Genachowski (at left) did not disclose his plans. President Obama has not yet nominated a replacement.

Genachowski also gave a speech [8 pages in PDF] in which he lauded his accomplishments.

He said only a few words about the most significant action taken by the FCC during his tenure -- the adoption of rules that regulate the network management practices of broadband internet access service providers. Those rules are likely to be overturned later this year by the U.S. Court of Appeals (DCCir).

Genachowski also stated that he has a "healthy working relationship with Congress".

Although, his relationship with Democrats has been much healthier than his relationship with Republicans.

Rep. Henry Waxman (D-CA), the ranking Democrat on the House Commerce Committee (HCC), stated in a release that he "has been a brilliant chair".

Rep. Fred Upton (R-MI) and Rep. Greg Walden (R-OR), the Chairmen of the HCC and its Subcommittee on Communications and Technology, wrote in a release that "While we did not see eye-to-eye on every policy, we did find common ground on issues including making more spectrum available for wireless broadband and protecting the Internet from international regulation. And even though more changes are needed that only legislation can secure, he did much to improve FCC process. Our meetings were always amiable and constructive, and we wish him and his family all the best."

Sen. Charles Grassley (R-IA), stated in a release that "The FCC's stonewalling over information on LightSquared was one of the worst instances I've seen in 30 years of dealing with federal agencies. It took months of pressure and requests, a hold on two nominees, and the involvement of a House committee for the FCC to begin to share documents on the LightSquared decision. Under Chairman Genachowski’s leadership, the FCC acted like a privileged organization that didn't have to answer basic questions about its decision-making process."

President Obama stated in a release that Genechowski brought to the FCC "a clear focus on spurring innovation, helping our businesses compete in a global economy and helping our country attract the industries and jobs of tomorrow. Because of his leadership, we have expanded high-speed internet access, fueled growth in the mobile sector, and continued to protect the open internet as a platform for entrepreneurship and free speech."

Walter McCormick, head of the US Telecom, praised Genachowski in a release for "putting broadband first", for the FCC's broadband plan, and for "executing fundamental reforms to the nation's universal service program".

AT&T's Jim Cicconi praised the outgoing Chairman in a release for focusing on broadband, for drafting a broadband plan, for contributing to the passage of the incentive auctions bill, and for reforming universal service and intercarrier compensation.

Verizon's Craig Silliman praised Genachowski in a release for his commitment to the adoption of broadband, and for "modernizing outdated policies, including reforms to the antiquated intercarrier compensation system and the Universal Service Fund", and for "addressing the surging demand for wireless spectrum".

Sprint's Vonya McCann stated in a release that "From his decision to block AT&T’s proposed takeover of T-Mobile USA, to his efforts to reform the Universal Service Fund, intercarrier compensation, special access and wireless Lifeline, Federal Communications Commission Chairman Julius Genachowski has repeatedly stood up for consumers and competition."

Steve Largent, head of the CTIA, praised him in a release, stating that he "was instrumental in overseeing the National Broadband Plan and has been a strong voice on spectrum issues and acceleration of broadband infrastructure deployment so that consumers may continue to enjoy the benefits of the wireless ecosystem. Julius recognized early on the benefits of mobile broadband and made it a priority to deliver additional, cleared spectrum to meet consumer demand".

Comcast's David Cohen praised Genachowski in a release in which he wrote that "Under his leadership, the Commission adopted a National Broadband Plan, the Connect America Fund and the Incentive Auction opportunity to help drive innovation, investment and job creation." Michael Powell, head of the National Cable & Telecommunications Association (NCTA) praised Genachowski in a release for promoting "investment in networks and services that are now delivering important societal benefits".

The Consumer Electronics Association (CEA) praised Genechowski in a release, singling out his role in the drafting of legislation to authorize incentive auctions.

Gordon Smith, head of the National Association of Broadcasters (NAB), praised Genachowski in a release. See also, praise from the National Association of Regulatory Utility Commissioners (NARUC).

Several commenters offered criticism of Genachowski -- some for being too regulatory, and some for not being regulatory enough.

