TLJ News from March 6-10, 2011

Sen. Lee Calls for Antitrust Hearing on Google

3/10. Sen. Mike Lee (R-UT), the ranking Republican on the Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights, sent a letter to Sen. Herb Kohl (D-WI), the Chairman of the Subcommittee, requesting a hearing on Google's "possible abuse of its predominant position in the general internet search arena and the need for vigorous antitrust oversight and enforcement in this area".

In this letter, Sen. Lee also stated that the Department of Justice's (DOJ) Antitrust Division should investigate whether Google's gatekeeper position reduces its incentive to protect consumer privacy.

Sen. Mike LeeSen. Lee (at right) wrote that "Given its prominent position in the search and search advertising markets, Google in some ways acts as a gatekeeper over a variety of internet businesses. Among other things, commentators have expressed concern that Google may be using its position to harm specialized (or so-called ``vertical´´) search sites. If allowed to compete free of restraints, vertical search sites -- such as travel, mapping, and shopping sites -- could attract users and advertisers from Google’s search platforms. Some vertical search sites have accused Google of using its power to deprive those websites of internet traffic by biasing the display of its search-advertising and search results." (Parentheses in original.)

He also wrote that the should "investigate whether Google's powerful position as an internet gatekeeper reduces the company’s incentive to compete with other search engines by providing enhanced privacy protection for consumers."

He explained that "Google collects an unequaled amount of information about consumers through its search platform, including data about web searches, reactions to online advertising, and precise geographic location for both mobile devices and personal computers. Google also gathers an enormous amount of consumer information through its related products and services, including Gmail, Google Checkout, Google Books, and Google Web History."

"The combination of behavioral and personal information enables Google to generate consumer data that is unprecedented in scale and scope. These activities raise serious privacy concerns and may be indicative of an important market that is largely unconstrained by competition", wrote Lee.

Representatives Introduce FCC Secrecy Bill

3/10. Rep. Anna Eshoo (D-CA), Rep. John Shimkus (R-IL), and Rep. Mike Doyle (D-PA) introduced HR 1009 [LOC | WW], the "Federal Communications Commission Collaboration Act", a bill to enable secrecy and reduce transparency at the Federal Communications Commission (FCC). It would create an FCC loophole to the federal open meetings act.

Rep. Eshoo issued a release that states that her bill would "modify the FCC's Closed Meeting Rule".

The FCC has promulgated no "Closed Meeting Rule". Rather, the Congress has enacted an open meetings act that applies to the FCC and numerous other agencies.

The 94th Congress enacted this statute in 1976 as one of the cornerstones of the post Watergate reforms. Rep. Henry Waxman (D-CA), the ranking Democrat on the HCC, is one of the few remaining members of the post Watergate Congress, first elected in November of 1974.

This statute requires federal agencies headed by a collegial body composed of two or more individual members to "conduct or dispose of agency business" in meetings that are publicly announced at least one week in advance, and are open to the public.

This statute is codified at 5 U.S.C. S 552b. It applies to the FCC, Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Federal Election Commission (FEC), and numerous other federal agencies.

Rep. Eshoo's bill would amend the Communications Act to provide an exception to the open meetings act for the FCC, but not for any other federal agencies.

Her bill provides that "Notwithstanding section 552b of title 5, United States Code, 3 or more Commissioners may hold a meeting that is closed to the public" if "a vote or any other agency action ... is not taken" and "each person present at such meeting is a Commissioner or an employee of the Commission".

No law prevents FCC Commissioners from meeting to discuss, debate or take action in any matter. The law only requires that such meetings be public. However, FCC Commissioners refuse to hold public meetings. Its events titled "Open Meeting" are largely ceremonial events.

The FCC's Commissioners do not wish to conduct business in a public and transparent manner. Hence, they do not meet.

While the five Commissioners cannot by law meet in secret, nothing in the statute prohibits them from conducting deliberations through a series of written communications or communications relayed through their staff members. Current and past Commissioners and staff have referenced this awkward and time consuming process in public statements. This process degrades the capacity of the Commission members to act in a prompt and orderly manner. And, this is one of the causes of delay in Commission decision making.

Rep. Eshoo's bill recites in its findings that "Commissioners have relied primarily on an inefficient combination of written messages, communications among staff, and a series of meetings restricted to 2 Commissioners at each such meeting to discuss complex telecommunications matters pending before the Commission".

FCC Commissioner Michael Copps has long advocated legislation that would allow Commissioners to meet in secret. See for example, story titled "Copps and Stevens Advocate Less Transparency at FCC" in TLJ Daily E-Mail Alert No. 1,272, December 14, 2005.

