The ProIP Act added the role of the IP Enforcement Coordinator, a role that was filled by Victoria Espinel. We have been quite concerned that Espinel has viewed her role as protecting jobs in one particular industry (often at the expense of jobs and progress elsewhere) -- a concern that was not alleviated by Espinel's request for input on what she should focus on. That request made all sorts of assumptions about the impact of intellectual property infringement that were not actually supported by fact. Mike Arrington also reported recently on a meeting with Espinel where she made it clear that her role was to help the entertainment industry.

So, it's unfortunate, but hardly a surprise that the Senate's hearing on "oversight" of Espinel's work involves only people on the entertainment industry's side. The panel who will discuss Espinel's performance includes the CEO of Warner Bros., the CEO of the "Global IP Center" of the Chamber of Commerce (whose views on IP are positively neanderthal, complete with some of the most ridiculous studies), the CEO of Carlin America (a music publisher) and the president of the AFL-CIO, who has already done some horse trading to be an official representative of the RIAA's position.

Talk about regulatory capture. It's as if the Senate is admitting that the role of the IP Enforcement Coordinator is to be the entertainment industry's top cop, and her performance will be reviewed by the industry itself. The Constitution says that copyright and patents are for the purpose of "promoting the progress of science and the useful arts." But that's not what Espinel is doing. She's protecting a particular industry, often at the expense of progress. To then have her review be done by such a one-sided panel of folks -- folks who are receiving extreme benefits from her role -- is just ridiculous.

The Justice Department sure doesn't like oversight -- even when it's required by law. Julian Sanchez points us to the disturbing news that, despite being required by law to report to Congress each year on "the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice," it appears that for many years the Attorney General has delivered no such report. This has happened before as well. In 2004, the Justice Department dumped five years worth of reports on Congress, and it appears it did so again in 2009. Meaning that Congress did not get the interim annual reports. That would mean that for five year periods, Congress -- who is supposed to be overseeing such surveillance activity -- has not been doing its job, effectively allowing the Justice Department to do what it wants with such surveillance efforts. And, remember, this is a Justice Department that has already been found to have massively abused surveillance activity beyond what the law allows. Doesn't that make you feel safer?

This seems too insane to be true, but the EFF points us to a report, based on a Freedom of Information Act request, that claims Sprint provided law enforcement with GPS location data a staggering 8 million times in the last year. Sprint apparently set up some sort of portal that made such requests easier, and it sounds like law enforcement took advantage of that in a major way. The report also notes that this information should have been disclosed to Congress, under a 1999 law, but the Justice Department has ignored the law for the past five years. The rest of the report also looks at some other concerning factors, such as the fact that the government seems to regularly get all sorts of info from service providers, with little oversight. On top of that, it explains why so many service providers agree to it: they charge the government for such info, and it's quite lucrative. As such, they actually have the incentive to encourage the government to ask for more information and to deliver it to them as quickly and efficiently as possible. However, you have to wonder how so many requests are being made with such little oversight -- and how often this means the process is abused to spy on individuals with no legal basis. Update: Sprint is now trying to explain this by saying that the numbers represent number of "pings" and that can include thousands of pings per a single investigation. In a single investigation, once law enforcement has a court order, it can check someone's location every 3 minutes for up to 60 days -- and that's what made the number so inflated.

So, we keep seeing more of what the promised "transparency" of the Obama administration means in real terms. Despite campaigning against warrantless wiretapping, the administration has come out with new rules for how it will use the "state secrets" privilege that amount to "no, really, we'll only use it when we need to... just trust us" and continued to insist that evidence over warrantless wiretapping should be tossed out for state secrets reasons. And it's left up to a former comedian, now politician to remind the Justice Department of the Fourth Amendment? The "just trust us, we won't abuse the system" justification isn't particularly comforting, especially when that clause is being used to cover up what is almost certainly illegal activity by the federal government.

A whistle-blower reports that an unnamed wireless carrier has provided a government facility in Quantico, VA, with unfiltered access to its core network. The whistle-blower says this gives the government direct access to private information such as text messaging and call records. He doesn't name either the company or the government agency involved. But a 2006 lawsuit featuring similar allegations named Verizon Wireless as the culprit. And Threat Level says that Quantico, VA, just happens to be "the center of the FBI's electronic surveillance operations." When asked about this, a Verizon Wireless spokesman wrote "What you're talking about sounds as if it would be classified and involving national security, so I wouldn't be able to find out the facts."

The idea that ordinary domestic surveillance activities are a matter of national security, and therefore immune from public scrutiny, is both wrong-headed and malicious. I guess the idea is that we don't want to tip off the terrorists about our surveillance programs. And obviously, information about specific targets needs to be kept secret. But the terrorists have to already know that most communications channels can be intercepted. Moreover, it's just not reasonable to expect that the broad details of our government's domestic surveillance activities will remain a secret indefinitely. Despite the secrecy, we're gradually learning about the scope of these programs. If terrorists didn't know their calls were being tapped five years ago, they certainly do now.

The problem is that because details about these programs (and information about abuses) dribble out slowly over several years, Congress never has the opportunity to conduct meaningful oversight of them. For example, this week we also found out that abuse of national security letters, which was previously only reported to have occurred from 2003 to 2005, continued into 2006. Of course, the administration says they've fixed the problem and that no more NSL abuses will occur. But that's what they always say when privacy abuses are uncovered, yet new examples keep popping up. The only way the abuses will stop is if Congress rejects the idea that domestic surveillance is immune from judicial and Congressional surveillance. The Bush administration needs to disclose the exact scope of its domestic surveillance activities so that Congress can have an open, public debate about the proper scope of government spying powers.

The Senate has just approved controversial legislation reforming the Foreign Intelligence Surveillance Act, by a vote of 68–29. The bill, sponsored by Sens. Kit Bond (R-MO) and Jay Rockefeller (D-WV), empowers the Director of National Intelligence and the Attorney General to authorize warrantless surveillance of foreign parties whose communications pass through U.S. switches, even when they are communicating with Americans. It also grants retroactive amnesty to telecom firms alleged to have illegally provided the government with access to their customers' data without a court order -- a provision some Democrats tried and failed to have stripped from the legislation earlier today.

Several other amendments that would have provided additional checks on surveillance also failed in the Senate, including language reasserting FISA's status as the "exclusive means" by which intelligence surveillance may be conducted, a provision barring indiscriminate "bulk collection" of telecom traffic, and a compromise measure that would have allowed civil suits against the telecoms to continue, but substituted the federal government as the defendant. The one victory for civil libertarians was the approval of an amendment offered by Sen. Sheldon Whitehouse (D-RI) permitting the secret FISA court to review intelligence agencies' compliance with "minimization" rules meant to limit the retention of communications involving innocent Americans. Following a vote to invoke cloture, bringing debate on the bill to a halt and foreclosing any attempt to mount a filibuster, Sens. Patrick Leahy (D-VT), Maria Cantwell (D-WA), Chris Dodd (D-CT) and Russ Feingold (D-WI) delivered impassioned speeches condemning the legislation as an affront to both privacy and the rule of law.

The Senate bill must now be reconciled in conference with the House version, known as the RESTORE Act, which lacks the controversial immunity provision and provides for greater judicial oversight of surveillance. Majority Leader Harry Reid (D-NV) is seeking to further extend the stopgap Protect America Act, which this reform bill is meant to supplant, in order to provide time to reach agreement between the two chambers.