| TLJ News from June 21-25, 2007 |
Supreme Court Denies Cert in Case Regarding Discrimination Against Foreign Attorneys
6/25. The Supreme Court of the U.S. (SCUS) denied certiorari in LeClerc v. Webb, a challenge to a protectionist law of the state of Louisiana regarding attorney admissions. See, Orders List [12 pages in PDF] at page 10.
Supreme Court of Louisiana Rule XVII, Section 3(B) limits admission to the Louisiana Bar to citizens of the United States and aliens who have permanent resident status in the United States, but not aliens who lack permanent resident status.
The petitioners were citizens of France and Canada who have law degrees, and who have been admitted into the U.S. under J-1, L-2, or H1B visas.
LeClerc and others filed complaints in the U.S. District Court (EDLa) seeking a declaration that Section 3(B) is preempted by federal immigration law and violates the equal protection clause of the 14th Amendment of the Constitution. The District Court ruled against the foreign attorneys, and the U.S. Court of Appeals (5thCir) affirmed. And now, the SCUS's denial of certiorari lets stand these judgments.
The Office of the Solicitor General (OSG) submitted an amicus brief urging the SCUS to deny certiorari. It wrote that the issues are "1. Whether a state bar rule that allows citizens and permanent resident aliens to become members of the bar, but that precludes aliens who are not permanent residents from becoming members, is preempted by federal immigration law. 2. Whether that state rule violates the Equal Protection Clause of the Fourteenth Amendment."
This case is Karen Leclerc, et al. v. Daniel Webb, et al., Sup. Ct. No. 06-11, a petition for writ of certiorari to the U.S. Court of Appeals for the 5th Circuit, App. Ct. No. 03-30752.
Leclerc is represented by Jeffrey Sarles of the Chicago, Illinois office of the law firm of Mayer Brown Rowe & Maw. The Innocence Network submitted an amicus curiae brief in support of the petitioners.
See also, SCUS Docket.
Supreme Court Grants Cert in Case Regarding State Regulation of E-Commerce
6/25. The Supreme Court of the U.S. (SCUS) granted certiorari in Rowe v. New Hampshire Motor Transportation Association, a case involving whether portions of a statute of the state of Maine that regulate the sale and delivery of tobacco products purchased via the internet is preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA). See, Orders List [12 pages in PDF] at page 2.
The lower courts issued rulings in favor of the New Hampshire Motor Transportation Association (NHMTA) and the other carriers, and against Steven Rowe, the Attorney General of Maine. The courts held that portions of the state statute are preempted by the FAAAA. The Supreme Court may reverse, and issue an opinion that authorizes certain state by state regulation of e-commerce via regulation of air carriers and delivery companies.
See, full story.
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6/25. The U.S. Court of Appeals (FedCir) issued its opinion [10 pages in PDF] in Microstrategy v. Business Objects, affirming the District Court's summary judgment of noninfringement and invalidity. This case pertains to business intelligence software that retrieves, organizes, and analyzes data stored in large databases to assist users making business decisions. This case is Microstrategy, Inc. v. Business Objects Americas, U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2006-1320, an appeal from the U.S. District Court for the District of Delaware, Judge Kent Jordan presiding.
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6/23. Federal Reserve Board (FRB) Governor Frederic Mishkin gave a speech at Duke University in Durham, North Carolina, on June 23, 2007, titled "Globalization and Financial Development", in which he advocated free trade in goods and services, including the opening of financial markets. He stated that "Wealth is not something that can be attained by remaining closed off to the rest of the world. Poorer countries would do better by embracing globalization -- that is, opening their financial markets and their markets for goods and services to other nations so that funds, goods, and, often, the ideas that accompany them can flow in."
1st Circuit Considers Baby Monitors and Wiretap Acts
6/22. The U.S. Court of Appeals (1stCir) issued its opinion in Jean v. Massachusetts State Police, affirming the judgment of the District Court. The Court of Appeals, extending the Supreme Court's opinion in Bartnicki v. Vopper, held that a web site operator who published a video captured by a home baby cam of a warrantless and unlawful state police search of that home is protected from prosecution by the state by the First Amendment. However, the Court of Appeals wrote that the underlying use of the baby cam violated the state wiretap act.
