TLJ News: October 1-5, 2013.

TLJ News from October 1-5, 2013

Appropriations and the Judiciary

10/5. The Administrative Office of the U.S. Courts published a statement in its website on October 2, 2013 titled "Judiciary Open During Government Shutdown".

It states that "Following a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts."

Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), spoke in the Senate on October 5. He stated that "with the ongoing shutdown of the entire federal government, a handful of ideologues in the House of Representatives are holding the entire judicial system hostage and this threatens our entire democracy. " See, full statement.

Democratic members of the House Judiciary Committee (HJC) will hold an event, in the nature of a hearing, titled "Forum: Examining the Impact of the Government Shutdown and Sequestration on the Provision of Justice" on Tuesday, October 8, 2013. See, notice.

Rep. Waxman Complains About Time Warner Cable

10/4. Rep. Henry Waxman (D-CA), the ranking Democrat on the House Commerce Committee (HCC), sent a letter to Glenn Britt, CEO of Time Warner Cable (TWC) that relates to the intersection of partisan politics and communications regulation.

The HCC has jurisdiction over the Federal Communications Commission (FCC) and regulation of both communications and health care.

This letter is a rare example of an HCC member publicizing one aspect of communications regulation that is usually understood, but rarely mentioned. Federal regulation of communications media, including broadcasters and cable companies, has long been intertwined with efforts to influence speech, including news content and political opinion.

Rep. Henry Waxman Rep. Waxman's (at right) letter to Britt references an email message. The ranking Democrat published the email in the HCC Democrats web site, but redacted most all of it. The unredacted portion discloses that it came from the email domain twcable.com, and that it was sent on September 27. Most of the message is the list of recipients. Rep. Waxman stated that the email was sent to Republicans.

The subject line of the email is "Networks". The body of the message is "next time you think about helping the broadcasters -- particularly the networks -- read this". There is then a hyperlink to a September 27, 2013 article by Daniel Halper published in the Weekly Standard titled "NBC Launches Week of Programming to 'Help' Obamacare Succeed".

Halper's article begins with the statement that "NBC announced today that it would be launching a week of programming to help Obamacare get off its feet ..."

Broadcasters and cable companies sometimes seek conflicting outcomes in the drafting of legislation by the Congress, and in both rulemaking and adjudicatory proceedings at the FCC. For example, they have recently sparred over the retransmission consent regime.

See for example, stories titled "Rep. Eshoo Releases Draft of Bill to Alter Retransmission Consent Regime" in TLJ Daily E-Mail Alert No. 2,599, September 11, 2013, "CBS Reaches Carriage Agreement with Time Warner Cable" in TLJ Daily E-mail Alert No. 2,593, September 2, 2013, and "CBS, Time Warner Cable, and Retransmission Consent" in TLJ Daily E-Mail Alert No. 2,588, August 7, 2013.

The TWC email brings to the attention of Republicans what many Republicans would consider to be biased reporting by a broadcaster that favors the Democrats' over the Republicans' position on Obamacare.

Rep. Waxman complained in his letter about "the reckless Republican extremists that seem to be running the House of Representatives".

He also asked Britt, "Could you please explain why this email was sent and what purpose it serves?"

Rep. Waxman did not explain what purpose is served by his publicizing his unkind characterization of his colleagues, or by exposing the political and partisan underside of communications regulation.

US and UK Governments Target Tor Users

10/4. The Guardian published a series or articles by James Ball, Bruce Schneier, and Glenn Greenwald on October 4, 2013 titled "NSA and GCHQ target Tor network that protects anonymity of web users". These articles are based upon documents disclosed by Edward Snowden.

Tor states in its web site that it is "free software and an open network" that "protects you by bouncing your communications around a distributed network of relays run by volunteers all around the world: it prevents somebody watching your Internet connection from learning what sites you visit, and it prevents the sites you visit from learning your physical location."

The three wrote that Snowden documents "reveal that the agency's current successes against Tor rely on identifying users and then attacking vulnerable software on their computers. One technique developed by the agency targeted the Firefox web browser used with Tor, giving the agency full control over targets' computers, including access to files, all keystrokes and all online activity. But the documents suggest that the fundamental security of the Tor service remains intact."

