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Smart devices have become an extension of ourselves. Take a walk, sit in the park, ride the subway, go to a restaurant, look around you while you sit in traffic; you will likely find that nearly everyone walks, sits, and drives with their phone in their hand. Your smartphone likely sits near you as you read this piece. Even our sleep is effected by our smart phone use. Today, hand injuries from excessive cell phone use have become commonplace. We are fixated on our phones, and we do not “unplug” when we get home. According to a 2014 Civic Science report, the average American spends over twelve hours a day engaged in smart phone use. We know what it means for our eyes, but what does it mean for our constitutional rights?
In a unanimous decision, the Supreme Court held that cell phones were constitutionally protected from unreasonable search and seizure because they are a “pervasive and insistent part of daily life,” such that, as Chief Justice Roberts noted, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Despite this decisive holding, many lower courts have held that there are few, if any, constitutional barriers to law enforcement officials’ ability to compel access to the contents of an individual’s smart phone. Technological advancements, now readily available to the public in the form of biometric authentication on smart devices, have turned a convenience and novelty into what may be a degradation of fundamental constitutional rights. As it stands, in certain jurisdictions, numeric or alphabetical passcodes are protected by the Fifth Amendment, while biometric authentication in the form of fingerprint passcodes are not. Therefore, in these jurisdictions, law enforcement officers may compel an individual to unlock a device that is protected by a fingerprint or thumbprint passcode entry, but not a device that utilizes only a standard numeric or alphabetical passcode.
Additionally, courts have reached different conclusions on whether police officers may compel a suspect to unlock a device by forcibly entering the suspect’s fingerprint pursuant to a warrant that does not name a specific individual. Before his death, Justice Scalia predicted that the Supreme Court would soon have to decide whether digital data itself is an “effect” under the Fourth Amendment. This Comment argues that mobile devices and the information contained within are precisely the effects as pondered and articulated by the drafters of the Constitution, and any searches thereof should be based on probable cause and sufficiently particularized in a valid warrant, approved by a detached, neutral magistrate, absent exigent circumstances. Thus, in contemplation of fundamental Fourth Amendment rights, merely being present at a premise where there is suspected criminal activity should not thus subject an individual to search and possibly seizure of his mobile device. Further, biometric access should receive the same protections as a numeric or alphabetical passcode under the Fifth Amendment, and an individual should not be compelled to produce his fingerprint because doing so would violate rights guaranteed by the Fifth Amendment. This line of decisions misapplies Fourth and Fifth Amendment doctrine by improperly applying dated jurisprudence and law regarding the fingerprint, and further, that proper recognition of these important protections is needed to prevent unbridled and arbitrary government access to the smart devices with which we are intimately connected.
Part II provides an overview of the Fourth and Fifth Amendments and how these amendments have functioned in the context of mobile devices. Part III analyzes the doctrinal history of the fingerprint in light of Fourth and Fifth Amendment jurisprudence. Part IV proposes a standard for entry of biometric passwords consistent with Supreme Court precedent regarding mobile devices. Finally, Part V considers the risks created as a result of the Court failing to take action.
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.
In Riley v. California, the Court held that cell phones are subjected to a higher Fourth Amendment protection that requires a police officer to obtain a warrant before searching its digital contents. However, despite the Riley decision, divergent decisions have followed in response to novel issues prompted by the emergence of new smartphone technology, leaving insecure the reverence Riley delivered to our smartphones. After Riley, compelled access to smartphones has been challenged on Fourth and Fifth Amendment grounds, with mixed success.
The following section presents brief background of Fourth and Fifth Amendment doctrine, as well as recent law in the context of personal digital devices.
A search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.
Further, if the warrant gives the officer discretion over the person searched and what is seized, the warrant fails for overbreadth—although the Court has acknowledged that there are some exceptions to this rule.
As to smartphones, the Supreme Court held in Riley v. California that the Fourth Amendment requires a warrant in order to search the contents of a cellular phone. Chief Justice Roberts asserted in Riley that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” In Riley, the Court expounded upon the intrusiveness on the search of an individual’s cellphone due to the gross amount of personal information contained therein. Therefore, the Constitution requires that searches of cell phones be executed pursuant to a valid warrant that is supported by probable cause and sufficiently particular as to the persons and items being searched.
The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” Specifically, the privilege against self-incrimination protects a person only from communications that are deemed to be testimonial in nature. In Doe v. United States, the Supreme Court defined “testimonial communications” as any act or oral or written statement “that explicitly or implicitly, relate[s] a factual assertion or disclose[s] information” to the government. Specifically, the privilege is invoked when the information garnered from the act or statement is the product of the individual’s own thoughts, such that it can be considered the “contents of his own mind.” In addition to proving that the information produced was testimonial in nature, the party asserting the privilege must also prove that the information was coerced and incriminating. The privilege is not extended to acts or statements, whether oral or written, when the only information disclosed to the government is merely a physical fact. However, even where the compelled production is found to be testimonial in nature, it may still be outside the scope of the Fifth Amendment’s self-incrimination privilege if the Foregone Conclusion Doctrine applies.
The Foregone Conclusion Doctrine applies where the State has independently established the “existence, possession, and authenticity” of the information, such that the testimony of the individual adds “little or nothing to the sum total of the government’s information,” and as a result, the compelled testimony is nothing more than a foregone conclusion. Therefore, “in order for the foregone conclusion doctrine to apply, the State must show with reasonable particularity that, at the time it sought the act of production, it already knew the evidence sought existed, the evidence was in the possession of the accused, and the evidence was authentic. For example, where a defendant taxpayer attempted to invoke his Fifth Amendment self-incrimination privilege, the Supreme Court held that because the government independently knew of the existence of incriminating tax-returns and the defendant’s knowledge thereof, the defendant’s constitutional right to abstain from self-incrimination had not been infringed upon.
Thus, where any compelled statements or acts that may incriminate an individual or unveil incriminating evidence that has been independently verified by the government such that the evidence does not add to the government’s knowledge of criminal activity, the foregone conclusion doctrine applies and an individual is not shielded by Fifth Amendment immunity from self-incrimination.
the fingerprint like a key, however, does not require the witness to divulge anything through his mental processes. On the contrary, like physical characteristics that are non-testimonial, the fingerprint of Defendant if used to access his phone is likewise non-testimonial and does not require Defendant to “communicate any knowledge” at all. Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to “disclose the contents of his own mind.
Likewise, in State v. Stahl, the court granted a petition for a writ of certiorari and quashed an order following a trial court’s denial of the State’s motion to compel the production of the defendant’s passcode to unlock his iPhone. The court declared that it saw no distinction between a numeric or alphabetical passcode and a touch identification passcode. The court asserted that neither manual passcode nor fingerprint passcode should receive Fifth Amendment protection. Specifically, the court asserted that compelling an individual to provide access to a source that may contain incriminating information does not offend the privilege provided by the Fifth Amendment self-incrimination clause. Additionally, the court held that the government met its burden of proof and showed with reasonable particularity that the incriminating evidence was on the device, thereby sufficiently invoking the foregone conclusion doctrine.
Not all courts have followed this rationale, however. In response to a similar motion to compel a passcode, a Maine court denied the motion and held that compelling a defendant to unlock his smartphone by providing the passcode or opening it himself would require the defendant to divulge the contents of his mind and “would violate his privilege against self-incrimination protected by the Federal and Maine Constitutions.” Outside the context of cellular devices, other courts have also held that providing a password to an electronic device is indeed testimonial because an individual acknowledges control via his knowledge of the password and subsequently his control and knowledge of the underlying computer files. Clearly, the inconsistencies involving Fourth and Fifth Amendment protections and passcode-protected devices require guidance and resolution to provide courts with clarity.
In review of the aforementioned inconsistencies surrounding a smart phone and the constitutional protections afforded to the device and its user, the fingerprint is a common subject. Fingerprint doctrine, while historically uncontroversial in either the Fourth or Fifth Amendment context, is in unchartered territory in the face of readily available biometric security features. Upon review of the seminal cases, it is difficult to reconcile the historical context of fingerprinting with the technological features currently available to, and used by, society at large.
