10/6. Leaders of the House Commerce Committee (HCC) wrote a letter to Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), and David Gross of the Department of State (DOS), opposing the United Nation's efforts gain regulatory authority over the operation and use of the internet. The letter evidences bipartisan Congressional support for the position of the NTIA and DOS.

The HCC leaders wrote that "it is essential that the underlying domain name system of the Internet remains stable and secure. As such, the United States should take no action that would have the potential to adversely impact the effective and efficient operation of the domain name system. Therefore, the United States should maintain its historic role in authorizing changes or modifications to the authoritative root zone file."

On July 18, 2005, the United Nation's (UN) Working Group on Internet Governance (WGIG) released a report [24 pages in PDF] titled "Report of the Working Group on Internet Governance". This report states the UN's case for acquiring vast power to regulate various aspects of the operation and use of the internet. See also, story titled "UN Seeks Vast Authority to Regulate Operation and Use of the Internet" in TLJ Daily E-Mail Alert No. 1,178, July 20, 2005.

The International Telecommunications Union (ITU) will hold the second phase of its meeting titled "World Summit on Information Society" (WSIS) in Tunis, Tunisia, on November 16-18, 2005. The UN report will be discussed. See also, WSIS web site.

Gallagher has previously stated that the US will not cede authority to the UN. See also, story titled "NTIA Rebuffs UN Efforts to Gain Control Over Internet Governance" in TLJ Daily E-Mail Alert No. 1,166, July 1, 2005. See also, story titled "Ambassador Gross Says UN Will Not Be in Charge of the Internet" in TLJ Daily E-Mail Alert No. 1,212, September 13, 2005.

The letter was signed by Rep. Joe Barton (R-TX) and Rep. John Dingell (D-MI), the Chairman and ranking Democrat of the HCC, and by Rep. Fred Upton (R-MI) and Rep. Ed Markey (D-MA), the Chairman and ranking Democrat of the Subcommittee on Telecommunications and the Internet.

The body of the letter contains four paragraphs. They are as follows:

"We are writing in support of the United States position on Internet governance as the Unites States delegation heads to Geneva for the Preparatory Committee for the United Nation's World Summit on Information Society.

Consistent with market-based policies and the belief that private sector leadership has allowed the Internet the flexibility to innovate and evolve, we believe in the continued growth of the Internet and the variety of applications it supports. Given the Internet's importance to the world's economy, it is essential that the underlying domain name system of the Internet remains stable and secure. As such, the United States should take no action that would have the potential to adversely impact the effective and efficient operation of the domain name system. Therefore, the United States should maintain its historic role in authorizing changes or modifications to the authoritative root zone file.

The Internet Corporation for Assigned Names and Numbers (ICANN) is the appropriate technical coordinator of the Internet domain name system. While improvements continue to be made to the ICANN model, the Bush Administration, and specifically the Department of Commerce, should continue to maintain strong oversight so that ICANN maintains its focus and meets it core technical mission.

Governments have legitimate interest in the management of their country code top-level domains. The Administration should continue to work with the international community to address these concerns, bearing in mind the fundamental need to ensure stability and security of the Internet domain name system."

10/6. The Center for Democracy and Technology (CDT) and other groups wrote a letter [PDF] to leaders of the House Commerce Committee, and a similar letter [PDF] to leaders of the Senate Commerce Committee, arguing that the Congress should not now enact a broadcast flag mandate. Rather, there should first be hearings.

They write that "The broadcast flag regime would reach not just the design and manufacture of televisions, but also that of digital devices networked with televisions, including personal video recorders, personal computers, and Internet enabled mobile phones. In addition to involving the federal government in the process of technological innovation, there is a substantial risk that the flag regime would restrict users from engaging in a wide variety of fair uses critical to public affairs, education, and culture."

They want the Congress to examine numerous issues, including "What impact would the flag regime have on the development of new technologies?"

The signers of the letters are the CDT, American Library Association, American Association of Law Libraries, Association of Research Libraries, Consumers Union, Electronic Frontier Foundation, Medical Library Association, Public Knowledge, and the Special Libraries Association.

