House Judiciary Committee Report Accuses DOJ of Disregarding the Constitution and Rule of Law

4/30. The House Judiciary Committee (HJC) released a report [17 pages in PDF] titled "The Obama Administration's Disregard of the Constitution and Rule of Law". This is a "Chairman's Report", prepared under the direction of Rep. Lamar Smith (R-TX), Chairman of the HJC.

HJC Democrats leveled similar accusations at the Department of Justice (DOJ) during the Bush administration.

All of the matters discussed in this report pertain to matters that do not implicate information and communications technology (ICT).

This report states that "Rather than fulfilling the Attorney General's oath to "support and defend the Constitution of the United States" and the President's Constitutional responsibility to "take care that the laws be faithfully executed," the Justice Department in the Obama Administration, under the leadership of Attorney General Eric H. Holder, Jr., has repeatedly put its partisan agenda ahead of its Constitutional duties."

This report adds that there is a "pattern of pushing partisan ideology rather than neutrally enforcing the law", and that this DOJ has "disregard for Congressional oversight and contempt for judicial review".

There is an argument to be made that the the DOJ under the leadership of Eric Holder has failed to defend the 4th Amendment rights of citizens against infringements by federal law enforcement agencies in the context of new ICT, and that the DOJ has failed to take care that the surveillance statutes have been faithfully executed. However, on these issues, Rep. Smith and AG Holder are in agreement. Hence, the just released report is silent on this subject.

People and Appointments

4/30. Patrick Ross joined the U.S. Patent and Trademark Office (USPTO) as Deputy Chief Communications Officer, and acting Chief Communications Officer. He was previously Executive Director of the Copyright Alliance. Before that, he was Senior Fellow and VP Communications at the Progress & Freedom Foundation (PFF). Before that he was a reporter for various publications of Warren Communications, and for CNET.

House Passes Cybersecurity Enhancement Act

4/27. The House passed HR 2096 [LOC | WW], the "Cybersecurity Enhancement Act of 2012" by a vote of 395-10. See, Roll Call No. 193. The Senate has not passed this bill, or the companion bill in the Senate.

Rep. Michael McCaul (R-TX) and Rep. Dan Lipinski (D-IL) introduced this bill in the House on June 2, 2011.

The House Science Committee (HSC) amended and approved the bill on July 21, 2011. See, story titled "House Science Committee Approves Cyber Security Bill" in TLJ Daily E-Mail Alert No. 2,268, July 24, 2011.

Title I of the bill pertains to cyber security research and development, and education.

Title II of the bill pertains to federal cyber security standards. It requires that the National Institute of Standards and Technology (NIST) shall "ensure coordination of Federal agencies engaged in the development of international technical standards related to information system security" and write for the Congress "a plan for ensuring such Federal agency coordination".

See, full story.

House Passes NITRD Bill

4/27. The House passed HR 3834 [LOC | WW], the "Advancing America's Networking and Information Technology Research and Development Act of 2012", by voice vote.

Rep. Ralph Hall (R-TX) introduced this bill on January 27, 2012. The House Science Committee (HSC) amended and approved the bill on February 7, 2012.

This bill revises the Networking and Information Technology Research and Development (NITRD) program.

Rep. Hall (at right) stated in the House that "This program is an important component of our Nation's cybersecurity efforts, and it is critical to our overall networking and information technology research and development in general. It's a product of the High-Performance Computing Act of 1991 and represents and coordinates the Federal Government's nearly $4 billion R&D investment in unclassified networking, computing, software, cybersecurity, and related information technologies."

He continued that "The bill before us today updates the underlying high-performance computing statute that has been in place for 20 years and codifies the work the National Coordination Office already undertakes."

Sen. Grassley Lifts Holds on Rosenworcel and Pai

4/27. Sen. Charles Grassley (R-IA) ended his holds on the nominations of Jessica Rosenworcel and Ajit Pai to be Commissioners of the Federal Communications Commission (FCC).

The Senate did not meet on April 27. It is in recess the week of April 30 through May 4. It could confirm these two nominees as early as May 7.

