ISPLA Current Legislative News

Surreptitious Video Surveillance

Wed, 18 Aug 2010 18:05:06 GMT

No federal criminal charges to be brought in school webcam spying on students and S. 3214 Surreptitious Video Surveillance Act of 2010 Update

Saying that they could not prove requisite intent, federal authorities announced they do not plan on pursuing criminal charges against those responsible for admittedly taking photos of some students within their homes and elsewhere on webcams embedded in laptop computers issued by a Pennsylvania school district.

The FBI and federal prosecutors announced yesterday that day they could not prove any criminal wrongdoing by Lower Merion School District employees. "We have not found evidence that would establish beyond a reasonable doubt that anyone involved had criminal intent," said U.S. Attorney Zane D. Memeger in a statement.

The FBI investigated the school district for possible wiretap violations after a student's civil lawsuit exposed the issue. Lower Merion High School student Blake Robbins alleged the district photographed him 400 times in a 15-day period last fall, sometimes as he slept in his bedroom or was half-dressed.

School district officials said its technology staff only activated the remote tracking system to try to find laptops that had been reported lost or stolen. However, the district acknowledged that the software system sometimes remained activated for weeks or months, even after a laptop was found, allowing for the capture 56,000 webcam photographs and screen shots from students’ laptops. The tracking program took images every 15 minutes, usually capturing the webcam photo of the user and a screen shot at the same time. None of the images captured appeared to be salacious or inappropriate, school officials have said. The district remotely activated the software to find 80 missing laptops in the past two years. Approximately 38,000 of the images were taken over several months from six computers reported stolen from a locker room.

Civil litigation by the families of two students against Lower Merion School District continues over the alleged invasion of privacy. The school district has now adopted a policy that permits webcams to be activated only with the express consent of students and parents.

It was this incident which brought about the introduction of S. 3214, the Surreptitious Video Surveillance Act of 2010, by Senator Arlen Specter [D-PA] to prohibit any person from engaging in certain video surveillance except under the same conditions authorized under chapter 119 of title 18, United States Code, or as authorized by the Foreign Intelligence Surveillance Act of 1978. ISPLA and other investigative and security industry representatives lobbied this past spring for changes in the bill’s language to which the senator’s office has agreed.

Bruce Hulme

ISPLA Director of Government Affairs

Social Security Identity Defense Act

Wed, 04 Aug 2010 20:39:58 GMT

For Immediate Release:
July 29, 2010


	Petri Bill Would Enlist IRS Against Identity Theft

It's called "identity theft" when someone pretends to be you in order to obtain credit and other benefits in your name. Victims can spend years demonstrating they have been defrauded, getting free of debts they did not incur, and restoring their credit.

One Princeton, Wisc., resident learned that he was a victim of the fraud as a result of a call from a debt collector. He contacted the Internal Revenue Service to alert the agency that somebody was using his Social Security number illegally.

"To his surprise," Rep. Tom Petri explains, "he learned that the IRS already knew of the situation, had known for some time, and had chosen not to tell anybody. The IRS explained that it is legally required to protect the privacy of the person committing the fraud."

"As the incidence of identity theft has risen, Congress has taken several steps to help Americans fight back and maintain the security of their personal information. A majority in Congress have agreed that our government should help in the battle against identity theft," Petri said, adding, "Unfortunately, the IRS believes it cannot be part of this fight."

In response, on July 29, Petri introduced legislation to, as he said, "require the IRS to fight on the side of the good guys." Joining him in introducing the bill is Rep. Melissa Bean (D-IL), who said, “Privacy laws are not intended to protect fraudsters or to enable illegal immigration. If the IRS has information about identify theft, it should share that information immediately with law enforcement and affected parties.”

The Petri-Bean bill - the Social Security Identity Defense (SSIDA) Act - would require the IRS to inform a taxpayer when his or her Social Security number has been used fraudulently to gain employment; provide that the IRS share this information with the FBI and allow the FBI to make facts available to state and local law enforcement agencies; and prevent the appearance of a fraudulently used Social Security number on a W-2 statement.

"The Federal Trade Commission estimates that as many as nine million Americans have their identities stolen each year," Petri said. "We should ensure that our government does all it can to help identify theft victims. This bill takes a big step in that direction."

Sixth Amendment and Indigent Defense Issue

Mon, 26 Jul 2010 00:59:29 GMT

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” - Gideon v. Wainwright (1963)

This is an ISPLA update on part of our work the past year with Equal Justice, Sixth Amendment, Wrongly Accused, Innocence, and Indigent Defense projects which have requested our lobbying assistance. A significant number of our members are engaged in criminal defense investigations and in the pursuit of justice. We often have to work together with a wide range of groups and associations to address legislative issues, some of which seek to close our access to various sources of information. At times such groups have even included the ACLU and media organizations.

ISPLA’s Executive Committee Chairman, Peter Psarouthakis, recently attended the Michigan Supreme Court oral arguments in Christopher Lee Duncan et al v. State of Michigan and thought the court might rule to reverse its previous decision, so as to not make the court look like law makers. It turns out he was correct. In a stunning defeat for right to counsel advocates, the Michigan Supreme Court reversed its unanimous, 2-month old decision in this ACLU class action lawsuit upon reconsideration. “Is it all about the financial costs of fixing one of the nation’s most deficient indigent defense systems?” asks the National Legal Aid and Defender Association.

The July 16 order reversing decision and entering summary judgment in favor of the defendants, State of Michigan and Governor of Michigan, ended any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan’s inadequate and ineffective system of public defense. Three of Michigan’s Supreme Court judges dissented stating: “Today’s order slams the courthouse door in plaintiffs’ face for no good reason.” Instead, they are relegated to being represented in their pending cases by lawyers who lack the time, tools, training and resources to provide them with the assistance of counsel that our American system of justice promises to all. ISPLA would add: “Not having access to qualified and fairly paid defense investigators and forensic experts denies them equal justice as well.”

In Michigan, as in most states throughout the country, the state Supreme Court has final responsibility for overseeing the justice system and ensuring that the rights guaranteed to everyone are applied in that system. It is the courts that one goes to when a person believes they are being wronged in some way and it is the courts that provide one a remedy for that wrong. However, now the Michigan courts are washing their hands of any responsibility for overseeing the public defense system and ruling that instead “the executive and legislative branches can and should address such matters.”

Who in Michigan is responsible for making the public defense system work? The courts say that it is up to the legislative and executive branches of government. Both branches are well informed on the systemic deficiencies. On behalf of the Michigan Legislature under concurrent resolution of both chambers and under the guidance of the State Bar of Michigan, NLADA undertook a year-long study of indigent defense representation in ten sample counties. To ensure that a representative sample of counties was chosen to be studied -- and to avoid criticism that either the best or worst systems were cherry-picked to skew the results -- NLADA requested that an advisory group be convened to choose the sample counties. Created by Michigan State Senator Alan Cropsey, the advisory group was composed of representatives from the State Court Administrator’s Office, the Prosecuting Attorneys Association of Michigan, the Michigan Association of Counties, the State Bar of Michigan, the State Appellate Defender Office, the Criminal Defense Attorneys of Michigan, the Supreme Court, and trial-level judges. The advisory group ensured that the county sample reflected geographic, population, economic, and defense delivery model diversity. ISPLA representatives met with the above associations, the Michigan Campaign for Justice, Michigan law makers, testified at state and federal hearings on related subject matter, and also met with many of the same groups a second time in Washington at the U.S. Department of Justice National Symposium on Indigent Defense.

Rather than just posting this on listservs and Twitter, it is presented by ISPLA as a loss which exemplifies the fact that we know the costs of defeat in lobbying in a proactive manner, but view such as just a temporary setback which will only strengthen our resolve. The ACLU has vowed to keep up their fight: “Our fight to fix the indigent defense system is far from over and we are currently weighing our legal options.”

The court case by the ACLU may have failed, but the ability to preserve the Sixth Amendment right to effective counsel will still exist through effective lobbying by Equal Justice groups and like-minded stakeholders, such as ISPLA. Please read the NLADA message below. This court decision is a significant loss to the "Gideon" advocates, which to a degree are also a portion of ISPLA’s constituents. When the indigent defense system is broken, everyone suffers. The innocent end up in prison, while the perpetrators are left to remain free ---- free on the street to commit more crime.

Investigative professionals who support ISPLA's initiative in support of the Sixth Amendment, Indigent Defense and Equal Justice issues are invited to join us in our efforts. We will also be assisting some state investigative professional associations to address specific problems presently existing regarding the appointment of defense investigators to represent indigent defendants.

