Tech Law Journal Daily E-Mail Alert
November 29, 2001, 9:00 AM ET, Alert No. 317.
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Chertoff Discusses Electronic Surveillance Under USA PATRIOT Act
11/28. Michael Chertoff testified at a Senate Judiciary Committee hearing titled "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism". Chertoff is the Assistant Attorney General in charge of the Criminal Division at the Justice Department. He was also one of the drafters of the language contained in HR 3162, the USA PATRIOT Act, the anti terrorism bill that the Congress passed last month.
He discussed the USA PATRIOT Act in response to a question from Sen. Orrin Hatch (R-UT), the ranking Republican on the Committee. However, the primary foci of the hearing were detentions, military tribunals, and monitoring of attorney client communications of detained terrorists.
Information Sharing. Chertoff stated first that the Act has been used to enable the sharing of information between law enforcement and intelligence agencies. (See, for example, Section 203 of HR 3162.)
Cable Communications. Second, he stated that the DOJ has utilized the newly amended Section 2703 of Title 18 to obtain customer communications or records from cable companies. (See, Section 212 of HR 3162. See also, Section 211, which provides that laws regarding interception and disclosure of wire and electronic communications apply to cable service providers when they provide telephony or Internet access services.)
Nation Wide Search Warrants for ISPs. Chertoff continued that "We have obtained court orders directed to out of district Internet service providers providing information, which has been, to enhance efficiency in terms of pursuing this investigation. We have used the nation wide search warrant provision to obtain relevant information." (See, Sections 219 and 220 of HR 3162.)
Emergency Disclosure Provisions. Chertoff next stated that "We have used the emergency disclosure provisions to support our use of information which is provided to us by an Internet service provider." (See, Section 211 of HR 3162.)
Addresses on the Internet. Finally, Chertoff concluded with a vague reference to obtaining an order for "addresses on the Internet". He did not reference any section of the bill or the U.S. Code. Nor was he clear as to whether he was talking about e-mail addressing information, uniform resource locators, IP numbers, or something else. This is what he said: "In fact, I can tell you personally, not, not more than two days ago, a request came to me about whether we could get some information about address, addresses on the Internet. And, it was information that was important that we might not have been able to get under the prior law. But because of the new law, I was able to direct people to go out and get an order, and make sure we get that information. So, we have absolutely made use of these tools ..."
Senate Judiciary Committee Holds Hearing on Anti Terrorist Measures
11/28. The Senate Judiciary Committee held a hearing titled "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism". The lead witness was Michael Chertoff, Assistant Attorney General in charge of the Criminal Division at the Justice Department. The hearing focused on the use of military tribunals, monitoring of attorney client communications, and detentions. However, Chertoff also addressed electronic surveillance. Attorney General John Ashcroft is scheduled to testify to the Committee on December 4.
Sen. Patrick Leahy (D-VT) used the event to criticize the Bush administration, and the Justice Department specifically, for three recently announced anti terrorist measures: use of military tribunals to try terrorists, interception of attorney client communications of terrorists who might use those communications to commit further terrorist acts, and the detention of persons in connection with investigation, prosecution, and prevention of terrorism.
Sen. Leahy was the most critical member of the panel. Other Senators also voiced concerns about administration actions, including Sen. Arlen Specter (R-PA), Sen. Russ Feingold (D-WI), Sen. Herb Kohl (D-WI), and Sen. Ted Kennedy (D-MA).
Several Senators praised the actions taken by the administration as constitutional, necessary and appropriate. These included Sen. Orrin Hatch (R-UT), Sen. Jon Kyl (R-AZ), Sen. Mitch McConnell (R-KY), and Sen. Jeff Sessions (R-AL).
The Committee also heard from a second panel of witnesses comprised of William Barr (Former Attorney General in first Bush administration), Philip Heymann (Former Deputy Attorney General in Clinton administration), Griffin Bell (former Attorney General in Carter administration), Scott Silliman (Duke University School of Law), Kate Martin (Center for National Security Studies), and Neal Katyal (Georgetown University).
