| Cal App Rules on Employer's
Access to Employer Provided Home PC of Employee |
2/22. The Court
of Appeal of California (2/1) issued its opinion
[PDF] in TBG
v. Zieminski, a wrongful termination case
involving the issue of pre-trial production of a computer hard
drive. The Court of Appeal reversed a trial court order
denying an employer's motion to compel production of a home
computer in a wrongful termination case, where the alleged
misuse of computers was the basis for the termination.
Background. Robert Zieminski was a senior executive at
TBG Insurance Services Corporation. TBG provided him with two
computers -- one for use at work, and the other for use at
home. Zieminski signed an agreement that provided that he
would use the PCs "for business purposes only and not for
personal benefit or non-Company purposes, unless such use
[was] expressly approved. Under no circumstances [could the]
equipment or systems be used for improper, derogatory,
defamatory, obscene or other inappropriate purposes."
Zieminski also consented to have his computer "use
monitored by authorized company personnel" on an "as
needed" basis, and agreed that communications transmitted
by computer were not private. TBG terminated Zieminski --
three days before a large block of stock options were to vest
-- alleging that he "had violated TBG's electronic
policies by repeatedly accessing pormographic sites on the
Internet while he was at work."
Trial Court. Zieminski filed a complaint against TBG in
Superior Court for Los Angeles County, California, alleging
wrongful termination. He alleged that improper computer use
was a pretext for preventing him from exercising stock
options. TBG demanded return of the home PC. Zieminski
refused, citing a right to privacy found in the California
Constitution. TBG filed a motion to compel production of the
home computer. The trial court denied TBG's request, although,
not on privacy grounds. It wrote that the evidence on the home
PC would be "merely corroborative of facts already in [TBG's]
possession; since [TBG] already has extensive evidence, any
additional evidence that the [home computer] may disclose does
not outweigh the fact that the computer contains personal
information." This appeal followed.
Court of Appeal. The Court of Appeal reversed and
remanded. The Court first rejected the trial court's
rationale. It cited the basic discovery rule that a
"party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in
the pending action . . . if the matter either is itself
admissible in evidence or appears reasonably calculated to
lead to the discovery of admissible evidence." (See, Calif.
Code Civ. Proc. § 2017.) The Court then concluded that
"the home computer is indisputably relevant (Zieminski
does not seriously contend otherwise), and the trial court's
finding that TBG already has other "extensive
evidence" misses the mark. TBG is entitled to discover
any nonprivileged information, cumulative or not ... The
issue, therefore, is whether he has a protectible privacy
interest in the information to be found on the computer."
Article
I, Section I, of the California Constitution provides that
"All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and
privacy."
The Court continued that "to prevent a constitutionally
prohibited invasion of privacy, the plaintiff must establish
``(1) a legally protected privacy interest; (2) a reasonable
expectation of privacy in the circumstances; and (3) conduct
by defendant constituting a serious invasion of privacy.´´
" (Citation omitted.) The Court assumed a legally
protected privacy interest, but found that Zieminski had no
reasonable expectation of privacy, because he has signed an
agreement not to use the PC for personal use, and to allow his
employer to monitor its use. The Court wrote that "By any
reasonable standard, Zieminski fully and voluntarily
relinquished his privacy rights in the information he stored
on his home computer, and he will not now be heard to say that
he nevertheless had a reasonable expectation of privacy."
However, the Court also wrote that it assumes "the
existence of an abstract privacy interest in Zieminski's
financial and other personal information", and added that
"the trial court may in any event make such orders as are
necessary to minimize TBG's intrusion." |
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| NAB Comments on Webcasting
Royalty Payments |
2/22. National Association of
Broadcasters P/CEO Edward Fritts released a statement
on the Copyright
Arbitration Royalty Panel's (CARP) recommendations
regarding royalties and webcasting.
He stated that "The ruling from the Copyright Arbitration
Royalty Panel may have the effect of unintended consequences,
in that many radio broadcasters may reevaluate their streaming
strategies. If the powerful record company interests' goal was
to strangle a fledgling new service to radio listeners, it may
have succeeded beyond its own expectations."