Background. Paul Pechonis is an individual who resides in the state of Massachusetts. The Court of Appeals opinion provides little detail about him. However, a quick internet search producers numerous news stories and blog entries regarding Pechonis and the events that gave rise to this case. However, he is not a party to the present case.
The Court of Appeals opinion discloses that armed state police went to his home, handcuffed him and "conducted a warrantless search of his entire house. The arrest was both audiotaped and videotaped by a “nanny-cam,” a motion-activated camera used by parents to monitor children’s activities within the home. The parties contest whether the recording was accidental; this fact is immaterial to the outcome of the case."
The Court of Appeals described Mary Jean, who is a party to this action, as "a local political activist in Worcester, Massachusetts, maintained a website displaying articles and other information critical of former Worcester County District Attorney John Conte".
Pechonis gave Jean a copy of the video captured by the baby cam. She published it in her web site. The state police then attempted to suppress her publication by threatening her with criminal prosecution under the state wiretap act. That is, they asserted that a baby cam used in a private home is a criminal violation.
The Massachusetts state police wrote a letter to Jean demanding that if she did not "cease and desist, within 48 hours of receipt of this letter, from posting this unlawful tape on the internet or any other publicly accessible site," then the state police would "refer this matter to the District Attorney's office for further investigation and possible prosecution."
The Court of Appeals wrote, without explanation or analysis, that the recording was "illegally recorded" and that it constituted an "illegally intercepted tape". The opinion does not identify whether this was a stipulated fact, a factual conclusion, a legal holding, or dicta.
District Court. Mary Jean filed a complaint in U.S. District Court (DMass) against the Massachusetts State Police and others seeking temporary and permanent injunctive relief against prosecution, threatening prosecution, or interference with her publication.
She argued that her actions were protected by the First Amendment of the U.S. Constitution.
The District Court held that Bartnicki v. Vopper is controlling, and issued a preliminary injunction.
The Massachusetts State Police brought the present appeal.
Statutes. The Bartnicki case involved the federal Wiretap Act, which was enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. It is codified at 18 U.S.C. § 2510 et seq. It prohibits the interception of wire, oral, and electronic communications, without a court order.
18 U.S.C. § 2511 provides, in relevant part, that "(1) ... any person who ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished ...".
18 U.S.C. § 2510, the definitional section of the Wiretap Act, provides that an "oral communication" means "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication".
The present case involved the Massachusetts state wiretap statute, at Mass. Gen. Laws ch. 272, § 99. It provides at § 99(B)(4) that an "interception" means "to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication."
§ 99(C)(1) the provides that any person who "willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception" may be punished with a fine of up to ten thousand dollars, imprisoned for up to five years, or both.
§ 99(C)(3) then provides that an individual who "willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception ... shall be guilty of a misdemeanor."
The two statutes are similar. Both cover the recording of conversation (which is an oral communication) and video recordings. The federal statute covers a "communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation". That is, it codifies the two prong test applied by the Supreme Court in 4th Amendment cases. There must be both an expectation of privacy, and that expectation must be reasonable. See, 1967 opinion in Katz v. U.S., reported at 389 U.S. 347, and its progeny.
The Massachusetts statute is more vague. It merely refers to a "secret" recording.
Bartnicki v. Vopper. On May 21, 2001, the Supreme Court issued its opinion in Bartnicki v. Vopper, holding that a radio host (Vopper) cannot be sued under 18 U.S.C. § 2511 for playing an audio recording of a cellular telephone conversation, despite the federal statute that made illegal both the interception of the conversation, and its disclosure.
The majority reasoned that the case pitted statutes banning disclosure of illegally obtained electronic communications against the First Amendment freedom of speech claims of persons with illegally obtained recordings to disclose them if their content pertains to a public issue.
