Bush and House Democrats Remain Deadlocked on FISA Reform

3/14. The House approved an amended version of HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act", by a vote of 213-197. See, Roll Call No. 145.

The House then commenced a two week recess. The Senate has also started its recess.

President Bush promised to veto the bill on Thursday, March 13. See, story titled "Bush Announces He Will Veto Latest House Democratic FISA Proposal" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008. Bush's staff repeated the veto promise after the House vote.

Bush demands that the House enact the Senate passed FISA reform bill. The Senate approved its bill, S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", on February 12 by a vote of 69-29. Twenty Senate Democrats voted for that bill. See, Roll Call No. 20

In contrast, the March 14 House vote was an almost straight party line vote. Republicans voted 0-185. Democrats voted 213-12.

The Democrats who voted against the bill are Rep. Dan Boren (D-OK), Rep. Mike Capuano (D-MA), Rep. Christopher Carney (D-PA), Rep. Jim Cooper (D-TN), Rep. Bob Filner (D-CA), Rep. Maurice Hinchey (D-NY), Rep. Tim Holden (D-PA), Rep. Dennis Kucinich (D-OH), Rep. Nick Lampson (D-TX), Rep. Jim McDermott (D-WA), Rep. Heath Shuler (D-NC), and Rep. Peter Welch (D-VT)

Some of the Democrats who voted against the bill are on the left of the House Democratic leadership on this issue, and oppose the bill on the basis that it gives the government too much authority and fails to protect the Fourth Amendment and privacy rights of Americans.

Some Democrats who voted against the bill represent districts that favored Bush in the 2004 election and/or that have a history of electing Republicans. These are Blue Dog Democrats (BDD) -- Boren, Carney, Cooper, Lampson and Shuler -- who have reason to fear that backing the Democratic leadership on this issue would give their Republican opponents in the next election a net vote gaining campaign issue.

Rep. Lincoln Davis (D-TN), another BDD, voted present.

Rep. Steny Hoyer stated that "This bill is a compromise -- taking the strengths of the Senate-passed bill and marrying them with the best of the RESTORE Act, which this House passed last November."

He said that "this bill rejects the Administration's demand that Congress grant blanket, retroactive immunity to telecommunications companies that assisted with the President’s warrantless surveillance program".

He also noted that "this bill includes a sunset of December 31, 2009, so that we can revisit this critical national security legislation and implement lessons learned by the bipartisan Commission -- which is also proposed in this bill".

Sen. Patrick Leahy (D-VT), who voted against the Senate's bill, stated after the House vote that "It is a step forward, and a good bill. The Senate-passed legislation has a number of serious failings and does not adequately protect the privacy and civil liberties of Americans. The House bill adds several crucial protections without interfering in any way with this important new surveillance authority".

Tony Fratto, Bush's Deputy Press Secretary, issued a statement after the House vote. He wrote that "the House bill will be dead on arrival in the Senate and, in any event, would be vetoed by the President if it ever got to his desk".

Fratto explained that the House "took a significant step backward in defending our country against terrorism and passed a partisan bill that will please class-action trial lawyers at the expense of our national security. Their bill would make it easier for class-action trial lawyers to sue companies whose only "offense" is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11."

Fratto asserted that the House bill is "not a serious effort" and is "designed to give the House Democratic leadership cover for their failure to act responsibly".

The Center for Democracy and Technology (CDT) wrote a letter [PDF] dated March 12, 2008, that expresses and explains its support for House bill.

7th Circuit Applies Section 230 Immunity in Craigslist Case

3/14. The U.S. Court of Appeals (7thCir) issued its opinion [10 pages in PDF] in Chicago Lawyers v. Craigslist, a Section 230 interactive computer service immunity case. The Court of Appeals affirmed the summary judgment of the District Court for Craigslist on Section 230 grounds.

This opinion is consistent with Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), and its progeny. See, opinion and TLJ summary of Zeran v. AOL. This arguably leaves the 9th Circuit's recent opinion [23 pages in PDF] in FHCSFV v. Roommates.com isolated and in conflict with other circuits. See, story titled "9th Circuit Holds Roommates.com May be Liable for Speech of Users" in TLJ Daily E-Mail Alert No. 1,581, May 15, 2007.