Berin Szoka of the Tech Freedom wrote in a release that Genachowski "wasted two years and limited staff resources hunting down the great white whale of Net Neutrality. His attempted compromise contorted the FCC's legal authority well beyond what Congress intended. If, as is widely expected, the D.C. Circuit strikes down the Net Neutrality rules, the Commission will be back at square one -- four years later."

Szoka also complained that Genachowski has "set the Commission on the path to doing precisely what Congress told the agency not to do in the Spectrum Act: limit participation in incentive auctions."

At the other end of the ICT political spectrum, Craig Aaron of the Free Press wrote bitterly in a release that "instead of acting as the people's champion, he's catered to corporate interests. His tenure has been marked by wavering and caving rather than the strong leadership so needed at this crucial agency."

Aaron wrote that Genachowski "claimed to be a staunch defender of the open Internet, but his Net Neutrality policies are full of loopholes and offer no guarantee that the FCC will be able to protect consumers from corporate abuse in the future." Aaron also faulted Genachowski for continuing "the Bush administration's failed media ownership policies".

Similarly, the Public Knowledge (PK) complained in a release that "Genachowski's term can best be described as one of missed opportunities. He had the opportunity, but declined, to solidify the agency’s authority and ability to protect consumers with regard to broadband -- the communications system of the present and future. As a result, there is a real danger that the FCC will become a powerless and irrelevant agency as the nation’s communications networks change. The Chairman had the opportunity, but declined, to take several important steps that would have promoted more robust competition in the wireline and wireless broadband market. He punted on special access and permitted two major mergers, spelling the end of 'facilities-based' competition between the cable and telephone industries."

Sen. Hatch Introduces Bill to Create Position of Chief Innovation and Intellectual Property Negotiator at OUSTR

3/22. Sen. Orrin Hatch (R-UT) introduced S 660 [LOC | WW ], the "Innovation Through Trade Act of 2013'", a bill to amend the Trade Act of 1974 to establish the position of Chief Innovation and Intellectual Property Negotiator (CIIPN) in the Office of the U.S. Trade Representative (OUSTR).

This bill provides that the responsibilities of the CIIPN shall "be to conduct trade negotiations and to enforce trade agreements relating to United States intellectual property and to take appropriate actions to address acts, policies, and practices of foreign governments that have a significant adverse impact on the value of United States innovation."

The CIIPN also "shall be a vigorous advocate on behalf of United States innovation and intellectual property interests".

The CIIPN also shall submit reports to the Congress every 180 days regarding enforcement actions taken by the OUSTR during the preceding 180 days "to ensure the protection of United States innovation and intellectual property interests", and regarding other actions taken by the OUSTR "to advance United States innovation and intellectual property interests".

The Trade Act of 1974 is codified at 19 U.S.C. Chapter 12. This bill would amend the section that established the OUSTR, 19 U.S.C. § 2171.

The bill does not define the term "innovation".

Confirmation of this new position, like the three Deputy U.S. Trade Representatives and the Chief Agricultural Negotiator, will be referred the Senate Finance Committee (SFC). Also, this bill was referred to the SFC. Sen. Hatch is the ranking Republican.

Copyright Office Issues Notice of Inquiry on Improving Its IT

3/22. The Copyright Office (CO) published a notice in the Federal Register (FR) that announces a notice of inquiry (NOI) regarding potential improvements and technical enhancements to the information
technology platforms that support its registration and recordation functions.

The CO seeks comments on "how stakeholders use the current online offerings of the Copyright Office, especially with respect to registration and recorded documents, and how the current offerings meet, fail to meet, or exceed user expectations".

It also seeks comments on "how stakeholders would like to interact with the Copyright Office electronically in the future, or, put differently, what online services, or aspects of existing online services stakeholders would like to see."

More specifically, the CO seeks comments on the CO's electronic registration services and other portals and interfaces. The CO seeks comments on "the nature and scope of information captured during the course of the registration and recordation processes, including that which could be captured through user input, or through metadata harvesting", and "metadata standards in particular industries that the Copyright Office might adopt or incorporate into its systems (e.g., IPTC for photography; ISRC for sound recordings; ONIX for books)". (Parentheses in original.)