Go to www.ISPLA.org

Bruce Hulme
ISPLA Director of Government Affairs

The NLADA report, A Race to the Bottom, opens with a re-telling of the first right to counsel case in America – the case of the Scottsboro Boys in 1932 Alabama (Powell v. Alabama) – to show that many of the systemic deficiencies identified in the Scottsboro Boys’ story permeate the criminal courts of Michigan today: judges hand-picking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trial and meet their ethical canons to zealously advocate for clients; inadequate compensation for those appointed to defend the accused; and, a lack of sufficient time, training, and resources to properly prepare a case in the face of the state court’s emphasis on disposing of cases as quickly as possible.

One wonders how much the financial impact of moving an early 20th century public defense model into the new millennium in one of the most economically depressed states in the country had on the decision. The concurring opinion reasoned that the probable financial impact of the case could be substantial, stating the Court’s original decision was "an open invitation to the trial court to assume ongoing operational control over systems for providing defense counsel to indigent criminal defendants. . . . And with that invitation comes a blank check on the part of the judiciary to force sufficient state level legislative appropriations and executive branch acquiescence in assuming similar control over the systems in every county in this state, while nullifying the provisions of the criminal defense act and superintending authority of the Supreme Court and the State Court Administrator." We remind the Court's majority that our Constitutional rights extend to all of our citizens, not merely those of sufficient means. Though we understand that policymakers must balance other important demands on their resources, the Constitution does not allow for justice to be rationed to the poor due to insufficient funds.

HR 5777, the Best Practices Act and a bill requiring notice and consent...

Fri, 23 Jul 2010 12:16:08 GMT

Hearings - Subcommittee on Commerce, Trade and Consumer Protection As a follow-up to yesterday's message disseminated by ISPLA regarding two recently introduced House bills,　this afternoon we　monitored a legislative hearing held before the House Subcommittee on Commerce, Trade and Consumer Protection, chaired by Rep. Bobby Rush [D--IL-1] also sponsor of one of the bills.　

The hearing examined H.R. 5777, the BEST PRACTICES Act, recently introduced by Rep. Bobby Rush and a bi-partisan discussion draft, released by Reps. Rick Boucher [D-VA-9]　and Cliff Stearns [R-FL-6], to require notice to and consent of an individual prior to the collection and disclosure of certain personal information relating to that individual.

The legislation attempts to address a number of issues affecting consumer privacy. These include consumers' expectations as to the manner in which their personal information should be handled on the Internet and websites and how it should be shared and disclosed to third parties.　 The legislation also seeks to address "what defaults should be set in connection with such expectations to provide regulatory certainty to industry and to investors; what safeguards should be crafted to　anticipate foreseeable abuses and violations of consumers' privacy expectations; which set of remedies will make consumers whole in the event of a privacy breach; and how to calibrate penalties and other possible legal causes of action without chilling industry incentives to innovate and grow their businesses. The legislation also seeks to address what extent, if any, should the privacy framework set forth in HR 5777 preempt state privacy laws and regulations.　

Testimony was received by the

following:

Witnesses

　　　 * David Vladeck, Director, Bureau of Consumer Protection, Federal Trade Commission

　　　 * Ed Mierzwinski, Consumer Program Director, U.S. Public Interest Research Group

　　　 * Leslie Harris, President and Chief Executive Officer, Center for Democracy

and Technology

　　　 * David Hoffman, Global Privacy Officer, Intel Corporation

　　　 * Ira Rubinstein, Adjunct Professor of Law, New York University School of Law

　　　 * Jason Goldman, Counsel, Technology and E-Commerce, U.S. Chamber of Commerce

　　　 * Mike Zaneis, Vice President, Public Policy, Interactive Advertising Bureau After the chairman and Ranking member gave their opening statements, followed by

statements of five or so committee members, the witness panel were allowed about　five minutes each to read a prepared statement. The witnesses discussed the role of the FTC and its　possible extent of rule-making and enforcement, Fair Information Practices, Opt-in and Opt-out provisions, the extent of federal preemption, data minimization, Safe Harbor provisions　and Best Practices, self regulation, private rights of action, class actions　and states attorneys general prosecutions,　and striking balances of the privacy of the individual versus the internet marketplace. David Vladeck, Director of the FTC's Bureau of Consumer Protection also commented on the FTC's three roundtables concerned with this same subject matter. They had previously been　attended by ISPLA, two held in Washington, DC and one in Berkely, CA. Rep. Cliff Stearns, the co-sponsor of one of the bills, was concerned with the speed in which this hearing had taken place --- just four days after the bill was released. He commented that his own bill had allowed input from interested stakeholders and that 70 different organizations had written comments.　He cited the need for robust discussion and the need for good equal balance.

Bruce Hulme

ISPLA Director of Government Affairs

www.ISPLA.org

Consumer Financial Protection Agency and New Federal Bills Update

Thu, 15 Jul 2010 18:55:07 GMT

US HR 4173, the “Wall Street Reform and Consumer Protection Act of 2009”

You have all heard about the major financial reform bill which has been taking up much space in newspapers and electronic media. Designed to curb risk on Wall Street, its purpose is to protect consumers and averting another financial melt-down that we experienced in 2008. It appears that Senate action today cleared a procedural road block to close debate all but assuring passage of the bill. The bill will create a Consumer Financial Protection Agency (CFPA), about which ISPLA has previously commented. The most likely candidate to head this agency is Professor Elizabeth Warren, presently on leave of absence at Harvard, while serving as chairwoman of the Congressional Oversight Panel.

The return of members of Congress from their July 4^th Holiday resulted in the introduction of several bills which ISPLA is reviewing. They concern, in part, eliminating the SSN from Medicare records, amending aspects of title 44USC18 pertaining to federal firearms license, consolidating contracting information databases, and addressing recent censorship issues in China regarding the Internet, commending Google, Go Daddy, Yahoo and Microsoft. The new three House bills and one House Resolution below are reflective of just a few identified in today's daily update on the ISPLA bill tracking system monitored on behalf of our individual members and to member professional associations.

Number:	US HR 5714 - Updated (New 07/15/2010)
Sponsor:	Rep Doggett, Lloyd [D-TX-25]
Title:	Medicare Identity Theft Prevention Act of 2010
Abstract:	*NONE*
Status:	Referred to the House Committee on Ways and Means. - 07/13/2010
Number:	US HR 5718 - Updated (New 07/15/2010)
Sponsor:	Rep Ackerman, Gary L. [D-NY-5]
Title:	Fire Sale Loophole Closing Act
Abstract:	*NONE*
Status:	Referred to the House Committee on the Judiciary. - 07/13/2010
Number:	US HR 5726 - Updated (New 07/15/2010)
Sponsor:	Rep Quigley, Mike [D-IL-5]
Title:	Federal Contracting Oversight and Reform Act of 2010
Abstract:	*NONE*
Status:	Referred to the House Committee on Oversight and Government Reform. - 07/13/2010
Number:	US HRES 1512 - Updated (New 07/15/2010)
Sponsor:	Rep McCarthy, Carolyn [D-NY-4]
Title:	Commending Google Inc. and other companies for advocating for an uncensored Internet, adhering to free speech principles, and keeping the Internet open for user
Abstract:	*NONE*
Status:	Referred to the House Committee on Foreign Affairs. - 07/13/2010

Bruce Hulme

ISPLA Director of Government Affairs

www.ISPLA.org

Michigan Vehicle Tracking bill becomes law. PIs receive exemption.

Thu, 01 Jul 2010 20:40:53 GMT

Dateline: July 1, 2010

The Michigan Council of Professional Investigators (MCPI) is pleased to announce that Michigan Governor Jennifer Granholm has signed into law Senate Bill 325. This new law makes it a crime to attach an electronic tracking device to a motor vehicle of another person without their knowledge or consent. Michigan Licensed Professional Investigators received an exemption.

The bill was sponsored by State Senator Basham who began work on his bill in 2008. The MCPI worked with the Senator on this bill since its inception. Also working tirelessly on this bill was Investigative & Security Professionals for Legislative Action (ISPLA).

This is a prime example of a state and national association working together to accomplish a positive result for the profession. Through the cooperative efforts of MCPI and ISPLA working with state law makers, the end result was good public policy.

We are also grateful to the firm of Julian Vail, LLC which handled lobbying efforts on this issue, working almost daily on this bill for the benefit of the profession.

To view this Act in its entirety go to http://bit.ly/95TIQa

ISPLA Legislative Committee

ISPLA Update: Revision S 3214 Surreptitious Video Surveillance in a Residence Act of 2010

Fri, 14 May 2010 17:14:45 GMT

ISPLA Update: Revision S 3214 Surreptitious Video Surveillance in a Residence Act of 2010

Investigative and Security Professional Colleagues,

Below is an email from NCISS Washington advocate Larry Sabbath, who accompanied ISPLA/NCISS members Bruce Hulme and Stu Drobny to a conference this past Monday at the office of Senator Arlen Specter (D-PA). Also present was Jimmie Mesis, editor of PI Magazine and now the chairman of the NCISS investigations legislative committee. Bruce Hulme, ISPLA Legislative Director again extends thanks to Stu Drobny for arranging the meeting and ISPLA's Nicole Bocra for her ongoing assistance in her lobbying of this piece of legislation.

