2/24. The Supreme Court issued its opinion [PDF] in Buck Doe v. Elaine Chao, holding that plaintiffs must prove some actual damages to qualify for a minimum statutory award in an action against a federal agency for violation of the Privacy Act of 1974. In this case the violation was the improper disclosure by the Department of Labor of social security numbers. This opinion affirms the September 20, 2002 opinion [48 pages in PDF] of the U.S. Court of Appeals (4thCir). Justice Souter wrote the opinion of the Court. Justices Ginsburg, Stevens and Breyer dissented.

Elaine Chao is the Secretary of Labor. She is the respondent in this case because she is the current Secretary of Labor. The Department of Labor (DOL) adjudicates coal miners' black lung compensation claims. Previously, the DOL used applicants' social security numbers (SSNs) as its claim identifying numbers. That is, the DOL and its administrative law judges disclosed the SSNs of Buck Doe and other applicants in public documents. These applicants did not, however, with one exception, suffer actual damages as a result of the disclosure. The DOL has not disputed that it violated the Privacy Act. The issue has been whether the applicants are entitled to collect damages.

5 U.S.C. § 552a(g)(4) provides, in part, that "In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of (A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and" costs and attorneys fees.

Doe and others filed complaints in the U.S. District Court (WDVa) alleging violation of the Privacy Act, 5 U.S.C. § 552 et seq, and violation of a right to privacy under the Constitution. The Plaintiffs also sought class certification. The District Court consolidated the various cases. The DOL stipulated that it would stop its practice of publicly disclosing SSNs, and the District Court so ordered.

The District Court also held that actual damages are necessary to recover statutory damages under the Privacy Act, and that only one plaintiff had done so, by proving emotional distress. It granted summary judgment to the DOL as to all but one plaintiff (Buck Doe), denied the remaining plaintiffs' motion to amend the complaint to allege actual damages, and denied class action certification. The District Court also ruled for the DOL on the Constitutional claim. The black lung claimants appealed.

The Appeals Court affirmed in a split opinion. It held that "a person must sustain actual damages to be entitled to the statutory minimum damages award." See, story titled "4th Circuit Rules No Recovery Under Privacy Act for Disclosure of SSNs Without Showing of Actual Damages", also published in TLJ Daily E-Mail Alert No. 514, September 23, 2002.

The Supreme Court affirmed. Justice Souter wrote the opinion of the Court.

He wrote that the "Government's position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of adverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for ``actual damages sustained.´´ It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a ``person entitled to recovery,´´ the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act's sole provision for recovering anything (as distinct from equitable relief)." (Parentheses in original.)

2/24. The General Accounting Office (GAO) released a report [35 pages in PDF] titled "Social Security Numbers: Private Sector Entities Routinely Obtain and Use SSNs, and Laws Limit the Disclosure of This Information".

The report, which was prepared for Rep. Clay Shaw (R-FL), the Chairman of the House Ways and Means Committee's Subcommittee on Social Security, focused on the use of social security numbers (SSNs) by information resellers, credit reporting agencies (CRAs) and health care organizations.

The report found that "that information resellers, CRAs, and some health care organizations routinely obtain SSNs from their business clients and individual customers and have come to rely on SSNs as identifiers that help them verify an individual’s identity and accumulate information about that person."

"This is particularly true of information resellers, who amass personal information, including SSNs, from public and private sources, and provide their products and services to a variety of customers. Large information resellers generally limit their services to their business clients, including law firms and financial institutions that establish accounts with them. Officials from these entities told us that they usually obtain SSNs from their business clients and use the information as a factor in determining the identity of an individual for purposes such as employment screening, credit information, and criminal history. Other Internet-based information resellers whose Web sites we accessed also obtain SSNs from their individual customers and scour public records and other publicly available information to obtain information about individuals. These resellers provide information about individuals through the Internet to persons willing to pay a fee to obtain the information."

