreme Court's calendar [PDF] also indicates that it may meet, and release opinions, on Monday, June 20, and Monday, June 27.

The Supreme Court's calendar also indicates that it held a conference on Thursday, June 9, and that it mayl hold further conferences on Thursday, June 16, and on Thursday, June 23.

The Court may decide whether or not to grant certiorari in Honeywell v. Hamilton Sundstrand at its June 16 conference. This is a case regarding whether a patent applicant who has withdrawn an independent patent claim and rewritten a formerly dependent claim as a new independent claim is subject to prosecution history estoppel. The Office of the Solicitor General (OSG) opposes the petition for certiorari. See, May 19 amicus curiae brief.

The Court may decide whether or not to grant certiorari in Texaco v. Dahger at its June 23 conference. This is an antitrust case involving whether an agreement between the owners of a lawful joint venture with respect to the pricing of the joint venture's products may be treated as a per se violation of Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, when the joint venture's owners do not compete in the market for those products. The OSG supports this petition. See, May 26 amicus curiae brief.

It is also possible that individual Justices may announce their retirements. The most likely retirement would be that of Chief Justice William Rehnquist, who is 80 and in poor health. Other possible retirements include Sandra O'Conner (75) and John Paul Stevens (85).

Bush Names Members of Privacy and Civil Liberties Oversight Board

6/10. President Bush announced his intent to nominate Carol Dinkens and Alan Charles Raul to be the Chairman and Vice Chairman of the Privacy and Civil Liberties Oversight Board. He also announced his intent to appoint Lanny Davis, Ted Olson, and Francis Taylor to be members of the Board. See, White House release.

Dinkens is a partner in the Houston office of the law firm of Vinson & Elkins. She was the Deputy Attorney General during part of the Reagan administration. She also became the de facto Attorney General when Attorney General William Smith, in ill health, announced his intent to step down, and moved back to California. The Senate delayed confirmation of the new Attorney General, Ed Meese, thus leaving Dinkins in charge of the Department of Justice.

Raul is a partner in the Washington DC office of the law firm of Sidley Austin Brown & Wood. He was General Counsel at the Department of Agriculture from 1989 to 1993. Before that, he worked at the Office and Management and Budget, from 1988 to 1989. And before that, he was Associate Counsel to the President. His law firm biography states that his "intellectual property and information law practice focuses on trademark, copyright, advertising, and unfair competition law, as well as privacy, data protection and information security". He is also the author of Privacy and the Digital State: Balancing Public Information and Personal Privacy [Amazon].

Davis is a partner in the law firm of Orrick Herrington & Sutcliffe. He was Special Counsel to the President from 1996 to 1998.

Olson recently stepped down as the Solicitor General, and returned to his long time law firm, Gibson Dunn & Crutcher. He was a protégé of William Smith, and worked for him as Assistant Attorney General in charge of the Office of Legal Counsel early in the Reagan administration.

Taylor is the Chief Security Officer for General Electric. Before that, he was as Assistant Secretary of State for Diplomatic Security and Director of the Office of Foreign Missions. And before that, he was Coordinator for Counterterrorism at the Department of State.

The Privacy and Civil Liberties Oversight Board was created by Section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004, pursuant to the recommendations contained in the report of National Commission on Terrorist Attacks Upon the United States. This bill was S 2845 in the 108th Congress. It is now Public Law No. 108-458.

Section 1061 provides, in part, that "The Board shall continually review (A) regulations, executive branch policies, and procedures (including the implementation of such regulations, policies, and procedures), related laws pertaining to efforts to protect the Nation from terrorism, and other actions by the executive branch related to efforts to protect the Nation from terrorism to ensure that privacy and civil liberties are protected; and (B) the information sharing practices of the departments, agencies, and elements of the executive branch to determine whether or not such practices appropriately protect privacy and civil liberties and adhere to the information sharing guidelines under subsections (d) and (f) of section 1016 and to other applicable laws, regulations, and executive branch policies regarding the protection of privacy and civil liberties."

Section 1061 provides that the Board shall have five members, who serve at the pleasure of the President. The positions of Chairman and Vice Chairman require Senate confirmation.

Bush commented on these nominees in a speech on June 9, 2005 in Columbus, Ohio. He stated that "Congress has recently created a federal board to ensure that the Patriot Act and other laws respect privacy and civil liberties. And I'll soon name five talented Americans to serve on that board."

President Bush delayed in making these selections. Then, he picked some busy people.

Commentary: Partisan Theatrics Threaten Efforts to Place Limits in Title II of PATRIOT Act

6/10. The House Judiciary Committee (HJC) held a hearing on Friday morning, June 10, titled "Reauthorization of the USA PATRIOT Act". This was the last of long series of hearings held by the HJC, and its Crime Subcommittee, since April on the sixteen sections of the PATRIOT that expire on December 31, 2005. This latest hearing, and statements made after the hearing, were tempestuous. This may have decreased the likelihood that the HJC will now develop a bipartisan bill that includes further sunsetting, reporting requirements, and checks against abuse of power.

Introduction. The hearing, and statements made after the hearing, demonstrated a high level of partisanship and theatrics. Some statements were personal and ad hominem. There was a breakdown of decorum.

There is much partisanship and lack of decorum in the House and Senate, involving both parties. However, this conduct is rarely displayed in debates and hearings involving technology related issues. Title II of the PATRIOT Act, and the 16 of its sections that are sunsetted, mostly pertain to law enforcement access to communications and data, especially those involving new information technologies.

The Bush administration has all along pushed for a simple bill that permanently extends all of the sunsetting provisions. The HJC has been conducting a long, thorough and bipartisan effort to study the expiring provisions of the PATRIOT Act, and develop a bipartisan consensus bill that extends all or most of the sections, but includes further sunset provisions, adds new requirements for the government to report on its implementation of these provisions, and establishes new judicial checks and other safeguards against abuse. The thought of some members of both parties has been that if the bill has wide and bipartisan support on the HJC, and it is based on a thorough examination of the issues, then it stands a better chance of approval by the full House and the Senate.

The events of June 10 threaten to derail this bipartisan process. They may reframe the issue and the debate. What had been a question of whether and how the HJC might fashion a consensus bill to impose some limits on Title II powers may have been transformed into a question of whether one stands behind George Bush or Nancy Pelosi on Guantanimo Bay and other contentious policy issues. Some members of both parties who might have been inclined to involve themselves in the former, may wish to avoid the latter. Hence, the events of Friday, June 10 may make it less likely that the Committee will develop a bipartisan bill that wins support in the House and Senate.

