Among the NSSC's many conclusions is that "the private sector is best equipped and structured to respond to an evolving cyber threat". It encourages public private cooperation rather than government mandates or regulation.

President Bush wrote in a letter [1 page in PDF] that "The way business is transacted, government operates, and national defense is conducted have changed. These activities now rely on an interdependent network of information technology infrastructures called cyberspace. The National Strategy to Secure Cyberspace provides a framework for protecting this infrastructure that is essential to our economy, security, and way of life." He added that "Securing cyberspace is an extraordinarily difficult strategic challenge that requires a coordinated and focused effort from our entire society -- the federal government, state and local governments, the private sector, and the American people."

He also referenced the National Strategy in his weekly Saturday radio address on February 15. He stated that "This past week, Secretary of Homeland Security Tom Ridge issued strategic plans to protect our critical infrastructure. These plans will guide local officials in securing our nation's dams and power plants, electrical goods, computer networks and communication systems."

The NSSC states that its purpose "is to engage and empower Americans to secure the portions of cyberspace that they own, operate, control, or with which they interact."

It states that "Of primary concern is the threat of organized cyber attacks capable of causing debilitating disruption to our Nation’s critical infrastructures, economy, or national security. The required technical sophistication to carry out such an attack is high -- and partially explains the lack of a debilitating attack to date. We should not, however, be too sanguine. There have been instances where organized attackers have exploited vulnerabilities that may be indicative of more destructive capabilities."

The NSSC lists too many recommendations and plans to enumerate here. However, several of its statements regarding intelligence and international action may be noteworthy. For example, it recommends strengthening cyber related counterintelligence efforts. It states that "The FBI and intelligence community should ensure a strong counterintelligence posture to counter cyber-based intelligence collection against the United States government, and commercial and educational organizations. This effort must include a deeper understanding of the capability and intent of our adversaries to use cyberspace as a means for espionage."

It also references retaliation for cyber attacks. It states that "When a nation, terrorist group, or other adversary attacks the United States through cyberspace, the U.S. response need not be limited to criminal prosecution. The United States reserves the right to respond in an appropriate manner. The United States will be prepared for such contingencies."

Finally, it provides that "The United States will encourage other nations to accede to the Council of Europe Convention on Cybercrime ..."

Robert Holleyman, P/CEO of the Business Software Alliance (BSA), stated in a release that "it is crucial for Congress and the Administration to ensure that cyber security remains a key focus of the new Department of Homeland Security and that the proper resources are allocated to establish the necessary programs and improve the security of government networks."

Harris Miller, President of the Information Technology Association of America (ITAA) stated in a release that "We are gratified that after a full and open process, the Administration has issued a plan that recognizes the need for partnership and participation to protect cyberspace -- not mandates and government intervention."

Sen. John McCain (R-AZ), the Chairman of the Senate Commerce Committee, spoke in support of the bill in the Senate. He stated that the Federal Trade Commission (FTC) "proposed regulations to create a national do no call registry that consumers can sign up for to avoid unwanted solicitations. H.R. 395 authorizes the Federal Trade Commission, FTC, to collect offsetting fees from telemarketers to implement and enforce the registry as part of the Telemarketing Sales Rule. The legislation would authorize the FTC to collect these fees from telemarketers for Fiscal Years 2003 through 2007, and to move forward this year on setting up this much-needed registry. The legislation also directs the Federal Communications Commission to conclude its own rulemaking regarding telemarketing calls which, given the FTC's lack of jurisdiction over certain industries, is an important component in creating an effective and comprehensive do not call option for consumers." See, Cong. Record, Feb. 13, 2003, at S2500.

Rep. Ron Paul (R-TX) was one of only seven members of the House to vote against the bill. He submitted a statement for the Congressional Record (Feb. 13, 2002, at E243). He wrote that "I would remind those who support federal intervention to ``put a stop´´ to telemarketing on the basis of its annoyance, that the Constitution prohibits the federal government from interfering in the areas of advertising and communications. In addition to exceeding Congress' constitutional authority, legislation to regulate telemarketing would allow the government to intrude further into our personal lives."