Unlike smartphones and mobile devices, fingerprints are associated with nearly a century of constitutional history. Courts have long held that fingerprinting is permissible under the Fourth Amendment. By the middle of the Twentieth Century, fingerprinting had become part of routine booking procedure practiced by law enforcement agents. Fingerprinting as a practice is completely uncontroversial under the Fourth Amendment; however, in order for fingerprinting to remain non-violative of the Fourth Amendment, it must adhere to the quality that made it such—namely, that it be part of a routine procedure. The routine practice of fingerprinting began in the early twentieth century when it became apparent that the Bertillon measurement method (the Nineteenth Century practice of indexing and cataloging criminal suspects’ biometric dimensions, such as the circumference of the head or the length of the middle finger, for purposes of identification) was an insufficient and unreliable way to document and trace the identifications of criminals. In United States v. Kelly, Judge Augustus Hand explained that fingerprinting did not violate the Fourth Amendment because it had become the most prevalent form of identifying a person due to its certainty and reliability.
Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.
Despite the Supreme Court’s acknowledgement of technological advances such as touch identification and biometric security that have effectually made the fingerprint a tool to access all of the intricacies of a citizen’s private life, fingerprinting still remains a constitutionally approved tool. Furthermore, even though technology has given rise to methods more reliable and preferable than fingerprinting for identification and criminal investigation, courts today still employ the same analysis used for over a century. Without a doubt, those very courts that first articulated the constitutional permissibility and value of fingerprinting could not have imagined a day where it could be possible that every personal detail of an individual’s life—his communications, contacts, fancies, medical history, financial information, most frequently visited locations, etc.—could be accessed by a fingerprint. Technological advancements demand legislative and doctrinal attention.
Likewise, fingerprints have not received Fifth Amendment protection because they are considered purely physical. Courts have held that the compelled production of the fingerprint discloses only a physical characteristic, and such a compelled production of physical evidence does not equate to testimony for Fifth Amendment purposes. The rationale follows a 1910 opinion by Justice Holmes regarding a case wherein the petitioner asserted that his Fifth Amendment privilege against self-incrimination had been violated when he was compelled to model a blouse during his trial for murder. In Holt v. United States, Justice Holmes famously called this an “extravagant extension of the 5th Amendment,” and rejected the petitioner’s complaint. Justice Holmes held that the privilege only pertained to extorted “communications,” and did not extend to the government’s compelled use of the petitioner’s body as evidence where it was material. Despite the enormous technological and societal changes since the decision over a century ago, Justice Holmes’s Holt communicative versus physical testimony distinction still dominates self-incrimination analysis in the century following the holding. As a result, this legal standard has recently been called into question.
While the government does not know ahead of time the identity of every digital device or fingerprint (or indeed, every other piece of evidence) that it will find in the search, it has demonstrated probable cause that evidence may exist at the search location, and needs the ability to gain access to search them.
In support of this request, the government asserted that such a search did not violate either the Fourth or Fifth Amendment. Specifically, the memorandum stated that the Fourth Amendment does not prohibit the taking of fingerprints where the taking is supported by reasonable suspicion, and compelling a person to provide his fingerprint does not violate the Fifth Amendment because a fingerprint supplies no testimonial information. According to the Central District of California, an individual can arm himself with all of the heightened encryption and security available on his device, but at the end of the day, biometric security features may actually make it easier for law enforcement agents to obtain access—whether the individual is directly suspected of a crime or merely present at a location to be searched pursuant to a warrant.
A similar warrant application was presented to the Northern District of Illinois Eastern Division court, wherein the government sought “the authority to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints ‘onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.’” However, unlike the constitutional interpretation employed by the Virginia Circuit in Baust and the warrant application in the Central District of California Courts, Northern District of Illinois Magistrate Judge M. David Weisman denied the warrant application for the compelled fingerprint access request. Judge Weisman found that the warrant application failed because it did not establish probable cause for such an overly broad and insufficiently particularized request under the narrowly construed Fourth Amendment, and because the compelled fingerprint unlocking of a biometrically protected smart device violates the Fifth Amendment guarantee to be free from self-incrimination.
In light of these diametric points of view, there must be some resolution to guide citizens, law enforcement, and the lower courts.
It is generally known, and begrudgingly accepted, that the law lags behind the times, especially with regards to technology. While patience is usually appropriate, here, action is required. The special and unique challenges presented by smart devices are pressing and require a swift update.
Riley held that cell phones deserved more constitutional protection because of their pervasiveness and association with the intimacies of citizens’ private lives and that the searches thereof must be pursuant to a warrant which is sufficiently particularized. Courts must consider Riley when they reconcile modern day technological advances with traditional doctrinal theory. As noted by Judge Weisman in his order denying the warrant application, “the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment.” Because we live and interact in a digital and virtual realm, the law must evolve and address these changes, especially where great amounts of information are portable and accessible by the touch of a finger.
Current law is unclear on whether compelled smartphone access is testimonial and what exactly constitutes a foregone conclusion sufficient to override the testimonial privilege. The 2014 Baust decision held that a numeric or alphabetical passcode is sufficiently communicative and therefore testimonial under the Fifth Amendment. However, applying the physical characteristic distinction delineated in Holt and United States v. Wade, the Court held that compelled biometric fingerprint (touch identification) access does not force the individual to disclose or divulge the contents of his mind and is thus non-testimonial and beyond the reach of the Fifth Amendment. Like Holt, the Wade decision was made many decades before the advent of biometric security and should not guide modern court decisions. Neither Court could have comprehended the enormous technological advances that would occur by leaps and bounds in the years to come. Therefore, applying Wade in the wake of great technological advances is improper. It is a common scholarly complaint that the law lags behind technology. Despite this, courts should take note that scholars are not merely complaining but are expressing important concerns regarding advanced technology and the erosion of constitutional protections.
The Stahl court was correct in asserting that numeric and alphabetic passcodes should indeed be considered exactly the same as fingerprint biometric access. However, in declaring that neither variety of authentication is testimonial in nature, the court veered off course. Similarly, the Baust court considered self-authentication in the context of early and mid-twentieth century jurisprudence. This line of analysis sets forth a troubling precedent and opens the door to an erosion of fundamental Fourth and Fifth Amendment protections. It is clear that the fingerprint can no longer be viewed merely as a physical characteristic as articulated in Holt and Wade. The fingerprint is unlike a voice exemplar or a writing sample. It does not merely identify an individual but provides access to all of the details of an individual’s personal life—precisely the opposite of why the Supreme Court has held that fingerprinting is a reasonable and permissible practice under the Fourth Amendment. Therefore, it must first be established that providing a passcode in any form to unlock a digital or electronic personal device may be testimonial in nature. Second, fingerprints must be viewed as having the capability of providing testimonial information such as knowledge and control. For these reasons, courts and legislators can no longer consider touch identification in the context of dated cases that regard fingerprinting as part of routine booking procedures. Legislators and courts must recognize that self-authentication in the form of biometric access to mobile devices may be self-incriminating and is therefore protected by the Fifth Amendment. In sum, biometric authentication of smart phones should be considered standing alone and outside of the context of traditional fingerprint doctrine.
How are Americans to know how to secure their smart phones? And should law-abiding citizens need to worry? A California warrant’s approval would suggest they should. Although a Chicago court rejected a similar warrant application, the opinion provided the government with a work-around: namely more specific warrants. The law must address technological and societal changes to prevent an erosion of our constitutional protections.
Without precise guidance from the Supreme Court, legislators will be left to enact arbitrary laws applying to the search of cellphones and mobile devices. The United Kingdom and Singapore have enacted legislation to punish those who refuse to unlock their smartphones pursuant to law enforcement order. Could similar legislation could be on the horizon in the United States? Especially problematic is that legislators will be left guided by outdated jurisprudence. As mentioned in Part IV, frequently cited jurisprudence is either pre-smart phone or prior to the existence of biometric accessibility features. Clearly, it is of no question whether a cell phone is itself an “effect,” however, because technology allows individuals to transport large amounts of data and information in pocket-sized devices, the courts must create a legal framework that addresses personal technology and constitutional protections.