Whatever the merits of the Bush administration's war on terror policies may be, the HJC has just completed one of the longest, most thorough, most open, and bipartisan set of oversight hearings of any Congressional committee in recent years. In the wake of Friday's hearing, some Democrats are left outraged at Rep. Sensenbrenner and Republicans, and some Republicans are left outraged by the partisan theatrics of those Democrats. And, some are concerned that their effort to draft a bipartisan bill may have been sidetracked by a partisan debate.

Summary of Events of June 10. Rep. James Sensenbrenner (R-WI), the Chairman of the HJC, presided at the hearing. Beginning in April of this year, he put in place a long series of hearing on the expiring provisions of Title II of the PATRIOT Act. Most have been conducted by the HJC's Crime Subcommittee, chaired by Rep. Howard Coble (R-NC).

There have been about a dozen, depending on how one counts hearings labeled as "continuation", and multiple hearings held on the same day. These hearings have been numerous. They have afforded ample opportunity for critics of the 16 sections to offer their analysis. The Crime Subcommittee hearings in particular have been conducted in a patient, bipartisan and cooperative fashion.

Rep. Sensenbrenner allowed hearings on the expiring sections of Title II of the PATRIOT Act. At the June 10 hearing, Rep. Jerrold Nadler (D-NY), Rep. Sheila Lee (D-TX), and other Democrats sought to covert this hearing process into a open ended examination of the Bush administration's policies related to the war on terrorism, regardless of whether the issues relate to any the sunsetted provisions of the PATRIOT Act, or even to any provision of the PATRIOT Act, or matters within the jurisdiction of the HJC.

Rep. Sensenbrenner was not pleased with the actions of Rep. Nadler. On the other hand, Rep. Nadler was not pleased with the actions of Rep. Sensenbrenner. Their exchanges were terse, but not personal.

The hearing of June 10, and its witnesses, were requested by some of the Committee Democrats. All of the witnesses are harsh critics of the Bush administrations terrorism related policies, with little if anything to say about the sunsetting provisions of the PATRIOT Act. Rep. Sensenbrenner nevertheless allowed the hearing. However, he scheduled it for Friday, after the House had recessed for the weekend. He also scheduled it at 8:30 AM, which is unusually early for a hearing. These upset some Democrats.

Rep. Sensenbrenner strictly followed the HJC's rules. See, Rules of Procedure [7 pages in PDF]. Rule III(d) provides that "In the course of any hearing each Member shall be allowed five minutes for the interrogation of a witness ..." He allowed the witnesses their allotted time, and then he allowed each member of the Committee their allotted time to ask questions. He did not allow extra time. Rep. Nadler and Rep. Lee wanted to continue. But, he concluded the hearing.

After the hearing, many Democrats remained, as did their witnesses. They continued as though the hearing had not been concluded. As C-SPAN continued its coverage, Rep. Nadler criticized the "actions of the administration". He complained that "we have not have the opportunity to have hearings on these other issues" related to the war on terrorism.

Rep. Nadler complained that the Chairman left, and would not listen to him. He complained too that his microphone was turned off. But, other than this, he did not condemn Rep. Sensenbrenner. He focused his criticism on "the administration".

The witnesses remained at the witness table, and one condemned the process followed by the HJC. He added that it sets a bad example for the rest of the world.

The witnesses were Carlina Ruano (American Immigration Lawyers Association), James Zogby (Arab American Institute), Deborah Pearlstein (U.S. Law and Security Program), and Chip Pitts (Amnesty International USA). They did not discuss the expiring provisions, except that Pitts discussed Section 215 of the PATRIOT Act in his written and oral testimony. Much of their testimony and answers focused on immigration law and procedure, Guantanimo Bay, an American gulag, and the Bush administration's policies regarding the war on terror.

After the hearing, House Minority Leader, Rep. Nancy Pelosi (D-CA), leveled personal attacks on Rep. Sensenbrenner, and Republicans generally. She made various partisan and defamatory statements about Rep. Sensenbrenner, and the conduct of Committee's hearings on extending the sunsetting provisions of the PATRIOT Act.

For example, the Rep. Pelosi, wrote in a release that "The Republicans' abuse of power reached a new low this morning when they tried to silence Democrats at a hearing on the Patriot Act by cutting the microphones. Chairman Sensenbrenner proved again today that he is afraid of ideas, and that Republicans will stop at nothing to silence Democrats."

She leveled accusations of "Republican abuses of power". She asserted that "Republican leaders dictate the party line and ram bills through committees". She decried the "Republicans' shameful behavior" and the "disgraceful conduct by Mr. Sensenbrenner".

Sunsetting Provisions of Title II of the PATRIOT Act. USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

There are sixteen sections of Title II of the PATRIOT Act that are set to sunset on December 31, 2005. These sections pertain to the authority of law enforcement to obtain phone conversations, VOIP communications, e-mail, voice mail messages, and other communications and data. It also pertains to law enforcement access to the records, such as subscription records, of phone companies, internet service providers, and entities that provide internet access, such as libraries. It covers what information can be accessed, what judicial or other permission is required, what notice to individuals is required, how this information can be used and shared, and what remedies individuals have, if any, if law enforcement entities abuse their powers. The sunsetted provisions substantially affect communications and information technologies.

The PATRIOT Act is a huge and broad bill, with many titles. Yet, the sunsetted provisions are all in Title II.

The sunsetting provisions of the PATRIOT Act modified numerous sections of the criminal code, which is codified at Title 18, and the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. § 1861, et seq.

The sections of Title II that are scheduled to sunset are as follows:

  § 201 pertaining to "Authority to intercept wire, oral, and electronic communications relating to terrorism"
  § 202 pertaining to "Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses"
  § 203(b) pertaining to "Authority to share electronic, wire and oral interception information" of criminal investigations
  § 203(d) pertaining to sharing "Foreign intelligence information"
  § 204 pertaining to "Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication"
  § 206 pertaining to "Roving surveillance authority under the FISA"
  § 207 pertaining to "Duration of FISA surveillance of non-United States persons who are agents of a foreign power"
  § 209 pertaining to "Seizure of voice-mail messages pursuant to warrants" (This section is deceptively titled; it actually pertains to stored communications, and may affect access to VOIP communications.)
  § 212 pertaining to "Emergency disclosure of electronic communications to protect life and limb"
  § 214 pertaining to "Pen register and trap and trace authority under FISA" (This section relates to phone numbers, and routing and addressing information for internet communications.)
  § 215 pertaining to "Access to records and other items under the FISA"
  § 217 pertaining to "Interception of computer trespasser communications"
  § 218 pertaining to "Foreign intelligence information"
  § 220 pertaining to "Nationwide service of search warrants for electronic evidence"
  § 223 pertaining to "Civil liability for certain unauthorized disclosures"
  § 225 pertaining to "Immunity for compliance with FISA wiretap".