Sen. Grassley placed these holds, not in objection to the nominees, but because of the FCC's handling of the LightSquared matter, and its refusal to provide him information.

See, stories titled "NTIA Concludes There is No Practical Way to Mitigate LightSquared's Proposed Broadband Network's Interference to GPS" and "FCC Backtracks on LightSquared" in TLJ Daily E-Mail Alert No. 2,337, February 15, 2012.

Sen. Grassley (at right) stated in a release that "Exactly one year ago today, I wrote my first letter to the FCC on LightSquared. At that time, headlines were describing interference concerns between LightSquared and Global Positioning System devices. LightSquared’s primary backer was in the news over having attracted the Securities and Exchange Commission’s attention. I wondered why the FCC had given expedited preliminary approval to a project led by someone under SEC investigation and with seemingly serious interference concerns. I began seeking the FCC’s insight into its decision-making on this project. The agency turned out to be among the least responsive I’ve ever come across in 30 years of conducting constitutional oversight of the executive branch of government."

Sen. Grassley continued that "As I began my investigation, facts came to light that raised more questions about the FCC’s actions. E-mails showed that LightSquared’s CEO sought meetings with the White House while mentioning attendance at fundraisers for President Obama. Then, news reports showed the White House pressured a four-star general to downplay the threat LightSquared posed to GPS."

He also wrote that "I continued to seek the information on the general principle that the public’s business ought to be public. The FCC continued to stonewall, so I placed a hold on two FCC commissioner nominees in an effort to get the information I requested. Still, the agency stonewalled."

Sen. John Rockefeller (D-WV) stated in a release that "I am glad that the unreasonable hold against two qualified and smart FCC nominees, Jessica Rosenworcel and Ajit Pai, has been lifted. They are each ready to do this tough job and I especially want to thank Leaders McConnell and Reid for working cooperatively to advance these nominations in the face of stubborn delay tactics. That type of bipartisan cooperation bodes well for the success of Rosenworcel and Pai and I am anxious for the full Senate to vote on their nominations in May."

House Passes CISPA

4/26. The House amended and passed HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA", a bill that would incent cyber threat information sharing, and surveillance. The vote on final passage was 248-168. See, Roll Call No. 192. See, full story.

Amendment by Amendment Summary of House Consideration of CISPA

4/26. The following is a summary of the House consideration of HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act of 2011" or "CISPA", a bill that would incent cyber threat information sharing, and surveillance activities.

The House approved the rule for consideration of the bill passed by the House Rules Committee (HRC) on April 25. The House then began with the base bill [18 pages in PDF] made in order by the HRC rule.

The House rejected an amendment offered by Rep. Laura Richardson (D-CA) by voice voice. It would have provided, with respect to information sharing, that nothing in the bill shall be construed to "prohibit a department or agency of the Federal Government from providing cyber threat information to owners and operators of critical infrastructure".

The House rejected an amendment offered by Rep. Jim Langevin (D-RI) by a vote of 167-243. See, Roll Call No. 184. It would have changed certain references in the bill to "utilities" to "critical infrastructure owners and operators".

The House approved an amendment offered by Rep. Mike Rogers (R-MI) regarding Freedom of Information Act (FOIA) requests by a vote of 412-0. See, Roll Call No. 185.

Rep. Rogers is the lead sponsor of the bill, and Chairman of the House Intelligence Committee (HIC).

The House approved an amendment offered by Rep. Ben Quayle (R-AZ) regarding what use the government can make of information shared under this bill. The House approved it by a vote of 410-3. See, Roll Call No. 186.

The bill does not limit use to cyber security purposes. This amendment provides its supporters the opportunity to state that they amended the bill. But, it does not preclude the government from using shared information for a wide range of non-cyber security purposes.

The base bill provided that "The Federal Government may use cyber threat information shared with the Federal Government in accordance with subsection (b) for any lawful purpose only if -- (A) the use of such information is not for a regulatory purpose; and (B) at least one significant purpose of the use of such information is -- (i) a cybersecurity purpose; or (ii) the protection of the national security of the United States."