The Constitution contemplated privacies as being contained in personal papers and effects, such as diaries, journals, accounts, and the like. Our Founding Fathers likely never imagined ordinary citizens carrying their effects in their pockets or purses every day, everywhere. Imagine leaving home every day with your journal, diary, medical history, bank statements, fancies, fantasies, business dealings, and financial stature along for the ride. It seems absurd, but in fact, that is what nearly every individual who has upgraded from a flip phone is actually doing. The fact that technology has turned a physical characteristic into a tool to quickly access what would normally be required by the manual entry of a passcode should spurn legislative update. But, just like the much-maligned iOS updates, legislators are hesitant to update their own operating systems. The current constitutional questions pertaining to personal mobile devices in the context of Fourth and Fifth Amendment law require a mandated security update for the American operating system. No longer can American courts hold that fingerprints are merely physical characteristics outside the scope of the Fifth Amendment privilege whereby an individual cannot be a witness against himself. Courts must properly recognize that the act of self-authentication may be self-incrimination, and authorization by the use of a fingerprint may as a result be testimonial in nature. By utilizing the biometric fingerprint access, an individual admits control, and may thereby incriminate himself by making an admission of a connection to or knowledge of any incriminating evidence on the device.
In closing, this Comment suggests that the Court look to traditional notions of Fourth Amendment protection in regard to search warrant applications in the mobile device context, and also asserts that the Court must re-evaluate the physical distinction in determining whether an act is a testimonial communication in this digital age.
. See Smartphone Overuse May ‘Damage Eyes’ Say Opticians, BBC (March 28, 2014), http://www.bbc.co.uk/newsbeat/article/26780069/smartphone-overuse-may-damage-eyes-say-opticians.
. Riley v. California, 134 S. Ct. 2473, 2484 (2014).
biometrics (last visited Mar. 7, 2018).
. See Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).
. Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).
. Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L. J. 946, 956 (2016).
. See Kara Goldman, Note: Biometric Passwords and the Privilege Against Self-Incrimination, 33 Cardozo Arts & Entm’t L. J. 211 (2015).
. Riley v. California, 134 S. Ct. 2473, 2495 (2014) (quoting Boyd v. United States, 116 U.S. 616, 625 (1886)).
. See Boyd, 116 U.S. at 637 (“But where the owner of the property has been admitted as a claimant, we cannot see the force of this distinction; nor can we assent to the proposition that the proceeding is not, in effect, a proceeding against the owner of the property, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is sought to be forfeited; and to require such an owner to produce his private books and papers, in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is surely compelling him to furnish evidence against himself.”).
. Riley, 134 S. Ct. at 2495 (quoting Boyd, 116 U.S. at 630).
. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
. Coolidge v. N.H., 403 U.S. 443, 467 (1979).
. Ybarra v. Illinois, 100 S. Ct. 238, 342–43 n. 4 (1979) (holding that it was impermissible to search a patron of a tavern pursuant to a warrant authorizing the search of the tavern and its owner).
. See United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).
. Riley v. California, 134 S. Ct. 2473, 2493 (2014).
. Id. at 2495; United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).
. U.S. Const. amend. IV.
. Doe v. United States, 487 U.S. 201, 210 (1988).
. Id. at 211 (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)).
. Fisher v. United States, 425 U.S. 391, 410 (1976); In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1341 (11th Cir. 2012).
. Examples of compelled acts that fall outside of the Fifth Amendment self-incrimination privilege include: providing a blood sample, handwriting sample, or voice sample; standing in a police line-up; and trying on an item of clothing. In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1345, 1345 n. 24 (11th Cir. 2012).
. State v. Stahl, 206 So. 3d 124 (Fla. Dist. Ct. App. 2016).
. Id. (citing In re Grand Jury Subpoena, 670 F.3d at 1344).
. Specifically, the Court stated, “The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons ‘no constitutional rights are touched.’ The question is not of testimony but of surrender.” Fisher v. United States, 425 U.S. 391, 410–11 (1976).
. Fisher v. United States, 425 U.S. 391, 411 (1976).
. Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest?, 96 Iowa L. Rev. 1125, 1171 (2011) (“Courts have repeatedly held that producing tangible evidence . . . can be testimonial even in the absence of any verbal language. This is because producing such tangible evidence demonstrates the existence, control, and location of those items, which amounts to testimony. In the cell-phone context, this is significant because clever police officers could attempt to avoid a Fifth Amendment problem by demanding that an arrestee either provide a written copy of his password or simply enter the password himself without the officer seeing it. Indeed, in one of only two cases addressing the compulsion of computer passwords, prosecutors offered to have the individual enter his password without any onlookers, so that he would not have to make a testimonial statement in violation of the Fifth Amendment. The magistrate assigned to the case refused to accept this option, explaining that even entering the password privately would be testimonial because it would demonstrate knowledge of the password and access to the underlying computer files.”).
. Id.; State v. Trant, No. 15-2389, 2015 LEXIS 272, at *11 (Me. 2015) (“The court finds that the foregone conclusion exception does not apply in these circumstances, and accordingly finds that compelling Defendant to divulge the contents of his mind—either by compelling him to surrender the passcodes or compelling him to himself open the phones—would violate his privilege against self-incrimination protected by the Federal and Maine Constitutions.”).
. Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014) (“[C]ompelling Defendant to provide access through his passcode is both compelled and testimonial and therefore protected. Contrary to the Commonwealth’s assertion, the password is not a foregone conclusion because it is not known outside of Defendant’s mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.”).
. Commonwealth v. Baust, 89 Va. Cir. 267, 270 (Va. Cir. Ct. 2014).
. State v. Stahl, 206 So. 3d 124, 136–37 (Fla. Dist. Ct. App. 2016).
. State v. Trant, No. 15-2389, 2015 LEXIS 272, at *11 (Me. 2015).
. In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist. LEXIS 13006, at *9 (D. Vt. 2009).
. See United States v. Kelly, 55 F.2d 67, 68 (2d Cir. 1932) (“We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.”).
. Maryland v. King, 133 S. Ct. 1958, 1976 (2013).
. United States v. Guevara-Martinez, 262 F.3d 751, 756 (8th Cir. 2001).
. Alexander T. Nguyen, Article: Here’s Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked the Fourth Amendment?, 7 Va. J.L. & Tech. 2 (2002).
. Cory Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475, 486 (2010) (“The only serious alternative to fingerprinting for criminal identification was the Bertillon method, which had proven both administratively and scientifically suspect.”).
. United States v. Kelly, 55 F.2d 67, 69 (C.A.2 1932) (“Fingerprinting seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.”).
. Preston, supra note 55.
. Id. (“Admittedly, the value of routine fingerprinting as a tool for seeking “cold hits” with unsolved cases has expanded with law enforcement’s ability to cross-reference and search enormous databases.”).
. Maryland v. King, 133 S. Ct. 1958, 1971 (2013) (“A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that ‘people detained for minor offenses can turn out to be the most devious and dangerous criminals.’”).
. See Maryland v. King, 133 S. Ct. at 1976; Davis v. Mississippi, 394 U.S. 721, 727 (1969) (stating that detentions for fingerprinting are less intrusive because the fingerprinting does not involve probing into an individual’s private life or thoughts.).
. Preston, supra note 55, at 490-91 (“The genius of fingerprinting for identification purposes, according to forensic expert Simon Cole, is that fingerprints have proven over time to offer no valuable or personal information beyond the mere identity of the individual they belong to. Despite substantial research seeking to prove a hereditary or racial link to fingerprints, no such link has been found. This lack of depth in fingerprint evidence, Cole argues, has been essential to its staying power as strong evidence of identification, in that fingerprint experts asked to testify at criminal trial are not influenced by traits that may indicate a particular type of suspect.”).
. Davis v. Mississippi, 394 U.S. 721, 727 (1969).
. See generally Commonwealth v. Baust, 89 Va. Cir. 267, 271 (Va. Cir. Ct. 2014).
. Schmerber v. California, 384 U.S. 757, 763–64 (1966) (“It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting . . . The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”).
. Schmerber v. California, 384 U.S. 757, 763–64 (1966).
. Holt v. United States, 218 U.S. 245, 252 (1910).
. Goldman, supra note 15, at 218.
. In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1073 (N.D. Ill. 2017) (“By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.”); Goldman, supra note 14, at 235-36 (“Applying the law to issues of first impression involving modern technology requires flexibility and reinterpretation of precedential case law. Seminal Fifth Amendment case law, including Doe and Hubbell, are illustrative of the Court’s struggle to account for the testimonial qualities of compelled physical actions. However, under the proper circumstances, it is evident that a physical compulsion, such as a signature or even a fingerprint, could maintain the requisite level of testimonial quality deserving of Fifth Amendment protection.”).
brewster/2016/10/16/doj-demands-mass-fingerprint-seizure-to-open-iphones/#63b21e 9b1288 (last visited Mar. 11, 2017).