Senate Judiciary Committee Approves Surveillance Bill

3/10. The Senate Judiciary Committee (SJC) amended and approved S 193 [LOC | WW], the "USA PATRIOT Act Sunset Extension Act of 2011". The vote on approval was 10-7.

Last month, the Congress passed, and President Obama signed, HR 514 [LOC | WW], the "FISA Sunsets Extension Act of 2011". That brief bill simply extended statutory sunsets for lone terrorist, business records, and roving wiretap authority to May 27, 2011. For explanations of these three provisions, see story titled "House and Senate Extend Expiring Surveillance Provisions" in TLJ Daily E-Mail Alert No. 2,054, March 3, 2010.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, introduced S 193 on January 26, 2011. It addresses these three statutory sunsets in Section 2. However, it is a lengthy bill that also addresses related issues. It is similar to a bill in the 111th Congress, S 1692 [LOC | WW], also titled the "USA PATRIOT ACT Sunshine Extension Act", which the SJC approved on October 8, 2009.

See, full story.

Senate Judiciary Committee Approves Halligan

3/10. The Senate Judiciary Committee (SJC) approved Caitlin Halligan to be a Judge of the U.S. Court of
Appeals (DCCir)
on a straight party line vote of 10-8. Democrats voted yes. Republicans voted no.

She has served as General Counsel for the New York County District Attorney's Office. Previously, she worked at the law firm of Weil Gotshal & Manges for several years. Before that, she was Solicitor General of New York State. Before that, she held several positions in the Office of the New York State Attorney General, including Chief of the Internet Bureau. She was also briefly worked for the Washington DC law firm of Wiley Rein.

See, story titled "Obama Nominates Caitlin Halligan for DC Circuit" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010.

Sen. Charles Grassley (R-IA) stated that the seat for which she has been nominated has a history. Former President Bush nominated Peter Keisler for this seat in 2006. Senate Democrats successfully delayed consideration of Keisler until the end of the Bush administration.

Sen. Grassley stated that Keisler "waited 918 days for a committee vote that never came". He stated on July 17, 2008, with reference to Keisler and others, that "The Democrats have employed a lot of fancy footwork to dance around their constitutional responsibility to give fair consideration of President Bush's judicial nominees. They are doing nothing more than burning down the clock, having dreamt up every stalling tactic in the book to prevent qualified Americans from serving on the federal bench."

Sen. Grassley reviewed her record, and the information she provided to the SJC, and concluded that she "has not been forthcoming", and that she is a liberal political activist, particularly with respect to the 2nd Amendment.

He said that she has "an activist view of the legal system", and that "the record is clear and well documented that Ms. Halligan has a record of advocating extreme liberal positions on Constitutional issues"

He also stated that he hopes that this nomination does not reach the Senate floor. He added that some Democrats do not want to vote on this nomination.

Keisler served as Assistant Attorney General in charge of the Department of Justice's (DOJ) Civil Division, and briefly as acting Attorney General, during the Bush administration.

Sen. Patrick Leahy (D-VT) defended Halligan as "superbly qualified".

More Judicial Appointments

3/10. The Senate confirmed Max Cogburn to be a Judge of the U.S. District Court (WDNC) by a vote of 96-0. See, Roll Call No. 38.

3/10. The Senate Judiciary Committee (SJC) approved Jimmie Reyna to be a Judge of the U.S. Court of Appeals (FedCir) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved John Kronstadt to be a Judge of the U.S. District Court (CDCal) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved Vincent Briccetti to be a Judge of the U.S. District Court (SDNY) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved Arenda Allen to be a Judge of the U.S. District Court (EDVa) by voice vote.

3/10. The Senate Judiciary Committee (SJC) approved Michael Urbanski to be a Judge of the U.S. District Court (WDVa) by voice vote.

3/10. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration Edward Chen to be a Judge of the U.S. District Court (NDCal). His nomination is on the agenda for the SJC's March 17 meeting.

More People and Appointments

3/10. The Senate Judiciary Committee (SJC) held an executive business meeting at which it held over consideration of James Cole to be Deputy Attorney General, the number two position at the Department of Justice (DOJ). His nomination is on the agenda for the SJC's March 17 meeting.

House Subcommittee Passes Resolution of Disapproval of FCC BIAS Rules

3/9. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology approved HJRes 37, a resolution disapproving the Federal Communications Commission's (FCC) rules regulating broadband internet access service (BIAS) providers.

The vote, 15-8, broke down along party lines. All of the Republicans who voted, voted for the resolution. All of the Democrats who voted, voted against the resolution. See, roll call.

