Sen. Ron Wyden, D-Ore., acknowledged Thursday it will be “especially hard” to complete his push to stop a controversial DOJ alteration to Federal Rule of Criminal Procedure 41 from taking effect but urged privacy advocates not to be discouraged by Congress’ quickly narrowing legislative window. The rule change, which would expand federal judges’ ability to issue warrants for remote searches of computers outside their jurisdictions, will take effect Dec. 1 if Congress doesn’t act (see 1604290057). Wyden filed the Stop Mass Hacking Act (S-2952) in May to block the tweak. Reps. Ted Poe, R-Texas, and John Conyers, D-Mich., bowed a House companion (HR-5321) to S-2952 soon after Wyden (see 1605190021 and 1605250045).
Court of International Trade activity
As Thursday's U.K. vote to leave the EU has sparked concern among telecoms on the Continent (see 1606240021) and has led to many questions from U.S. telecom operators with European business (see 1606270075), it may not scotch an international data transfer deal, industry lawyers told us this week. The proposed trans-Atlantic data transfer agreement Europeans negotiated with the U.S. may be approved as early as next week, some said. The Article 31 Committee, comprised of EU's member state representatives, is to review the revised Privacy Shield Wednesday (see 1606270055) with a possible vote July 4, a European Commission spokeswoman told us Tuesday. That would set up a likely EC vote on the arrangement on the following day, she said.
The U.K.’s vote last week in favor of leaving the EU won’t change the fundamentals of EU digital policy or the trans-Atlantic partnership with the U.S. on digital issues, said European Commission Director General-Communications Networks, Content and Technology Roberto Viola during a Computer and Communications Industry Association event Monday. Industry officials said both before and after the U.K.’s Thursday referendum that Brexit would have implications for EU negotiations on trans-Atlantic data flows and IT-related trade agreements (see 1606240021), and potential effects for European telecoms (see 1606220001). U.S. and EU officials are to meet this week at the annual U.S.-EU Information Society Dialogue despite Brexit uncertainty. The ISD typically addresses a range of information and communication technology issues, including the digital economy.
Britain's decision to leave the EU will mean renegotiating trans-Atlantic data flows and information technology trading agreements, among other things, and could jeopardize U.S. investment in the country, commentators here in the U.K. and abroad said Friday. Trading in European telco and cable companies could be uneven, said one market analyst, and the stock of the company he wrote about, Liberty Global, fell, as did the shares of many other companies. But Brexit could bring the two countries closer in digital trade, a paper for the American Enterprise Institute said. Industry officials had worried about the effect of any Brexit on European telecoms (see 1606220001).
Switzerland is now on the Office of the U.S. Trade Representative's lower-tier watch list for copyright and other IP rights violations, USTR said Wednesday in its annual Special 301 report on the global status of IP rights enforcement. China and India remain on USTR's mid-tier priority watch list, which includes nine other countries, because ongoing IP rights enforcement problems outweigh efforts to reform both nations' IP laws. USTR again chose not to include any countries on its higher-tier priority foreign country list.
House Judiciary Committee Chairman Bob Goodlatte, R-Va., urged the International Trade Commission Thursday to use its authority to take actions stakeholders recommended to address patent assertion entities' abuse of the ITC's process for evaluating Section 337 exclusion orders. PAEs take patent infringement cases that should be litigated in U.S. district courts and bring them to the ITC in a bid to force entities to pay licensing fees, Goodlatte said during a House IP Subcommittee hearing. Stakeholders recommended the ITC return to a previous evaluation standard that “does not allow legal expenses, airplane flights, and the like to satisfy the domestic industry requirement,” Goodlatte said. The ITC should apply the public interest test and the economic interest test at the beginning of a Section 337 review when determining claims consideration and the issuance of exclusion orders, Goodlatte said. The ITC should also use its public interest and economic interest analyses to articulate agency standards to “clarify which patent disputes should be adjudicated by the ITC and those which are more properly addressed by U.S. district courts,” Goodlatte said. House IP ranking member Jerry Nadler, D-N.Y., questioned whether Congress needs to act to curb PAE abuses of the ITC process because the agency is already beginning to address the issue.
One of the lead Department of Commerce negotiators who helped craft the EU-U.S. Privacy Shield framework on trans-Atlantic data flows (see 1602290003) said team members are spending as much time in Europe trying to clarify and answer questions about the framework as when they negotiated the new deal replacing a safe harbor agreement. Ted Dean, deputy assistant secretary in the department's International Trade Administration, spoke Monday at an Akin Gump and CompTIA event.
Disney and Electronic Frontier Foundation representatives disagreed Thursday whether the Trans-Pacific Partnership should contain stronger fair use language. Some said that would effectively “export” U.S. fair use precedents to member states to counterbalance the agreement’s potentially game-changing intellectual property protections.
The FCC’s net neutrality order goes beyond broadband regulation and threatens edge companies, the Internet, free speech, free enterprise and freedom in general, said three prominent critics at a Conservative Political Action Conference panel Thursday. If “you want to control the people, and you want to control the government and private enterprise, the first place you start is political speech control,” said former FCC Commissioner Robert McDowell. An FCC spokesman had no comment Friday.
FCC Chairman Tom Wheeler will venture to Capitol Hill next month amid a fierce debate surrounding the government push to force Apple to unlock one of its devices and ongoing consideration of whether and how to tweak the wiretap law known as the Communications Assistance for Law Enforcement Act (CALEA) as a way to address broader encryption concerns. Hill observers expect Wheeler to get questions about CALEA and the FCC’s perspective on tweaking it, a topic that also came up during a November oversight hearing following the deadly attacks in Paris.