Extensive Nature of Hearings. Rep. Pelosi's characterizations were not descriptive of the hearing process that the HJC has followed. She characterized Rep. Sensenbrenner's conduct as "disgraceful", and Republican's behavior as "shameful". She asserted that "Republican leaders dictate the party line and ram bills through committees".

The Bush administration did not seek the dozen or so hearings that the HJC has held. It wants permanent extension of the sunsetting provisions, and with one minor change, has opposed all proposals to add any further language. It has fought Congressional efforts to engage in effective oversight.

Also, many in the Republican party stand with the Bush administration on this subject. And, no other Committee in either the House or Senate has held anywhere near as many oversight hearings on these sunsetting provisions as the HJC.

Moreover, the manner in which the hearings have been conducted is noteworthy. First, Rep. Sensenbrenner assigned the bulk of the oversight work to the Crime Subcommittee, which is chaired by Rep. Coble. He is one of the more friendly and bipartisan members of the HJC.

Second, at each of the Crime Subcommittee's hearings the witness panels included persons with critical viewpoints. Moreover, the Subcommittee heard from witnesses with particular expertise, such as former Rep. Bob Barr, Greg Nojeim of the ACLU, law professor Peter Swire, law professor Orin Kerr, and Jim Dempsey of the Center for Democracy and Technology.

The only witness sought by Democrats who was not called to testify was the infamous trial lawyer, Gerry Spence. (Committee Democrats have also noted that the HJC did not pay travel expenses of witnesses for this set of hearings, but have not pointed to any hearing for which they were not able to obtain expert testimony.)

Third, at each of the Crime Subcommittee's hearings the government witnesses appeared concurrently with their critics. Most Congressional committees afford government witnesses the privilege of testifying first, and on a separate panel. By mixing the two groups, the Crime Subcommittee forced the government witnesses to respond to their critics, and suffer rebuttals. For example, when a government witness answered a question, it was often followed up by a rebuttal answer from another panel member. Also, members of the Subcommittee often asked government witnesses to respond to points made by the other witnesses.

Fourth, Rep. Coble conducted the hearings with great patience and deference to the Democrats. He allowed second rounds of questions. He routinely allowed Democrats to go over their allotted time.

Moreover, these hearings were all held in the HJC's hearing room, so that for each hearing there was ample room for any member of the public who sought to attend. The hearings were webcast. Witness statements have been published fairly promptly after hearings.

Rep. Sensenbrenner and Rep. Coble conducted as extensive, thorough, open, and bipartisan a set of oversight hearings as the Congress has witnessed in recent years. Yet, they find themselves accused by Rep. Pelosi of shameful conduct and ramming through bills.

Consensus Building Process.  Rep. Nadler does not have the votes to push a bill through the HJC. Rep. Pelosi does not have the votes to push a bill through the House. And even if they did, their bill would not likely be well received in the Senate. The Democrats hold a minority of seats on the HJC and in the House. Rep. Nadler and Rep. Pelosi would need to attract votes from some of the less partisan and less confrontational members of their party, and Republicans.

Any effort to revise the PATRIOT Act must reach out more broadly than to only activist Democrats. It must incorporate other Democrats, as well as Republicans inclined to challenge the Bush administration on Title II of the PATRIOT Act. For any such efforts to succeed, it must be bipartisan and cooperative. And, up until Friday, June 10, there has been an extensive effort of this nature.

There are several members of the HJC who could contribute to just such a bipartisan effort. For example, there is Rep. Rick Boucher (D-VA). He represents an overwhelmingly white, rural, Southern district. His state and district have voted for George Bush. Demographically, one would expect his district to send a Republican to Congress. If Rep. Boucher were to associate closely with Rep. Pelosi, and her political style, it probably would.

But, Rep. Boucher is more than just one vote. He is also perhaps more knowledgeable about information and communications technologies than any member of the House or Senate. His active participation in any discussions, debates, or markups would be invaluable for those seeking to insert limits on PATRIOT Act powers.

There is also Rep. Adam Schiff (D-CA), a more junior member of the HJC. He represents a suburban southern California district that is home to many Republicans. He won his seat by ousting a Republican after two hard fought campaigns.

Since Democrats are a minority, a necessary precondition for passing legislation that imposes limits on PATRIOT Act power is winning some Republican support.

There has been some significant interest in this. For example, on the Crime Subcommittee there is Rep. Jeff Flake (R-AZ). He spent a considerable amount of time at the hearings, and asked numerous questions of the government witnesses that suggest a strong interest in placing some limits on PATRIOT Act powers.

He also joined the Patriot Act Reform Caucus. Thus, he has demonstrated a commitment revising the PATRIOT Act as part of a studious, bipartisan process. However, it would be altogether different to expect a conservative Republican such as Rep. Flake to take any action that may be perceived as siding with Nancy Pelosi in a partisan squabble with the Bush administration.

Other HJC members, such as Rep. Darrell Issa (R-CA) and Rep. Dan Lungren (R-CA) have a history of distrust of government power. Philosophically, they may be inclined to impose some limits in Title II of the PATRIOT Act. But, they are also leading California Republicans who will not wish to associate themselves with the politics of Nancy Pelosi.

Rep. Sensenbrenner and Rep. Coble have demonstrated a commitment to conducting a through and open oversight process. But, their enthusiasm for following through may be dampened by the partisan mischaracterization of their hearings.

One staff member who has been working on reaching a bipartisan HJC bill spoke with TLJ on Friday, and expressed the hope that when the members of the HJC return on Monday, June 13, they will have forgotten that anything happened on Friday, June 10.

People and Appointments

6/10. Alexander Acosta resigned his position as Assistant Attorney General in charge of the Civil Rights Division. See, statement by AG Alberto Gonzales. Acosta has been appointed to serve as Interim U.S. Attorney for the Southern District of Florida.

6/10. Bill Miller was named Vice President of Congressional and Public Affairs and National Political Director at the U.S. Chamber of Commerce. He has worked at the Chamber since 1999 on election and get out the vote efforts. Before that, he worked for former Rep. Connie Morella (R-MD). See, Chamber release.

6/10. The Senate confirmed Philip Perry to be General Counsel of the Department of Homeland Security (DHS) on June 9, 2005. He took the oath of office on June 10, 2005. See, DHS release.

FCC Adopts DR and NPRM Regarding CSEA Implementation

6/9. The Federal Communications Commission (FCC) adopted, but did not release, a Declaratory Ruling (DR) and Notice of Proposed Rulemaking (NPRM) regarding implementation of the Commercial Spectrum Enhancement Act (CSEA) and changing the FCC's competitive bidding rules and procedures. The FCC issued only a short release that describes this item.