The CO also seeks comments on "data storage and security standards for electronic copyright deposits, including the development of policies and best practices for data retention and migration".

It also seeks "new ways of searching and accessing registration and recordation data and/or registration deposit metadata (e.g., image or music search technology)". (Parentheses in original.)

The CO notice does not mention orphan works, or how orphan works legislation would undermine the ability of photographers and others creators of non-text based works to enforce their copyrights. Effective search systems for non-text based works would limit the harm inflicted by orphan works legislation.

Finally, the CO seeks comments on "the integration of third-party databases of copyright ownership and licensing information (such as those maintained by collective management organizations) and related technologies with data maintained by the Copyright Office". (Parentheses in original.)

Comments are due by May 21, 2013. The CO personnel responsible for this proceeding are Douglas Ament and Christopher Reed. See, FR, Vol. 78, No. 56, March 22, 2013, at Pages 17722-17724.

Obama Withdraws Nomination of Halligan for DC Circuit

3/22. President Obama withdrew the nomination of Caitlin Halligan to be a Judge of the U.S. Court of Appeals (DCCir). See, White House news office release. President Obama has not yet announced his next selection for this position.

The Senate rejected a motion to invoke cloture on the nomination earlier this month. It also rejected a cloture motion early in the 112th Congress. See, story titled "Senate Rejects Cloture on Halligan Nomination for DC Circuit" in TLJ Daily E-Mail Alert No. 2,535, March 18, 2013.

President Obama stated in a release that "I am deeply disappointed that even after nearly two and a half years, a minority of Senators continued to block a simple up-or-down vote on her nomination. This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction. The D.C. Circuit is considered the Nation’s second-highest court, but it now has more vacancies than any other circuit court. This is unacceptable."

From the outset, President Obama had reasons to expect that the Halligan nomination would fail. First, this seat is open because Senate Democrats keep this seat open during in the Bush administration. Senate Republicans are loath to allow Democrats to succeed at this tactic. Whomever the President nominates may face this same objection.

Second, some of Halligan's actions and statements at the New York County District Attorney's Office and the Office of the New York State Attorney General led many Republican Senators and voters to view her as a judicial activist on Second Amendment and terrorism related issues. Also, some red state Democrats had reason to want to avoid an up or down vote.

More Judicial Appointments

3/22. The Senate confirmed Ketanji Jackson to be a Judge of the U.S. District Court (DC). See, Congressional Record, March 22, 2013, at Page S2346.

3/22. The Senate confirmed Raymond Moore to be a Judge of the U.S. District Court (DColo). See, Congressional Record, March 22, 2013, at Page S2346.

3/22. The Senate confirmed Troy Tunley to be a Judge of the U.S. District Court (EDCal). See, Congressional Record, March 22, 2013, at Page S2346.

More News

3/22. Microsoft released a report titled "2012 Law Enforcement Requests Report". It contains summary data, by nation, on law enforcement requests and court orders received by Microsoft and its Skype service. See, report and data tables [PDF].

ACLU Sues San Francisco to Block Warrantless Searches of Phones of Arrestees

3/21. The American Civil Liberties Union of Northern California (ACLUNC) and others filed a complaint [56 pages in PDF] in the Superior Court for the State of California against the City and County of San Francisco seeking declaratory and injunctive relief regarding the police practice of conducting warrantless searches of the cellular telephones of arrestees.

Marley Degner, of the San Francisco office of the law firm of Pillsbury Winthrop Shaw Pittman, the plaintiffs' attorney, stated in a release that "Cell phones today are virtual home offices that contain personal, professional, and financial information not just about us, but about anyone we communicate with in any way. Police need a warrant to search our home office. Our cell phones should be treated the same way".

This is a six count complaint. The first two counts allege violation of the California Constitution's right to privacy and right to be free from unreasonable searches and seizures.

The California Supreme Court previously held that warrantless cell phone searches incidental to arrest do not violate the U.S. Constitution's 4th Amendment search and seizure clause. See, 2011 opinion in People v. Diaz, 51 Cal.4th 84.

