Phil Bond (at right) stated that "this is a budget that reflects the President's priorities -- technology is the common denominator". He added that "It is a budget that recognizes money is limited but research and innovation are vital to America's world leadership." He stated, for example, that there is a total of $123 Billion for research and development, which is an increase over this year's proposal and "is more basic research and development than the rest of the G8 combined."

Jon Dudas of the USPTO stated that the FY04 budget proposal calls for $1,404 Million, up from the FY03 proposal of $1,334 Million. He also stated that this proposal continues the practice of "fee diversion". However, on the bright side, he said that this proposal "returns to the USPTO a greater share of its revenue than last year". That is, it would decrease from $193 Million to $100 Million under the President's proposals. He also said that this is a "dramatic reduction", and that the administration wants to work with the Congress towards a goal of ultimate elimination of fee diversion.

Dudas also said that the budget proposal would enable the USPTO to move forward in implementing its 21st Century Strategic Plan, which calls for hiring new patent examiners, initiating competitive outsourcing patent searches, and electronic processing of applications, among other things.

Nancy Victory stated that the proposed budget of $21.4 Million for the NTIA would fund "spectrum management reform efforts", a "paperless spectrum management process", and studies of "interference determination methodologies".

However, she said, "new grants are going to be suspended". The NTIA budget proposal contains $2.54 Million for monitoring existing grants, but would eliminate new Technology Opportunity Program (TOP) grants. She added that the budget proposal for the Corporation for Public Broadcasting contains $80 Million for grants.

Kenneth Juster stated that the proposed budget increase for the Bureau of Industry and Security (BIS), which is still also known as the Bureau of Export Administration (BXA), would enable it to create a new Office of Technology Evaluation. It would also include an increase of $1.3 Million for enforcement activities, including more staff for its Special Computer Evidence Recovery (SCERS) program, which pertains to evidence seized from computers and other electronic storage media.

See also, summary titled "FY 2004 Technology Administration Budget Request Highlights", NIST release, and USPTO release.

Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, stated in a release that "The Administration's budget proposal for science and technology is disappointing, although perhaps unsurprising given the budgetary constraints. On the positive side, the Administration has acknowledged the importance of funding for basic research, particularly in the physical sciences, and the Administration has recommended generous percentage increases in such areas as the National Science Foundation and the National Nanotechnology Initiative. The budget also, as had previously been announced, funds important new research to lay the groundwork for a hydrogen economy."

Rep. Boehlert added that "On the other hand, many science programs do not even keep up with inflation. In many areas, particularly Homeland Security and cybersecurity, there aren't enough details yet to fully understand the proposals. Perhaps the best that can be said is that this budget document may have to be rethought in any event once Congress finally provides domestic appropriations for fiscal 2003. Certainly, the NASA budget must be rethought in light of Saturday's tragedy. I look forward to working with the Administration, as I have in the past, to boost the funding for science beyond the initial proposals."

Smart cards are credit card like devices that use integrated circuit chips to store and process data. The report states that "Results from projects that are already in place indicate that smart cards offer many useful benefits, such as significantly reducing the processing time required for deploying military personnel, tracking immunization records of children, and verifying the identity of individuals accessing buildings and computer systems."

The report also reviews challenges faced by government officials in implementing smart card systems. These include lack of executive level commitment, "obtaining adequate resources for projects that can require extensive modifications to technical infrastructures and software", integrating security practices across agencies, achieving interoperability across agencies, and "maintaining the security of smart card systems and privacy of personal information".

The report also contains several recommendations. First, it recommends that the Office of Management and Budget (OMB) "issue governmentwide policy guidance regarding adoption of smart cards for secure access to physical and logical assets".

Second, the report recommends that the National Institute of Standards and Technology (NIST) "continue to improve and update the government smart card interoperability specification by addressing governmentwide standards for additional technologies -- such as contactless cards, biometrics, and optical stripe media -- as well as integration with PKI, to ensure broad interoperability among federal agency systems".

The report also contains several recommendations for implementation by the General Services Administration (GSA), including "updating its governmentwide implementation strategy and administrative guidance on implementing smart card systems to address current security priorities, including minimum security standards for federal facilities, computer systems, and data across the government".

