| Senate Leaders Introduce
Anti Terrorism Bill |
10/4. Senate leaders introduced S 1510
[243 page in PDF], the USA Act, the Senate version of the anti
terrorism bill. This bill, like it House counterpart, contains
a wide array of provisions intended to increase the ability of
law enforcement, intelligence, and other government agencies
to combat terrorism. In particular, both bills increases
authority to conduct electronic surveillance of phone and
Internet communications.
USA is an acronym for Uniting and Strengthening America. Its
counterpart is HR 2975, the PATRIOT Act, which is an acronym
for the Provide Appropriate Tools Required to Intercept and
Obstruct Terrorism. The House Judiciary
Committee approved the PATRIOT Act on October 3 by a
vote of 36 to 0. See, October 2 draft
[124 pages in PDF] of the PATRIOT Act, which does not
incorporate amendments adopted at the October 3 mark up
meeting.
The USA Act is sponsored by Sen. Tom Daschle (D-SD),
the Senate Majority Leader, Sen.
Trent Lott (R-MS), the Senate Minority Leader, Sen. Patrick Leahy (D-VT),
the Chairman of the Senate Judiciary
Committee (SJC), Sen.
Orrin Hatch (R-UT), the ranking Republican on the SJC, Sen. Paul Sarbanes
(D-MD), the Chairman of the Senate Banking
Committee (SBC), Sen.
Phil Gramm (R-TX), ranking Republican on the SBC, and Sen. Richard Shelby
(R-AL), the ranking Republican on Senate Intelligence
Committee.
The USA Act is a large and broad bill designed to give
government agencies increased powers to combat terrorism. It
provides for increased electronic surveillance powers,
increased authority under the Foreign Intelligence
Surveillance Act (FISA), and increased anti money laundering
and anti terrorism financing powers. It also contains relief
for victims of terrorism, increased Canadian border
protection, and other provisions.
Pen Registers and Trap and Trace Devices. Both the USA
and PATRIOT Acts expand pen register and trap and trace
authority to include Internet communications. (See, § 101
of the PATRIOT Act, and § 216 of the USA Act.) Pen
register and trap and trace orders currently apply to
acquisition by law enforcement agencies (LEAs) of outgoing and
incoming phone numbers. Both bills would extend pen register
and trap and trace authority to "routing" and
"addressing" information in an "electronic
communication". Both bills also currently contain
language stating that "content" cannot be obtained
with a pen register or trap and trace order. However, neither
bill goes into detail regarding what constitutes content, and
what constitutes routing and addressing information.
Computer Trespassers. Both bills would allow LEAs to
intercept wire and electronic communications of computer
trespassers when asked by the owner or operator of a computer
under attack. This section is designed to facilitate defense
against such things as distribute denial of service attacks.
(See, § 217 of the USA Act, and § 105 of PATRIOT
Act.)
No Technology Mandates. The House and Senate bills now
both contain language stating that the bills impose no
technology mandates. However, the language of the two bills
differs. § 222 of the USA Act includes the following:
"Nothing in this Act shall impose any additional
technical obligation or requirement on a provider of wire or
electronic communication service or other person to furnish
facilities or technical assistance. A provider of a wire or
electronic communication service, landlord, custodian, or
other person who furnishes facilities or technical assistance
pursuant to section 216 shall be reasonably compensated for
such reasonable expenditures incurred in providing such
facilities or assistance." The House Judiciary Committee
approved an amendment on October 3 which provides:
"Nothing in this Act shall impose any additional
technical obligation or requirement on a provider of wire or
electronic communication service or other person to furnish
facilities, services or technical assistance." Thus, the
Senate bill adds a second sentence. |
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| Terrorism and CALEA |
10/5. The House
Government Reform Committee's Subcommittee on Governmental
Efficiency, Financial Management and Intergovernmental
Relations held a hearing titled "A Silent War: Are
Federal, State, and Local Governments Prepared for Biological
and Chemical Attacks." Almost all of the testimony and
questions focused on the nature and delivery of biological and
chemical attacks, and emergency public health and safety
preparations. However, one witness, Edward Norris,
Commissioner of the Baltimore
City Police Department, also argued that further CALEA
requirements are necessary "to prevent recurrences of
terrorism".
