1. ITA, USTR Request Comments on Trade Advisory Committee System

The White House has posted a joint statement from the U.S., Mexico, and Canada from the recent meeting of the North American Leaders in Mexico. In the joint statement the leaders noted that they are investing in border infrastructure, including advanced technology, to create truly modern borders to facilitate trade and the smooth operation of supply chains, while protecting security. The leaders pledge to cooperate in the protection of intellectual property rights to facilitate the development of innovative economies. (Statement, dated 08/10/09, available at http://www.whitehouse.gov/the_press_office/Joint-statement-by-North-American-leaders/)

BERKELEY, Calif. -- A former judge on a secret court of wiretapping appeals faulted Congress as having failed to do oversight of the Bush administration’s warrantless communications surveillance. Edward Leavy, who left the Foreign Intelligence Surveillance Court of Review last year, said the lapse undermined the checks that Congress had set up decades earlier against a lawless executive branch. He still sits on the 9th U.S. Circuit Court of Appeals in San Francisco.

BERKELEY, Calif. -- A former judge on a secret wiretapping appeals court faulted Congress as having failed to do oversight of the Bush administration’s warrantless communications surveillance. He argued that undermined the checks it had set up decades earlier against a lawless executive branch.

Porn sites could no longer hide behind court rulings that found them exempt from federal labeling and record- keeping obligations -- so-called 2257 rules -- regarding depictions of sexually explicit conduct, under a Justice Department proposal. And social-network users who upload racy material might also be covered. The department released proposed rules to carry out provisions of the Adam Walsh Child Protection and Safety Act. The law, passed in 2006 but not fully enforced, was intended in part to knock down court decisions that said only “primary producers” such as porn studios must verify the ages of performers to keep out those under 18. The act also extended the coverage of requirements to “simulated” sex and “lascivious exhibition of the genitals or pubic area.”

The Justice Department would have no role in civil suits against P2P users under a revised S-3325 passed Friday by the Senate and expected to pass the House sometime this weekend. The Enforcement of Intellectual Property Rights Act, renamed the PRO-IP Act before passage to be consonant with a similar House-approved IP enforcement bill, alarmed an odd coalition of copyleft activists and Bush administration officials over what both termed a prosecutor-for-Hollywood provision (WID Sept 25 p5). Amid the flurry of floor activity, a new House bill was introduced that would authorize SoundExchange, the RIAA, the Digital Media Association and NPR to continue negotiating webcasting royalty rates after Congress adjourns.

Provisions to let the Justice Department seize computers used for P2P infringement (WID July 25 p3) were weakened in the amended Enforcement of Intellectual Property Act (S- 3325), passed 14-4 by the Senate Judiciary Committee in an unusually brief markup Thursday. The bill still lets the agency sue file-sharers, though. A manager’s amendment directs a court that’s hearing an infringement case to “enter an appropriate protective order” to impound records to ensure that sensitive information isn’t disclosed. Chairman Patrick Leahy, D-Vt., said the committee “very recently” heard concerns about the “privacy interests of innocent third parties” when the government seizes servers. The amendment requires formation of an “advisory committee” for the intellectual property enforcement coordinator created in the original bill. Its Senate-confirmed members would include representatives of the Office of Management and Budget, DoJ, the Patent and Trademark Office, the Office of U.S. Trade Representative, the Copyright Office, the departments of State and Homeland Security, the Food and Drug Administration and some component agencies. The words “piracy” and its variants were replaced with “infringement.” The amendment would ensure that at least two assistant U.S. attorneys are assigned to each office with a computer hacking and intellectual property crime unit. An approved amendment by Sen. Chuck Grassley, R-Iowa, would repeal the section of the law creating the National Intellectual Property Law Enforcement Coordination Council but let the new coordinator called for by the bill use the phased-out council’s services and personnel to ensure an “orderly transition.”

The House IP Subcommittee wasted little time scrapping a controversial provision in the PRO-IP Act (HR-4279), intended to enhance penalties, forfeitures and government coordination against piracy, in a brief Thursday markup. Section 104 of the bill would have killed the $30,000 cap on infringements of “compilations,” letting courts apply multiple awards of statutory damages, a provision some lawmakers and a public interest group attacked at a hearing (WID Dec 14 p2). The bill was approved and sent to the full Judiciary Committee with a manager’s amendment.

Sen. McCain (R-Ariz.) beat Rep. DeGette (D-Colo.) to introducing a data retention bill, although his approach is drastically more limited than hers. The Stop Online Exploitation of Our Children Act, which doesn’t have a bill number yet, would limit retention to data associated with child porn reports and expand the types of Internet companies required to report. The bill got an early thumbs-up from an Internet trade group. McCain also announced plans with Sen. Schumer (D-N.Y.) to introduce legislation requiring all sex offenders to give their “active” e-mail addresses to law enforcement.

FBI Dir. Robert Mueller called for a data retention mandate on ISPs, echoing the DoJ party line Tues. at the International Assn. of Chiefs of Police conference. The group approved a resolution to that effect the same day, but efforts to reach it for the resolution’s text were unsuccessful. The FBI endorsement irked an Internet trade group, whose head told us agency rhetoric means nothing without standards that industry -- and law enforcement -- must follow.