TLJ News from July 6-10, 2012

US, Japan and EU Request WTO DSP for REM Complaint Against PRC

7/10. On June 27, 2012, the Office of the U.S. Trade Representative (OUSTR), along with representatives of Japan and the European Union (EU), requested that the World Trade Organization (WTO) establish a dispute settlement panel (DSP) to rule on their complaints against the People's Republic of China (PRC) that allege that the PRC is imposing export restraints, export duties, and export quotas on rare earth materials (REM) in violation of its WTO commitments.

The WTO's Dispute Settlement Body (DSB) met on July 10. The WTO announced that "The DSB deferred the establishment of a panel."

The US, Japan and EU filed complaints, which are nominally requests for consultations, in March. See, US complaint, Japan complaint, and EU complaint. See also, stories titled "US, Japan and EU Take Rare Earths Issue to WTO" and "OUSTR Explains Rare Earths Request for Consultations" in TLJ Daily E-Mail Alert No. 2,349, March 14, 2012.

See, full story.

House Commerce Committee Seeks Data from NTIA on Government Spectrum Usage

7/10. Rep. Greg Walden (R-OR), Rep. Anna Eshoo (D-CA), and other members of the House Commerce Committee (HCC) Subcommittee on Communications and Technology sent a letter to the National Telecommunication and Information Administration (NTIA) that asks questions relevant to making more government spectrum available for commercial use.

First, they asked for the "number of spectrum authorizations each Federal user held in 2011, including the activities, capabilities, functions, or missions supported by the authorizations and whether they are space-based, air-based, or ground-based, broken down in frequency ranges from 300 MHz to 3GHz, 1755 MHz to 1850 MHz, and 1755 MHz to 1780 MHz."

Second, they asked for the "amount of spectrum assigned to each Federal user", broken down for the same three frequency ranges. They also ask the NTIA to explain "any adjustments you make to account for the temporal and shared nature of some government spectrum use".

The letter references the HCC's interest in freeing more spectrum for commercial use, particularly mobile broadband services. The letter states that "Finding more efficient ways for the government to use this valuable public asset without compromising critical objectives would not only produce dividends for government agencies, but also inject additional resources into the private sector to spur our economy." Hence, the HCC is taking a "closer look at government spectrum use".

People and Appointments

7/10. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) published a notice in the Federal Register (FR) requesting nominations to its eight advisory committees. These include the Information Security and Privacy Advisory Board (ISPAB), NIST Smart Grid Advisory Committee, and Visiting Committee on Advanced Technology. See, FR, Vol. 77, No. 131, Monday, July 9, 2012, at Pages 40332-40338. The is no deadline for nominations.

7/10. The Senate confirmed Thomas Fowlkes to be a Judge of the U.S. District Court (WDTenn) by a vote of 94-2. See, Roll Call No. 173.

More News

7/10. The National Coordination Office for Networking and Information Technology Research and Development (NCO/NITRD) announced that it will host a workshop on July 24, 2012, titled "Toward Innovative Spectrum-Sharing Technologies: Wireless Spectrum Research and Development Senior Steering Group (WSRD SSG) Workshop III". See, notice in the Federal Register, Vol. 77, No. 132, Tuesday, July 10, 2012, at Page 40647. This workshop will run from 8:15 AM to 5:00 PM on Tuesday, July 24. It will be held at the Millennium Harvest House Boulder, 1325 Twenty-Eighth Street, Boulder, Colorado.

HR 6063 and Administrative Subpoenas

7/9. HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012", introduced on June 29, 2012, would, among other things, give the Unites States Marshals Service (USMS) the authority to subpoena, without court approval, records and testimony "for the purpose of investigating unregistered sex offenders".

This provision is also in HR 1981 [LOC | WW], the data retention bill approved by the House Judiciary Committee (HJC) last year. It attracted much criticism from a minority of HJC members at that time.

There is already a statute, codified at 18 U.S.C. § 3486, that provides for federal administrative subpoena power, in three situations: (1) investigations of "a Federal health care offense", (2) investigations of "a Federal offense involving the sexual exploitation or abuse of children", and (3) investigations by the Secret Service in which there is an "imminent" threat to someone protected by the Secret Service.

Section 3486 also enumerates the offenses that involve "sexual exploitation or abuse of children". It includes 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, which are the two main sections used to prosecute people who distribute or view child pornography (CP) online.

