| Letter from the Publisher |
Dear readers,
The Tech Law Journal did not publish a Daily E-Mail Alert on
Wednesday, September 19, Thursday, September 20, or Friday,
September 21, because of problems associated with an infection
by the NIMDA worm. There was a Daily E-Mail Alert for Tuesday,
September 18. However, it was not e-mailed to most
subscribers. It is in the TLJ web site. See, Alert
No. 270. I apologize for the interruption.
Best Regards,
David Carney |
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| People and Appointments |
9/21. The Senate confirmed Sharon Prost to be a
United States Circuit Judge for the Federal Circuit by a vote of
97 to 0. She was previously a long time assistant to Sen. Orrin Hatch (R-UT) on
the Senate
Judiciary Committee, and before that, on the Senate
Health, Education, Labor and Pensions Committee.
9/21. The Senate confirmed Reggie Walton to be United
States District Judge for the District of the District of
Columbia by a vote of 97 to 0. He was previously a Judge of
the Superior Court of the District of Columbia. He was also a
deputy drug czar under the elder George Bush. He was also an
Assistant United States Attorney for the District of Columbia
before becoming a judge.
9/21. The Senate confirmed Deborah Daniels to be an
Assistant Attorney General for the Office of Justice Programs.
9/21. President Bush selected John Marburger to be
Director of the Office of
Science and Technology Policy. See, White
House release.
9/19. President Bush nominated Patrick Fitzgerald to be
U.S. Attorney for the Northern District of Illinois. He is
currently Interim U.S. Attorney for the Northern District of
Illinois. He has also been an Assistant U.S. Attorney for the
Southern District of New York since 1988. He replaces Scott
Lassar. See, White
House release.
9/19. President Bush nominated John McKay to be U.S.
Attorney for the Western District of Washington. He has been
President of the Legal Services Corporation since 1997. He
previously worked in the Seattle offices of the law firms of
Caincross & Hempelmann and Lane Powell. He
replaces Katrina Pflaumer. See, White
House release. |
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| GAO Releases Gloomy Report
on Cyber Terrorism |
9/20. The GAO
released a report
[217 pages in PDF] titled "Combating Terrorism: Selected
Challenges and Related Recommendations". See, Chapter 6,
at pages 108-130, subtitled "Limited Progress in
Implementing a Strategy to Counter Computer Based
Threats".
The report concludes that "independent audits continue to
identify persistent, significant information security
weaknesses at virtually all major federal agencies that place
their operations at high risk of tampering and
disruption." It further states that cyber attacks
"could severely disrupt computer- supported operations,
compromise the confidentiality of sensitive information, and
diminish the integrity of critical data." It also
identified several reasons for lax security, including
"funding and staffing constraints", "senior
officials do not fully understand the importance of their
agency’s assets to the nation’s critical infrastructures
and the magnitude of the related risks", and "agency
staff did not have the skills needed to carry out their
computer security responsibilities".
The report also states that while "no devastating
instances of 'cyber-terrorism' have occurred ... government
officials are increasingly concerned". It elaborates that
"the Director of Central Intelligence has stated that
some terrorists groups are acquiring rudimentary cyber-attack
tools. Further, according to the National Security Agency,
foreign governments already have or are developing computer
attack capabilities and potential adversaries are developing a
body of knowledge about U.S. systems and methods to attack
these systems."
9/21. See also, testimony
[12 pages in PDF] of David Walker, Comptroller General of the
United States, to the Senate Committee on Governmental Affairs
titled "Homeland Security: A Framework for Addressing the
Nation's Efforts", at pages 8-9. He added that there is a
"lack of a national plan that fully defines the roles and
responsibilities of key participants and establishes interim
objectives." |
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| GAO Reports on IT Practices
At SSA |
| 9/21. The GAO
released a report
[93 pages in PDF] titled "Information Technology
Management: Social Security Administration Practices Can Be
Improved". The report examines the SSA's IT practices in
five areas, investment management, enterprise architecture,
software acquisition and development, information security,
and human capital. It found "weaknesses" in all five
areas. In the area of information security, the report offered
three recommendations: (1) strengthen the entitywide security
framework by completing policy/risk models and technical
system standards (security settings) for SSA's major systems
platforms", (2) "develop monitoring techniques and
corrective actions for noncompliance for the major systems
platforms", and (3) "use the platform security
settings to strengthen security for each application utilizing
these platforms." The report was written by David
McClure, Director of Information Technology Management Issues
for the GAO, for Rep. Clay Shaw (R-FL), Chairman of the Ways
and Means Committee's Subcommittee on Social Security. |
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| Fed Circuit Affirms in EMI
v. Cypress |
9/21. The U.S.
