4/10. The Senate Finance Committee (SFC) announced that it will hold a hearing on Thursday, April 12, 2007, titled "Filing Your Taxes: An Ounce of Prevention is Worth a Pound of Cure". The witness panel includes Evangelos Dimitrios Soukas, who the SFC notice describes as "An individual convicted of crimes including identity fraud and submitting fraudulent claims to the IRS".

The SFC stated in a release [PDF] that the Department of Justice (DOJ) attempted, but failed, to prevent him from testifying. It wrote that the DOJ "filed a motion to quash the Finance Committee's summons for the witness's testimony. Judge Thomas F. Hogan today affirmed the Committee’s right to call the witness -- who is now expected to testify as planned, to help the Committee understand how as many as 15,000 American taxpayers may have fallen victim to identity theft tax crimes last year."

See also, SFC's Application for Writ of Habeas Corpus Ad Testificandum [PDF] and DOJ's motion to quash [PDF].

Soukas is in custody in a federal prison in the state of California. His criminal activities included fraudulent online auctioning of laptops and other merchandise, identity theft to fraudulently open and use bank accounts in the names of others, and identity theft to fraudulently obtain federal tax returns owing to others.

See, July 22, 2005, release of the U.S. Attorneys Office for the Western District of Washington. See also, indictment [37 pages in PDF] and plea agreement [25 pages in PDF]. This case is USA v. Evangelos Dimitrios Soukas, U.S. District Court for the Western District of Washington, D.C. No. CR-05-006.

The SFC hearing will be held at 10:00 AM in Room G50 of the Dirsksen Building, a room larger than the SFC's usual hearing room.

The witness list also includes Michael Phillips, the Deputy Inspector General for Audit at the Treasury Inspector General for Tax Administration (TIGTA). On March 23, 2007, the TIGTA completed a report titled "The Internal Revenue Service Is Not Adequately Protecting Taxpayer Data on Laptop Computers and Other Portable Electronic Media Devices". See, story titled "IRS Reports Loss of Another 490 Computers" in TLJ Daily E-Mail Alert No. 1,560, April 4, 2007.

The other witnesses will be Mark Everson (IRS Commissioner), Eileen O'Connor (Assistant Attorney General in charge of the Tax Division), and James White (Government Accountability Office).

4/6. The U.S. Court of Appeals (9thCir) issued its opinion [13 pages in PDF] in USA v. Heckenkamp, a Section 1030 case in which the issue is the admissibility of evidence acquired in a warrantless remote search of a student's hard drive by a university network administrator who was acting in association with the FBI.

The Court of Appeals affirmed the District Court's denial of Heckenkamp's motion to suppress evidence under the special needs exception to the warrant requirement. The Court of Appeals held that federal prosecutors can use evidence collected in a warrantless computer search to prosecute a student for hacking computers outside of the university network, when the university acted out of an independent concern to protect its own computer systems.

Background. The Federal Bureau of Investigation (FBI) was investigating unauthorized access to the computer systems of Qualcomm. It determined that the intruder likely accessed Qualcomm's computer systems from a computer on the University of Wisconsin (UW) network.

The FBI then sought and received assistance from the UW. A UW investigation of network information led it to focus on one individual, Jerome Heckenkamp, who was a graduate student in computer science, and the computer in his UW dormitory room. The UW investigation determined that a computer, or two computers, it was not sure, under investigation, may have been used to gain unauthorized access to both Qualcomm's computer system and the UW e-mail system.

At this point, neither the FBI, nor UW police, had obtained a search warrant, or permission from Heckenkamp, to search his computer. Nevertheless, a UW network administrator used his computer to remotely search the hard drive of Heckenkamp's computer.

The next day the FBI obtained the first search warrant. Pursuant to the warrant, federal agents seized Heckenkamp's computer and searched his room.

Heckenkamp moved to suppress evidence gathered from the UW's remote search of his computer, an image taken of his hard drive, and the search conducted pursuant to the FBI's search warrant. The District Court denied the motion.

Heckenkamp pled guilty to two counts of violation of 18 U.S.C. § 1030, conditioned upon his right to appeal the denial of his motion to suppress. Heckenkamp then brought the present appeals.

Court of Appeals. The Court of Appeals affirmed. Heckenkamp prevailed on the issue of whether he held a reasonable expectation of privacy in the contents of his computer. The Court of Appeals opinion provides guidance regarding when there is a reasonable expectation of privacy in computers that are attached to networks. However, Heckenkamp lost on the second issue -- the special needs exception to the warrant and probable cause requirement.