HR 6063 provides that the USMS may "issue administrative subpoenas in accordance with section 3486 of title 18, solely for the purpose of investigating unregistered sex offenders". It adds that "sex offender" means "an individual required to register under the Sex Offender Registration and Notification Act".

The 4th Amendment of the Constitution provides 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."

Critics of this type of power argue that administrative subpoenas are an end run around the 4th Amendment. That is, these subpoenas enable the government to conduct certain searches and seizures, without any a warrant or other order issued by a judge.

The HJC committee report on HR 1981 (Report No. 112-281) explains that obtaining court approval first requires making "a request to a United States Attorney's Office", and that this "process is burdensome and time-consuming".

Rep. John Conyers (D-MI), Rep. Bobby Scott (D-VA), Rep. Zoe Lofgren (D-CA), and Rep. Hank Johnson (D-GA) wrote in a dissent to the committee report that this bill "dramatically expands administrative subpoena power, circumventing judicial oversight".

Not only does an administrative subpoena remove judicial approval and supervision, Section 3486 removes the requirement that there be probable cause to believe that a crime has been or will be committed. This section merely requires that the subpoena be in writing, be served, and describe the records or testimony that is sought. For child abuse related subpoenas, the request must only be "relevant to an authorized law enforcement inquiry".

Inherent in the 4th Amendment is the principle that the federal government may only conduct searches and seizures when it is investigating crimes and criminals. A Section 3486 administrative subpoena encompasses the contradictory principle that the government may conduct searches and seizures in the absence of any crime, and investigate persons without any suspicion that they have committed a crime.

Moreover, Section 3486 expressly applies to subpoenas directed at internet service providers. It references "electronic communication service" or "remote computing service", which are outdated terms, but are in the Electronic Communications Privacy Act (ECPA).

Recent DOJ activity demonstrates that administrative subpoenas are subject to improper use. For example, National Security Letters (NSLs) are akin to administrative subpoenas. They involve no judicial approval. They seek records held by third parties. And, they have been widely abused by the DOJ and its Federal Bureau of Investigation (FBI). The DOJ's Office of the Inspector General (OIG) has written reports that document this abuse.

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". 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.

On March 13, 2008, the 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". See also, story titled "DOJ Inspector General Releases Second Report on FBI Misuse of National Security Letters" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008.

The then IG (Glenn Fine), and the assistant most responsible for these reports (Roslyn Mazer), are no longer employed by the DOJ.

At the hearing and markup of HR 1981, most of the testimony and debate focused on data retention. However, administrative subpoenas were also the subject of debate and amendments, which were rejected.

Ernie Allen, head of the National Center for Missing and Exploited Children (NCMEC), wrote in his prepared testimony that "The U.S. Marshals are key players in the fight against child sexual exploitation. They have made remarkable progress in tracking down non-compliant sex offenders. However, their efforts would be dramatically enhanced if they were granted administrative subpoena authority."

Michael Brown, who testified on behalf of the National Sheriffs Association, wrote in his prepared testimony that "H.R. 1981 also ... provides administrative subpoena authority to the U.S. Marshals to access critical travel information and records on fugitive sex offenders ..."

The committee report states that it would be used to obtain "hotel, rental car, or airline records".

In contrast, Rep. James Sensenbrenner (R-WI), the Chairman of the HJC's Subcommittee on Crime, argued that "the administrative subpoena power that is given to the Marshals Service will allow not only the Marshals Service but any other law enforcement agency with existing administrative subpoena power to rummage through Internet service providers' records, whether it is on the subject of child pornography or any other subject relating to law enforcement, and that we should restrict severely administrative subpoena powers that are given to law enforcement for, particularly, the gathering of evidence." (See, pages 1-2, or July 12, 2011, hearing record.)

He also stated that "People should also be aware that I fought vigorously to avoid granting more administrative subpoena power to any Federal law enforcement agency during both the PATRIOT Act consideration and the PATRIOT Act reauthorization in 2005 and 2006."

Arguably, this section might be employed, not only to further a targeted investigation directed at locating one individual previously convicted of a CP offense, but also to engage in broad and periodic data aggregation activities, which collections of data would then be used for other purposes.

However, much is missing from the pubic record. For example, the HJC's hearing on HR 1981 on July 12, 2011, did not include any federal government officials from the DOJ or its USMS, or any other federal department or agency. Hence, no one testified regarding how they would use this administrative subpoena authority, or why they need it.