Intel is the assignee of U.S. Patent No. 6,006,291 titled "High-throughput interface between a system memory controller and a peripheral device". The abstract states that "A high-throughput memory access interface allows higher data transfer rates between a system memory controller and video/graphics adapters than is possible using standard local bus architectures. The interface enables data to be written directly to a peripheral device at either one of two selectable speeds. The peripheral device may be a graphics adapter. A signal indicative of whether the adapter's write buffers are full is used to determine whether a write transaction to the adapter can proceed. If the transaction can not proceed at that time, it can be enqueued in the interface."

Intel promulgated a new industry standard for certain computer chip specifications that relates to the electronic interface and signal protocols by which devices in a computer system communicate with each other. In 1996, Intel published the Accelerated Graphic Port (AGP) Interface Specification, Revision 1.0 (AGP 1.0), describing how AGP allows graphics devices to communicate with the core logic without using the traditional Peripheral Component Interface (PCI) bus. In 1998, Intel published AGP Interface Specification, Revision 2.0, which added two new protocols known as date transfers at 4x and Fast Write. Both 4x and Fast Write are optional protocols of AGP 2.0. See also, Intel's AGP technology web site.

Intel licenses both AGP 1.0 and 2.0 on a reciprocal, royalty free basis. The AGP 2.0 agreement provides for "a nonexclusive, royalty-free, nontransferable, non-sublicenseable, worldwide license under its Interface Claims to make, have made, use, import, offer to sell and sell products which comply with the AGP Interfaces; provided that such license shall not extend to features of a product which are not required to comply with the AGP Interfaces or to which there was a feasible alternative to infringing a given claim." However, while the agreement includes definitions of "Interface Claims" and "AGP Interfaces", it does not expressly state whether chipsets that include the Fast Write technology are covered by the agreement.

Intel drafted the agreement, and VIA signed it. VIA produced chipsets that supported Fast Write. VIA concedes that its chipsets practice at least claims 1, 4, 6, and 7 of the '291 patent. However, it asserts that it is licensed to practice this patent under a cross license agreement with Intel.

Intel filed a complaint in U.S. District Court (NDCal) against VIA alleging patent infringement. VIA counterclaimed for a declaratory judgment of invalidity for indefiniteness. The District Court granted summary judgment of non-infringement to VIA on the ground that VIA was licensed to practice the patent. It also denied summary judgment of invalidity.

Intel appealed the judgment of non-infringement. VIA cross appealed the judgment of no invalidity.  The Court of Appeals affirmed both judgments of the District Court.

Omnipoint is a wireless telecommunications provider that provides service in Easttown Township, Pennsylvania. It sought a variance from the Zoning Hearing Board of Easttown to locate a tower in a residential district. It argued that there is a gap in wireless telecommunications. Easttown denied the request.

Omnipoint filed a complaint in U.S. District Court (EDPenn) against Easttown alleging violation of the mobile services provisions of the Communications Act (see, 47 U.S.C. § 332(c)(7)(B)(i)) and Pennsylvania law. This is the second time this case has been to the Court of Appeals. See, first opinion of the Court of Appeals, Omnipoint v. Easttown, 248 F.3d 101 (3d Cir. 2001), which remanded the case to the District Court. On remand, the District Court rejected Omnipoint's claims on the basis that it failed to establish a significant gap or unreasonable discrimination under the Communications Act, or unconstitutional exclusion under Pennsylvania law.

In the present opinion, the Appeals Court vacated the District Court's holding that there is no significant gap, but affirmed the rest of the District Court's holding, and remanded.

Background. Steven Weber registered the domain name schmidheiny.com in February 1999. The ACPA took effect in November 1999. He re-registered the domain name in the name of his company, Famology.com in June 2000 with a different registrar. In November 2000 he sent a letter to Stephan Schmidheiny offering to sell him the domain name.

District Court. Schmidheiny filed a complaint in U.S. District Court (EDPenn) against Weber and Famology.com alleging violation of the ACPA. The District Court granted summary judgment to Weber and his company on the grounds that Weber registered the domain name before passage of the ACPA. It reasoned that the ACPA does not apply retroactively, and a re-registration is not actionable under the ACPA. Schmidheiny appealed.