18 U.S.C. § 1030, which criminalized unauthorized access to computers, contains an exception for intelligence agencies. Subsection 1030(f) provides that "This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States."

How the NSA Compromises Tor Users' Computers. Schneier wrote a related article published in the Guardian titled "Attacking Tor: how the NSA targets users' online anonymity" that discusses the technology in more detail.

He wrote that "Tor is a high-priority target" for the National Security Agency (NSA).

He explained that "one successful technique the NSA has developed involves exploiting the Tor browser bundle, a collection of programs designed to make it easy for people to install and use the software. The trick identified Tor users on the internet and then executes an attack against their Firefox web browser."

Schneier wrote that the NSA has the resources to identify Tor traffic. "The very feature that makes Tor a powerful anonymity service, and the fact that all Tor users look alike on the internet, makes it easy to differentiate Tor users from other web users. On the other hand, the anonymity provided by Tor makes it impossible for the NSA to know who the user is, or whether or not the user is in the US."

Then, "After identifying an individual Tor user on the internet, the NSA uses its network of secret internet servers to redirect those users to another set of secret internet servers, with the codename FoxAcid, to infect the user's computer. FoxAcid is an NSA system designed to act as a matchmaker between potential targets and attacks developed by the NSA, giving the agency opportunity to launch prepared attacks against their systems."

"Once the computer is successfully attacked, it secretly calls back to a FoxAcid server, which then performs additional attacks on the target computer to ensure that it remains compromised long-term, and continues to provide eavesdropping information back to the NSA."

Schneier concluded that "Tor is a well-designed and robust anonymity tool, and successfully attacking it is difficult. The NSA attacks we found individually target Tor users by exploiting vulnerabilities in their Firefox browsers, and not the Tor application directly."

EPIC's FOIA Request to the BBG. On May 31, 2013, the Electronic Privacy Information Center (EPIC) submitted a request to the Broadcasting Board of Governors (BBG), pursuant to the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, asking for documents related to the Tor anonymous web use software.

The EPIC wrote in this request that "Internet users around the world use Tor to maintain anonymity and circumvent Internet restrictions. It works by encrypting Internet data and routing it through a series of ``nodes´´ hosted by volunteers to create a secure relay between the user and their destination. This obscures both the origin and destination of the user. Tor is used by academics, political dissidents, law enforcement, journalists, whistleblowers, NGOs, the U.S. Navy, and everyday individuals. The BSG has been a sponsor of Tor since 2006, and has contributed over $Im in funding since then." (Footnotes omitted.)

The EPIC asked for "All agreements and contracts concerning BBG funding or sponsorship of The Tor Project, Inc., Tor Solution Corporation, and Tor Solutions Group", "Technical specifications of all BBG computers running Tor nodes", "All reports related to BBG's modification of the Tor software", and "All agreements and contracts between the BBG and The Tor Project, Inc., Tor Solution Corporation, and Tor Solutions Group regarding features or capabilities in the Tor software".

The BBG broadcasters, which are funded by Congressional appropriations, include the Voice of America, Radio Free Europe/Radio Liberty, the Middle East Broadcasting Networks (Alhurra TV and Radio Sawa), Radio Free Asia, and the Office of Cuba Broadcasting (Radio and TV Marti).

The EPIC filed a complaint [10 pages in PDF] against the BBG on September 9 in the U.S. District Court (DC).

The EPIC wrote in its web site on September 25 that its received documents [75 pages in PDF] from the BBG, and that they "reveal no efforts by the NSA to undermine the security or reliability of the Tor network".

Academics and Groups Fault President's Surveillance Review Process

10/4. Academics and interest groups filed statements with the panel that President Obama selected following widespread public criticism of government surveillance activities and operations disclosed by Edward Snowden.

Commenters argue that the review group must examine highly complex and technical ICT systems and surveillance tactics, but cannot, because it lacks the technical expertise to understand all of this. Moreover, the process lacks transparency. In particular, there is no meaningful opportunity for public input. It also lacks independence.

On August 9, 2013, President Obama announced the formation of a small group of people titled "President’s Review Group on Intelligence and Communications Technology".