The Federal Communications Commission (FCC) adopted a broadcast flag rule, which was overturned by the U.S. Court of Appeals (DCCir), for lack of statutory authority. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005.

Digital Radio. The FCC's broadcast flag rule pertained to digital television. The letter also notes that "the record industry is advocating expanding flag legislation to authorize a comparable regime for digital radio -- an idea that has received virtually no congressional consideration to date."

In addition, one of the signers of these letters, Public Knowledge (PK), stated in a separate release that the Recording Industry Association of America (RIAA) "is floating on the Hill another version of content control language for digital radio".

PK also wrote that the RIAA's latest proposal is that the FCC be given authority "to adopt regulations requiring licensees broadcasting using digital audio broadcast systems to encrypt the transmission of copyrighted material and to regulate devices that receive such transmissions as may be necessary or appropriate to permit the reception of such encrypted transmissions and to implement any authorized copying and redistribution limitations authorized under such regulations as may be adopted pursuant to this section, provided, however, that the Commission may not authorize any digital audio broadcast transmission system that does not include such encryption at the source; the adoption of any digital audio regulations pursuant to this section shall not delay the adoption of final operational rules for digital audio broadcasting".

9/21. The Federal Trade Commission (FTC) filed a civil complaint [13 pages in PDF] in U.S. District Court (DNH) against Odysseus Marketing Inc. (OMI), and an officer of OMI, Walter Rines, alleging unfair and deceptive trade practices in violation of the Federal Trade Commission Act (FTCA) in connection with their distribution of spyware.

The Complaint alleges violation of Section 5(a) of the FTCA, which is codified at 15 U.S.C. § 45. It provides, in part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." The Congress has not enacted any legislation giving the FTC specific authority to regulate spyware. However, there have been significant efforts in recent years to enact spyware legislation.

The FTC filed this action on September 21, 2005.

The complaint alleges that "Since at least September 2003, and continuing thereafter, OMI has developed, advertised, promoted, and distributed to the public various software products, including a purported ``computer file-sharing anonymizer´´ called Kazanon and other products that purportedly increase the speed of a computer in downloading information from the Internet and in browsing the Internet."

It continues that OMI operates various web sites "to distribute software products, collect information from computers, and send pop-up and other Internet advertisements."

It alleges that OMI and Rines "distribute to consumers' computers a software program, known as ``Clientman,`` that disseminates pop-up and other Internet advertisements and installs a number of third-party advertising and other programs without notice to consumers. Clientman and the additional programs that it installs interfere with consumers' normal use of the Internet and degrade their computers' performance. In some cases, Defendants induce consumers to download Clientman by including it with software products for which Defendants make false performance, efficacy, and benefits claims. Defendants fail to disclose the consequences of downloading these various software products and their included software, Clientman. After Clientman has been installed to computers, it cannot be uninstalled through reasonable means."

The complaint alleges three unfair or deceptive acts or practices violate the FTCA. First, it alleges that the defendants have falsely represented to consumers that "Kazanon makes users of P2P file-sharing programs anonymous, and that therefore no one will discover their identity, or their computers' IP address or location, when they download or trade music, movies, software, or any other data, sound, or video file through the Internet."

Second, the complaint alleges that the defendants "have represented, expressly or by implication, that consumers who download Kazanon will receive a file-sharing anonymizer." However, the complaint alleges, "installing Kazanon also causes the installation of additional software programs, some of which replace search results provided by search engine web sites, collect and transmit information from computers to third parties, send pop-up advertisements and other Internet ads, and download more software programs." The complaint alleges that failure to disclose this information constitutes a deceptive act or practice.

Third, the complaint alleges that consumers cannot locate the software installed by defendants on their computers and remove it through the use of reasonable efforts.

The complaint seeks injunctive relief, rescission of contracts and restitution, and the disgorgement of ill-gotten gains.

This case is FTC v. Odysseus Marketing Inc. and Walter Rines, U.S. District Court for the District of New Hampshire, D.C. No. 05-CV-330.

Computer security companies have published information about Odysseus Marketing and Clientman. Symantec states that "Spyware.ClientMan is a spyware application that sends Internet usage information to a server, including email and Instant Messenger information. It also sends confidential information, such as IP address, browser used, and user details to a remote server." See, summary.

