Paper Argues that UBP for Broadband Would Promote Consumer Welfare and Encourage Investment

12/14. The National Cable and Telecommunications Association (NCTA) released a paper [18 pages in PDF] titled "The Economics of Usage-Based Pricing in Local Broadband Markets". The authors are Johannes Bauer and Steven Wildman of Michigan State University.

They argue that "the effects of well-designed UBP plans on consumers are likely to be beneficial, as are the effects of UBP on investments in the broadband infrastructure".

First, "Compared to UBP, a government-mandated single-price approach to pricing broadband biases the design and pricing of service toward the interests of subscribers willing to pay the most to the detriment of low volume and low income consumers who are less likely to be offered service packages they are willing to purchase. On the other hand, with UBP it may be profitable for ISPs to offer lower-priced options attractive to consumers who otherwise would not take service, thereby ensuring that a larger percentage of the US population enjoys the benefits of broadband."

Second, "By enabling ISPs to profitably offer services to different groups of customers based on their differential needs and usage of broadband service, UBP not only makes the benefits of broadband service available to consumers who otherwise would not be willing to pay for service, but also makes the provision of broadband service more profitable. This, in turn, encourages investments in network improvements and extensions, including investments in unserved and underserved areas."

In contrast, the Public Knowledge (PK) has criticized UBP. See for example, April 23, 2012, paper titled "Know Your Limits: Considering the Role of Data Caps and Usage Based Billing in Internet Access Service". That paper praised flat rate price plans, and criticized both UBP plans and data caps on flat rate plans. See also, story titled "Public Knowledge Paper Urges FCC Oversight of BIAS Pricing Plans" in TLJ Daily E-Mail Alert No. 2,380, April 25, 2012.

DC Circuit Reverses in PMCM TV v. FCC

12/14. The U.S. Court of Appeals (DCCir) issued its opinion in PMCM TV v. FCC, an appeal from an order of the FCC denying applications to reallocate VHF TV licenses under 47 U.S.C. § 331(a).

The Court of Appeals reversed. It held that the FCC's decision "conflicts with the statute's text and purpose" and "appellant can move its channels without creating signal interference".

See also, FCC brief [89 pages in PDF].

This case is PMCM TV, LLC v. FCC, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 11-1330, an appeal from a final order of the FCC. Judge Tatel wrote the opinion of the Court of Appeals, in which Judges Garland and Kavanaugh joined.

House to Take Up Tech Bills

12/14. The House floor schedule for Tuesday, December 18, 2012 includes consideration of three technology related bills under suspension of the rules: Sen. Patrick Leahy's (D-VT) recently introduced "Theft of Trade Secrets Clarification Act", Rep. Bob Goodlatte's (R-VA) bill to amend the VPPA (without the SJC's ECPA amendments), and Rep. Lamar Smith's (R-TX) recently introduced untitled patent bill (which addresses the post grant dead zone, allocation of user fees, and pre GATT patent applications, among other issues). See, full story.

IAB Compares FTC's COPPA Proposals to Stealing Christmas

12/14. Mike Zaneis of the Interactive Advertising Bureau (IAB) wrote a short piece titled "Don't Let the FTC Steal Christmas".

Zaneis wrote that the FTC's proposed changes to its Children's Online Privacy Protection Act (COPPA) rules "would conflate benign data transfers, which present no discernible threat to children's online safety, with very real concerns about the unauthorized collection of information that might allow strangers to contact our children."

The FTC proposed new COPPA rules in August. See, FTC notice in the Federal Register, Vol. 77, No. 151, August 6, 2012, at Pages 46643-46653, and story titled "FTC Releases COPPA Further NPRM" in TLJ Daily E-Mail Alert No. 2,418, August 2, 2012.

Also, the FTC released a report [42 pages in PDF] on December 10 titled "Mobile Apps for Kids: Disclosures Still Not Making the Grade". See also, story titled "FTC Releases Another Report on Mobile Apps Privacy" in TLJ Daily E-Mail Alert No. 2,488, December 11, 2012.

