1/12. President Bush signed HR 4709, the "Telephone Records and Privacy Protection Act of 2006". This act criminalizes the practice of pretexting to obtain confidential consumer records from telecommunications carriers and VOIP service providers. It also criminalizes the sale, transfer, or purchase of such confidential records, without the authorization of the consumer. However, the act exempts law enforcement and intelligence agencies.

There are already numerous federal statutes that prohibit various activities that are often associated with pretexting to obtain phone records. See, stories titled "Summary of Existing Federal Laws Related to Pretexting" and "Federal Criminal Statutes Related to Pretexting" in TLJ Daily E-Mail Alert No. 1,463, October 6, 2006, and story in this issue titled "Hewlett Packard Pretexter Pleads Guilty in Federal Court". However, this act now criminalizes pretexting to obtain phone records.

This act adds a new Section 1039 to Title 18, the criminal code. It makes no changes to Title 47, regarding communications. If the bill had amended Title 47, then the House Commerce Committee (HCC) would have also had jurisdiction over the bill. The House Judiciary Committee (HJC), which reported this bill, has jurisdiction over criminal law bills, but not communications bills.

First, this act prohibits the act of pretexting to obtain phone records. It provides that "Whoever, in interstate or foreign commerce, knowingly and intentionally obtains, or attempts to obtain, confidential phone records information of a covered entity, by --
  (1) making false or fraudulent statements or representations to an employee of a covered entity;
  (2) making such false or fraudulent statements or representations to a customer of a covered entity;
  (3) providing a document to a covered entity knowing that such document is false or fraudulent; or
  (4) accessing customer accounts of a covered entity via the Internet, or by means of conduct that violates section 1030 of this title, without prior authorization from the customer to whom such confidential phone records information relates;
  shall be fined under this title, imprisoned for not more than 10 years, or both."

Second, this act prohibits selling or transfering confidential phone records obtained by pretexting. It provides that "Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally sells or transfers, or attempts to sell or transfer, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both."

Third, this act prohibits purchasing or receiving confidential phone records obtained by pretexting. It provides that "Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally purchases or receives, or attempts to purchase or receive, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both"

However, it adds that "the exceptions specified in section 222(d) of the Communications Act of 1934 shall apply for the use of confidential phone records information by any covered entity". See, 47 U.S.C. § 222.

The act defines covered entity to include both "telecommunications carrier", as defined by the Communications Act, and "any provider of IP-enabled voice service".

Finally, it provides that "This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or political subdivision of a State, or of an intelligence agency of the United States."

Rep. Lamar Smith (R-TX) introduced the bill on February 8, 2006. The House Judiciary Committee (HJC) approved it on March 2, 2006. See also, House Report No. 109-395. The House approved it on April 25, 2006, by a vote of 409-0. See, Roll Call No. 101. The Senate approved it by unanimous consent on December 8, 2006.

See also, story titled "Rep. Smith Introduces Bill to Criminalize Pretexting to Obtain Consumer Phone or VOIP Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006.

1/12. On January 10, 2007, the U.S. Attorney for the Northern District of California charged Bryan C. Wagner by criminal information [PDF] with one count of conspiracy in violation of 18 U.S.C. § 371, and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A and aiding and abetting aggravated identity theft in violation of 18 U.S.C. § 2.

On January 12, 2007, Wagner plead guilty to the two counts charged in the information. The U.S. Attorney's Office (USAO) described this in a release a its "First Conviction" in the Hewlett Packard (HP) pretexting scandal.

Wagner was a minor figure in HP's surveillance operations in 2005 and 2006. He was one of the individuals who engaged in fraudulent conduct to acquire confidential personal information, such as phone records, of HP's targets.

The information suggests that the USAO is also investigating other persons, and may bring further charges. The USAO may be starting at the bottom of the conspiracy, and working its way up. The information discusses other "co-conspirators", "known and unknown", but does not identity who these persons are.

The information states that HP's investigation targeted "numerous individuals, including but not limited to (1) HP board members, employees, and others affiliated with HP: (2) the family members of the HP board members, employees, and others affiliated with HP; (3) reporters of CNET, the Wall Street Journal, the New York Times, and Business Week; and (4) the family members of these reporters."