Court of Appeals (FedCir) issued its opinion in EMI
v. Cypress Semiconductor, a patent
infringement case involving semiconductor chip
manufacturing. The Appeals Court upheld the judgment of non
infringement for Cypress Semiconductor on the grounds of impossibility.
EMI owns two patents at issue in this case. Both pertain to
the technology for manufacturing semiconductor chips, and in
particular, for disconnecting the dysfunctional portions of
chips. To disconnect a dysfunctional portion of the
semiconductor chip, manufacturers sever the fuses that connect
the dysfunctional portion to the rest of the chip, using
lasers. EMI owns U.S.
Patent No. 4,935,801, which claims a structure for a
metallic fuse with an optically absorptive upper layer, and U.S.
Patent No. 4,826,785, which claims a method for
fabricating and blowing such a fuse.
EMI filed a complaint in U.S. District Court (DDel) against
Cypress in 1998 alleging infringement of these two patents.
Cypress argued that the mechanism recited in the asserted
claims is impossible, or in the alternative, if the mechanism
were possible, it would be inherent in all similar prior art
fuses. The jury found that the patents describe a mechanism
that is physically impossible. It also found, that, even if
not impossible, the patents describe an inherent property, law
of nature, natural phenomenon, or a new use for an old
structure. The jury also found that Cypress did not infringe
EMI's patents. EMI moved for judgment as a matter of law (JMOL),
and for a new trial. The District Court denied the motion for
a new trial, denied the motion for JMOL as to impossibility,
but granted the motion for JMOL as to anticipation or
obviousness. The Appeals Court affirmed. |
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| Fed Circuit Affirms CIT in
SRAMs Import Case |
| 9/21. The U.S.
Court of Appeals (FedCir) issued its opinion in Taiwan
Semiconductor Industry Association v. ITC, an
appeal from the U.S. Court of
International Trade (CIT) pertaining to the importation of
static random access memory chips (SRAMs) from Taiwan. The U.S. International Trade
Commission (ITC) initially found that Taiwanese imports of
static random access memory chips (SRAMs) at less than fair
value (LTFV) injured the domestic industry. However, after a
second remand from the CIT, the ITC determined that there was
no material injury, or threat thereof, to the domestic
industry by reason of imported Taiwanese SRAMs. The CIT
affirmed. The Court of Appeals also affirmed, stating that
"the record contains substantial evidence that factors
other than LTFV Taiwanese imports caused the material injury
to domestic industry". |
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| Fed Circuit Rules in Exxon
v. Phillips |
| 9/20. The U.S.
Court of Appeals (FedCir) issued its opinion in Exxon
v. Phillips a patent infringement case. Exxon
is the hold of U.S.
Patent No. 5,324,800, which is titled "Process and
catalyst for polyolefin density and molecular weight
control". Exxon filed a complaint in U.S. District Court (SDTex)
against Phillips alleging patent infringement. The District
Court granted judgment of invalidity on the grounds of anticipation.
Exxon appealed. Phillips filed a conditional cross appeal on
the issue of interference estoppel. The Appeals Court
reversed the judgment of invalidity, affirmed the ruling on
the cross appeal, and remanded. |
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| Federal Circuit Rules in
Y2K Patent Case |
| 9/18. The U.S.
Court of Appeals (FedCir) issued its split opinion in Brown
v. 3M, a patent infringement case
involving Y2K inventions. Brown holds U.S.