At the meeting, Bruce Hulme indicated his concern with how this legislation might be interpreted to include security cameras and he requested further clarification. He and other representatives of our industry also expressed hope that there would be further writing with regard to the legislative history of this bill. In addition to the revision by Congressional staff adding the word "Residence" to portions of the bill, it is important to point out to our security members of ISPLA, and to the other associations with whom we have been working, on an additional change to this bill. ISPLA is pleased that the following language was added to the draft which assuages our concern:

"(2) does not include security monitoring devices installed or operated by, or at the direction of, the owner or leaseholder of the property."　

There had also been concern expressed on how this proposed legislation might affect possible undercover operations that might be video taped or the legality of the installation of "Nanny Cams." If one takes note under the section "2523. Prohibition on use of video surveillance in a residence", the definition allows such video if made with the consent of an individual present in the area which would cover an undercover or sting operation. Nanny Cams could be utilized without the parents being present as the resident of a residence or temporary residence may give consent to utilizing such a video device and not have to remain within the premises.

Last evening, Bruce Hulme provided Larry Sabbath with a copy of　the draft language below which the Senator's staff had transmitted to Stu Drobny. ISPLA is pleased that despite the reluctance of the present leadership of NCISS to accept ISPLA's offer of free PAC services, the two organizations were able to work in tandem on this particular legislative issue. It is grateful to Stu for facilitating this dialog and the resulting mutual cooperation.

Senator Specter's office has advised us:

"... regarding the Surreptitious Video Surveillance Act of 2010 (S.3214).... S 3214 applies only to surreptitious video surveillance in residences – not other locations – and does not make illegal video surveillance conducted inside a residence if made with the consent of "an individual present in the area," or of "a resident of the temporary or permanent residence" who does not need to be present at the time of the surveillance. See sec. 2523(a)(3)(A) of S-3214.

"Nevertheless we understand the concerns of private investigators. As we discussed, we have made some changes to the language of the bill to address those matters to address those concerns. I have attached the bill - in word format - with the changed language in yellow highlight. This revised bill could be made part of a managers’ amendment at a markup once the bill is listed."　

Notwithstanding the fact that this bill in its present form now poses no problem to this profession, privacy advocates may very well endeavor to make detrimental changes to it as the bill advances. Nicole Bocra, and other members of ISPLA's legislative affairs committee, will continue to work with Senator Specter's office to ensure that the final bill contains the additional draft language as written below.　

ISPLA Executive Committee　　

Message From Larry Sabbath - NCISS Legislative Avocate

Update on S 3214 "Surreptitious Video Surveillance Act"

Last week Jimmie Mesis, NCISS member Stu Drobny and I attended a meeting with staff of the Senate Judiciary Committee 　to discuss our concerns with S 3214, the Surreptitious Video Surveillance Act".　 The meeting was arranged by Stu after he had discussed the issue with Senator Arlen Specter, (D-PA), the bill's sponsor.　 At the meeting, Jimmie suggested that the bill make clear that the only surveillance to be restricted would be that done in a residence.　 Today, the staff forwarded the attached revision of the legislation to include the clarification.　 NCISS will continue to work with the staff throughout the legislative process to assure the bill remains limited in scope.

Here is the revised text of the bill with the changes highlighted in yellow:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.

This Act may be cited as the "Surreptitious Video Surveillance in a Residence Act of 2010".

SEC. 2. PROHIBITION ON USE OF VIDEO SURVEILLANCE IN A RESIDENCE.

(a) In General.-Chapter 119 of title 18, United States Code, is amended by adding at the end the following:

"2523. Prohibition on use of video surveillance in a residence

"(a) Definition.-In this section, the term 'video surveillance'-

"(1) means the intentional acquisition, capture, or recording of a visual image or images of any individual if-

"(A) the individual is in an area of a temporary or permanent residence that is not readily observable from a public location;

"(B) the individual has a reasonable expectation of privacy in the area; and

"(C) the visual image or images-

"(i) are made without the consent of-

"(I) an individual present in the area; or

"(II) a resident of the temporary or permanent residence; and

"(ii) are-

"(I) produced using a device, apparatus, or other item that was mailed, shipped, or transported in or affecting interstate or foreign commerce by any means; or

"(II) transported or transmitted, in or affecting, or using any means or facility of, interstate or foreign commerce, including by computer; and

"(2) does not include security monitoring devices installed or operated by, or at the direction of, the owner or leaseholder of the property.

"(b) Prohibition on Video Surveillance.-It shall be unlawful for any person to engage in any video surveillance, except-

"(1) as provided in this section; or

"(2) as authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

"(c) Treatment as Electronic Surveillance.-

"(1) In general.-Subject to paragraph (2)-

"(A) video surveillance shall be considered to be an interception of an electronic communication for the purposes of this chapter; and

"(B) it shall not be unlawful for a person to engage in video surveillance if the video surveillance is conducted in a manner or is of a type authorized under this chapter for the interception of an electronic communication.

"(2) Exception.-Sections 2511(2)(c), 2511(2)(d), 2512, 2513, and 2518(10)(c) shall not apply to video surveillance.

"(3) Prohibition of use as evidence of video surveillance.-

"(A) In general.-No part of the contents of video surveillance and no evidence derived from video surveillance may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof if the disclosure of the video surveillance would be in violation of this chapter.

"(B) Motion to suppress.-

"(i) In general.-Any aggrieved person in any trial, hearing, or proceeding described in subparagraph (A) may move to suppress the contents of any video surveillance conducted under this chapter, or any evidence derived from the video surveillance, on the grounds that-

"(I) the video surveillance was unlawfully conducted;

"(II) the order of authorization or approval under which the video surveillance was conducted was insufficient on its face; or

"(III) the video surveillance was not conducted in conformity with the order of authorization or approval.

"(ii) Timing of motion.-A motion made under clause (i) shall be made before the trial, hearing, or proceeding unless-

"(I) there was no opportunity to make such motion; or

"(II) the aggrieved person described in clause (i) was not aware of the grounds of the motion.

"(iii) Remedy.-If the motion made under clause (i) is granted, the contents of the video surveillance, or evidence derived from the video surveillance, shall be treated as having been obtained in violation of this chapter.

"(iv) Inspection of evidence.-The judge, upon filing of a motion under clause (i), may, in the discretion of the judge, make available to the aggrieved person or counsel for the aggrieved person for inspection such portions of the video surveillance or evidence derived from the video surveillance as the judge determines to be in the interests of justice.

"(v) Right to appeal.-

"(I) In general.-In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion made under clause (i), or the denial of an application for an order of approval, if the United States attorney certifies to the judge or other official granting the motion or denying the application that the appeal is not taken for purposes of delay.

"(II) Filing deadline.-An appeal under subclause (I) shall-

"(aa) be taken within 30 days after the date the order was entered; and

"(bb) be diligently prosecuted.".

(b) Chapter Analysis.-The table of sections for chapter 119 of title 18, United States Code, is amended by adding at the end the following:

"2523. Prohibition on use of video surveillance in a residence.".

HR 5107/S 3648, the Employee Misclassification Prevention Act

Fri, 30 Apr 2010 01:56:11 GMT

HR 5107/S 3648, the Employee Misclassification Prevention Act

On April 22, 2010, HR 5107/S 3254, the “Employee Misclassification Prevention Act”, identical bills, were introduced in the House and Senate. The bills’ intent is to address the issue of misclassification of employees as independent contractors.

The House bill was introduced by Rep. Lynn Woolsey, (D-CA-6) and Senate bill by Sen. Sherrod Brown, (D-OH). The bills, H.R. 5107 and S. 3254, would amend the federal Fair Labor Standards Act to impose strict record keeping and notice requirements on businesses with respect to workers treated as independent contractors, exposing such businesses to fines up to $1,100 or up to $5,000 per employee for each violation of the law if repeatedly or willfully committed. Employers would have to provide new hires with a notice explaining their rights. Furthermore, should the EMPA be passed, it is thought that non-compliance may lead to criminal penalties, as the federal government is planning on going after companies in an aggressive fashion and is hiring increased staff already for this purpose. The Department of Labor will audit employers subject to the Fair Labor Standards Act of 1938 that are conducted by the Wage and Hour Division, targeting those industries with known frequent incidence of misclassifying employees as non-employees.