See, full story.

Amicus Groups Argue that Significant Purpose Standard for FISA Surveillance Orders Violates 4th Amendment

3/14. The Electronic Frontier Foundation (EFF), Center for Democracy & Technology (CDT) and other groups filed an amicus curiae brief [PDF] with the U.S. Court of Appeals (9thCir) in Brandon Mayfield v. USA, a case involving abuse of the Foreign Intelligence Surveillance Act (FISA) powers by the federal government.

The District Court held in its September 26, 2007, opinion [44 pages in PDF] that the FISA, at 50 U.S.C. § 1804 and 50 U.S.C. § 1823, violates the 4th Amendment of the Constitution. See, story titled "District Court Holds Parts of FISA Violate 4th Amendment" in TLJ Daily E-Mail Alert No. 1,646, September 26, 2007.

The 4th Amendment provides in full 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."

In so doing, the District Court rejected the reasoning of the Foreign Intelligence Surveillance Court of Review (FISCR) in In re Sealed Case. See, opinion in In re: Sealed Case No. 02-001, 310 F.3d 717 (F.I.S. Ct. Rev. 2002).

Section 218 of the USA PATRIOT Act amended Section 1804 of Title 50 to provide that "(a) Each application for an order approving electronic surveillance ... shall include ... (7) a certification ... (B) that a significant purpose of the surveillance is to obtain foreign intelligence information". Previously, the standard was "primary purpose".

Section 218 of the PATRIOT Act also amended Section 1823 of Title 50 to provide that "significant purpose" is also the standard for FISA orders for "a physical search".

The USA PATRIOT Act is the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was enacted 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.

These changes enable criminal prosecutors to obtain FISA search and surveillance orders, and to use evidence obtained thereby in domestic cases, provided that they can articulate a foreign intelligence or terrorism connection.

At the time the PATRIOT Act was being considered in late 2001 critics of Section 218 argued that it could be abused. That is, they argued that FISA orders would be used to collect information in criminal cases, but without the procedural safeguards that are associated with Title III warrants.

Title III is a reference to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. It is codified at Chapter 119 of Title 18 of the U.S. Code, 18 U.S.C. §§ 2510-2522. It requires, among other things, probable cause, a warrant, and notice. These are not required for FISA orders.

The EFF/CDT brief states that "The Mayfield case highlights the dangers of allowing the Executive branch to rely on foreign intelligence procedures where its primary intent is criminal prosecution. Brandon Mayfield -- a U.S. citizen, a former Army officer with an honorable discharge, and a practicing Oregon lawyer -- found himself, his wife and their three children under extraordinarily intrusive surveillance by federal agents. The agents secretly entered their family home, recorded their most intimate conversations, and followed them to and from the children's school, Mr. Mayfield's law office, family activities, and their place of worship. The FBI secretly and repeatedly entered Mr. Mayfield's home and law office, inspected, copied, and seized personal documents, legal files, computer hard drives, even the children’s homework. On one occasion one of the Mayfield children cowered in a bedroom closet while federal agents searched the home."

The amicus brief continues that "The government's primary -- perhaps even exclusive -- purpose in monitoring the Mayfield family was to criminally prosecute Mr. Mayfield. Did the FBI have criminal probable cause? No. Did the FBI have a traditional criminal warrant? No. Did the FBI ever give notice? No. The Mayfields are not alone. Today the government claims the unprecedented right to subject any number of Americans to secret and invasive searches of their homes, offices, personal belongings, telephone calls, and e-mails, without criminal probable cause, notice, or a traditional criminal warrant."

The brief argues that "The FISA's less protective standards are plainly not constitutional with respect to investigations whose primary purpose is to gather evidence of criminal activity."

This case is Mayfield et al. v. USA, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-35865, an appeal from the U.S. District Court for the District of Oregon, D.C. No. 04-1427-AA, Judge Ann Aiken presiding.