The report was prepared at the request of Rep. Tom Davis (R-VA), who is now the Chairman of the House Government Reform Committee.

The FOIA, codified at 5 U.S.C. § 552, entitles any "person" to request and obtain records from government agencies. However, it contains an exemption for records which a federal statute exempts. The Export Administration Act (EAA) exempted application information from disclosure.

Subsection 552(b) provides, in part, that "This section does not apply to matters that are ... (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld".

There is, however, one significant problem with the Court's analysis. The FOIA exempts records for which there is a statutory exemption. The EAA is not a statute. It was once. But it has lapsed. Hence, while the majority's conclusion may be soundly grounded in Congressional intent, public policy, and homeland security concerns, its statutory analysis is problematic. The dissent mocked the majority's "Alice in Wonderland" logic.

Export Control Regime. The Department of Commerce, and its Bureau of Industry and Security (BIS), which is still often referred to as the Bureau of Export Administration (BXA), issues licenses for dual use items. These are things, including software, encryption products, and high performance computers, that might be used for either civilian or military or terrorist purposes.

The statutory authority of the BIS to operate this export control regime derives from the Export Administration Act (EAA). Congress first passed export control legislation in 1949. It has passed legislation revising the system several times since. However, the most recent statute, the Export Administration Act of 1979, lapsed in 1990. However, Presidents since then have exercised statutory authority to declare that an emergency exists, and, by executive order, extend the export control regime, absent a statute. This has enabled the BIS to continue to license the export of dual use items.

If the BIS were compelled to disclose the contents of applications for export licenses, this would enable applicants' competitors, even foreign competitors, to obtain vital trade secrets of the applicants. It would put U.S. exporters at a competitive disadvantage. It would also create a disincentive to provide information in export applications. It would also enable foreign requestors, including those from states that support terrorism, to gain access to some of the information which the export control regime is designed to prevent them from obtaining. In short, FOIA disclosure of export license applications would undermine the export control regime.

Legislative Activity. Congress continues to fund the operations of the BIS. Moreover, many members of Congress have repeatedly tried to pass a new statute.

For example, Sen. Mike Enzi (R-WY) sponsored S 149, the Export Administration Act of 2001, in the 107th Congress. The Senate passed the bill by a vote of 85-14, just prior to the terrorist attacks of September 11, 2001. The bill was also supported by the Bush administration. S 149 would have modernized export control laws. It would have eased restraints on most dual use products, such as computers and software, but increased penalties for violations. It also would have eliminated the use of MTOPS based limits to control the export of high performance computers.

Rep. David Dreier (R-CA) introduced HR 2568, an administration backed bill, in the House, on July 19, 2001. However, it did not pass in the House. Instead, HR 2581, sponsored by former Rep. Benjamin Gilman (R-NY), which is a much different export bill that is not supported by the administration, Rep. Dreier, and Sen. Enzi, passed the House International Relations Committee on August 1, 2001. The House then took no further action on any export control bill.

Rep. Dreier introduced HR 55 on January 7, 2003. It is essentially the Enzi proposal. However, Sen. Enzi has not yet reintroduced his bill in the 108th Congress. A member of Sen. Enzi's staff e-mailed TLJ on January 24 that Sen. Enzi is still working on a revised version of his bill for the 108th Congress, and remains "optimistic".

FOIA Request. The Wisconsin Project on Nuclear Arms Control (WPNAC) is a deceptive name. The group is based on K Street in Washington DC. Moreover, the FOIA request at issue in this case covers more than nuclear technology.

The WPNAC submitted a FOIA request to the BIS requesting "records of all license applications for dual-use commodities that the U.S. Department of Commerce approved, denied, suspended, or returned without action, for export to the People's Republic of China (including Hong Kong), India, Israel, Pakistan, and Russia, for the period beginning January 1, 1995 and extending to the present." (Parentheses in original.)

The BIS responded by providing certain aggregate reports, but asserted that more detailed information was exempt from disclosure under FOIA Exemption 3.

The WPNAC then filed a complaint is U.S. District Court (DC) against the DOC under the FOIA seeking an order compelling the DOC to produce records. The District Court ruled on summary judgment that the requested records are exempt under FOIA Exemption 3. The WPNAC then appealed.

