TLJ News from September 6-10, 2007

Wainstein Discusses FISA

9/10. Kenneth Wainstein, Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD) gave a speech in Washington DC regarding the Foreign Intelligence Surveillance Act (FISA).

He offered his interpretation of the history of the FISA. He also discussed S 1927 [LOC | WW], the "Protect America Act", the bill passed by the Congress last month, and signed into law by President Bush on August 5, 2007. It contains a six month sunset provision.

Wainstein stated that the FISA "was passed in 1978, and it created a regime of court approval for national security surveillances."

He continued that "Congress designed a judicial review process that would apply primarily to surveillance activities within the United States where privacy interests are the most pronounced and not to overseas surveillance where privacy interests are minimal or non-existent."

"Congress established this dichotomy by defining ``electronic surveillance创 by reference to the manner of the communication under surveillance -- by distinguishing between ``wire创 communications -- which included most of the local and domestic traffic in 1978 -- and ``radio创 communications -- which included most of the transoceanic traffic in that era."

He argued that "Based on the communications reality of that time, that dichotomy more or less accomplished the Congressional purpose, as it distinguished between domestic communications that generally fell within FISA and foreign international communications that generally did not. But, that finely-balanced distinction has eroded with the dramatic changes in communications technology in the 29 years since FISA was enacted. In that time, we've seen the migration of the majority of international communications from satellite transmission (which qualified as ``radio创 communications under the statute) over to fiber-optic cable (which is ``wire创 under the statute); and, as a result, we've seen the tipping of that careful balance in the FISA statute." (Parentheses in original.)

He said that as a result of the technological changes, "we had to subject more and more of our overseas collections to review by the FISA Court." Meanwhile, the U.S. faces "an increasing national security threat from international terrorism".

He asserted that these technological changes, and the increased threat from terrorism, lead to the passage of S 1927 last month.

Finally, he said that this bill made "clear that -- regardless of the type of communication being surveilled or the location where the surveillance takes place -- FISA does not apply when the surveillance is targeting persons outside the United States. It does apply -- and we have to get a court order -- when the communications are domestic or when we target someone in the U.S. But, when the target is truly foreign, when we're targeting someone in another country, we don抰 need to go through the FISA Court."

DOJ Seeks to Limit Public Access to PACER System

9/10. The Judicial Conference of the U.S.'s (JCUS) Court Administration and Case Management Committee published a notice in the Federal Register in which it requests comments regarding a proposal to end public access to unsealed plea agreements filed in criminal cases.

The notice provides an overview of the Public Access to Court Electronic Records (PACER) system for filing and accessing public court documents.

The notice states that "The Department of Justice has asked the Judicial Conference to restrict public Internet access to a specific type of document: Plea agreements in criminal cases".

The notice elaborates on the Department of Justice's (DOJ) argument. "The ease with which the public is able to both retrieve federal court case information from electronic case files and redistribute it electronically through the Internet has raised concerns about whether the Judiciary's policy of allowing access to all unsealed plea agreements provides a sufficient measure of safety for those defendants cooperating with law enforcement. Certain private parties or organizations have compiled lists setting forth names, locations, and descriptions of alleged cooperating witnesses and have posted them on the Internet."

In contrast, the 6th Amendment of the Constitution of the U.S. provides for "a speedy and public trial". The JCUS's notice also states that "The Judiciary has a long tradition -- rooted in both constitutional and common law principles -- of open access to public court records. Accordingly, all case file documents, unless sealed or otherwise subject to restricted access by statute or federal rule, have traditionally been available for public inspection and copying."

The PACER system already limits access to certain public records. For example, Social Security Numbers are redacted.

See, Federal Register, September 10, 2007, Vol. 72, No. 174, at Pages 51659-51660. The deadline to submit comments is 5:00 PM on October 26, 2007.

TLJ Disclosure. Electronic copies of plea agreements are one source used by Tech Law Journal to obtain information about the policies, activities and operations of the DOJ's Criminal Division, and especially its Computer Crimes and Intellectual Property Section (CCIPS), as well as about specific criminal prosecutions.