People and Appointments

3/14. President George Bush announced his intent to nominate Lily Claffee to be General Counsel of the Department of Commerce (DOC). Claffee, formerly Fu, is currently Deputy General Counsel of the Department of the Treasury (DOT). Before that, she was Deputy Associate Attorney General at the Department of Justice (DOJ). And before that, she worked for the law firm of Mayer Brown. See, White House release.

More News

3/14. Ben Bernanke, Chairman of the Federal Reserve Board (FRB) gave a speech in Washington DC titled "Fostering Sustainable Homeownership". He stated, among other things, that "advances in information technology" and other developments "have significantly increased access to mortgage credit".

3/14. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (May 13, 2008) for, its changes to its Rules of Practice in Trademark Cases to require a description of the mark in all applications to register a mark not in standard characters. See, Federal Register, March 14, 2008, Vol. 73, No. 51, at Pages 13780-13784.

FTC Issues Consent Order Regarding Restrictions on Web Publication of Real Estate Listing Agreements

3/13. The Federal Trade Commission (FTC) filed an administrative complaint [5 pages in PDF] against Multiple Listing Service, Inc. (MLS Inc.), a Milwaukee, Wisconsin area group of real estate professionals, alleging violation of Section 5(a) of the FTC Act, which is codified at 15 U.S.C. § 45(a), in connection with the MLS Inc.'s adoption of a rule that limits the publication of certain listing agreements for the southeast Wisconsin region on real estate web sites. The MLS Inc. and FTC simultaneous settled.

The complaint alleges that "MLS, Inc. adopted a rule that limits the publication of certain listing agreements on popular internet real estate websites, in a manner that limits the ability of real estate brokers to use Exclusive Agency Listings to offer unbundled brokerage services at a lower price compared to the full service package. This rule deprives such brokers and the home sellers they represent of a significant benefit afforded by the MLS."

It adds that "Consumers are harmed by this rule because it inhibits a lower cost option to sellers and increases search costs to buyers."

The FTC and MLS entered into an Agreement Containing Consent Order, in which MLS admitted no wrongdoing. The FTC released its Decision and Order [6 pages in PDF].

It provides the MLS, Inc. "shall forthwith cease and desist from adopting or enforcing any policy, rule, practice or agreement of MLS, Inc. to deny, restrict or interfere with the ability of Participants to enter into Exclusive Agency Listings or other lawful listing agreements with the sellers of properties, including but not limited to any policy, rule, practice or agreement to", among other things, "prevent Participants from publishing information concerning listings offered pursuant to Exclusive Agency Listings on Approved Websites".

See also, March 13, 2008, letter [PDF] from the FTC to the National Association of Realtors (NAR), which previously submitted a comment for the FTC's record.

Bush Announces He Will Veto Latest House Democratic FISA Proposal

3/13. President Bush gave a speech at the White House on Thursday, March 13, 2008, in which he said he would veto the latest FISA reform advanced by House Democratic leaders. The House postponed its consideration of this bill from Thursday to Friday, March 14. Bush reasoned that the Democratic proposal fails to grant retroactive immunity to companies that have cooperated with the government.

Bush said that "This week House leaders are finally bringing legislation to the floor. Unfortunately, instead of holding a vote on the good bipartisan bill that passed the United States Senate, they introduced a partisan bill that would undermine America's security. This bill is unwise. The House leaders know that the Senate will not pass it. And even if the Senate did pass it, they know I will veto it."

The bill [2.5 MB PDF file] that President Bush opposes is the House Democrats' latest version of HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act". The House passed an previous version on November 15, 2007. The bill that the President supports is S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", which the Senate passed on February 12.

Bush explained that one reason for his veto would be its lack of retroactive immunity. He said that "the House bill fails to provide liability protection to companies believed to have assisted in protecting our nation after the 9/11 attacks. Instead, the House bill would make matters even worse by allowing litigation to continue for years. In fact, House leaders simply adopted the position that class action trial lawyers are taking in the multi-billion-dollar lawsuits they have filed."

He continued that "This litigation would undermine the private sector's willingness to cooperate with the intelligence community, cooperation that is absolutely essential to protecting our country from harm. This litigation would require the disclosure of state secrets that could lead to the public release of highly classified information that our enemies could use against us. And this litigation would be unfair, because any companies that assisted us after 9/11 were assured by our government that their cooperation was legal and necessary."