The information states that HP sought "names; residential and business addresses; residential, business and personal telephone numbers; dates of birth; social security numbers; and confidential telephone records, including call logs, billing records, call registers and subscriber information ..."

It states that "the co-consiprators engaged in fraud and deceit, including but not limited to the misrepresentation of identity to obtain the confidential and personal information belonging to others (sometimes called ``pretexting´´). The co-conspirators also obtained and used the Social Security Numbers" of the targets, without their knowledge or consent. (Parentheses in original.)

The first count to which Wagner plead is conspiracy. 18 U.S.C. § 371 provides, in part, that "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

The information states that on or about March 8, 2006, Wagner "established an online account for the local telephone service of Reporter Number One known to the United States, by using the social security number of that reporter. The telephone record information was requested by other co-conspirators."

The information states that the Social Security Number (SSN) was provided to Wagner by unnamed co-conspirators. Then, Wagner "used an e-mail account ... to establish the account for the telephone service of the reporter."

The information continues that Wagner then "accessed the online account of Reporter Number One and obtained the reporter's telephone records", which Wagner then forwarded "to other co-conspirators".

The information identifies the five offenses which Wagner conspired to commit: aggravated identity theft, wire fraud (18 U.S.C. § 1343), unauthorized computer access to information (18 U.S.C. § 1030), falsely representing an assigned social security account number (42 U.S.C. § 408(a)(7)), and disclosing and using a social security number (42 U.S.C. § 408(a)(8)).

The second count to which Wagner plead is aggravated identity theft, and aiding and abetting aggravated identity theft. 18 U.S.C. § 1028A(a) provides, in part, that "Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years." Subsection (c) lists wire fraud as well as the SSN crimes covered by 42 U.S.C. § 408.

The USAO release states that Wagner will not be sentenced until June 20, 2007. It does not describe the extent of Wagner's cooperation with investigators and prosecutors.

This case is U.S.A. v. Bryan C. Wagner, U.S. District Court for the Northern District of California, San Jose Division, D.C. No. CR 07 00016 JF, Judge Jeremy Fogel presiding.

See also, stories titled "Summary of Existing Federal Laws Related to Pretexting" and "Federal Criminal Statutes Related to Pretexting" in TLJ Daily E-Mail Alert No. 1,463, October 6, 2006.

1/12. President Bush met with José Barroso, President of the European Commission in Washington DC on January 8, 2007. Bush stated at a joint White House event that "We talked about the importance for Europe and the United States to resolve any differences we have when it comes to the Doha round for trade, so that we can promote international trade." See, transcript.

Barroso said that "the most crucial factor is the successful negotiations for Doha. Doha is not just about trade, it's also about development, it's about having a multilateral approach to trade. There is now the defining moment. We are really at defining moment, and we had a very good exchange, and we gave instructions to all negotiators to come with a solution as soon as possible. And of course it is important to engage also others, because this is a real global agreement that we are trying to build. And this will be a very important signal for the world community if we show that it is possible to have a global approach to trade and development."

Also, Susan Schwab, the U.S. Trade Representative, met with Peter Mandelson, the European Commissioner for Trade, on January 8. Schwab said at a joint news conference that "the United States and the EU are committed to seeking a successful conclusion to the Doha Round." See, transcript [4 pages in PDF].

Mandelson (at right) said that "We came to Washington today looking for new impetus for the Doha negotiations and I believe we found it. The meetings that we’ve had, first of all, on the Hill with Speaker Pelosi and Senate Majority Leader Harry Reed, then with the President and his colleagues, and now between myself and Sue have given us renewed confidence that the Doha deal is doable and that it can be done within the narrow timeframe that has opened up. I strongly welcome the political leadership of President Bush and President Barroso. I think completing this negotiation will depend on that kind of political will."

He added that "Our discussions with President Bush suggest that he wants a successful and early deal in the world trade talks and Europe must work with him to achieve a deal."

On January 12, Schwab traveled to Geneva, Switzerland, to meet with Pascal Lamy, Director General of the World Trade Organization (WTO). She stated at a news conference there that she has also held recent meetings with her counterparts from Japan, the European Union, and Brazil regarding the Doha round. She said that "We've got a long way to go for a breakthrough", but "we're making progress".