Zaneis's piece is accompanied by a cartoon, drawn by RJ Matson, that depicts the FTC, not as the familiar Christmas characters Scrooge or Grinch, but rather as a malevolent Santa Clause. Children line up to tell the FTC's "Santa COPPA" what they want for Christmas, only to have him smash their mobile devices with a hammer.

Zaneis concludes that the "IAB hopes that the FTC will not undermine legitimate commercial practices that have revolutionized the way kids learn and play in the digital age."

In contrast to this viewpoint, the Wall Street Journal (WSJ) published a piece on December 14 titled "Are Digital Foxes Guarding the Web's Privacy Hen House?"

More News

12/14. President Obama signed into law HR 6156 [LOC | WW], the "Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012", a bill to establish permanent normal trade relations (PNTR) with Russia. See, White House news office release.

12/14. The National Journal announced in a release that its Tech Daily Dose is ending on December 14, 2012.

12/14. News Corporation's iPad based subscription news daily, named The Daily, stopped publication on December 14, just two years after its inception.

OUSTR Releases 2012 Notorious Markets Report

12/13. The Office of the U.S. Trade Representative (OUSTR) released a report [9 pages in PDF] titled "Out-of-Cycle Review of Notorious Markets".

This report identifies internet and physical notorious markets located outside of the US that make available intellectual property infringing products.

It lists numerous deep linking web sites, cyber lockers, B2B and B2C sites, BitTorrent indexing sites, BitTorrent trackers, social media cites, and pay per download sites, as well as physical markets.

The OUSTR requested public comments in August to assist it in writing this report. See also, story titled "OUSTR Seeks Comments on Notorious Markets" in TLJ Daily E-Mail Alert No. 2,431, August 17, 2012.

Last year the OUSTR released its notorious markets report on December 20, 2011. See, report [6 pages in PDF] titled "Out-of-Cycle Review of Notorious Markets", and story titled "OUSTR Releases Notorious Markets Report" in TLJ Daily E-Mail Alert No. 2,321, December 21, 2011.

This 2012 report does not list the People's Republic of China based Taobao. The report states that Taobao "was included in previous Notorious Markets lists for the widespread availability of counterfeit and pirated goods in its electronic marketplace. Taobao has been removed from the 2012 List because it has undertaken notable efforts over the past year to work with rightholders directly or through their industry associations to clean up its site. In order to stay off the list in the future, we urge Taobao to further streamline procedures for submitting and responding to notifications to decrease the time required for taking down listings of counterfeit and pirated goods ..."

The list also no longer includes several cyber locker web sites that were on the 2011 list, but have since shut down as a result of government actions: MegaUpload, btjunkie, Demonoid, Modchip.ca and Consolesource.

USTR Ron Kirk (at right) stated in a release that "Piracy and counterfeiting, including online sales of pirated and counterfeit goods, is a problem that hurts the U.S. economy, harms some of this nation’s most creative and innovative entrepreneurs and companies and threatens jobs for significant numbers of middle-class American workers. We highlight the notorious markets that have a negative impact on legitimate businesses and industries of all sizes that rely on intellectual property to protect their goods and services".

The OUSTR notorious markets report is part of the Special 301 process. Section 301 is the statutory means by which the U.S. asserts its international trade rights, including its rights under World Trade Organization (WTO) agreements. In particular, under the "Special 301" provisions of the Trade Act of 1974, the OUSTR identifies trading partners that deny adequate and effective protection of intellectual property or deny fair and equitable market access to U.S. artists and industries that rely upon intellectual property protection. See, 19 U.S.C. § 2242.

Section 2242 contains no reference to the identification of notorious web sites, or notorious markets. Rather, it requires the OUSTR to identify "foreign countries". The OUSTR must identify, for example, countries that "deny adequate and effective protection of intellectual property rights, or ... deny fair and equitable market access to United States persons that rely upon intellectual property protection".

Beginning in 2006, the OUSTR included sections on notorious markets in its annual Special 301 reports. In 2010, the OUSTR announced that it would also produce stand alone notorious markets reports. See, story titled "OUSTR Announces Separate Notorious Markets Process" in TLJ Daily E-Mail Alert No. 2,138, October 4, 2010. The OUSTR released its first notorious markets report in February of 2011.