The Congress enacted the CSEA late in the 108th Congress as part of HR 5419, a larger composite bill. President Bush signed the bill on December 23, 2004.

The CSEA changes the process for reallocating spectrum from federal users to commercial users, such as wireless broadband services. The bill creates a Spectrum Relocation Fund, funded by auction proceeds, to compensate federal agencies for the cost of relocating.

See also, stories titled "House Approves Bill that Includes the Commercial Spectrum Enhancement Act" in TLJ Daily E-Mail Alert No. 1,025, November 24, 2004; "Powell Urges Senate to Approve Telecom Bill" in TLJ Daily E-Mail Alert No. 1,032, December 7, 2004; and, "Congress Approves Telecom Bill" in TLJ Daily E-Mail Alert No. 1,035, December 10, 2004.

The FCC release describes the DR in one paragraph. It states that "Under CSEA, an auction of eligible frequencies may not conclude if the total cash proceeds of the auction are less than 110 percent of the total estimated relocation costs of the federal users. As the statute does not define ``total cash proceeds,´´ the Commission determined that, for purposes of CSEA, ``total cash proceeds´´ should be defined as winning bids net of any applicable discounts, such as small business bidding credits."

The FCC release enumerates six topics upon which the NPRM seeks comment. First, the FCC seeks comment on "Revising the reserve price rule to ensure that auctions of frequencies eligible under CSEA are not concluded without raising 110% of the estimated federal user relocation costs, as required by the statute". The FCC seeks comment on "Options for preserving the availability of tribal land bidding credits in auctions of frequencies eligible subject to CSEA". The FCC seeks comment on "Increasing the Commission’s discretion regarding the amount of interim bid withdrawal and additional default payments".

The FCC also seeks comment on "Establishing procedures in advance of each auction for apportioning bid amounts among licenses in a package", "Changing the payment rules and procedures for broadcast construction permits won at auction to conform to those for non-broadcast licenses", and "Facilitating the use of small business bidding consortia".

Steve Largent, P/CEO of the CTIA, stated in a release that "The Commission's actions today clarify some of the language in the Commercial Spectrum Enhancement Act and continue to pave the way toward an auction of the Advanced Services spectrum. Every decision by the FCC that creates certainty in the auction process and facilitates carriers’ uninhibited access to spectrum has the potential to bring consumers one step closer to enjoying the versatile benefits of wireless technology and advanced wireless services. The industry appreciates the FCC's actions today and looks forward to continuing to work with the Commission on this auction."

This item is FCC 05-123 in WT Docket No. 05-211.

FCC Adopts Order Regarding Hearing Aid Compatibility of Wireless Phones

6/9. The Federal Communications Commission (FCC) adopted, but did not release, an Order on Reconsideration and Further Notice of Proposed Rulemaking in its proceeding regarding the regulation of the design and marketing of wireless phones with respect to hearing aid compatibility.

The FCC issued a short release [PDF] that describes this item. It states that the FCC determined that "by September 16, 2005, Tier I wireless carriers must, per air interface, either make four hearing aid-compatible handset models available or ensure that 25% of their handset models are hearing aid-compatible. By September 16, 2006, the Tier I wireless carriers must, per air interface, either make five hearing aid-compatible handset models available or ensure that 25% of their handset models are hearing aid-compatible. The Commission did not alter the obligation for all wireless carriers to ensure that 50% of their handset models are compatible with hearing aids by February 18, 2008."

The release adds that the order requires that "all carrier-owned and operated retail outlets must make live, in-store consumer testing available", and that the NPRM seeks comment on "extending the in-store testing requirements to more types of outlets that sell wireless services".

FCC Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that the FCC may be exceeding its statutory authority if it adopts further rules. She wrote that "I would sound a note of caution about today’s further notice, however. In it, the Commission seeks comment on extending the in-store consumer testing requirement to retail stores that are not owned or operated directly by wireless carriers. While I continue to support testing requirements in connection with the carriers’ own retail sales and urge independent retailers to do the same, I believe we should be circumspect about any attempt to extend well beyond our traditional jurisdiction to compel action by independent retailers without a clear directive from Congress to do so."

See also, statement [PDF] by Commissioner Michael Copps, and statement [PDF] by Commissioner Jonathan Adelstein.

Steve Largent, P/CEO of the CTIA, stated in a release that "The wireless industry took seriously the concerns of the hearing loss community and worked to craft a plan that addresses and fulfils its members’ needs. When hearing aid users sign up for wireless service they not only have a choice in service provider, but also now have a diverse choice in devices -- whether they want phones with all the bells and whistles or more simplified versions. Wireless technology was built as a service for all consumers and today’s ruling furthers that reality. CTIA commends the Self Help for Hard of Hearing People's for helping to lead us down a path that gets us closer to that goal."

This item is FCC 05-122 in WT Docket No. 01-309.

FCC Adopts Order and NPRM Regarding Its Digital Tuner Rules

6/9. The Federal Communications Commission (FCC) adopted and released a Report and Order and Further Notice of Proposed Rulemaking [PDF] in its proceeding titled "In the matter of Requirements for Digital Television Receiving Capability".

The Consumer Electronics Association (CEA) and the Consumer Electronics Retailers Association (CERC) submitted a petition for rulemaking.

The FCC adopted its NPRM [9 pages in PDF] on January 19, 2005, and released it on February 14, 2005. That NPRM is FCC 05-17 in ET Docket No. 05-24. The present item is FCC 05-121 in ET Docket No. 05-24.

The just released order maintains the existing plan to require that 50 percent of new 25-36 inch TV broadcast receivers that are shipped in interstate commerce or imported from any foreign country into the United States and for which they are responsible include DTV tuners beginning July 1, 2005. However, the order modifies the date on which 100 percent of such receivers must include DTV tuners by advancing that date from July 1, 2006 to March 1, 2006."

The CEA and CERC had requested that the FCC eliminate the 50 percent requirement for the 25-36 inch receivers, and instead advance the date by which 100 percent of these receivers would include DTV tuners to March 1, 2006.

The CEA's Gary Shapiro stated in a release that "We are pleased the FCC has accepted our proposal to expedite the 100 percent tuner deadline. Our proposal provides the certainty manufacturers need to plan and produce products to help complete the DTV transition ... CEA will continue to work closely with the FCC as further actions are taken to help complete the transition to DTV."

The CEA release further stated that "While conceived as a phase-in for the benefit of manufacturers and retailers, in reality the 50 percent requirement creates uncertainty in the marketplace for each group and slows the ramping up of volume production necessary to bring costs down."

