| New DOJ Investigation
Guidelines Address Data Mining and Internet Searches |
5/30. The Department of
Justice (DOJ) released new investigative guidelines to be
used by the Federal Bureau of
Investigation (FBI) in terrorist related, and other,
matters. These guidelines cover many topics, including
information systems, data mining, and Internet searching.
Attorney General John Ashcroft announced the guideline changes
on May 30. See, Ashcroft
statement. See also, DOJ memorandum
[PDF] titled "Attorney General's Guidelines: Detecting
and Preventing Terrorist Attacks", and DOJ memorandum
[PDF] titled "Shifting from Prosecution to Prevention:
Redesigning the Justice Department to Prevent Future Acts of
Terrorism".
He stated that these revised guidelines have four overriding
principles. First, "the war against terrorism is the
central mission and highest priority of the FBI". Second,
"terrorism prevention is the key objective under the
revised guidelines". Third, "unnecessary procedural
red tape must not interfere with the effective detection,
investigation, and prevention of terrorist activities".
Fourth, "the FBI must draw proactively on all lawful
sources of information to identify terrorist threats and
activities".
Ashcroft elaborated that "Under the current guidelines,
FBI investigators cannot surf the web the way you or I can.
Nor can they simply walk into a public event or a public place
to observe ongoing activities. They have no clear authority to
use commercial data services that any business in America can
use. These restrictions are a competitive advantage for
terrorists who skillfully utilize sophisticated techniques and
modern computer systems to compile information for targeting
and attacking innocent Americans."
He also stated that "The guidelines defining the general
rules for FBI investigations, for example, were first issued
over 20 years ago. They derive from a period in which Soviet
communism was the greatest threat to the United States, in
which the Internet did not exist, and in which concerns over
terrorist threats to the homeland related mainly to domestic
hate groups."
The DOJ also released the text of new guidelines. See, for
example, The
Attorney General's Guidelines on General Crimes, Racketeering
Enterprise and Terrorism Enterprise Investigations [PDF].
This document provides that "In order to carry out its
central mission of preventing the commission of terrorist acts
against the United States and its people, the FBI must
proactively draw on available source of information to
identify terrorist threats and activities."
The new guidelines continue that "The FBI is authorized
to operate and participate in identification, tracking, and
information systems for the purpose of identifying and
locating terrorists, excluding or removing from the United
States alien terrorists and alien supporters of terrorist
activity as authorized by law, assessing and responding to
terrorist risks and threats, or otherwise detecting,
prosecuting, or preventing terrorist activities. Systems
within the scope of this paragraph may draw on and retain
pertinent information from any source permitted by law,
including information derived from past or ongoing
investigative activities; other information collected or
provided by governmental entities, such as foreign
intelligence information and lookout list information;
publicly available information, whether obtained directly or
through services or resources (whether nonprofit or
commercial) that compile or analyze such information; and
information voluntarily provided by private entities."
(Parentheses in original.)
The new guidelines also state that the "The FBI is
authorized to carry out general topical research, including
conducting online searches and accessing online sites and
forums as part of such research on the same terms and
conditions as members of the public generally. ``General
topical research´´ under this paragraph means research
concerning subject areas that are relevant for the purpose of
facilitating or supporting the discharge of investigative
responsibilities. It does not include online searches for
information by individuals' names or other individual
identifiers, except where such searches are incidental to
topical research, such as searching to locate writings on a
topic by searching under the names of authors who write on the
topic, or searching by the name of a party to a case in
conducting legal research."
Finally, these guidelines state that "For the purposes of
detecting or preventing terrorism or other criminal
activities, the FBI is authorized to conduct online search
activity and to access online sites and forums on the same
terms and conditions as member of the public generally."
The DOJ also released new guidelines with the following
titles: FBI Undercover Operations
[PDF], Confidential Informants [PDF],
and Lawful,
Warrantless Monitoring of Verbal Communications [PDF].