Trend Micro states in its summary of Clientman that it is a "browser hijacker" that opens pop up ads, "attempts to read a user's name", "crashes IE randomly", and "hijack search engine results". F-Secure states in its summary of Clientman that it is "Malware" and an "Advertising parasite" that "opens popups, and redirects search engine results". See also, Computer Associates' (CA) Spyware Information Center's summary of Clientman.

This action follows related actions taken by the FTC.

FTC v. Seismic Entertainment, Inc. On October 6, 2004, the FTC filed a civil complaint [14 pages in PDF] in U.S. District Court (DNH) against several defendants alleging unfair and deceptive trade practices in violation of Section 5(a) of the FTC Act, in connection with fraudulent dissemination of spyware.

The defendants are Seismic Entertainment Productions, Inc., Smartbot.net, Inc., and Sanford Wallace.

The complaint alleges deceptive marketing by the defendants of purported anti-spyware software named "Spy Wiper" and "Spy Deleter", that is actually spyware.

The complaint alleges that "Defendants, in numerous instances, have exploited particular vulnerabilities in certain versions of the Microsoft Internet Explorer web browser (“IE web browser”) to reconfigure consumers’ computers by installing software code onto their computers without their knowledge or authorization. The software code, among other things, (a) changes the IE web browser’s home page; (b) modifies the IE web browser’s search engine; and (c) downloads and installs various advertising and other software programs ... ; and (d) causes an incessant stream of pop-up advertisements to be displayed."

See also, story titled "FTC Files Complaint Against Spyware Con Artists" in TLJ Daily E-Mail Alert No. 994, October 11, 2004.

In the Matter of Advertising.com. On August 3, 2005, the FTC issued an administrative Complaint [3 pages in PDF] against Advertising.com and John Ferber alleging violation of Section 5 of the FTC Act in connection with their deceptive marketing and installation of adware on consumers' computers. The parties simultaneously entered into an Agreement Containing Consent Order [7 pages in PDF].

See also, story titled "FTC Takes Action Against Deceptive Marketing of Adware" in TLJ Daily E-Mail Alert No. 1,188, August 4, 2005. See also, FTC release.

10/5. The Senate Commerce Committee's (SCC) Subcommittee on Trade, Tourism, and Economic Development held another hearing on spyware.

Deborah Majoras, Chairman of the Federal Trade Commission (FTC), wrote in her prepared testimony [PDF] that "Spyware is a serious and growing problem that is causing substantial harm to consumers and to the Internet as a medium of communication and commerce. Preventing spyware that causes such harms is a priority for the Commission."

She discussed the nature of spyware, how it harms consumers, what actions the FTC has taken against spyware distributors, and education of consumers. She also discussed legislative approaches. She did not endorse any broad legislation to regulate spyware.

She testified that "the FTC supports legislation that would enhance its ability to investigate and prosecute spyware distributors that are located abroad or who try to mask their location by using foreign intermediaries to peddle their scams."

She said that "The FTC's ability to pursue distributors of spyware, spam, and other Internet threats to consumers would be significantly improved if the Congress were to pass the US SAFE WEB Act, introduced by Chairman Smith in the Senate as S.1608. The Act makes it easier for the FTC to share information and otherwise cooperate with foreign law enforcement officials."

She also said that the FTC "believes that legislation granting the Commission authority to seek civil penalties against spyware distributors may be useful in deterring the dissemination of spyware. As described above, the Commission has challenged conduct related to spyware dissemination as unfair or deceptive acts or practices in violation of Section 5 of the FTC Act. Under Section 13(b) of the FTC Act, the Commission has the authority to file actions against those engaged in this conduct in federal district court and obtain injunctive relief, including monetary relief in the form of consumer redress or disgorgement of ill-gotten profits. However, it may be difficult in some instances for the FTC to prove the sort of financial harm to consumers needed to order consumer redress, or the ill-gotten gains necessary to order disgorgement."

However, she also wrote that "the best and most comprehensive responses to misuse of technology will often be improved technology."