The NPRM proposes to advance the date for receivers with screen sizes of 13-25 inches, and other devices that receive television signals, including VCRs and DVD players and recorders, from July 1, 2007 to December 31, 2006.

The NPRM also seeks comment on whether the requirement to include a DTV tuner in new receivers should be extended to receivers with screen sizes less than 13 inches.

The CEA stated that this proposal "would sharply raise prices on smaller sets, harming low-income consumers".

House Votes to Keep U.S. in WTO

6/9. The House rejected HJRes 27 by a vote of 86-338. It was a non-partisan vote. The Republicans voted 39-185. The Democrats voted 46-153. See, Roll Call No. 239.

This resolution provided as follows: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress withdraws its approval, provided under section 101(a) of the Uruguay Round Agreements Act, of the WTO Agreement as defined in section 2(9) of that Act."

Rep. Benjamin Cardin (D-MD), a member of the House Ways and Means Committee's Subcommittee on Trade, explained, during the floor debate, why the House held this vote. "The reason we have this resolution before us is that 10 years ago we passed legislation to gain access to the WTO. At that time Bill Clinton was the President of the United States. Congressman Gingrich thought it was important that because the legislative branch of government is the branch responsible for trade that there be a review process every 5 years as to whether we should remain within the WTO, to give Congress the ability to exercise its constitutional responsibility to oversight and be responsible for trade. At that time, Mr. Speaker, I must tell the Members I had certain concerns as to why we would want to have basically a nuclear option in pulling out from the WTO."

Rep. Cardin added that "it is in the interest of the United States to be in a rules-based trading system and to withdraw from a rules-based trading system would be folly, it would be wrong."

Robert Portman, the U.S. Trade Representative (USTR), stated in a release after the vote that "I look forward to working with Congress to lower tariffs to American products which can only be completed with engagement with our trading partners. The WTO provides an important framework for a fair, rules based, international system of trade that we benefit from every day ... American exporters face high tariffs and other trade barriers around the world, and the ongoing Doha trade negotiations offer us the best opportunity to really level the playing field."

House CIIP Subcommittee Holds Hearing on Patent Bill

6/9. The House Judiciary Committee's Subcommittee on Courts the Internet and Intellectual Property (CIIP) held a hearing titled "H.R. 2795, The Patent Act of 2005". This was the CIIP's third hearing this year on proposed revisions to the Patent Act.

The first two hearings pertained to patent law reform generally, and the earlier Committee Print [52 pages in PDF] of the "Patent Act of 2005". See, story titled "Summary of the Committee Print of the Patent Act of 2005" in TLJ Daily E-Mail Alert No. 1,122, April 25, 2005.

On June 8, Rep. Lamar Smith (R-TX), the Chairman of the CIIP Subcommittee, and others, introduced HR 2795 [63 pages in PDF], which makes numerous changes to the Committee Print.

See, full story.

Bush and AG Gonzales Address PATRIOT Act

6/9. On June 5, Attorney General Alberto Gonzales gave a speech to the Union of Orthodox Jewish Congregations in which he addressed the USA PATRIOT Act. Then, on June 9, President Bush gave a speech to the Ohio State Highway Patrol Academy in Columbus, Ohio, in which he discussed the PATRIOT Act.

Bush said that "16 critical provisions of the Patriot Act are scheduled to expire. Some people call these ``sunset provisions.´´ That's a good name -- because letting that -- those provisions expire would leave law enforcement in the dark. All 16 provisions are practical, important, and they are constitutional. Congress needs to renew them all -- and this time, Congress needs to make the provisions permanent."

He said that the Act has "improved our ability to track terrorists inside the United States."

He elaborated that "We need to renew the Patriot Act because it strengthens our national security in four important ways. First, we need to renew the critical provisions of the Patriot Act authorize better sharing of information between law enforcement and intelligence. Before the Patriot Act, criminal investigators were separated from intelligence officers by a legal and bureaucratic wall."

Second, he said that "we need to renew the critical provisions of the Patriot Act that allow investigators to use the same tools against terrorists that they already use against other criminals. Before the Patriot Act, it was easier to track the phone contacts of a drug dealer than the phone contacts of an enemy operative. Before the Patriot Act, it was easier to get the credit card receipts of a tax cheat than an al Qaeda bank-roller. Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards -- and America is safer as a result."

He focused on roving wiretaps. "Roving wiretaps allow investigators to follow suspects who frequently change their means of communications. These wiretaps must be approved by a judge, and they have been used for years to catch drug dealers and other criminals. Yet, before the Patriot Act, agents investigating terrorists had to get a separate authorization for each phone they wanted to tap. That means terrorists could elude law enforcement by simply purchasing a new cell phone. The Patriot Act fixed the problem by allowing terrorism investigators to use the same wiretaps that were already being using against drug kingpins and mob bosses. The theory here is straightforward: If we have good tools to fight street crime and fraud, law enforcement should have the same tools to fight terrorism."

Third, Bush said that "we need to renew the critical provisions of the Patriot Act that updated the law to meet high-tech threats like computer espionage and cyberterrorism. Before the Patriot Act, Internet providers who notified federal authorities about threatening e-mails ran the risk of getting sued. The Patriot Act modernized the law to protect Internet companies who voluntarily disclose information to save lives." This is a discussion of Section 212, titled "Emergency disclosure of electronic communications to protect life and limb".

Fourth, Bush argued that the PATRIOT Act already contains protections of civil liberties, citing judicial approval provisions, and Congressional oversight.

Gonzales, who accompanied Bush to Ohio, also gave a speech on June 5. He said that "We must continue to provide law enforcement with the tools it needs to take the fight to our terrorist enemies. One of these critical tools is the USA PATRIOT Act. Over the past few months, I and others at the Department of Justice have testified before Congress about the importance and effectiveness of the authorities granted in this law. Federal prosecutors from around the country have shared stories from the front lines of the Act’s usefulness in the war on terror."

"This is all part of our effort to focus on the facts. That’s why we have declassified information about the frequency with which we’ve used some of the authorities in the Act. We have rebutted many charges and exposed many misconceptions. We have focused on the truth, and the truth about the PATRIOT Act is that there has not been one single verified violation of privacy rights or civil liberties in its three-and-a-half year history", said Gonzales.

He added that "I am open to suggestions or clarifications. I am open to debate. But what I cannot nor will not accept are changes to our laws that would leave Americans less safe from terrorism and crime."

Senate Confirms Judicial Nominees

6/9. Following an agreement in the Senate regarding procedures for ending filibusters, the Senate has proceeded to end filibusters on several pending nominations, and confirm the nominees.

On June 8, the Senate confirmed Janice Brown to be a Judge of the U.S. Court of Appeals (DCCir) by a vote of 56-43. See, Roll Call No. 131.