Patent No. 5,852,824, which pertains to the Year 2000
conversion problem. The District Court ruled that Brown's
patent is invalid on the grounds that it was anticipated
by U.S.
Patent No. 5,600,836, also known at the Turn of the
Century Systems, or TOCS, patent. Judge Mayer dissented,
writing that "the Brown patent teaches an apparatus with
additional functionality not disclosed in the allegedly
anticipating TOCS patent." |
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| House to Hold Hearing on
Anti Terrorism Bill |
9/24. The House
Judiciary Committee will hold a hearing today at 2:00 PM
on the Bush
Administration's draft [PDF] of the "Anti Terrorism
Act of 2001." The bill contains many major revisions of
criminal law and procedure, as well as some revisions to
immigration and trade law. In particular, it expands the
authority of law enforcement agencies to conduct surveillance
of both old fashioned telephone service, and newer forms of
Internet communications. Attorney General John Ashcroft will
be the sole witness.
§ 101 of the bill expands the authority of enforcement
agencies (LEAs) with respect to the use of trap and trace
devices and pen registers. These are both old fashioned
telephone industry concepts. The bill brings these concepts
into the world of Internet communications. § 101 of the bill
also expands the geographic scope of such orders. Currently,
investigators typically, get orders for each jurisdiction. The
bill provides that "The order shall ... apply to any
entity providing wire or electronic communication service in
the United States whose assistance is required to effectuate
the order."
§ 102 of the bill allows LEAs to seize voice mail
messages with a warrant.
§ 105 provides that U.S. prosecutors may use wiretap
information collected by foreign governments against U.S.
citizens, even if such surveillance would have violated the
4th Amendment if conducted by U.S. LEAs.
§ 106 expands LEAs' authority to intercept computer
trespasser communications. It provides that "It shall not
be unlawful ... for a person acting under color of law to
intercept the wire or electronic communications of a computer
trespasser, if (A) the owner or operator of the protected
computer authorizes the interception ... (B) the person acting
under color of law is lawfully engaged in an investigation;
(C) the person acting under color of law has reasonable
grounds to believe that the contents of the computer
trespasser's communications will be relevant to the
investigation; and (D) such interception does not acquire
communications other than those transmitted to or from the
computer trespasser."
§ 107 expands the scope of information that can be
obtained by LEAs from communications providers with a
subpoena. Currently LEAs can obtain the name, address and
length of service. This bill would expand the list to include
include method of payment, including credit card numbers, and
other information.
§ 108 provides that search warrants to compel a service
provider to disclose unopened e-mail, which currently apply
only in the district where they are issued, will be expanded
to cover the entire U.S.
§ 109 provides that LEA's electronic surveillance
authorities extend to Cable companies. However, this does not
extend to records of customers' TV viewing activity.
§ 110 expands emergency disclosures of electronic
communications.
§§ 151-159 contain significant revisions to the Foreign
Intelligence Surveillance Act (FISA), pertaining to
surveillance of persons employed by foreign governments, and
members of international terrorist groups.
§ 306 expands the prohibition against providing material
support or resources to terrorists. It would add providing
"expert advice or assistance". It does not specify
whether or not legal advice would be covered.
See also, the Bush Administration's summary
[PDF] of the bill.
The Senate Intelligence Committee will also hold a hearing to
counter terrorism proposals, at 3:00 PM.
The House Judiciary Committee will also meet at 4:30 PM
with representatives of several groups that advocate civil
liberties. The speakers will include Jim Demspey (Center for Democracy and Technology),
who will focus on electronic surveillance issues, David Cole (Georgetown University
Law School), who will focus on immigration issues, Brad
Jansen (Free Congress
Foundation), who will focus on money laundering and
forfeiture issues, and a representative of the ACLU, who will
focus on criminal issues. |
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| FCC Releases SDR Order |
| 9/18. The FCC released its
First
Report and Order [PDF] creating new rules for software
defined radios (SDRs). This order was adopted and
announced at the FCC meeting of September 13. This order
amends FCC equipment authorization rules to permit equipment
manufacturers to make changes in the frequency, power and
modulation parameters of such radios without the need to file
a new equipment authorization application with the FCC. (ET
Docket No. 00-47.) |
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| FCC Releases Broadcast
Ownership NPRM |
| 9/18. The FCC released its
Order
and Notice of Proposed Rulemaking [PDF] regarding its
broadcast ownership rules. This order was adopted and
announced at the FCC meeting of September 13. The FCC seeks
comments on "whether and to what extent we should revise
our cross ownership rule that bars common ownership of a
broadcast station and a daily newspaper in the same
market." (MM Docket No. 01-235 and MM Docket No. 96-197.) |
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| FCC Releases CALEA Order |
9/19. The FCC released an Order
[PDF] granting a temporary suspension of certain compliance
dates in its CALEA implementation proceeding. (CC Docket No.