People and Appointments

9/10. The Senate confirmed William Osteen to be a Judge of the U.S. District Court (MDNC). See, Congressional Record, September 10, 2007, at Page S11353.

9/10. The Senate confirmed Martin Reidinger to be a Judge of the U.S. District Court (MDNC). See, Congressional Record, September 10, 2007, at Page S11353.

9/10. The Senate confirmed Janis Sammartino to be a Judge of the U.S. District Court (SDCal). See, Congressional Record, September 10, 2007, at Page S11353.

9/10. Barry Allen joined Providence Equity Partners (PEP). He was previously EVP of Operations at Qwest International. See, PEP release.

More News

9/10. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, sets the various effective dates for, and recites changes to, its rules of practice to conform them to certain amendments made to the regulations under the Patent Cooperation Treaty (PCT) that took effect on April 1, 2007. The USPTO notice states that these changes "result in the addition of a mechanism to the PCT system whereby applicants may request that the right to claim priority be restored in applications that meet certain requirements. In addition, these amendments provide a means for applicants to insert a missing portion of an international application without the loss of the international filing date. These amendments also clarify the circumstances and procedures under which the correction of an obvious mistake may be made in an international application. Finally, the Office is revising the search fee for international applications." See, Federal Register, September 10, 2007, Vol. 72, No. 174, at Pages 51559-51564.

House Approves Patent Reform Bill

9/7. The House amended and approved HR 1908 [LOC | WW] the "Patent Reform Act of 2007". The vote on final passage was 220-175. See, Roll Call No. 863. Democrats voted 160-58. Republicans voted 60-117. 37 members did not vote in this Friday afternoon roll call.

Rep. John Conyers (D-MI), the Chairman of the House Judiciary Committee (HJC), stated during floor debate that patent reform is necessary because of "the trolling situation", "unnecessary litigation", "abusive practices", and lawsuits with "nuisance value".

He also said that the U.S. needs to convert to a first inventor to file system.

Rep. Lamar Smith (R-TX), the ranking member of the HJC, stated that patent reform is necessary because "too many patents of questionable integrity have been approved" and "holders of these weak patents discovered a novel way to make money, not by commercializing the patents but by suing manufacturing companies whose operations might incorporate the patents".

Rep. Smith said that the result is "legalized extortion in which companies pay a lot of money to use suspect patents". He argued that this bill "will eliminate legal gamesmanship from the current system that rewards lawsuit abuses".

The House approved Rep. Conyers' manager's amendment [19 pages in PDF] to the bill as reported by the HJC. The vote was 263-136. See, Roll Call No. 862.

The House approved by voice vote Rep. Darrell Issa's (R-CA) amendment [2 pages in PDF] that permits patent applicants to delay publication until the later of (1) three months after a second U.S. Patent and Trademark Office (USPTO) action or (2) 18 months after the filing date.

The House approved by voice vote Rep. Issa's amendment [PDF] regarding USPTO authority to write regulations, and legislative authority to veto regulations.

The House approved by voice vote Rep. Mike Pence's (R-IN) amendment [2 pages in PDF] regarding prohibiting post grant reviews based upon best mode. That is, the HJC version of the bill retained the best mode as a specifications requirement for obtaining a patent, but provided that best mode could not be used as a legal defense to infringement in patent litigation. (See also, Rep. Pence's July 18, 2007, amendment [2 pages in PDF] removing best mode as a litigation defense.) The floor amendment approved on September 7 provides that best mode cannot serve as the basis for a post grant review proceeding.

The House approved by voice vote Rep. Sheila Lee's (D-TX) amendment [4 pages in PDF] regarding conducting a study of patent damage awards.

No other amendments were made in order by the rule for consideration of the bill that was adopted by the House Rules Committee (HRC) on September 6, 2007, and approved by the full House on September 7.