Jodie Kelley of the Business Software Alliance (BSA) stated in a release that "We commend USTR for continuing to make the fight against online piracy a top priority ... The 'notorious markets' report is a key tool for highlighting both the scope of the problem and the places where enforcement resources should be targeted."

Representatives Introduce Revised Version of Customs Information Sharing Bill

12/13. Rep. Ted Poe (R-TX), Rep. Steve Chabot (R-IN), Rep. Zoe Lofgren (D-CA), and Rep. Linda Sanchez (D-CA) introduced HR 6654 [LOC | WW | PDF], the "Foreign Counterfeit Merchandise Prevention Act", a bill to allow the Department of Homeland Security's (DHS) U.S. Customs and Border Protection (CBP) to share certain information with the owners of copyrights and registered marks.

This is a revised version of HR 4216 [LOC | WW], the "Foreign Counterfeit Prevention Act", which the same four Representatives introduced on March 20, 2012. See, story titled "Rep. Poe and Rep. Chabot Introduce Bill to Allow Customs to Share Information with Rights Holders" in TLJ Daily E-Mail Alert No. 2,354, March 23, 2012.

See, full story.

8th Circuit Opines on Web Video, Free Speech and Stalking

12/13. The U.S. Court of Appeals (8thCir) issued its opinion [16 pages in PDF] in U.S. v. Petrovic, affirming the defendant's criminal conviction for stalking and threatening his ex-wife, based in part upon his publication of a web site containing video and pictures (involving sex and nudity) and text messages, all of which were embarrassing and distressing to his former wife.

The Court of Appeals quoted, and impliedly distinguished, the Supreme Court's recent opinion in Snyder v. Phelps.

The present case also involved offline actions, such as phone calls and post cards. In addition, the defendant offered to take down the web site in return for furniture, wedding and engagement rings, and $100,000.

Petrovic was charged and convicted for criminal interstate stalking in violation of 18 U.S.C. § 2261A(2)(A) and interstate extortionate threat in violation of 18 U.S.C. § 875(d). Petrovic argued in the District Court and in this appeal that his actions were protected speech under the First Amendment.

The Court of Appeals affirmed his conviction. It concluded that "the communications for which Petrovic was convicted under the statute are not protected by the First Amendment". It reasoned that one exception to the limitation imposed by the First Amendment is "speech integral to criminal conduct".

"The communications for which Petrovic was convicted under § 2261A(2)(A) were integral to this criminal conduct as they constituted the means of carrying out his extortionate threats." The Court of Appeals also held that "Because Petrovic's harassing and distressing communications were integral to his criminal conduct of extortion under § 875(d), the communications were not protected by the First Amendment."

This principle provides a satisfying outcome for the defendant in this case, but not a rule that can be applied to many other potential cases. For example, under this rule, the Congress could prohibit any expression by criminalizing it, and then relying upon the "speech integral to criminal conduct" exception. Without further refinement, the Congress could bar expression of specified political facts or viewpoints.

The Court of Appeals elaborated further with a discussion of the concepts of individual privacy and public interest.

It wrote, quoting from the 2011 opinion of the Supreme Court in Snyder v. Phelps, that "where matters of purely private significance are at issue, First Amendment protections are often less rigorous ... because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest".

Actually, Snyder was a civil tort action in which the Supreme Court held that the speech at issue was protected by the First Amendment.

In that case Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Fred Phelps and others picketed his funeral in the state of Maryland, carrying signs such as "Thank God for Dead Soldiers", "Thank God for IEDs", and "God Hates Fags".

His father, Albert Snyder filed a complaint in the U.S. District Court (DMd), under diversity jurisdiction, pleading five state law causes of action: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.

The Supreme Court concluded that even though Phelps's speech affected the privacy interests of the Snyder family, and even thought "its contribution to public discourse may be negligible", the speech was, at bottom, a criticism of the United States and its policies. And, because these are matters of public interest, Phelps's speech is protected.

The 8th Circuit did not elaborate further on Synder, or distinquish its conclusion from that of the Supreme Court. But, perhaps its implied conclusion was that Petrovic's speech affected privacy interests, but had no public interest component such as that identified by the Supreme Court in Snyder, and hence, lies outside of First Amendment protection.