The Supreme Court wrote that the recording violated federal wiretapping law, that Vopper knew this, but that he did not make the illegal intercept. It reasoned that the statute's application in this situation would violate Vopper's free speech rights under the First Amendment. See, story titled "Supreme Court Diminishes Electronic Privacy" in TLJ Daily E-Mail Alert No. 192, May 22, 2001.
Court of Appeals. The Court of Appeals affirmed. It too extended Bartnicki v. Vopper to the facts of this case.
The Court of Appeals held that "the First Amendment prevents Massachusetts law enforcement officials from interfering with an individual's internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded".
The Court of Appeals first wrote that both the state and federal wiretap statutes are content neutral. Then the Court of Appeals, like the Supreme Court, weighed the interests in privacy against the public interest in dissemination of information of public interest.
The Court of Appeals concluded that the privacy interest of the police is "virtually irrelevant here, where the intercepted communications involve a search by police officers of a private citizen’s home in front of that individual, his wife, other members of the family".
The Court of Appeals also wrote that it is significant that the interceptor was known in this case, but not in Bartnicki v. Vopper. It concluded that "there is a better argument for prosecuting a subsequent publisher of information when the interceptor is anonymous". (Underscore in original.)
The Court of Appeals added that "The police do not deny that the event depicted on the recording -- a warrantless and potentially unlawful search of a private residence -- is a matter of public concern."
The Court of Appeals concluded that "We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection."
Analysis. First, this opinion is a victory for freedom of speech or of the press. It will especially benefit individuals who engage in political expression on the internet.
Second, this opinion is a defeat for privacy rights. By further expanding the scope of the Bartnicki v. Vopper exemption, this case provides further incentive for persons, entities and governments to wiretap, bug, and surveil in violation of state and federal laws, and then transfer, or launder, the fruits of their surveillance through news media or internet bloggers.
Finally, there is the matter that the District Court and Court of Appeals both concluded that the underlying use of the baby cam was "illegal" under the Massachusetts wiretap statute, and this case is "materially indistinguishable" from Bartnicki v. Vopper, which involved the federal wiretap statute.
Bartnicki v. Vopper involved a wiretap of a cell phone conversation in the classic sense of the term wiretap. The Congress has enacted and amended the federal statute with this sort of intercept in mind.
In contrast, baby cams are used by millions in a manner not contemplated as illegal by the Congress or the Massachusetts legislature. Baby cams are used to monitor babies and children both in the home, and from a distance. They are used to supplement the efforts of teenage baby sitters. They are used by persons with disabilities to monitor conversations and events in the house which they cannot reach because of their disabilities. These are socially beneficial uses. Yet, the opinion of the Court of Appeals calls into question the legality of these uses.
Moreover, the wiretap statutes are designed, in large part, to protect individuals from unreasonable searches and seizures by the police. Yet, in the present case, the police who conducted a warrantless search and seizure perversely and unprofessionally attempted to use a wiretap statute to prevent the public from learning about its warrantless searches and seizures.
The Massachusetts wiretap statute provides that "secret" is an element of the crime. The Court of Appeals could not have based its conclusion that the operation of the baby cam was "secret" on the fact that Pechonis failed to disclose it to the police. He did not invite them to his home. They came and immediately arrested him. His constitutional right to remain silent attached at the outset, when the police handcuffed him. He could have been under no duty or obligation to disclose the baby cam, because that would necessarily imply that a state statute can override a U.S. Constitutional right. Hence, the reasoning of the Court of Appeals must have been that there was a per se illegality when the baby cam captured a third party.
The Court of Appeals has called into question the legality of using in monitoring devices in a private home, for private reasons. Yet, it provided no legal analysis, and no elaboration regarding what situations might be illegal, and what might be legal.
Eric Hermanson of the law firm of Choate Hall & Stewart represented Mary Jean before the Court of Appeals. He told TLJ that the illegality of the baby cam "was not a significant issue in this case", and that Pechonis' "conduct ... really wasn't part of what the First Circuit was being called to evaluate".
He added that "the issue has been held for another day".