The facts of the Diaz case involved a police search incidental to an arrest in 2007 of a cell phone for text messages. In contrast, people now use smart phones that contain a vastly greater amount of personal and private information.

The complaint in the present case also pleads violation of 42 U.S.C § 1983, based upon violation of the U.S. Constitution's 1st Amendment free speech clause. It also pleads violation of the California Constitution's liberty of speech clause.

The complaint states that "The California Constitution provides greater privacy protections than the federal constitution Cell phones today are essentially compact home offices that can be carried on the person or in briefcase and searching them poses special privacy concerns beyond what is typical in the search and seizure context The California Constitution and First Amendment of the United States Constitution also safeguard the rights of free speech and free association against governmental interference in particular against the compelled disclosure of speech and associational information."

The complaint states that one of the individual plaintiffs, in an act of "peaceful civil disobedience", camped in a public plaza to protest a proposed ordinance regarding camping and sleeping in public. Police arrested him, and then searched his cell phone without a warrant.

The complaint states that the other individual plaintiff is an attorney, and member of the ACLUNC Board of Directors, who uses her Apple iPhone in the course of legal representation, and that it contains matters covered by the attorney client and work product privileges.

The complaint does not allege that she has been arrested, or that she has been subjected to a warrantless search of her smartphone. Rather, she is "concerned" about the loss of confidential communications, "in the event she were arrested in San Francisco".

FCC Releases 16th Wireless Competition Report

3/21. The Federal Communications Commission (FCC) released a report [339 pages in PDF] titled "Sixteenth Report" that partially complies with the statutory requirement that the FCC write annual reports on the state of wireless competition. The evidence collected for this report documents competition. The report, however, declines to makes this conclusion.

The relevant statute, codified at 47 U.S.C. § 332(c)(1)(C), requires the FCC to write annual reports on competition in "commercial mobile services" or CMS, which is defined in Section 332 and Section 153. While the statute requires that these reports be annual, the FCC during Chairman Genachowski's tenure has treated this annual requirement as optional.

The statute also requires that the FCC determine "whether or not there is effective competition". The FCC stopped making this required determination in its 14th, 15th and 16th reports. A conclusion that there is effective competition would undermine the FCC's claims that regulation of wireless is required. The policy goals of the FCC are driving its factual conclusions.

The report states that it "makes no formal finding as to whether there is, or is not, effective competition in the industry. Rather, given the complexity of the various inter-related segments and services within the mobile wireless ecosystem, the Report focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry."

FCC Chairman Julius Genachowski wrote in his statement that "America’s mobile marketplace has strengthened, with increased private investment and innovation, and revitalized competitors, though competition challenges remain. This 16th Report’s analytical framework reflects the Commission’s commitment to fact-based, data-driven analyses. We will continue that focus as we tackle the challenges of promoting competition, protecting consumers, and unleashing spectrum, all to drive U.S. leadership in mobile."

FCC Commissioner Robert McDowell wrote in his statement that this report "does not conclude, despite the wealth of evidence before us, ``whether or not there is effective competition,´´ as the statute requires. Instead, the report ``focuses on presenting the best data available on competition throughout this sector of the economy and highlighting several key trends in the mobile wireless industry.´´ Congress, however, tasked us with making a finding as to whether this sector is competitive. Clearly, it is. For this reason, I vote to concur to the Sixteenth Mobile Wireless Competition Report, as I have for the last two reports." (Footnote omitted.)

FCC Commissioner Ajit Pai wrote in his statement that "I cannot approve today’s report in every respect because it does not carry out all the tasks that Congress has assigned us. Specifically, Congress has directed us to include in our annual wireless competition report ``an analysis of whether or not there is effective competition.´´ The report simply does not do this. To be sure, some might not like answering this question. But the Communications Act does not give us the discretion to dodge. The binary choice of yes or no doesn’t countenance a hedge based on ``the complexity of the various inter-related segments and services within the mobile wireless ecosystem.´´" (Footnotes omitted.)

