| DoubleClick Settles Class
Action Suits |
3/29. Double
Click and plaintiffs in various
lawsuits against Double Click announced that they
have reached an agreement to settle all the federal and state
class action privacy litigation against Double Click. See, Double
Click release.
Also, the U.S.
District Court (SDNY) issued a notice of
settlement which summarizes the requirements imposed upon
Double Click by the agreement. This notice states that "DoubleClick's
privacy policy will include easy to read explanations of
specified aspects of DoubleClick's online ad serving services.
DoubleClick will institute internal polices to ensure the
protection and routine purging of data collected online.
DoubleClick will conduct a public information banner ad
campaign, consisting of 300 million banner advertisements, to
invite consumers to learn more about how to protect their
privacy on the Internet. New DoubleClick ad serving cookies
served to Internet users' browsers will expire no more than
five (5) years after the date on which each cookie is served.
An Internet user's online data collected by DoubleClick under
one version of its privacy policy will not be used in a manner
materially inconsistent with that privacy policy, unless
DoubleClick has that Internet user's permission to do
otherwise. DoubleClick will take steps to require that a
successor in interest does not use Internet users' online data
collected by DoubleClick in a manner inconsistent with the
privacy policy under which that data was collected. If
DoubleClick collects personally identifiable information, such
information will only be merged with previously collected
clickstream from across Web sites under specified conditions,
including clear and conspicuous notice and opt-in by the
Internet user. A national independent accounting firm will
conduct two annual reviews of DoubleClick's compliance with
specified settlement."
The Electronic Privacy
Information Center (EPIC) called the settlement "anti
consumer". For example, it wrote that "The agreement
will, among other things, require future DoubleClick cookies
to expire within 5 years, two years after the typical user has
changed computers." |
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| GAO Report Details
Conversions from Political Appointee to Civil Service |
3/28. The General Accounting
Office (GAO) released a report [PDF]
titled "Personnel Practices: Career and Other
Appointments of Former Political Appointees, October 1998 -
April 2001".
The GAO studied 45 federal agencies, and found that "111
former political appointees and congressional employees
converted to career and other positions from October 1, 1998,
through April 30, 2001. According to the agencies, 100 of
these employees converted from political appointments and 11
employees converted from congressional staff positions."
The report also found that 24 of these conversions took place
at the Justice Department.
The report focused on whether "the individuals received
political favoritism or an unfair advantage in the merit
system selection process", and whether the merit system
has been compromised.
Political appointees may be terminated at any time, and
generally leave their positions at the end of an
administration. Civil service employees cannot be terminated.
Outgoing administrations convert some political appointees
into permanent civil service employees to influence policy
after the end of the administration, and to burrow in
officials with policy objectives contrary to those of the
incoming administration.
The report, which focuses on conversions late in the Clinton
administration, was requested by three Republicans: Rep. James
Sensenbrenner (R-WI), Chairman of the House Judiciary
Committee, Sen.
Christopher Bond (R-MO), the ranking member of the Senate
Small Business Committee, and Rep. Dave Weldon
(R-FL), Chairman of the House Subcommittee on Civil Service
and Agency Organization. |
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| People and Appointments |
3/29. President Bush appointed Michael Toner to be a
member of the Federal Election
Commission (FEC). This is a recess appointment. Toner is
Chief Counsel to the Republican
National Committee (RNC). He was previously General
Counsel to the Bush Cheney Transition and Bush Cheney 2000.
From 1997 to 1999, he was Deputy Counsel to the RNC. In 1996,
he was Counsel to the Dole Kemp campaign. He was an associate
with the Washington DC law firm of Wiley Rein & Fielding (WRF)
from 1992 to 1996. WRF is representing Sen. Mitch McConnell
(R-KY) in his lawsuit challenging the constitutionality of the
campaign finance bill signed by President Bush last week. See,
White
House release.