He also said that another reason for vetoing the bill would its language regarding court approval of government activities. He said that "the House bill could reopen dangerous intelligence gaps by putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists." He added that the latest bill "would extend protections we enjoy as Americans to foreign terrorists overseas. It would cause us to lose vital intelligence on terrorist threats".

Third, President Bush complained that the Democrat's bill would "establish yet another commission to examine past intelligence activities". He said that the House and Senate Judiciary and Intelligence Committees already provide oversight, and that "Congress should stop playing politics with the past and focus on helping us prevent terrorist attacks in the future."

The House held a closed session on Thursday night, March 13, at which it reviewed information regarding government surveillance.

Rep. Steny Hoyer (D-MD), the House Majority Leader, wrote in a statement afterwards that "I did not hear any new information tonight that dissuades me from my very strong belief that the FISA bill House Democrats have produced -- and which the House will vote on tomorrow -- is a reasonable, thoughtful, appropriate piece of legislation that will ensure that the intelligence community has all the tools it needs to protect our nation, while also respecting the Constitutional protections that Americans rightfully feel are so important. Tomorrow, I will urge members on both sides of the aisle to vote for this legislation."

Rep. John Conyers (D-MI), Chairman of the House Judiciary Committee (HJC), wrote in a statement that "The more my colleagues know, the less they believe this administration's rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information members receive about this administration's actions in the area of warrantless surveillance, the more likely they are to reject the administration's scare tactics and threats. My colleagues who joined me in the hearings and reviewed the administration's documents have walked away with an inescapable conclusion: the administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies."

On March 13, 2008, the U.S. Chamber of Commerce sent a letter to members of the House urging opposition to the latest Democratic bill.

It wrote that the Chamber "strongly supports the Senate version of H.R. 3773, the “FISA Amendments Act of 2008,” passed by a bipartisan vote of 69-29, and urges you to oppose the anticipated House amendment to the legislation. The House amendment would, among other things, eliminate provisions providing immunity for telecommunications providers. The Chamber believes that the immunity provision included in the Senate-passed bill provides necessary, appropriate, and targeted relief commensurate with the threat to national security that arose in the aftermath of the September 11 attacks."

DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters

3/13. The Department of Justice's (DOJ) Office of the Inspector General (OIG) released a report [187 pages in PDF] titled "A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006".

On March 9, 2007, the DOJ's OIG released a report [30 MB in PDF] titled "A Review of the Federal Bureau of Investigation's Use of National Security Letters", and a second report [10 MB in PDF] titled "A Review of the Federal Bureau of Investigation’s Use of Section 215 Order for Business Records". See also, story titled "DOJ IG Releases Reports on Use of NSLs and Section 215 Authority" in TLJ Daily E-Mail Alert No. 1,551, March 13, 2007. That report covered the use of NSLs in 2003 through 2005.

The purpose of the just released report is to address the use of NSLs in 2006, and to "describe and assess the response by the FBI and the Department to the serious misuse of NSL authorities that our first report described".

The report finds violations of NSL authority in 2006 similar to the violations reported for 2003-2005 in the 2007 report. However, it should be noted that in 2006 the FBI had not yet received the 2007 report.

See, full story.

GAO Releases Report on FCC Enforcement Actions

3/13. The Government Accountability Office (GAO) released a report [58 pages in PDF] titled "Telecommunications: FCC Has Made Some Progress in the Management of Its Enforcement Program but Faces Limitations, and Additional Actions Are Needed".

The FCC released an undated letter [108 pages in PDF] from Kris Monteith (at left), Chief of the FCC's Enforcement Bureau (EB), to the GAO in response to a draft of its report. She wrote that the "the GAO report contains several errors that detract from its utility".

Monteith also wrote that the FCC "is a proponent of strong enforcement action to protect consumers and to ensure" that the Communications Act is carried out.

The FCC's Consumer and Governmental Affairs Bureau (CGB) is also involved in handling complaints.