Statute. The ACPA provides, at 15 U.S.C. § 1129, in part, that "[a]ny person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person."

Appeals Court. The Appeals Court reversed. It wrote that "We do not consider the ``creation date´´ of a domain name to control whether a registration is subject to the Anti-cybersquatting Act, and we believe that the plain meaning of the word ``registration´´ is not limited to ``creation registration.´´"

The Court noted that "The words ``initial´´ and ``creation´´ appear nowhere in § 1129, and Congress did not add an exception for ``non-creation registrations´´ in § 1129(1)(B)."

The Court added that "We hold that the word ``registration´´ includes a new contract at a different registrar and to a different registrant. In this case, with respect to Famology.com -- that occurs after the effective date of the Anti-cybersquatting Act."

The Court also offered this rationale. "To conclude otherwise would permit the domain names of living persons to be sold and purchased without the living persons’ consent, ad infinitum, so long as the name was first registered before the effective date of the Act. We do not believe that this is the correct construction of the Anti-cybersquatting Act. We are therefore satisfied that Famology.com, Inc. engaged in a ``registration´´ that is covered by the Anti-cybersquatting Act."

2/13. A grand jury of the U.S. District Court (CDCal) returned an indictment charging Mongkol Prapakamol with ten counts of trafficking in counterfeit software and one count of smuggling counterfeit software. He is accused of smuggling into the U.S. from Thailand, and attempting to sell, counterfeit copies of Symantec's Norton AntiVirus and SystemWorks, Intuit's Quicken, and video games published by LucasArts and Activision. See, USAO release.

2/13. The Securities and Exchange Commission (SEC) filed a complaint in U.S. District Court (NDCal) against Kenneth Mellert and Roman Mayer alleging violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder in connection with the use of inside information to buy stock of PeopleSoft, a software company. The SEC stated in a release that Mellert, a former PeopleSoft sales director, and Mayer, possessed inside information that PeopleSoft "would be preannouncing an earnings shortfall at the end of the day. ... Mellert called Mayer, and the two agreed that Mayer would purchase $16,000 in PeopleSoft put options -- securities that would rise in value if the Company's stock price fell." The SEC also stated that Mayer has consented to a court order enjoining him from future violations, and ordering him to pay disgorgement and penalties. In addition, the U.S. Attorneys Office (USAO) for the Northern District of California charged Mellert by criminal information [2 page PDF scan] with insider trading, in violation of 15 U.S.C. §§ 78j and 78ff. See also, USAO release.

2/12. Microsoft published a brief essay titled "Spiking The Spammers". It states that spam, which its defines as "unsolicited commercial e-mail", "can be tamed further, by a combination of advanced filtering technologies, consumer education and the cooperation of industry and government". It argues that "new, strong laws are needed. At a minimum, senders should not be allowed to misrepresent their identity, falsify the subject of a message, or use automated means to gather e-mail addresses without the owners' consent".

2/13. The National Infrastructure Protection Center (NIPC) announced that it entered into a Memorandum of Understanding with the U.S. Customs Bureau and the National Response Center. See, NIPC release and statement of NIPC Director James Plehal. The NIPC is an entity with computer intrusion investigation responsibilities. It was transferred from the FBI to the Department of Homeland Security by the Homeland Security Act.

It is a major government reorganization bill. It would create a Homeland Intelligence Agency within the Department of Homeland Security, and reduce the responsibilities of the FBI. The bill does not expand the powers of the federal government with respect to intelligence gathering. Rather, it is premised upon the assumption that by moving certain functions to a new agency, those functions will be conducted more effectively.

It also limits executive power, in two respects. First, a substantial part of the bill is devoted to protecting privacy, civil rights and Constitutional rights, particularly through the creation of an entity to safeguard these rights. Second, it would increase the ability of the Congress to oversee and control the operations of executive branch.

The bill is a carefully drafted, detailed government reorganization bill. However, Sen. Edwards' explanation of his bill was a partisan and political attack upon President Bush. Sen. Edwards (at right), who may run against Bush in the 2004 Presidential election, proclaimed that "This President is failing the test on homeland security. ... The bare minimum of homeland security improvements we need -- $10 billion more this year -- costs less than half of President Bush's tax cut just for 226,000 millionaires." See, Cong. Record, Feb. 13, 2003, at S2487-8.