She also said that "The United States is going to need an extension of Trade Promotion Authority to implement any Doha Round agreement. ... However, to the extent that we’re making progress in the Doha Round I think you are likely to see Congress and US constituencies much more enthusiastic about moving ahead with an extension of Trade Promotion Authority." See, transcript [6 pages in PDF].

1/8. The International Intellectual Property Alliance (IIPA) sent a letter [2 pages in PDF] to the Office of the U.S. Trade Representative (OUSTR) requesting that it elevate Canada from the Watch List to the Priority Watch List as a result of its failure to revise its copyright statute and enforcement.

The IIPA wrote that "At a time when every other developed country and major U.S. trading partner has made significant progress toward modernizing copyright legislation to respond to the challenges of an ever changing technological universe, Canada’s failure to do so is particularly striking, and should elicit a commensurate reaction from the U.S. government."

It added that the "IIPA highlights the fact that the WIPO Internet Treaties were concluded over a decade ago and were designed to respond to what were then new technologies. The global community adopted certain critical features in the Treaties, such as clarifying the right of making available, and protecting technological measures used by right holders, in order to drive legitimate electronic trade in creative works. Canada’s unconscionable delay in adopting the instruments for preserving copyright protection in the digital age, in spite of its longstanding commitment to do so, simply cannot be countenanced."

The IIPA wrote letter to the OUSTR on September 29, 2006, regarding Canada. That letter contained more detail about Canada's failure to protect IPR, but withheld making a recommendation. It cited the failure of customs and law enforcement agencies in Canada to address the flow of pirated media into Canada from Asia, camcording of movies in theaters in Canada, or counterfeiting of movies released on DVD. The IIPA complained about the lack of resources and training for IPR enforcement in Canada, insufficient penalties for violators, and unwillingness to investigate and prosecute.

The IIPA wrote then that "as technology constantly advances, the ``retailers´´ now use ordinary computer equipment to become mass manufacturers, producing literally hundreds of thousands of pirated DVDs, CDs, software and video games."

The membership of the IIPA includes the American Association of Publishers (AAP), Business Software Alliance (BSA), Entertainment Software Association (ESA), Motion Picture Association of America (MPAA), National Music Publishers Association (NMPA), and the Recording Industry Association of America (RIAA).

The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. See, Majority Leader's calendar [PDF].

The Senate will meet at 1:00 PM. It will resume consideration of S 1, the "Legislative Transparency and Accountability Act of 2007".

11:00 AM - 12:00 NOON. The President's National Security Telecommunications Advisory Committee (NSTAC) will meet by teleconference. The "NSTAC members will receive comments from their DHS stakeholders related to National Security/Emergency Preparedness communications issues. The committee will also discuss and vote on the NSTAC's Emergency Communications and Interoperability Task Force Report, and discuss the work of the International Task Force". See, notice in the Federal Register, December 29, 2006, Vol. 71, No. 250, at Page 78451.

12:00 NOON. The Federal Communications Bar Association's (FCBA) International Telecommunications Committee will host a brown bag lunch titled "Results of the ITU Plenipotentiary Conference". The speakers will be John Kneuer (head of the NTIA) and David Gross (Department of State). For more information, contact Fiona Alexander at falexander at ntia dot doc dot gov. Location: Verizon, 1300 I Street, NW, Suite 400 West.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. The agenda includes consideration of a report titled "Convergence of Physical and Cyber Technologies and Related Security Management Challenges" and a discussion of "Assessment of the Insider Threat on Critical Infrastructure". The participants may include Michael Chertoff (Secretary of Homeland Security) and Greg Garcia (Assistant Secretary for Cyber Security and Telecommunications). See, notice in the Federal Register: January 10, 2007, Vol. 72, No. 6, at Pages 1232-1233. Location: National Press Club, 529 14th Street,  NW.

Second extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding its media ownership rules. The FCC adopted this FNPRM on July 21, 2006, and released the text [36 pages in PDF] on July 24, 2006. See also, story titled "FCC Adopts FNPRM on Rules Regulating Ownership of Media" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006. This FNPRM is FCC 06-93 in MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, and MB Docket Nos. 06-121. See also, original notice in the Federal Register, August 9, 2006, Vol. 71, No. 153, at Pages 45511-45515, order [PDF] extending deadlines, and order [PDF] further extending reply comment deadline.