The EMPA does not prohibit businesses from continuing to use independent contractors, provided they are properly classified as such. The bill only prohibits companies from misclassifying workers as independent contractors when such workers are not really independent contractors, but employees.

All businesses would, nonetheless, be affected by EMPA, because it imposes upon every company that uses either employees or independent contractors a recordkeeping and a notice requirement. In addition, any business that fails to provide the required notice under EMPA would be subject to fines, even if its independent contractors are properly classified.

I recommend you take a look at recent well researched article authored by three attorneys with the Pepper Hamilton, LLP firm - Richard J. Reibstein, Lisa B. Perkins and Jonathan A. Clark titled Independent Contractor Misclassification: How Companies Can Manage Their Risks:

http://www.pepperlaw.com/publications_article.aspx?ArticleKey=1769

Independent contractors are referred to as freelancers, consultants, per diems, contractors, project workers, temps, specialists and are found in virtually every industry. Some companies used temporary employment agencies to supply long-term temps. Some companies use independent contractors to augment their workforce, while other businesses, such as transportation companies, often have more independent contractors than employees. And, some contract security and investigative firms are also known to use such independent contractors to perform bodyguard, security, surveillance and outside investigative services.

States have often classified workers and brought actions against employers for labor and tax violations in reference to improperly classifying independent contractors. Now the federal government appears poised to do the same should this legislation be enacted.

ISPLA will initially be consulting with our member firms that might be at risk and will work closely with our other association partners concerned with this legislation.

Please visit www.ISPLA.org for future updates on this and other important issues. ISPLA is singularly focused on addressing ill-conceived legislation and over burdensome regulation through our lobbying efforts and ISPLA-PAC activity.

Bruce Hulme

ISPLA Director of Government Affairs

Tel: (212) 962 4054

FTC poised to gain stronger hand in making rules with financial reform bill

Mon, 26 Apr 2010 19:29:06 GMT

HR 4173 Update: FTC poised to gain stronger hand in making rules with financial reform bill

The Federal Trade Commission could become more powerful with a provision tucked in the financial reform bill H.R. 4173, the “Wall Street Reform and Consumer Protection Act of 2009” that would expand its rule-making abilities, according to a Washington Post article of April 26, 2010.

Consumer protection groups support such a result, which has recently prompted the U.S. Chamber of Commerce, Consumer Data Industry Association, National Association of Professional Background Screeners (NAPBS) and 38 other trade group associations to protest the provision as the Senate argues a bill that would overhaul of the financial regulatory system. Investigative & Security Professionals for Legislative Action (ISPLA) shares their concerns. Not all national investigation associations have been heard on this issue, but one other association does support this profession’s regulation remain under the authority of the FTC in any final version of the bill.

In the Chamber’s April 22, letter to Senate leaders Harry Reid [D-NV] and Mitch McConnell [R-KY] the trade groups expressed their “opposition to the inclusion of provisions that would significantly expand the Federal Trade Commission’s rulemaking and enforcement authority over virtually every sector of the American economy.” They further wrote: “The financial troubles of the past year have not been laid at the FTC’s doorstep, and provisions to expand the commission’s authority are out of place in legislation to reform the financial system.”

Granting the FTC broad new authority has received scant attention during the debate about creating a new Consumer Financial Protection Agency (CFPA). The Chamber and group previously outlined in detail further concerns in a letter of January 19, which we share.

The provision would make it easier for the FTC to create regulations and step up its enforcement abilities. Presently, it acts as an enforcement agency for consumer protections and can create guidelines for business practices that affect many industries. The provision was included in the financial reform bill to strengthen the FTC’s oversight of the financial sector. But critics said it would greatly expand the agency’s ability to create new rules for other industries having nothing to do with the circumstances creating the present economic condition. Consumer groups support the bill.

The provisions in question, if passed, will:

Eliminate existing procedural safeguards - FTC authority extends to all “unfair or deceptive acts or practices in or affecting commerce”, including business to business interactions as well as conduct toward consumers. The procedures Congress requires, and remain law today, are reasonable – afford advance rulemaking notice to Congress and to the public, provide an informal hearing, issue a “Statement of Basis and Purpose” for any final rule , require transparency when Commissioners meet with outside parties about regulatory proceedings, and allow for robust judicial review to ensure that these procedures are followed.
Create Excessive Enforcement Authority – By removing existing checks on FTC enforcement powers the public interest will not be served. The current limits on FTC discretion are appropriate.

Civil Penalty Authority: Currently, the FTC proceeds by imposing an administrative order to change a company’s behavior or it seeks a court order to force the return of ill-gotten gains. It may then seek civil penalties if the order is violated.

“Substantial Assistance” Violation: HR 4173 would provide that any person that “knowingly or recklessly” provides “substantial assistance” to another in committing an unfair or deceptive act or practice can be punished as a primary perpetrator, even without actual knowledge of the violation. Such an expansion of FTC jurisdiction is neither reasonable nor necessary.

Independent Litigating Authority: HR 4173, as passed by the House, would allow the FTC to have independent litigating authority to seek civil penalties, thus eliminating the current requirement that it notify the Department of Justice when the FTC intends to seek such penalties. Consultation with the DOJ provides a critical check on FTC discretion and a more orderly access to the federal courts, particularly important when a company is exposed to excessive and damaging penalties.

Critics contend the FTC ran amok as a regulatory agency before Congress reformed it in 1975, when the agency was stripped of many of its regulatory abilities. Under current law, if the FTC wants to create a new industry-wide rule, it must hold hearings. Then it has to prepare a statement of basis and purpose that includes the economic impact of the rule and any potential harms that the rule might create. This is one of the reasons ISPLA continues to closely monitor hearings and rulings of the FTC, and maintain liaison with its staff.

The mission of ISPLA is to monitor and identify critical legislative and regulatory issues in order to provide a forum for debate and discussion within the investigative and security professions and to serve as an advocate and resource for these professions.

To learn more about what ISPLA has been doing for the investigative and security professions, click on www.ispla.org/achievements. To learn about joining ISPLA and voluntary contributions to the ISPLA Political Action Committee please click on www.ispla.org/faqisplapac. One may join and pay the $99 annual dues online or mail dues check or contributions in any amount to the address below.

Investigative & Security Professionals for Legislative Action

235 N. Pine Street, Lansing, MI 48933

Bruce Hulme

ISPLA Director of Government Affairs

Tel: (212) 962 4054

Email: brucehulme@yahoo.com

Anti-Spoofing Bill Passes in House

Thu, 15 Apr 2010 13:08:32 GMT

Anti-Spoofing Bill Passes House with "Intent" provision supported by ISPLA. Senate version S-30 previously passed in Senate

REP. ELIOT L. ENGEL [D-NY-17] ANTI-SPOOFING BILL PASSES HOUSE Truth In Caller ID Act Would Stop Use of Fraudulent Caller ID’s

April 14, 2010-Washington, DC--Congressman Eliot Engel’s bipartisan legislation to stop the use of fake Caller IDs, which are often used to swindle people, the Truth in Caller ID Act (H.R. 1258), passed the full House today by voice vote. (View Rep. Engel’s House floor comments here - http://www.youtube.com/watch?v=BZ1ICJTQFTM )

‘Spoofing’ is the term describing technology to falsify the name and phone number appearing on Caller ID. For example, a spoofer’s call can show the call to be from a bank to persuade a person to give their Social Security and/or credit card numbers or other personal information. This information is then used to fraudulently obtain credit cards or withdraw money from a person’s bank account.

Rep. Engel, a senior member of the House Energy & Commerce committee, called identity theft a growing problem across the United States. "I am very pleased that my colleagues agreed with me, that this is another example of technology being misused by the unscrupulous to scam the unsuspecting," he said. "Last year, the New York City Police Department uncovered an identity theft ring, using Caller ID Spoofing to victimize over 6,000 people out of more than $15 million, ruining the credit of thousands of hard-working Americans. The scariest part is this weapon is available to anybody with a web browser."

Rep. Engel’s legislation would amend the Communications Act of 1934 making it illegal to alter Caller ID with "intent to defraud or cause harm," and gives the Federal Communications Commission (FCC) authority to develop regulations to enforce the new law.

To ‘spoof’, a person need only to log onto a website, put in his or her phone number, the number they are calling, and the number they want to appear on the Caller ID. The website calls back – connects to the person they are calling and masks their true identity. Even the sound of his or her voice can be altered. Rep. Engel reminds everyone to not provide personal information over the phone.

Rep. Engel added, "If spoofers are able to get your information and do the cyber equivalent of ransacking your house, it can literally take years to correct the damage. Even worse, such technology can be used by stalkers and potentially violent criminals as well. We must act because lives could be lost and more people are potentially ruined. Last year, a person in New York called a pregnant woman she viewed as a romantic rival, spoofing the phone number of the woman’s pharmacist. She tricked her into taking a drug which causes abortions."