3/27. Computer
Associates (CA) elected Walter Schuetze, a former
Chief Accountant to the Securities
and Exchange Commission (SEC), and Jay
Lorsch, a professor at the Harvard Business School, to its
Board of Directors. Linus Cheung, Deputy Chairman of Pacific Century CyberWorks,
resigned from the Board. See, CA
release.
3/29. Tracy
Edmonson was named chair of the San Francisco
Corporate Department of the law firm of Latham & Watkins. She
succeeds Scott
Haber, who will continue as a member of the firm's
Executive Committee. See, LW
release.
3/19. John Bruckner joined the Austin office of the law
firm of Gray Cary. He
was previously counsel in the Austin office of Fulbright & Jaworski.
He is a patent attorney who focuses on software, electronics
and materials science industry. See, Gray
Cary release.
3/19. Neal
Dittersdorf joined the Washington DC office of the Venable law firm as counsel
in the Business Transactions and Corporate Technology
practices. He focuses on information technology, outsourcing,
software, e-commerce and other technology matters. See. Venable
release.
3/19. James Miller joined the Washington DC office of
the the law firm of Howrey Simon law
firm as head of its Capitol Consulting group. He was Chairman
of the Federal Trade Commission
(FTC) during the first Reagan administration, and Director of
the Office of
Management and Budget (OMB) during the second Reagan
administration. |
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| Rep. Schiff Plans to
Introduce Copy Protection Bill in House |
3/27. Rep. Adam
Schiff (D-CA) wrote a letter
to members of the House of Representatives in which he stated
that "I plan to introduce legislation that would
safeguard digital content by spurring the rapid development of
copyright protection technology. Similar legislation, S.
2048, has been introduced in the Senate by Senators
Hollings, Stevens, Inouye, Breaux, Nelson and Feinstein. I
believe this is a necessary step and I encourage you to join
me in this effort."
Rep. Schiff stated that this bill "would encourage demand
for broadband Internet service and protect creative enterprise
from the threat of digital piracy." He elaborated that
demand for broadband Internet access is "severely
lacking. This is simply because consumers can't get what they
want -- high quality digital content like movies, music, and
video games."
"Our nation's creative enterprises have been hesitant to
offer their products over the Internet out of fear of piracy
-- intellectual theft," wrote Rep. Schiff. |
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| 7th Circuit Rules on FCC
Ban on Sale of Phone Numbers |
3/28. The U.S.
Court of Appeals (7thCir) issued its opinion
in Jahn
v. 800-FLOWERS.com, a case regarding the FCC's
ban on the sale of telephone numbers. The Appeals Court held
that this FCC rule does not apply to transactions that
occurred prior to its promulgation in 1997.
Background. Curtis Jahn and others formed a corporation
named 800-FLOWER, Inc. to sell flowers over the phone. It used
the phone number 800 356-9377, which had been assigned by
AT&T. Jahn took both an equity stake in the corporation,
and a royalty interest in revenues derived from phone sales.
Subsequent corporate reorganizations transferred the firm's
assets to a Texas corporation, and later to a New York
corporation which is a defendant in the present action. Jahn
gave up his equity interest, but retained his royalty
interest. (The controlling 1986 agreement contained a choice
of law clause designating Texas law.) The company now sells by
phone and through a web
site.
The Regulation. 47
C.F.R. § 52.107(a), promulgated in 1997 by the Federal Communications Commission
(FCC), provides, in part, that "... hoarding is the
acquisition by a toll free subscriber from a Responsible
Organization of more toll free numbers than the toll free
subscriber intends to use for the provision of toll free
service. The definition of hoarding also includes number
brokering, which is the selling of a toll free number by a
private entity for a fee. (1) Toll free subscribers shall not
hoard toll free numbers. (2) No person or entity shall acquire
a toll free number for the purpose of selling the toll free
number to another entity or to a person for a fee. ..."
Prior to 1997, subscribers did not own phone numbers assigned
to them. Carriers could change numbers without liability to
their subscribers.