Appeals Court. A three judge panel of the Court of Appeals affirmed, two to one. Judge Judith Rogers, writing for the Court, emphasized the presence of a clear Congressional intent to exempt export license applications from FOIA disclosure.

She wrote that "The Wisconsin Project contends that the Department may not withhold the data, and the logic of its argument is simple: Exemption 3, by its text, requires that a withholding ``statute´´ be in place;  because the EAA was not in effect either when the exporters submitted their application data to the Department or when the Wisconsin Project requested that data from the Department under FOIA, no statute exists to justify the Department's withholding of the requested data. The Wisconsin Project's formalistic logic, however, misses the bigger picture."

She argued that "the touchstone of the Exemption 3 inquiry is whether the statute ``is the product of congressional appreciation of the dangers inherent in airing particular data and incorporates a formula whereby the administrator may determine precisely whether disclosure in any instance would pose the hazard that Congress foresaw.´´" (Citing   American Jewish Congress v. Kreps, 574 F.2d at 624 (DC Cir, 1978).)

She concluded that "Congress's actions throughout the long history of the EAA evince a clear appreciation of the dangers inherent in exposing export application data to public view. Since it was first enacted by Congress, the EAA has always contained a confidentiality provision that permits the Department to withhold export application data."

Judge Stephen Williams joined.

Kenneth Juster (at right), the Under Secretary of Commerce in charge of the BIS, stated in a release that "We welcome this decision because the Department’s ability to protect this information is important to our national and economic security. Public disclosure of such information could assist proliferating countries or terrorists in the development of weapons of mass destruction, and could also damage the competitiveness of U.S. business".

Dissent. Judge Raymond Randolph wrote a dissenting opinion. He did not contest that if the Export Administration Act were to be re-enacted by Congress, Exemption 3 would bar disclosure. Nor did he dispute that the intent of Congress was to bar disclosure. Nor did he dispute that disclosure would be bad policy. Rather, he argued that judges should merely interpret statutes. And at this task, he had a field day.

He did not go so far as to argue, as might Justice Scalia, that legislative intent is never applicable to judicial interpretation. He merely argued that it is not applicable when there is no underlying statute to interpret. He likened the majority's approach to a scene from Alice in Wonderland. He wrote that "The statute has expired but its legislative history is good law. So say my colleagues, in a most curious opinion."

Randolph continued that "Congress at one time wanted the Commerce Department to keep the information secret, and so it shall remain. No matter that the Freedom of Information Act -- a real law -- expresses Congress's intent to require a statute exempting the documents from disclosure when they are sought or about to be released."

"It never occurred to me, or to the Framers of the Constitution, that the Executive could by the stroke of a pen convert expired legislation into an existing statute," wrote Randolph.

"In the end all the majority can come up with is some free-floating congressional intent about the meaning of a statute that no longer exists. Alice once encountered a comparable phenomenon: ``'Well! I've often seen a cat without a grin,' thought Alice; 'but a grin without a cat! It's the most curious thing I ever saw in all my life!'´´ "

While the Appeals Court was divided, Supreme Court review is unlikely. It only very rarely grants certiorari in FOIA cases.

Perhaps also, there is an unstated theme in this case, as in many FOIA cases. That is, passage of the FOIA was one of those unfortunate actions taken in the immediate aftermath of the Nixon presidency, the Watergate scandals, the Viet Nam war, and a series of embarrassing disclosures about CIA operations, when there was an strong distrust of executive authority, and an effort to weaken executive branch authority, especially in the areas of intelligence and national defense. Hence, an idealistic Congress passed a FOIA that was far too broad. Many federal judges, particularly those in Washington DC, have been reluctant ever since to accord it the same status as other statutes -- or in the present case, expired statutes.

The Senate will meet at 9:00 AM for morning business. It will recess from 12:30 until 2:15 PM for party conferences. At 2:15 PM it will take up the nomination of Miquel Estrada to be a Judge of the U.S. Court of Appeals (DCCir).

The Supreme Court is in recess.