Sen. Gordon Smith (R-OR) presided. He stated in his opening statement that "I believe we must limit the abusive and deceitful practices while allowing industry the ability to build-on and improve existing technologies. To that end, I introduced the US Safe Web Act to expand the Federal Trade Commission's current authority to enforce existing laws and allow the agency to coordinate with foreign law enforcement officials to prosecute deceptive online activities. I have also co-sponsored legislation with Senator Allen to increase the FTC's current authority to enforce existing laws to prevent deceitful acts of spyware. We need to give the FTC the necessary tools to go after the individuals who are already violating current federal law. We need to address the most egregious activities and behaviors online without placing unnecessary restrictions on the entire technology industry."

Sen. Smith introduced, on July 29, 2005, S 1608, the "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers beyond Borders Act of 2005", which produces the near acronym of "U.S. SAFE WEB Act" of 2005".

This bill would amend the FTC Act to increase the authority of the FTC to pursue cross border fraud, particularly internet related conduct. For example, it would add to the definition of "unfair or deceptive acts or practices" acts or practices that "cause or are likely to cause reasonably foreseeable injury within the United States". The bill also addresses multi-national law enforcement efforts and information sharing.

See also, opening statement of Sen. Conrad Burns (R-MT).

The full SCC also held a hearing on spyware in May. See, story titled "Senate Commerce Committee Holds Hearing on Spyware" in TLJ Daily E-Mail Alert No. 1,136, May 16, 2005.

There have also been efforts to enact broad legislation that would regulate spyware. In the present Congress, the House has passed legislation.

Sen. Burns, Sen. Ron Wyden (D-OR) and others sponsored S 2145, "The Spy Block Act", in the 108th Congress. The SCC, but not the full Senate, approved that bill. See, stories titled "Senate Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 983, September 24, 2004, and "Senators Introduce Anti-Spyware Bill" in TLJ Daily E-Mail Alert No. 847, March 2, 2004.

On March 20, 2005, Sen. Burns, Sen. Wyden, Sen. Barbara Boxer (D-CA), and Sen. Bill Nelson (D-FL) reintroduced this bill as S 687, also titled "The Spy Block Act". It has not yet been approved by the SCC.

The House Commerce Committee (HCC) promptly approved its bill to regulate spyware, HR 29, the "Securely Protect Yourself Against Cyber Trespass Act", or SPY Act, sponsored by Rep. Mary Bono (R-CA) and others. See, story titled "House Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 1,092, March 10, 2005. The full House then approved this bill on May 23, 2005, by a vote of 393-4. See, Roll Call No. 201.

HR 29 (109th) is a revised version of HR 2929 (108th), also titled the SPY ACT, which the House approved by a vote of 399-1 on October 5, 2004. See, Roll Call No. 495. HR 2929 was the HCC's spyware bill. HR 29 (109th Congress), like HR 2929 (108th Congress) prohibits certain conduct with respect to spyware, and gives the FTC civil enforcement authority. See also, story titled "House Passes First Spyware Bill" and story titled "Summary of House Commerce Committee Spyware Bill" in TLJ Daily E-Mail Alert No. 991, October 6, 2004.

There is also a spyware bill that falls within the jurisdiction of the House Judiciary Committee (HJC), HR 744 (109th), the "Internet Spyware (I-SPY) Prevention Act of 2005", sponsored by Rep. Bob Goodlatte (R-VA), Rep. Zoe Lofgren (D-CA), and others. It amends Title 18 to provide criminal penalties for certain conduct related to spyware. HR 744 (109th) is a re-introduction of HR 4661 (108th Congress), titled the "Internet Spyware (I-SPY) Prevention Act of 2004". The House approved HR 4661 by a vote of 415-0 on October 6, 2004. See, Roll Call No. 503. See also, story titled "House Approves Second Spyware Bill" in TLJ Daily E-Mail Alert No. 993, October 8, 2004. The House approved HR 744 on May 23, 2005 by a vote of 395-1. See, Roll Call No. 200.