The report states that "CRAs obtain SSNs from businesses that furnish individuals' data, including SSNs, to them and they also receive information from other information resellers and public records. CRA officials told us that they use SSNs to determine consumers’ identities and match the information they receive from businesses with information stored in consumers' credit files."

The report continues that "health care organizations obtain SSNs from individuals themselves and from companies that offer health care plans. These organizations use SSNs as member identification numbers, which enable them to identify the correct individual, the type of coverage the individual has under the health plan, and other information, such as medical services and prescription drugs provided to that individual."

The report states that "Certain federal laws help to safeguard consumers' personal information, including SSNs, by restricting the disclosure of and access to such information, and private sector officials we spoke with said that they indeed take steps to safeguard the SSN information they collect. Federal laws, such as the Gramm-Leach-Bliley Act, the Drivers Privacy Protection Act, and the Health Insurance Portability and Accountability Act, have placed restrictions on the ways in which information resellers, CRAs, and health care organizations may use and disclose consumers’ personal information, including SSNs. Information resellers, CRAs, and health care organizations said that they take steps to safeguard SSN data, in part for business purposes but also because of federal and state laws that require such safeguards."

The report adds that "some states are taking steps, legislatively, to address consumer concerns regarding SSN use and the privacy of their personal information. Of the 18 states we examined, at least 6 of them enacted laws specifically restricting private sector use or display of SSNs. California's law has influenced business practices and some states have adopted laws similar to California's. Also, while some state laws and regulations we reviewed did not restrict or prohibit SSN use or display specifically, they did extend beyond federal restrictions regarding the sharing of personal information."

2/24. The U.S. Court of Appeals (3rdCir) issued its opinion [PDF] in Cochran v. Veneman, a First Amendment free speech case involving whether speech is governmental or private, and whether it is compelled in violation of the Constitution.

This case concerns the advertising campaign featuring the phrase "Got Milk?" that is operated pursuant to the Dairy Promotion Stabilization Act of 1983, which is codified at 7 U.S.C. § 4501, et seq. The Department of Agriculture assesses all dairy farmers, including Joseph Cochran, to pay for these ads.

Cochran is a small scale, independent farmer who does not follow common dairy industry practices, such as the use of growth hormones. He asserts that, contrary to the message of the ad, there is no generic milk product.

The Department of Agriculture argued that the speech involved is governmental speech, and is therefore immune from First Amendment challenge, and that the ad program is permissible under the Supreme Court's holding in Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457 (1997).

The Court of Appeals rejected these arguments. It held that the speech in this case is compelled, that it is private, and that it is therefore subject to First Amendment scrutiny. It also held that "the Dairy Act violates the Cochrans' First Amendment free speech and associational rights. Although the dairy industry may be subject to a labyrinth of federal regulation, the Dairy Act is a stand-alone law and the compelled assessments for generic dairy advertising are not germane to a larger regulatory purpose other than the speech itself."

The facts of this case involve milk and the Agriculture Department. However, the concept of compelled speech is also present in various debates over communications and technology related issues, such as forced access to cable facilities, must carry, equal time, free time for candidates, and truth in billing.

This case is Joseph Cochran, et al. v. Ann Veneman, et al., U.S. Court of Appeals for the 3rd Circuit, No. 03-2522, an appeal from the Middle District of Pennsylvania, D.C. Civil No. 02-cv-00529, Judge John Jones presiding.

2/24. The Supreme Court released four other opinions in addition to its opinion in Doe v. Chao. None of these other opinions are technology related. See, list with hyperlinks.

2/24. The U.S. Court of Appeals (DCCir) issued its opinion [13 pages in PDF] in In Re James Tennant, a petition for writ of mandamus regarding historic preservation procedures in the placement of wireless communications towers on land listed in the National Register of Historic Places. The Court of Appeals held that it lacked jurisdiction, and dismissed the petition. This is Appeals Court No. 02-1060.