The Court of Appeals did write that it is "constitutionally permissible for a governmental entity to regulate the public disclosure of facts about private individuals", citing its 1997 opinion in Coplin v. Fairfield Public Access Television Committee, 111 F.3d 1395.

In that case, Jay Coplin had a public access cable television program. The Fairfield Public Access Television Committee terminated his program because of its content -- too much discussion of sex. Coplin filed a civil complaint alleging violation of 42 U.S.C. § 1983, predicated upon alleged violation of his First Amendment rights.

In the present case, the Court of Appeals quoted from the 1997 opinion in Coplin. Speech "can be regulated ... because of its constitutionally proscribable content only if: (1) any such regulation is viewpoint-neutral; (2) the facts revealed are not already in the public domain; (3) the facts revealed about the otherwise private individual are not a legitimate subject of public interest; and (4) the facts revealed are highly offensive."

The Court then applied this to Petrovic. The criminal statute is "viewpoint neutral". His web site publications were not previously "in the public domain". The "public has no legitimate interest" in Petrovic's speech. And, Petrovic's speech was "highly offensive". Hence, under the holding in Coplin, Petrovic's web site publications were not protected free speech.

The Court also rejected Petrovic's argument that the federal stalking statute is overbroad.

This case is U.S.A. v. Jovica Petrovic, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 12-1427, an appeal from the U.S. District Court for the Eastern District of Missouri, Judge Henry Autrey presiding. Judge Riley wrote the opinion of the Court of Appeals, in which Judges Smith and Colloton joined.

Federal Circuit Upholds Retroactive Application of AIA in False Patent Marking Case

12/13. The U.S. Court of Appeals (FedCir) issued its opinion [17 pages in PDF] in Brooks v. Dunlop Manufacturing, holding that retroactive elimination of the qui tam provision from 35 U.S.C. § 292, which pertains to false patent marking, by Section 16 of the Leahy-Smith America Invents Act does not violate either the due process or intellectual property clauses of the Constitution.

Brooks filed a qui tam complaint against Dunlop Manufacturing in the U.S. District Court (NDCal) in 2010 alleging violation of Section 292, as its existed prior to enactment of the AIA.

The Congress enacted the AIA in 2011. It is now Public Law No. 112-29. Prior to the enactment of the AIA, Section 292 had a qui tam provision, under which anyone could sue to recover the statutory penalty for violation, with the recovery split between the plaintiff and the U.S.

The AIA eliminated the qui tam provision. Instead, the AIA provides that the U.S. can sue, and anyone who has suffered a competitive injury as a result of the violation can sue for damages.

After enactment of the AIA, Dunlop moved to dismiss. Brooks argued that dismiss would violate his rights under the takings, due process, and intellectual property clauses of the Constitution. The District Court rejected all three arguments, and dismissed the complaint.

Brooks brought the present appeal, but did not argue violation of the takings clause. The Court of Appeals affirmed.

Judge Prost, a former staff assistant to Sen. Orrin Hatch (R-UT), wrote the opinion of the Court of Appeals. Much of her work involved matters within the jurisdiction of the Senate Judiciary Committee (SJC), including intellectual property. President Bush nominated her, and the Senate confirmed her, in 2001.

This case is Kenneth C. Brooks v. Dunlop Manufacturing, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2012-1164, an appeal from the U.S. District Court for the Northern District of California, D.C. No. 10-CV-4341, Judge Charles Breyer presiding. Judge Prost wrote the opinion of the Court of Appeals, in which Judges Newman and Moore joined.

People and Appointments

12/13. The Senate confirmed Lorna Schofield to be a Judge of the U.S. District Court for the Southern District of New York by a vote of 91-0. See, Roll Call No. 228. See also, Congressional Record, December 13, 2012, at Page S 8047. She has worked since 1988 in the New York City office of the law firm of Debevoise & Plimpton. Her law firm web page states that she has "focused on litigation in complex commercial matters, particularly the defense of companies and individuals in regulatory and white collar criminal investigations". See also, White House news office release.