97-213.)
Congress passed the Communications
Assistance for Law Enforcement Act in 1994 to allow law
enforcement authorities to maintain their existing wiretap
capabilities in new telecommunications devices. It provides
that wireline, cellular, and broadband PCS carriers must make
their equipment capable of certain surveillance functions. The
CALEA also provides that its provisions do not apply to
"information services". The FBI and the Telecommunications Industry
Association (TIA) have since sought an expansive
implementation of the CALEA. The FCC sided with the FBI on
most points when it adopted its Third Report and
Order [huge WP file] in August 1999.
In this most recent Order, the FCC rules on a request by the Cellular Telecommunications
Industry Association (CTIA). The order states that
"we are temporarily suspending the September 30, 2001
compliance date for wireline, cellular, and broadband Personal
Communications Services ("PCS") carriers to
implement two Department of Justice ("DoJ")/Federal
Bureau of Investigation ("FBI") "punch
list" electronic surveillance capabilities mandated by
the Third Report and Order ("Third
R&O") in this proceeding. We deny CTIA’s
request for a blanket extension of the September 30, 2001
compliance deadline for these carriers to implement a packet-
mode communications electronic surveillance capability, also
mandated by the Third R&O. However, given the
imminence of the packetmode compliance deadline, we grant
these carriers until November 19, 2001 either to come into
compliance or to seek individual relief."
Commissioner Michael Copps wrote in a separate statement that
"The events of the past week cogently demonstrate the
imperative of bringing these capabilities on line as soon as
possible. This is no time for "business as usual" on
this issue in either the private or public sectors."
The TIA, which represents equipment manufacturers, praised the
order. See, TIA
release. The CTIA, which represents carriers and wireless
Internet providers, criticized the order. CTIA President Tom
Wheeler stated that "The technical evidence in our
submission to the FCC was clear: there is no commercially
available solution that meets the FCC's packet mode
surveillance requirements. We understand what they want to
accomplish and why, but as of now the commercially available
systems simply don't exist." |
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| Copyright Office Extends
Deadline |
| 9/21. The Copyright
Office published a notice
[PDF] in the Federal Register that it is extending the
deadline for filing comments on proposed regulations that will
govern the Recording Industry
Association of America (RIAA) collective when it functions
as the designated agent receiving royalty payments and
statements of accounts from nonexempt, subscription digital
transmission services which make digital transmissions of
sound recordings, pursuant to 17 U.S.C.
§ 114. Under this extension, both comments and notices of
intent to participate in a copyright arbitration royalty panel
proceeding are due by September 28, 2001. See, Federal
Register, September 21, 2001, Vol. 66, No. 184, at page 48648. |
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| International Trademark
Classification Changes |
| 9/20. The USPTO published
a notice
[PDF] in the Federal Register that it has adopted a final rule
to incorporate classification changes adopted by the Nice
Agreement Concerning the International Classification of Goods
and Services for the Purposes of the Registration of Marks.
These changes take effect January 1, 2002. See, Federal
Register, September 20, 2001, Vol. 66, No. 183, Pages 48338 -
48340. |
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| Monday, Sept 24 |
The House will meet at 12:30 PM for morning hour, and at
2:00 PM for legislative business. No recorded votes are
expected before 6:00 PM. The House will consider a number of
measures under suspension of the rules, and a House Joint
Resolution making further continuing appropriations for the FY
2002, through October 16, 2001.