Nor did the government submit any statements for the record of the July 12, 2011, hearing, or for the committee report on HR 1981. DOJ officials have stated in other fora and in other contexts that the DOJ seeks greater administrative subpoena power. Also, the DOJ may have made non-public communications to HJC regarding HR 1981. Thus, the HJC approved this section of the bill either without relevant information, or without transparency.

Commentary: HR 6063, Harassment of Witnesses, and Internet Speech

7/9. HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012", introduced on June 29, 2012, would, among other things, broadly expand an existing witness protection statute. However, it might be utilized by the government to enjoin internet speech that does not involve witness tampering.

Victims of crimes, and prosecution witnesses, are sometimes the target of intimidation directed at stopping them from testifying, or inducing them to provide false testimony. The DOJ already has a wide range of tools to protect victims and witnesses, numerous statutory offenses to charge, and other judicial remedies.

One such remedy is currently codified at 18 U.S.C. § 1514. It pertains to a "Civil action to restrain harassment of a victim or witness".

Currently, Section 1514 enables the Department of Justice (DOJ) to obtain a "temporary restraining order prohibiting harassment of a victim or witness in a Federal criminal case if the court finds, from specific facts shown by affidavit or by verified complaint, that there are reasonable grounds to believe that harassment of an identified victim or witness in a Federal criminal case exists or that such order is necessary to prevent and restrain an offense under" 18 U.S.C. § 1512. Section 1512 is the criminal prohibition of tampering with a witness, victim or informant.

HR 6063 would greatly expand this section. See, mark up version of Section 1514, showing additions in red, and deletions in cross through. (Section 3(a) of HR 6063 is the same as Section 8 of HR 1981 IH.)

This new language, if enacted into law in its current form, might be used by the DOJ to obtain a no notice restraining order against bloggers and tweeters, and perhaps even their service providers, for online discussion or criticism of the activities and operations of federal prosecutors, in the absence of any intent to harass or intimidate anyone, as those terms are commonly understood.

Moreover, this section affects federal prosecutions broadly, and not just CP and child abuse cases.

HR 6063 would enable a civil action by the DOJ which differs from the existing civil action is several ways. First, it removes that requirement that the court order be necessary to prevent witness tampering.

Second, it lowers the standard of proof from "preponderance of the evidence that harassment ... exists" to "reasonably likely to adversely affect the willingness ... to testify". That is, currently, the government must show that there has been actual harassment. This bill would allow the government to merely show a hypothetical possibility.

Third, it removes the requirement that the DOJ submit an affidavit or verified complaint.

Fourth, it expands the time period covered from "Federal criminal case" to "Federal criminal case or investigation".

When Rep. Lamar Smith (R-TX), the sponsor of HR 1981 and HR 6063, described this section at the July 12, 2011 hearing, he said that witnesses and victims "are often subjected to harassment and intimidation throughout the trial period". (See, July 12, 2011, hearing record, at page 17.)

That is, Rep. Smith identified the problem as occurring during trial. However, the current statute allows actions for restraining orders to be brought as early as upon return of an indictment or filing of a complaint or information. This bill would allow restraining orders to be issued yet earlier -- as soon as there is an investigation.

There is a notice problem here. Individuals and service providers may be subjected to restraining orders for engaging about speech about matters being investigated, when they have no knowledge that there is an investigation under way.

Furthermore, Section 1514 provides that the DOJ can obtain an order restraining either "harassment" or "intimidation" of witnesses or their relatives. It contains vague but very minimal definitions of "harassment" and "intimidation". The term "harassment' is not defined in terms of violence, threats or inducements, but rather merely as causing "substantial emotional distress" and having "no legitimate purpose". Similarly, "intimidation" is merely causing "apprehension" and having "no legitimate purpose". Many people experience "apprehension" at the thought of testifying at a trial, or being cross examined, in the absence of any improper conduct.

The effect of all of these changes would be that it would become easy for the DOJ to obtain restraining orders, in the absence of actual harassment, intimidation, or tampering, and judges would have limited discretion to deny requests.

One likely use of this new action would be to prevent defense attorneys in some cases from contacting witnesses and relatives of witnesses. This is a fundamental function of defense attorneys, and implicates the due process and effective assistance of counsel rights of defendants. However, it is not a technology related issue, and hence, mentioned here without further elaboration.

Another likely use of the new language is technology related. The bill provides that internet speech can be restrained.