10/3. The Copyright Office (CO) published a notice in the Federal Register announcing a rule making proceeding to adopt exemptions to the Digital Millennium Copyright Act's (DMCA) ban on circumvention of technological measures that effectively control access to copyrighted works. The DMCA requires this proceeding.

The CO notice states that "The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention. This notice requests written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public, in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works."

The CO notice describes this as a "Notice of Inquiry" or NOI, rather than as a "Notice of Proposed Rulemaking" or NPRM. The notice does not contain any proposed rules, or describe any proposed exemptions. Nevertheless, the notice states the purpose of this proceeding is to promulgate rules.

Initial comments are due by December 1, 2005. Reply comments are due by February 2, 2006.

The CO has not yet announced the dates and places of public hearings. However, the notice does state that the CO "plans on holding public hearings in the Spring after receipt of the comments and reply comments. The tentative dates for the Washington, DC hearings are currently March 29 and 31, 2006, and April 3 and 4, 2006, and the hearings most likely will take place in the James Madison Memorial Building of the Library of Congress in Washington, DC. The dates and location of hearings for the West Coast have yet to be decided."

Anti-Circumvention Statute. The Congress enacted the DMCA in 1998. This is a large statute that includes, among other provisions, a prohibition on circumventing technological measures that effectively control access to copyrighted works, and a prohibition on trafficking in circumvention technology. The anti-circumvention provisions are codified at 17 U.S.C. §§ 1201 - 1205.

17 U.S.C. § 1201(a)(1)(A) provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore, § 1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;"

Unlike the prohibition of infringement of copyrighted works, the prohibition of circumvention provides no defense based upon fair use. Nor is it a defense that the circumvention, or circumvention technology, does not result in infringement of copyrighted works.

The DMCA does, however, provide that the CO shall conduct rulemaking proceedings every three years to establish exemptions to the general ban on circumvention.

§ 1201(a)(1)(C) provides that the CO "shall make the determination in a rulemaking proceeding ... of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works. In conducting such rulemaking, the Librarian shall examine--
  (i) the availability for use of copyrighted works;
  (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes;
  (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
  (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and
  (v) such other factors as the Librarian considers appropriate."

Also, § 1201 itself enumerates numerous exemptions. There is a blanket exemption for state and federal law enforcement and intelligence activities. There is also an encryption research exemption. There is also an exemption for a "nonprofit library, archives, or educational institution which gains access to a commercially exploited copyrighted work solely in order to make a good faith determination of whether to acquire a copy of that work ..."

Previous Anti-Circumvention Rulemaking Proceedings. The just announced proceeding is the CO's third rule making proceeding on DMCA anti-circumvention exemptions. It concluded its first proceeding in October of 2000. See, CO's web page on this first proceeding. It concluded its second rulemaking proceeding in October of 2003. See, CO's web page on this second proceeding. The CO received 50 written comments in its 2003 proceeding.

In 2003, the CO ultimately adopted a rule that exempted four classes of works. First, it exempted circumvention of certain lists of web sites blocked by filtering software, such as lists of indecent web sites. It exempted compilations consisting of lists of internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, web sites or portions of web sites. However, this exemption does not extend to lists of internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network, or to lists of internet locations blocked by software applications that operate exclusively to prevent receipt of email. See also, comment submitted by Seth Finkelstein.

Second, the CO exempted computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

Third, the CO exempted computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

Finally, the CO exempted literary works distributed in ebook format when all existing ebook editions of the work, including digital text editions made available by authorized entities, contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

Notice of Inquiry. The just published notice does not propose any exemptions. Rather, it solicits comments on what exemptions it should adopt. However, the notice does list and describe the four exemptions adopted in its 2003 proceeding.

Instead, much of the just published notice addresses how the CO will go about determining whether a requested exemption is warranted. It provides guidance to prospective commenters on what information the CO seeks.

The notice states that "a determination to exempt a class of works from the prohibition on circumvention must be based on a showing that the prohibition has or is likely to have a substantial adverse effect on noninfringing uses of a particular class of works".

It further states that "proponents of an exemption must provide evidence either that actual harm exists or that it is ``likely´´ to occur in the ensuing 3-year period. Actual instances of verifiable problems occurring in the marketplace are generally necessary in order to prove actual harm".