Janice BrownDemocrats and liberals have opposed Judge Brown (at right), and others, for reasons unrelated to technology. However, Judge Brown did write the August 25, 2003 opinion [54 pages in PDF] of the Supreme Court of the State of California in DVD Copy Control Association v. Bunner, a case regarding California trade secret law, free speech, and the publication of the DeCSS program in web sites.

The Senate has yet to give confirmation votes to two other nominees for the DC Circuit, Brett Kavanaugh and Thomas Griffith.

On June 9, the Senate confirmed William Pryor to be a Judge of the U.S. Court of Appeals (11thCir) by a vote of 53-45. See, Roll Call No. 133.

On June 9, the Senate confirmed David McKeague to be a Judge of the U.S. Court of Appeals (6thCir) by a vote of 96-0. See, Roll Call No. 135.

On June 9, the Senate confirmed Richard Griffin to be a Judge of the U.S. Court of Appeals (6thCir) by a vote of 95-0. See, Roll Call No. 134.

More People and Appointments

6/9. Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee (SCC), announced in a release that Christine Kurth "has withdrawn herself from consideration for appointment to the vacant Commissioner position on the Federal Communications Commission (FCC). She is Deputy Staff Director of the SCC. Sen. Stevens stated that "her husband, who consults for telecommunications companies, would have been required to cease work on behalf of his clients; or Kurth, as a Commissioner, would have been required to recuse herself from various matters under the FCC’s jurisdiction ..." Stevens added that she will continue to coordinate the legislative work of the SCC, where she is "responsible for handling telecommunications policy".

6/9. The House approved HRes 307. This resolution appoints Rep. Debbie Schultz (D-FL) to the House Judiciary Committee, and Rep. Dennis Moore (D-KS) to the House Science Committee. Earlier in the day, Rep. Schultz was permitted to participate in the HJC's hearing on the USA PATRIOT Act by unanimous consent of the HJC.

More News

6/9. The Federal Communications Commission (FCC) adopted, but did not release, a notice of proposed rulemaking (NPRM) regarding procedures for amending the FM Table of Allotments and other procedures for making certain modifications to broadcast facilities. First Broadcasting Investment Partners LLC filed a petition for rulemaking [39 pages in PDF] on March 5, 2004. The FCC issued a short release that describes this NPRM. This NPRM is FCC-05-120 in Docket 05-210 and RM-10960.

More Congressional Hearings

6/9. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection held a hearing titled "Issues before The U.S.-China Joint Commission on Commerce and Trade". See, prepared testimony [15 pages in PDF] of Jon Dudas, head of the U.S Patent and Trademark Office (USPTO).

Deputy AG Comey Testifies Before House Judiciary Committee on PATRIOT Act

6/8. The House Judiciary Committee (HJC) held a hearing titled "Reauthorization of the USA PATRIOT Act". This was another in a long series of hearings held by the HJC, or its Crime Subcommittee.

James ComeyThe only witness was James Comey (at right), the Deputy Attorney General. See, prepared testimony [PDF]. He asked that the Congress permanently extend the provisions of the USA PATRIOT Act that are scheduled to expire at the end of this year. He opposed proposals to include any further sunsetting provisions. He asserted that the Congress can conduct effective oversight without the presence of sunsetting provisions.

Many members of the Committee advocated the inclusion of further sunsetting provisions, arguing that it is only the presence of those clauses that incents the Department of Justice (DOJ) to cooperate with the HJC in its oversight activities.

See, full story.

People and Appointments

6/8. President Bush nominated John Richard Smoak to be a  Judge of the U.S. District Court for the Northern District of Florida. See, White House release.

6/8. President Bush nominated Kenneth Wainstein to be the United States Attorney for the District of Columbia for the term of four years. See, White House release.

6/8. Arthur Dunkel died. He was Director-General of the GATT from 1980 through 1993. See, World Trade Organization (WTO) release.

More News

6/8. The Department of Justice's (DOJ) Antitrust Division issued a release regarding the fourth annual conference of the International Competition Network (ICN) in Bonn, Germany.

6/8. The Federal Communications Commission (FCC) published a notice in the Federal Register that describes, recites, and sets the effective dates for its revisions to its antenna gain pattern rules, and its new rules for Very Small Aperture Terminal (VSAT) networks and other networks using certain multiple access techniques. Most of these rule changes take effect on July 8, 2005. The rest take effect on September 30, 2005. The FCC adopted its 6th Report and Order on March 10, 2005, and released it on March 15, 2005. This item is FCC 05-62 in IB Docket No. 00-248. See, Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33373 - 33377.

Congressional Hearings

6/8. The Senate Commerce Committee's Subcommittee on Technology, Innovation, and Competitiveness held a hearing titled "Manufacturing Competitiveness in a High-Tech Era". See, prepared testimony of Albert Frink (Assistant Secretary for Manufacturing and Services at the Department of Commerce), prepared testimony of Wayne Clough (President of Georgia Institute of Technology), prepared testimony of Sebastian Murray (P/CEO of FPI Thermoplastic Technologies), and prepared testimony of Thomas Howell (Dewey Ballantine).

6/8. The Senate Commerce Committee's (SCC) Subcommittee on Disaster Prevention and Prediction held a hearing on the National Institute of Standards and Technology's (NIST) recent World Trade Center report, and other issues, including the National Science Foundation's (NSF) research in information technology, cyber security and data mining. Arden Bement (Director of the NSF) addressed several information technology issues, at pages 4-6, in his prepared testimony [PDF] including cyber war gaming, cyber security, its Cyber Trust program, and data mining based anomaly detection techniques. See also, prepared testimony [PDF] of Hratch Semerjian (acting Director of the NIST). NIST cyber security activities are addressed at pages 3-4. And see, prepared testimony of Conrad Lautenbacher (Administrator of the NOAA).

7th Circuit Construes Removal Provision of Class Action Fairness Act

6/7. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in Kirsten Knudsen v. Liberty Mutual Insurance Company, a case involving application of the removal provision of the Class Action Fairness Act of 2005.

The Congress enacted this statute earlier this year. It was S 5. President Bush signed it on February 18, 2005. It is now Public Law No. 109-2. It provides, among other things, for removal of certain class actions from state court to federal court.

A key provision of the bill amends Title 28 by adding a new Section 1453 that creates jurisdiction in U.S. District Courts over class actions in which the aggregate amount in controversy exceeds $5 Million and any member of a plaintiff class is a citizen of a different state from any defendant.

The Act further provides that "The amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act."

Kirsten Knudsen and others filed a class action complaint in state court in Illinois in 2000 against Liberty Mutual Insurance Company. After enactment of the Act in February of 2005, Liberty removed the action to the U.S. District Court (NDIll). The District Court returned the action to the state court, based upon its finding 2000 came before 2005.