This case is Mary Jean v. Massachusetts State Police, et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 06-1775, an appeal from the U.S. District Court for the District of Massachusetts, Judge Dennis Saylor presiding. Judge Lipez wrote the opinion of the Court of Appeals, in which Judges Boudin and Campbell joined.
Four Party Doha Talks In Potsdam Fail
6/22. On June 21, 2007, the Office of the U.S. Trade Representative (USTR) and the Department of Agriculture issued a joint release regarding Doha round negotiations that took place in Potsdam, Germany, between representatives of the US, EU, India and Brazil.
This release states that "this week's negotiations could not generate political consensus to meaningfully open markets to new trade -- particularly in manufactured goods." See also, transcript of joint news conference.
EU Trade Commissioner Peter Mandelson stated that this "places a very major question mark over the ability of the wider membership of the WTO to complete this round. But it does not in itself mean that the negotiations cannot be put back on track." See, transcript.
Sen. Charles Grassley (R-IA) stated in a release that "I understand that there was improved dialogue in the agriculture negotiations. But when it came to tariffs on manufactured goods, the talks broke down. Brazil and India need to recognize that the Doha Round won't succeed without meaningful tariff cuts. By that I mean cuts that will reduce applied rates, not just bound rates. We've been clear all along that the Doha negotiations must result in new market access across the board -- for agriculture, for manufactured goods, and for services. I commend Ambassador Schwab for holding the line. Brazil and India better understand. No new market access means no deal."
Susan Schwab stated at a news conference in Geneva, Switzerland, on June 22 that "We have not by any means given up on the Doha Round. " See, transcript.
WTO Director General Pascal Lamy stated in a speech in Geneva on June 22 that "I have spoken to all four Ministers separately and that all four have told me that they want the process to continue here in Geneva."
People and Appointments
6/22. The Senate Judiciary Committee (SJC) cancelled its hearing on the nomination of William Mercer to be Associate Attorney General. It had been scheduled for 10:00 AM on Tuesday, June 26, 2007. The SJC issued a release that states that "the President is withdrawing Mr. Mercer’s nomination."
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6/22. Sherwin Siy of the Public Knowledge (PK) wrote in a short piece in the PK website that the World Intellectual Property Organization (WIPO) "Broadcast Treaty isn't likely to go anywhere this year". See also, story titled "CO and USPTO Hold Roundtable on Proposed WIPO Broadcast Treaty" in TLJ Daily E-Mail Alert No. 1,580, May 14, 2007.
6/22. The U.S. District Court (EDVa) sentenced Hew Raymond Griffiths to serve 51 months in prison following his guilty plea on April 20, 2007, to one count of conspiracy to commit criminal copyright infringement. The Department of Justice (DOJ) stated in a release that Griffiths "was a longtime leader of DrinkOrDie and an elder in the highest echelons of the underground Internet piracy community, also known as the warez scene" This case is U.S. v. Griffiths, U.S. District Court for the Eastern District of Virginia, Judge Claude Hilton presiding. See also, April 20, 2007, release.
Supreme Court Rules in Tellabs v. Makor
6/21. The Supreme Court issued its opinion [33 pages in PDF] in Tellabs v. Makor, a case regarding the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA). The opinion gives a meaning to the term "strong inference" that will make it harder for class action securities complaints to survive motions to dismiss. The Court vacated the opinion of the Court of Appeals. However, it did not adopt the even higher standard sought by Justice Scalia and critics of class action securities fraud litigation. To the extent that many of these suits are brought against tech companies, this is a modest victory for the tech sector.
Summary. The 106th Congress passed the PSLRA, which is codified at 15 U.S.C. § 78u-4 and § 78u-5, to insulate defendants, and especially information and biotech companies, from abusive class action law suits.
The PSLRA creates both a safe harbor for forward looking statements, and a heightened pleading requirement. Plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." However, this language is vague, and its meaning has perplexed lower courts, which offered divergent interpretations. In particular, there is no definition of the term "strong inference".