The formation of this group is largely an exercise in delay and deception. It serves the purposes of manufacturing the appearance that the government has more concern for the interests and Constitutional rights of persons who utilize information and communications technologies (ICT) than actually exists, and to fabricate the appearance the the government is taking action to remedy unpopular aspects of government surveillance programs. It also provides a pretext for the government and Congress to delay taking any action to redress public concerns.

Also, in the context of notice and comment proceedings, this is an exercise in absurdity. Government bodies frequently seek public comments on written proposals, which often contain the actual texts of changes to law. In the present matter, the government has proposed nothing, and released nothing. There is nothing upon which to comment, except news media stories, the accuracy and patriotism of which the government vehemently denies.

The group's self imposed deadline to submit a report is December 15, 2013. See, ODNI release of August 12, and White House news office release of August 27. The group could release the full text of a draft report, and request comments upon that, but it will not.

A collection of academics and interest group representatives submitted an item [11 pages in PDF] titled "Technologists’ Comment to the Director of National Intelligence Review Group on Intelligence and Communications Technology".

This letter complains that while government surveillance is "complex, systemic and state-of-the-art", the review group "does not have a technologist". The letter argues that the group "needs competent technical advice to do its job properly", and that a "lack of technical understanding in existing oversight bodies has already resulted in substantial material defects in" government surveillance programs.

Moreover, the letter insists not only that the group needs technical advisors, but that they must be independent of the intelligence community.

The group is comprised of Cass Sunstein (law professor and former Obama administration official), Michael Morrell (former Deputy Director of the CIA), Geoffrey Stone (law professor), Richard Clarke (former government official, now a cyber security consultant), and Peter Swire (law professor). Two are Chicagoans, Sunstein and Stone, like Obama.

This letter overstates the lack of technical expertise on the review group. None are scientists or engineers with specialties related to ICT and surveillance. However, during the Bush administration Clarke was Special Advisor to the President on Cybersecurity. Swire is a law professor, but has focused on legal issues involving ICT, including surveillance, since the 1990s. He co-chairs the Do Not Track standards process of the World Wide Web Consortium.

Also, the letter states that the government body titled "Foreign Intelligence Surveillance Court" or "FISC" also lacks technical expertise. It states that "without an understanding of the technical details of surveillance programs, the FISC has been forced to accept unsupported assertions that the government has made about those programs". Moreover, "It is deeply problematic that the court has no way to verify these types of assertions, and that the court is not provided an independent technologist or adviser outside of the intelligence community."

The letter continues that the FISC must be changed so that it becomes "a transparent adversarial process". It states that "the government's adversary as well as the court itself need to have independent technical experts on staff with all the requisite security clearances to be wholly read in to all of the technical details of the NSA surveillance programs."

The letter does not identify who would be the "government's adversary" in each of the FISC processes. For example, a set of related FISC orders may be directed to phone companies that are not adverse to the government, and which cannot be relied upon to advocate the interests of people who rely upon communications technologies.

This letter also addresses the circumstance that the NSA has two missions that irreconcilably conflict -- breaking other people's encryption, and advancing information assurance. Weaker information assurance furthers its paramount mission of breaking encryption and accessing other people's data, conversations and e-mail.

The letter states that recent disclosures have revealed that NSA activities "fundamentally undermine general systems security in dangerous ways. In the NSA's dual role as both an information assurance and signals intelligence entity, clearly the signals intelligence mission has trumped information assurance."

The letter explains. First, "the NSA has been working to subvert standards-setting efforts. In one case -- the standard random number generator called ``Dual_EC_DRBG´´-- it is widely acknowledged that the NSA planted a ``trap door´´ in the algorithm that allows the agency to decrypt communications that use Dual_EC_DRBG." (Footnote omitted.)

The letter continues that this undermined the efforts of the National Institute of Standards and Technology (NIST) "to produce secure cryptographic standards", and "resulted in massive product recalls and expensive internal audits at businesses to determine if products they had relied on for strong security were in fact quite weak."

Second, the NSA has "apparently engaged in subversion to undermine encryption online".

Third, the letter states that "the NSA has reportedly worked to covertly and overtly plant backdoors in software and hardware products, undermining the security and privacy of vast swaths of Internet users in an indiscriminate, dragnet manner."