. Notice of Filing Memorandum of Points and Authorities in Support of Search Warrant Application, Central District of California 1 (2016), https://assets.
. Riley v. California, 134 S. Ct. 2473 (2014).
. Order and Opinion, supra note 76, at 7.
. Report on Smartphone Encryption and Public Safety: An Update, Manhattan District Attorney’s Office 17 (Nov. 2016), https://assets.documentcloud.
org/documents/3222483/White-Paper-2-0.pdf (“The constitutionality of ordering a person to unlock his device, or to provide a plaintext copy of its contents, is the subject of much debate. Even though the users are not required to give ‘testimony’ in these scenarios, which would be prohibited by the Fifth Amendment, users may still enjoy a Fifth Amendment privilege to refuse to unlock their phones. That is because by complying with the order, a user effectively confirms the existence and authenticity of the records sought.”).
. Holt v. United States, 218 U.S. 245, 253 (1910).
. United States v. Wade, 388 U.S. 218, 222–23 (1967) (“It is no different from compelling Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances, is not within the cover of the privilege. Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial’ nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.”).
. Baust, 89 Va. Cir. at 271.
. Wade, 388 U.S. at 222-23.
. Lyria Bennett Moses, Recurring Dilemmas: The Law’s Race to Keep Up With Technological Change, 7 U. Ill. J.L. Tech. & Pol’y 239, 241 (2007) (“The tension between law and technology has been observed by multiple authors and is often reflected in metaphors involving competitors in a race with law the inevitable loser. Those using these metaphors are generally concerned about the law’s failure – whether or not they regard it as inevitable – to cope with technological change, especially rapid or accelerating change. Scholars have used metaphors of the law falling behind technology in contexts as diverse as railroads, in vitro fertilization, computers, and the Internet.”).
. Goldman, supra note 15.
. State v. Stahl, 206 So. 3d 124, 124 (Fla. Dist. Ct. App. 2016).
. Riley v. California, 134 S. Ct. 2473, 2490 (2014).
. Order and Opinion, supra note 76.
. Report on Smartphone Encryption, supra note 82, at p. 27.
. Davis v. Mississippi, 394 U.S. 721, 721 (1969).

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


To foreign nationals facing deportation or removal from the United States, for any reason, Marshal E. Hyman and Associates, P.C., offers the ability to carefully analyze their cases and apply their unique circumstances to the complex laws, regulations, and precedents governing immigration decisions. Our attorneys possess the knowledge, experience and technology necessary to carefully and precisely determine the proper path to remain in the United States. We have successfully represented hundreds of clients in immigration offices, immigration courts, and federal courts of appeal.
We also assist those who must leave the United States with the consular processing of their visas and the filing of applications for waivers of grounds of inadmissibility.
We take pride in our reputation as the “go to” law firm for those who want to try to stay in the United States.
Employment in the United States, most commonly based on a job offer from a United States employer, but also based upon investment in the United States.
Unmarried children (21 years of age or older) of lawful permanent residents.
Preparation of family-based immigrant visas involves the gathering of substantial documentation and each case presents its own unique challenges. Issues such as proving relationships, processing times, immigrant quotas, age requirements, affidavits of support, and the protections afforded by the enactment of the Child Status Protection Act can be confusing to those unfamiliar with the many intricacies of the immigration laws and regulations. With over 35 years of combined experience, our attorneys can help resolve these and other issues that may arise during the processing of family-based immigrant visas.
Immigrant investors with substantial funds to be invested in the United States.
In most cases involving employment-based immigrant visas, the employer must first apply to the United States Department of Labor for its certification that qualified United States workers have been recruited for the position and are unavailable. Our firm has the expertise to guide potential employers through this labor certification process. We also advise potential employers on their anti-discrimination obligations under federal immigration laws.
Most foreign nationals wishing to come to the United States temporarily—whether to work, go to school, attend a conference, or simply visit the country, family, and/or friends—must first obtain a non-immigrant visa that would allow them to travel to a United States port of entry and request permission from the Department of Homeland Security to enter the country for a specific period of stay.
Once in the United States, the length of time that non-immigrants can stay depends on the type of visa (status) under which they were admitted. Several types of non-immigrant visas allow foreign nationals to extend their status and their stay in the United States. Foreign nationals holding non-immigrant visas often desire to change their status in order to prolong their stay in the United States or perform a different activity.
The application processes for non-immigrant visas, and for extensions and changes of status, are complex and may be confusing to those unfamiliar with their many intricate nuances. Our firm has many years of experience advising foreign nationals on the types of non-immigrant visas best suited to their particular needs. Our firm can assist those wishing to extend or change their status. In certain cases, we can also obtain legal status and work authorization for dependent family members of non-immigrants.
The E non-immigrant visa category is useful for business owners, managers and employees who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the United States and a foreign country or that represents a major investment in the United States.
The H-1B non-immigrant visa category allows foreign nationals to enter the United States temporarily and work in a “specialty occupation.” A “specialty occupation” is an occupation that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
The L-1 intercompany transferee non-immigrant classification is a useful vehicle for multinational companies seeking to transfer high-level managers, executives and employees with specialized knowledge from overseas to provide services in a similar capacity in the United States.
The O non-immigrant category is intended for individuals with extraordinary ability in the sciences, arts, education, business or athletics. This category offers a flexible alternative to the H-1B non-immigrant visa since it does not require wage maintenance, there is no overall time limit associated with the classification, and there are no numerical caps.
The P non-immigrant visa category covers athletes and entertainers who do not qualify under the “extraordinary ability or achievement” standard required by the O non-immigrant category. The P category is generally made available to internationally known athletes (individually or as part of a team), entertainment groups, performing artists visiting the United States under the auspices of a reciprocal exchange program, and culturally unique entertainers.
The J-1 non-immigrant visa category is useful to foreign students, scholars, experts, medical interns and residents, international visitors, and industrial and business trainees wishing to enter the United States as exchange visitors for the purpose of gaining practical experience, studying, or conducting research in their respective fields. Exchange visitors under the J-1 non-immigrant category must be affiliated to a government-approved exchange visitor program.
The TN non-immigrant visa category is limited to nationals of Canada and Mexico engaged in a profession listed in Appendix 1603.D.1 of the North America Free Trade Agreement (NAFTA) and possessing the necessary credentials to be considered professionals. Professions listed in Appendix 1603.D.1 of NAFTA include, but are not limited to, the following: accountants, engineers, registered nurses, architects, university professors and research assistants, hotel managers, librarians, systems analysts, and management consultants.
Canadians, except for E-1 and E-2 investors, as well as citizens of countries designated under the Visa Waiver Program do not need non-immigrant visas to enter the United States. Please contact us if you require further information regarding non-immigrant visas.
Our firm has assisted persons from all over the world apply and receive United States citizenship through the naturalization process. Our services include counseling on satisfying all the technical requirements for naturalization, processing of the application, and attendance at naturalization interviews.
Marshal E. Hyman & Associates actively pursues federal litigation in the Supreme Court, the Circuit Courts of Appeal, and the District Courts. In the Supreme Court and the Courts of Appeal, the firm litigates asylum applications, issues involving noncitizens convicted of crimes, and applications for immigration benefits such as adjustment of status, cancellation of removal, and 212(c) relief. In the District Courts, the firms litigates issues involving delayed or denied applications for naturalization and adjustment of status and other immigration benefits, and petitions for writ of habeas corpus challenging prolonged detention in immigration custody.
Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007). Rejected BIA precedent decision in Matter of Shanu, 23 I. & N. Dec. 754 (BIA 2005) and held that a noncitizen can only have one first date of admission for purposes of determining removability under 8 U.S.C. § 1227(a)(2)(A)(i).
Badwan v. Gonzales, 494 F.3d 566 (6th Cir. 2007). Overturned BIA decision denying motion for continuance, thereby allowing noncitizen to apply for lawful permanent residency.