Congress passed the Communications
Assistance for Law Enforcement Act (CALEA) in 1994 to
enable 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 FBI has since sought an implementation of CALEA
that expands surveillance capabilities beyond those provided
in the statute. The FCC, which has
written implementing rules, has largely backed the FBI. This
has imposed considerable burdens and costs upon service
providers, and their customers. The wireless service providers
and privacy groups have battled with government agencies for
years over CALEA implementation.
Specifically, Commissioner Norris stated that "The
Communications Assistance for Law Enforcement Act (CALEA),
which was passed in 1994 but has never been fully implemented,
must be enforced. CALEA requires telephone companies to ensure
that their systems and networks can accommodate federal,
state, and local wiretaps in the face of changing telephone
technology. Right now we can't intercept certain digital phone
technologies, and that is keeping all of us dangerously in the
dark."
The hearing was chaired by Rep. Steve Horn (R-CA).
No member of the Subcommittee questioned Norris about CALEA. |
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| FBI Computers |
| 10/4. Sen. Richard
Durbin (D-IL) spoke in the Senate about modernizing the
FBI's computer systems. He stated that "no successful
business in America could operate with the computers we have
given to the premier law enforcement agency in America".
He said that he is preparing legislation "that will allow
an exception to our procurement laws in areas of national need
and national emergency". See, Congressional Record,
October 4, at page S10268. |
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| NIPC Issues Advisory |
| 10/5. The FBI's National
Infrastructure Protection Center (NIPC) issued an advisory
in which it stated that it "continues to observe hacking
activity targeting the e-commerce or e-finance/ banking
industry." It continued that "hackers have increased
their targeting of several third party service providers that
employ weak security practices". |
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| Trade Promotion Authority |
| 10/4. Rep. Charles
Rangel (D-NY) and others introduced HR 3019, a bill
pertaining to trade promotion authority (also know as
"fast track"). On October 3 Rep. Bill Thomas
(R-CA), Chairman of the House Ways and Means
Committee, introduced HR 3005
[57 pages in PDF], the "Bipartisan Trade Promotion
Authority Act of 2001". Rep. Rangel is the ranking
Democrat on the Committee. |
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| Bush Nominates Two for
Appeals Courts |
| 10/5. President Bush announced his intent to nominate Julia
Gibbons to be a United States Circuit Judge for the Sixth Circuit, and to
nominate William Steele to be a United States Circuit
Judge for the Eleventh
Circuit. See, White
House release. |
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| NTIA Announces New 3G Plan |
10/5. The National
Telecommunications and Information Administration (NTIA)
released a statement
regarding locating and reallocating spectrum for use by Third
Generation (3G) wireless services. 3G services are intended to
bring broadband Internet access to mobile devices, among other
things. The NTIA, which is a part of the Department of
Commerce, stated that the NTIA, FCC,
and Department of Defense (DOD) have "a new plan for the
assessment of spectrum" which will be completed by
"Spring 2000".
The NTIA stated that "the current assessment examines the
potential use of the 1710-1770 and 2110-2170 MHz bands for
commercial advanced wireless services."
The NTIA also stated that "the 1770 to 1850 MHz band is
not part of this assessment" and that "the Federal
government incumbents in the 1710-1770 MHz band will be
assessing their future spectrum needs in light of new national
security demands." This spectrum is currently used
primarily by the DOD.
The FCC, which has responsibility for allocation of spectrum
used by the private sector, will assess the 2110-2170 MHz
band. The NTIA, has responsibility for spectrum used by
government entities, including the 1710-1850 MHz band.