8:30 - 10:00 AM. Harold Furchtgott-Roth and Gregory Sidak of the American Enterprise Institute (AEI) will host a press breakfast to discuss pending FCC reviews of telecommunications regulations and media ownership rules. RSVP to Veronique Rodman at vrodman@aei.org or call Heather Dresser at 202 862-5884. Location: AEI, 1150 17th Street, NW.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. The agenda includes the nomination of Jay Bybee to be a Judge of the U.S. Court of Appeals (9thCir). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of William Donaldson to be a member of the Securities and Exchange Commission (SEC).

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Altima Communications v. USITC, No. 02-1110. The U.S. International Trade Commission barred the import by Altima Communications, a Broadcom subsidiary, of certain ethernet networking products found to infringe Intel patents. Fish and Richardson represents Intel in this matter. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Crossroads Systems v. Chaparral Network Storage, No. 02-1158. This is an appeal from the U.S. District Court (WDTex) in a patent infringement case involving storage router technology. (D.C. No. 00-CA-217-SS.) Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Digital Privacy v. RSA Security, No. 02-1440. This is an appeal from the U.S. District Court (EDVa) in a patent infringement case involving the pre-boot protection of unauthorized use of computer programs and data. Location: Courtroom 201, 717 Madison Place, NW.

11:00 AM. The Cato Institute will host a panel discussion titled "Battle over the Broadcast Flag: The IP Wars and the HDTV Transition". The speakers will be Fritz Attaway (Motion Picture Association of America), Jim Burger (Dow Lohnes & Albertson), Mike Godwin (Public Knowledge), and Andy Setos (Fox Entertainment Group). See, notice and registration page. Lunch will follow. Location: Cato, 1000 Massachusetts Ave., NW.

11:15 AM. Howard Beales, Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection will speak to the Direct Marketing Association's Committee on Privacy on "Spam and Privacy." Location: 1111 Nineteenth Street, NW, Suite 1150.

12:30 PM. The House Armed Services Committee will hold its organizational meeting for the 108th Congress. Location: Room 2118, Rayburn Building.

1:00 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Health of the Telecommunications Sector: A Perspective from Investors and Economists". The scheduled witnesses include Robert Atkinson (Columbia University), Blake Bath (Lehman Brothers Equity Research), Steve Brouder (Cambridge Strategic Management Group), Robert Crandall (Brookings Institute), and Eric Strumingher (Cobalt Capital). Press contact: Ken Johnson at 202 225-5735. See, notice. Location: Room 2123, Rayburn Building.

2:00 PM. Sen. Ron Wyden (D-OR) and others will hold a briefing by teleconference on the Total Information Awareness (TIA) program. On January 23, the Senate approved an amendment (SA 59) to HJRes 2, the continuing FY03 appropriations bill, by a voice vote. The amendment would limit the ability of the Department of Defense to spend money on Defense Advanced Research Projects Agency's (DARPA) TIA project. The Senate has also passed HJRes 2. However, the House passed a version without the Wyden amendment. The other participants will include representatives of the Electronic Privacy Information Center (EPIC), Association for Computing Machinery (ACM), Americans for Tax Reform, Center for Democracy and Technology (CDT), Eagle Forum, Free Congress Foundation (FCF), People for the American Way (FCF), the Rutherford Institute and other groups. To participate, dial 512 225-3630; the access code is 993630.

2:00 PM. The Senate Finance Committee will hold a hearing on on revenue proposals in the President's FY 2004 budget. Secretary of the Treasury John Snow will be the only witness. Location: Room 215, Dirksen Building.

DATE & TIME CHANGE. 5:45 PM. The House Financial Services Committee will hold its organizational meeting for the 108th Congress. Location: Room 2128, Rayburn Building.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. Ed Thomas, Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will hold a press briefing "to provide an update on policy issues related to emerging technologies and implementation of recent recommendations for spectrum reform". Press contact: Lauren Van Wazer at 202 418-0030. Location: FCC, 8th Floor, South Conference Room (8B-516), 445 12th Street, SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Festo v. SMC Corp., No. 95-1066. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The Internet Security Alliance (ISA) will hold a press conference to announce the release of new information security consumer guidelines. The scheduled speakers will include Orson Swindle (Commissioner, Federal Trade Commission), Dave McCurdy (ISA), Susan Grant (National Consumers League), and Mark MacCarthy (Visa). Location: Lisagore Room, National Press Club, 529 14th Street, NW. See, FTC release.