The Court of Appeals first addressed the warrant requirement and reasonable expectations of privacy. It wrote that "As a prerequisite to establishing the illegality of a search under the Fourth Amendment, a defendant must show that he had a reasonable expectation of privacy in the place searched."

The Court also noted that the "government does not dispute that Heckenkamp had a subjective expectation of privacy in his computer and his dormitory room, and there is no doubt that Heckenkamp’s subjective expectation as to the latter was legitimate and objectively reasonable." However, it wrote that the "salient question is whether the defendant's objectively reasonable expectation of privacy in his computer was eliminated when he attached it to the university network. We conclude under the facts of this case that the act of attaching his computer to the network did not extinguish his legitimate, objectively reasonable privacy expectations."

The Court added that "privacy expectations may be reduced if the user is advised that information transmitted through the network is not confidential and that the systems administrators may monitor communications transmitted by the user." But, "In the instant case, there was no announced monitoring policy on the network." After reviewing the UW's policies, the Court concluded that "we must reject the government’s contention that Heckenkamp had no objectively reasonable expectation of privacy in his personal computer, which was protected by a screensaver password, located in his dormitory room, and subject to no policy allowing the university actively to monitor or audit his computer usage."

The Court of Appeals then addressed the second issue, the special needs exception. It concluded that "the search of the computer was justified under the ``special needs´´ exception to the warrant requirement. Under the special needs exception, a warrant is not required when `` `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.´ ´´"

The Court of Appeals wrote that while the UW knew of the FBI investigation regarding unauthorized access to Qualcomm's computer, it had an independent concern about the security of its own computers. Moreover, this concern about its own computers was enough to allow it to rush the investigation without a warrant.

The evidence collected by the warrantless search of the computer was used to obtain the conviction in the FBI's case. Nevertheless, the Court of Appeals wrote that the actions of the UW investigator "were not motivated by a need to collect evidence for law enforcement purposes or at the request of law enforcement agents."

Hence, the Court of Appeals affirmed the denial of the motion to suppress under this special needs exception to the warrant requirement.

Commentary. Heckenkamp pled guilty to hacking into Qualcomm's computer system. His conviction has withstood appeal, and he will be punished. Suppression of evidence in this case may have enabled Heckenkamp to escape punishment for a crime to which he pled guilty.

However, this opinion may also impact the electronic privacy of persons whose computers are attached to certain networks, both in academia, and elsewhere, including persons who have committed no crimes.

The exclusionary rule can wreak havoc on a prosecution. Occasionally, it enables guilty people to escape punishment. Law enforcement officials and prosecutors hate it when this happens.

Courts and legislators have only limited means by which they can incent overzealous prosecutors and investigators to respect the constitutional privacy rights of the general public. The exclusionary rule can be an effective tool. The loosening of the exclusionary rule in this case removes some of the incentive for prosecutors and investigators, including university police, to respect the privacy of users of their networks.

Also, in the present case, the Court of Appeals noted that the UW investigators had reason to suspect that a computer or computers that may have been used by Heckenkamp had accessed the university's e-mail system without authorization. The Court relied on this in finding that the special needs exception applied in this case.

However, the opinion does not provide clear guidance for related factual scenarios. For example, can a university network administrator remotely search a user's computer without a warrant under the special needs exception solely on the basis that the FBI has asserted that a user of the university network has hacked an outside computer system.

Moreover, the opinion is silent as to investigations by corporations, trade groups, or other non-law enforcement entities. Finally, the opinion does not address application of the special needs exemption in the context of online criminal activity other than Section 1030 unauthorized access.

This case is U.S.A. v. Heckenkamp, U.S. Court of Appeals for the 9th Circuit, App. Ct. Nos. 05-10322 and 05-10323, appeals from the U.S. District Court for the Northern District of California, D.C. Nos. CR-03-20041-JW and CR-00-20355-JW, Judge James Ware presiding. Judge Sidney Thomas wrote the opinion of the Court of Appeals, in which Judges William Canby and Michael Hawkins joined.

4/10. Kevin O'Connor was named Chief of Staff to Attorney General Alberto Gonzales, effective April 26, 2007. O'Connor is currently the U.S. Attorney for the District of Connecticut. Chuck Rosenberg, the interim Chief of Staff, will then return to his position as U.S. Attorney for the Eastern District of Virginia. See, DOJ release.