More News

9/7. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Federal Communications Commission (FCC) published a notice in the Federal Register that announces the creation an advisory committee titled "Joint Advisory Committee on Communications Capabilities of Emergency Medical and Public Health Care Facilities". The notice also asserts that the "NTIA and FCC are requesting nominations" for members of this advisory committee. However, the notice also states that nominations are due by September 12, 2007. The notice also states that this advisory committee will submit a report to the Congress by February 4, 2008, "on the communications capabilities and needs of emergency medical and public health care facilities and the options to accommodate growth of communications services and to improve integration of communications systems used by such facilities". See, Federal Register, September 7, 2007, Vol. 72, No. 173, at Page 51418.

9/7. The Federal Communications Commission (FCC) announced that it has deleted one item from the agenda of its event titled "Open Meeting" scheduled for Tuesday, September 11, 2007. It announced the deletion of the item pertaining to Section 621 and video franchising. See, FCC notice [PDF]. See also, story titled "FCC Commissioners to Hold Next Monthly Event on September 11" in TLJ Daily E-Mail Alert No. 1,634, September 5, 2007.

9/7. President Bush announced his intent to nominate Todd Zinser to be Inspector General at the Department of Commerce. He is currently Deputy Inspector General of the Department of Transportation. If confirmed by the Senate, he would replace Johnnie Frazier. See also, story titled "House Commerce Committee Leaders Write Gutierrez about Alleged Misconduct in Department of Commerce OIG" in TLJ Daily E-Mail Alert No. 1,572, May 1, 2007.

Antitrust Division Opposes Network Neutrality

9/6. The Department of Justice's (DOJ) Antitrust Division filed a comment with the Federal Communications Commission (FCC) in response to a Notice of Inquiry (NOI) regarding broadband practices.

Thomas BarnettThomas Barnett (at left), the Assistant Attorney General in charge of the Antitrust Division, stated in a release that "Consumers and the economy are benefitting from the innovative and dynamic nature of the Internet ... Regulators should be careful not to impose regulations that could limit consumer choice and investment in broadband facilities."

While Barnett's name is listed a the bottom of the comment, it is signed by Nancy Goodman, Chief of the Antitrust Division's Telecommunications & Media Enforcement Section.

The DPJ wrote that "The FCC should be highly skeptical of calls to substitute special economic regulation of the Internet for free and open competition enforced by the antitrust laws. Marketplace restrictions proposed by some proponents of "net neutrality" could in fact prevent, rather than promote, optimal investment and innovation in the Internet, with significant negative effects for the economy and consumers."

It added that "free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints.

The comments argues that "types of conduct that some proponents of regulation seek to prohibit -- e.g., the prioritization of certain content and content providers (such as streaming video and other latency-sensitive content), offering of premium services and different levels of quality of service, preferential treatment of certain content, and vertical integration--in many instances actually may be procompetitive. A blanket prohibition on such conduct would likely result in significant marketplace distortion." (Parentheses in original.)

For example, "Precluding broadband providers from charging fees for priority service could shift the entire burden of implementing costly network expansions and improvements onto consumers. Because the average consumer may be unwilling or unable to pay significantly more for access to the Internet in order to ensure smooth delivery to consumers demanding bandwidth-intensive and latency-sensitive content, critical network expansion and improvement may be significantly reduced or delayed."

This proceeding is titled "In the Matter of Broadband Industry Practices" and numbered WC Docket No. 07-52.

On August 21, 2007, Eric Schmidt, Chairman and CEO of Google, spoke at the Progress & Freedom Foundation's (PFF) Aspen Summit. He spoke, and answered questions, about network neutrality. The PFF later published a transcript [19 pages in PDF].

Also, on August 30, 2007, the Pacific Research Institute (PRI) released a report [40 pages in PDF] titled "Net Gains or Net Loses: The Network Neutrality Debate and the Future of the Internet". The author is the PRI's Lloyd Billingsley. See also, PRI release.

Rep. Thompson Requests Moratorium on Domestic Use of Spy Satellites

9/6. The House Homeland Security Committee (HHSC) held a hearing titled "Turning Spy Satellites on the Homeland: the Privacy and Civil Liberties Implications of the National Applications Office".

After the hearing, Rep. Bennie Thompson (D-MS), the Chairman of the HHSC, sent a letter to Michael Chertoff, the Secretary of Homeland Security, requesting "a moratorium on the program until the many Constitutional, legal and organizational questions it raises are answered".