Perhaps the most important aspect of the bill is its proposal to create a new entity titled the Homeland Intelligence Agency, that would take over certain activities and operations of the Federal Bureau of Investigation (FBI). Perhaps the second most important aspect of the bill is its proposal to create an Office of Privacy and Civil Liberties Protection within the new Agency.

The bill states that "It is the purpose of this Act to create a new element of the Intelligence Community of the United States Government, within the Department of Homeland Security, whose primary mission will be the collection and dissemination of foreign intelligence and counterintelligence inside the United States, including the plans, intentions, and capabilities of international terrorist groups operating in the United States. The mission of such entity, the Homeland Intelligence Agency, shall be conducted with appropriate respect for the privacy and civil liberties of United States persons."

Title I of the bill, which is also carries the title "Homeland Intelligence Agency Act of 2003", states that "The mission of the Homeland Intelligence Agency shall be to support the Director of Central Intelligence ... as follows: (1) By serving as the primary entity within the United States Government responsible for collecting foreign intelligence on the plans, intentions, and capabilities of international terrorists and terrorist groups operating inside the United States."

The mission also includes "conducting operations to collect foreign intelligence and counterintelligence within the United States, including foreign intelligence and counterintelligence regarding United States persons, through human sources and by other lawful intelligence collection means" and "conducting operations to collect foreign intelligence and counterintelligence through the use of electronic surveillance and physical searches pursuant to the Foreign Intelligence Surveillance Act ..."

The mission further includes "conducting analysis, including identification and assessment", and "assisting the Under Secretary for Information Analysis and Infrastructure Protection of the Department of Homeland Security ... relating to the identification and assessment of threats".

Finally, the mission includes "ensuring the prompt and efficient dissemination of foreign intelligence reports to appropriate consumers in the United States Government", and "facilitating the sharing of information between the Agency and other elements of the United States Government, State governments, and local governments".

Sen. Edwards explained in detail why activities of the FBI should be transferred to this new entity. He stated that "This bill takes away from the FBI the responsibility to collect intelligence on foreign terrorist groups operating in America. And this bill gives that responsibility to a new Homeland Intelligence Agency."

He said that "there is also no question that the FBI made many serious mistakes before September 11. There was the Phoenix memorandum, a memorandum about suspicious behavior at flight schools that the FBI did not follow up on. There was the Moussaoui case, where the FBI had in its possession a computer full of critical information, yet did not access the information there. There were even two hijackers who the FBI knew were threats but did not track and stop."

"Part of the problem is bureaucratic resistance at the FBI", said Sen. Edwards. "But the reality is that the FBI is also a bureaucracy, and it is the nature of a bureaucracy to resist change."

He continued that "Beyond the problem of bureaucratic resistance, there is a more fundamental problem with the FBI. That problem is the conflict at the base of the FBI's mission, which is a conflict between law enforcement and intelligence. These are fundamentally different functions. Law enforcement is about building criminal cases and putting people in jail. Intelligence isn't about building a case; it is about gathering information and putting it together into a bigger picture. The FBI has never been built for intelligence. It has always been an agency that hires people who want to be law enforcement officers, trains them to be law enforcement officers, and promotes them for succeeding as law enforcement officers."

The bill would also create an Office of Privacy and Civil Liberties Protection within the new Homeland Intelligence Agency. (See, pages 15-37.) Its responsibilities would include "assuring that the use of technologies by the Agency sustain, and do not erode, privacy protections in the collection, use, and disclosure of personal information".

It would have substantial authority, including the power to conduct audits and inspections, "to administer or take oaths, affirmations, or affidavits", and to "require the production of evidence by subpoena". Its subpoenas would be enforceable in District Court. It would have no prosecutorial power, but could refer cases to the Department of Justice (DOJ).