12/13. The Senate confirmed Frank Geraci to be a Judge of the U.S. District Court for the Western District of New York. See, Congressional Record, December 13, 2012, at Page S 8047.

12/13. Yahoo named Max Levchin to its board of directors. See, release.

More News

12/13. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", sponsored by Sen. Al Franken (D-MN). The SJC approved by unanimous consent a substitute amendment [20 pages in PDF] offered by Sen. Franken. The SJC rejected on a vote of 8-9 an amendment [4 pages in PDF] offered by Sen. Charles Grassley (R-IA) that would have added an unrelated provision regarding use of private law firms by state attorneys general. The SJC then approved the bill, as amended by the substitute amendment, by voice vote. See also, story titled "Senate Judiciary Committee Holds Over Geolocation Data Bill" in TLJ Daily E-Mail Alert No. 2,485, December 7, 2012. Sen. Grassley stated that "this legislation will not become law this Congress".

12/13. Rep. Ted Poe (R-TX), Rep. Steve Chabot (R-IN), Rep. Zoe Lofgren (D-CA), and Rep. Linda Sanchez (D-CA) introduced HR 6654 [LOC | WW | PDF], the "Foreign Counterfeit Merchandise Prevention Act", a bill to allow U.S. Customs and Border Enforcement to share certain information with the owners of copyrights and registered marks. It was referred to the House Judiciary Committee (HJC). All four are members.

12/13. The Government Accountability Office (GAO) released a report [36 pages in PDF] titled "Electronic Health Records: Number and Characteristics of Providers Awarded Medicaid Incentive Payments for 2011".

12/13. Nokia announced in a release that the U.S. District Court (SDNY) dismissed with prejudice the complaint in Chmielinski v. Nokia. The plaintiffs filed this putative class action securities complaint on May 4, 2012.

FTC Chief Technologist Opines on History Sniffing

12/12. Steve Bellovin, Chief Technologist at the Federal Trade Commission (FTC), wrote a piece titled "History Sniffing", which focuses on how history sniffing works.

In addition, Bellovin stated that "If you're a web site developer, you certainly should not engage in history-sniffing; apart from being unethical, you might run into legal difficulties. Indeed, the FTC has just announced a settlement in a history-sniffing case. Equally important, if you include content from other sites on your pages (and most commercial sites do), make sure they're not doing anything nasty." (Parentheses in original.)

He added that " Consumers face a harder problem. The simplest thing to do is to upgrade to a modern browser; today's browsers incorporate certain defenses."

On December 5, 2012, the FTC filed, and settled, an administrative complaint against Epic Marketplace, Inc. (an online behavioral advertising company) and Epic Media Group, LLC (its parent company) alleging violation of Section 5 of the FTC Act, which is codified at 15 U.S.C. § 45, in connection with its history sniffing practices. See, story titled "FTC Brings Action Against Behavioral Advertising Company for History Sniffing" in TLJ Daily E-Mail Alert No. 2,489, December 12, 2012.

There is no web site developers code of ethics that gives rise to FTC enforcement actions. Bellovin's reference to "legal difficulties" can only refer to Section 5 of the FTC Act (which bars "unfair or deceptive acts or practices in or affecting commerce"), and if a web site is directed at children, the Children's Online Privacy Protection act (COPPA). The Epic complaint alleged only violation of Section 5 of the FTC Act.

Rep. Engel Introduces Bill to Limit Customs Laptop Searches

12/12. Rep. Eliot Engel (D-NY) introduced HR 6651 [LOC | WW], a bill to limit border searches of laptop computers and other electronic devices.

The Department of Homeland Security (DHS) U.S. Immigration and Customs Enforcement conducts suspicionless searches. See, DHS policy directive titled "Border Searches of Electronic Devices".

This bill would provide that "no search of the digital contents of the device or media may be based on the power of the United States to search a person and that person's possessions upon entry into the United States, unless that search is based on a reasonable suspicion regarding that person".

It would also provide that "No seizure of the digital contents of a device or media, or of the device or media itself, may be based on the power of the United States to search a person and that person's possessions upon entry into the United States, but must be based on some other constitutional authority to make the seizure."