The letter was also signed by Rep. Jane Harman (D-CA), the Chairman of the HHSC's Subcommittee on Intelligence, Information Sharing, & Terrorism Risk Assessment, and Rep. Christopher Carney (D-PA), the Chairman of the HHSC's Subcommittee on Management, Investigations & Oversight.

The three wrote that "Today's testimony made clear that there is effectively no legal framework governing the domestic use of satellite imagery for the various purposes envisioned by the Department. Without this legal framework, the Department runs the risk of creating a program that -- while well-intended -- could be misused and violate Americans' Constitutional rights. The Department's failure to include its Privacy Officer and the Civil Rights and Civil Liberties Officer before this July, almost two years after planning for the NAO began, only heightens our sense of concern. Privacy and civil liberties simply cannot remain an afterthought at the Department."

The three also asked the DHS to provide the HHSC with "the written legal framework under which the NAO will operate, the standard operating procedures (SOPs) for the NAO -- particularly those SOPs that will be used for requests by State, local, and tribal law enforcement, the privacy and civil liberties safeguards that will accompany any use of satellite imagery, and an analysis of how the program conforms with Posse Comitatus."

They concluded that "The use of geospatial information from military intelligence satellites may turn out to be a valuable tool in protecting the homeland. But until the Committee receives those written documents and has had a full opportunity to review them, offer comments, and help shape appropriate procedures and protocols, we cannot and will not support the expanded use of satellite imagery by the NAO."

Rep. Thompson wrote in his opening statement [PDF] that the HHSC did not like being "left in the dark" about this NAO program until August of 2007. He also criticized the DHS for not involving privacy and civil liberties personnel in the DHS's policy making process.

Charles Allen (DHS Chief Intelligence Officer) wrote in his prepared testimony [4 pages in PDF] that "overhead imagery from satellites -- have been used for decades, lawfully and appropriately, to support a variety of domestic uses by the US government's scientific, law enforcement and security agencies".

Hugo Teufel (DHS Chief Privacy Officer) wrote in his prepared testimony [7 pages in PDF] that "we will continue to identify privacy risks and fashion protections to mitigate or eliminate those risks".

Dan Sutherland (DHS Civil Rights and Civil Liberties Officer) wrote in his prepared testimony [9 pages in PDF] that "the NAO is creating important procedural safeguards to protect civil liberties".

Lisa Graves (Center for National Security Studies) wrote in her prepared testimony [10 pages in PDF] that the NAO potentially involves far more that just use of military satellites for taking pictures.

She said that the NAO could involve Department of Defense and National Security Agency (NSA) advanced radar, electrooptical sensors, infrared (including spectral) sensors, geophysical measures such as acoustics, and materials sensing, processing, and exploitation systems. It could include both still photography and video recording. It could also include signals intelligence, including electronic surveillance, eavesdropping, and wiretapping.

While the DHS has not detailed the likely activities and operations of the NAO, the DHS's Allen asserted that "the NAO will have no relationship or interaction with either the FISA or the Terrorist Surveillance Programs".

4th Amendment Searches and Seizures. One possible limitation upon law enforcement use of satellite imagery is the 4th Amendment of the Constitution's requirement that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." See, Bill of Rights.

While there is no Supreme Court of the U.S (SCUS) precedent on application of the 4th Amendment's warrant requirement to police use of satellites, the Court has ruled that terrestrial thermal imaging of a home to detect lamps used for growing marijuana constitutes a search within the meaning of the Fourth Amendment. See, June 11, 2001, SCUS opinion in Kyllo v. United States, 533 U.S. 27, and story titled "Supreme Court Opines on Searches" in TLJ Daily E-Mail Alert No. 206, June 12, 2001.

Gus Coldebella, the acting General Counsel of the DHS, was invited to testify at the September 6 hearing, but declined.

See, story titled "Rep. Thompson Writes Chertoff Regarding Satellite Surveillance" in TLJ Daily E-Mail Alert No. 1,627, August 23, 2007.