Matovski v. Gonzales, 494 F.3d 722 (6th Cir. 2007). Rejected BIA precedent decision in Matter of Perez Vargas, 23 I. & N. Dec. 829 (BIA 2005). Resulted in noncitizens being allowed to apply for lawful permanent residency in removal proceedings based on the job flexibility provisions of 8 U.S.C. § 1154(j).
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006). Overturned precedential BIA decision and terminated proceedings based on setting aside of noncitizen’s conviction.
Macotaj v. Gonzales, 424 F.3d 464 (6th Cir. 2005). The Sixth Circuit has the authority to retroactively stay voluntary departure to the date of the filing of a motion for stay of removal.
Liti v. Gonzales, 411 F.3d 611 ((6th Cir. 2005). Remand for consideration of whether applicant is eligible for humanitarian asylum.
Probert v. INS, 954 F.2d 1253 (6th Cir. 1992) and 750 F. Supp. 252 (E.D. Mich. 1990). Ordered release of noncitizen based on issuance of Judicial Recommendation Against Deportation.
State v. Martinez, 105 Wash. App. 775 (Wash. App. 2001). Overturned conviction based on violation of confrontation clause when a confidential informant failed to testify in court. Also overturned conviction for insufficient evidence where only admissible evidence was defendant’s mere presence at a prearranged drug buy.
State v. Mendoza-Lopez, 105 Wash. App. 382 (Wash App. 2001). Overturned three year old conviction where defendant did not waive his right to a juvenile declination hearing.


D.C. Law Library - § 47–1342.01. Bid off property.
↪ § 47–1342.01. Bid off property.
§ 47–1342. Public notice; costs.
§ 47–1343. Real property to be sold in its entirety.
§ 47–1342.01. Bid off property.
Whenever payment by check or other instrument on behalf of a real property is received prior to the tax sale, and the payment is refused by the drawee or the funds are not collected by the District, and, due to the tender of payment, the real property is not presented at the tax sale, the real property shall be deemed bid off to the District under § 47-1352 and may be subsequently sold under § 47-1353.
For temporary (90 day) addition of this section, see § 12(gg) of Tax Clarity and Recorder of Deeds Emergency Act of 2002 (D.C. Act 14-381, June 6, 2002, 49 DCR 5674).
For temporary (90 day) addition of this section, see § 12(hh) of Tax Clarity and Related Amendments Emergency Act of 2002 (D.C. Act 14-456, July 23, 2002, 49 DCR 8107).
For temporary (90 day) addition of this section, see § 12(hh) of Tax Clarity and Related Amendments Congressional Review Emergency Act of 2002 (D.C. Act 14-510, October 23, 2002, 49 DCR 10247).
For temporary (225 day) addition of section, see § 12(hh) of Tax Clarity and Recorder of Deeds Temporary Act of 2002 (D.C. Law 14-191, October 5, 2002, law notification 49 DCR 9549).
For temporary (225 day) addition of section, see § 12(hh) of Tax Clarity and Related Amendments Temporary Act of 2003 (D.C. Law 14-228, March 23, 2003, law notification 50 DCR 2741).


TLJ Daily E-Mail Alert No. 1,949, June 5, 2009.
June 5, 2009, Alert No. 1,949.
6/5. The U.S. Court of Appeals (DCCir) issued its opinion [18 pages in PDF] in NAB v. FCC, upholding the FCC's 2007 low power FM rules changes.
The FCC adopted the LPFM order [63 pages in PDF] under review on November 27, 2007, and released the text on December 11, 2007. It is FCC 07-204 in MM Docket No. 99-25.
This order announced standards for waivers of certain protections against interference with full power FM stations. The National Association of Broadcasters (NAB) filed a petition for review with the Court of Appeals, asserting that the FCC's order violates the Radio Broadcasting Preservation Act of 2000 (RBPA) and the Administrative Procedure Act (APA).
The Court of Appeals denied the petition in part, and dismissed it in part.
FCC Chairman Michael Copps praised the Court of Appeals opinion in a release.
Copps (at left) wrote that "I applaud today's decision upholding the Commission's authority to waive second-adjacent channel spacing requirements to protect LPFM stations facing encroachment by full-power stations. The listening public and our diversity goals are immediate beneficiaries of this decision which will permit approximately 40 LPFM stations to remain on the air and serving their communities."
He added that "We must continue to look for ways to promote and expand this most local radio service which holds such great promise in expanding radio ownership to underrepresented stakeholders and in meeting the needs of under-served communities. In this regard, I look forward to working with my fellow Commissioners in finishing work on the pending LPFM Second Further Notice of Proposed Rule Making. I also respectfully renew my recommendation to Congress that it eliminate existing statutory LPFM third adjacent channel spacing requirements."
This case is National Association of Broadcasters v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 08-1117, a petition for review of a final order of the FCC. Judge Rogers wrote the opinion of the Court in which Judges Garland and Brown joined.
6/5. The U.S. Court of Appeals (3rdCir) issued its opinion [30 pages in PDF] in Graham Company v. Haughey, a copyright infringement case involving the issue of whether the discovery rule or the injury rule governs the accrual of claims under the Copyright Act, which has a three year statute of limitations for civil actions.
The District Court and the Court of Appeals both concluded that the discovery rule applies.
17 U.S.C. § 507(b) provides that "No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." However, it does not elaborate on when the "claim accrued".
The Court of Appeals explained that under the discovery rule, a cause of action accrues when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim. And, under the injury rule, a cause of action accrues at the time of the injury.
The Court of Appeals wrote that "Although we have not previously addressed this issue, eight of our sister courts of appeals have applied the discovery rule to civil actions under the Copyright Act." The Third Circuit did so also.
This case is Walter Graham Company v. Thomas Haughey, et al., U.S. Court of Appeals for the 3rd Circuit, App. Ct. Nos. 08-2007 and 08-2111, appeals from the U.S. District Court for the Eastern District of Pennsylvania, D.C. No. 05-cv-00612, Judge Harvey Bartle presiding. Judge Sloviter wrote the opinion of the Court of Appeals, in which Judges Scirica and Hardiman joined.
6/3. The National Association of Broadcasters (NAB), and state broadcasters' groups, sent a letter [4 pages in PDF] to the Speaker of the House of Representatives, Rep. Nancy Pelosi (D-CA), requesting that HR 848 [LOC | WW], the "Performance Rights Act", "is not sent to the House floor for a vote".
This bill would end terrestrial broadcasters' exemption from paying copyright royalties when they play copyrighted songs.
The House Judiciary Committee (HJC) amended and approved the bill on May 13, 2009. See, story titled "House Judiciary Committee Approves Performance Rights Act" in TLJ Daily E-Mail Alert No. 1,938, May 13, 2009.
The NAB letter discusses the likely impact of the bill on broadcasters, and opposition to the bill in the House.
The NAB letter adds that "The Judiciary Committee is in the process of asking the GAO to study the impact of the bill on small, religious and minority-owned stations whose existence and future growth would be devastated under H.R. 848. Moving the bill before that study has been completed, made public and is evaluated would place the cart before the horse."
On May 13, 2009, Rep. John Conyers (D-MI), the Chairman of the HJC, Rep. Lamar Smith (R-TX), the ranking Republican on the HJC, and several other HJC members, sent a letter to the GAO requesting a report by November 13, 2009.
Rep. Conyers supports HR 848. Rep. Smith voted against the bill in Committee.
The letter requests "a detailed analysis of economic factors related to enacting performance royalty legislation". The letter also lists numerous issues to be addressed in the report, including "the promotional value of sound recordings to the radio industry", and "the promotional value of radio airplay to performers, musicians and copyright owners, including whether there is a substitutional effect of airplay on sound recording sales". The letter also requests an analysis of "the effect on minority-owned, female-owned, and religious stations".
The NAB also wrote in a June 3, 2009, release that "A majority of U.S. House members is now publicly opposed to a record label-led effort to strap radio stations with new fees for airing music free to listeners".
Although, the NAB bases this assertion on there being 220 cosponsors of HConRes 49, the "Local Radio Freedom Act", as of June 3. This resolution resolves that "Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over-the-air, or on any business for such public performance of sound recordings."
The NAB asserts that it has majority support. It also opposes a vote on HR 848. If a majority of the House were opposed to HR 848, it could go to the floor, and the NAB position would prevail.