Sen. Charles Grassley
(R-IA), a member of the Senate Judiciary
Committee, had this reaction: "Some of the current
restrictions on investigations don't make sense. So, as
Congress did with the Patriot Act last fall, it's logical to
make some changes and especially those changes that empower
field agents. That said, any time more power is given,
Congress needs to be all the more vigilant in exercising its
constitutional responsibility of oversight. Along with greater
authority there must be greater scrutiny. Congress for too
long has given the FBI too long a leash. The FBI should be
prepared for tough questions from Capitol Hill about its use
of all the new tools it's been given."
The Center for Democracy and
Technology (CDT) released its analysis
of the new guidelines. It stated that "The FBI is using
the terrorism crisis as a cover for a range of changes, some
of which have nothing to do with terrorism."
It also stated that "The online surfing provisions, for
example, relate not only to terrorism cases, but to all other
investigation -- drugs, white collar crime, public corruption,
and copyright infringement."
The CDT argued that "The expanded surveillance and use of
data mining could be written off as just a waste of money, but
for two paramount problems: the changes are likely to make the
FBI less efficient in preventing terrorism, by diverting
resources down rat-holes of fruitless investigations; and the
DOJ has proven its determination since September 11 to arrest
people based on innocent coincidences ..."
The CDT also stated that "The FBI was never prohibited
from surfing the Internet or using commercial data mining
services - the FBI has long been a major customer of many
private information systems. But in the past, the search had
to be related to some investigation. ... The new changes allow
the data mining technique ... as the basis for
generating the suspicion of criminal conduct in the first
place."
The ACLU condemned the new guidelines. See, release. |
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| Panel Debates ROW Obstacles
to Broadband Deployment |
5/30. The Congressional
Internet Caucus Advisory Committee hosted a panel
discussion titled "Speeding Broadband Deployment By
Balancing of Rights of Way Interests" on Capitol Hill.
The speakers were Martin Stern of the Telecommunications
Industry Rights of Way Working Group (I-ROW), Marilyn Praisner,
a member of the Montgomery
County Council, Robert Nelson, a Commissioner on the Michigan Public
Service Commission, and Sandy Wilson, VP of Public Policy
at Cox Enterprises.
Stern stated that some local government entities are
obstructing broadband deployment by delaying approval of
access to rights of way by service providers, by demanding
unreasonable fees, and by demanding concessions unrelated to
the right of way. He advocated federal action to limit local
authority, either through Congressional legislation, or a Federal Communications Commission
(FCC) proceeding.
In contrast, Praisner argued that local governments have a
legitimate role to play in the management of public rights of
way, and their authority should not be preempted or limited by
state or federal legislation or other proceedings.
Nelson discussed the recently enacted Michigan bill to
streamline the process for authorizing access to rights of
way. It is titled the "Metropolitan Extension
Telecommunications Rights of Way Oversight Act". See
also, Michigan Legislature's bill
summary [PDF].
He stated that the Michigan statute sets a uniform per linear
foot right of way fee that limits all local government
entities. The fee is constant regardless of how many lines the
provider has. Government entities must act within 45 days on
all applications.
Stern stated that "there are situations where government
entities go beyond management, and seek unrelated concessions,
particularly, given their leverage over providers." He
stated that local governments have leverage because time is
critical in deploying broadband networks, because "rights
of way and public lands access is an essential input to which
there is no substitute."
He continued that "what we have found is that a
sufficient number of these entities have really held up
deployment, or have tried to extract unreasonable fees, or
have tried to impose an additional level of regulation
unrelated to the user rights of way, that has actually had a
demonstrable impact on deployment."
Stern also addressed 47 U.S.C.
§ 253, which provides in part that "No State or
local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting
the ability of any entity to provide any interstate or
intrastate telecommunications service." However, it also
provides that "Nothing in this section affects the
authority of a State or local government to manage the public
rights-of-way or to require fair and reasonable compensation
from telecommunications providers ..."