Rep. Greg Walden (R-OR), the Chairman of the Subcommittee, read a prepared statement [PDF] at the meeting. He stated that "A vote against the resolution is nothing more than a vote to allow the FCC to reclassify broadband under Title II once the agency loses the appeal of this order in court. More than 300 members from both sides of the aisle have opposed such reclassification. Moreover, 58 Democrats voted with us in 2006 to oppose network neutrality. Some of those Democrats are still on the full committee. Some are still on this subcommittee. And that was not even a vote against a Title II versus a Title I approach. That was a vote against imposing network neutrality rules at all."

He continued that "The resolution is simply a narrowly tailored vehicle to eliminate rules regulating the Internet that the FCC did not have authority to impose. Of far greater concern should be the order. To say the order creates certainty is absurd. The only uncertainty the order even partially resolves is the uncertainty the FCC itself created by threatening reclassification. And the agency has not even closed the Title II proceeding. Supporting the resolution of disapproval will also avoid the collateral damage to the FCC’s authority that would come when the agency loses the appeal in court."

He also stated that "Some carriers have decided that bad was better than worse and that they were large enough to absorb the hit from the rules. That is a far cry from the story the FCC is telling: that industry supports the order and it is good for the economy. And what of the smaller providers like Mr. DeReggi, who testified today. He does not have the resources either to absorb the hit or send a team of lawyers to camp out daily at the FCC. And as Ms. Kovacs points out, the rules create a regulatory weapon to shift costs from web companies to broadband providers, harming both the core and the edge of the Internet in the process."

See also, prepared statement [PDF] of Rep. Fred Upton (R-MI), the Chairman of the full Committee.

Rep. Henry Waxman (D-CA) stated at the meeting that this resolution is "a terrible bill" that "would allow phone and cable companies to control what web sites Americans can visit, and what applications they can run."

He added that "It is opposed by high tech industry" and others. He noted too that "Republicans could not get a single major broadband provider to testify today in opposition to the rules, or in support of their legislation."

He complained that no amendments were allowed, as did other Democrats. See also, March 7, 2011, letter [PDF] of Subcommittee Democrats. Rep. Walden ruled several amendments to be out of order.

Rep. Anna Eshoo (D-CA), the ranking Democrat on the Subcommittee, stated that she opposes this resolution, that it is "a waste of time", and that its "will do damage" by creating "uncertainty in the broadband ecosystem". See also, release.

Rep. Ed Markey (D-MA), stated that there is no rush, because "the Senate is not going to take this up until this summer". See also, release.

Rep. John Dingell (D-MI) stated that "the proposal is not going to be considered in the Senate. It may or may not pass the House."

He added that "The proper place for this matter then to be reviewed is in the courts. And the action of the FCC is going to be tied in the courts of a goodly while, and never ever reach any semblance of reality."

Neil Fried, of the majority staff, responded to numerous questions from Democrats.

This resolution provides that it is "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (Report and Order FCC 10-201, adopted by the Commission on December 21, 2010), and such rule shall have no force or effect." (Parentheses in original.)

Derek Turner of the Free Press stated in a release that "We are deeply disappointed that Congress has chosen to move forward with this dangerous overreach that would hamstring the FCC and leave Internet users unprotected from discrimination online. If this resolution becomes law, companies like Comcast, AT&T and Verizon will have free rein to censor free speech or block access to any website. There may be much to dislike about what this FCC did and how it did it, but the fundamental point here is we cannot simply set up a false choice between what the FCC did and no policy at all."

Obama Picks Gary Locke to Be Ambassador to China

3/9. President Obama nominated Commerce Secretary Gary Locke to be Ambassador to the People's Republic of China. See, White House news office release.

Sandra Aistars, head of the Copyright Alliance, stated in a release that "Appropriate copyright protection internationally is of key importance to the entire copyright community, from the largest corporation to the self-employed artist and entrepreneur. Secretary Locke, who has demonstrated his deep commitment to promoting U.S. exports and understands the importance of intellectual property protection, will be a much-needed advocate on the ground for American copyright-based businesses and workers."

Robert Holleyman, head of the Business Software Alliance (BSA), stated in a release that "Secretary Locke is an exceptionally well-qualified and respected choice to be US Ambassador to China. He is an energetic and effective champion for US industry in general and for software companies and other copyright holders in particular".

Bob Pisano, head of the Motion Picture Association of America (MPAA), stated in a release that "Secretary Locke has a strong record in support of American workers and businesses whose livelihoods are dependent on exports. And, he has an outstanding record of championing intellectual property rights."