2/19. The U.S. District Court (DMass) issued its Memorandum and Order [PDF] in Comcast of Massachusetts v. Marco Naranjo, regarding damages to be awarded for using a statutorily prohibited electronic device unlawfully to intercept a cable television signal. Liability was not at issue. Naranjo defaulted. The Court awarded Comcast $2780 in statutory damages and $1320.36 in costs and attorneys' fees, which was much less than Comcast requested. The Court based its award on its estimate of Comcast's lost revenues, taking into consideration the length of time that Naranjo intercepted cable signals, the basic rate, and the rates and estimated quantity of pay per view items viewed by Naranjo. (For example, the Court estimated that he viewed four dirty movies per month.). This is D.C. No. 03-10066-REK.

2/24. Sen. Patrick Leahy (D-VT) noted in his prepared statement for the Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security hearing on cyberterrorism on that John Malcolm "will soon be leaving his post at the Department of Justice to fight piracy for the Motion Picture Association of America. I wish him well in that endeavor." Malcolm is currently the Deputy Assistant Attorney General in charge of the Computer Crimes and Intellectual Property Section of the Department of Justice's (DOJ) Criminal Division.

2/20. Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, wrote a letter to Federal Communications Commission (FCC) Chairman Michael Powell, and the other Commissioners, that propounds numerous questions regarding broadcast indecency.

2/24. The Department of Justice's (DOJ) Antitrust Division released a report titled "Status Report: An Overview Of Recent Developments In The Antitrust Division's Criminal Enforcement Program". It states that the DOJ has "employed a strategy of concentrating its enforcement resources on international cartels that victimize American businesses and consumers".

The House will meet at 10:00 AM. See, Republican Whip Notice.

The Senate will meet at 9:30 AM. It will resume consideration of S 1805, the gun liability bill.

8:45 AM - 3:00 PM. The American Enterprise Institute (AEI) will host an event titled "The Advantages of High Productivity Growth". The speakers will include Barry Bosworth (Brookings Institute), Jared Bernstein (Economic Policy Institute), Elaine Chao (Secretary of Labor), Bruce Mehlman (Computer Systems Policy Project), Marvin Kosters (AEI), Adam Posen (Institute for International Economics), and Kathleen Utgoff (Bureau of Labor Statistics). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

TIME CHANGE. 9:30 AM - 12:00 NOON. The House Science Committee will hold a hearing titled "The Conflict Between Science and Security in Visa Policy: Status and Next Steps". The witnesses will be Asa Hutchinson (Under Secretary for Border and Transportation Security, DHS), Janice Jacobs (Assistant Secretary for the Office of Consular Affairs, Department of State), Jess Ford (GAO), and Robert Garrity (FBI). Press contact: Heidi Tringe at 202 225-4275. The hearing will be webcast. Location: Room 2318, Rayburn Building.

10:00 AM. The House Budget Committee will hold a hearing titled "The Economic Outlook and Current Fiscal Issues". The witness will be Federal Reserve Board Chairman Alan Greenspan. Location: Room 210, Cannon Building.

10:00 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will meet to mark up two bills, including HR __, the "Consumer Access to Information Act of 2004". The meeting will be webcast. Press contact: Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Veterans Affairs and Housing and Urban Development, and Independent Agencies will hold a hearing on the proposed budget for the White House Office of Science and Technology Policy (OSTP). Location: Room H-143, Capitol Building.

10:00 AM. The Senate Budget Committee will hold a hearing on President Bush's budget proposals for the Department of Homeland Security. Secretary Tom Ridge will testify. Location: Room 608, Dirksen Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Roger Benitez to be a Judge of the U.S. District Court for the Southern District of California. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The President's Export Council's Subcommittee on Export Administration (PECSEA) will hold a partially closed meeting. The PECSEA provides advice on encouraging trade with countries with which the U.S. has diplomatic or trading relations and of controlling trade for national security and foreign policy reasons. The agenda includes a presentation by the Bureau of Industry and Security (BIS). See, notice in the Federal Register, February 3, 2004, Vol. 69, No. 22, at Page 5125. Location: Department of Commerce, Room 4832, 14th Street between Pennsylvania and Constitution Avenues, NW.