Stern said that "it is difficult to get an injunction
under Section 253". He continued that there are
ambiguities in the statute that have been exploited by local
governments, such as what constitutes "fair and
reasonable", and whether broadband data networks are
covered. He suggested that either Congress amend the statute,
or that the FCC initiate a proceeding to amend its rules, or
to issue a guidance. He concluded that "it is an issue of
national scope that demands a national answer".
The luncheon was held in the Capitol Building. The House and
Senate are in recess. Many members of the audience were
Congressional staff. |
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| More News |
5/30. The European
Parliament voted to approve a directive
[PDF] concerning the processing of personal data and the
protection of privacy in the electronic communications sector.
See, EU
release.
5/30. The Securities and
Exchange Commission (SEC) announced that its web site now
provides free, real time access to its EDGAR database of
corporate filings. See, SEC release.
5/29. Quantum Corp and Imation announced that
"have settled all legal claims between the companies over
the qualification, production and sale of DLTtape media
products. As a result of the settlement, Imation has dismissed
its antitrust lawsuit against Quantum and Maxell, and Quantum
has dismissed its trade secrets lawsuit against Imation.
Quantum and Imation also have committed to completing
qualification of Imation as a manufacturer of DLTtape
media." See, Quantum
release and Imation
release. |
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| Friday, May 31 |
The House is in recess until Tuesday, June 4.
The Senate is in recess until Monday, June 3.
The Supreme Court is in recess until June 3.
8:30 AM - 4:00 PM. The National
Science Foundation's (NSF) Advisory Committee for Computer
and Information Science and Engineering will hold an open
meeting. For more information, contact Gwen Blount at 703
292-8900. See, notice
in Federal Register. Location: 4201 Wilson Blvd., Room 1235,
Arlington, VA.
9:30 AM - 12:30 PM. The FCC's Public
Safety National Coordination Committee will hold a General
Membership meeting. Location: FCC, Commission Meeting Room,
445 12th St., SW. |
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| Monday, June 3 |
The Senate will meet at 1:00 PM.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Rambus
v. infineon Technologies, No. 01-1449, an appeal from the
U.S. District Court (EDVa) in a patent infringement case
involving semiconductor memory devices. At issue is the
existence and scope of the patent disclosure obligations that
arise as a result of participation in a standard setting body.
This is D.C. No. 3:00CV524; the District Court opinion of
August 9, 2001 is at 2001 WL 913972. Location: LaFayette
Square, at 717 Madison Place, NW.
10:00 AM. USPTO Director James Rogan
will hold a press conference call to announce and discuss a
USPTO restructuring proposal. For more information, contact
Brigid Quinn at 703 305-8341or brigid.quinn @uspto.gov.
2:00 - 3:30 PM. The FTC's Bureau of
Competition will hold a public workshop on merger
investigation best practices. This is the first workshop of a
seven part, five city, series. This event will focus on
electronic records. See, FTC release.
Location: FTC, Room 332, 600 Pennsylvania Avenue NW.
EXTENDED TO JULY 1. Deadline
to submit reply comments to the FCC in response
to its Notice of Proposed Rulemaking titled "In the
Matter of Appropriate Framework for Broadband Access to the
Internet over Wireline Facilities". This is CC
Docket No. 02-33. See, May 29 notice
[PDF] extending deadline from June 3 to July 1. See also, Order
[PDF] extending deadline from May 14 to June 3, and original
notice in Federal Register. |
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| Tuesday, June 4 |
The House will meet at 2:00 PM for legislative business. No
recorded votes are expected before 6:00 PM. The House will
consider a number of measures under suspension of the rules.
POSTPONED TO JUNE 5. 10:00
AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "The FCC's
UWB Proceeding: An Examination of the Government's Spectrum
Management Process." Webcast. Press contact: Ken Johnson
or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn
Building.
10:00 AM. The Senate
Health, Education, Labor, and Pensions Committee will hold
a hearing on legislation to authorize funding for the National Science Foundation.