The GAO report states that based on the GAO's analysis of the EB's databases for 2003-2006, the EB "conducted about 46,000 investigations. These investigations were in response to complaints that the Enforcement Bureau received directly, complaints received by CGB, audits and inspections, and self-initiated inquiries. As of December 2006, the Enforcement Bureau had closed about 39,000 of the 46,000 investigations. Based on our analysis of FCC’s Enforcement Bureau's databases for 2003 through 2006, about 9 percent, or almost 3,400, of these investigations were closed with an enforcement action, and approximately 83 percent, or about 32,200, were closed with no enforcement."

Rep. John Dingell (D-MI), Chairman of the House Commerce Committee (HCC), the stated in a release that "When more than 80 percent of complaints investigated by the FCC are closed without any meaningful enforcement action, and it isn’t possible to determine why no action was taken, then it appears that the FCC has abdicated its duty to protect consumers."

He continued that "This GAO report clearly demonstrates why we cannot rely solely on the FCC to enforce complaints, and why it is important to have safeguards in place at both the federal and the state level, as is the case in my home state of Michigan."

Rep. Dingell concluded that the HCC "will exercise vigorous oversight to ensure that consumers have adequate protections and that the FCC performs its duties in an effective and timely manner."

The GAO report added that EB officials "told us that some investigations may be closed with no enforcement action for such reasons as insufficient information or a determination that no violation occurred."

The report also reflects that most of the complaints are related to either unsolicited calls and messages or billing and rates.

FCC Chairman Kevin Martin stated in a release that "I appreciate the GAO's examination of the FCC’s enforcement efforts and welcome its recommendations. Since I became Chairman, the Enforcement Bureau is responding to 100% of Consumer complaints. Additionally, under my Chairmanship, the Commission has collected a record amount of fines, forfeitures and consent decree payments."

People and Appointments

3/13. President Bush nominated Steven Agee to be a Judge of the U.S. Court of Appeals (4thCir). He is currently a member of the Supreme Court of Virginia. See, White House release. There are also three other persons who have been nominated, but not confirmed, to be Judges of this Court of Appeals: Robert Conrad, Steve Matthews, and Rod Rosenstein. The Senate Judiciary Committee (SJC) has not held hearings on any of these three. Sen. Patrick Leahy (D-VT), the Chairman of the SJC, gave a speech in the Senate on March 7, 2008, regarding the confirmation process. He asserted that "I have continued to move forward and sought to make progress" on judicial nominations. He blamed delays on Republicans, and added that Republicans held up many of former President Clinton's judicial nominations. He said that "The Republican Senate chose to stall consideration of circuit nominees and maintain vacancies during the Clinton administration in anticipation of a Republican presidency." Sen. Leahy did not concede that Democrats and Republicans pursue similar strategies.

3/13. Emilio Gonzalez announced his intent to resign as Director of U.S. Citizenship and Immigration Services (USCIS), effective April 18, 2008. See, Department of Homeland Security (DHS) release.

3/13. Danielle Yates will join the Computer & Communications Industry Association (CCIA) as Director of External Affairs on March 24, 2008. Heather Greenfield, who joined the CCIA in February, remains Director of Media Relations. Yates has long worked for the Internet Education Foundation (IEF), which is associated with the Center for Democracy and Technology (CDT). Greenfield was previously a reporter with the National Journal's Technology Daily, which ceased publishing in January. Ed Black is the head of the CCIA.

3/13. Jeff Murray joined the Nickles Group as Director, Legislative Affairs. He will focus on intellectual property, media and entertainment issues. He was legislative director for Rep. Tom Feeney (R-FL), a members of the House Judiciary Committee (HJC) and its Subcommittee on Courts, the Internet and Intellectual Property. Former Sen. Don Nickles (R-OK) is the head of the Nickles Group.

House May Consider FISA Bill

3/12. The House Rules Committee (HRC) reported HRes 1041, which "Provides for consideration of the Senate amendment to H.R. 3773", and a House amendment [2.5 MB PDF file] thereto. Rep. Steny Hoyer's (D-MD) schedule for the House for March 13, 2008, lists consideration of HR 3773, subject to this rule.

