| Bush and Ashcroft Promote
Anti Terrorism Bill |
President Bush and Attorney General John Ashcroft both made
forceful statements on Tuesday, September 25, in support of
passage of the Administration's draft
[PDF] of the "Anti Terrorism Act of 2001". This is a
large collection of provisions that would increase the
authority of law enforcement and intelligence agencies to
investigate and prosecute terrorists.
The bill stalled on Monday when the House Judiciary
Committee postponed its mark up of the bill, which had
been scheduled for Tuesday, and when Sen. Patrick Leahy (D-VT),
the Chairman of the Senate Judiciary
Committee, offered his own set of proposals, and said his
Committee could take weeks. Legislators have advocated
watering down the administration's bill in order to protect
civil liberties.
President Bush, Attorney General John Ashcroft, and other
administration officials, advocated prompt passage of the
bill. President Bush stated that "I hope Congress will
listen to the wisdom of the proposals that the Attorney
General brought up, to give the tools necessary to our agents
in the field to find those who may think they want to disrupt
America again." He added that "in order to win the
war, we must make sure that the law enforcement men and women
have got the tools necessary, within the Constitution, to
defeat the enemy." See, story: "Bush Speaks to FBI
Employees About Anti Terrorism Bill", at far right.
AG Ashcroft asked the Senate Judiciary Committee to "give
law enforcement the tools we need to fight terrorism." He
explained that "terrorism is a clear and present
danger", that there is the "potential for additional
terrorist incidents", and that this includes the use of
crop dusting planes to spread hazardous materials. See, story:
"Ashcroft Testifies Before Senate Judiciary
Committee", at right. |
|
|
| Anti Terrorism Bill Is
Vague on Surveillance of Internet Communications |
9/25. John Ashcroft and other advocates of the
Administration's draft
[PDF] of the "Anti Terrorism Act of 2001" state that
it brings electronic surveillance laws that were written for
analog phone communications over the public switched telephone
network (PSTN) into the age of digital packet switched
communications over the Internet. The bill's language
regarding pen register and trap and trace devices is one way
that the bill seeks to accomplish this. Yet, the language in
the Administration draft leaves much for future
interpretation.
A pen register records the numbers that are dialed or punched
into a telephone. Current law covers "wire"
communications only. A pen register is "a device which
records or decodes electronic or other impulses which identify
the numbers dialed or otherwise transmitted on the telephone
line to which such device is attached ..." See, 18
U.S.C. § 3127(3).
Under the Administration's proposal (at Section 101), this
would be expanded from merely capturing phone numbers, to
capturing routing and addressing information in any electronic
communications. Specifically, as amended, the statutory
definition of pen register would read, "a device or
process which records or decodes dialing, routing, addressing,
or signalling information transmitted by an instrument or
facility from which a wire or electronic communication is
transmitted ..." The proposal would similarly expand the
concept of trap and trace, which currently captures incoming
phone numbers. Under current law, this is "a device which
captures the incoming electronic or other impulses which
identify the originating number of an instrument or device
from which a wire or electronic communication was
transmitted." See, 18
U.S.C. § 3127(4).
There are currently two different standards for obtaining
surveillance orders -- one for obtaining pen register and trap
and trace orders, and another for wiretap orders under Title
III (which allow the government to obtain the content phone
conversations). The former is a very low standard. The current
statute reads, "the court shall enter an ex parte order
authorizing the installation and use of a pen register or a
trap and trace device ..." if the government "has
certified to the court that the information likely to be
obtained by such installation and use is relevant to an
ongoing criminal investigation." Issuance of the order is
mandatory, and the standard -- mere relevance - is low. In
contrast, wiretap orders are within the discretion of the
Judge, and require a showing of probable cause.
E-mail or web "routing" or "addressing"
information might be interpreted to mean subject lines, CCs,
search terms, query strings, and other information not
collected from telephone communications. Hence, what is at
issue is not just expanding the scope of pen register and trap
and trace orders to Internet communications, but also whether
some information in the nature of content will become
available to the government without an order based upon
probable cause.