This opinion, written by Justice Ruth Ginsberg, vacates and remands to the Court of Appeals. It reduces the uncertainty regarding the pleading standard. The opinion will make it harder for plaintiffs' class action lawyers' complaints to survive Rule 12(b)(6) motions to dismiss for failure to state a claim.
Justice Antonin Scalia indicated at oral argument, and in his concurring opinion, that he favored a stricter pleading standard. However, he only partially won over one other Justice, Alito, who wrote a separate concurring opinion.
See, full story.
Senate Judiciary Committee Authorizes Issuance of Subpoenas Directed at Bush Administration Regarding Surveillance
6/21. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved, on a roll call vote of 13-3, an "Authorization of Subpoenas in Connection with Investigation of Legal Basis for Warrantless Wiretap Program".
It states in full as follows: "Be it resolved that, pursuant to its authority under Rules 25 and 26 of the Standing Rules of the Senate, the Senate Committee on the Judiciary hereby authorizes its Chairman, in consultation with the Ranking Member, to issue subpoenas to: 1) the Honorable Alberto Gonzales, Attorney General of the United States, and 2) the Custodian of Records at the Executive Office of the President, to provide the Committee with all documents related to the Committee's investigation into the Administration's operation of a warrantless domestic surveillance program outside of the provisions of the Foreign Intelligence Surveillance Act, and its legal analysis for this program."
The authorization does not extend to subpoenas directed to either telecommunications carriers or internet service providers that are conducting or facilitating surveillance programs.
Sen. Patrick Leahy (D-VT) wrote in his opening statement, which he read at the meeting, that "For more than five years this Administration intercepted conversations of Americans in the United States without obtaining court orders under the Foreign Intelligence Surveillance Act (FISA). This program became public in December 2005 and, soon after, the President confirmed its existence. Since then, this Committee has sought information about the authorization of and legal justification for this program time and again -- in letters, at hearings, and in written questions. Yet, this Administration has rebuffed all requests."
Neither Sen. Leahy nor the SJC have released the text of any subpoenas, or drafts. However, Sen. Leahy and Sen. Specter sent a letter to Attorney General Alberto Gonzales dated May 21, 2007, which lists and describes documents that they seek.
This letter requests "all documents that reflect the President's authorization and reauthorization of the warrantless electronic surveillance program that you have called the Terrorist Surveillance Program, including any predecessor programs, from 2001 to the present".
It also requests "all memoranda or other documents containing analysis or opinions from the Department of Justice, the National Security Agency, the Department of Defense, the White House, or any other entity within the Executive Branch on legality of or legal basis for the warrantless electronic surveillance program, including documents that describe why the desired surveillance would not or could not take place consistent with the requirements and procedures of FISA from 2001 to the present".
It also requests "all documents reflecting communications with the Foreign Intelligence Surveillance Court (FISC) about the warrantless electronic surveillance program or the types of surveillance that previously were conducted as part of that program, that contain legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment, the Authorization for the Use of Military Force, or the President's authority under Article II of the Constitution, including the January 2007 FISC orders to which you refer in your January 17, 2007 letter to us and all other opinions or orders of the FISA court with respect to this surveillance".
Finally, the May 21 letter states that "If you do not consider the surveillance program that was the subject of discussion during the hospital visit and other events that former Deputy Attorney General James Corney described in his May 15,2007 testimony before the Senate Judiciary Committee to be covered by the requests made above, please provide all documents described in those requests relevant to that program, as well."
Sen. Leahy wrote in his opening statement that "We are asking not for intimate operational details".
He added that the "Administration is now asking Congress to make sweeping changes to FISA", but that the SJC needs the requested documents to be able to make "informed legislative decisions".
Sen. Arlen Specter (R-PA), the ranking Republican on the SJC, stated that "I regret the necessity to issue subpoenas". He said the the SJC should first move forward with subpoenas, and then deal with claims of executive privilege when they arise.
Sen. Russ Feingold (D-WI) made one reference to subpoenas directed at telecommunications carriers and other companies. He said that the SJC cannot either write legislation, or decide to grant immunity, when "most members of the Committee don't know what the immunity is for".