Tom Wheeler, P/CEO of Cellular
Telecommunications Industry Association (CTIA) praised the
announcement. He stated that "Everyone, under the
leadership of the White House, Secretary of Commerce Evans,
FCC Chairman Powell and NTIA, has come together to address the
immediate needs of the wireless industry while simultaneously
ensuring national security. This band plan will enable the
wireless industry to receive spectrum sooner rather than
later, focusing on the deliverable, while not closing the door
to future spectrum reallocation." See, CTIA
release. |
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| E-911 Deployment Delayed |
10/5. The FCC announced, but did not release, orders
allowing five major wireless carriers, and a public safety
agency, more time to comply with the GPS mandates of the FCC's
E-911 rules. Carriers had faced an October 1, 2001 deadline
for enabling 911 calls from mobile phones to provide public
safety authorities with location information. The FCC issued a
release
and a sheet
[PDF] describing its orders. All four Commissioners issued
statements. See, statements by Powell,
Abernathy,
Copps,
and Martin.
Commissioner Kevin Martin
wrote that "the current failure to meet the Commission's
Phase II E911 deadlines is shameful. Nonetheless, we are told
by manufacturers and suppliers that meeting today's deadlines
is a practical impossibility. Let me be clear, however, these
delays must come to an end."
Rep. Anna Eshoo
(D-CA), a leading advocate of E-911 technology in the House,
also commented. She said that "September 11, 2001 upped
the ante on the importance of location detection technology in
crisis situations. Cellular phones were front and center
in nearly every story related to the terrorist attacks ...
These revised deadlines will be monitored and scrutinized by
myself and my colleagues so that full implementation is
brought to the American people sooner rather than later in the
revised schedule the FCC has now set and approved."
See also, CTIA
release. |
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| Sen. Rockefeller Introduces
NET COP Act |
| 10/4. Sen. Jay
Rockefeller (D-WV) introduced S 1509, the Networking
Electronically To Connect Our Police Act of 2001, or the NET
COP Act. This bill would establish a grant program to fund
Internet access for rural police departments. Sen. Rockefeller
stated in the Senate that this bill would create "a grant
program, administered by the United States Department of
Justice, to enable rural police departments without Internet
access to purchase appropriate computer hardware and software,
or to pay for Internet access, so that they can join the many
thousands of federal, State, and local agencies already
sharing information and cooperating to track down and arrest
criminals via such Internet based services as DOJ's Regional
Information Sharing Systems, RISS, and the FBI's Law
Enforcement On-Line, LEO, program." |
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| Senators Introduce Bill to
Briefly Extend Net Tax Moratorium |
| 10/4. Sen. Byron Dorgan
(D-ND) and Sen. John
Breaux (D-LA) introduced S 1504, a bill to extend the
moratorium on new and discriminatory Internet taxes through
June 30, 2002. The current moratorium, enacted by the Internet
Tax Freedom Act in 1998, expires on October 20. This bill was
referred to the Senate
Commerce Committee, of which both Dorgan and Rockefeller
are members. On October 2, Sen.
Patrick Leahy (D-VT), Sen.
Ron Wyden (D-OR), and Sen.
John McCain (R-AZ) introduced S 1481, a bill to
provide a two year extension. |
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| AAI Proposes Court
Management of Microsoft |
10/5. The American
Antitrust Institute (AAI) released a paper
advocating remedies in the Microsoft antitrust case at a press
briefing at the National Press
Club in Washington DC. The AAI expressed its
disappointment that the Department
of Justice (DOJ) will not seek a break up of Microsoft. It
then proposed ten mandates, to be enforced by the Court with
the assistance of "Special Masters" and
"technical experts". The proposals, if adopted,
would result in Court supervised management of Microsoft in
the manner of commission based regulation of publicly owned
utilities. The AAI proposals are as following:
(1) "Require Microsoft to give computer manufacturers
(OEMs) the virtually unrestricted right to control the initial
bootup sequence of their products ..."