The bill was introduced along with Congressman Joe Barton (R-TX), the ranking member of the House Energy and Commerce Committee. It had previously passed the House in both the 109th and 110th Congress. It now awaits conference with the Senate to combine with S. 30, sponsored by Sen. Bill Nelson (D-FL), which had previously passed the full Senate.

A full text of Rep. Engel’s remarks follows:

April 14, 2010

Madame Speaker--

I stand today in strong support of my legislation, the Truth in Caller ID Act. But before I begin, I first want to thank my friend and the lead Republican on this bill, Ranking Member Joe Barton. I also want to thank the chairman of the Energy & Commerce Committee Henry Waxman, as well as his staff for being so accommodating in getting this bill to the Floor today. This legislation has been developed in an extremely bipartisan manner, and I want to thank and commend everybody who worked on it.

I introduced this bill because we need an immediate change in our laws to help prevent identity theft, to crack down on fraudulent phone calls, and to protect legitimate uses of caller ID technology.

Last year, over 6,000 people were victimized by credit card fraud and identity theft. Criminals stole over $15 million from banks, and ruined the credit of thousands of victims. They were able to perpetrate this fraud in some instances by using Caller ID spoofing.

The disturbing fact about spoofing is not just that it’s legal, but how easy it is to carry out. Criminals use a tool called a spoof card to change their outgoing Caller ID, and even to disguise their voice in order to trick banks into giving them access to their victims’ accounts. This tool is available to anyone with access to a web browser.

Nobody can dispute that this legislation is necessary. Last year, a person in New York called a pregnant woman who she viewed as a romantic rival, spoofing the phone number of the woman’s pharmacist. She tricked the woman into taking a drug used to cause abortions.

Caller ID fraud has even been used to prank call the constituents of a Member of this body, with the Caller ID readout saying it came from that Member’s office. Just imagine if people committed this fraud in the days leading up to a close election.

In response to this problem, I, along with Mr. Barton, have introduced the Truth in Caller ID Act. This bill outlaws the deceptive use of caller ID spoofing technology if the intention of the caller is to deceive and harm the recipient of the call. This bill does NOT change the rules for legitimate uses of the technology. For example, a domestic abuse shelter will still be able to change their number on caller ID to protect the occupants of the shelter.

I am pleased this bill passed the House in the 109th and 110th Congresses. And I look forward to its passage again today.

I strongly urge my colleagues to support the Truth in Caller ID Act, and outlaw this type of fraud once and for all.

* * *

Bruce Hulme

ISPLA Director of Government Affairs

Investigative & Security Professionals for Legislative Action www.ISPLA.org

SENATE BIPARTISAN CYBERSECURITY BILL

Fri, 09 Apr 2010 21:31:53 GMT

SENATORS HATCH AND GILLIBRAND INTRODUCE FIRST OF ITS KIND MEASURE TO BOLSTER CYBERSECURITY - Bill Fosters International Coordination, Cracks Down on Foreign Countries That Offer Cyber Criminals Havens

Washington, D.C. March 23, 2010 – With the growing cost of cybercrime, Senators Orrin Hatch (R-UT) and Kirsten Gillibrand (D-NY) introduced the International Cybercrime Reporting and Cooperation Act, new bipartisan legislation that would enhance U.S. cooperation with other countries to confront this threat and keep America safe.

“Cybercrime is a serious threat to the security of the global economy, which is why we need to coordinate our fight worldwide. Until countries begin to take the necessary steps to fight criminals within their borders, cybercrime havens will continue to flourish,” said Senator Hatch. “We don’t have the luxury to sit back and do nothing. I believe the International Cybercrime Reporting and Cooperation Act will not only function as a deterrent of cybercrime, but will prove to be an essential tool necessary to keep the Internet open for business.”

“Cybercrime must be a top priority for our national security,” Senator Gillibrand said. “If we’re going to protect our networks, our infrastructure, our economy and our families, we have to go after cyber criminals wherever they may be – and it must be an international effort. Our new legislation will require the president to provide a global assessment, identify threats from abroad, work with other countries to crack down on their own cyber criminals, and urge the President to cut off U.S. assistance and resources for countries that refuse to take responsibility for cybersecurity. Our legislation will make America safer by getting tough on cybercrime globally, and coordinating with our partners in the international community.”

For more than a decade, reports have described the increasing vulnerability of the U.S. to cyberattacks. A growing array of international criminal organization are targeting American citizens, commerce, and information infrastructure, including the Internet, telecommunications networks, financial systems, embedded processors and controllers in critical industries to steal, exploit, disrupt, or destroy information.

An estimate from the Government Accountability Office (GAO) estimates that in 2005 U.S. businesses lost $67.2 billion as a result of cyberattacks. Since then, attacks have dramatically increased. Earlier this year, hackers in China launched a large, sophisticated attack on Google and other American businesses. The global economy overall lost over $1 trillion in 2008 as a result of cyber attacks, according to studies by McAfee, Inc.

Numerous American employers, including Cisco, HP, Microsoft, Symantec, PayPal, eBay, McAfee, American Express, Mastercard and Visa, as well as Facebook, are supporting the Senators’ legislation.
“Microsoft strongly supports the International Cybercrime Reporting and Cooperation Act and applauds Senators Gillibrand and Hatch for their leadership in this area,” said Fred Humphries, Managing Director of US Government Affairs, Microsoft Corp. “This legislation is a great step forward toward accessing the technology capabilities and judicial remedies of foreign countries to combat cybercrime and provide a safer, more trusted and secure Internet.”

"We support efforts to increase global awareness of cybersecurity issues, and to improve cybersecurity and investigations of cybercrime,” said Tucker Foote, Vice President & Head of U.S. Government Affairs, MasterCard Worldwide. “We believe your legislation provides useful tools to further those goals and to provide a safer environment for U.S. consumers and businesses to operate in today’s technology-driven world."

Criminals are increasingly going after online financial data – costing businesses and individuals billions. In fact, each data breach costs American businesses an average of $6.6 million.
Cyber exploitation activity has grown more sophisticated and targeted over the past year and is expected to increase. Relevant international cybercrime agreements have not been signed by certain key countries that host cyber criminals with apparent impunity.

To boost America’s cybersecurity, improve our coordination with allies, and establish tough new ways to crack down on cyber threats internationally, Senators Gillibrand and Hatch today introduced the International Cybercrime Reporting and Cooperation Act.

Annual Presidential Report
The bill would require the President annually report to Congress on the assessment of the state of countries’ use of information and communications technologies (ICT) in critical infrastructure, the extent and nature of cybercrime based in each country, the adequacy and effectiveness of each country’s legal and law enforcement systems addressing cybercrime, and countries’ protection of consumers and commerce online. The President would also report on multilateral efforts to prevent and investigate cybercrime, including U.S. actions to promote such multilateral efforts.

Deliver Foreign Assistance to Prevent Cybercrime Havens
The bill would require that programs designed to combat cybercrime be prioritized to countries with low ICT penetration in order to prevent such countries from becoming future cybercrime havens. Also, U.S. or multilateral assistance designed to improve critical sectors such as finance or telecommunications would be encouraged to include programs designed to combat cybercrime in order to ensure that such assistance is not inadvertently being used to build future crime havens.

Identify Countries of Cyber Concern
The bill would require the President to identify countries of cyber concern – those for there is significant credible evidence that a pattern of cybercrime against the U.S. Government, private entities or persons by persons from within such countries’ borders and such countries do not sufficiently address cybercrime through investigations, prosecutions, bilateral or international cooperation, or appropriate legislation or similar measures.

For each country of cyber concern, the President would establish an action plan with benchmarks designed to assist the government of each such country to improve its capacity to combat cybercrime. This plan would be developed and carried out in consultation with the county of concern in order to encourage them to reach the benchmarks. The President would provide an annual assessment of the country’s participation in the action plan.

The President could waive the requirement to develop an action plan for any country if it is in the national interest, and report such waiver to Congress, in classified form if necessary.

Failure to Meet Action Plan Benchmarks
Countries of cyber concern that do not reach their benchmarks may have one of the following benefits suspended, restricted or prohibited: new OPIC or ExIm financing, new multilateral financing, new TDA assistance, preferential trade programs, or new foreign assistance, as long as such do not limit projects to combat cybercrime.

Department of State International Cybercrime Policy Focus
In order to improve the U.S. focus on addressing international cybercrime, the bill would require the Secretary of State to designate a senior official at the State Department to coordinate and focus on activities, policies and opportunities to combat cybercrime internationally, and in consultation with other Federal agencies and the relevant chiefs of mission, appoint employees at key embassies to focus on cybercrime policy.