Four members of the SJC --Sen. Feingold, Sen. Dianne Feinstein (D-CA), Sen. Sheldon Whitehouse (D-RI), and Sen. Orrin Hatch (R-UT) -- are also members of the Senate Intelligence Committee, and hence, have received more information than other members of the SJC.
Carriers have sought, but not yet received, any Congressional grants of immunity.
The SJC vote on authorizing subpoenas was 13-3. All of the Democrats on the SJC voted yes (with some voting yes by proxy). In addition, Sen. Specter, Sen. Orrin Hatch (R-UT), and Sen. Charles Grassley (R-IA) voted yes. All other Republicans voted no or pass, by proxy.
The Center for Democracy and Technology (CDT) opposes Bush administration's proposals to revise the FISA, and supports Congressional efforts to obtain information about surveillance programs.
On June 20, 2007, it released a list of surveillance related documents [PDF] that it would like the administration to release, and a list of questions [PDF] that it would like the administration to answer.
Neither of these CDT documents addresses carriers. However, the CDT's Jim Dempsey stated at a news conference on June 20 that subpoenas "probably could and should be directed at the carriers. Although, immediately the carriers are going to defer to the administration ..."
He added that "it would be interesting if the carriers have internal documents of their own. I am sure there were some, although probably limited. My guess is that a lot of this was oral, and it was high level, and not a lot of paper was generated. Although, again, if I were a prosecutor, I would certainly ask."
The CDT's Greg Nojeim stated at the June 20 press briefing that the Congress should investigate before it legislates. He further argued that rather than approaching surveillance issue by issue on a committee by committee basis, the Congress should examine surveillance "holistically", by holding a joint inquiry that includes not only House and Senate judiciary committees, but also both the House and Senate intelligence committees.
Nojeim stated that the administration's proposal for amending the FISA "is about expanding warrantless surveillance" and "writing judges out of the process". Instead, he praised S 1114 [LOC | WW], the "Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007", introduced on April 16, 2007, Sen. Feinstein and Sen. Specter.
Supreme Court Rules in Tellabs v. Makor
6/21. The Supreme Court issued its opinion [33 pages in PDF] in Tellabs v. Makor, a case regarding the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA). The 106th Congress passed the PSLRA, which was Public Law No. 104-67, and is codified at 15 U.S.C. § 78u-4 and § 78u-5, to insulate defendants, and especially information and biotech companies, from abusive class action law suits. The PSLRA creates both a safe harbor for forward looking statements, and a heightened pleading requirement. Plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." See, 15 U.S.C. § 78u-4(b)(2). However, this language is vague, and its meaning has perplexed lower courts. This opinion, written by Justice Ruth Ginsberg, vacates and remands to the Court of Appeals. It reduces the uncertainty regarding the pleading standard. The opinion will make it harder for plaintiffs' class action lawyers' complaints to survive Rule 12(b)(6) motions to dismiss. Justice Antonin Scalia indicated at oral argument, and in his concurring opinion, that he favored a stricter pleading standard. This case is Tellabs, Inc. and Richard Notebaert v. Makor Issues & Rights, Ltd., et al., Sup. Ct. No. 06-484, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-1687. See also, Supreme Court docket. TLJ intends to publish a more detailed story in a forthcoming edition.
Senate Judiciary Committee Amends Patent Reform Act
6/21. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved, by unanimous consent, an amendment [51 pages in PDF] in the nature of a complete substitute to S 1145 [LOC | WW], the "Patent Reform Act of 2007". However, the SJC did not consider the bill further. The SJC did not consider any amendments to the bill as amended. Nor did the SJC approve the bill as amended. Further consideration of S 1145 is on the agenda for the SJC's next executive business meeting on Thursday, June 28, 2007. TLJ intends to publish a more detailed summary of this amendment in a forthcoming edition.