The relevant portion of the statute provides that "The Commission shall review competitive market conditions with respect to commercial mobile services and shall include in its annual report an analysis of those conditions. Such analysis shall include an identification of the number of competitors in various commercial mobile services, an analysis of whether or not there is effective competition, an analysis of whether any of such competitors have a dominant share of the market for such services, and a statement of whether additional providers or classes of providers in those services would be likely to enhance competition. As a part of making a determination with respect to the public interest under subparagraph (A)(iii), the Commission shall consider whether the proposed regulation (or amendment thereof) will promote competitive market conditions, including the extent to which such regulation (or amendment) will enhance competition among providers of commercial mobile services. If the Commission determines that such regulation (or amendment) will promote competition among providers of commercial mobile services, such determination may be the basis for a Commission finding that such regulation (or amendment) is in the public interest." (Parentheses in original.)

Steve Largent, head of the CTIA, stated in a release that the report "reveals a wealth of data that clearly highlights the innovation, investment and competition that epitomizes the U.S. mobile wireless ecosystem. We believe that a clear-eyed assessment of the level of investment, network deployment, world-leading operating systems, devices, applications and services conclusively demonstrates the value and benefits that consumers and businesses receive from the U.S. wireless industry. In this respect, we regret that the Commission again misses an opportunity to make a finding about the robust level of competition that consumers enjoy in the U.S."

 See also, statement by Verizon arguing that there is plenty of evidence of strong competition.

This report is FCC 13-34 in WT Docket No. 11-186.

Sen. Wyden and Rep. Chaffetz Introduce Geolocational Privacy and Surveillance Act

3/21. Sen. Ron Wyden (D-OR), and Sen. Mark Kirk (R-IL) introduced S 639 [LOC | WW | PDF], the "Geolocational Privacy and Surveillance Act" or "GPS Act" in the Senate. Also on March 21, Rep. Jason Chaffetz (R-UT) and others introduced HR 1312 [LOC | WW], the companion bill in the House.

These bills would require law enforcement agencies to obtain a court warrant to intercept, or acquire or from service providers, geolocation information associated with wireless phones and other devices, subject to emergency and other exceptions.

There was a related bill in the 112th Congress, S 1223 [LOC | WW], the "Location Privacy Protection Act of 2011", introduced by Sen. Al Franken (D-MN) on June 16, 2011.

Sen. Wyden stated in a release that "GPS technology has evolved into a useful commercial and law enforcement tool but the rules for the use of that tool have not evolved along with it".

He added that "The GPS Act provides law enforcement with a clear mandate for when to obtain a warrant for the geolocation information of an American. It also provides much-needed legal clarity for commercial service providers who often struggle to balance the privacy of their customers with requests for information from law enforcement. Finally, it protects the privacy and civil liberty of any American using a GPS-enabled device."

Rep. Chaffetz (at right) stated in a release that "the government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent or without obtaining a warrant from a judge."

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The GPS Act is vital to protect the privacy and civil liberties of Americans and to set standards that give businesses certainty and citizens greater confidence in their privacy. This is one of several critical privacy policies, which if properly resolved, can have a positive impact on stakeholders from customers to investors and can help boost a booming sector of our economy."

The ACLU's Chris Calabrese stated in a release that "Cell phones are also portable tracking devices, and the law needs to catch up with technology to protect Americans from the indiscriminant use of this type of invasive surveillance ... Police routinely get people's location information with little judicial oversight because Congress has never defined the appropriate checks and balances."

The House bill was referred to the House Judiciary Committee (HJC) and House Intelligence Committee (HIC). The original cosponsors are Rep. John Conyers (D-MI), Rep. Steve Chabot (R-IN), Rep. Sam Farr (D-CA), Rep. Peter DeFazio (D-OR), Rep. Chellie Pingree (D-ME), Rep. Jared Polis (D-CO), Rep. Ted Poe (R-TX), Rep. Zoe Lofgren (D-CA), Rep. Jim Sensenbrenner (R-WI), and Rep. Peter Welch (D-VT).

The Senate bill was referred to the Senate Judiciary Committee (SJC).