ISPLA Board Member Recognized with Life Time Achievement Award

Mon, 29 Mar 2010 15:34:12 GMT

On March 27, 2010 at the 27^th annual Intellenet Conference held in New Orleans, LA, James P. Carino, Jr. became the seventh recipient of the Julius "Buddy" Bombet Lifetime Achievement Award. Investigative & Security Professionals for Legislative Action (ISPLA) congratulates Mr. Carino for a lifetime of service and volunteerism to our profession. Mr. Carino is a founder and Executive Director of Intellenet. He is also a founder and board member of ISPLA.

Presenting the award to Mr. Carino was Mr. John Lajoie, award committee chairman. Upon presenting the award Mr. Lajoie stated, “The Julius ‘Buddy’ Bombet Lifetime Achievement Award is the most prestigious award within our profession for service, dedication, and benevolent and philanthropic efforts. It honors and celebrates your lifetime of immense achievement. An achievement only enjoyed by fellow recipients who have also touched our lives in much the same way. And so isn't it fitting that a man who voted in 1999 to create this award is now going to receive it. Fellow visionary Benjamin Franklin once said ‘Well done is better than well said.’ It's a concept that is simple to understand, yet difficult to execute. Mr. James Carino- your lifetime actions embody, nurture, and enhance this philosophical doctrine and for that, we are eternally
grateful.”

Previous recipients of this prestigious award include two ISPLA members, Buddy Bombet and Bruce Hulme. Other recipients are Kitty Hailey, Eddie McClain, Jack Reed, and Philip White.

ISPLA Executive Committee

ISPLA Represents Industry at Final FTC Roundtable in Washington, D.C.

Thu, 18 Mar 2010 23:17:09 GMT

ISPLA Represents Industry at Final FTC Roundtable in Washington, D.C.

Dateline: March 17, 2010, Washington, D.C.

The Federal Trade Commission held their final roundtable on consumer privacy issues today in Washington, DC. The roundtable is the last of three public events designed to explore the privacy challenges that are posed by technology and business practices that collect and use consumer data. Investigative and Security Professionals for Legislative Action (ISPLA) has attended all three of the events.

Nicole Bocra, ISPLA Executive Committee member, attended today’s session as the association’s representative. Ms. Bocra provided context to the roundtable as they discussed health information, internet architecture and privacy, and “sensitive” consumer information.

The roundtable discussions centered on the risks and benefits of information collection and use in online and offline contexts, consumer expectations surrounding various information management practices, and the adequacy of existing legal and self-regulatory controls to address privacy interests. The participation of the investigation industry is critical to counter-balance the legitimate concerns of privacy advocates and other industry forces.

Today’s roundtable concluded with a panel to discuss lessons that have been learned from all three roundtables and possible ways to move forward.

ISPLA is concerned with the prospect of additional regulations and laws that limit the legitimate use of consumer information. Its participation, at the behest of the FTC, reflects on the association’s reputation among regulators and legislators as a significant and reasoned voice for the industry.

###

Contact Information:

Bruce Hulme

Director of Government Affairs

Investigative and Security Professionals for Legislative Action

Telephone: (212) 962 4054

brucehulme@yahoo.com

New Senate Bills, Breaking News in DC, and Second Amendment Update

Thu, 04 Mar 2010 19:00:55 GMT

Rep. Charles B. Rangel [D-NY-15] has asked House Speaker Nancy Pelosi for a leave of absence from his position as chairman of powerful Committee on Ways and Means due to recent findings of the House Ethics Committee. Congressman Rangel, 79, a twenty term member of Congress, has long been regarded as one of its most powerful members. This committee has often had jurisdiction over issues of concern to investigative professionals and over the years the ISPLA’s director of government relations has submitted testimony in opposition to SSN ban legislation before it. Stay tuned…

And in the Senate…

S. 3037, “Enhancing Oversight and Security at United States Missions Act of 2010”, a bill to increase oversight of private security contractors and establish the proper ratio of U.S. Government security personnel to private security contractors at U.S. missions where Armed Forces are engaged in conflict operations was introduced February 24^th by Sen. Claire McCaskill [D-MO]. It is cosponsored by Sen. Russell D. Feingold [D-WI] and Sen. Patrick B. Leahy [D-VT] and has been referred to the Committee of Foreign Relations.

S 2950, “Criminal History Background Checks Pilot Extension Act of 2009”, a bill extension sponsored by Sen. Charles E. Schumer [D-NY], was passed by the House and Senate to amend the Protect Act to extend by 14 months the Child Safety Pilot Program allowing certain volunteer organizations to obtain national and state criminal history checks on their volunteers. It became Public Law No.: 111-143 on March 1.

S 3029, “StartUp Visa Act of 2010”, was introduced on February 24^th by Sen. John F. Kerry [D-MA] and cosponsored by Sen. Richard G. Lugar [R-IN] and referred to the Committee on the Judiciary. The purpose of the bill is to establish an employment-based visa for alien entrepreneurs who have received significant capital from investors to establish a business in the U.S.

In the U.S. Supreme Court…

The U.S. Supreme Court appears poised to extend the Second Amendment guarantee of a right to own a gun, according to an ABA publication reviewed today. But the high court in McDonald v. City of Chicago also seems likely to allow municipalities some authority to regulate that right. The dominant sentiment on the court may be to extend the amendment beyond the federal level, based on the 14th Amendment’s guarantee of "due process."

The focus of the court's initial debate may be how extensively the right to keep and bear arms should be spelled out. "An attempt by an attorney for the cities of Chicago and Oak Park , Ill. , defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed."

ISPLA has previously commented on this case as well as the Supreme Court case of DC v Heller in which Al Cavasin, Peter Psarouthakis and Bruce Hulme, all now members of ISPLA’s Executive Committee, were instrumental in persuading several state and national investigative and security associations to join in an amicus brief on behalf of a District of Columbia security officer. The 2008 successful verdict in that litigation became the precursor to the current Supreme Court case of McDonald v. City of Chicago

A Final Comment…

President Obama today endorsed reconciliation, a tactic he plans to use to push his healthcare overhaul wherein passage may be accomplished by simple majority. In such a scenario the House passes the health bill passed in the Senate and the Senate then uses reconciliation to pass fixes in the bill agreeable to the House thus thereby passing Republicans and eliminating their ability to filibuster passing the changes with just a simple majority vote.

Investigative & Security Professionals for Legislative Action

The mission of ISPLA is to monitor and identify critical legislative and regulatory issues in order to provide a forum for debate and discussion within the investigative and security professions and to serve as an advocate for these professions. To support and join us in this mission go to www.ISPLA.org

ISPLA Executive Committee

235 N. Pine Street

Lansing, MI 48933

Tel: (734) 428 9663

European Court Privacy Ruling

Wed, 03 Mar 2010 01:09:33 GMT

German High Court Overturns Law on Telephone and Email Data

March 2, 2010, Karlshruhe, Germany – The German Federal Constitutional Court, claiming that a law ordering that data on calls made on cellular and landline telephones, as well as email messages, be retained for six months for possible use by criminal investigation authorities, ruled such a law violates the constitutional right of privacy of correspondence of Germans. The law evolved from a 2006 EU anti-terrorism directive.

The German high court ruled that the law failed to balance privacy rights against the need to provide security, thus overturning this anti-terror law. It comes on the heels of recent European attempts to limit Google’s Street View maps and U.S. tracking of bank transfers to investigate terror cells, as previously reported by ISPLA professional association listservs.

Truth in Caller ID Act of 2009

Sat, 27 Feb 2010 16:18:38 GMT

This past week the Senate, by unanimous consent, passed S 30, the “Truth in Caller ID Act of 2009”, to amend the Communications Act of 1934 to prohibit manipulation of caller identification. This is an anti-spoofing bill making it unlawful for any person within the U.S., in connection with any telecommunication service or IP-enabled voice service (VOIP), to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with intent to defraud, cause harm, or wrongfully obtain anything of value, unless such transmission is exempted pursuant to paragraph (3)(B)…”

This Senate bill, which has now been sent over to the House Energy and Commerce Committee, is a bill with which our profession feels it can abide with the “Intent” provision as set forth above. That House committee has an identical bill pending, HR 1238 sponsored by Rep. Eliot Engel [D-NY-17] and Ranking member Rep. Joe Barton [R-TX-6].

Without the necessity of hyperbole since the truth is a bigger story, volunteers from ISPLA at their own expense, met with Congressman Robert C. “Bobby” Scott [D-VA-3] during their recent visit to Washington to participate in the Department of Justice Symposium on Indigent Defense. In addition to our discussing with Rep. Scott his interest in addressing problems regarding the criminal justice system, we were also aware that has an anti-spoofing bill. He sponsored HR 1110, the “Preventing Harassment through Outbound Number Enforcement Act of 2009” or “Phone Act” which passed in the House on December 16^th by a vote of 418 to1.

