TLJ News from March 1-5, 2008

House Delays Consideration of FISA Reform Bill

3/5. The House Democratic leadership announced on February 29, 2008, the "Possible consideration of Legislation Regarding the Foreign Intelligence Surveillance Act" on the House floor during the week of March 3. See, Rep. Steny Hoyer's schedule for week of March 3. The House Democratic leadership subsequently removed this item from the agenda for the week.

Rep. Roy Blunt (R-MO), the Republican Whip, stated in a release on March 5 that "Since the Protect America Act expired on February 16th, the majority has allowed a dimmer switch to gradually darken our nationís ability to track and monitor terrorists abroad. It has now been almost three weeks since our intelligence agents have had the tools they needed to do their job."

Rep. Blunt added that "The Democratic Leadership's delays are as unnecessary as they are unacceptable. The solution is easy and a majority of the House agrees. The time for negotiations has come and gone -- the overwhelming Senate vote was just one clear signal. If their bill was brought to a vote, it would pass and become law -- finally allowing our nation to track the terrorists who wish to bring us harm, without having to cut through bureaucratic red tape."

President Bush and Rep. Blunt want the House to pass S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", which the Senate passed on February 12, 2008.

It provides, among other things, immunity in the many civil lawsuits that have been filed against communications companies in connection with their cooperation with the federal government in surveillance and search operations. See also, story titled "Senate Rejects Efforts to Remove Immunity Language from FISA Bill" in TLJ Daily E-Mail Alert No. 1,716, February 12, 2008.

The House passed its FISA reform bill on November 15, 2007. It is HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act". The House Democratic leadership, which controls the agenda, will not schedule a vote on S 2248.

On February 29, 2008, Ed Black, head of the Computer and Communications Industry Association (CCIA), wrote in a letter [PDF] to members of the House that FISA reform legislation "should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact."

S 1927 [LOC | WW], the "Protect America Act", was enacted into law in August of 2007. However, it expired on February 16, 2008. It contained a retroactive immunity provision.

People and Appointments

3/5. President Bush nominated Neil Patel to be Assistant Secretary for Communications Information at the Department of Commerce, that is, head of the National Telecommunications and Information Administration (NTIA). Meredith Baker, the acting head of the NTIA, has announced her departure. The last confirmed head of the NTIA was John Kneuer. Patel is currently Assistant to the Vice President for Domestic and Economic Policy. Previously, he was Assistant General Counsel at UUNET Technologies. See, White House release. See also, statement [PDF] of FCC Chairman Kevin Martin praising Patel

More News

3/5. Rep. John Dingell (D-MI), Chairman of the House Commerce Committee (HCC), and Rep. Ed Markey (D-MA), Chairman of the HCC's Subcommittee on Telecommunications and the Internet, sent a letter [3 pages in PDF] to Meredith Baker (acting head of the NTIA), Kevin Martin (Chairman of the FCC), and the other FCC Commissioners regarding the funding for the DTV converter box program. The two expressed concern about whether federal funding for the coupon program will be sufficient to pay for all coupon requests. They requested that "on the dates of March 31, September 30, and December 31 of this year, you inform us in writing regarding whether you anticipate that additional funds will be needed for the TV converter box program in order to accommodate coupon requests from any eligible household".


Supreme Court News

3/3. The Supreme Court denied certiorari in Talk America v. Douglas. See, Orders List [9 pages in PDF] at page 2. This lets stand the July 18, 2007, opinion [13 pages in PDF] of the U.S. Court of Appeals (9thCir). The Court of Appeals held that a telecommunications service provider can not enforce an arbitration clause that exists only in a revised copy of a service contract published in its web site, when the customer had no notice. See, story titled "9th Circuit Holds that Service Provider Cannot Unilaterally Change Contract by Publishing Amended Version in Web Site" in TLJ Daily E-Mail Alert No. 1,615, July 24, 2007. This case is Talk America, Inc. v. Joe Douglas, Supreme Court of the U.S., Sup. Ct. No. 07-719, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-75424. The Court of Appeals heard a petition for writ of mandamus to the U.S. District Court for the Central District of California, D.C. No. CV-06-03809-GAF. See also, Supreme Court docket.

3/3. The Supreme Court denied certiorari in American Telecom v. Lebanon. See, Orders List [9 pages in PDF] at page 2. This lets stand the August 29, 2007, opinion [6 pages in PDF] of the U.S. Court of Appeals (6thCir). The Court of Appeals held that a U.S. District Court lacked jurisdiction over the government of Lebanon in a telecom dispute. See, story titled "6th Circuit Addresses Jurisdiction Over Government of Lebanon in Telecom Dispute" in TLJ Daily E-Mail Alert No. 1,631, August 30, 2007. This case is American Telecom Company, LLC, et al. v. Republic of Lebanon, Supreme Court of the United States, Sup. Ct. No. 07-721, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 05-2408. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Michigan, at Detroit, D.C. No. 04-72596, Judge Nancy Edmonds presiding. Judge Batchelder wrote the opinion of the Court of Appeals, in which Judges Ryan and Sutton joined. See also, Supreme Court docket.

3/3. The Supreme Court denied certiorari in Mitsubishi Materials Silicon Corporation v. MEMC Electronics Materials. See Orders List [9 pages in PDF] at page 3. This lets stand the September 20, 2007, opinion [12 pages in PDF] of the U.S. Court of Appeals (FedCir). See also, TLJ story on the Court of Appeals' previous opinion in this proceeding, "Federal Circuit Addresses Inducement of Patent Infringement by Foreign Silicon Wafer Maker" in TLJ Daily E-Mail Alert No. 1,200, August 24, 2005. This case is Mitsubishi Materials Silicon Corporation, et al. v. MEMC Electronic Materials Inc., Supreme Court of the U.S., Sup. Ct. No. 07-936, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2006-1305 and 2006-1326. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of California, D.C. No. 4:01-CV-04925, Judge Saundra Armstrong presiding. Judge Schall wrote the opinion of the Court of Appeals, in which Judges Newman and Dyk joined. See also, Supreme Court docket.

People and Appointments

3/3. President Bush announced his intent to appoint Fran Townsend to be a member of the President's Intelligence Advisory Board (PIAB). See, White House release.


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