| Select Committee to Mark Up
Homeland Security Bill on Friday |
7/18. Rep. Dick Armey
(R-TX), Chairman of the House
Select Committee on Homeland Security, released a brief summary
of a revised version of HR
5005, the Homeland Security Act of 2002, that he intends
to offer at the Select Committee's mark up of the bill on July
19. This is known as the "Chairman's mark".
The Chairman's mark makes many technology related changes to
the President's original proposal. It would keep the National Institute of Standards
and Technology's (NIST) Computer
Security Division (CSD) at the NIST, create the new
position of Undersecretary for Science and Technology at the
Department of Homeland Security (DHS), create the new position
of Privacy Officer at the DHS, provide for a more limited
Freedom of Information Act (FOIA) exemption for certain
information shared with the DHS than the original bill, and
provide that the federal government will not have the
authority to nationalize drivers' licenses and other ID cards.
The Select Committee is scheduled to mark up HR 5005 on
Friday, July 19, at 9:30 AM. The full House will likely pass
the bill next week. The Senate has yet to take up the bill. |
|
|
| Armey Bill Would Keep
Computer Security Division at NIST |
7/18. Rep. Dick Armey
(R-TX), Chairman of the House
Select Committee on Homeland Security, announced that his
proposed amendments to HR 5005,
the Homeland Security Act of 2002, would keep the National Institute of Standards
and Technology's (NIST) Computer
Security Division (CSD) at the NIST, rather than move it
to the new Department of Homeland Security (DHS), as proposed
by the President.
The House Science
Committee reported its version of the bill last week. It
deleted the language from the original bill that would move
the CSD to the DHS. Rep.
Sherwood Boehlert (R-NY), Chairman of the House Science
Committee said in a release
that "I'm extremely pleased that Chairman Armey's mark is
in line with the Science Committee's two major
recommendations: the creation of an Undersecretary for Science
and Technology and the removal of the proposed transfer of
NIST's Computer Security Division".
Ken Wasch, President of the Software
& Information Industry Association (SIIA), stated in a
release
that "Had the transfer occurred, as originally proposed
in H.R. 5005, the move would have been counterproductive to
the Administration's goals by reducing confidence American
technology products both domestically and abroad."
Groups that represent technology companies, and technophiles
in the House, had argued against moving the CSD to the DHS. |
|
|
| House Technophiles Oppose
Moving Computer Security Division to DHS |
7/17. Rep. Bob
Goodlatte (R-VA), Rep.
Rick Boucher (D-VA), and other Members of Congress, wrote
a letter
to Rep. Dick Armey
(R-TX), the Chairman of the House
Select Committee on Homeland Security, asking that the National Institute of Standards
and Technology's (NIST) Computer
Security Division (CSD) not be transferred to the new
Department of Homeland Security.
The letter states that "While we support the
Administration's efforts to make our country more secure in
the face of terrorist threats, we are concerned that this
provision would unravel years of collaboration between the CSD
and the private sector to enhance the level of confidence in
computer security practices. We are concerned that this
reduced collaboration would be counterproductive to the
Administration's goals by reducing confidence in
American made IT systems thereby making our critical
infrastructure more vulnerable to terrorist attack."
The letter continues that "The credibility and success of
the NIST's CSD depends on effective independence from and
appropriate collaboration with law enforcement and national
security agencies in the U.S. and abroad. We believe that this
independence could not be maintained in the new Department of
Homeland Security."
It adds that even with the CSD at the NIST, there has been
"inappropriate influence of law enforcement and national
security in the development of standards".
The letter cites as an example the recent battles over
encryption. It states that "the CSD's lack of
responsiveness to the IT community led to a proposed
encryption standard that was overbroad and unduly burdensome
to American companies and completely unworkable. There is a
strong national interest in ensuring that strong encryption
software is available to protect our critical infrastructure
from attack. The widespread use of encryption promotes our
national security and prevents crime by ensuring the security,
confidentiality and authenticity of electronic networks,
information and users."