The interest groups whose representatives signed this letter include the ACLU, Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF), and New America Foundation (NAF).

The NAF also submitted a separate letter. It too argued that the President's review group "is limited in technical expertise, making it difficult to fully analyze the technical implications of the government's surveillance programs and activities".

It also urged that "special attention should be paid to Section 215 of the PATRIOT Act as well as Section 702 of the 2008 FISA Amendments Act."

The NAF warned that unless the review process is reformed, "we will see a further movement by many nations to impose data localization and traffic routing requirements that will not only contribute to a balkanization of the open Internet but also facilitate network architectures that would further empower authoritarian states to surveil and censor communications".

It also wrote that the government must "rebuild trust in the United States as a benevolent steward of the Internet and reaffirm the nation's respect for international law and commitment to protecting civil liberties and human rights both at home and abroad. Restoring trust is critical as well to ensuring that the country’s burgeoning technology sector remains vibrant, open, and healthy."

NTIA Announces Meeting on Copyright Policy

10/3. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register (FR) that announces that it will hold a meeting on October 30, 2013 to discuss its Internet Policy Task Force's (IPTF) paper [122 pages in PDF] titled "Copyright Policy, Creativity, and Innovation in the Digital Economy", released on July 31, 2013.

The meeting will be held from 8:30 AM to 5:00 PM in the Amphitheatre of the Ronald Reagan Building and International Trade Center.

Written comments are due by November 15, 2013. The deadline to submit comments that may be discussed at the meeting is October 15. See, FR, Vol. 78, No. 192, October 3, 2013, at Pages 61337-61341. See also, U.S. Patent and Trademark Office (USPTO) release.

People and Appointments

10/3. The Senate Commerce Committee (SCC) postponed its executive session scheduled for October 2, 2013, at which it had scheduled votes on the nominations of Michael O'Rielly (FCC Commissioner), Terrell McSweeny (FTC Commissioner), and Jo Handelsman (Associate Director for Science in the EOP's Office of Science and Technology Policy).

10/3. Tech America (TA) named Dan Rosensweig, P/CEO of Chegg, its "2013 Entrepreneur of the Year". See, TA release.

More News

10/3. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register (FR) that announces, describes, recites, and sets the effective date for, changes to the Patent and Trademark Office Acquisition Guidelines. The effective date is October 3, 2013. The USPTO also requests comments, but sets not deadline. The docket number is PTO-C-2013-0044 . See, FR, Vol. 78, No. 192, October 3, 2013, at Pages 61185-61188.

10/3. The Federal Communications Commission (FCC) set comment deadlines for refreshing the record in its phone bill cramming proceedings. The deadline to submit initial comments is November 18, 2013. The deadline to submit reply comments is December 2. See, FCC's August 27, 2013 Public Notice (PN) that seeks new comments. This PN is DA 13-1807 in CG Docket Nos. 11-116 and 09-158, and CC Docket No. 98-170. The FCC adopted and released its last Further Notice of Proposed Rulemaking (FNPRM) [79 pages in PDF] on cramming on April 27, 2012. It is FCC 12-42 in the same dockets. See, notice in the Federal Register, Vol. 78, No. 192, October 3, 2013, at Pages 61250-61251 which sets comment deadlines. See also, and story titled "FCC Again Seeks Comments on Phone Bill Cramming" in TLJ Daily E-Mail Alert No. 2,593, September 2, 2013.

10/3. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register (FR) that contains six pages of "corrections" to the changes to the Export Administration Regulations (EAR) published on April 16, 2013. The effective date is October 15, 2013. See, FR, Vol. 78, No. 192 October 3, 2013, at Pages 61743-61748. See also, notice in the FR, Vol. 78, No. 73, April 16, 2013, at Pages 22659-22740. The Department of State (DOS) published a parallel notice in the FR that contains thirteen pages of "corrections" to the changes to the International Traffic in Arms Regulations (ITAR) published on April 16. See, FR, Vol. 78, No. 192, October 3, 2013, at Pages 61749-61761, and notice in the FR, Vol. 78, No. 73, April 16, 2013, at Pages 22740-22759.