6/5. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) and the Department of Transportation's (DOT) National Highway Traffic Safety Administration (NHTSA) published a joint notice in the Federal Register that announces, describes, recites, and sets relevant deadlines for, their rules implementing the E-911 grant program authorized by the ENHANCE 911 Act.
The "Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004" was enacted as Title I of HR 5419 in the 108th Congress. Former President Bush signed it on December 23, 2004. It is now Public Law No. 108-494. It is codified at 47 U.S.C. § 942.
The ENHANCE 911 Act authorizes grants to states and territories for the implementation and operation of Phase II enhanced 911 services and for migration to an IP-enabled emergency network.
This notice states that "To qualify for a grant, an applicant must submit a State 911 plan and project budget, designate an E-911 coordinator, and certify, among other things, that the State and other taxing jurisdictions within the State have not diverted E-911 charges for any other purpose within 180 days preceding the application date. This Final Rule establishes the requirements an applicant must meet and the procedures it must follow to receive an E-911 grant."
The total of available grants is $41,325,000.00.
These rules provide that "The State must submit the application documents identified in this section so that they are received by the ICO no later than August 4, 2009. Failure to meet this deadline will preclude the State from receiving consideration for an E-911 grant award."
These rules also provide that the NTIA and NHTSA "will jointly approve and announce, in writing, grant awards to qualifying States no later than September 30, 2009."
See, Federal Register, June 5, 2009, Vol. 74, No. 107, at Pages 26965-26981.
6/5. Senior U.S. antitrust regulators participated in the International Competition Network (ICN) conference in Zurich, Switzerland, on June 3-5, 2009. The participants included Christine Varney, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, and Robert Kramer and Scott Hammond from the Antitrust Division. The participants also included William Kovacic (Federal Trade Commission Commissioner), and Cynthia Lagdameo, Randolph Tritell, Maria Tineo and Russell Damtoft from the FTC.
The DOJ issued a short release on June 5, 2009, regarding the conference.
This release states that this ICN conference focused on single firm conduct, including "tying and bundled discounting and on the analysis of single-product loyalty discounts and rebates".
The FTC's Tritell stated in this release that the ICN's "Unilateral Conduct Working Group is continuing to build a body of knowledge on which enforcers and policy-makers around the world can draw to assist them in implementing their competition laws in this complex area".
The DOJ, with wide input from economists, wrote and released a report on September, 8, 2008, titled "Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act". See, PDF version [215 pages], and stories titled "Antitrust Division Releases Report on Single Firm Conduct", "Summary of Single Firm Conduct Report", "Three FTC Commissioners Criticize Single Firm Conduct Report", and "Select TLJ Articles Related to the US-EC Divergence on Single Firm Conduct" in TLJ Daily E-Mail Alert No. 1,827, September 17, 2008.
However, on May 12, 2009, the DOJ's Varney announced the withdrawal of that report, without any replacement report, guidelines, or rules. See, story titled "Varney Reverses DOJ Policy Regarding Single Firm Conduct" in TLJ Daily E-Mail Alert No. 1,937, May 12, 2009.
The DOJ's just issued release also states that ICN members adopted three "Recommended Practices for Merger Analysis". First, "Competitive Effects Analysis in Horizontal Merger Review. Agencies should conduct competitive effects analysis to assess whether a merger is likely to harm competition significantly by creating or enhancing market power. Competitive effects analysis should be clearly grounded in both sound economics and the facts of the particular case."
Second, "Unilateral Effects. In analyzing the potential for a merger to result in anticompetitive unilateral effects, agencies should assess whether the merger will create or enhance the merged firm’s ability or incentive to exercise market power independently. Agencies should apply the economic theory or model that best fits the characteristics of the market at issue, and assess the competitive constraints and other factors relevant to the merged firm’s ability to exercise market power."
Third, "Coordinated Effects. In analyzing the potential for a merger to result in anticompetitive coordinated effects, agencies should assess whether the merger increases the likelihood that firms in the market will successfully coordinate their behavior or strengthen existing coordination. Agencies should assess whether the conditions that are generally necessary for successful coordination are present, and the extent to which competitive constraints and other factors would likely deter or disrupt effective coordination."
TLJ requested, but did not receive, from both the FTC and DOJ, copies of any transcripts or recordings of presentations made by U.S. officials.
6/5. The Federal Communications Commission (FCC) announced several staff changes in a release. Blair Levin "will rejoin the Commission to help coordinate its development of a national broadband plan".
Levin is a Managing Director and analyst at Stifel Nicolaus, a brokerage and investment banking firm He has responsibilities regarding telecommunications, media and technology markets.
Levin was Chief of Staff to former FCC Commissioner Reed Hundt from December 1993 through October 1997. Julius Genachowski, President Obama's selection to be Chairman of the FCC, worked for Hundt at the same time as Levin. Genachowski was "Counsel" and later "Chief Counsel" to Hundt. Before that, he was "Special Counsel" to William Kennard at the time that Kennard was FCC General Counsel. See, story titled "Julius Genachowski" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2009.
HR 1 [LOC | WW], the huge spending bill enacted in February of 2009, requires the FCC, within one year, to write "a report containing a national broadband plan". The bill further specifies the content of the plan.
(D) a plan for use of broadband infrastructure and services in advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes."
6/5. The Federal Communications Commission (FCC) announced that Kent Nilsson, Inspector General (IG), "has retired", and that David Hunt, who is Assistant IG-Investigations, will be the acting IG. See, FCC release.
6/5. The Federal Communications Commission (FCC) announced in its release that Mary Beth Richards, "currently Deputy General Counsel, will serve as Acting Managing Director". The release does not disclose what she will manage or direct.
6/5. The Federal Communications Commission (FCC) announced in its release that Monica Desai, who is Chief of the FCC's Media Bureau (MB), will become Special Advisor to the General Counsel.
6/5. The Federal Communications Commission (FCC) announced in its release that Robert Ratcliffe, who is one Deputy Chief of the FCC's Enforcement Bureau (EB), will become acting Chief of the FCC's Media Bureau.
6/4. The Senate Judiciary Committee (SJC) approved David Hamilton to be a Judge of the U.S. Court of Appeals (6thCir).
6/4. The Senate Judiciary Committee (SJC) approved Andre Davis to be a Judge of the U.S. Court of Appeals (4thCir).
6/4. President Obama nominated Christopher Schroeder to be an Assistant Attorney General in charge of the Office of Legal Policy (OLP). See, White House news office release.
6/4. The Senate Judiciary Committee (SJC) approved Thomas Perez to be Assistant Attorney General in charge of the Civil Rights Division.
6/4. President Obama nominated Tristram Coffin to be the U.S. Attorney for the District of Vermont for the term of four years. See, White House news office release.
6/4. President Obama nominated Jenny Durkan to be the U.S. Attorney for the Western District of Washington for the term of four years. See, White House news office release.
6/4. President Obama nominated Paul Joseph Fishman to be the U.S. Attorney for the District of New Jersey for the term of four years. See, White House news office release.
6/4. President Obama nominated Todd Jones to be the U.S. Attorney for the District of Minnesota for the term of four years. See, White House news office release.
6/4. President Obama nominated John Kacavas to be the U.S. Attorney for the District of New Hampshire for the term of four years. See, White House news office release.
6/4. President Obama nominated Joyce Vance to be the U.S. Attorney for the Northern District of Alabama for the term of four years. See, White House news office release.
6/4. The Senate confirmed David Heyman to be an Assistant Secretary of Homeland Security at the Department of Homeland Security (DHS). See, Congressional Record, June 4, 2009, at Page S6230.
The House will not meet. It will next meet at 12:30 PM on Monday, June 8.
The Senate will not meet. It will next meet at 2:00 PM on Monday, June 8.
10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nomination of Miriam Sapiro to be Deputy U.S. Trade Representative. See, notice. Location: Room 215, Dirksen Building.
12:00 NOON - 2:00 PM. The Free State Foundation (FSF) will host a lunch titled "Broadband Nation: Where Does the U.S. Really Stand in the World Rankings?". The speakers will be David Gross (Wiley Rein), Rob Atkinson (Information Technology and Innovation Foundation), Link Hoewing (Verizon), and Christopher McCabe (CTIA). RSVP to Susan Reichbart at sreichbart at freestatefoundation dot org. Location: Congressional Meeting Room North, Capitol Visitor Center.