ITIF Releases Report on IT Related Unfair Trade Practices
6/21. The Information Technology and Innovation Foundation (ITIF) released a report [41 pages in PDF] titled "The Rise of the New Mercantilists: Unfair Trade Practices in the Innovation Economy". The authors are the ITIF's Robert Atkinson and Julie Hedlund. See also, summary.
The report states that "many nations" are "erecting a whole host of unfair and protectionist policies focused on systematically disadvantaging foreign, including U.S., companies in global competition". These protectionist policies include "raising the relative price of foreign IT products and services by applying tariffs, taxes, subsidies, and excessive antitrust enforcement; acquiring foreign IT products and services without paying for them through digital theft and forcing U.S. companies to give up their intellectual property; and/or blocking or limiting access of foreign companies to markets through standards, government procurement, data privacy and other policies."
The report offers several recommendations. First, it states that most of these nations are members of the World Trade Organization (WTO). Hence, it argues that the "administration should vigorously and unequivocally enforce other nations' IT trade commitments under the WTO."
It also recommends that the Congress increase the appropriation for the Office of the U.S. Trade Representative (OUSTR), and that the OUSTR "should include the elimination of IT-based trade distortions among several important priorities when negotiating new bilateral trade agreements".
It also suggests that "Congress should encourage companies to build WTO cases by allowing them to take a 25 percent tax credit for expenditures related to bringing WTO cases".
The report also identifies some of the major IT protectionists, and their practices. It lists rampant intellectual property theft in the People's Republic of China (PRC) and Russia. It also states that the PRC "Developed a wireless encryption standard (the Wireless Local Area Network Authentication and Privacy Infrastructure (WAPI) standard) without international collaboration in order to limit foreign IT companies’ access to its market and give its domestic companies a competitive advantage." (Parentheses in original.)
It also states that Korea unfairly subsidizes Hynix Semiconductor Inc., and that it "forced Microsoft to develop two different versions of its Windows software in order to give domestic producers of media players a competitive advantage".
It also states that France uses "copyright law to force U.S. companies to make their copyright software protection (digital rights management) interoperable". (Parentheses in original.)
People and Appointments
6/21. The Senate Judiciary Committee (SJC) held an executive business meeting. The agenda again included consideration of the nomination of Leslie Southwick to be a Judge of the U.S. Court of Appeals (5thCir). However, the SJC did not take up this item.
6/21. President Bush named John Emling to be Deputy Assistant to the President for Legislative Affairs. He was Special Assistant to the President for Legislative Affairs. See, White House release.
6/21. President Bush announced his intent to appoint Susan Allen, Ching-Wu Chu, Darleane Hoffman, Linda Katehi, and Rodney Brown to be members of the President's Committee on the National Medal of Science. All appointments are for a three year term expiring on December 31, 2009, except Brown, who would be appointed for the remainder of a three year term expiring on December 31, 2007, and for a three year term expiring on December 31, 2010. See, White House release.
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6/21. Attorney General Alberto Gonzales gave another speech in which he darkly portrayed the internet, and advocated that a data retention mandate be imposed upon internet service providers. He described cyberspace as a "threat posed to our children". He continued that "We have heard time and time again from state and local investigators and prosecutors that investigations of these crimes would be greatly aided by increased data retention by Internet Service Providers. That’s why I asked a working group within the Department to look at this issue, and we're working hard on ways to remedy this problem. I appreciate your support on the issue of data retention; I hope we can continue to make significant strides in investigative practices in the future."
6/21. The European Union's (EU) Article 29 Data Protection Working Party issued a release [2 pages in PDF] regarding its meeting in Brussels, Belgium, on June 19 and 20, 2007. The release states that the group "continued its deliberations on the SWIFT case, issued a first report on investigations into the health insurance sector, adopted an important document on the definition of personal data, developed a common position on data protection and the rights of children, and engaged in a discussion on the transfer of passenger data to the US." The release also addresses Google's data retention periods for server logs. Article 29 is a reference to Data Protection Directive 95/46/EC. The full title of this advisory group is "Article 29 Working Party on the Protection of Individuals with regard to the Processing of Personal Data".