The letter adds that "Moreover, we are concerned about
provisions that would unnecessarily give the new Department
authority to impose technical measures, duplicative testing
requirements and unproductive certification
requirements."
The letter was signed by Representives Bob Goodlatte (R-VA),
Rick Boucher (D-VA), Sherwood Boehlert (R-NY), Howard Coble
(R-NC), John Conyers (D-MI), Chris Cox (R-CA), Tom Davis
(R-VA), Vernon Ehlers (R-MI), Anna Eshoo (D-CA), Bob Etheridge
(D-NC), Barney Frank (D-MA), Bart Gordon (D-TN), Gene Green
(D-TX), Ralph Hall (D-TX), Mike Honda (D-CA), Steve Horn
(R-CA), Sheila Lee (D-TX), Zoe Lofgren (D-CA), Ed Markey
(D-MA), Jim Moran (D-VA), Connie Morella (R-MD), Ileana Ros
Lehtinen (R-FL), James Sensenbrenner (R-WI), Pete Sessions
(R-TX), Adam Smith (D-WA), Lamar Smith (R-TX), Billy Tauzin
(R-LA), Mark Udall (D-CO), Gerry Weller (R-IL), and others
whose signatures are illegible. |
|
|
| Armey Bill Includes Limited
FOIA Exemption |
7/18. Rep. Dick Armey
(R-TX), the Chairman of the House
Select Committee on Homeland Security, released a short summary
of his proposed amendments to HR 5005,
the Homeland Security Act of 2002.
He wrote that "Our Founders intended that the operations
of our government be open. The Chairman's mark retains this
principle, while ensuring that openness does not decrease our
security." He also wrote that "FOIA Protections
Limited to the Department Only" and "When
individuals and businesses provide new information to the
Department so that the Secretary can assess vulnerabilities,
that information will be protected (not subject to FOIA). This
will not erode the oversight protections provided by FOIA in
any other government departments."
HR 5005, as introduced, provides, at Section 204, that
"Information provided voluntarily by non-Federal entities
or individuals that relates to infrastructure vulnerabilities
or other vulnerabilities to terrorism and is or has been in
the possession of the Department shall not be subject to
section 552 of title 5, United States Code."
The House Government
Reform Committee reported its version of the bill on July
11 with a new Section
214 that provides detailed language regarding the FOIA
exemption. |
|
|
| SEC Official Addresses
Accounting, Governance, and Reporting |
7/11. Alan Beller, Director of the Securities and Exchange Commission's
(SEC) Division
of Corporation Finance, gave a speech
to the American Society of
Corporate Secretaries in Toronto, Ontario.
He reviewed recent accounting scandals involving Enron,
WorldCom and other companies. He then addressed increased
accountability for corporate CEOs and CFOs, including
certification of annual and quarterly reports, corporate
governance issues, and expanding the reporting requirements on
Form 8-K.
With respect to filing requirements, Beller stated that
"In this era of investor access to sophisticated trading
and information technology and instant communications,
investors demand and require more current information
regarding the most important events about a company. Today we
are facing an environment where preventing unfair
informational advantage, which has historically been the
objective of many of the Commission's disclosure requirements,
is not enough. We must promote affirmative current disclosure
to enable investors to make the best capital allocation and
investment decisions." |
|
|
|
| Senate Judiciary Committee
Approves Anti Counterfeiting Bill |
7/18. The Senate
Judiciary Committee amended and approved S 2395,
the Anticounterfeiting Amendments of 2002. The Committee
adopted an amendment
in the nature of a substitute. The bill, sponsored by Sen. Joe Biden (D-DE),
would make it easier for law enforcement agencies, and
copyright holders, to shut down software, CD and DVD
counterfeiters, by revising existing law regarding labels,
authentication features, and packaging.