Day two of a two day meeting of the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services Division's Advisory Policy Board. This Division administers the Integrated Automated Fingerprint Identification System, the Interstate Identification Index, Law Enforcement Online, National Crime Information Center, the National Instant Criminal Background Check System, the National Incident-Based Reporting System, Law Enforcement National Data Exchange, and Uniform Crime Reporting. See, notice in the Federal Register, April 15, 2009, Vol. 74, No. 71, at Page 17524. Location: Gaylord National, 201 Waterfront Street, National Harbor, MD.
Day one of a five day event hosted by the Federation Internationale Des Conseils En Propriete Industrielle (FICPI) titled "World Congress". This event is open to FICPI members only. See, conference brochure [PDF]. Location: JW Marriott.
Day two of a five day event hosted by the Federation Internationale Des Conseils En Propriete Industrielle (FICPI) titled "World Congress". This event is open to FICPI members only. See, conference brochure [PDF]. Location: JW Marriott.
The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider HR 1736 [LOC | WW], the "International Science and Technology Cooperation Act of 2009", and HR 1709 [LOC | WW], the "STEM Education Coordination Act of 2009", under suspension of the rules. Votes will be postponed until 6:30 PM. See, Rep. Hoyer's schedule for week of June 8.
The Senate will meet at 2:00 PM. It will resume consideration of HR 1256 [LOC | WW], the "Family Smoking Prevention and Tobacco Control Act".
9:00 AM - 4:30 PM. Day one of a two day event hosted by the Internal Revenue Service (IRS) titled "2009 Software Developers Conference". See, notice in the Federal Register, April 27, 2009, Vol. 74, No. 79, at Page 19124. Location: Marriott Crystal Gateway Hotel, 1700 Jefferson Davis Highway, Arlington, VA.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Sky Technologies v. SAP, App. Ct. No. 2008-1606. Location: Courtroom 201.
5:30 PM. The Senate Homeland Security and Government Affairs Committee will hold a business meeting to consider the nomination of Rand Beers to be the Department of Homeland Security's (DHS) Under Secretary for National Protection and Programs. See, notice. Location: Room 216, Capitol Building.
Day three of a five day event hosted by the Federation Internationale Des Conseils En Propriete Industrielle (FICPI) titled "World Congress". This event is open to FICPI members only. See, conference brochure [PDF]. Location: JW Marriott.
Deadline to submit reply comments to the Copyright Royalty Judges (CRJ) in response to its Notice of Inquiry (NOI) regarding "the costs of census versus sample reporting to assist the Judges in the revision of the interim regulations for filing notices of use and the delivery of records of use of sound recordings under two statutory licenses of the Copyright Act". See, notice in the Federal Register, April 8, 2009, Vol. 74, No. 66, at Pages 15901-15904. See also, the CRJ's notice in the Federal Register regarding its Notice of Proposed Rulemaking (NPRM), Federal Register, December 30, 2008, Vol. 73, No. 250, at Pages 79727-79734, and the CRJ's web page with hyperlinks to the comments submitted in response to the NPRM.
Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry [59 pages in PDF] regarding the drafting of a "national broadband plan", as required by Section 6001(k) of HR 1 [LOC | WW], the huge spending bill passed by the Congress in February. See also, "Broadband Plan Statute: Public Law No. 111-5, § 6001(k)" and stories titled "FCC Releases NOI on Broadband Plan" and "Additional Questions Asked by FCC's Broadband Plan Notice of Inquiry" in TLJ Daily E-Mail Alert No. 1,924, April 11, 2009. This NOI is FCC 09-31 in Docket No. GN 09-51.
Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its notice of inquiry (NOI) regarding the September 30, 2009, expiration of the Joint Project Agreement (JPA) between the NTIA and the Internet Corporation for Assigned Names and Numbers (ICANN). There are hyperlinks to the original JPA and its amendments and modifications ICANN web page titled "ICANN's Major Agreements and Related Reports". See, notice in the Federal Register, April 24, 2009, Vol. 74, No. 78, at Pages 18688-18690.
Deadline to submit applications to the Department of State's (DOS) Bureau of Educational and Cultural Affairs' (BECA) Office of English Language Programs for grants under its E-Teacher Scholarship Program and Professional Development Workshop. The DOS will give $750,000 in grants to universities to teach English via the internet to persons in other countries. See, notice in the Federal Register, April 24, 2009, Vol. 74, No. 78, at Pages 18786-18792.
Deadline to submit applications to the Department of Homeland Security's (DHS) Privacy Office for appointment to the DHS Data Privacy and Integrity Advisory Committee. See, notice in the Federal Register, May 5, 2009, Vol. 74, No. 85, at Pages 20718-20719.
The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. The schedule for the week includes consideration of HR 2344 [LOC | WW], the "Webcaster Settlement Act of 2009", and HR 2675 [LOC | WW], the "Antitrust Criminal Penalty Enhancement and Reform Act of 2004 Extension Act". See, Rep. Hoyer's schedule for week of June 8.
8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). The agenda includes a discussion of documentary standards and health care information technology. See, notice in the Federal Register: May 15, 2009, Vol. 74, No. 93, at Page 22887. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.
9:00 AM - 4:30 PM. Day two of a two day event hosted by the Internal Revenue Service (IRS) titled "2009 Software Developers Conference". See, notice in the Federal Register, April 27, 2009, Vol. 74, No. 79, at Page 19124. Location: Marriott Crystal Gateway Hotel, 1700 Jefferson Davis Highway, Arlington, VA.
9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (RPTAC) will hold a partially closed meeting. See, notice in the Federal Register, May 26, 2009, Vol. 74, No. 98, at Page 23998. Location: Room 3884, Hoover Building, 14th St. NW, between Pennsylvania and Constitution Avenues.
9:00 - 11:00 AM. The Heritage Foundation will host an event titled "The Taiwan Relations Act's Enduring Legacy on Capitol Hill". See, notice. Location: Heritage, 214 Massachusetts Ave., NE.
9:30 AM. Mary Ellen Callahan, the Department of Homeland Security's (DHS) Chief Privacy Officer will speak about fusion center privacy issues at the Governor's Homeland Security Advisory Council Meeting. Location: The Westin Arlington Gateway, 801 North Glebe Road, Arlington, VA.
10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing HR 1521 [LOC | WW], the "Cell Tax Fairness Act of 2009". See, notice. Location: Room 2141, Rayburn Building.
10:00 AM. The House Homeland Security Committee's (HHSC) Subcommittee on on Emergency Communications, Preparedness, and Response Hearing will hold a hearing titled "The FY 2010 Budget for the Federal Emergency Management Agency". The FEMA has responsibilities regarding the Integrated Public Alert and Warning System (IPAWS). The HHSC will webcast this event. Location: Room 311, Cannon Building.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in ResQNet.com v. Lansa, App. Ct. No. 2008-1365. Location: Courtroom 201.
2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a seminar conducted by Cory Capps (Bates White) on his paper titled "Antitrust Treatment of Nonprofits". Capps is an economist who focuses on the health care sector. To request permission to attend, contact Patrick Greenlee at 202-307-3745 or atr dot eag at usdoj dot gov. Location: Bicentennial Building, 600 E St., NW.
Day one of a two day event titled "World Copyright Summit". See, conference web site. Location: Ronald Reagan Center.
Day four of a five day event hosted by the Federation Internationale Des Conseils En Propriete Industrielle (FICPI) titled "World Congress". This event is open to FICPI members only. See, conference brochure [PDF]. Location: JW Marriott.
The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 8.
8:30 - 11:45 AM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT). The agenda includes a discussion of documentary standards and health care information technology. See, notice in the Federal Register: May 15, 2009, Vol. 74, No. 93, at Page 22887. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.
9:00 AM - 4:00 PM. The Department of Homeland Security's (DHS) Privacy Office will host a public workshop titled "Privacy Compliance Fundamentals -- PTAs, PIAs, and SORNs". See, notice in the Federal Register, May 26, 2009, Vol. 74, No. 99, at Pages 24864-24865. Location: auditorium, GSA Regional Headquarters Building, 7th and D Streets, SW.