DOJ Seeks Public Comment on Microsoft Settlement
11/28. The Department of Justice published in the Federal Register copies of the proposed Final Judgment and Competitive Impact Statement in the Microsoft antitrust case. Public comments are due within sixty days of publication in the Federal Register. Submit comments to microsoft.atr @usdoj.gov, or by mail or fax. See, notice in Federal Register, November 28, 2001, Vol. 66, No. 229, at Pages 59452 - 59476. 
UK Competition Bill
11/28. The United Kingdom Department of Trade and Industry (DTI) announced plans to introduce legislation regarding its merger regime and criminal penalties for price fixing, bid rigging, and market sharing cartels. Melanie Johnson, Minister for Competition, Consumers and Markets, stated in a release that "The Enterprise Bill is a key part of our mission to promote enterprise and drive up productivity in the UK which will improve living standards for us all. Strong competition drives improvements in efficiency and innovation across the economy. Entrepreneurs willing to take risks are essential to economic growth. Our proposals will strengthen competition, benefit consumers, and encourage enterprising behaviour."
Charles James, Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice, praised the announcement. James released a statement in which he said that "The proposed amendments to the U.K.'s antitrust laws embody fundamental antitrust principles and are welcome signs of the growing convergence between the U.K.'s and the U.S.' view of the appropriate scope of antitrust enforcement. The central principle of U.S. antitrust law is the protection of competition and the U.K.'s clear statement of this guiding principle in its merger law is an important step forward in an increasingly global economy. The proposal to impose criminal sanctions on individuals who participate in hard core cartels will also greatly benefit U.K. businesses and consumers. The United States has long held the view that the most effective method to deter individuals from committing antitrust crimes is through the imposition of tough and certain penalties. We welcome the United Kingdom to the growing number of jurisdictions that share these views."
Bush Signs Net Tax Moratorium Extension
11/28. President Bush signed HR 1552, the Internet Tax Nondiscrimination Act. This bill extends the moratorium on multiple and discriminatory Internet taxes, and taxes on Internet access, through November 1, 2003.
NCTA Chief Addresses Competition and Broadband Issues
11/28. National Cable Telecommunications Association (NCTA) P/CEO Robert Sachs gave a speech in Anaheim, California, in which he stated that "One of the lessons of September 11th is the importance of having competitive telecommunications networks. With the growing recognition that multiple communications paths provide an extra and necessary measure of national security, we are likely to see facilities based competition take on increased importance in Washington."
Sachs also stated that "there is likely to be a greater emphasis placed on broadband deployment. We saw this recently in the economic stimulus package reported by the Senate Finance Committee where tax credits were provided to encourage further deployment."
WTO DG Moore Addresses Doha Accomplishments
11/28. WTO Director General Mike Moore gave a speech in Hong Kong on the recent meeting in Doha, Qatar, and the new round of trade talks. He praised the outcome of the Doha meeting, summarized its accomplishments, advocated the benefits of free trade, and discussed the compromise on TRIPs and pharmaceutical products.
Moore stated that "By any standards, the 4th Ministerial conference of the WTO was an extraordinarily successful meeting. We tend to talk rather glibly about the historic importance of such events, but this time, for once, the claim is not exaggerated; the meeting at Doha will be remembered as a turning point in the history of the WTO and the trading system and in relations between developed and developing countries within that system." He added that "The outcome at Doha brings to an end the uncertainty, loss of momentum and lack of confidence created by the equally spectacular failure at Seattle two years earlier."
Intellectual Property Rights. Moore stated that "The first major success of the conference was the completion of the Ministerial Declaration on TRIPs and Public Health. This had been a very difficult question, impossible to settle in Geneva, which raised economic and humanitarian issues of the highest importance. A delicate balance had to be struck between every Member government's right to act to protect public health and confront health crises and the need to avoid undermining the TRIPS Agreement, which could easily lead to the drying up of the investment funds needed for research into the drugs of the future. The job was well done, making it clear that there are important elements of flexibility in the TRIPS Agreement which can be used to respond to health emergencies. They include the right to grant compulsory licenses and to determine the grounds upon which they should be granted, and the right to establish national regimes for the exhaustion of intellectual property rights. The declaration removed a critical point of discord between developed and developing countries, and it has been welcomed by governments, by public health lobbies and by the pharmaceutical industry."