Location: Room 430, Dirksen Building.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Insight
Development v. Hewlitt Packard, No. 01-1459, an appeal
from the U.S. District
Court (NDCal) in a patent infringement case involving web
imaging technology. Location: LaFayette Square, at 717 Madison
Place, NW.
2:00 - 4:00 PM. The FCC's Advisory
Committee for the 2003 World Radiocommunication Conference (WRC-03 Advisory Committee)
will meet. See, notice
and agenda [PDF]. Location: FCC, Commission Meeting Room,
Room TW-C305, 445 12th Street, SW.
4:00 PM. The House
Judiciary Committee's Subcommittee on Crime will hold a
hearing and a mark up session for HR 4598,
the Homeland Security Information Sharing Act, sponsored by Rep. Saxby Chambliss
(R-GA). Audio webcast. Location: Room 2141, Rayburn Building. |
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| Wednesday, June 5 |
8:30 AM - 5:00 PM. Day one of a three day public workshop
hosted by the FTC on proposed
amendments to the Telemarketing Sales Rule (TSR), including
the potential development and implementation of a national do
not call list. See, FTC release
and agenda.
Location: Marriott Wardman Park Hotel, 2600 Woodley Road, NW.
9:30 AM. The National School
Boards Foundation will host a breakfast (9:00 AM) and
media briefing on it release of a national survey titled
"Are We There Yet? Research and Guidelines on
Schools Use of the Internet". For more information,
contact Renee Hockaday at 703 838-6717 or rhockaday @nsba.org.
Location: Corporation for Public Broadcasting, 2nd Floor, 401
9th St., NW.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "The FCC's
UWB Proceeding: An Examination of the Government's Spectrum
Management Process." Webcast. Press contact: Ken Johnson
or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn
Building.
2:00 PM. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Intellectual Property will hold a hearing titled "DRM:
The Consumer Benefits of Today's Digital Rights Management
Solutions." Audio webcast. Location: Room 2141, Rayburn
Building.
EXTENDED TO JULY 17. Deadline
to submit reply comments to the FCC in response
to its notice of proposed rulemaking regarding its unbundling
analysis under § 251
of the Communications Act and the identification of specific
unbundling requirements for incumbent local exchange carriers.
See, May 29 order
[PDF] extending deadline from June 5 to July 17. See also, notice
in the Federal Register. This is CC Docket No. 01-338. |
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| Thursday, June 6 |
8:30 AM - 5:00 PM. Day two of a three day public workshop
hosted by the FTC on proposed
amendments to the Telemarketing Sales Rule, including the
potential development and implementation of a national do not
call list. See, FTC release
and agenda.
10:00 AM. The House
Judiciary Committee will meet to mark up several bills,
including HR 3215,
the Combatting Illegal Gambling Reform and Modernization Act (Goodlatte
Internet gambling bill), and HR 4623,
the Child Obscenity and Pormography Prevention Act of 2002.
Audio Webcast. Press contact: Jeff Lungren or Terry Shawn at
202 225-2492. Location: Room 2141, Rayburn Building.
TIME? The Senate
Commerce Committee's Subcommittee on Communications will
hold a hearing titled Universal Service Fund. Press
contact: Andy Davis 224-6654. Location: Room 253, Russell
Senate Office Building.
8:00 AM - 5:00 PM. The Institute
for International Research (IIR) and ComCare will host a
conference titled e-SAFETY: Delivering Communications &
Information Technology Solutions for 21st Century Public
Safety. Sen. Conrad
Burns (R-MT) will give a keynote address at 8:30 AM. The
price to attend is $695. See, IIR notice.
Location: Ronald Reagan Building, 1300 Pennsylvania Ave., NW.
Deadline to submit comments to the SEC regarding
its proposed rule amending the Investment Advisers Act of 1940
to exempt certain investment advisers that provide advisory
services through the Internet from the prohibition on SEC
registration set out in § 203A of the Act. The
amendments would permit these advisers to register with the
SEC instead of with state securities authorities. See, notice
in the Federal Register. |
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