The bill as revised by the Quayle amendment provides that "The Federal Government may use cyber threat information shared with the Federal Government ... for cybersecurity purposes ... for the investigation and prosecution of cybersecurity crimes ... to protect the national security" and to investigate and prosecute a wide range of crimes, including pornography crimes.

Rep. Quayle stated that "Contrary to claims that this legislation puts the privacy of Americans at risk, it strengthens privacy protections by fortifying our defenses against foreign hackers who seek to exploit our security vulnerabilities and steal data and secrets. That is especially the case since my efforts to strengthen privacy provisions succeeded." See, Rep. Quayle's release.

Rep. Zoe Lofgren (D-CA), Rep. Louie Gohmert (R-TX), and Rep. Tom McClintock (R-CA) voted no.

The House approved an amendment offered by Rep. Justin Amash (R-MI) by a vote of 415-0. See, Roll Call No. 187.

This amendment provides that "The Federal Government may not use the following information, containing information that identifies a person, shared with the Federal Government in accordance with" this bill: "Library circulation records ... Library patron lists ... Book sales records ... Book customer lists ... Firearms sales records ... Tax return records ... Educational records ... Medical records".

This is an inartfully drafted amendment. It does not explain the meaning of the phrase "The Federal Government may not use".

Rep. Amash issued a release that states that this amendment "prevents the federal government from using sensitive personal records that it obtains from private companies. The amendment prohibits the government from accessing library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, and medical records."

The House approved an amendment offered by Rep. Mick Mulvaney (R-SC) by a vote of 416-0. See, Roll Call No. 188.

It contains several changes of little consequence. For example, it provides that "The Federal Government may" -- not shall -- "undertake reasonable efforts to limit the impact on privacy and civil liberties of the sharing of cyber threat information".

The House approved an amendment offered by Rep. Bob Goodlatte (R-VA) that tightens several definitions to limit what information can be shared. The House passed it by a vote of 414-1. See, Roll Call No. 189.

Rep. Goodlatte (at right) stated in the House that "this amendment carefully narrows the definitions of the key terms in the bill -- cyber threat information, cyber threat intelligence, cybersecurity purposes, and cybersecurity systems and adds in three new definitions from existing law. Together, these new definitions ensure that companies in the private sector can protect themselves against very real cyber threats. At the same time, they limit what information the private sector can identify, obtain, and share with others." See, video [You Tube].

For example, this amendment replaces the definition of "Cyber Threat Information", to provide that it means (1) "a vulnerability of a system or network of a government or private entity", (2) "a threat to the integrity, confidentiality, or availability of a system or network of a government or private entity or any information stored on, processed on, or transiting such a system or network, (3) "efforts to degrade, disrupt, or destroy a system or network of a government or private entity", or (4) "efforts to gain unauthorized access to a system or network of a government or private entity, including to gain such unauthorized access for the purpose of exfiltrating information stored on, processed on, or transiting a system or network of a government or private entity".

But, it would not include "information pertaining to efforts to gain unauthorized access to a system or network of a government or private entity that solely involve violations of consumer terms of service or consumer licensing agreements and do not otherwise constitute unauthorized access".

Rep. Lofgren cast the only vote against.

The House approved an amendment offered by Rep. Mulvaney that would sunset the provisions of the bill after five years by a vote of 413-3. See, Roll Call No.190.

This amendment is significant. It might be compared to the sunset provisions of the 2001 surveillance act, Title II of the USA PATRIOT Act. The most significant leverage that the Congress possesses to compel federal agencies to provide oversight committees with information regarding their implementation of the various provisions of the act is these sunset provisions.

The House then approved the bill, as amended, by a vote of 248-168. See, Roll Call No. 192. Republicans voted 206-28. Democrats voted 42-140.

However, many of the most important decisions were made by the House Rules Committee (HRC), which adopted a rule [PDF] for consideration of the bill which did not allow certain key amendments to be offered on the floor. See, story titled "Sponsors Agree to Some Amendments to CISPA" in TLJ Daily E-Mail Alert No. 2,379, April 24, 2012.

House Passes Federal Information Security Amendments Act

4/26. The House passed HR 4257 [LOC | WW], the "Federal Information Security Amendments Act of 2012", under suspension of the rules, by voice vote, late on Thursday, April 26, 2012.