Deadline to submit reply comments to the Office of the US Trade Representative regarding the operation, implementation and effectiveness of all trade agreements regarding telecommunications products and services to assist it in preparing its annual Section 1377 report. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66563-66564.

The House will meet at 10:00 AM for legislative business. It may consider legislation related to student loans. See, Majority Leader's calendar [PDF].

9:00 AM - 4:00 PM. Day one of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Aviation Security -- Reviewing the Recommendations of the 9/11 Commission". See, notice. Location?

? 10:00 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "Paying Off Generics to Prevent Competition with Brand Name Drugs". See, notice. Press contact: Tracy Schmaler at 202-224-2154 or Tracy_Schmaler at judiciary dot senate dot gov. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold its organizational meeting for the 110th Congress. Location: Room 215, Dirksen Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "A Practitioner’s Guide to the CFIUS Review Process". The speakers will include Michael Gallagher (Perkins Coie), Lynn Charytan (Wilmer Hale), Kent Bressie (Harris Wiltshire & Grannis), Christopher Simkins (DOJ's Criminal Division), Theodore Kassinger (O’Melveny & Myers), Carolyn Brandon (CTIA-The Wireless Association), and Jonathan Frankel (Wilmer Hale). The price to attend ranges from $15 to $20. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

12:30 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a planning and organizational meeting. For more information, contact Chris Fedeli at chrisfedeli at dwt dot com or 202-828-9874. Location: Davis Wright Tremaine, 1919 Pennsylvania Ave., NW, Suite 200.

1:00 - 3:30 PM. The Environmental Protection Agency (EPA) will hold a meeting to solicit comments and feedback on its project to share and publish information on locations of environmental interest through commercial internet services. The meeting agenda includes "Presentation on EPA's Geospatial Data Access Project" and "Presentation on the XML Schema and Tag Definitions". See, notice in the Federal Register, December 26, 2006, Vol. 71, No. 247, at Page 77395. Location: EPA, 1 Potomac Yard, First Floor Conference Center, 2777 Crystal Drive, Arlington, VA.

RESCHEDULED FROM JANUARY 10. 2:00 PM. The House Ways and Means Committee (HWMC) will meet to organize for the 110th Congress. See, notice. Location: Room 1100, Longworth Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the petition for declaratory ruling filed by One Stop Financial, Inc., Group Discounts, Inc., 800 Discounts, Inc., and Winback & Conserve Program, Inc. pertaining to the AT&T tariff at issue, and "any other issues left open by the D.C. Circuit’s Opinion in AT&T Corp. v. FCC", 394 F.3d 933. This proceeding is WC Docket No. 06-210. See, FCC Public Notice [3 pages in PDF] (DA 06-2360).

The House will meet at 10:00 AM for legislative business. See, Majority Leader's calendar [PDF].

9:00 AM - 4:00 PM. Day two of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the U.S. Department of Justice". See, notice. Press contact: Tracy Schmaler at 202-224-2154 or Tracy_Schmaler at judiciary dot senate dot gov. Location: Room G50, Dirksen Building.

10:00 AM. The Senate Banking Committee will hold its organizational meeting for the 110th Congress. See, notice. Location: Room 538, Dirksen Building.

10:00 AM. The President's Export Council will meet. The deadline to register to attend is January 12, 2007. See, notice in the Federal Register: December 26, 2006, Vol. 71, No. 247, at Page 77386. Location: Department of Commerce, Room 4832, 1401 Constitution Ave., NW.

12:00 PM. The Cato Institute will host a book forum. The speakers will by Jim Harper (author of Identity Crisis: How Identification Is Overused and Misunderstood), James Lewis (Center for Strategic and International Studies), and Jay Stanley (American Civil Liberties Union). See, notice. Lunch will follow the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:00 NOON. The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be FCC Commissioner Michael Copps. The deadline to register is 5:00 PM on January 12. See, registration form [PDF]. Location: Capital Hilton Hotel, 1001 16th St., NW.