S 2395 amends 18
U.S.C. § 2318, pertaining to trafficking in counterfeit
labels, illicit authentication features, and packaging for
copyrighted computer programs, CDs and DVDs. The bill does not
affect the underlying interests of copyright holders under
Title 17. Rather, it bolsters the provisions of Title 18, the
criminal code, for preventing the use of certain tools used by
pirates, including counterfeit labels and illicit
authentication features. In addition, the bill creates a new
private right of action.
Current Law. The current statute reads "Whoever
... knowingly traffics in a counterfeit label affixed or
designed to be affixed to a phonorecord, or a copy of a
computer program or documentation or packaging for a computer
program, or a copy of a motion picture or other audiovisual
work, and whoever, in any of the circumstances described in
subsection (c) of this section, knowingly traffics in
counterfeit documentation or packaging for a computer program,
shall be fined under this title or imprisoned for not more
than five years, or both."
The statute currently does not address "authentication
features". The current statute's prohibition of
counterfeit documentation or packaging applies to computer
programs, but not records and movies. And, the current statute
provides for no private right of action.
S 2395. The Biden bill provides that "Whoever ...
knowingly traffics in (1) a counterfeit label affixed to ...
(2) an illicit authentication feature affixed to or embedded
in, or designed to be affixed to or embedded in" a
phonorecord, copy of a computer program, copy of a movie, or
copy of documentation or packaging shall be fined or
imprisoned for up to five years, or both. The language
regarding illicit authentication features is new.
It also provides for fine or imprisonment of "Whoever ...
knowingly traffics in ...counterfeit documentation or
packaging". This is no longer limited to computer
programs.
Authentication Features. The bill defines
"authentication feature" as "any hologram,
watermark, certification, symbol, code, image, sequence of
numbers or letters, or other feature that either individually
or in combination with another feature is used by the
respective copyright owner to verify that a phonorecord, a
copy of a computer program, a copy of a motion picture or
other audiovisual work, or documentation or packaging is not
counterfeit or otherwise infringing of any copyright".
Illicit Authentication Features. The bill further
elaborates on the meaning of "illicit authentication
feature". It includes an authentication feature that is
"is genuine in origin, but, without the authorization of
the respective copyright owner, has been tampered with or
altered for the purpose of inducing a third party to reproduce
or accept distribution of" a record, computer program,
movie, or documentation or packaging.
It also includes an authentication feature that "is
genuine, but has been distributed, or is intended for
distribution, without the authorization of the respective
copyright owner and not in connection with the lawfully made
copy or phonorecord to which such authentication feature was
intended to be affixed or embedded by the respective copyright
owner". Finally, it includes an authentication feature
that "appears to be genuine, but is not".
Private Right of Action. The bill also adds a new
subsection providing a civil cause of action in federal court
by any copyright owner who is injured by, or threatened with
injury by, violation of § 2318. This new subsection
provides for both injuctive relief, impoundment, and either
statutory or actual damages.
DMCA Anti Circumvention Rights Unaffected. The bill
also provides that "Nothing in this section shall
enlarge, diminish, or otherwise affect liability under section
1201
or 1202
of title 17". |
|
|
| House CIIP Subcommittee
Holds Hearing on USPTO |
7/18. The House
Judiciary Committee's Subcommittee on Courts, the
Internet, and Intellectual Property held an oversight hearing
titled "The U.S. Patent and Trademark Office: Fee
Schedule Adjustment and Agency Reform".
Rep. Howard Coble
(R-NC), the Chairman of the Subcommittee, said in his prepared
statement the "We need to pursue strategies that will
place the agency in the best possible position to maximize its
administrative efficiencies, which ultimately translates into
enhancing patent and trademark quality first, and reducing
pendency and backlogs second. Only then can we play a stronger
hand when requesting more funds on behalf of PTO."
James Rogan, Director of the U.S.
Patent and Trademark Office (USPTO), reviewed the USPTO's
21st Century Strategic Plan in his prepared
testimony.