On February 20, the CARP released its report
[1 page in PDF] recommending rates, and its report
[29 pages in PDF] recommending terms, for the statutory
license for eligible nonsubscription services to perform sound
recordings publicly by means of digital audio transmissions,
also known as webcasting, pursuant to 17 U.S.C.
§ 114, and to make ephemeral recordings of sound
recordings for use of sound recordings under the statutory
license set forth in 17 U.S.C.
§ 112. |
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| House to Vote on Tauzin
Dingell Bill |
2/25. The House of Representatives is scheduled to vote this
week on HR 1542,
titled the "Internet Freedom and Broadband Deployment Act
of 2001". The bill is better known as the Tauzin Dingell
bill, for its lead sponsors, Rep. Billy Tauzin
(R-LA) and Rep. John
Dingell (D-MI), the Chairman and ranking Democrat of the House Commerce Committee.
The House Rules
Committee set a deadline of 4:00 PM on Monday, February
25, for Members of the House to submit proposed amendments to
the bill. (See, Cong. Rec., Feb. 7, 2002, at H217.) Floor
debate on the bill has been scheduled for Wednesday and
Thursday, February 27-28.
The House Commerce Committee's Telecom Subcommittee marked up
the bill on April 26, 2001. See, TLJ
Alert No. 175. The full Commerce Committee marked up the
bill on May 9, 2001. See, TLJ
Alert No. 184. The House Judiciary Committee reported the
bill unfavorably on June 13, 2001. See, TLJ
Alert No. 208. All hearings and markups were contentious.
The bill would change the regulatory environment in which the
Baby Bells operate. It would, among other things, exempt
interLATA data from Section
271 requirements. Supporters of the bill argue that it
will incent the Baby Bells to deploy broadband Internet access
services, particularly digital subscriber line (DSL) service.
Supporters also argue that the bill will increase the Bells'
ability to compete with broadband cable service providers.
Opponents argue that the bill will end competition in local
phone markets, revert the Bells to monopoly status, kill off
many of the CLECs,
and reduce innovation and investment in new technologies and
companies. |
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| Bush Addresses China WTO
Membership |
| 2/22. President Bush gave a speech
at Tsinghua
University, in Beijing, PR China. He stated that
"China has joined the World
Trade Organization, and as you live up to its obligations,
they inevitably will bring changes to China's legal system. A
modern China will have a consistent rule of law to govern
commerce and secure the rights of its people. The new China
your generation is building will need the profound wisdom of
your traditions. The lure of materialism challenges our
society -- challenges society in our country, and in many
successful countries. Your ancient ethic of personal and
family responsibility will serve you well." |
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| People and Appointments |
2/22. Clifford Hyatt joined the San Diego office of
the law firm of Gray Cary as a
special counsel in the firm's securities litigation practice.
He was previously Deputy Assistant Regional Director of the Securities and Exchange Commission's
(SEC) Pacific Regional Office. He handled the case SEC
v. Mark Jakob, an Internet fraud case involving a fake
press release regarding Emulex. He will focus on SEC
investigations and defense, securities class action defense,
corporate internal investigations, NASD arbitrations, and
broker dealer, investment company and investment adviser
compliance. See, GC
release.
2/22. Janis
Kestenbaum joined the Washington DC office of the law
firm of Wilmer Cutler &
Pickering as counsel in the firm's Communications and
Electronic Commerce practice. She previously worked at the law
firm of Jenner & Block.
Before that, she was a trial attorney at the Department of
Justice's Federal
Programs Branch. See, WCP
release.
2/19. Matthew Lehr and Anthony
Klein joined the Palo Alto office of the law firm of Latham & Watkins as
partners. Both were previously partners in the Palo Alto
office of the law firm of Cooley
Godward. Lehr is an intellectual property litigator who
focuses on biotechnology, computer architecture, chemical
products, plasma physics and electrical devices, computer
networking and software, and consumer products. Klein focuses
on licensing and technology transactions in the software,
telecommunications, Internet, e-commerce, and semiconductor
industries. He handles software licensing and distribution
deals, manufacturing, supply and OEM relationships,
semiconductor design and fabrication agreements, outsourcing
arrangements, internet traffic deals and co-marketing
alliances, game development deals, settlement agreements,
strategic alliances, joint ventures, development agreements,
asset transfers and co-branding and marketing arrangements,
and other business relationships. See, LW
release.