It would also provide that "Any search of the digital contents of a device or media must be conducted only by officers who have received appropriate training, in order to minimize the possibility of irreparable damage to, or erasure of, files and the hardware itself, and must be conducted in the presence of a supervisor."

This bill defines "digital electronic device" as "any electronic device that contains digital data, including laptops, personal digital assistants, wireless phones, ipods, iphones, blackberries, and digital cameras".

This bill would also require the DHS to write rules "detailing ... policies for protecting the integrity of the data", "policies for the length of time seized data will be stored and where and how it will be stored", and "policies for whether the downloaded information will be shared and, if so, with what other governmental entities and under what circumstances".

The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution, Civil Rights and Property Rights held a hearing on June 25, 2009, titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel".

HR 6651 was referred to the House Judiciary Committee (HJC) and House Homeland Security Committee (HHSC). This bill has no original cosponsors.

Rep. Engel, and others, have been introducing related bills over the course of three Congresses, to no avail.

In the 110th Congress, on July 31, 2008, Rep. Engel and Rep. Ron Paul (R-TX) introduced HR 6702 [LOC | WW], the "Securing Our Borders and Our Data Act of 2008".

In the 111th Congress, on On January 7, 2009, Rep. Engel and Rep. Paul, introduced HR 239 [LOC | WW], the "Securing our Borders and our Data Act of 2009".

For more information, see the following TLJ stories:

• "Customs Service Loses 2,251 Computers" in TLJ Daily E-Mail Alert No. 488, August 9, 2002.
• "9th Circuit Holds Government Can Conduct Warrantless Random Searches of Laptops of Persons Entering US at Airports" in TLJ Daily E-Mail Alert No. 1,417, July 25, 2006.
• "Rep. Sanchez Introduces Bill Regarding Customs Searches of Laptops" in TLJ Daily E-Mail Alert No. 1,825, September 15, 2008.
• "ACLU Seeks DHS Records Regarding Unwarranted Laptop Searches" and "Summary of Cases Regarding DHS/CBP Laptop Searches" in TLJ Daily E-Mail Alert No. 1,953, June 11, 2009.
• "DHS/CBP Supervisor Embezzles Laptop from Airline Passenger" in TLJ Daily E-Mail Alert No. 1,963, June 30, 2009.
• "ACLU Sues DHS Over Suspicionless Searches of Electronic Devices at Borders" in TLJ Daily E-Mail Alert No. 2,129, September 9, 2010.
• "Update on Abidor v. DHS" and "Michigan Police Use CelleBrite Devices to Extract Data from Cell Phones" in TLJ Daily E-Mail Alert No. 2,224, April 20, 2011.
• "Court Hears Motion to Dismiss Challenge to DHS's Suspicionless Searches of Laptops" in TLJ Daily E-Mail Alert No. 2,254, July 8, 2011.

Rep. Nadler Introduces Bill to Promote Independent Music Label Artists Abroad

12/12. Rep. Jerrold Nadler (D-NY) introduced HR 6652 [LOC | WW | PDF], the "Making United States Independents Competitive Act" or "MUSIC Act", a bill to pay artists of independent music labels to travel to international trade music shows.

This bill provides that the Department of Commerce (DOC) "shall provide assistance to United States independent music label companies for purposes of facilitating exports of recorded music by such companies".

The bill provides that "assistance" means spending up to $1 Million per year to pay the artists of independents to travel to and perform at "international music trade shows".

This bill provides that "Independent" means having annual revenues of $50,000,000, and not being owned by a company that has $50,000,000 or more in annual revenues.

This bill would do nothing to help artists or record companies in the context of foreign based copyright infringement. This bill would not affect copyright law in any way. This bill was referred to the House Foreign Affairs Committee (HFAC). Rep. Nadler is not a member. There are no original cosponsors of this bill.