Michael Kirk, Executive Director of the American Intellectual Property
Law Association (AIPLA), stated in his prepared
testimony that the AIPLA opposes the diversion of USPTO
fees to fund other government programs, and opposes the
USPTO's fee bill. Kathryn Park, EVP of the International Trademark
Association (INTA), stated in her prepared
testimony that the INTA opposes proposed trademark fee
increases. See also, prepared
testimony of Charles Baker of the ABA. |
|
|
| Appeals Court Rules for
Cellular Company in Antenna Tower Case |
7/18. The U.S.
Court of Appeals (1stCir) issued its opinion
in Omnipoint
Communications v. Plainville, a case regarding
a local zoning board's refusal to permit construction of a
cellular antenna tower. The Appeals Court affirmed the
District Court's decision that Plainville's refusal violated
the Communications Act.
Plainville is a suburb of Boston. Omnipoint Communications
(now VoiceStream) is a provider of wireless telephone
services. It sought permission from Plainville to construct an
antenna tower to close a gap in its coverage. Plainville
denied zoning permits and variances to Omnipoint.
OmniPoint filed a complaint in U.S. District Court (DMass)
against the Plainville Zoning Board of Appeals, and its
members, alleging violation of 47 U.S.C.
§ 332(c)(7)(B)(v), and 42 U.S.C. § 1983. The District
Court ruled for Omnipoint. Plainville appealed. The Appeals
Court ruled that Plainville violated the Communications Act by
prohibiting the provision of wireless services. |
|
|
| People and Appointments |
7/18. Robert Pittman resigned as Chief Operating
Officer of AOL Time Warner. The company announced in a release
that "Don Logan, formerly Chairman and Chief
Executive Officer of Time Inc., becomes Chairman of the new
Media & Communications Group, comprising America Online,
Time Inc. and Time Warner Cable, as well as the AOL Time
Warner Book Group and Interactive Video unit. Jeff Bewkes,
formerly Chairman and CEO of HBO, becomes Chairman of the new
Entertainment & Networks Group, comprising HBO, New Line
Cinema, The WB, Turner Networks, Warner Bros. and Warner
Music." Richard Parsons remains CEO.
7/18. The Senate
Banking Committee held a hearing on the nominations of Paul
Atkins and Harvey Goldschmid to be Commissioners of
the Securities and Exchange
Commission (SEC).
7/18. The Senate
Commerce Committee held a hearing on the nominations of Kathie
Olsen and Richard Russell to be Associate Directors
of the Office of Science and
Technology Policy. |
|
|
|
| Friday, July 19 |
The House will meet at 9:00 AM for legislative business. No
votes expected after 6:00 PM.
9:30 AM. The House Select
Committee on Homeland Security will meet to mark up HR
5005, the Homeland Security Act of 2002. Webcast.
Location: Room 210, Cannon Building.
11:00 - 11:30 AM. USPTO
Director James
Rogan will hold an online press conference "to
discuss how America’s innovators will be assured high
quality patents within an examination period of 18 months and
trademarks within 12 months". See, USPTO
notice.
12:30 PM. SEC Chairman Harvey
Pitt will give a luncheon speech. Location: Ballroom, National Press Club, 529 14th
St. NW, 13th Floor.
CONTINUED FROM JULY 18.
5:00 PM. Hearing before the U.S. District Court (DC)
in EPIC v. Department of Defense, a Freedom
of Information Act case. The Electronic Privacy Information
Center (EPIC) seeks records from the Defense Advanced Research
Projects Agency (DARPA) regarding its Information Awareness Office
(IAO). The IAO web site states that its mission is to
"imagine, develop, apply, integrate, demonstrate and
transition information technologies, components and prototype,
closed loop, information systems that will counter asymmetric
threats by achieving total information awareness useful for
preemption; national security warning; and national security
decision making." This hearing concerns whether the DOD
can charge the EPIC fees. This is Case Number 02-1233. Judge
Bates is presiding. Location: Courtroom 21, 4th Floor, 333
Constitution Ave., NW.