2/19. Beth
Brinkmann joined the Washington DC office of the law
firm of Morrison & Foerster
as Of Counsel in the firm's Appellate Practice Group. She
previously worked in the Office
of the Solicitor General at the Department of Justice.
See, MoFo
release. |
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| About Tech Law Journal |
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for entities with multiple subscribers. Free one
month trial subscriptions are available. Also, free
subscriptions are available for law students, journalists,
elected officials, and employees of the Congress, courts, and
executive branch, and state officials. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert and
news items are not published in the web site until one month
after writing. See, subscription
information page.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Monday, Feb 25 |
The Senate will reconvene at 12:00 NOON following its
Presidents Day recess. It is scheduled to take up to the
campaign finance bill. The House will not be in session.
4:00 PM. Deadline for Members of the House to submit to the House Rules Committee
proposed amendments to HR
1542, the Tauzin Dingell bill. See, Cong. Rec.,
Feb. 7, 2002, at H217.
6:30 PM. The National Press
Club will host a panel discussion on distance learning.
The topics to be discussed include copyright issues. The
speakers will be Deborah Everhart (Blackboard.com) and Martin
Irvine (Georgetown Univ.). Coffee reception starts at 6:30 PM.
The program starts at 7:15 PM. Location: NPC, 529 14th St. NW,
13th Floor.
Deadline to submit oppositions and responses to the FCC's Cable Services Bureau
regarding the applications of Hughes and EchoStar to the FCC
requesting consent to the transfer of control of licenses and
authorizations involved in the EchoStar DirecTV merger. See,
FCC notice
[MS Word]. This is CS Docket No. 01-348. |
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| Tuesday, Feb 26 |
The House will reconvene following its Presidents Day
recess. It will meet at 12:30 PM for morning hour, and 2:00 PM
for legislative business. The House will consider a number of
bills under suspension of the rules.
10:00 AM. The Senate
Appropriations Subcommittee's Subcommittee on Commerce,
Justice, State, and the Judiciary will meet in open session
regarding the Department of
Justice (DOJ) budget request
for FY 2003. Attorney General John Ashcroft
is scheduled to appear. Location: Room 138, Dirksen Building.
10:00 AM. The Senate
Banking Committee will hold a hearing to examine
accounting and investor protection issues, focusing on
proposals for change relating to financial reporting by public
companies, accounting standards, and oversight of the
accounting profession. See, witness
list. Location: Room 538, Dirksen Building.
12:15 PM. The FCBA's
Cable Practice Committee and the NCTA
will host a luncheon. The speaker will be Sarah Whitesell,
Associate Bureau Chief of the FCC's Cable Services Bureau. The
price to attend is $15. RSVP to Wendy Parish at wendy @fcba.org. Reservations
and cancellations must be received by Friday, February 22.
Location: 1724 Mass. Ave., NW.
1:00 - 4:00 PM. Rep.
Gil Gutknecht (R-MN), Vice Chairman of the House Science Committee,
will hold a "Technology and Terrorism
Demonstration". Location: Room 2318, Rayburn Building.
4:00 PM. The House
Judiciary Committee's Subcommittee on Crime will mark up HR
3482, the "Cyber Security Enhancement Act of
2001". Rep.
Lamar Smith (R-TX), the Chairman of the Subcommittee, and
the sponsor of the bill, will likely offer an amendment
in the nature of a substitute. Location: Room 2237,
Rayburn Building.
Deadline to submit reply comments to the FCC in the
matter of Ambient's application for a determination that it is
an exempt telecommunications company. It is an electric power
company that also provides broadband Internet access and
related information services over power lines to electrical
outlets in residences. See, FCC
release [PDF]. |
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| Wednesday, Feb 27 |
The House will meet at 10:00 AM. The House is scheduled
to begin consideration of HR
1542, the Tauzin Dingell bill.