Sen. Edwards stated that his proposed agency "will do a better job protecting our civil liberties. While we will not give the new agency any new authorities, we will place new checks on its ability to collect information about innocent people. Time and again, we have seen this administration overreach when it comes to civil liberties. That should stop, and this proposal will help stop it. We will require judicial approval before the most secretive and invasive investigations of religious and political groups. We will require greater public reporting and more internal auditing. We will establish a new and independent office of civil liberties within the new agency that is dedicated to protecting the constitutional rights of innocent Americans."

This bill would also create new requirements regarding submitting reports to the Congress. The bill would also set a limited and short (two year) term for the Director of the new agency. Thus, every two years the Senate would have the opportunity to reject or accept the nominee.

4:00 PM. Michael Meurer (Boston University School of Law) will present a paper titled "Sharing Copyrighted Works". For more information, contact Robert Brauneis at 202 994-6138 or rbraun@main.nlc.gwu.edu. Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 720 20th Street, NW.

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Copy Protection". This NPRM proposes that the FCC promulgate a broadcast flag rule, and seeks comment on this, and related questions. This is MB Docket No. 02-230. See, FCC release [PDF] and Order [PDF] of October 11, 2002 extending deadlines. See also, Order [PDF] of January 3, 2003.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) in the proceeding titled "In the matter of Facilitating the Provision of Spectrum Based Services to Rural Areas and Promoting Opportunities for Rural Telephone Companies To Provide Spectrum Based Services". This is WT Docket No. 02-381. For more information, contact Robert Krinsky at 202 418-0660. See also, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 723 - 730.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking, (FNPRM), released last month, regarding whether providers of various services and devices not currently within the scope of the FCC's 911 rules should be required to provide access to emergency services. This is CC Docket No. 94-102 and IB Docket No. 99-67. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Pages 3214 - 3220, and notice of extension.

11:15 AM - 2:00 PM. Secretary of the Treasury John Snow will speak at a joint National Chamber Foundation and Policy Insiders luncheon. See, notice. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "The Role of In House Counsel". For more information, contact Yaron Dori at ydori@hhlaw.com or Ryan Wallach at rwallach@willkie.com. Location: Conference Room of Willkie Farr & Gallagher, 1875 K St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be FCC antitrust merger reviews. The speakers will include Jim Bird (head of the Federal Communications Commission's (FCC) Office of General Counsel's (OGC) Transactional Team) and Jim Barker (Latham & Watkins). For more information, contact Lauren Kravetz at 202 418-7944 or lkravetz@fcc.gov. Location: FCC, Room 4-B516.

1:00 PM. Deputy Secretary of Commerce Sam Bodman will to speak to a convention of over 350 aspiring engineers from middle schools on the importance of science and technology. Location: Capitol Hill Hyatt Regency.

Deadline to submit reply comments to the Copyright Office (CO) in response to its Notice of Inquiry (NOI) regarding the exemption of certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works, pursuant to 17 U.S.C. § 1201. See, CO summary of this proceeding, notice in the Federal Register: October 15, 2002, Vol. 67, No.199, at Pages 63578 - 63582, and comments already filed.

10:00 AM - 12:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet. A notice in the Federal Register states that the purpose of this meeting is "to begin preparations for the meeting of the ITU Telecommunications Development Advisory Group, which will take place March 19-21, 2003 in Geneva, Switzerland", and/or "to prepare for the 2003 meeting of the Telecommunications Development Advisory Group (TDAG)". The notice also states requirements for admission. See, Federal Register, February 6, 2003, Vol. 68, at Page 6250. Location: State Department.

9:00 - 11:30 AM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Interoperability Subcommittee will meet at the FCC. Location: FCC, 445 12th Street, SW.

12:30 - 3:00 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Technology Subcommittee will meet. Location: FCC, 445 12th Street, SW.

3:00 - 5:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee, Implementation Subcommittee will meet. Location: FCC, 445 12th Street, SW.

9:30 AM - 12:30 PM. The Federal Communications Commission's (FCC) Public Safety National Coordination Committee will meet. See, notice in the Federal Register, January 23, 2003, Vol. 68, No. 15, at Page 3252. Location: FCC, 445 12th Street, SW.

Deadline to submit reply 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.

2/10. JDS Uniphase President and COO Syrus Madavi was named to the Board of Directors. See, JDSU release.