11:30 AM. Rep. Chris Cox (R-CA) (Chairman of the House Homeland Security Committee), Rep. Jennifer Dunn (R-WA) (Vice-Chair), and the Subcommittee Chairs, will hold a press conference on the Department of Homeland Security's (DHS) strategic plan. Press contact: Liz Tobias at 202 226-9600. Location: Room 2322, Rayburn Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch. The topic will be "VoIP Deployment Overview". The speakers will be Rick Whitt (MCI), Melissa Newman (Qwest), Elana Shapochinikov (Net2Phone). RSVP to Evelyn Opany at 202 689-7163. Location: Piper Rudnick, 1200 19th St., NW.

1:00 PM. The House Homeland Security Committee Subcommittee on Cybersecurity, Science and Research & Development will hold a hearing titled "Homeland Security Science and Technology Budget Hearing for Fiscal Year 2005". The witness will be Charles McQueary, Under Secretary for Science and Technology. See, notice. Location: Room 2325, Rayburn Building.

4:30 PM. The House Appropriations Committee's Subcommittee on the Legislative Branch will hold a hearing on the proposed budget for the Library of Congress. Location: Room H-140, Capitol Building.

The House will meet at 10:00 AM. See, Republican Whip Notice.

9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold another hearing on HR 3717, the "Broadcast Decency Enforcement Act of 2004". The witnesses at this hearing will all be from the broadcasters: Alex Wallau (President, ABC Television Network), Gail Berman (President of Entertainment, Fox Broadcasting Company), Alan Wurtzel (National Broadcasting Company), Bud Paxson (Ch/CEO of Paxson Communications Corporation), John Hogan (P/CEO of Clear Channel Radio), and Harry Pappas (Ch/CEO of Pappas Telecasting Companies). The hearing will be webcast. See, notice. Press contact: Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

9:30 AM. The Senate Foreign Relations Committee will hold a hearings to examine public diplomacy and international free press. The witnesses will be Margaret Tutwiler (Under Secretary for Public Diplomacy & Public Affairs), Gene Mater (The Freedom Forum), Adam Powell (Annenberg School of Communications), and Kurt Wimmer (Covington & Burling). Location: Room 419, Dirksen Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies will hold a hearing on the proposed budget for the Department of Commerce. Secretary of Commerce Donald Evans is scheduled to testify. Location: Room 2359, Rayburn Building.

10:00 AM. The House Government Reform Committee will hold a hearing on the Government Services Administration's (GSA) Networx program, the proposed acquisition strategy for a government-wide voice and data telecommunications program. The witnesses will be Stephen Perry (GSA), Linda Koontz (GAO), Drew Ladner (Department of the Treasury), Mel Bryson (Administrative Office of the U.S. Courts), Anthony D'Agata (Sprint), Doug Dangremond (SBC), Kevin O'Hara (Level 3), Jerry Hogge (Winstar), David Page (BellSouth), Louis Addeo (AT&T), Shelly Murphy (Verizon), and Jerry Edgerton (MCI WorldCom). Location: Room 2154, Rayburn Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on VA, HUD, and Independent Agencies will hold a hearing to examine the proposed budget for the Office of Science and Technology Policy (OSTP) and the National Science Foundation (NSF). Location: Room 192, Dirsksen Building.

11:00 AM - 2:00 PM. Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in open session. Under Secretary for Science and Technology Charles McQueary will speak at 11:00 AM. See, notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.

12:00 NOON -1:30 PM. The Steering Committee on Telehealth and Healthcare Informatics will host a luncheon. The speaker will be Phil Bond, the Under Secretary of Commerce for Technology. He will release a report titled "Innovation, Demand, and Investment in Telehealth". RSVP to Neal Neuberger at Nealn@hlthtech.com or 703 790-4933. See, notice. Location: Room 402, Dirksen Building.