It provides that the term "no legitimate purpose" is further qualified by this: "a court shall presume, subject to rebuttal by the person, that the distribution or publication using the Internet of a photograph of, or restricted personal information regarding, a specific person serves no legitimate purpose, unless that use is authorized by that specific person, is for news reporting purposes ...". (Emphasis added.)

The term "specific person" means any victim, witness, or their family members. The term "restricted personal information" is broadly defined, by reference to 18 U.S.C. § 119, to include information as basic as a name and email address.

The Constitution guarantees defendants a "public trial". In an open society people discuss, communicate information, and express opinions regarding trials, as well as investigatory and prosecutorial activities of the government. Today, people use the internet to engage in such speech. Very little of this done with any intent to tamper with witnesses. Yet, the language contained in the bill defines harassment and intimidation so minimally, and even presumes the impropriety of internet expression, that legitimate internet speech may be enjoined or chilled.

Section 230 Immunity. The bill provides that the DOJ can obtain an order from the court. It states that the order may be based upon internet distribution or publication. However, the bill does not specify against whom an order may be issued.

The bill does state that the court may issue an "order prohibiting harassment or intimidation". Since the speech at issue will often be in a web site operated by a third party, it might be expected that that DOJ will argue, and some judges will concur, that the order may also be directed at the third party.

The bill raises a number of issues. For example, can the DOJ obtain a Section 1514 order enjoining Facebook, or another interactive computer service, for statements made by its users regarding DOJ investigations or cases?

If so, would this be in the nature of a take down order, similar to a DMCA take down notice under 17 U.S.C. § 512?

Could the order direct the service provider to monitor future user generated content, and self censor its web site?

Does the phrase "distribution ... using the Internet" encompass email, text messages, or tweets?

Would this bill carve out an exception to Section 230 immunity for actions by the DOJ under Section 1514, and/or criminal prosecutions for violation of Section 1514 orders?

47 U.S.C.§ 230(c)(1) provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Constitutional Procedural Rights. In addition, the bill creates a presumption, binding upon the judge, that internet distribution or publication serves no legitimate purpose. The presumption is rebuttable. But, the bill provides for, and the DOJ is likely to utilize, ex parte filings and ex parte orders.

There would be no opportunity to rebut a presumption in a closed ex parte proceeding. And since criminal liability would attach to a violation of an ex parte order, there is the question of whether such a procedure is consistent with 5th amendment due process rights, and 6th amendment rights to notice, a pubic trial, and confrontation of witnesses.

The removal of the requirement that the DOJ submit anything by way of affidavit of verification may add an additional due process infirmity.

Free Speech Rights of Bloggers. There is another potential Constitutional infirmity in this bill's internet speech clause. There is an exception for "news reporting purposes". The statute thus creates two categories of speakers -- those that report news, and other persons. News entities may be permitted to engage in a category of speech which might be denied to bloggers or Twitter and Facebook users.

The Supreme Court, in its free press cases, has not recognized any right in news media that is distinct from that held by any person.

As former Chief Justice Warren Burger wrote in his concurring opinion in FNB v. Belotti, "The very task of including some entities within the ``institutional press´´ while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country."

Chief Justice Burger continued that "Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination".

"In short, the First Amendment does not ``belong´´ to any definable category of persons or entities: It belongs to all who exercise its freedoms." See, First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).

See also, the 1972 opinion of the Supreme Court in Branzburg v. Hayes, which is reported at 408 U.S. 665. The Court wrote that "Freedom of the press is a `fundamental personal right´ which `is not confined to newspapers and periodicals."

Public Record. This provision was barely mentioned during the July 12, 2011 hearing. The committee report (Report No. 112-281) contains a few cursory paragraphs that mostly reference local news stories regarding allegations of witness intimidation.

No one from the DOJ testified at the hearing, or submitted a statement for the hearing record, or committee report, explaining why this provision is necessary, or how it would be used.

The committee report does not address the internet speech clause. None of the anecdotal news reports cited in the report involved internet based speech.

GAO Reports on US Electronic Warfare Planning

7/9. The Government Accountability Office (GAO) released a report [49 pages in PDF] titled "Electronic Warfare: DOD Actions Needed to Strengthen Management and Oversight". It states that electronic warfare is the "use of electromagnetic energy and directed energy to control the electromagnetic spectrum or to attack the enemy". It "is essential for protection of friendly operations and denying adversary operations within the electromagnetic spectrum throughout the operational environment".