2:00 PM. The House
Judiciary Committee will hold a hearing on the Bush
Administration's draft [PDF] of the "Anti Terrorism
Act of 2001." See, story at left. Location: Room 2141,
Rayburn Building.
3:00 PM. The Senate Intelligence Committee will hold a hearing
to examine the Department of Justice counter terrorism
proposal. Location: Room 216, Hart Building.
4:30 PM. The House Judiciary Committee will meet with
representatives of several groups that advocate civil
liberties regarding anti terrorism legislation.
6:00 - 8:00 PM. The Federal
Communications Bar Association (FCBA) will host a
reception featuring new FCC Commissioners. There is a price
for admission. To receive a registration form by fax, email
Wendy Parish at wendy@fcba.org.
Location: Grand Ballroom, Mayflower Hotel, 1127 Connecticut
Ave., NW, Washington DC.
Opening conference of the October Term 2001 of the Supreme Court of the
United States.
Deadline for Department of Justice Evaluation to the FCC
regarding SBC's Section 271
application to provide interLATA service in the states of
Arkansas and Missouri. (CC Docket No. 01-194.) See, FCC
notice [PDF].
Deadline to file comments with the FCC in its
third inquiry into whether advanced telecommunications
capability is being deployed to all Americans in a reasonable
and timely fashion, pursuant to Section
706 of the Telecom Act of 1996. This notice of inquiry was
adopted by the FCC at its August 9, 2001, meeting. See, Aug.
9 FCC release. See also, notice
in Federal Register, August 24, 2001, Vol. 66, No. 165, at
Page 44636. (CC Docket No. 98-146.)
First day of a three day conference of the Association for Local
Telecommunications Services (ALTS). See, ALTS
brochure [PDF]. Location: The Crystal Gateway Marriott,
1700 Jefferson Davis Highway, Arlington, Virginia. The agenda
for September 24 includes:
• 10:30 - 11:30 AM. Panel discussion by FCC staff:
Dorothy Attwood (Chief of the Common Carrier Bureau), Matt
Brill (Legal Advisor to Commissioner Abernathy), Kyle Dixon
(Legal Advisor to Chairman Powell), and Sam Feder (Legal
Advisor to Commissioner Martin),
• 11:30 AM - 12:15 PM. Sen. Ernest Hollings
(D-SC), Chairman of the Senate Commerce Committee. |
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| Tuesday, Sept 25 |
The House will meet at 9:00 AM for morning hour, and at
10:00 AM for legislative business.
10:00 AM. The Senate
Judiciary Committee will hold hearings to examine homeland
defense matters. Sen.
Patrick Leahy (D-VT) will preside. Location: Room 226,
Dirksen Building.
12:00 NOON - 2:00 PM. The FCC's North American Numbering
Council will hold a meeting. Location: FCC, 445 12th Street,
SW, Room 8-C245, Washington, DC.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Professional
Responsibility Committee will host a brown bag lunch.
Location: Arnold & Porter, 555 12th Street, NW, Washington
DC.
Second day of a three day conference of the Association for Local
Telecommunications Services (ALTS). See, ALTS
brochure [PDF]. Location: The Crystal Gateway Marriott,
1700 Jefferson Davis Highway, Arlington, Virginia. The agenda
for September 25 includes:
• 3:15 - 4:00 PM. Speech by FCC Chairman Michael
Powell.
Deadline to submit reply comments to the FCC in its
notice of proposed rule making to amend the FCC's rules to
improve spectrum sharing by unlicensed devices operating in
the 2.4 GHz band, to provide for introduction of new digital
transmission technologies, and to eliminate unnecessary
regulations for spread spectrum devices. See, NPRM
and notice
in Federal Register: June 12, 2001, Vol. 66, No. 113, at Pages
31585 - 31589. |
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| Wednesday, Sept 26 |
9:30 AM. The Senate Governmental Affairs Committee will
continued its hearing on the security of critical governmental
infrastructure. (It began this hearing on September 12, 2001.)
Location: Room 342, Dirksen Building.