The House amendment would provide for prospective, but not retroactive, immunity for companies that provided assistance to the government.

The HRC summary of the House amendment states that it provides "prospective liability protection for telecommunications companies that provide lawful assistance to the government.  It addresses past activities under the President’s Terrorist Surveillance Program by freeing telephone companies to argue existing defenses before the court in pending lawsuits, notwithstanding the Government’s assertion of the state secrets doctrine".

The House amendment would also create a commission with subpoena power to investigate the government's use of FISA authority.

On March 12, 20 of the 23 Democrats, and none of the Republicans, on the House Judiciary Committee (HJC), signed a statement [6 pages in PDF] opposing granting retroactive immunity.

The wrote that "As a result of our review of classified as well as unclassified materials concerning the Administration's Terrorist Surveillance Program, we have concluded that blanket retroactive immunity for phone companies is not justified. However, we do recommend a course of action that would both permit the carriers the opportunity to defend themselves in court and also protect classified information -- by eliminating current legal barriers and authorizing relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate protections to carefully safeguard classified information. In addition, we recommend legislation to fill a current gap in liability protection for carriers, and to create a bipartisan commission to thoroughly investigate the legality of the warrantless surveillance program."

Rep. John Boehner (R-OH), the House Republican leader, stated in a release on March 11 that "This latest FISA proposal from House Majority leaders is dead on arrival. It would outsource critical national security decisions to unelected judges and trial lawyers. It would hand over valuable national security oversight to a new commission charged with handling matters which already fall within the responsibilities of the existing House Intelligence Committee. And it would leave patriotic third parties exposed to unfettered and costly lawsuits at the hands of trial lawyers who are counting on their allies in Congress to block real FISA modernization."

He added that "trial lawyers are dictating national security policies to this Democratic Congress. ... And it’s time for rank-and-file Democrats to demand that their leaders to put our national security first and allow an up-or-down vote on the bipartisan Senate FISA bill. This latest proposal from House Majority leaders is a sham, and it is clearly unacceptable to the U.S. Senate, the President, and the American people."

The Senate passed a bill on February 12, 2008, that Bush supports, S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007". The House passed a much different bill on November 15, 2007, that Bush vehemently opposes, HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act".

At the end of the week, the House commences a two week recess.

President Bush gave a speech on Wednesday evening, March 12, 2008. One of his topics was FISA reform legislation.

He said that "One of the things that we must do is to make sure that the hundreds of people that are out working for you every night to protect you have the tools they need. If the enemy, if the extremists who want to do America harm, if the radicals who want to kill again like they did before on our homeland are making phone calls into the United States of America, we need to know who they're calling, what they're saying and what they're planning."

He continued that "The Congress came together last year and passed the Protect America Act to give our professionals the tools they need. Unfortunately, that act expired. But the threat to the United States of America has not expired. Unfortunately, Democratic leaders in the House are continuing to block bipartisan legislation that would give our intelligence officials the tools they need to quickly and effectively monitor terrorist communications."

"And they are doing so despite the fact that legislation -- good legislation to give our professionals the tools passed the United States Senate by an overwhelming majority of 68 to 29. Instead of holding a vote on this bill that would pass the House of Representatives, House leaders have introduced a highly partisan and deeply flawed bill of their own. Their bill would put in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists and could reopen dangerous intelligence gaps that we experienced last year."

He also addressed immunity. "Their bill fails to provide liability protection to companies believed to have assisted in protecting our nation after the 9/11 attacks. Instead, the House bill would make matters worse by extending litigation for years to come. In fact, House leaders simply adopted the position that class-action trial lawyers are taking in billions of dollars of lawsuits they have filed."

"Companies that may have helped us save lives should be thanked for their patriotic service and should not be subjected to billion dollar lawsuits." He elaborated that "This bill would require the disclosure of state secrets during the litigation process. This could lead to the public release of highly classified information that our enemies could use against us."

House Democrats and Republicans have been issuing statements, and speaking in the House, on a regular basis. While most have focused on the legislative process, political posturing, and the debate over retroactive immunity, some have discussed the scope of surveillance going forward.