The statements by Senators and Ashcroft indicate that they
understand that this language means that pen register and trap
and trace authority would be extended to Internet
communications. Their statements also suggest that they do not
intend for statute to cover content. But, nowhere would the
statute, if it is so amended, elaborate any details. The words
Internet, e-mail, web, instant message, subject line, are all
absent. ISP, mail service provider, mail servers, web servers,
are also not mentioned. The statute would not address the
technological methods to be used for collecting pen register
and trap and trace information in the context of email or web
browsing. It would not address the structure of Internet
communications, and which parts would be covered and which
parts would be excluded from collection under pen register and
trap and trace orders. The statute would merely state that,
henceforth, "routing and addressing" information in
an "electronic communication" is covered.
While the statutory language is not specific on this issue,
Ashcroft has offered some of his interpretation. The following
is the entire exchange between Sen. Charles Grassley
(R-IA) and Ashcroft on this matter at the September 25 hearing
before the Senate Judiciary Committee.
Grassley: "As I recall, you stated that e-mail
routers should be treated the same as the telephone numbers
that are captured by a pen register or a trap and trace. The
fact is, there are not the same. Doesn't the e-mail router
contain some information about what is contained within, and
then really go further, than what it seems to me you want to
go. Because you want to know who is communicating, but you do
not know what the message is."
Ashcroft: "We are very cognizant of the need for
the different standards for the content, any indication of the
content of the call. Though the only thing that we seek to
discovery, based on the trap and trace, and the pen registry,
is the address of the sender, and the address of the
recipient."
Grassley: "Since that information also includes
some information about the message contained, don't you then
go a little bit further, than what you anticipate going? And I
am not questioning your veracity. I just want to understand,
understand that you might be going further than you intend to
go there, based upon your statement."
Ashcroft: "Our view is that the subject line,
which requires us to have a Title III, or the higher level
authority, and we do not want that line as a result of our pen
register or trap and trace. We want this to be technology
neutral. We don't think that there should be a competitive
advantage to people using the digital circumstance that gives
them an impunity that they didn't have in the analog world.
But, we are not seeking, and I don't believe legislation -- I
would be happy to confer on this -- and if there are ways that
we need to adjust it, we will. We are not asking that we get
content, or an identification of the possible content, or even
the titling of the message. We want to know the instrument
from which it was made, and the instrument to which it was
directed."
Neither Sen. Grassley, nor any other Senator, asked Ashcroft
about the application of the draft bill to web based
communications, such as the entry of URLs in browsers, the use
of search engines, or web forms. |
|
|
|
| Ashcroft Testifies Before
Senate Judiciary Committee |
9/25. Attorney General John Ashcroft testified before the Senate Judiciary
Committee in support of the Administration's draft
[PDF] of the "Anti Terrorism Act of 2001." He
assured the Committee that "this Justice Department will
never waiver in our defense of the Constitution nor relent our
defense of civil rights."
Ashcroft then said that law enforcement needs new tools to
fight terrorism. He summed up his proposals: "First, our
laws fail to make defeating terrorism a national priority.
Indeed, we have tougher laws against organized crime and drug
trafficking than terrorism. Second, technology has
dramatically outpaced our statutes. Law enforcement tools
created decades ago were crafted for rotary telephones - not
email, the internet, mobile communications and voice
mail."
He also went into some specifics of the electronic, including
Internet, surveillance provisions. "Terrorist
organizations have increasingly used technology to facilitate
their criminal acts and hide their communications from law
enforcement. Intelligence gathering laws that were written for
the era of land-line telephone communications are ill-adapted
for use in communications over multiple cell phones and
computer networks."
He continued that "Our proposal creates a more efficient,
technology neutral standard for intelligence gathering,
ensuring law enforcement’s ability to trace the
communications of terrorists over cell phones, computer
networks and new technologies that may be developed in the
coming years."
He added that "the information captured by the proposed
technology neutral standard would be limited to the kind of
information you might find in a phone bill. The content of
these communications would remain off limits to monitoring by
intelligence authorities, except for under current legal
standards."
He concluded that "Our proposal would allow a federal
court to issue a single order that would apply to all
providers in a communications chain, including those outside
the region where the court is located. We need speed in
identifying and tracking down terrorists. Time is of the
essence. The ability of law enforcement to trace
communications into different jurisdictions without obtaining
an additional court order can be the difference between life
and death for American citizens."