(2) "Microsoft must license the source code for its DOS
based operating systems, including all versions and all
components of MS-DOS, Windows 3, Windows 95, Windows 98 and
Windows Me."
(3) "Require Microsoft to include Sun's JAVA
"virtual machine" as a mandatory component of
Microsoft's operating system."
(4) "Prohibit Microsoft from adding any proprietary
extensions ... to any product, standard or feature currently
available in the public domain or pursuant to open source
license, such as kerebos or xml."
(5) "Require Microsoft to include the middleware products
of its competitors in the operating system including, but not
limited to, Netscape's web browser, RealPlayer's and Apple's
multimedia and streaming software."
(6) "Require Microsoft to "open source" its
middleware products, including Internet Explorer."
(7) "Require Microsoft to develop and market, in good
faith, current and future versions of its applications for
competing operating systems. The applications would include
Microsoft Office as well as middleware products such as
Internet Explorer and Windows Media Player. Competing
operating systems would include Linux, versions of UNIX, BeOS
and Amiga ... and any operating system ..."
(8) "Require Microsoft to ... license its software to all
OEMs on the same terms."
(9) "Require Microsoft to give independent software
developers the same access to the source code, plans,
training, APIs, technical information and communications
interfaces for all of Microsoft's operating systems that
Microsoft gives its own developers."
(10) "The Court should appoint, at Microsoft's expense,
one or more Special Masters with the authority to hire
technical experts to take evidence and evaluate information in
order to advise the Court in a timely manner regarding
Microsoft's compliance and to assist the court in interpreting
the relief provisions." |
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| Fed Circuit Rules in Xerox
v. 3Com |
10/5. The U.S.
Court of Appeals (FedCir) issued its opinion in Xerox
v. 3Com, a patent infringement case
involving graffiti software for hand held computers.
Xerox is the assignee of U.S.
Patent No. 5,596,656, which is titled "Unistrokes for
Computerized Interpretation of Handwriting." Xerox filed
a complaint in U.S. District Court (WDNY) against 3Com
Corporation, U.S. Robotics Corporation, U.S. Robotics Access
Corporation, and Palm
Computing, Inc. claiming that the Graffiti software in its
PalmPilot line of hand held computers infringed its unistrokes
patent. Defendants asserted the affirmative defenses of
invalidity, unenforceability, and non-infringement.
The District Court granted summary judgment of
non-infringement to Defendants. The Appeals Court affirmed in
part, reversed in part, and remanded. |
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| Monday, Oct 8 |
Columbus Day. The House is in recess until Tuesday. The
Senate is in recess until 9:30 AM on Tuesday. The FCC is
closed.
Day one of a two day seminar offered by the Federal Communications Bar
Association (FCBA) on communications law. See, agenda [PDF].
Location: Georgetown University Law Center, 600 New Jersey
Avenue, NW, Washington DC. |
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| Tuesday, Oct 9 |
2:30 PM. The Senate
Commerce Committee will hold a hearing on the nomination
of John Marburger to be Director of the Office of
Science and Technology Policy, and the nomination of Phillip
Bond to be Under Secretary of Commerce for Technology.
Location: Room 253, Russell Senate Office Building.
5:00 PM. The House
Ways and Means Committee will meet to mark up HR
3005 [PDF], the "Bipartisan Trade Promotion Authority
Act of 2001." Location: Room 1100, Longworth Building.
Day two of a two day seminar offered by the Federal Communications Bar
Association (FCBA) on communications law. See, agenda [PDF].
Location: Georgetown
University Law Center, 600 New Jersey Avenue, NW,
Washington DC.
Deadline to file reply 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.) |
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| Wednesday, Oct 10 |
POSTPONED. 9:00
AM - 3:30 PM. The Federal
Communications Commission (FCC) will hold a Public Forum
and Technology Expo on telecommunications relay services (TRS).