This bill revises the Federal Information Security Management Act of 2002, which is also known as FISMA.

Rep. Darrell Issa (R-CA) and Rep. Elijah Cummings (D-MD) introduced this bill on March 26, 2012. The House Oversight and Government Reform Committee (HOGRC) amended and approved it on April 18, 2012. See, Rep. Issa's amendment in the nature of a substitute [26 pages in PDF].

This bill states that the FISMA provides "a comprehensive framework for ensuring the effectiveness of information security controls over information resources that support Federal operations and assets".

The bill as introduced provided a definition of "information security" that included "authentication, which means using digital credentials to assure the identity of users and validate access of such users". The amendment changed the definition of "information security" to merely refer to "authenticity".

Rep. Stearns and Rep. Matsui Introduce 1755-1780 MHz Band Bill

4/26. Rep. Cliff Stearns (R-FL) and Rep. Doris Matsui (D-CA) introduced HR 4817 [LOC | WW], the "Efficient Use of Government Spectrum Act", a bill that require that the Federal Communications Commission (FCC) to pair the 1755-1780 MHz block and the 2155-2180 MHz block, which is already set for auction, for reallocation and auction for commercial wireless use. See, full story.

Rep. Waxman and Rep. Eshoo Seek Hearing on Verizon Cable Deals

4/26. Rep. Henry Waxman (D-CA) and Rep. Anna Eshoo (D-CA) sent a letter to Rep. Fred Upton (R-MI) and Rep. Greg Walden (D-OR) requesting that the House Commerce Committee (HCC) "hold a hearing on recently announced spectrum transactions involving Verizon's proposed acquisition of Advanced Wireless Services (AWS) spectrum licenses from several cable companies as well as Verizon’s conditional sale of the company’s 700 MHz A and B block licenses".

Rep. Eshoo reiterated this request in a speech on April 26 at a conference in Washington DC hosted by the Computer and Communications Industry Association (CCIA).

The Senate Judiciary Committee (SJC) held a hearing on these proposed transactions on March 21, 2012. See, SJC web page with hyperlinks to opening statements, prepared testimony of witnesses, and video.

Rep. Waxman and Rep. Eshoo wrote that "Verizon argues that the acquisition of AWS licenses will create consumer benefits resulting from the deployment of an allocated but unused block of spectrum and the convenience of purchasing bundled communications services. In contrast, opponents assert a number of potential harms from the Verizon and cable company transactions, including further concentration in the wireless industry and disincentives for competition between wireline and wireless broadband." (Footnotes omitted.)

They continued that "These transactions have potential implications for competition in the wireless industry. Regional carriers continue to report difficulty reaching roaming agreements with national carriers and assert these transactions will further consolidate Verizon’s market power over roaming agreements. Small and regional carriers also argue that a lack of access to interoperable wireless devices in the lower 700 MHz bands has hindered their deployment of 4G wireless service." (Footnotes omitted.)

Rep. Waxman is the ranking Democrat on the HCC. Rep. Eshoo is the ranking Democrat on the HCC's Subcommittee on Communications and Technology (SCT). Rep. Upton is the Chairman of the HCC. Rep. Walden is the Chairman of the HCC's SCT.

Judicial Appointments

4/26. The Senate confirmed Gregg Costa to be a Judge of the U.S. District Court for the Southern District of Texas by a vote of 97-2. See, Roll Call No. 83 and Congressional Record, April 26, 2012, at Page S2889.

4/26. The Senate confirmed David Guaderrama to be a Judge of the U.S. District Court for the Western District of Texas. See, Congressional Record, April 26, 2012, at Page S2889.

4/26. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination Michael Shea to be United States District Judge for the District of Connecticut by a vote of 15-3.

4/26. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination Gonzalo Curiel to be United States District Judge for the Southern District of California by voice vote.

4/26. The Senate Judiciary Committee (SJC) held an executive business meeting at which it approved the nomination Robert Shelby to be United States District Judge for the District of Utah by voice vote.

Go to News from April 21-25, 2012.