Sen. Hatch said, in a statement
which he submitted for the record, that "Electronic
surveillance, conducted under the supervision of a federal
judge, is one of the most powerful tools at the disposal of
our law enforcement community. It is simply unfortunate that
the laws currently on the books which govern such surveillance
were enacted before the fax machine came into common usage,
and well before the advent of cellular telephones, e-mail, and
instant messaging. All of these modern modes of communication
we now know were principal tools used by the terrorists to
coordinate their deadly attacks. The Department of Justice has
asked us for years to update these laws to reflect the new
technologies, but there has always been a reason to go slow,
to seek more information, to order further studies. We simply
cannot afford to wait anymore!"
The Chairman of the Committee, Sen. Leahy, remains skeptical.
He said that "we are making progress with respect to a
number of areas of law". However, he added that "we
cannot allow terrorism to prevail by curtailing our
Constitutional democracy or constricting our freedoms."
He has floated his own counter proposal. See also, prepared
statement of Sen. Leahy.
Several members of the Committee defended the entirety of the
Administration's proposal. Sen.
Orrin Hatch (R-UT), the ranking Republican on the
Committee, said that "I have reviewed the Attorney
General's proposal, and I can say without reservation, that
the Administration's requested authorities reflects the
measured and cautious response to the events of the last
couple of weeks." He also defended the wiretap and pen
register and trap and trace provisions specifically. Sen. Strom Thurmond
(R-SC), a former Chairman of the Committee, said "the
Attorney General's proposals are reasonable, and entirely
consistent with the Constitution," and that the Congress
should not delay.
Every member of the Committee was present for all or part of
the hearing. Ashcroft was accompanied at the hearing by
Michael Chertoff (Assistant Attorney General for the Criminal
Division, Larry Thompson (Deputy Attorney General), Viet Dinh
(Assistant Attorney General for Legal Policy, Chris Painter
(of the Computer Crime and Intellectual Property Section), and
others. However, Ashcroft was the sole witness. The hearing
lasted about one and one half hours. Junior members of the
Committee who were not able to ask questions asked that the
hearing been continued on another date. The Committee has
scheduled another hearing for Tuesday, October 2. |
|
|
| John Ashcroft and the
Senate Judiciary Committee |
9/25. The events of September 11 changed everything in
Washington DC, including the relationship between the Attorney
General and the Senate
Judiciary Committee. When President Bush nominated
Ashcroft to be Attorney General early this year, many of the
Democrats on the Committee, including the Chairman, Sen. Patrick Leahy (D-VT)
tried to block his confirmation. Some of the attacks were
partisan, personal, and ugly.
On September 25, Ashcroft was welcomed back. Sen. Leahy stated
that "I have been very very pleased that you have been
there ... leading this effort." Sen. Dianne Feinstein
(D-CA) told Ashcroft that "I think you have done a very
fine job." |
|
|
| 5th Circuit Rules on
Scienter Under PSLRA |
9/25. The U.S.
Court of Appeals (5thCir) issued its opinion
in Nathenson
v. Zonagen a class action securities suit in
which the 5th Circuit construed the scienter requirement under
the PSLRA.
The plaintiffs' complaint alleged violation of §§ 10(b)
and 20(a) of the Securities Exchange Act of 1934 and Rule 10b5
thereunder. Plaintiffs alleged fraud by Zonagen, a
biopharmaceutical company, and several of its officers and
directors. Defendants moved to dismiss the complaint for
failure to state a claim pursuant to FRCP 12(b)(6), and
the Private Securities Litigation Reform Act (PSLRA). The
District Court dismissed with prejudice. The Appeals Court
reversed and remanded.
This is another in the series of federal Appeals Court
opinions construing the scienter requirements for class action
securities litigation, following passage of the PSLRA. This
Appeals Court followed the rulings of several other circuits
that recklessness still constitutes scienter for purposes of
10b5 claims.
Congress passed the PSLRA, 15 U.S.C. § 78u-4, to insulate
defendants, and especially info and bio tech companies, from
abusive class action law suits. The PSLRA creates both a safe
harbor for forward looking statements, and a heightened
pleading requirement. Plaintiffs must "state with
particularity facts giving rise to a strong inference that the
defendant acted with the required state of mind." See, 15
U.S.C. § 78u-4(b)(2).