This report finds that the Department of Defense (DOD) "has not established a departmentwide governance framework for planning, directing, and controlling electronic warfare activities". It also finds that the DOD "may face challenges in its oversight of electronic warfare as a result of the evolving relationship between electronic warfare and cyberspace operations".

Also, the "U.S. military's access to and use of the electromagnetic spectrum is facing rapidly evolving challenges and increased vulnerabilities due to the increasing quality and availability of electronic warfare capabilities to both state and non-state actors", and particularly, the People's Republic of China (PRC).

This report was prepared for the Chairman and ranking Democrat on the House Armed Services Committee.

DOJ Fines Telecom Manufacturer for Selling PRC Made Equipment to DOD

7/9. The Department of Justice (DOD) announced in a release that is has fined ADC Telecommunications Inc. (which was acquired in 2010 by Tyco Electronics Ltd, which is now named TE Connectivity Ltd.) $1 Million for selling telecommunications hardware to the Department of Defense (DOD) and other federal agencies that was made in the People's Republic of China (PRC) and other countries, in violation of the Trade Agreements Act (TAA).

The TAA, which is codified at 19 U.S.C. §§ 2501-2581, and the Federal Acquisition Regulation (FAR), provide that all products listed in Government Services Administration (GSA) Schedule Contracts must be made in a "designated country".

The PRC is not on the list of "designated countries". See also, FAR 52.225-5.

The PRC would be a "designated country" if it were a party to a free trade agreement with the US, or the World Trade Organization (WTO) Government Procurement Agreement.

The DOJ release states that "From October 2005 through December 2008, ADC manufactured and sold telecommunications hardware, such as communication modems, extender modules and shelf adapters to various federal agencies through its General Services Administration (GSA) Multiple Award Schedule contract. This settlement resolves allegations disclosed by the company that it knowingly manufactured and sold products from countries such as China that do not have reciprocal trade agreements with the United States and are not on the list of designated countries."

ICANN IANA Contract Extended

7/9. On July 2, the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) again awarded the Internet Assigned Numbers Authority (IANA) functions contract to the Internet Corporation for Assigned Names and Numbers (ICANN). On July 9, the ICANN published contract documents.

The current contract expires on September 30, 2012. This new contract will run from October 1, 2012 through September 30, 2015, with two separate two year option periods.

For hyperlinks to redacted copies of contract documents, see ICANN web page titled "ICANN Proposal to Perform IANA Functions Now Posted". See also, NTIA release.

The IANA is responsible for the global coordination of the Domain Name System (DNS) Root, Internet Protocol (IP) addressing, and other IP resources.

House Judiciary Committee to Mark Up Bills

7/6. The House Judiciary Committee (HJC) announced on July 6 that it will mark up nine bills, beginning on July 10, 2012. The agenda includes the remains of the data retention bill, an economic espionage bill, the Intellectual Property Attache Act, and a bill regarding tax return identity theft.

The second item on the agenda is HR 4362 [LOC | WW], the "Stopping Tax Offenders and Prosecuting Identity Theft Act of 2012".

The third item on the agenda is HR 6063 [LOC | WW | PDF], the "Child Protection Act of 2012", which is the controversial data retention bill, with the data retention mandate removed. See, related stories in this issue titled "Rep. Smith Introduces Rump of Data Retention Bill", "HR 6063 and Administrative Subpoenas", and "Commentary: HR 6063, Harassment of Witnesses, and Internet Speech".

The fourth item on the agenda is HR 6029 [LOC | WW], the "Foreign and Economic Espionage Penalty Enhancement Act of 2012". See, story in this issue titled "Representatives Introduce Bill to Increase Penalties for Economic Espionage".

The fifth item on the agenda is the HR __ [PDF], the yet to be introduced "Intellectual Property Attaché Act". This bill provides that the Department of Commerce (DOC) and U.S. Patent and Trademark Office (USPTO) "shall establish an intellectual property attaché program by appointing and placing intellectual property attachés in United States embassies or diplomatic missions" where they will have the most potential for "reducing in1tellectual property infringement". The bill does not provide an authorization for appropriation. Rather, the USPTO shall use "existing resources at the PTO".

The meeting is scheduled for July 10 at 10:00 AM in Room 2141 of the Rayburn Building.

Go to News from July 1-5, 2012.