11:00 AM. The House International Relations Committee will hold its organizational meeting for the 108th Congress. Location: Room 2172, Rayburn Building.

3:30 PM. Madhavi Sunder (Professor of Law, University of California at Davis Law School) will give a lecture titled "IP3: Intellectual Property, Identity Politics, and the Internet Protocol". For more information, contact Julie Cohen at  jec@law.georgetown.edu. Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. § 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.

12:00 NOON. The Cato Institute will host a panel discussion titled "Technology Policy in the 108th Congress". The speakers will be Steve Delbianco (Association for Competitive Technology), Clyde Crews (Cato), and Adam Thierer (Cato). See, notice and registration page. Location: Room B-369, Rayburn Building.

12:00 NOON - 1:30 PM. The Bureau of Industry and Security's National Infrastructure Advisory Council (NIAC) will meet. Richard Clarke (Special Advisor to the President for Cyberspace Security) and Richard Davidson, (Chairman of NIAC) will speak. The agenda also includes a discussion of Internet Protocol Version 6.0 and responsible disclosure of cyber attacks or incidents. The public can attend only via teleconference. Call 1-888-899-7785 (toll free) or 1-913-312-4169 (toll), and when prompted, enter pass code 1468517. See, notice in the Federal Register, January 28, 2003, Vol. 68, No.18, at Page 4167.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The speakers will be wireless and spectrum Legal Advisors to FCC Commissioners. The price is $15. RSVP to Wendy Parish at wendy@fcba.org. Location: Sidley Austin, 1501 K St., NW, Conference Room 6E.

3:00 - 5:00 PM. The State Department's International Telecommunication Advisory Committee (ITAC) will meet regarding the World Summit on the Information Society (WSIS), scheduled to take place in December of 2003. See, notice in the Federal Register, February 4, 2003, Vol. 68, No. 23, at Pages 5689-5690. Location: National Academy of Sciences, 2100 C St. NW.

POSTPONED TO FEBRUARY 28. Deadline to submit reply comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Tier III Coalition's petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy and reliability standards set forth in § 20.18(h) of the FCC’s Rules with respect to Commercial Mobile Radio Service (CMRS) provided by Tier III wireless carriers. See, FCC notice [PDF]. This is WT Docket No. 02-377.

Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the health and life insurance cancellation notices exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at §101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. §103 of the Act provides that the provisions of section 101 shall not apply to "the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities)". (Parentheses in original.) The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. § 7001, et seq. The exceptions are codified at 15 U.S.C. § 7003. See, NTIA notice.

Extended deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809 smarshal@fcc.gov. The deadline had been January 31. On January 31 the FCC extended the deadline.

5:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at George Washington University for law students interested in practicing communications law.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

Tech Law Journal is instituting several new practices and procedures with the New Year. All of these changes have one central purpose -- protecting the rights of the author, David Carney.

The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert (TLJ Alert) are both authored and published by David Carney. This is a business. The sole source of revenue for this business is subscription payments for the TLJ Alert. Yet, it is currently being widely infringed. This is undermining the financial viability of the business.

See, Letter from the Publisher, which summarizes the new practices and procedures.

See, Subscription Information page for price schedule, methods of payment, and related matters.

See, Memorandum regarding "E-Mail Monitoring".

See, Memorandum regarding "Disclosure of Information to Third Parties".

See, Memorandum to law students explaining why free subscriptions for law students will end after the January 17 issue.

See, Memorandum regarding "Termination of state officials' subscriptions" explaining why free subscriptions for state government officials will end after the January 17 issue.

See, Subscription Form and Contract (for firms, companies, groups, and other entities), or the shorter Subscription Form and Contract (for persons subscribing individually). These contracts are for new paying subscribers, and paying subscribers renewing their subscriptions. Persons receiving free subscriptions (journalists and government officials) should not sign a contract. Paying subscribers whose subscription term has not expired should not sign a contract, until their existing subscription term expires and they resubscribe.

And finally, see revised Privacy Policy.