See also, opinions of other circuits: Janas v.
McCracken (In re Silicon Graphics Sec. Litig.), 183 F.3d
970 (9th Cir 1999); Novak
v. Kasaks, 216 F.3d 300 (2d Cir); In re Advanta
Corp. Sec. Litig., 180 F.3d 525 (3d Cir 1999); Bryant
v. Avado Brands, 187 F.3d 1271 (11th Cir 1999); Greebel
v. FTP Software, 194 F.3d 185 (1st Cir 1999); Helwig
v. Vencor, (6th Cir 2001); and Philadephia
v. Fleming (10th Cir, 2001). |
|
|
| Spread Spectrum Devices |
| 9/25. Tuesday, September 25, was the 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, comment
[PDF] submitted by 3Com and others, comment
[PDF] submitted by Agere Systems, and comment
[PDF] submitted by Texas Instruments. ( ET Docket No. 99-231.)
See, NPRM
and notice
in Federal Register: June 12, 2001, Vol. 66, No. 113, at Pages
31585 - 31589. |
|
|
| PPI Advocates Use of New
Technologies at Airports |
| 9/25. The Progressive
Policy Institute issued a paper
[PDF] in which it argued that the "Congress should also
give serious consideration to significantly expanding the use
of cutting-edge, advanced information technologies to help
make our airports more secure." It advocates the use of
biometric authentication technologies, such as finger print or
automatic facial recognition, radio frequency tags for
baggage, and luggage and passenger scanning technologies. The
PPI is a Washington DC based Democratic Party think tank.
Robert Atkinson wrote the report. See also, executive
summary [HTML]. |
|
|
|
| Bush Speaks to FBI
Employees About Anti Terrorism Bill |
9/25. President George Bush gave a speech
at the FBI Headquarters in Washington DC in which he advocated
passage of his anti terrorism bill. He said that "in
order to win the war, we must make sure that the law
enforcement men and women have got the tools necessary, within
the Constitution, to defeat the enemy."
Bush specifically addressed the electronic surveillance
provisions of the bill. He stated that "what we've seen
is these terrorists are very sophisticated, and so are their
communications. They must -- their calls must be penetrated
when we feel there's a threat to America. We've got to know
what's on their mind. And so, therefore, we must give the FBI
the ability to track calls when they make calls from different
phones, for example." Under current law prosecutors
obtain wiretap orders that are specific to phones, not
persons. The FBI seeks new authority to obtain orders specific
to individuals, regardless of their location or communication
device.
President Bush continued that "Now, this is what we do
for drug dealers and members of organized crime, and it seems
like to make sense to me, if it's good enough for the FBI to
use these techniques for facing down those threats to America,
that now that we're at war, we ought to give the FBI the tools
necessary to track down terrorists."
Bush also addressed the provisions of the bill pertaining to
detention of terrorists, and the sharing of information
between intelligence and law enforcement. Both have run into
sharp criticism from some Democrats on Capitol Hill.
The President concluded that "I want you to know that
every one of the proposals we've made on Capitol Hill, carried
by the Attorney General, has been carefully reviewed. They are
measured requests, they are responsible requests, they are
constitutional requests. Ours is a land that values the
constitutional rights of every citizen. And we will honor
those rights, of course." |
|
|
| Wednesday, Sept 26 |
The House will meet at 10:00 AM for legislative business; no
votes are expected past 2:00 PM.
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: Room 366, Dirksen
Building.
10:00 AM. The House
Government Reform Committee's Subcommittee on Government
Efficiency, Financial Management, and Intergovernmental
Affairs will hold a hearing titled "Information
Technology - Essential Yet Vulnerable: How Prepared Are We for
Attack?" Location: Room 2154, Rayburn Building.
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), 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 Bruce Mehlman, Assistant Secretary
of Commerce, at 9:00 - 9:45 AM, and Rep. Heather Wilson
(R-NM), member of the House Telecom Subcommittee, at 9:45 -
10:30 AM. |
|
|
| Thursday, Sept 27 |
Yom Kippur.