For example, On March 5, Rep. Mike Burgess (R-TX) stated that "we're talking about not surveillance on someone who's in Dallas calling someone who's in Washington. We're talking about surveillance on someone who is in perhaps one of those federally administered tribal areas in Pakistan or someone who's in Afghanistan communicating with someone in Iraq, because that method of communication may be putting up a Web site. There may be an embedded message on a Web site. But because that Web site may be carried on wires that go through the United States of America, then suddenly it becomes something that is under the jurisdiction, in some people's mind, of the Foreign Intelligence Surveillance Act."

He continued that "in order to find out who put the Web site up, you'd have to go through the FISA Court to get that information. But these Web sites tend to be rather ephemeral. They don't stay up that long. But it's problematic because you can't know who put up the Web site. You can't know who visited the Web site. And if you need to, you can't take it down without going through a 72-hour process in the FISA Court." See, Congressional Record, March 5, 2008, at Page H1339.

FCC Announces Agenda for March 19 Meeting

3/12. The Federal Communications Commission (FCC) released a tentative agenda [4 pages in PDF] for its event scheduled for March 19, 2008, titled "Open Commission Meeting". This agenda includes six items, including a Report and Order regarding "exclusive contracts" affecting apartment buildings.

1. The FCC's agenda states that the FCC is scheduled to adopt a Report and Order (R&O) regarding "exclusive contracts for the provision of telecommunications services in multiple tenant environments (MTEs)".

This agenda also states that the title of this proceeding is "Promotion of Competitive Networks in Local Telecommunications Markets". The agenda does not provide a proceeding number, but states that this is a Wireline Competition Bureau (WCB) item.

On October 31, 2007, the FCC adopted a Media Bureau (MB) R&O that is based upon Section 628 of the Communications Act, and directed at cable operators, but not other multichannel video programming distributors (MVPDs). It asserts regulatory authority over the content of contracts negotiated by owners of multiple dwelling units (MDUs), such as apartment buildings, and cable companies.

Subsection 628(b) of the Communications Act is codified at 47 U.S.C. § 548(b).

However, that item also included a Further Notice of the Proposed Rulemaking (FNPRM) that asked "Does the Commission have the authority to regulate the use of exclusivity clauses by MVPD providers not subject to Section 628." This FNPRM also addresses bulk billing and exclusive marketing arrangements. March 7, 2008, was the deadline to submit reply comments.

That R&O and FNPRM is FCC 07-189 in MB Docket No. 07-51. See also, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

See also, pending legal challenges to the October 31, 2007, R&O: NCTA v. FCC and National Multi-Housing Counsel, et al. v. FCC, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 08-1016 and 08-1017.

2. The FCC's agenda states that it is scheduled to approved a Fifth Report regarding the "availability of advanced telecommunications capability to all Americans", which reports are required by Section 706 of the Telecommunications Act of 1996.

3. The FCC is scheduled to adopt an R&O and FNPRM regarding collection of broadband subscription and availability data. This proceeding is WC Docket No. 07-38.

4. The FCC is scheduled to adopt a Third Order on Reconsideration and Sixth Memorandum Opinion and Order (MO&O) regarding spectrum sharing among incumbent and future services in the 2495-2500 MHz band, and a Fourth MO&O, Declaratory Ruling (DR), and Second FNPRM regarding changes to the service rules applicable to the Broadband Radio Service (BRS) and the Educational Broadband Service (EBS).

These items relate to the following proceedings: WT Docket No. 03-66, RM-10586, WT Docket No. 03-67, MM Docket No. 97-217, WT Docket No. 02-68, RM-9718, WT Docket No. 00-230, IB Docket No. 02-364, and ET Docket No. 00-258.

5. The FCC is scheduled to adopt a Third R&O regarding changes to the radiated power rules applicable to certain wireless services. This proceeding is WT Docket No. 03-264.

6. Finally, the FCC's notice states that the FCC "will consider issues regarding carriage of digital broadcast television signals by satellite carriers" in CS Docket No. 00-96.