Liberty petitioned the Court of Appeals for leave to appeal. Liberty's argument is that while 2000 does in fact precede 2005, the act of removing the action to the federal court created a new action. Hence, Liberty argues, the federal court should hear the removed action, because it was commenced after the effective date of the statute.

Judge Frank Easterbrook wrote the opinion of the Court. He proclaimed that "Deconstructionist tactics do not permit its evasion", and denied the petition for leave to appeal.

He also addressed the possibility that plaintiffs' class action lawyers would similarly circumvent the underlying purpose of the Act by perpetually amending actions brought before February of 2005.

He wrote that Liberty "paints a picture of crafty lawyers tending a garden of pre-2005 class actions, in which they plant new claims by amendment so that the 2005 Act never comes into play. As we have already hinted, however, a new claim for relief (a new ``cause of action´´ in state practice), the addition of a new defendant, or any other step sufficiently distinct that courts would treat it as independent for limitations purposes, could well commence a new piece of litigation for federal purposes even if it bears an old docket number for state purposes. Removal practice recognizes this point: an amendment to the pleadings that adds a claim under federal law (where only state claims had been framed before), or adds a new defendant, opens a new window of removal." (Parentheses in original.)

This case is Kirsten Knudsen, et al. v. Liberty Mutual Insurance Company, No. 05-8010, a petition for leave to appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 05 C 1489, Judge Ruben Castillo presiding.

People and Appointments

6/7. Paul Verhoef was named by the European Commission to the post of head of unit for Project 'Galileo' and Intelligent Transport in the Directorate General for Energy and Transport. See, ICANN release.

More News

6/7. The House Rules Committee adopted a closed rule for consideration of HJRes 27, a resolution pertaining to the World Trade Organization (WTO). The House may consider this item on Wednesday, June 8. See, Republican Whip Notice.

6/7. The U.S. Patent and Trademark Office (USPTO) requested public comments regarding its document titled "Green Paper", which describes and evaluates four options to reform restriction practice. The USPTO then plans to draft a "White Paper" that includes proposed legislation reforming restriction practice. Comments are due by Friday, August 5, 2005. See, notice in the Federal Register, June 6, 2005, Vol. 70, No. 107, at Pages 32761 - 32762.

6/7. Viviane Reding, the European Commissioner for Information Society and Media, gave a speech, in French, titled "Television Haute Definition".

6/7. Meredith Attwell, Senior Policy Advisor to the head of the National Telecommunications and Information Administration (NTIA), gave a speech in Covington, Kentucky, titled "Promoting Broadband Deployment in Rural America". See, presentation slides [PDF].

6/7. Kyle McSlarrow, P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech regarding regulation and the process of reviewing the 1996 Telecom Act. The NCTA also released paper [9 pages in PDF] titled "Working Toward a Deregulated Video Marketplace".

Sen. Stevens Advocates Government Secrecy and DTV Transition

6/6. The Sen. Ted Stevens (R-AK), the Chairman of the Senate Commerce Committee, gave a luncheon speech in Washington DC. He again spoke about the SCC's closed hearings, which he describes as "listening sessions". He explained that it is easier to pass legislation when the Senate acts in secrecy.

He also complained about the sunshine law. He said that the SCC has held secret meetings with Federal Communications Commission (FCC) Commissioners, but that the sunshine law "prohibits the Commission from meeting with Congress except two at a time. As a matter of fact, when they come to a hearing only two of them can be in the room at one time. So, they have to sort of change seats as their time to testify comes up."

The sunshine law, or open meetings act, was enacted in 1976 as one of the post-Watergate reforms. It is Public Law 94-409. It is now codified at 5 U.S.C. § 552b. It requires that for federal agencies, subject to certain exceptions, "every portion of every meeting of an agency shall be open to public observation".

If the SCC were to hold public hearings, all of the Commissioners could participate at once. The FCC complies with the sunshine law by, essentially, not holding meetings. Very little agency business is conducted at events that the FCC titles "Open Meeting".

Sen. Ted StevensStevens (at right) added that the sunshine law "is stupidity", and that he wants to "find a way to modify these existing laws".

Stevens then talked about digital television transition. He said that "these listening sessions have been very helpful to us so far. We've completed the listening sessions on the digital television transition. We're going to put together now a bipartisan bill and both staff, minority and majority, will be working on that."

He continued that a Senate bill may be "quite similar to the House staff draft that has being circulated. We believe that we'll probably put a hard date in the bill of 2009, we're not sure of that yet. But, we're working on options for some type of a program to solve the problem of set-top boxes for the analog sets that will still be in the hands of many people who cannot afford to replace them right away. I personally think that we ought to put our legislation that requires some sort of a warning on analog sets sold after a specific date. These analog sets have every kind of description on them possible to indicate that they are digital, but they are not. And, they’re all made outside of the United States."

He also stated that "We hope that we can move up the date of when analog sets can no longer actually be sold in the interstate commerce in this country and the current deadline is June 1, 2007, for TV sets larger than 13 inches to include digital tuners. One of the great problems is to develop a program that funds the analog translators in rural areas so they can receive and transmit digital signals."

He stated the the SCC has heard in closed meetings with representatives of the Bell Operating Companies that they "seek to enter video markets", and are concerned "about the costs and merits of state regulation or local regulation". He also said that the SCC has heard from the cell phone industry about state regulation.

Stevens spoke vaguely about what the SCC might do. He said that "it appears to us now that we ought to think about some kind of a national solution and this also would apply to the font size on cell phone contracts and advertising. Uniform contract procedures are almost impossible under current circumstances. I am one who basically believes in states’ rights, but this is getting to the point now where we will have to find a way to deal with these issues that, I think, confront the industry. We are going to look at generally, the role of states across the board and when state regulation makes sense and when it becomes an unnecessary financial burden not only to the industry, but to consumers."

Sen. Stevens spoke at a Federal Communications Bar Association's (FCBA) event.

Supreme Court Upholds Broad Congressional Power to Enact Criminal Statutes Under Commerce Clause

6/6. The Supreme Court issued its opinion [79 pages in PDF] in Gonzales v. Raich, a case regarding the authority of the Congress to enact criminal statutes under the Commerce Clause. The Court upheld a section of the Controlled Substances Act as a valid exercise of federal power.

Justice Stevens wrote in the opinion of the Court that the Congress has broad and sweeping power to enact criminal statutes under the Commerce Clause. It now appears unlikely that the Court would overturn technology related criminal statutes as unconstitutional exercises of Commerce Clause authority.