10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing on the nominations of Tara O’Toole to be the DHS's Under Secretary for Science and Technology and Jeffrey Zients to be the OMB's Deputy Director for Management. See, notice. Location: Room 342, Dirksen Building.
10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Research and Science Education will hold a hearing titled "Cyber Security R&D". The witnesses will be Seymour Goodman (Georgia Institute of Technology), Liesyl Franz (TechAmerica), Anita D'Amico (Applied Visions, Inc.), Fred Schneider (Cornell University), and Timothy Brown (CA Security Management). The HSC will webcast this event. See, notice. Location: Room 2318, Rayburn Building.
11:00 AM. Savi, a Lockheed Martin company, will host a news conference titled "Most Evrything Will Be Tracked & Managed Wirelessly". For more information, contact Mark Nelson at 650-316-4872 mnelson at savi dot com Location: National Press Club, 13th Floor, 529 14th St., NW.
12:00 NOON. The Cato Institute will host a panel discussion titled "Who Are the Real Free Traders in Congress?". The speakers will include Sen. Judd Gregg (R-NH) and Daniel Griswold (Cato). See, notice and registration page. Lunch will be served. Location: Room 608, Dirksen Building.
12:00 NOON - 3:00 PM. The Securities and Exchange Commission (SEC) will host a public seminar regarding compliance with its new rules requiring that financial reports be filed using XBRL. See, notice. Location: SEC, Room L-002, 100 F St., NW.
12:30 PM. The Interactive Advertising Bureau (IAB) will host a news conference titled "IAB Releases First-Ever Comprehensive Analysis of the Internet Economy". For more information, contact Maria Aaron at 212-380-4714 or maria at iab dot net. Location: Zenger Room, National Press Club, 13th Floor, 529 14th St., NW.
5:30 - 7:30 PM. TechAmerica will host an event titled "Annual Technology for Government Reception". The speakers will include Vint Cerf. Prices vary. Location: Mayflower Hotel.
6:00 - 8:00 PM. The New America Foundation (NAF) will host an event titled "The Open Technology Initiative". The speakers will be Rick Whitt (Google), Christopher Libertelli (Skype), Ben Scott (Free Press), Helen Brunner (Media Democracy Fund), and Sascha Meinrath (NAF). See, notice. Wine will be served. Location: NAF, 4th floor, 1899 L St., NW.
6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "The Judicial Year in Review". The speakers will be Richard Welch and Joseph Palmore (FCC Office of the General Counsel), Sam Feder and William Hohengarten (Jenner & Block), Aaron Panner (Kellogg Huber), Kannon Shanmugam (Williams & Connolly), and Helgi Walker (Wiley Rein). Prices vary. Location: Wiley Rein, 1776 K St., NW.
Day five of a five day event hosted by the Federation Internationale Des Conseils En Propriete Industrielle (FICPI) titled "World Congress". This event is open to FICPI members only. See, conference brochure [PDF]. Location: JW Marriott.
8:30 AM. Day one of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda includes consideration of deemed exports. See, notice in the Federal Register, May 26, 2009, Vol. 74, No. 99, at Pages 24819-24820. Location: Room 3884, Hoover Building, 14th St. NW, between Pennsylvania and Constitution Avenues.
8:45 AM - 4:00 PM. The U.S.-China Economic and Security Review Commission will hold an open meeting titled "The Implications of China's Naval Modernization on the United States". See, notice in the Federal Register, May 28, 2009, Vol. 74, No. 101, at Page 25611. Location: Room 562, Dirksen Building.
10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda yet again includes consideration of S 417 [LOC | WW], the "States Secret Protection Act", and HR 985 [LOC | WW] and S 448 [LOC | WW], both titled the "Free Flow of Information Act of 2009". See, stories titled "Senate Judiciary Committee to Consider State Secrets Bill" and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The agenda also again includes consideration of the nominations of David Lynch to be a Judge of the U.S. Court of Appeals (2ndCir) and Mary Smith to be Assistant Attorney General in charge of the Tax Division. The SJC rarely follows its published agendas. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology and the Internet will meet regarding HR 1084 [LOC | WW], the "Commercial Advertisement Loudness Mitigation Act", or "CALM", HR 1147 [LOC | WW], the "Local Community Radio Act Of 2009", and HR 1133 [LOC | WW], the "Family Telephone Connection Protection Act Of 2009". The HCC web site does not specify whether this is a hearing or a mark up. Location: Room 2322, Rayburn Building.
12:00 NOON. The Cato Institute will host a panel discussion titled "Fusion Centers: Domestic Spying or Sensible Surveillance?". The speakers will include Bruce Fein (The Lichfield Group), Harvey Eisenberg (Chief, National Security Section, Office of United States Attorney, District of Maryland), Michael German (ACLU), and Tim Lynch (Cato). See, notice and registration page. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.
12:00 NOON. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be Sen. Mark Warner (D-VA). Location: Capital Hilton, 1001 16th St., NW.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FCC's notice regarding the National Exchange Carrier Association's (NECA) proposed compensation rates for interstate traditional telecommunications relay service (TRS), interstate Speech-to-Speech (STS) relay service, interstate captioned telephone service (CTS) and interstate and intrastate Internet Protocol (IP) captioned telephone service (IP CTS), interstate and intrastate IP Relay, and interstate and intrastate Video Relay Service (VRS). This is also the deadline to submit reply comments in response to the proposed carrier contribution factor and funding requirement for the Interstate TRS Fund. This item is FCC 09-39 in CG Docket No. 03-123 and WC Docket No. 05-196. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23859-23860.
Deadline to submit reply comments to the Federal Communications Commission (FCC) Notice of Proposed Rulemaking whether or not it should adopt new Video Relay Service (VRS) reimbursement rates that reflect the cost data in the fund administrator's recent filing with the FCC, rather than continuing the current rates. This item is FCC 09-39 in CG Docket 03-123. See, notice in the Federal Register, May 21, 2009, Vol. 74, No. 97, at Pages 23815-23816.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Order [63 pages in PDF] regarding revising the FCC's Schedule of Regulatory Fees. The FCC adopted this item on May 11, 2009, and released the text on May 14. It is FCC 09-38 in MD Docket No. 09-65. See also, notice in the Federal Register, June 2, 2009, Vol. 74, No. 104, at Pages 26329-26360.
The House may meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 8.
8:30 AM. Day two of a two day meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). The agenda includes consideration of deemed exports. See, notice in the Federal Register, May 26, 2009, Vol. 74, No. 99, at Pages 24819-24820. Location: Room 3884, Hoover Building, 14th St. NW, between Pennsylvania and Constitution Avenues.
12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host a panel discussion titled "Broadband Competition: Is the Glass Half Empty or Half Full?". The speakers will be Jeffrey Eisenach, Larry Darby (Darby Associates), George Ford (Phoenix Center for Advanced Legal & Economic Public Policy Studies), Robert Atkinson (Information Technology and Innovation Foundation), and Thomas Hazlett (George Mason University). Lunch will be served. See, notice. Location: Congressional Meeting Room North (CVC-268), Capitol Visitor's Center.
12:15 - 1:45 PM. The Federal Communications Bar Association (FCBA) Homeland Security/Emergency Communications Practice Committee will host brown bag lunch titled "Latest Developments in Cybersecurity". The speakers will be Deborah Parkinson (Senate Homeland Security and Governmental Affairs Committee staff), James Lewis (Center for Strategic and International Studies), and Marcus Sachs (Verizon). For more information, contact Nneka Ezenwa at Nneka dot n dot ezenwa at verizon dot com. Location: Verizon, 5th floor, 1300 I St., NW.
Extended deadline to submit grants applications to the National Telecommunications and Information Administration (NTIA) under the Low Power Television and Translator Digital to Analog Conversion Program.
Extended deadline for full power television stations to cease analog broadcasting. See, S 352 [LOC | WW], the "DTV Delay Act".
Deadline to register with the Federal Communications Commission (FCC) to participate in it pre-auction seminar for Auction 79, regarding 122 construction permits in the FM broadcast service. See, May 29, 2009, public notice (DA 09-152), and notice in the Federal Register, May 29, 2009, Vol. 74, No. 102, at Pages 25737-25744.
Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-117 [25 pages in PDF] titled "Guide to Adopting and Using the Security Content Automation Protocol (SCAP)".