Deadline to submit applications to the Department of Education for Community
Technology Centers Program grants for Fiscal Year 2002 to
create or expand community technology centers that will
provide disadvantaged residents of economically distressed
urban and rural communities with access to information
technology and related training. See, notice
in the Federal Register.
Deadline to submit comments to the State Department regarding
the effects of the privatization of Inmarsat and INTELSAT on U.S. industry,
jobs, and industry access to the to the global marketplace.
See, notice
in the Federal Register, July 5, 2002, Vol. 67, No. 129, at
Pages 44920 - 44921. |
|
|
| Monday, July 22 |
Day one of a two day seminar hosted by the American Intellectual Property
Law Association (AIPLA) on the Patent Cooperation Treaty.
See, online
brochure [PDF]. Location: Crystal Gateway Marriott,
Arlington, VA.
2:00 - 4:00 PM. The FCC's Advisory
Committee for the 2003 World Radiocommunication Conference
(WRC-03 Advisory Committee) will hold a meeting. See, notice
in Federal Register, June 25, 2002, Vol. 67, No. 122, at Page
42773. Location: FCC, 6th Floor South Conference Room
(6-B516), 445 12th Street, SW.
Deadline to submit comments to the FCC in response
to its Notice of Proposed Rule Making (NPRM) "regarding
the sunset of the statutory requirements under section 272
imposed on Bell Operating Companies (BOCs) when they provide
in-region, interLATA services and seeks comment on whether,
and if so, under what conditions, the structural and
nondiscrimination safeguards established in section 272 should
be extended by the Commission either generally or with respect
to specific states." See, notice
in the Federal Register. |
|
|
| Tuesday, July 23 |
11:00 AM. The Cato Institute
will host a panel discussion titled "Who Rules the
Root? ICANN, Domain Names, and the Battle over Internet
Governance". The scheduled speakers are Milton
Mueller (author of Ruling
the Root: Internet Governance and the Taming of Cyberspace),
Ira Magaziner (SJS Advisors), Michael Roberts (The Darwin
Group), and Harold Feld (Media
Access Project). Lunch will follow. See, Cato notice.
Location: 1000 Massachusetts Avenue, NW.
2:00 PM. The Senate
Judiciary Committee will hold a hearing on pending
nominations. Press contact: Mimi Devlin at 202 224-9437.
Location: Room 226, Dirksen Building.
Deadline to file reply comments with the FCC's Spectrum Policy Task Force
in response to its request for comments on spectrum policy,
including taking steps toward market oriented allocation and
assignment policies, interference, efficient use of spectrum,
public safety communications, and international issues. See, Public
Notice [PDF].
Day two of a two day seminar hosted by the American Intellectual Property
Law Association (AIPLA) on the Patent Cooperation Treaty.
See, online
brochure [PDF]. Location: Crystal Gateway Marriott,
Arlington, VA. |
|
|
| Wednesday, July 24 |
9:00 AM. Day one of a two day meeting of the Bureau of Industry and Security's
(BIS) Information Systems Technical Advisory Committee. The
meeting will be partially open, and partially closed to the
public. The agenda of the open portion of the meeting includes
(1) a presentation on encryption in network management
software, (2) a presentation on changes to the mass market
encryption regulation, and (3) a discussion of the GAO report
on advances in China's semiconductor industry. The BIS was
formerly known as the Bureau of Export Administration (BXA).
See, notice
in the Federal Register. Location: Hoover Building, Room 3884,
14th Street between Pennsylvania Ave. and Constitution Ave.
NW.
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space will hold a hearing to examine women in science
and technology. Location: Room 253, Russell Building. |
|
|
| Thursday, July 25 |
| 9:00 AM. Day two of a two day meeting of the Bureau of Industry and Security's
(BIS) Information Systems Technical Advisory Committee. See, notice
in the Federal Register. Location: Hoover Building, Room 3884,
14th Street between Pennsylvania Ave. and Constitution Ave.
NW. |
|
|
|
|
|
| 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. |
|
|