FCC Publishes Notice Regarding Engineers at FCC

9/6. The Federal Communications Commission (FCC) asserted in a release [PDF] that it seeks "applications from engineering school graduates with superior academic credentials and an interest in communications engineering for its 2007 Engineer-in-Training (EIT) Program".

The FCC's release, and the associated vacancy announcement (DEU-EIT-2007-0003), set a very short deadline for applications -- September 21, 2007.

Also, while high percentages of degrees awarded by U.S. universities in IT related engineering fields are awarded to non-U.S. citizens, the FCC restricts these positions to U.S. citizens.

Moreover, the positions advertised by the FCC are both low level, either GS-855-5, 7, or 9, and low pay, with annual salaries starting at $32,755 per year.

The FCC is an agency comprised of, and run by, communications lawyers. There is also a high turnover rate, with attorneys coming from, and going to, regulated companies, trade groups, and the law firms that represent them.

The FCC has not sought, and does not possess, significant in house expertise in either new and emerging information technologies or economic analysis. The FCC is reliant upon information provided to it by outside entities, usually regulated companies and their representatives, regarding IT and economic analysis.

1st Circuit Rules Against Maine and New Hampshire PUCs in 271 Case

9/6. The U.S. Court of Appeals (1stCir) issued its opinion in Verizon v. Maine PUC and Verizon v. New Hampshire PUC, a pair of cases involving Section 271 and state regulation of Regional Bell Operating Companies (RBOCs).

These two consolidated appeals pertain to Verizon New England's entry into the long distance markets in the states of Maine and New Hampshire following the issuance of approvals by the Federal Communications Commission (FCC) pursuant to 47 U.S.C.  271.

However, both the Maine Public Utilities Commission (MPUC) and the New Hampshire Public Utilities Commission (NHPUC) insisted that Verizon continue to provide disputed network elements and do so at TELRIC pricing.

Verizon filed complaint in the U.S. District Court (DMaine) against the Maine PUC, and a second complaint in the U.S. District Court (DNH) against the NHPUC. The Maine court ruled for the MPUC, and the New Hampshire court ruled for Verizon. Verizon appealed the Maine court's judgment, and the NHPUC appealed the New Hampshire court's judgment. The Court of Appeals consolidated the two appeals.

The Court of Appeals held for Verizon, and therefore vacated the judgment of the Maine court, and affirmed the judgment of the New Hampshire court.

The Court of Appeals held that "neither state agency may require elements that the FCC has delisted and are not enumerated in section 271 nor require that section 271 elements be offered under TELRIC pricing that the FCC has explicitly rejected."

It added that "As to line sharing and dark fiber, the matter should be resolved after the FCC's views have been solicited."

Scott Angstreich and Kelly Dunbar of the Washington DC law firm of Kellogg Huber represented Verizon.

This case two consolidated appeals, Verizon New England, Inc. v. Maine Public Utilities Commission, Stephen Diamond, Sharon Reishus, and Kurt Adams, U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 06-2151, an appeal from the U.S. District Court for the District of Maine, Judge Gene Carter presiding, and Verizon New England, Inc. v. New Hampshire Public Utilities Commission, Thomas Getz, Graham Morrison, and Michael Harrington, App. Ct. No. 06-2429, an Appeal from the U.S. District Court for the District of New Hampshire, Judge Paul Barbadoro presiding. Judge Boudin wrote the opinion of the Court of Appeals, in which Judges Lynch and Lipez joined.

Keisler to Resign from DOJ

9/6. Peter Keisler, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Division, will resign, effective September 21, 2007. He has worked at the DOJ since June of 2002. He was sworn in as head of the Civil Division on July 1, 2003. See, DOJ release.

At the DOJ he has overseen litigation arising out of the various government wiretap, electronic surveillance, and data collection programs. He also argued, and lost, the Hamdan case in the Court of Appeals.

Peter KeislerKeisler (at left) remains President Bush's nominee for Judge of the U.S. Court of Appeals (DCCir). President Bush announced the nomination just before the Congress left town for the Independence Day recess in 2006. The Senate Judiciary Committee (SJC) held a hearing on August 1, 2006. The SJC has taken no further action on this nomination.