TRS, which is required by Title IV of the Americans with
Disabilities Act (Section 225 of the Communications Act of
1934), pertains to services for hearing impaired persons.
Location: Commission Meeting Room, Room TW-C305 and adjacent
rooms, 445 12th St., SW, Washington DC. See, FCC
notice and agenda [MS Word]. See also, notice
in Federal Register, August 28, 2001, Vol. 66, No. 167, at
Pages 45310 - 45312.
10 AM. The Senate
Judiciary Committee's Subcommittee on Administrative
Oversight and the Courts will hold a hearing to examine new
priorities and challenges for the FBI. Sen. Charles Schumer
(D-NY) will preside. Location: Room 226, Dirksen Building.
10:00 AM - 12:00 NOON. The House Science Committee
will hold a hearing titled "Cyber Security – How Can We
Protect American Computer Networks From Attack?"
Location: 2318 Rayburn Building.
The Supreme Court of
the United States will hear oral argument in Verizon v.
FCC (00-511), WorldCom v. Verizon (00-555), FCC v. Iowa
Utilities Board (00-587), AT&T v. Iowa Utilities Board
(00-590), and General Communications v. Iowa Utilities Board
(00-602), consolidates. There will be 90 minutes for argument.
12:00 NOON - 1:30 PM. The Federal
Communications Bar Association's (FCBA) International
Practice Committee will host a brown bag lunch titled
"Survey of Issues Facing the International Bureau."
The speaker will be Donald Abelson, Chief of the FCC's
International Bureau. No RSVP necessary.
2:00 PM. FCC Chairman Michael Powell will hold an informal
press conference with reporters who cover the FCC. Location:
FCC Meeting Room, 12th Street Level, 445 12th Street SW,
Washington DC. |
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| Privacy News |
10/5. House
Financial Services Committee Chairman Mike Oxley (R-OH)
praised FTC Chairman Timothy
Muris' October 4 speech
on privacy. Rep. Oxley released a statement
in which he said that "Privacy provisions included in the
Gramm Leach Bliley financial modernization law are the
strongest financial consumer privacy protections ever passed
by Congress. The FTC's new agenda will focus, among other
things, on not only enforcing these provisions, but working
with industry, trade associations, agencies and consumers to
ensure that the GLB provisions are being implemented as
intended -- to truly benefit and protect consumers. The realm
of financial privacy is constantly changing and, at times,
confusing for consumers. ... The FTC's balance of enforcement,
education and outreach is an excellent approach to this
complex issue." Muris stated that the FTC would increase
resources devoted to protecting privacy by 50 percent. He also
said that he opposes new privacy legislation at this time. He
was silent on pending spam bills.
10/5. Rep. Darlene
Hooley (D-OR) introduced HR 3053, a bill to prevent
identity theft. It was referred to the House Financial
Services Committee.
The AEI Brookings Joint Center for Regulator Studies published
a paper
[PDF] titled "Constitutional Issues in Information
Privacy." The authors are Fred Cate and Robert Litan. The
two argue that "the First Amendment restrains the power
of the government to enact and enforce privacy laws that
curtail expression." |
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| Bush Appoints Barksdale to
Foreign Intelligence Advisory Board |
10/5. President Bush announced his intent to appoint Jim
Barksdale to the President's
Foreign Intelligence Advisory Board (PFIAB) for a term of
two years. The PFIAB provides advice to the President about
the quality and adequacy of intelligence collection, of
analysis and estimates, of counterintelligence, and of other
intelligence activities.
In addition, he appointed Brent Scowcroft to be the Chairman.
His other selections are Cresencio Arcos, Robert Day, Stephen
Friedman, Alfred Lerner, Ray Hunt, Rita Hauser, David
Jeremiah, Arnold Kanter, James Langdon, Marie Cornell, John
Streicker, Pete Wilson, and Phillip Zelikow. See, White
House release. |
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