This event is scheduled for 9:30 AM on Wednesday, March 19, 2008, in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The FCC's recent events titled "Open Commission Meeting" have rarely been held at the time announced by the FCC. The FCC does not always take up all of the items on its published program. The FCC sometimes adds items to the program without providing the "one week" notice required 5 U.S.C. § 552b. The FCC usually does not release at its events copies of the items that it adopts at its events.

FCC Delays Location Tracking Compliance Deadline

3/12. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) issued an Order [2 pages in PDF] in the proceedings titled "In the Matter of: Wireless E911 Location Accuracy Requirements; Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems; Association of Public-Safety Communications Officials-International, Inc. Request for Declaratory Ruling; 911 Requirements for IP-Enabled Service Providers".

This bureau level order provides for a stay of "the September 11, 2008 compliance date specified in Section 20.18(h)(2)(i) of the Commission’s rules, as adopted in the September 11, 2007 Report and Order, for a term of six (6) months, until March 11, 2009." (Footnote omitted.)

The FCC adopted the underlying order on September 11, 2007, and released the text on November 20, 2007. See, story titled "FCC Adopts E911 Location Tracking Accuracy Benchmarks" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007. This September order is FCC 07-166. The just released order is DA 08-557. Both pertain to PS Docket No. 07-114, CC Docket No. 94-102, and WC Docket No. 05-196.

AT&T, Verizon Wireless, T-Mobile, Sprint-Nextel, and the Rural Cellular Association have sought a stay. See, Rural Cellular Association and T-Mobile USA v. FCC and USA , U.S. Court of Appeals (DCCir), App. Ct. Nos. 08-1069, 08-1070, and 08-1076. See also, story titled "FCC Files Opposition to Stay in Challenge to Its Latest Wireless E911 Location Tracking Mandates" in TLJ Daily E-Mail Alert No. 1,729, March 11, 2008.

FCC Commissioner Jonathan Adelstein issued a statement [PDF] regarding the just released order. "The release of a bureau-level order today to stay the September 11, 2008 E911 location accuracy compliance deadline adopted in the Report and Order in this proceeding serves as proof positive of the failure to get these rules right the first time. As I stated then, I am concerned that the majority’s insistence on plowing forward with compliance benchmarks without a full record, rather than conducting this proceeding in a more thoughtful and deliberate manner, does not truly advance E911. Instead, we find the advancement of our public’s safety entangled in legal uncertainties. Today’s action by the Public Safety and Homeland Security Bureau is nothing more than a temporary band aid that does not cure the underlying deficiencies embedded in the Report and Order." (Footnote citing September order omitted.)

EC Approves Google DoubleClick Merger

3/11. The European Commission (EC) announced that it has approved the merger of Google and DoubleClick, two U.S. companies. The companies announced the merger in April of 2007.

The Federal Trade Commission (FTC) approved the merger last December. See, story titled "FTC Will Not Block Google DoubleClick Merger" in TLJ Daily E-Mail Alert No. 1,691, December 19, 2007.

The EC stated in a release that "the merged entity would not have the ability to engage in strategies aimed at marginalizing Google's competitors, mainly because of the presence of credible ad serving alternatives to which customers (publishers/advertisers/ad networks) can switch, in particular vertically integrated companies such as Microsoft, Yahoo! and AOL. The market investigation also found that the merged entity would not have the incentive to close off access for competitors in the ad serving market, mainly because such strategies would be unlikely to be profitable." (Parentheses in original.)

However, the EC noted that this decision "is based exclusively on its appraisal under the EU Merger Regulation. It is without prejudice to the merged entity's obligations under EU legislation in relation to the protection of individuals and the protection of privacy with regard to the processing of personal data and the EU Member States' implementing legislation."

Google announced in a March 11 release that "it has completed its acquisition of DoubleClick".

Google wrote in a second release that "Because we have been waiting for regulatory approval for our acquisition, we've been limited by law in the extent to which we could conduct detailed integration planning to map our way forward. That work will begin in earnest now."

Google added that "users will continue to benefit from our commitment to protecting user privacy following this acquisition".

Go to News from March 6-10, 2008.