The significance of this for technology is that many of the bad acts that are related to the use of information technologies are committed by individuals who are not buying or selling anything in interstate commerce. Many are sitting at home, using their personal computers. Yet, the Congress is increasingly  regulating this conduct. The present case indicates that the Supreme Court will not be receptive to constitutional challenges to these statutes when the challenges are based on the assertion of lack of authority under the Commerce Clause.

This case pertains to the growing of rnarijuana in the home, for personal use, for medicinal purposes, with a medical doctor's prescription, in the state of California. The state of California enacted a statute that legalizes this. The Congress enacted a statute, the Controlled Substances Act (CSA), which criminalizes this. The plaintiffs in this case are Angel Raich and Diane Monson, California residents who grow rnarijuana at home, in a manner that is permitted under California law, but prohibited under federal law.

They filed a complaint in U.S. District Court (NDCal), asserting, among other claims, that the pertinent section of the CSA is an invalid exercise of federal power. The U.S. argued that it is a valid exercise of Commerce Clause power. The District Court denied injunctive relief. The U.S. Court of Appeals (9thCir) reversed. These opinions are reported at 248 F. Supp. 2d 918 (ND Cal. 2003) and 352 F. 3d 1222 (2003). The U.S. petitioned for writ of certiorari. The Supreme Court granted certiorari, under the case name of Ashcroft v. Raich. This case is Sup. Ct. No. 03-1454.

This case does not involve any technology. However, the analysis of the Supreme Court will likely affect pending and future constitutional challenges to certain federal technology related criminal statutes.

There is no general grant of criminal law making authority in the Constitution. There is an implied power to enact certain criminal laws as "necessary and proper for carrying into Execution" other enumerated powers. See, Article I, Section 8, Clause 18. Some federal criminal statutes, such as the CSA and some technology related criminal statutes, are based upon the authority of the Commerce Clause. See, Article I, Section 8, Clause 2.

For example, the Supreme Court has received a petition for writ of certiorari in U.S. v. James Maxwell, Sup. Ct. No. 04-1382. This case involves the constitutionality of 18 U.S.C. § 2252A(a)(5)(B), which addresses pormography on computer disks or computers hard drives.

The Office of the Solicitor General (SG) filed a brief with the Supreme Court in April, 2005, urging the Supreme Court to hold the Maxwell petition for writ of certiorari until it decides Raich case on the merits. The SG wrote that the issue in Maxwell is "Whether 18 U.S.C. 2252A(a)(5)(B), which prohibits the knowing possession of child pormography ``that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce,´´ is unconstitutional, as exceeding Congress's Commerce Clause authority, as applied to respondent's intrastate possession of child pormography stored on computer disks that had traveled in interstate commerce."

In its June 6 opinion, the Supreme Court upheld the CSA in a manner that makes it appear that most challenges to other federal criminal statutes based upon the commerce clause will also fail.

The court wrote that under Perez v. United States, 402 U.S. 146 (1971), there are "three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. ... Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. ... Third, Congress has the power to regulate activities that substantially affect interstate commerce."

The court held that the present regulation of the home cultivation for personal meets the third basis. It substantially affects interstate commerce.

In so doing, it relied on a New Deal era case, Wickard v. Filburn, 317 U. S. 111 (1942). This case, which has been criticized over the years, represents the anything goes application of the Commerce Clause by Justices appointed by former President Franklin Roosevelt.

In Wickard, the Congress enacted a statute that purported to improve the economy through government control and planning. In particular, it directed the government to set production levels and prices for wheat grown by farmers. The issue in that case was a small amount of wheat grown by farmer named Filburn, not for sale, but for consumption on his own farm. The Supreme Court held that the Commerce Clause reaches this conduct because, while this wheat was not sold in interstate commerce, other wheat is sold in interstate commerce.

The present case further expands this Wickard authority of Congress. Filburn was a farmer who did also sell crops in interstate commerce. In the present case, Angel Raich and Diane Monson do not also sell rnariuana, or any other crops, in interstate commerce.

The Court, quoting from Wickard, wrote that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." The Court added that "Congress can regulate purely intrastate activity that is not itself ``commercial,´´ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

The Court then went on to state that it will not engage in any significant review of the Congress' determination that something substantially affects interstate commerce.

It was not clear, before the present ruling, that the Court would read such broad powers into the Commerce Clause. In 1995 the Supreme Court held unconstitutional the Gun-Free School Zones Act of 1990, which made it a crime for an individual to possess a gun in a school zone. The Congress had asserted authority under the Commerce Clause. See, U.S. v. Lopez, 514 U. S. 549.

The present case suggests that Wickard, not Lopez, is the guiding case, and that almost anything will pass constitutional muster, no matter how small or vague the connection to interstate commerce.

Bush Advocates Free Trade And CAFTA

6/6. President Bush gave a speech in Ft. Lauderdale, Florida, in which he advocated free trade, and urged the Congress to approve the Central America Free Trade Agreement (CAFTA).

He said that "In the new Americas of the 21st century, one of the surest ways to make opportunity real for all our citizens is by opening our doors to trade. My government is pursuing this goal at all levels: at the global level through the Doha Round of the World Trade Organization, at the regional level through Free Trade Area of the Americas, and at the bilateral level with Free Trade Agreements with individual countries like Chile and Mexico and Canada. And the United States Congress is now considering the Central American and Dominican Republic Free Trade Agreement, which offers an historic opportunity to bring prosperity to the citizens of our hemisphere who have not known it."

He added that "CAFTA would expand opportunity by creating a more level playing field for our goods and services. Under existing rules, most of Central America's exports already enter the United States duty free -- but U.S. exports still face hefty tariffs. By passing CAFTA, the United States would open up a market of 44 million consumers for our farmers and small business people. CAFTA will replace a system that is often arbitrary with one that is fair and transparent and based on common rules."

The text of the CAFTA also contains sections that pertain to intellectual property rights [PDF], electronic commerce [PDF], and telecommunications [PDF]. Bush did not reference any of these sections in his speech.

More News

6/6. The Office of the U.S. Trade Representative (USTR) issued a news release regarding the program titled "Strategy Targeting Organized Piracy" or "STOP". It states that representatives of U.S. government agencies will meet with German, UK, French and European Commission officials on June 6-10, 2005 to discuss global piracy and counterfeiting. In addition, the Senate Homeland Security and Governmental Affairs Committee announced that it will hold a hearing on the STOP program on June 14, 2005.

6/6. The House Commerce Committee published in its web site a transcript of an interview of Rep. Joe Barton (R-TX), the Chairman, by Roll Call's Morton Kondrake. Rep. Barton discussed the possibility of a major rewrite of the Telecommunications Act of 1996.

Go to News from June 1-5, 2005.