Day one of a two day conference titled "Combatting Cyber
Attacks on Your Corporate Data". See, conference information
page. Location: Omni Shoreham Hotel.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine sovereign
immunity and the protection of intellectual property. Sen. Patrick Leahy (D-VT)
will preside. Location: Room 226, Dirksen Building.
10:00 AM. The House
Ways and Means Committee will hold a hearing on the WTO's
extraterritorial income decision. Location: Room
1100, Longworth Building.
10:00 AM. The House Financial
Services Committee will hold a hearing to receive
testimony of the Alan Greenspan, Chairman of the
Federal Reserve Board of Governors. Location: Room 2128,
Rayburn Building.
6:00 - 8:00 PM. The FCBA will
host a Continuing Legal Education seminar titled Unlicensed
Operation Under FCC Rules. The price to attend is $60 for
FCBA members, $50 for government and law student members, and
$80 for non-members. Registrations and cancellations due by
12:00 NOON on Tuesday, February 26. To register, contact Wendy
Parish at wendy @fcba.org.
Location: Capital Hilton Hotel, 16th & K Streets, NW.
Extended deadline to submit reply comments to the Copyright Office in
response to its March 9, 2001, Notice
of Inquiry concerning the interpretation and application
of the copyright laws to certain kinds of digital
transmissions of prerecorded musical works in light of an
agreement between the RIAA,
the NMPA, and
The Harry Fox Agency (HFA). See, 17
U.S.C. § 115. See, notice
in Federal Register. |
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| Thursday, Feb 28 |
The House will meet at 10:00 AM. The House is scheduled
to continue its consideration of HR
1542, the Tauzin Dingell bill.
Day two of a two day conference titled "Combatting Cyber
Attacks on Your Corporate Data". See, conference information
page. Location: Omni Shoreham Hotel.
9:30 AM. The Senate
Commerce Committee will hold a hearing titled Protecting
Content in a Digital Age -- Promoting Broadband and the
Digital Television Transition. Sen. Ernest Hollings
(D-SC) will preside. Location: Room 253, Russell Building.
12:15 PM. The FCBA's
Transactional Practice Committee will host a brown bag lunch
on mass media transactions. RSVP to Sue Fischer at 202
776-2000. Location: Dow
Lohnes & Albertson, 1200 New Hampshire Ave., NW.
1:00 - 5:00 PM. The FCC's Wireless
Telecommunications Bureau will hold a public forum
addressing issues related to the acquisition and analysis of
data on the state of competition in the commercial mobile
radio services industry for the 7th Annual CMRS Competition
Report. Location: FCC, 445 12th Street, SW, Room TW-C305.
4:00 PM. Adam
Mossoff (Northwestern
Univ. School of Law) will give a lecture titled The
Relevance of Natural Rights in Intellectual Property Today.
For more information, contact Prof. Robert
Brauneis by e-mail
or phone at 202 994-6138. Location: George Washington Univ.
Law School, 2000 H Street, NW.
6:30 - 8:30 PM. FCC Commissioner Michael Copps
will speak at a FCBA
reception on "the value of mentoring in building a
career." Location: Kelley Drye & Warren, 1200 19th
Street, NW. |
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| Friday, March 1 |
The House will not be in session.
Deadline to submit public comments to the FTC
regarding the use of disgorgement as a remedy for competition
violations, including those involving the Hart Scott Rodino
Premerger Notification Act, FTC Act, and Clayton Act. See, FTC
release
and Federal Register notice.
Deadline to file comments with the FCC in response
to its notice of proposed rulemaking regarding the appropriate
regulatory requirements for incumbent local exchange carriers'
provision of broadband telecommunications services. The FCC
adopted this NPRM at its December 12 meeting. See, notice
in the Federal Register.
Deadline to submit reply comments to the FCC regarding Verizon's Section
271 application to provide in region interLATA services in
the state of Vermont. See, FCC
notice [PDF]. |
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