People and Appointments

12/12. Rep. Cliff Stearns (R-FL), who lost in his Republican primary election, will not be a member of the 113th Congress. Other members praised him at a hearing of the Subcommittee on Communications and Technology on December 12, 2012. The warmest words came from Rep. Bobby Rush (D-IL), who said, among other things, that he never agreed with Rep. Stearns, but always enjoyed working with him. In the 111th Congress, Rep. Rush was the Chairman of the Subcommittee on Commerce, Trade, and Consumer Protection, and Rep. Stearns was the ranking Republican. The two cosponsored HR 2221 [LOC | WW], the "Data Accountability and Trust Act", and moved it through the Subcommittee, full Committee, and House. However, the Senate did not pass the bill. In the current Congress, Rep. Mary Mack (R-CA) is the Chairman of this Subcommittee. Rep. Rush reintroduced this bill, as HR 1707 [LOC | WW]. However, it did not make it out of Subcommittee. In the 113th Congress, Rep. Lee Terry (R-NE) will be the Chairman of this Subcommittee.

More News

12/12. Rep. Eliot Engel (D-NY) introduced HR 6651 [LOC | WW], a bill to limit border searches of laptop computers and other electronic devices. It was referred to the House Judiciary Committee (HJC) and House Homeland Security Committee (HHSC). Rep. Engel, and others, have been introducing related bills over the course of three Congresses, to no avail. This bill has no original cosponsors.

12/12. Rep. Jerrold Nadler (D-NY) introduced HR 6652 [LOC | WW | PDF], the "Making United States Independents Competitive Act" or "MUSIC Act", a bill to pay artists of independent music labels to travel to international trade music shows.

12/12. The Wall Street Journal (WSJ) published a story by Julia Angwin titled "U.S. Terror Agency to Tap Vast Database of Citizen". She wrote that "The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation."

12/12. The Federal Trade Commission (FTC) published a notice in the Federal Register (FR) that lists for the month of November 2012 its Hart Scott Rodino (HSR) grants of early termination of the waiting period provided by law and the premerger notification rules. See, FR, Vol. 77, No. 239, December 12, 2012, at Pages 74013-74016.

12/12. Ed Black, head of the Computer and Communications Industry Association (CCIA), wrote a piece published in Forbes titled "Rumored FTC / Google Settlement: A Model for Tech Industry Antitrust Enforcement". He wrote that "Recent news reports have suggested that the Federal Trade Commission is in discussions with Google to settle its long-running antitrust investigation, with the agency concluding that there is insufficient evidence to bring an antitrust complaint on search issues. If these reports are true, the FTC’s decision to avoid litigation in favor of a balanced settlement will not only benefit consumers and innovation, but also affirm the agency’s reputation as a fair arbiter of our nation’s often perplexing competition laws."

Rep. Eshoo and Rep. Issa Write FCC Regarding Unlicensed Spectrum

12/11. Rep. Anna Eshoo (D-CA) and Rep. Darrell Issa (R-CA) sent a letter to the Federal Communications Commission (FCC) regarding unlicensed spectrum.

They wrote that the FCC must "adhere to the statute". See, HR 3630 [LOC | WW], the "Middle Class Tax Relief and Job Creation Act".

The incentive auctions portion of the statute provides, at Section 6407, that the FCC may use "relinquished or other spectrum to implement band plans with guard bands". However, "guard bands shall be no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands".

Then, Section 6407 provides that the FCC  may permit the use of certain guard bands for unlicensed use, subject to the limitation that it "may not permit any use of a guard band that the Commission determines would cause harmful interference to licensed services".

Rep. Eshoo and Rep. Issa wrote that "We support" the FCC's September 28 Notice of Proposed Rulemaking (NPRM) [205 pages in PDF]. They wrote that the FCC "should implement the incentive auction and resulting reorganization of the band in a manner that optimizes the value of both licensed and unlicensed spectrum access".

They wrote about "the public benefits that unlicensed brings to consumers and businesses".

And, they argued that "we cannot afford to fall behind other nations in the race to deploy new and innovative unlicensed technologies".

11th Circuit Considers 4th Amendment Consequences of 25 Day Delay in Seeking Warrant to Search a Seized Laptop

12/11. The U.S. Court of Appeals (11thCir) issued its opinion [22 pages in PDF] in US v. Laist, a case involving application of the 4th Amendment ban on unreasonable searches and seizures to laptop computers.