District Court. Jahn filed a complaint in U.S. District Court (WDWisc)
against 1-800- FLOWERS.com, Inc. and others alleging failure
to pay his full royalty under the 1986 agreement.
(Jurisdiction in the case was based upon diversity of
citizenship. The District Court applied Texas law.) Defendants
alleged that such payment is illegal under the FCC rule. The
District Court held that the royalty interest reflects at
least in part the value of the phone number, and constitutes a
proscribed sale under the FCC rule. The District Court did not
address whether the FCC rule applies retroactively. However,
it ruled that the ongoing payment is itself illegal, and
defendants are therefor excused from further payment because
Texas law treats illegality as a form of impossibility that
constitutes a defense to non-performance. Jahn appealed.
Appeals Court. The Appeals Court reversed. Jahn is not
barred from recovering royalties by this FCC regulation.
However, the opinion is narrowly based on retroactivity. The
Appeals Court noted at the outset that "The regulation
shows that phone numbers cannot be treated like Internet
domain addresses, which regularly are sold outright for a fee
..."
First, the Court held that "Federal regulations do not,
indeed cannot, apply retroactively unless Congress has
authorized that step explicitly." Reasoning by analogy,
the Court wrote that "broadcast licenses may be sold
despite the mantra that the airwaves are a public resource. If
broadcast licenses may be sold even though they are not
``property´´ of the licensees, then telephone numbers could
be sold until 1997 even though they, too, are not the
subscribers' property. Jahn could not have compelled at&t
to transfer the number to 800-Flowers (Wisconsin), but it
proved willing to do so, and no rule of federal law in force
at the time prevented the firm from compensating Jahn for his
assistance in securing this transfer."
Second, the Court held that royalty payments made pursuant to
the pre 1997 transaction are likewise unaffected by the rule.
It wrote that "the regulation concerns future sales, not
compensation for older and thus lawful sales."
Frank
Easterbrook, a leader of the "Chicago school"
free market approach to judicial interpretation, wrote the
opinion on this market banning regulation. He added that
"Moving assets to higher and better uses is an important
goal of any economic system." He may be under
consideration by President Bush for appointment to the Supreme
Court. |
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| About Tech Law Journal |
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Contact: 202-364-8882; E-mail.
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Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Monday, April 1 |
The House and Senate are both in recess for the Spring
District Work Period. Both bodies will return on Monday, April
8.
The Supreme Court of the U.S. is on recess until Monday, April
15.
The USTR will
hold a hearing regarding negotiation of a U.S. Singapore
Free Trade Agreement. The USTR stated in its notice
in the Federal Register that the agreement is "expected
to include provisions on trade in services, investment, trade
related aspects of intellectual property rights, competition,
government procurement, electronic commerce, trade related
environmental and labor matters, and other issues."
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Philip
Jackson v. Casio PhoneMate, No. 01-1456, a patent
infringement case involving telephone answering machines. The
U.S. District Court (NDIll) granted summary judgment to Casio.
Location: Courtroom 201, LaFayette Square, 717 Madison Place,
NW.
EXTENDED TO APRIL 22. Deadline
to file reply comments with the FCC in response
to its notice of proposed rulemaking (NPRM) regarding the
appropriate regulatory requirements for incumbent local
exchange carriers' (ILECs') provision of broadband
telecommunications services. The FCC adopted this NPRM at its
December 12 meeting. This is CC Docket No. 01-337. See, notice
in the Federal Register. See, Order
[PDF] extending deadline to April 22.
Deadline to submit written requests to participate as a
panelist in the workshop to be hosted by the FTC
on May 16 and 17 to explore issues relating to the security of
consumers' computers and the personal information stored in
them or in company databases. See, notice
in Federal Register. |
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| Tuesday, April 2 |
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Netscape
Communications v. Allen Konrad, No. 01-1455. Location:
Courtroom 201, LaFayette Square, 717 Madison Place, NW.