12:30 PM. Supachai Panitchpakdi, Director General of the World Trade Organization (WTO), will speak at a luncheon hosted by the National Press Club (NPC). Location: NPC, 529 14th St. NW, 13th Floor.

2:30 - 5:30 PM. The Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in closed session. See, notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.

The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) will hold a workshop on DRAFT Special Publication 800-60, titled "Guide for Mapping Types of Information and Information Systems to Security Categories". See, Volume I [PDF] and Volume II [PDF]. The workshop is open to government workers only. For more information, contact Elaine Frye at elaine.frye@nist.gov.

8:25 AM - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in closed session. See, notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.

9:00 AM - 4:00 PM. The National Institute of Standards and Technology's (NIST) will host an event titled "Spam Technology Workshop". The price to attend is $70. See, notice in the Federal Register, November 25, 2003, Vol. 68, No. 227, at Pages 66075 - 66076. Location: NIST, Administration Building (Building 101), Green Auditorium, Gaithersburg, MD.

The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) will hold a workshop on DRAFT Special Publication 800-60, titled "Guide for Mapping Types of Information and Information Systems to Security Categories". See, Volume I [PDF] and Volume II [PDF]. This is a repeat of the February 26 workshop. The workshop is open to government workers only. For more information, contact Elaine Frye at elaine.frye@nist.gov.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its notice in the Federal Register requesting comments to assist it in developing recommendations to the Federal Communications Commission (FCC) on the use of the 3650-3700 MHz band for unlicensed devices, such as 802.11 (WiFi) and BlueTooth. The FCC released its Notice of Inquiry [MS Word] on December 20, 2002. This is ET Docket No. 02-380. See, Federal Register, January 28, 2004, Vol. 69, No. 18, at Pages 4118 - 4120. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002, and story titled "NTIA Seeks Comments on Use of 3650-3700 MHz Band By Unlicensed Devices" in TLJ Daily E-Mail Alert No. 832, February 9, 2004.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding Level 3 Communications' petition for forbearance requesting the FCC to forbear from application of 47 U.S.C. § 251(g), the exception clause of § 51.701(b)(1) of the FCC's rules, and § 69.5(b) of the FCC's rules to the extent those provisions could be interpreted to permit local exchange carrier (LECs) to impose interstate or intrastate access charges on internet protocol (IP) traffic that originates or terminates on the public switched telephone network (PSTN), or on PSTN-PSTN traffic that is incidental thereto. This is WC Docket No. 03-266. See, FCC notice [3 pages in PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) to update the record concerning petitions for reconsideration of rules that the FCC adopted in the 1997 access charge reform docket. See, notice in the Federal Register, January 16, 2004, Vol. 69, No. 11, at Pages 2560 - 2561.

9:30 AM. The Senate Armed Services Committee will hold a hearing on President Bush's defense authorization request for FY 2005 and the future years defense program. See, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget  for the Department of Commerce (DOC). Location: Room S-146, Capitol Building.

10:00 AM. The Senate Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for science and technology programs, information analysis, and infrastructure protection. Location: Room 124, Dirksen Building.

10:00 - 11:30 AM. The Federal Communications Commission's (FCC) Media Security and Reliability Council will meet. Secretary of Homeland Security Tom Ridge will participate. See, notice in the Federal Register, October 21, 2003, Vol. 68, No. 203, at Page 60104. For more information, contact Barbara Kreisman at 202 418-1600 or Susan Mort 202 418-1043. Location: FCC, Commission Meeting Room, TW-C305, 445 12th Street, SW.

4:00 PM. Gretchen Ann Bender (University of Dayton School of Law) will present a paper titled "The Return to Core Values: Intellectual Property as a Commercialization Tool" in which she argues that intellectual property is simply a tool by which the U.S. distributes, spreads, and commercializes human creativity. For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.