Bills Introduced
11/27. Rep. Jeff Flake (R-AZ) and others introduced HR 3353, a bill to require the Assistant to the President for Homeland Security to establish a web site for providing information on suspicious activities that may be used by the FBI and other government agencies in the war on terrorism or to protect homeland security. The bill was referred to the House Judiciary Committee.
11/27. Rep. Mike Ferguson (R-NJ) and Rep. Danny Davis (D-IL) introduced HRes 295, a resolution urging the establishment of a commission on technology and education. It was referred to the House Committee on Education and the Workforce.
11/27. Sen. John Edwards (D-NC) introduced S 1733, a bill to develop a unified electronic data system to enhance access to information that is relevant to determine whether to issue a visa or admit an alien to the U.S. The bill was referred to the Senate Judiciary Committee. Sen. Edwards also issued a release that stated that "The legislation would use sophisticated computer programs to match names on passports, visas or other official documents against names on federal lookout lists. ... Based on recommendations from federal agencies involved in keeping would be terrorists out of the country, the legislation would insure that names stored in different databases may be matched more accurately. It would require the State Department, Customs Service, INS and other agencies to use a uniform record keeping system, and let the agencies take advantage of sophisticated computer software that spots variations of the same name."
More News
11/28. The FBI's National Infrastructure Protection Center (NIPC) issued Advisory No. 01-027, titled "Significant Vulnerability Identified In Common Linux File: Transport Protocol Program Identified". The Advisory warns that there is a "vulnerability in versions of the Washington University File Transport Protocol Daemon (WU-FTPD) that could lead to an attacker gaining surreptitious access to sensitive information. For those systems using the WU-FTPD service for which a patch is not yet available, it is suggested that you either disable FTP by blocking TCP port 21 or, in those instances where this is not an option, disable anonymous logon."
11/28. The Supreme Court heard oral argument in Ashcroft v. ACLU, No. 00-1293. This case involves the constitutionality of the 1998 Child Online Protection Act which makes it illegal to provide to minors over the web material that is harmful to minors.
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Thursday, Nov 29
The House is scheduled to take up take up HR 3210, the Terrorism Risk Protection Act.
8:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's Advisory Committee for Cyber Infrastructure. See, notice in Federal Register, November 16, 2001, Vol. 66, No. 222, at Page 57743. Location: Room 1150, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA.
10:00 AM. The Senate Judiciary Committee is scheduled to hold an executive business meeting to mark up several bills, including S 986, a bill to allow electronic media coverage of court proceedings. Location: Room 226, Dirksen Building.
10:00 AM. The House Government Reform Committee's Subcommittee on National Security, Veterans Affairs, and International Relations will hold a hearing titled "Risk Communication: National Security and Public Health". Location: Room 2154, Rayburn Building.
12:00 NOON - 2:00 PM. Jane Mago, General Counsel of the FCC, will speak at a brown bag lunch hosted by the District of Columbia Bar Association (DC Bar) and the FCBA. To register, contact the DC Bar at 202 626-3463.
12:15 PM. The FCBA's International Committee will host a brown bag lunch. Jeanette Chan and Michael Reede of the Hong Kong office of Paul Weiss will speak on recent regulatory developments in Hong Kong, China and India. Location: Paul Weiss, 1615 L Street, 13th Floor.
12:15 PM. Sen. Paul Sarbanes (D-MD), Chairman of the Senate Banking Committee, will be the luncheon keynote speaker at the Consumer Federation of America's conference titled "The Consumer in the Financial Services Revolution -- Challenges and Opportunities." Location: Jurys Hotel, 1500 New Hampshire Avenue, NW.
1:30 PM. FTC Commissioner Orson Swindle will participate in an audio conference titled "Privacy and the Antiterrorism Act," sponsored by Communications Daily. Location: 600 Pennsylvania Ave., NW.
1:30 PM. The U.S. International Telecommunication Advisory Committee (ITAC) will hold a meeting regarding preparations for the 2002 World Telecommunication Development Conference (WTDC). See, notice in Federal Register, October 17, 2001, Vol. 66, No. 201, Page 52825. Location: State Department, Room 1408.
