Top Stories from 2013
Reps. Latta
and Green Introduce Bill to End FCC's Integration Ban
9/26. Rep. Bob Latta (R-OH) and
Rep. Gene Green (D-TX) introduced HR 3196
[LOC |
WW], an untitled
bill that would end the Federal Communications Commission's (FCC) integration ban for
multichannel video programming distributors (MVPDs). The FCC created integration ban
currently prohibit MVPDs from making available to consumers devices that contain both
navigation of video content functions and security functions.
Bill Baer
Addresses Antitrust Remedies
9/25. Bill Baer, Assistant Attorney General in charge of the Department of
Justice's (DOJ) Antitrust Division,
gave a speech
[13 pages in PDF] in Washington DC titled "Remedies Matter: The Importance of
Achieving Effective Antitrust Outcomes".
USTR Seeks
Comments on Notorious Foreign Markets
9/20. The Office of the U.S. Trade Representative
(OUSTR) published a
notice in
the Federal Register (FR) that requests comments to assist it in preparing a report on
the internet and physical notorious markets that exist outside the US and that may be
included in the OUSTR's 2013 Notorious Markets List.
House Passes
Rare Earths Bill
9/18. The House passed HR 761
[LOC |
WW], the
"National Strategic and Critical Minerals Production Act of 2013", a bill
that would have the effect of
facilitating domestic mining and extraction of rare earth materials (REMs), which are
used in information and communications technology (ICT) products. Republicans voted
unanimously for the bill. Most Democrats voted against.
House Members
Introduce Internet Tax Freedom Act Extension Bill
9/12. Rep. Bob Goodlatte (R-VA) and
others introduced HR 3086
[LOC |
WW], the
"Permanent Internet Tax Freedom Act". This is one of four nearly
identical bills introduced in the 113th Congress that would extend the Internet
Tax Freedom Act (ITFA), which is set to expire on November 1, 2014.
District
Court Issues Final Judgment in Apple E-Books Antitrust Case
9/6. The U.S. District Court (SDNY)
issued its final judgment
and permanent injunction [17 pages in PDF] in U.S. v. Apple, the
e-books antitrust case. It bars Apple from engaging in numerous activities
related to conspiring to fix prices. It also provides for a court appointed
"External Compliance Monitor", for "a period of two years".
9th Circuit
Affirms in Somers v. Apple
9/3. The U.S. Court of Appeals (9thCir) issued
its
opinion [26 pages in PDF] in Somers v. Apple, a putative class action
alleging violation of federal and state antitrust law by Apple in connection with
portable digital media players (PDMPs) such as the iPod, music download services such
as the iTunes music store, and digital rights management (DRM). The Court of Appeals
affirmed the judgment of the U.S. District
Court (NDCal), which denied class certification, and dismissed the complaint for
failure to state a claim under Rule 12(b)(6), FRCP.
FTC
Administrative Complaint Asserts Authority to Regulate Data Security Practices
8/29. The Federal Trade Commission (FTC) announced
that it has filed (but not released to the public) an administrative complaint against
LabMD. The FTC issued only a news
release that states that LabMD "failed to reasonably protect the security of
consumers' personal data, including medical information". See also, the FTC's
web page for this
proceeding, FTC Docket No. 9357.
FISC
Orders Verizon to Produce Call Data for Everyone Every Day
6/6. The Guardian, a newspaper and news publishing business based in the
United Kingdom, published an
article by Glenn Greenwald titled "NSA collecting phone records of millions
daily, court order reveals". The Guardian also published a copy of a document
[
PDF | HTML] titled
"Secondary Order" issued by the U.S. federal government entity titled
"Foreign Intelligence Surveillance Court", or "FISC".
Indictment
Returned and Domains Seized in Liberty Reserve Digital Currency Matter
5/28. The U.S. District Court (SDNY)
unsealed an indictment that charges Liberty Reserve S.A. and several individuals with
conspiracy (18 U.S.C. § 371)
to commit money laundering (18
U.S.C. § 1956) and operating an unlicensed money transmitting business
(18 U.S.C. §§ 1960 and
1962) in connection with
the operation of a digital currency, a payment processor and money transfer system.
DC Circuit
Overturns FCC's Tennis Channel Order
5/28. The U.S. Court of Appeals (DCCir)
issued its
opinion [51 pages in PDF] in Comcast v. FCC, granting the petition
for review of the Federal Communications Commission's (FCC) July 2012 order, in
which the FCC found that Comcast discriminated against the Tennis Channel (TC)
in tier placement. All three members of the three judge panel wrote opinions.