People and Appointments

10/2. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) published a notice in the Federal Register (FR) that announces that it seeks applications for membership on its Commerce Spectrum Management Advisory Committee (CSMAC). Applications are due by November 15, 2013. See, FR, Vol. 78, No. 191, October 2, 2013, at Pages 60860-60861.

Supreme Court to Examine Award of Attorney Fees in Patent Cases

10/1. The Supreme Court granted certiorari in Octane Fitness v. ICON Health & Fitness, Sup. Ct. No. 12-1184, a patent infringement case in which the sole issue before the Supreme Court is the award of attorney fees. See, October 1, 2013 Orders List [2 pages in PDF]. See, full story.

Supreme Court Grants Cert in Case Involving Laches As Defense to Copyright Infringement

10/1. The Supreme Court granted certiorari in Petrella v. MGM, a copyright case in which the issue before the Supreme Court is whether the defense of laches is available without restriction to bar all remedies for civil copyright claims filed within the three year statute of limitations prescribed by 17 U.S.C. § 507(b). See, October 1, 2013 Orders List [2 pages in PDF].

The Supreme Court stated in its document titled "Question Presented" that "The Copyright Act expressly prescribes a three-year statute of limitations for civil copyright claims. 17 U.S.C. § 507(b). The three-year period accrues separately for each act of infringement, even if it is one of a continuing series of acts of infringement."

It added that "The federal courts of appeals have divided 3-2-1 over whether the nonstatutory defense of laches can bar a civil copyright suit brought within the express three-year statute of limitations. Three circuits forbid any application of laches or restrict the remedies to which it can apply. Two other circuits strongly disfavor laches and restrict it to exceptional circumstances. The Ninth Circuit not only does not restrict laches or the remedies to which it can apply, but has also adopted a presumption in favor of applying laches to continuing copyright infringements."

Section 507(b) of the statute provides, in full, that "No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued."

Laches is an affirmative defense, arising in equity, that bars a claim based upon unreasonable delay.

Paula Petrella is the daughter of Frank Petrella, who collaborated Jake LaMotta to produce a book, a screenplay in 1963, and a second screenplay in 1973, about the retired boxer. The elder Petrella registered copyrights in these works. MGM made a movie in 1980, titled "Raging Bull", based on these works.

In 1976 the elder Petrella and LaMotta assigned certain rights to Chartoff-Winkler Productions, Inc., which latter assigned rights to United Artists, a subsidiary of MGM.

Frank Petrella died, leaving his daughter Paula Petrella as heir.

She learned of the Supreme Court's 1990 opinion in Stewart v. Abend, 495 U.S. 207, in 1990. That case pertains to successors' renewal rights when the original author dies before a renewal period begins. She hired an attorney. However, she first asserted rights in the 1963 screenplay in 1998. She filed a complaint in the U.S. District Court (CDCal) against various MGM companies and others, alleging that the movie is an infringing derivative work. However, she did not file until 2009.

The District Court held that Petrella's copyright infringement claim is barred by the doctrine of laches. She appealed.

The U.S. Court of Appeals (9thCir) issued its opinion, which is also reported at 695 F.3d 946, on August 29, 2012. It affirmed the judgment of the District Court.

It wrote that the three elements of the doctrine of laches are that "the plaintiff delayed in initiating the lawsuit", that "the delay was unreasonable", and that "the delay resulted in prejudice".

The Court of Appeals, like the District Court, found that the plaintiff delayed a total of 19 years, that was unreasonable, and it resulted in prejudice to the movie company defendants.

This case is Petrella v. MGM, Supreme Court of the U.S., Sup. Ct. No. 12-1315, on petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 10-55834 and 10-55853. The Court of Appeals heard appeals from the U.S. District Court for the Central District of California, D.C. No. 2:09-cv-00072-GW-MAN.

Judge Raymond Fisher wrote the opinion of the Court of Appeals, in which Judge Jack Zouhary (USDC/NDOhio, sitting by designation) joined. Judge William Fletcher wrote a concurring opinion.

Petrella is represented before the Supreme Court by Stephanos Bibas of the University of Pennsylvania Law School Supreme Court Clinic. MGM is represented by Mark Perry of the Washington DC office of the law firm of Gibson Dunn & Crutcher.