The House will meet at 10:00 AM for legislative business. See, Majority Leader's calendar [PDF].

10:30 AM. Rep. Nancy Pelosi (D-CA) and Sen. Harry Reid (D-NV) will give speeches. The National Press Club (NPC) states that this event is "For credentialed reporters, National Press Club members and invited guests only." Location: NPC, 529 14th St. NW, 13th Floor.

12:00 NOON - 1:00 PM. The Progress and Freedom Foundation (PFF) will host a press briefing by conference call. PFF fellows will outline their tech priorities for 110th Congress. The call in number is 1-800-423-1988. The participant code is 1024423. RSVP to Amy Smorodin at asmorodin at pff dot org or 202-289-8928.

Deadline to submit comments to the President's Identity Theft Task Force (ITTF). See, FTC's request for comments [14 pages in PDF], and SEC release.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Blogging for Lawyers: How Practicing Lawyers Are Using Blogs to Find Clients, Fortune and Fame and How You Can Too". The speakers will include Amy Howe (www.scotusblog.com), Marc Mayerson (www.insurancescrawl.com), Scott Hodes (thefoiablog.typepad.com), and Carolyn Elefant (www.legalblogwatch.typepad.com). The price to attend ranges from $20 to $35. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch and fee based continuing legal education (CLE) seminar titled "Federal Computer Crimes". The speaker will be Eric Wenger, a Trial Attorney in the Department of Justice's (DOJ) Criminal Division's Computer Crime and Intellectual Property Section (CCIPS). The price to attend ranges from $25 to $60. The deadline for registrations and cancellations is 5:00 PM on January 19. See, registration form [PDF]. Location: Wiley Rein & Fielding, 1776 K Street, NW, Main Conference Center.

1/5. Marcus Thomas was named Assistant Director of the Federal Bureau of Investigation's (FBI) Operational Technology Division (OTD). See, FBI release.

1/12. The U.S. Court of Appeals (FedCir) issued its opinion [17 pages in PDF] in E-Pass v. 3Com, affirming the District Court's judgment of noninfringement. E-Pass filed a complaint in 2000 in the U.S. District Court (NDCal) against 3Com, Palm and others alleging that Palm handheld devices infringe its U.S. Patent No. 5,276,311, titled "Method and device for simplifying the use of a plurality of credit cards, or the like". This case is E-Pass Technologies, Inc. v. 3Com Corporation, Palm, Inc., et al., U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 2006-1356, 2006-1357, and 2006-1358, appeals from the U.S. District Court for the Northern District of California, Judge Lowell Jensen presiding, D.C. Nos. Nos. 00-CV-2255, 03-CV-4747, and 04-CV-0528.

1/5. Ben Bernanke, Chairman of the Federal Reserve Board (FRB), gave a speech in Chicago, Illinois. He stated that "We also continue to take measures to ensure that our communications, information systems, and policy processes will remain viable should critical infrastructure be disrupted." He added that "we will continue to work to ensure the vibrancy and resilience of the U.S. financial system."

1/3. The U.S. District Court (SDCal) sentenced Michael E. Laude to serve three years probation following his plea of guilty to theft of trade secrets, in violation of 18 U.S.C. § 1832(a)(1). The Office of the U.S. Attorney for the Southern District of California (USAO) stated in a release [PDF] that Laude previously worked for Qualcomm in engineering and product management positions. In 2002, just prior to leaving Qualcomm and going to work for Nokia, he downloaded proprietary and confidential source code to his home computer. This amounted to "almost 400,000 files", and "virtually all of Qualcomm's product line". The USAO also stated that in 2004 "Nokia announced the release of Preminet, a product designed to compete with Qualcomm's Brew Distribution System, and identified Mr. Laude as Preminet’s architect. An internal investigation at Qualcomm identified the downloads of source code by Mr. Laude. The source code obtained by Mr. Laude included the source code for the Brew Distribution System. A federal search warrant recovered all of the source code from Mr. Laude’s home computer system." However, the USAO added that "There is no evidence that the pilfered source code was used by Mr. Laude at Nokia or otherwise infiltrated Nokia. Nokia cooperated in the federal investigation."

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