The line of reasoning in which all three judges joined was the absence of
evidence in support of the TC's claim that Comcast discriminated against an
unaffiliated vendor in violation of the statute and regulations.
Representatives
Reintroduce Password Protection Act
5/21. Rep. Ed Perlmutter (D-CO),
Rep. Peter Welch (D-VT), and others introduced
HR 2077 [LOC |
WW |
PDF], the
"Password Protection Act of 2013", a bill that would amend
18 U.S.C. § 1030
to bar employers, under certain circumstances, from compelling the disclosure by
their employees or job applicants of passwords for their own computers, e-mail
accounts and social media accounts.
Sen. Levin's
Subcommittee Harasses Apple
5/21. The Senate Homeland Security and
Government Affairs Committee's (SHSGAC) Subcommittee on Investigations, chaired by
Sen. Carl Levin (D-MI), held a hearing titled
"Offshore Profit Shifting and the U.S. Tax Code". Sen. Levin harangued and
harassed Apple, and its CEO, Tim Cook. However, neither Sen. Levin, nor anyone else at
this hearing alleged that Apple has violated any tax or other laws of the U.S. or any
other nation.
EC to
Investigate Huawei and ZTE
5/15. The European Commission's (EC) Trade Commissioner, Karel De Gucht, announced in
a release
that the EC has decided "to open an ex officio anti-dumping and an anti-subsidy
investigation concerning imports of mobile telecommunications networks and their
essential elements from China".
Associated
Press Alleges Unjustified FBI Seizure of Reporters' Phone Records
5/13. The Associated Press (AP) released a
statement on May 13, 2013 that discloses that the
Department of Justice (DOJ) "secretly obtained two months of telephone records
of reporters and editors for the Associated Press". The AP wrote that the DOJ
obtained records regarding "incoming and outgoing calls, and the duration of
each call, for the work and personal phone numbers of individual reporters, general
AP office numbers in New York, Washington and Hartford, Conn., and the main number
for AP reporters in the House of Representatives press gallery".
Sen. Paul
Introduces Tax Repatriation Bill
5/9. Sen. Rand Paul (R-KY) introduced
S 911 [LOC
| WW], the
"Emergency Transportation Safety Fund Act", a bill that would amend the
Internal Revenue Code (IRC) to incent repatriation of profits earned by foreign
subsidiaries of U.S. companies, and use some of the tax revenues collected by
such repatriation for the interstate highway system, roads and bridges, and other
transportation emergency priorities.
Senate Passes
Internet Sales Tax Bill
5/6. The Senate amended and passed S 743
[LOC |
WW], a
bill to authorize states to compel out of state retailers to collect sales taxes
on internet and other remote sales, by a vote of 69-27. See,
Roll Call No. 113. This bill, titled the "Marketplace Fairness Act",
has not been passed by the House.
2nd Circuit
Affirms in Aereo Copyright Cases
4/1. The U.S. Court of Appeals
(2ndCir) issued its divided
opinion [62 pages in PDF] in WNET v. Aereo and ABC v. Aereo
affirming the order of the U.S. District
Court (SDNY) denying Aereo's motion for a preliminary injunction. The majority
held that Aereo's service, which captures, stores, and almost immediately retransmits
broadcasters' programming, without license, to its own customers, for a fee, via a
multitude of antennas, is not a public performance with the meaning of the Copyright
Act, and hence, does not infringe the exclusive rights of broadcasters.
Supreme
Court Holds First Sale Doctrine Applies Regardless of Location
3/19. The Supreme Court issued its
opinion
[74 pages in PDF] in Kirtsaeng v. John Wiley & Sons, holding that the
first sale doctrine of the Copyright Act applies to goods that are made abroad,
legally acquired abroad, and imported into the US for resale. This is a serious
setback for large book, movie, record and software companies, and a victory for
eBay and other e-commerce companies.
Obama Picks
IT Nemesis Tom Perez to Be Secretary of Labor
3/18. President Obama gave a
speech in which he announced that he will nominate Tom Perez to be Secretary
of Labor. Perez is currently Assistant Attorney General (AAG) in charge of the
Department of Justice's (DOJ) Civil Rights
Division (CRD).
Sen.
Ayotte and Rep. Chabot Introduce Bills to Make the Internet Tax Freedom Act
Permanent
2/4. Sen. Kelly Ayotte (R-NH)
and Sen. Dean Heller (R-NV)
introduced S 31
[LOC |
WW], the
"Permanent Internet Tax Freedom Act of 2013", on January 22, 2013.