Keisler has attributes that makes him a candidate for appointment to the DC Circuit, or the Supreme Court, by any conservative Republican President, and a pariah to liberal interest groups -- posh schools, clerkships with conservative icons Bork and Kennedy, a stint in Reagan's White House Counsel's office, loyal service in the second Bush administration, a long and active membership in the Federalist Society, a beautiful family, and almost no record of published speeches, opinion pieces or law review articles.

Keisler is also a telecommunications lawyer. In 1989 he joined the law firm of Sidley Austin, where he became one of the leading attorneys for AT&T, both in litigation, and in proceedings before the Federal Communications Commission (FCC).

Recent speeches, testimony, and memoranda of DOJ officials that touch on Presidential powers have often cited former Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube, Co. v. Sawyer, which is reported at 343 U.S. 579 (1952).

Perhaps Bush's nomination of Keisler is similar to Roosevelt's nomination of Jackson. At the time of their nominations, both were talented lawyers, with years of high level service in the DOJ, representing often controversial positions of their Presidents in matters related to unconventional warfare. Keisler has defended Bush's policies in the war on terror. Jackson defended Roosevelt's support for the British before the U.S. entered that war.

Keisler declined to answer questions from TLJ after his SJC confirmation hearing.

People and Appointments

9/6. President Bush named Joel Scanlon to be Deputy Assistant to the President and Director of Strategic Initiatives. He was previously an Associate Director in the White House Office of Strategic Initiatives. See, White House release.

9/6. President Bush named Dianna Campagna to be Special Assistant to the President and Executive Secretary for the Office of the Counsel to the President. She previously worked for the National Legal Center for the Public Interest. See, White House release.

9/6. President Bush withdrew his nomination of Mary Donohue to be a Judge of the U.S. District Court (NDNY). See, Congressional Record, September 6, 2007, at Page S11239.

9/6. Paul Margie joined the law firm of Harris Wiltshire & Grannis. He was previously Senior Director for Technology Partnerships at the United Nations Foundation. Before that, he was a Legal Advisor to FCC Commissioner Michael Copps. Before that, he worked Sen. Jay Rockefeller (D-WV). See, HWG release [PDF].

More News

9/6. Kyle McSlarrow, head of the National Cable & Telecommunications Association (NCTA) sent a letter [PDF] to the leaders of the House Commerce Committee (HCC), and a letter to the leaders of the Senate Commerce Committee, in which he stated that the NCTA's members "will launch this week a substantial and multifaceted consumer education campaign designed to reach all cable customers and millions of non-cable viewers with useful information" about the transition to digital television. He added that "we are making a substantial commitment to air $200 million of English and Spanish language advertising on cable and broadcast television stations and networks. That advertising campaign will start this week and will not conclude until February 2009." Rep. John Dingell (D-MI), Chairman of the HCC, responded in a release that "Ensuring a successful transition must be one of our nation's top priorities, and it is incumbent upon the government, industry and the public interest community to educate consumers about how to be prepared. Cable operators are to be commended for being at the forefront of that effort, and I would hope to see others follow their lead in short order." See also, Consumer Electronics Association (CEA) release.

9/6. Attorney General Alberto Gonzales gave a speech in New London, Connecticut, regarding terrorism. He compared U.S. counterterrorism tools to those of other countries, including regulation of internet speech. He said that "our allies have adopted counterterrorism tools that we have not adopted in the United States because doing so would abridge the civil liberties our Constitution protects. For example, speaking out in support of past terrorist acts is punishable in several European countries, including Italy, Spain, and France. And after the July 2005 terrorist attacks in London, the United Kingdom passed a law making it a crime to encourage terrorism, or to disseminate terrorist publications, or to post ``terrorist publications创 on the Internet. Laws like these could violate the First Amendment if adopted in the United States."

9/6. David Dominic Scali pled guilty in U.S. District Court (CDCal) to one count of wire fraud in connection with his impersonation of an intellectual property lawyer, and threats to file complaint alleging trademark infringement against the owners of internet domain names, in order to fraudulently obtain those domains for his own financial gain. See, DOJ release [PDF].

Go to News from September 1-5, 2007.