It also states that "a proponent must show that such problems warrant an exemption in light of all of the relevant facts".

This proceeding is RM 2005-11. The notice is published at Federal Register, October 3, 2005, Vol. 70, No. 190, at Pages 57526 - 57531. See also, the CO's web page for this proceeding.

The House will meet at 9:00 AM for legislative business. It will consider, pursuant to a rule, HR 3893, the "Gasoline for America's Security Act of 2005". See, Republican Whip Notice.

The Senate will meet at 8:15 AM. It will resume consideration of HR 2863, the defense appropriations bill.

9:00 AM - 5:00 PM. The National Institute of Standards and Technology (NIST) will hold a workshop on the security of electronic voting systems. See, notice in the Federal Register, September 9, 2005, Vol. 70, No. 174, at Pages 53635 - 53636. Location: NIST, Building 820, Room 152, Gaithersburg, MD.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sabre v. Department of Transportation, No. 04-1073, a case regarding wether the DOT can expand its regulatory authority to include computer reservation systems (CRS). See, amicus curiae brief [25 pages in PDF] of the Competitive Enterprise Institute and the Progress and Freedom Foundation (PFF) in support of Sabre. Judge Rogers, Brown and Williams will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM. The Senate Committee on Homeland Security and Governmental Affairs will hold a business meeting to consider the nomination of Julie Myers to be an Assistant Secretary of Homeland Security. See, notice. Location: Room 342, Dirksen Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committees will host a lunch titled "CMRS Issues". The price to attend is $15. Registrations and cancellations are due by 5:00 PM on Tuesday, October 5, 2005. See, registration form [PDF]. Location: Sidley Austin, 1501 K Street, NW., 6th Floor.

Day two of a two day conference titled "Identity Management: Creating A Trusted Identity" hosted by the Information Technology Association of America (ITAA). See, notice. For more information, contact Jennifer Kerber at jkerber at itaa dot org. Location: Hyatt Regency, Crystal City, VA.

Columbus Day.

The Federal Communications Commission (FCC) and other federal offices will be closed for Columbus Day. See, Office of Personnel Management's (OPM) list of federal holidays.

Deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its proposed amendment to the .NET Registry Agreement. See, notice.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. The agenda includes presentations by John Chambers (Ch/CEO of Cisco Systems) and Thomas Noonan (P/CEO of Internet Security Systems). See, notice in the Federal Register, September 2, 2005, Vol. 70, No. 170, at Pages 52420 - 52421. Location: National Press Club, 529 14th St. NW, 13th Floor.

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Open Web Application Security Project regarding the OWASP. See, notice and conference web site. Location: NIST, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding proposed changes to Federal Information Processing Standard (FIPS) Publication 201, titled "Standard for Personal Identity Verification of Federal Employees and Contractors. See, notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53346 - 53347.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Open Web Application Security Project regarding the OWASP. See, notice and conference web site. Location: NIST, Green Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Yom Kippur.

11:00 AM - 12:00 PM. The President's National Security Telecommunications Advisory Committee (NSTAC) will hold a meeting by teleconference. The first part of the meeting, which will be open to the public, will be a discussion of issues related to Hurricane Katrina. The second part of the meeting, which will be closed to the public, will be a discussion of the shutdown of cellular services in the tunnels into and out of Manhattan following the terrorist attacks in London on July 7, 2005. To participate, contact Elizabeth Hart at 703 289-5948 or hart_elizabeth at bah dot com by 5:00 PM on Tuesday, October 11, 2005. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Page 56731.

2:00 - 4:00 PM. The Department of States' (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for ITU-T Advisory Group. See, notice in the Federal Register, July 13, 2005, Vol. 70, No. 133, at Page 40414. Location: undisclosed. The DOS states that "Access to these meetings may be arranged by contacting Julian Minard at minardje at state dot gov.

Deadline to submit comments to the Interim Chief Copyright Royalty Judge, on behalf of the Copyright Royalty Board, on the existence of controversies to the distribution of the 2003 cable royalty fund. See, notice in the Federal Register, September 13, 2005, Vol. 70, No. 176, at Pages 53973 - 53974.