1:00 PM ET. The FTC will hold a press
conference to announce an international law enforcement
initiative targeting deceptive spam and Internet fraud. See, FTC
release. Location: the press conference will be held at
the FTC office at 915 Second Ave., Suite 2896, Seattle,
Washington. There will be a video link at the FTC
headquarters, 600 Pennsylvania Ave., NW, Room 481.
2:00 PM. The Institute
for Health Freedom will hold a press conference regarding medical
privacy. For more information, contact Sue Blevins at 202
429-6610. Location: Lisagor Room, National Press Club, 529 14th
St. NW, 13th Floor. |
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| Wednesday, April 3 |
10:00 AM. A group of trade associations will hold a press
conference to announce the formation of a group named the High
Tech Broadband Coalition. The speakers will be Robert
Holleyman (BSA), Gary Shapiro (CEA), Jerry
Jasinowski (NAM),
George Scalise (SIA), and
Matthew Flanigan (TIA). For
more information, contact Jeff Joseph (CEA) at 703 907-7664 or
jjoseph @ce.org. Location:
Lisagor Room, National Press
Club, 529 14th St. NW, 13th Floor.
12:15 PM. The FCBA's
International Practice Committee will host a brown bag lunch.
The speakers will be Tom Tycz (Chief of the FCC's
International Bureau's Satellite Division), James Ball
(Chief of the FCC's International Bureau's Policy Division),
and Kathryn O'Brien (Chief of the FCC's International
Bureau's Strategic Analysis and Negotiations Division). RSVP
to Laurie Sherman at 202 223-7365 or Patricia Paoletta at 202
719-7532. Location: FCC, 445 12th Street, SW, Conference Room
6-B516. |
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| Thursday, April 4 |
8:30 AM - 5:30 PM. Day one of a two day event hosted by the NTIA
titled "Spectrum Summit". The summit will address
spectrum allocation and efficiency, the spectrum requirements
of new technologies, and regulatory processes. See, NTIA
notice and notice
in Federal Register. Location: auditorium, Department of
Commerce, 1401 Constitution Ave., NW.
2:00 - 4:00 PM. There will be a meeting of the FCC's Advisory
Committee for the 2003 World Radiocommunication Conference.
See, FCC
notice [PDF], and notice
in Federal Register. Location: FCC, Commission Meeting Room,
Room TW-C305, 445 12th Street, SW.
4:00 PM. Dan
Burk (Professor, Univ. of Minnesota Law School) will give
a lecture titled "Anti Circumvention Misuse". He
will review the history of the equitable misuse doctrine in
the context of patents and copyrights, and argue that the DMCA
anti circumvention right is a new form of intellectual
property that should be subject to the equitable misuse
doctrine. For more information, contact Prof. Robert Brauneis
at rbraun
@main.nlc.gwu.edu or (202) 994-6138. Location: The George
Washington Univ. Law School 720 20th Street, NW. |
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| Friday, April 5 |
8:30 AM - 4:15 PM. Day two of a two day event hosted by the NTIA
titled "Spectrum Summit". The summit will address
spectrum allocation and efficiency, the spectrum requirements
of new technologies, and regulatory processes. See, NTIA
notice and notice
in Federal Register. Location: Ronald Reagan International
Trade Center, 1300 Pennsylvania Ave., NW.
9:00 AM. The FCC's
electronic filing systems will be shut down for maintenance
purposes. This shut down will last through 1:00 PM on April 7.
See, FCC
notice.
9:30 AM. The U.S. Court of Appeals
(DCCir) will hear oral argument in Global Naps Inc v.
FCC, No. 01-1192. Judges Edwards, Roger and Tatel will
preside. Location: 333 Constitution Ave. NW.
Extended deadline to submit comments to the Copyright Office in
response to its Notice of Proposed Rulemaking on "the
requirements for giving copyright owners reasonable notice of
the use of their works for sound recordings under statutory
license and for how records of such use shall be kept and made
available to copyright owners." See, original notice
in Federal Register, and extension notice
in Federal Register. |
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