This bill would make permanent the current partial ban on state internet
access taxes and multiple and discriminatory taxes on electronic commerce.
FTC
Releases Report on Mobile Privacy Disclosures
2/1. The Federal Trade Commission (FTC)
released a
report [36 pages in PDF] titled "Mobile Privacy Disclosures: Building
Trust Through Transparency". It enumerates numerous "suggestions"
and "recommendations" for the businesses and organizations involved in
mobile communications regarding their privacy related practices and disclosures.
WTO Authorizes Antigua and Barbuda
to Infringe US IP Rights
1/28. The World Trade Organization
(WTO) authorized the tiny Caribbean nation of Antigua and Barbuda (AB) to
retaliate against the US for violating WTO obligations by maintaining
protectionist gambling laws that discriminate against internet gambling
services provided in AB. The retaliatory measures approved by the WTO include
violation of intellectual property rights of US rights holders with a total
value of $21 Million per year.
4th Circuit Upholds Secrecy of Court
Surveillance Orders
1/25. The U.S. Court of Appeals
(4thCir) issued its
opinion [22 pages in PDF] in US v. Appelbaum, regarding public
access to court orders issued pursuant to
18 U.S.C. §
2703(d) compelling service providers, such as Twitter, to provide
the government with transactional information, or the contents of
electronic communications.
Supreme Court Grants
Cert in Cases Involving SLUSA and Law Firms
1/18. The Supreme Court granted
certiorari in Chadbourne & Parke v. Troice, Willis of Colorado v.
Troice, and Proskauer Rose v. Troice, consolidated cases involving
the Securities Litigation Uniform Standards Act (SLUSA) and state class actions
against the law firms that represent persons and entities alleged to have
defrauded investors.
Guns,
Video Games, Apps, and Video Programming
1/16. President Obama and Vice President Biden gave a joint
speech at which they advocated greater regulation of guns and gun
transactions. Afterwards, the President signed two memoranda. Most of
the legislative proposals and regulatory actions contained in these speeches
and memoranda do not relate to information and communications technology (ICT).
However, also at issue are actions that the federal government might take with
respect to regulating video games, apps, movies, and the video programming of
television broadcasters and other multichannel video programming distributors
(MVPDs).
Sen.
Wyden Describes His Tech Policy Agenda
1/9. Sen. Ron Wyden (D-OR) gave a
speech in which
he listed and discussed his proposals for legislative and agency action. He
said the foreign IP infringing activity should be dealt with by trade policy
rather than by bills such as the SOPA and PIPA. He called for legislation to
regulate broadband data caps. He advocated a Congressional review of software
patents. He urged expansion of the FCC's December 2010 order regulating
broadband internet access service (BIAS) providers to regulate wireless
providers the same as wireline. He advocated amending antitrust statutes to
prohibit BIAS providers from discriminating against content providers. He
advocated rewriting the ECPA to protect privacy.
DOJ
and USPTO Issue Statement on Injunctive Relief for Infringement of SEPs Subject
to FRAND Commitments
1/8. The Department of Justice's (DOJ)
Antitrust Division and the U.S. Patent and
Trademark Office (USPTO) released a
document
[10 pages in PDF] titled "Policy Statement on Remedies for Standards-Essential
Patents Subject to Voluntary F/RAND Commitments". This policy statement
argues that an exclusion order or injunction for a FRAND encumbered SEP may be
inconsistent with the public interest. However, there are exceptions.
Commentary: Unemployment Rate, Participation Rate, and Tech Policy
1/4. This piece explains the unemployment rate and participation rate,
and recites their recent trends. While far more attention is focused on
the unemployment rate, this piece argues that the participation rate now
warrants notice. It is in a steep decline. This piece also argues that this
could impact technology related policy making. In particular, there is a
large and growing number able bodied trained workers who no longer have
jobs, and are not longer looking for jobs. They now longer count in
calculating the unemployment rate, but they still vote. Politicians may
seek their support by casting blame for their lack of employment on foreign
competition. This may result in policies that undermine free trade, and the
free flow of services, capital, data, and tech workers. This would harm
tech companies and consumers both in and outside of the US.
FTC
Concludes Its Investigation of Google
1/3. The Federal Trade Commission (FTC)
filed and simultaneously settled an administrative complaint against Google
regarding its abuse of standards essential patents (SEPs) for which it was
bound by FRAND commitments. Google admitted neither wrongdoing, nor relevant
factual allegations. An accompanying order imposes some limitations on its
ability to abuse these SEPs. Second, the FTC announced in a
statement [4 pages in PDF] that it will take no action against Google with
respect to search bias.