5:00 PM. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its out of cycle reviews of Ukraine and Saudi Arabia. Section 182 of the Trade Act of 1974 requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53410 - 53412. See also, story titled "USTR Lifts Trade Sanctions on Ukraine and Announces Special 301 Out of Cycle Review" in TLJ Daily E-Mail Alert No. 1,205, September 1, 2005. See also, notice in the Federal Register, September 14, 2005, Vol. 70, No. 177, at Pages 54436 - 54437.

10/6. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (July 1, 2005) of new regulations governing the adjustment of the royalty rates for the cable statutory license. See, Federal Register, October 6, 2005, Vol. 70, No. 193, at Pages 58310 - 58311.

10/6. The U.S. Court of Appeals (2ndCir) issued its opinion [14 pages in PDF] in Music Choice. v. Broadcast Music, Inc., again vacating and remanding the District Court's rate setting decision regarding the price for Music Choice's licensing of BMI's music on its cable, satellite, and internet services. This case is U.S., plaintiff, Music Choice, movant/appellant v. Broadcast Music, Inc., defendant/appellee, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 04-3444-CV, an appeal from the U.S. District Court for the Southern District of New York, Judge Stanton presiding. Judge Parker wrote the opinion of the Court of Appeals, in which Judges Wesley and Sotomayor joined.

10/6. The Senate Judiciary Committee (SJC) held an executive business meeting. The SJC held over its consideration of Timothy Flanigan to be the Deputy Attorney General, and Susan Neilson to be a Judge of the U.S. Court of Appeals (6thCir). The SJC also held over numerous bills related to personal data and privacy, including S 1789, the "Personal Data Privacy and Security Act of 2005", and S 751, the "Notification of Risk to Personal Data Act", and S 1326, the "Notification of Risk to Personal Data Act". It also held over two bills pertaining to trademark protection, S 1095, the "Protecting American Goods and Services Act of 2005", and HR 683, the "Trademark Dilution Revision Act of 2005". It also held over S 443, the "Antitrust Criminal Investigative Improvements Act of 2005". Most of these items have been on the SJC's agenda before, only to be held over.

10/6. The Office of the U.S. Trade Representative (USTR) released a statement by spokesman Christin Baker regarding EU support of the A350 Airbus. He wrote that "The United States has been clear in its message: Launch aid for the A350 or any other Airbus aircraft is completely unacceptable. The commitment of launch aid by any of the EU Member States is yet another step in the wrong direction. We want to negotiate an end to aircraft subsidies, but the commitment of aid makes that even harder to do. It's clear that the EU countries are unwilling to stop subsidizing Airbus. Therefore, we will continue to push ahead with our WTO case. We take no comfort from any offer to postpone the actual payment of the launch aid these countries have already promised to provide. The announcement of their commitment to back the A350 will affect Airbus's financing costs regardless of when they formally write the check." This statement pertains to US concerns about EU support for its aircraft industry, and the EU's concerns about US support for Boeing. This also implicates the US's FSC, ETI, and Jobs Act tax regimes. See, story titled "WTO Concludes AJCA Still Violates DSB's FSC/ETI Rulings" in TLJ Daily E-Mail Alert No. 1,225, October 3, 2005. And generally, failure by the US and EU to resolve trade disputes involving aircraft, and other non-technology sector disputes, has the potential to adversely impact technology related trade.

10/6. The Electronic Privacy Information Center (EPIC) published a report titled "Registered Traveler Card: A Privatized Passenger ID". This pertains to Verified Identity Pass, Inc.'s fee based program titled "Clear Registered Traveler" for air travelers. The EPIC complains that this program, which will involve the maintenance of electronic databases of personal information, will not be subject to the protections of the Privacy Act of 1974. It also states that "the program has a risk of mission creep -- a risk that information volunteered will be used for reasons not related to their original aviation security purposes". It suggests that this private program might be used for admission to office buildings and other locations. It concludes that "The development of such an unregulated ID system has significant implications for Americans. Entry into an office building or stadium should not be conditioned upon whether the person can afford a privatized ID card."

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