9:30 AM. The Senate Energy and Natural Resources Committee
will hold a closed hearing to examine critical energy
infrastructure security and the energy industry's response to
the events of September 11. Location: unannounced.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Common Carrier
Committee will host a brown bag lunch titled the "The
Upcoming Common Carrier Agenda." The speakers will be FCC
Legal Advisors Kyle Dixon (Powell), Deena Shetler (Tristani),
Matthew Brill (Abernathy), Jordan Goldstein (Copps), and Sam
Feder (Martin). RSVP to Rhe Brighthaupt at rbrighthaupt@wrf.
Location: Wiley Rein &
Fielding, 1750 K Street, 10th Floor Conference Room.
Third day of a three day conference of the Association for Local
Telecommunications Services (ALTS). See, ALTS
brochure [PDF]. Location: The Crystal Gateway Marriott,
1700 Jefferson Davis Highway, Arlington, Virginia. The agenda
for September 26 includes:
• 9:00 - 9:45 AM. Bruce Mehlman, Assistant Secretary
of Commerce.
• 9:45 - 10:30 AM. Rep. Heather Wilson
(R-NM), member of the House Telecom Subcommittee. |
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| Joint Status Report in
Microsoft Case |
| 9/20. Microsoft and the Justice Department filed their Joint
Status Report [MS web site] with the U.S. District Court (DDC)
in USA v. Microsoft, the antitrust case on remand. See also, copy in
DOJ site. |
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| Groups File Amicus Brief in
COPA Case |
9/20. The U.S. Chamber
of Commerce, ITAA,
and the CCIA
filed an amicus Curiae brief with the Supreme Court of the
United States in Ashcroft
v. ACLU, the case challenging the
constitutionality of the Child Online Protection Act (COPA).
The Congress passed, and President Clinton signed, the COPA in
1998. This bill bars commercial web sites from distributing to
minors over the Internet material that is "harmful to
minors".
These amici argue that the COPA is a content based regulation
of speech subject to strict scrutiny, and that the COPA fails
to pass the strict scrutiny test because it is not the least
restrictive means of achieving government objectives. |
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| Cyber Securities Fraud |
9/21. The SEC announced
that it filed a civil complaint in U.S. District Court (EDWisc)
against BigPlayStocks.com, Inc. and John Luers, its President,
alleging violation of § 10(b) of the Securities Exchange
Act of 1934 and Rule 10b-5 thereunder. The complaint alleges
that defendants provided false and misleading information
through the web site, www.BigPlayStocks.com.
See, SEC
release. (Civil Action No. 01-CV-949.)
9/19. The SEC filed a
civil complaint in U.S.
District Court (WDPenn) against Dennis Ciccone alleging
violation of § 10(b) of the Securities Exchange Act of
1934 and Rule 10b-5 thereunder in connection with insider
trading in Teligent, Inc., securities. The SEC seeks a
permanent injunction, disgorgement, prejudgment interest and a
monetary penalty. Ciccone simultaneously consented to entry of
judgment, but without admitting or denying the facts alleged
in the complaint. Ciccone was managing director of a venture
capital fund involved in the transaction. Teligent is a company
based in Vienna, Virginia, that provides telecommunications
and Internet access services. (Civil Action No. 01-1757.) See,
SEC
release.
9/20. The SEC instituted
an administrative proceeding against Michael Furr pursuant to
§ 15(b)(6) of the Securities Exchange Act of 1934. The
SEC seeks an order barring Furr from participating in any
offering of a penny stock. Furr touted penny stocks in a free
website, email, and printed material. He previously consented
to an order in a civil action brought in U.S. District Court (CDCal)
for violation of § 17(b) of the Securities Act of 1933
and § 10(b) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder. See, SEC
release. |
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| Computer Crime |
| 9/14. Melissa Brown plead guilty in U.S.
District Court (NDOhio) to a one count indictment charging
her with computer fraud in violation of 18 U.S.C.
§ 1030(a)(5)(A). Without authority from her employer,
Brown used a company laptop to access the company's network,
and change the password of the company's CIO, who was out of
town at the time. See, CCIPS
release. |
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