More News

3/9. The Copyright Royalty Judges published a notice in the Federal Register that announces the final determination of the rates and terms for two statutory licenses, permitting certain digital performances of sound recordings and the
making of ephemeral recordings, for the period beginning January 1, 2011, and ending on December 31, 2015. This is the Webcasting III proceeding,  Docket No. 2009-1. See, Federal Register, March 9, 2011, Vol. 76, No. 46, at Pages 13025-13058.

Copyright Office Issues STELA Notice of Inquiry

3/8. The Copyright Office (CO) published two notices in the Federal Register that announce a Notice of Inquiry (NOI) that requests comments to assist it in preparing a report to the Congress regarding possible mechanisms, methods, and recommendations for phasing out the statutory licensing requirements set forth in 17 U.S.C. §§ 111, 119, and 122.

The 111th Congress directed the CO to prepare this report in Section 302 of S 3333 [LOC | WW], the "Satellite Television Extension and Localism Act of 2010", or "STELA", which is now Public Law No. 111-175.

Section 302 requires the CO to submit to the Congress within 18 months of enactment a report containing "proposed mechanisms, methods, and recommendations on how to implement a phase-out of the statutory licensing requirements set forth in sections 111, 119, and 122 of title 17, United States Code, by making such sections inapplicable to the secondary transmission of a performance or display of a work embodied in a primary transmission of a broadcast station that is authorized to license the same secondary transmission directly with respect to all of the performances and displays embodied in such primary transmission".

The statute also requires that the report include "any recommendations for alternative means to implement a timely and effective phase-out of the statutory licensing requirements" of these sections, and "any recommendations for legislative or administrative actions as may be appropriate to achieve such a phase-out".

Initial comments are due by April 18, 2011. Reply comments are due by May 18, 2011. President Obama signed the STELA on May 27, 2010. Hence, the report is due by November 27, 2011.

See, original notice in the Federal Register, March 3, 2011, Vol. 76, No. 42, at Pages 11816-11821, and correction notice in the Federal Register, March 8, 2011, Vol. 76, No. 45, at Pages 12760-12761.

Tech Groups Argue Public Private Partnership on Cyber Security is Sound

3/8. Business Software Alliance (BSA), Center for Democracy and Technology (CDT), Internet Security Alliance (ISA), TechAmerica, and U.S. Chamber of Commerce released a paper [26 pages in PDF] titled "Improving our Nation’s Cybersecurity through the Public-Private Partnership".

It finds that "The current critical infrastructure protection partnership is sound".

This paper states that "the complexity and interconnected nature of the Internet, and the ever-evolving and sophisticated threat environment, put cybersecurity beyond the reach of any single entity: to secure our critical infrastructure, companies must work together, government must coordinate its efforts, and industry and government must collaborate".

It argues that "Government and industry must develop a menu of market incentives to motivate companies to voluntarily upgrade their cybersecurity. The incentives must be powerful enough to affect behavior without being so burdensome as to curtail U.S. investment, innovation, and job creation".

Senate Passes Patent Bill

3/8. The Senate passed S 23 [LOC | WW], the huge patent reform bill titled "America Invents Act", by a vote of 95-5. See, Roll Call No. 35. See, full story.

Aaron to Replace Silver as Head of Free Press

3/8. Craig Aaron will become head of the Free Press (FP) in mid April. He will replace Josh Silver, who will become the founding CEO of the Democracy Fund.

The FP is a Washington DC based interest group that, among other things, advocates federal regulation of broadband internet access service (BIAS) providers, and government subsidized news media.

Aaron, who is currently the FP's Managing Director, stated in a release that the FP will continue its "efforts to build broad, diverse popular support for better media and the open Internet everywhere".

More News

3/8. The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) released its draft FIPS-201 -2 [88 pages in PDF] titled "Personal Identity Verification (PIV) of Federal Employees and Contractors". The deadline to submit comments is June 6, 2011.

Judicial Appointments

3/7. The Senate confirmed Anthony Battaglia to be a Judge of the U.S. District Court (SDCal) by a vote of 89-0. See, Roll Call No. 33. See also, statement by Sen. Patrick Leahy (D-VT).

3/7. The Senate confirmed James Shadid to be a Judge of the U.S. District Court (CDIll) by a vote of 89-0. See, Roll Call No. 32.

3/7. The Senate confirmed Sue Myerscough to be a Judge of the U.S. District Court (CDIll). See, Congressional Record, March 7, 2011, at Page 1333.

Go to News from March 1-5, 2011.