2:00 PM. The House Judiciary Committee's Subcommittee on Crime will hold a hearing on

on HR 556, the Unlawful Internet Gambling Funding Prohibition Act, and HR 3215, the Combating Illegal Gambling Reform and Modernization Act. Location: Room 2237, Rayburn Building.

Deadline Extended. Deadline to submit comments and Notices of Intention to Participate with the Copyright Office (CO) regarding royalty payments for retransmission of over the air broadcast signals. The CO notice "directs all claimants to royalty fees collected under the section 119 statutory license in 2000 to submit comments as to whether a Phase I or Phase II controversy exists as to the distribution of those fees, and a Notice of Intention to Participate in a royalty distribution proceeding." See, 17 U.S.C. § 119. See also, Federal Register, October 30, 2001, Vol. 66, No. 210, at Pages 54789 - 54791. See, November 23 notice.
Friday, Nov 30
8:00 AM - 5:00 PM. Day two of a two day meeting of the National Science Foundation's Advisory Committee for Cyber Infrastructure. See, notice in Federal Register, November 16, 2001, Vol. 66, No. 222, at Page 57743. Location: Room 1150, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA.
9:00 AM. The Electronic Privacy Information Center (EPIC) will host a panel discussion titled "Security or Surveillance II". The topics will include "the technical reliability and privacy implications of new security systems and legal measures being considered both domestically and internationally since September 11." The participants will be Bruce Schneier (Counterpane Internet Security), Simon Davies (Privacy International), Chris Hoofnagle (EPIC), and Marc Rotenberg (EPIC). See, agenda. For more information, contact Sarah Andrews at andrews @epic.org or 202 483-1140 ext 107. Location: National Press Club, First Amendment Lounge, 529 14th St. NW, 13th Floor.
9:00 AM - 5:00 PM. The FCC's Consumer Disability Telecom Advisory Committee will host a meeting titled "The State of the Telecom Act of 1996: Has It Benefitted Consumers and Where Do We Go From Here?" Location: FCC, 445 12th Street, SW, Room TW-C305.
10:00 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "The PCS C Block Mess: The FCC as Auctioneer and Banker". The panelists will be Robert Hahn (AEI Brookings), Rudy Baca (Precursor Group), Harold Furchtgott Roth (AEI), George Reed Dellinger (Washington Analysis), John Thorne (Verizon), and Thomas Hazlett (AEI). See, online registration page. Location: AEI, Wohlstetter Conference Center, 12th Floor, 1150 17th Street, NW.
Deadline to submit comments to the Federal Trade Commission (FTC) in its a notice of proposed rulemaking (NPRM) regarding extending its Children's Online Privacy Protection Rule. It proposes to extend the time period during which web site operators may use an e-mail message from the parent, coupled with additional steps, to obtain verifiable parent consent for the collection of personal information from children for internal use by the web site operator. The current rule expires on April 21, 2002. The FTC proposes to extend this until April 21, 2004. See, FTC release and notice.
Deadline to submit comments to the Bureau of Export Administration (BXA) regarding its annual review of the foreign policy based export controls in the Export Administration Regulations to determine whether they should be modified, rescinded, or extended. See, for example, Export Administration Regulations (EAR), Section 742.12, pertaining to high performance computers. See, BXA notice.
Monday, Dec 3
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Datapoint Corporation v. Standard Microsystems, No. 99-1239, and Charles E. Hill & Associates v. Compuserve, No. 00-1562. Location: Courtroom 402, 717 Madison Place, NW.
12:30 PM. Ivan Seidenberg, P/CEO of Verizon will deliver a luncheon address. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
Deadline to submit comments to the Federal Election Commission (FEC) regarding its proposed rule changes affecting political activity on the Internet. The FEC is the agency charged with enforcing the Federal Election Campaign Act (FECA), which regulates political contributions and expenditures. While the FEC had previously considered wide ranging regulation of political speech on the Internet, this NPRM merely proposes to permit certain personal political web sites, and to allow corporations and unions to put certain hyperlinks and press releases in their web sites. See, TLJ story of September 27, 2001. See also, FEC release, and notice in the Federal Register.