The “PHONE Act of 2009” would provide federal criminal penalties for certain types of caller ID spoofing, which occurs when a caller uses a false caller ID during a telephone call in order to hide the caller's true identity. The bill would prohibit the use of false caller ID information in order to wrongfully obtain anything of value. It would also prohibit the use of a person's caller ID without their consent and with the intent to deceive the recipient of the call.

The bill would not affect legitimate business or personal disguise of one's true caller ID. Use of a single number or name for multiple callers, "Private Caller", or other disguises where there is no purpose to wrongfully obtain something of value from the person called or where it is not a knowing use of an actual person's caller ID with intent to deceive another, would continue to be legal.

"This bill is an important means of preventing identity theft and ensuring the privacy of our citizens while allowing continued disguises of a caller's identity for privacy or other legitimate purposes," said Congressman Scott.

In recent years, spoofing has become more commonplace, leading to increased security vulnerabilities and identity theft. Spoofing technology has become readily available, either through the purchase of Internet telephone equipment or through Web sites specifically set up to spoof. Because caller ID spoofing can make a call appear to come from any phone number, it has the ability to cause fraud, damaged credit and financial ruin. Call recipients sometimes divulge personal and private information to the spoofer, under the mistaken belief that it is a legitimate call. However, use of such technology is a legitimate investigative tool when not used to defraud or cause harm.

ISPLA Participates in DOJ Symposium on Indigent Defense

Thu, 25 Feb 2010 00:25:34 GMT

At the invitation of the U.S. Department of Justice, Investigative & Security Professionals for Legislative Action board member Nicole Bocra and government affairs director Bruce Hulme participated in the National Symposium on Indigent Defense last week in Washington, D.C. The symposium was organized to correct deficiencies presently existing in the legal representation of the indigent, which has been documented by the American Bar Association and others to be “a system that lacks fundamental fairness and places poor persons at constant risk of wrongful convictions.”

More than 45 years have passed since the Gideon decision of the U.S. Supreme Court and decades since it extended to juveniles the right to counsel. The symposium had some 140 presenters and more than 800 attendees, who took part in five plenary sessions and 37 workshops. The event provided an overview of the advances and setbacks in implementing the Sixth Amendment right to counsel in America over the past decade. An effort was made to find solutions to the current crisis in indigent defense through litigation and legislation. A disparate group of concerned individuals and organizations gathered to present their views--judges, prosecutors, public defenders, defense attorneys, law school academics, forensic organizations, policy and advocacy groups, and ISPLA, representing investigative professionals. Panelists expressed concerns with areas of criminal defense, particularly those affecting the indigent and wrongly accused.

ISPLA members include some of the most experienced defense investigators in the U.S. and have assisted both national and state professional associations on federal regulatory and legislative affairs. ISPLA welcomed the opportunity to provide input on behalf of the profession to many of the participants present, calling attention to the important role played by investigators as an integral part of the criminal justice system.

Attorney General Eric H. Holder, Jr. was the keynote speaker. Several Assistant Attorneys General and one Associate Attorney General, all heads of important divisions, were also speakers during the symposium. They were:

Assistant Attorney General Laurie O. Robinson – Office of Justice Programs

Assistant Attorney General Thomas E. Perez - Civil Rights Division

Assistant Attorney General Lanny A. Breuer – Criminal Division

Associate Attorney General Thomas J. Perrelli – Civil Division’s Federal Programs Branch

Other high ranking Department of Justice speakers or panelists included Duren Banks, Chief of Prosecution and Adjudication Statistics Unit; Kristina Rose, Acting Director of National Institute of Justice (NIJ); Michael G. Sheppo, Director of Investigative and Forensic Services of NIJ; and Edwin Zedlewski, Director of the International Center of NIJ.

Nicole Bocra of ISPLA, an expert in her own right on aspects of investigative technologies, was afforded the opportunity to discuss the latest trends in pretrial and post conviction DNA, impression evidence, and other investigative technologies such as GPS, fingerprints, cell phones and video. Technical presenters in various areas of expertise included attorney Barry Scheck of The Innocence Project; Lisa Kreiger-Norman, U.S. Army Criminal Investigation Laboratory; Randall Murch, Associate Director, Research Program Development, Virginia Tech Center for Technology, Security, and Policy; Professor Paul C. Gianelli, Case Western Reserve University; Michael Fields, Bureau Chief, Dallas County, Texas District Attorney’s Office of Conviction Integrity; Gary Perkinson, Agent in Charge, Special Investigations Unit, Oklahoma State Bureau of Investigation; and Miles Brissette, an assistant criminal district attorney, Tarrant County, Texas and former Testing and Certifications Chair for the IACP Digital Video Systems Minimum Performance Specifications for In-Car Video and member of NIJ’s Sensors and Surveillance Technology Technical Working Group and Multimedia Evidence Systems Standards panel.

The interaction between science, technology, law, and criminal justice has produced as many questions as advances in evidence analysis. In reviewing the most cutting-edge investigative technologies, experts demand commensurate standards, admissibility, and other criminal case issues.

The symposium discussed the controversial 2009 National Academy of Sciences (NAS) report recommendations to create an independent agency and to separate crime labs from law enforcement. Even before the NAS report, actual innocence cases resulted in more than 240 exonerations through post-conviction DNA analysis by testing evidence either not tested at the time of trial or analyzed using less discriminating technology. Crime scene samples once thought to be unsuitable for testing now yield DNA profiles. Courts may weigh the probative value of DNA evidence in determining whether to grant a motion requesting post-conviction relief.

Bruce Hulme, ISPLA’s director of government affairs, in his conversations with representatives of indigent defense groups, cited his personal experience as court-appointed investigator in federal capital cases and assured them that the resources of ISPLA and the other professional investigative associations working with us can be of invaluable assistance in addressing the issues associated with indigent defense.

He met with leaders of the National Legal Aid and Defender Association (NLDA), National Association of Criminal Defense Lawyers, The Constitution Project, National Juvenile Defender Center, National juvenile Defender Center, National Criminal Justice Association (NCJA), The Innocence Project, Brennan Center for Justice, Southern Center for Civil Rights, Juvenile Justice Clinic of Georgetown University Law Center, Children’s Justice Clinic of Rutgers School of Law, American Bar Association Death Penalty Representation Project, American Civil Liberties Union (ACLU), The Ford Foundation, Equal Justice Works and the Campaign for Justice.

ISPLA has been hard at work forging alliances with like-minded stakeholders on specific issues affecting professional investigators and their clients. The National Symposium on Indigent Defense brought together a wide range of organizations to address and seek solutions to an important problem. No one organization can do it alone! The same holds true when responding to ill-conceived federal and state regulations and legislation. This event is but one more example of the areas of interest and work undertaken by ISPLA in the last 12 months. We are proactive in responding to critical issues.

FTC testimony before Senate Committee

Tue, 16 Feb 2010 00:13:21 GMT

Investigative & Security Professionals for Legislative Action continues to stay abreast of issues in Washington with regard to regulation and legislation affecting this profession. ISPLA is singularly focused to protect the interests of the investigative and security professions at the federal level, and at the state level when specifically requested by state professional associations. As part of its government affairs program, ISPLA has been monitoring the activities of the Federal Trade Commission in their workshops on privacy issues, meeting with officials of that agency having jurisdiction over certain aspects of activities conducted by professional investigators, and reviewing testimony given by the agency concerning its enforcement activities.

The FTC advised the U.S. Senate Committee on Commerce, Science and Transportation that they have stepped up their efforts to protect consumers affected by the economic downtown, and that additional authority would make the agency even more effective.

The testimony presented by FTC Chairman Jon Leibowitz described the agency’s efforts to prosecute financial fraud and deception, including working with states to bring hundreds of cases against mortgage relief scams in 2009. The testimony also discussed the FTC’s rulemaking and consumer education initiatives, how additional authority will enhance the agency’s effectiveness, and the FTC’s perspective on recent proposals to create a consumer financial protection agency as part of a broader reform of the financial services regulatory system.

As stated in the testimony, during the past five years the FTC has targeted financial services providers in more than 100 actions and, over the past decade, obtained nearly half a billion dollars in redress for consumers. As the economic downturn has taken hold, the FTC’s highest priority has become targeting frauds that prey on consumers made vulnerable by the financial crisis. The agency has shifted more of its consumer protection staff to the area of financial services, while continuing to carry out its broader consumer protection mission. In addition to prosecuting mortgage foreclosure and loan modification scams – working with state attorneys general more than 200 lawsuits were brought last year – the FTC has targeted a variety of other deceptive and fraudulent schemes, including those in mortgage servicing, debt relief services, credit repair, economic stimulus scams, debt collection, advance-fee loans, payday lending, and credit card marketing, as well as fake get-rich-quick schemes, work-at-home offers, and job-hunting ads.