In this case, FBI agents seized a computer and external hard drives from the defendant, a university student, with probable cause, but waited 25 days before applying for a search warrant. With a warrant, they searched the computer and drives, and found evidence of criminal activity.

The District Court denied the defendant's motion to suppress evidence obtained from the computer. The Court of Appeals affirmed.

The Court of Appeals wrote that a temporary warrantless seizure supported by probable cause is reasonable as long as the police diligently obtained a warrant in a reasonable period of time.

And, the Court should evaluate the totality of the circumstances in determining whether a delay renders a seizure unreasonable under the 4th Amendment. This includes consideration of the significance of the interference with the person's possessory interest, the duration of the delay, whether or not the person consented to the seizure, and the government's legitimate interest in holding the property as evidence.

The Court of Appeals noted that "computers are a unique possession, one in which individuals may have a particularly powerful possessory interest". However, the Court of Appeals added that key facts affecting the defendant's possessory interest were that when the FBI agents took the computer, they allowed him to make copies of files that he said he needed for his university work, and he did not make any further requests for files during the FBI's delay in seeking a warrant.

The Court of Appeals also wrote that the complexity of the warrant in this case works in favor of a finding of reasonableness.

The Court of Appeals concluded that while "we have found shorter delays unreasonable under different circumstances, ... the totality of the circumstances in this case demonstrate the reasonableness of the government's actions." The motion to suppress was properly denied. The defendant's conviction is affirmed.

This case U.S.A. v. David Laist, U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 11-15531, an appeal from the U.S. District Court for the Northern District of Georgia. Judge Marcus wrote the opinion of the Court of Appeals, in which Judges Pryor and Paul Friedman (USDC/DC sitting by designation) joined.

People and Appointments

12/11. The Public Knowledge (PK) named Hal Bringmam (NVPR) to its Board of Directors. See, PK release.

12/11. The Senate confirmed John Dowdell to be a Judge of the U.S. District Court for the Northern District of Oklahoma by a vote of 95-0. See, Roll Call No. 226. See also, Congressional Record, December 11, 2012, at Page S7752. He is a partner in the Tulsa, Oklahoma law firm of Norman Wohlgemuth Chandler & Dowdell. His law firm biography states that he handles complex litigation, including antitrust and telecommunications, and that his clients include T-Mobile USA and Gemstar-TV Guide.

12/11. The Senate confirmed Jesus Bernal to be a Judge of the U.S. District Court for the Central District of California. See, Congressional Record, December 11, 2012, at Page S7752. He has been a long time federal public defender. See, White House news office release.

More News

12/11. The World Intellectual Property Organization (WIPO) released a report [198 pages in PDF] titled "2012 World Intellectual Property Indicators". It states that "Patent filings worldwide passed the 2 million mark in 2011, showing significant growth of 7.8 percent over 2010 and exceeding 7 percent growth for the second year in a row. Similarly, trademark filings increased by 13.3 percent, the very same growth rate as in 2010." Also, "For the first time in 2011, more patents were filed at the patent office of China than at any other office in the world."

12/11. The U.S. Court of Appeals (10thCir) issued its opinion [34 pages in PDF] in Hancock v. AT&T, a consumer class action regarding the quality of U-Verse service. The U.S. District Court (WDOkla) dismissed the complaint, pursuant to forum selection and arbitration clauses in the terms of service. The Court of Appeals affirmed. This case is Gayen Hancock, et al.  v. American Telephone and Telegraph Company, Inc., et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 11-6233, an appeal from the U.S. District Court for the Western District of Oklahoma, D.C. No. 5:10-CV-00822-W. Judge Matheson wrote the opinion of the Court of Appeals, in which Judges Murphy and Ebel joined.

12/11. The Information Technology and Innovation Foundation (ITIF) released a report titled "Why America Needs A National Network for Manufacturing Innovation".

12/11. Microsoft announced in a release that it and EINS SE "signed a patent licensing agreement that provides broad coverage under Microsoft's patent portfolio for EINS devices running the Android platform." EINS makes Android tablets in Germany.

Go to News from December 6-10, 2012.