Deadline to submit reply comments to the FCC in
response to its Notice of Proposed Rulemaking (NPRM) regarding
implementation of the local competition provisions of the
Telecom Act of 1996. This NPRM invites parties to update and
refresh the record on issues pertaining to the rules the FCC
adopted in the First Report and Order in CC Docket No. 96-98.
See, notice
in Federal Register, August 13, 2001, Vol. 66, No. 156, at
Page 42499.
Deadline to submit comments to the USPTO on issues
associated with the development of a plan to remove the patent
and trademark classified paper files from the USPTO's public
search libraries. See, notice
in Federal Register, August 27, 2001, Vol. 66, No. 166, at
Pages 45012 - 45014.
Deadline to submit comments to the Copyright Office (CO)
on proposed amendments to the regulations governing the
content and service of certain notices on the copyright owner
of a musical work. The notice is served or filed by a person
who intends to use the work to make and distribute
phonorecords, including by means of digital phonorecord
deliveries, under a compulsory license, pursuant to 17 U.S.C.
§ 115. See, notice
in Federal Register, August 28, 2001, Vol. 66, No. 167, Page
45241 - 45245. |
|
|
| Friday, Sept 28 |
CANCELLED. 10:00
AM - 12:00 NOON. The FCC's WRC-03 Advisory Committee will hold
a meeting to continue preparations for the 2003 World
Radiocommunication Conference. Location: Federal
Communications Commission, 445 12th Street, SW, Room TW-C305,
Washington DC. See, notice
in Federal Register, September 7, 2001, Vol. 66, No. 174, at
Pages 46793 - 46794.
Extended deadline for submitting comments and notices of
intent to participate in a copyright arbitration royalty panel
proceeding to the Copyright
Office regarding its 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. See, notice
[PDF] in Federal Register, September 21, 2001, Vol. 66, No.
184, at page 48648.
Deadline to submit rebuttal comments to the USTR in its
investigation of the intellectual property laws and practices
of the government of Ukraine. See, notice
in Federal Register, September 24, 2001, Vol. 66, No. 185, at
Page 48898. Location: Office of the USTR, 1724 F Street, NW,
Rooms 1 and 2, Washington DC. |
|
|
| More News |
9/25. Nancy Victory, head of the NTIA, gave a speech
in Washington DC in which she touched on her policy
priorities. She stated that the "NTIA will be continuing
our interagency project assessing the viability of various
frequency options for third generation wireless
services." She also stated that "another of my
priorities is to stimulate the deployment throughout the
country of broadband communications networks that support
high-speed, two-way data transfers."
9/24. The European Commission announced that it approved Cendant Corporation's
acquisition of Galileo International Inc. See, EU
release and Cendant
release. |
|
|
| Sen. Enzi Promotes EAA |
9/25. Sen. Mike Enzi
(R-WY) gave a speech in Washington DC in which he promoted S
149, the Export Administration Act of 2001 (EAA), of which he
is the sponsor. He participated in a program sponsored by the Center for Strategic and
International Studies titled "European Defense
Industrial Consolidation Conference."
The bill passed the Senate early this month, but has yet to
pass the House. He stated that the goal of the bill "is
to eliminate unnecessary trade barriers, while focusing
controls on the items most sensitive to our national
security." He added that "the bill recognizes that
the U.S. is rarely the only producer of militarily useful high
tech products, and items available from foreign sources or
available in mass market quantities cannot be effectively
controlled."
He also addressed the bill's termination of MTOPs controls. He
stated that "In the case of high performance computers,
the 2001 EAA greatly enhances the President's ability to
respond to rapidly changing technology. Specifically, the bill
repeals a provision in the Fiscal Year 1998 National Defense
Authorization Act, which locked into statute a metric for
measuring the performance of computers." He added that
"This does not mean that computers will not be
controlled. Instead, it means that the President may control
computer exports in a way that is more responsive and
effective." |
|
|
| About Tech Law Journal |
Tech Law Journal is a free access web site and e-mail alert
that provides news, records, and analysis of legislation,
litigation, and regulation affecting the computer and Internet
industry. This e-mail service is offered free of charge to
anyone who requests it. Just provide TLJ an e-mail address.
Number of subscribers: 2,090.
Contact: 202-364-8882; E-mail.
P.O. Box 15186, Washington DC, 20003.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All
rights reserved. |
|
|