Describing other FTC efforts in the financial area, the testimony noted that it is in the process of formulating new rules to address unfair or deceptive practices in: 1) mortgage relief services, 2) mortgage advertising and servicing, 3) debt relief services. Also, in conjunction with the federal banking agencies, the FTC is considering additional rules to protect the privacy of consumers’ sensitive financial information. The testimony also recounted the FTC’s many education campaigns to help consumers manage their resources and avoid scams, including a major effort on mortgage relief services scams.

According to the testimony, new enforcement and regulatory tools would strengthen the FTC’s ability to anticipate and respond to financial fraud. The agency encourages Congress to give it explicit authority to act against those who assist others they know, or consciously avoid knowing, are engaged in unfair or deceptive practices under the FTC Act. The FTC has asked Congress for authority to use more efficient rulemaking procedures to address consumer protection issues and enhance the agency’s ability to stop financial fraud. In addition, the FTC would like the authority to seek civil penalties for violations of the FTC Act, and to prosecute civil penalty cases in federal court in its own name so that it can bring cases more quickly and more effectively.

Regarding President Obama’s proposed Consumer Financial Protection Agency, the testimony expressed FTC support for the goal of making consumer financial protection more effective while ensuring that the FTC’s authority and ability to protect consumers remains uneroded and clear. It states they should remain active and effective in policing financial and nonfinancial products and services.

The Commission vote authorizing the testimony was 4-0. Commissioner Kovacic dissents from that portion of the testimony that seeks across-the-board authority for the Commission to use, for promulgating all rules respecting unfair or deceptive acts or practices under the Federal Trade Commission Act, the notice and comment procedures of the Administrative Procedure Act, although he would be willing to consider whether all the procedures currently required to issue, repeal, or amend these rules are necessary. Commissioner Kovacic also dissents from the Commission's endorsement of across-the-board civil penalty authority.

Bruce Hulme

Director of Government Affairs

S 560, the Employee Free Choice Act Dead?

Thu, 11 Feb 2010 13:41:38 GMT

The Employee Free Choice Act (EFCA) seems to be near dead in the water, now that the Democrats lost their 60-vote majority in the Senate. In addition, the loss of a potential appointee to the National Labor Relations Board this week occurred when Republicans blocked the appointment of President Obama’s nominee Craig Becker.

The Senate's inability to pass EFCA is a blow to unions, particularly the SEIU. Democratic senators had worked up a compromise proposal that would have scrapped the "card check" process, allowing unions to organize without a secret ballot, but expediting the election process - thus eliminating employers’ ability to delay the unionizing process and increasing the penalties for violating the rules that govern election conduct.

This compromise had the potential of gaining all 60 Democratic votes, but the special Senate election in Massachusetts changed the political landscape overnight. Unions expended over $300 million during the 2008 elections on Democrats' behalf, only to see their requests for a 2009 vote on the EFCA and confirmation votes on NLRB appointees delayed by the President and Senate Majority Leader Harry Reid, who opted for health reform to be passed first. Now labor appears to lack the votes for EFCA passage – a fortuitous result for contract security companies and large corporate clients of investigative and security professionals.

Bruce Hulme, Director of Government Affairs

Investigative & Security Professionals for Legislative Action

www.ISPLA.org

How the FEC will deal with US Supreme Court Decision

Fri, 05 Feb 2010 19:03:52 GMT

FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC

Washington, DC – Feb. 5, 2010 - The Federal Election Commission announced that, due to the Supreme Court’s decision in Citizens United v. FEC, it will no longer enforce statutory and regulatory provisions prohibiting corporations and labor unions from making either independent expenditures or electioneering communications. The Commission also listed several actions it is taking to fully implement the Citizens United decision.

In Citizens United v. FEC, issued on January 21, 2010, the Supreme Court held that the prohibitions in the Federal Election Campaign Act (FECA) against corporate spending on independent expenditures or electioneering communications are unconstitutional. The Supreme Court upheld statutory provisions that require political ads to contain disclaimers and be reported to the Commission. Provisions addressed by the decision are described below.

The Court struck down 2 U.S.C. 441b, which prohibits, in part, corporations and labor organizations from making electioneering communications and from making independent expendituresundefinedcommunications to the general public that expressly advocate the election or defeat of clearly identified federal candidates.

The Court upheld 2 U.S.C. 441d, which requires that political advertising consisting of independent expenditures or electioneering communications contain a disclaimer clearly stating who paid for such communication.

The Court upheld 2 U.S.C. 434, which requires certain information about electioneering communications and independent expenditures, and the contributions received for such spending, to be disclosed to the Commission and to be made public.

The Commission is taking the following steps to conform to the Supreme Court's decision.

The Commission will no longer enforce the statutory provisions or its regulations prohibiting corporations and labor organizations from making independent expenditures and electioneering communications.

The Commission is reviewing all pending enforcement matters to determine which matters may be affected by the Citizens United decision and will no longer pursue claims involving violations of the invalidated provisions. In addition, the Commission will no longer pursue information requests or audit issues with respect to the invalidated provisions.

The Commission is considering the effect of the Citizens United decision on its ongoing litigation.

The Commission intends to initiate a rulemaking to implement the Citizens United opinion. It is reviewing the regulations affected by the invalidated provisions, including but not necessarily limited to the following:

11CFR114.2(b)(2) and (3), which implement the FECA’s prohibition on corporate and labor organization independent expenditures and electioneering communications;
11 CFR 114.4, which restricts the types of communications corporations and labor organizations may make to those not within their restricted class;
11 CFR 114.10, which permits certain qualified nonprofit corporations to use their treasury funds to make independent expenditures and electioneering communications under certain conditions;
11 CFR 114.14, which places restrictions on the use of corporate and labor union funds for electioneering communications; and
11 CFR 114.15, which the Commission adopted to implement the Supreme Court's decision in Wisconsin Right to Life, Inc. v. FEC.

The Commission is also considering the effect of Citizens United on the ongoing Coordinated Communications rulemaking. 74 FR 53893 (Oct. 21, 2009). The Commission is issuing a Supplemental Notice of Proposed Rulemaking so that interested persons may submit comments regarding issues presented by Citizens United. The additional comment period will close on February 24, 2010. The Commission intends to hold a hearing on the Coordinated Communications rulemaking on March 2 and 3, 2010.

Revisions to Commission reporting requirements, forms, instructions, and electronic software, may be required.

Corporations and labor organizations that intend to finance independent expenditures or electioneering communications should:

Include disclaimers on their communications, consistent with FEC regulations at 11 CFR 110.11;
Disclose independent expenditures on FEC Form 5, consistent with FEC regulations at 11 CFR 109.10; and
Disclose electioneering communications on FEC Form 9, consistent with FEC regulations at 11 CFR 104.20.

The Commission notes that the prohibitions on corporations or labor organizations making contributions contained in 2 U.S.C. 441b remain in effect.

The Federal Election Commission (FEC) is an independent regulatory agency that administers and enforces federal campaign finance laws. The FEC has jurisdiction over the financing of campaigns for the U.S. House of Representatives, the U.S. Senate, the Presidency and the Vice Presidency. Established in 1975, the FEC is composed of six Commissioners who are nominated by the President and confirmed by the U.S. Senate.

ISPLA Current Legislative News

Surreptitious Video Surveillance

Social Security Identity Defense Act

Petri Bill Would Enlist IRS Against Identity Theft

Sixth Amendment and Indigent Defense Issue

HR 5777, the Best Practices Act and a bill requiring notice and consent...

Consumer Financial Protection Agency and New Federal Bills Update

Michigan Vehicle Tracking bill becomes law. PIs receive exemption.

ISPLA Update: Revision S 3214 Surreptitious Video Surveillance in a Residence Act of 2010

HR 5107/S 3648, the Employee Misclassification Prevention Act

FTC poised to gain stronger hand in making rules with financial reform bill

Anti-Spoofing Bill Passes in House

SENATE BIPARTISAN CYBERSECURITY BILL

ISPLA Board Member Recognized with Life Time Achievement Award

ISPLA Represents Industry at Final FTC Roundtable in Washington, D.C.

New Senate Bills, Breaking News in DC, and Second Amendment Update

European Court Privacy Ruling

Truth in Caller ID Act of 2009

ISPLA Participates in DOJ Symposium on Indigent Defense

FTC testimony before Senate Committee

S 560, the Employee Free Choice Act Dead?

How the FEC will deal with US Supreme Court Decision