Summary of the GPS Act

3/21. Sen. Ron Wyden (D-OR) introduced S 639 [LOC | WW | PDF], the "Geolocational Privacy and Surveillance Act" or "GPS Act" in the Senate, and Rep. Jason Chaffetz (R-UT) introduced HR 1312 [LOC | WW], the companion bill in the House.

These bills would add a new Section 120 titled "Geolocation Information" to Title 18, the criminal code.

These bills contains four criminal prohibitions on the interception or disclosure of geolocation information. Then, the bills create numerous exceptions to the prohibitions. The key exception is for government entities that have obtained a warrant issued by a federal or state court.

There is also an exception for information acquired during the normal course of business. That is, the pertinent service providers may acquire and use geolocation information.

There is also an exemption for foreign intelligence surveillance.

There is also an exemption for the geolocation information of a person who has given consent.

There two exceptions related to "emergency" situations. First, there is an exception for any "law enforcement officer or other emergency responder to intercept or access geolocation information relating to a person if such information is used ... to respond to a request made by such person for assistance; or ... in circumstances in which it is reasonable to believe that the life or safety of the person is threatened, to assist the person".

Second, there is another "emergency" exception for any law enforcement officer who "reasonably determines" that there is an "immediate danger of death or serious physical injury to any person", that there are "conspiratorial activities threatening the national security interest", or there are "conspiratorial activities characteristic of organized crime", and the officer requires the information before he can with due diligence obtain a warrant.

There is also an exception for stolen devices. That is, the government can intercept or obtain geolocation information when the owner of a device has reported it stolen.

The four prohibitions of the bill, which are subject to the above exceptions, are as follows: First, "it shall be unlawful for any person to ... intentionally intercept ... geolocation information pertaining to another person".

Second, "it shall be unlawful for any person to ... intentionally disclose ... to any other person geolocation information pertaining to another person, knowing or having reason to know that the information was obtained through the interception of such information".

Third, "it shall be unlawful for any person to ... intentionally use ... any geolocation information, knowing or having reason to know that the information was obtained through the interception of such information".

Fourth, "it shall be unlawful for any person to ... intentionally disclose ... to any other person the geolocation information pertaining to another person intercepted by means authorized by" the bill's exceptions, "except as provided in such subsections ... knowing or having reason to know that the information was obtained through the interception of such information in connection with a criminal investigation".

These bill would apply to "geolocation information", which is defined as information "concerning the location of a wireless communication device or tracking device ... that, in whole or in part, is generated by or derived from the operation of that device"

These bills would apply to such geolocation information that is held by any "electronic communication service, a geolocation information service, or a remote computing service".

These bills also extend the exclusionary rule to unlawfully obtained geolocation information under this bill.

These bills also create a private right of action for damages for violation of the prohibitions of this bill.

People and Appointments

3/21. President Obama nominated Patricia Wald to be a Member of the Privacy and Civil Liberties Oversight Board (PCLOB) for a term expiring January 29, 2019. This is a reappointment. See, White House news office release and release.

More News

3/21. Sen. Bill Nelson (D-FL) and Sen. Richard Burr (R-NC) introduced S 647 [LOC | WW], a bill to modify the prohibition on recognition by U.S. courts of certain rights relating to certain marks, trade names, or commercial names. It was referred to the Senate Judiciary Committee. Neither Sen. Nelson nor Sen. Burr is a member.

3/21. The Securities and Exchange Commission (SEC) filed a civil complaint in the U.S. District Court (SDNY) that charges Rajarengan Rajaratnam with violation of federal securities law (Section 10b and Rule 10b5 thereunder) in connection with his alleged insider trading involving stock in several companies, including Clearwire, Akamai Technologies, and Advanced Micro Devices. This is another in the series of Galleon related cases. This case is SEC v. Rajarengan Rajaratnam, U.S. District Court for the Southern District of New York, D.C. No. 13 CV 1894. In addition, the same District Court unsealed a parallel indictment that charges Rajarengan Rajaratnam with criminal securities fraud and conspiracy. See, USAO release.

Go to News from March 16-20, 2013.