4/10. Melanie Ann Pustay was named Director of the Department of Justice's (DOJ) Office of Information and Privacy (OIP). She replaces Dan Metcalfe. She has worked in the OIP for 24 years. One of the primary functions of the OIP is to provide support to the various components of the DOJ in their efforts to evade their statutory obligations under the Freedom of Information Act (FOIA). The DOJ also stated in a release that Pustay "has worked with government officials in China, Argentina, Chile and other countries to assist in implementing guidance for openness-in-government initiatives".

4/10. The Office of the U.S. Trade Representative (USTR) released a report [17 pages in PDF] titled "Results of the 2007 Section 1377 Review of Telecommunications Trade Agreements".

4/10. The Senate Commerce Committee held an oversight hearing on the Federal Trade Commission (FTC). See, prepared testimony [42 pages in PDF] of the FTC. The FTC renewed its request to be given civil penalty authority in unfair or deceptive acts or practices cases, including "in the areas of data security, telephone pretexting and spyware". Sen. Ted Stevens (R-AK) wrote in his opening statement that the SCC "must ensure that the FTC has the regulatory authority it needs to go after and prosecute bad actors; particularly when the crimes involve emerging technologies. The illicit use of spam and spyware to perpetuate identity theft is one instance where increased regulatory authority would assist the Commission in doing its job."

4/10. The Privacy and Civil Liberties Oversight Board (PCLOB) published a notice in the Federal Register that announces, describes, recites, and sets the comment deadline and effective date of its interim final rule that establishes procedures for the public to obtain information from the PCLOB under the federal Freedom of Information Act (FOIA). The comment deadline and the effective date are both May 25, 2007. See, Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17789-17792.

4/10. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) announced that its will hold a single FY 2007 Advanced Technology Program (ATP) competition, that it is now soliciting proposals for financial assistance, that the deadline to submit proposals is 3:00 PM on May 21, 2007, and that it will host a series of five "ATP Proposers' Conferences" around the country in April. The four areas subsidized by the ATP are "Technologies for Advanced and Complex Systems", "Challenges in Advanced Materials and Devices", "21st Century Manufacturing", and "Nanotechnology". The NIST anticipates providing about $60 Million. The five conferences will be held from 9:00 AM to 12:30 PM, on the following dates, at the following locations:
  • April 13. NIST Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.
  • April 16. Hyatt Regency Dearborn Fairlane Town Center, Dearborn, Detroit, MI.
  • April 18. Hyatt Harborside at Boston's Logan International Airport, 101 Harborside Drive, Boston, MA.
  • April 18. Los Angeles Airport Marriott, 5855 West Century Blvd., Los Angeles, CA.
  • April 20. Hilton Austin Airport, 9515 Hotel Drive, Austin, TX.
See, notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17838-17841.

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The House will not meet on April 2-6 or 9-13. See, House 2007 calendar. The next meeting will be at 2:00 PM on April 16.

The Senate will meet at 9:30 AM. It will resume consideration of S 5, the "Stem Cell Research Enhancement Act of 2007", and S 30, the "Hope Offered through Principled and Ethical Stem Cell Research Act" or "HOPE Act".

Day one of a two day meeting of the Department of Labor's Bureau of Labor Statistics' (BLS) Business Research Advisory Council. The agenda for the 1:00 PM session includes "Internet data collection". See, notice in the Federal Register, March 27, 2007, Vol. 72, No. 58, at Pages 14299-14300. Location: Conference Center of the Postal Square Building, 2 Massachusetts Ave., NE.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Judicial Nominations". Sen. Charles Schumer (D-NY) will preside. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON - 3:00 PM. The Federal Communications Bar Association (FCBA) and the Stanford Institute for Economic Policy Research (SIEPR) will host a continuing legal education (CLE) seminar titled "Economic Analysis and FCC Decision-making". See, registration form [PDF]. Prices vary. This is a brown bag lunch. The deadline to register is 5:00 PM on April 6. Location: Hogan & Hartson, 13th floor, 555 13th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "The Patent Office Speaks". The speakers will be John Doll (Commissioner of Patents, USPTO), Peggy Focarino (Deputy Commissioner for Patent Operations, USPTO), John Love (Deputy Commissioner for Patent Examination Policy, USPTO), and Maureen Browne (moderator, Heller Ehrman). See, notice. The price to attend ranges from $15-$35. For more information, call 202-626-4363. Location: Jurys Washington Hotel, 1500 New Hampshire Ave., NW.

2:00 PM. The Heritage Foundation will host a panel discussion titled "The South Korea - U.S. (KORUS) Free Trade Agreement Context and Prospects". The speakers will include Wendy Cutler, Assistant U.S. Trade Representative and chief negotiator of the KORUS FTA. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

2:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Responding to The Inspector General's Findings of Improper Use of National Security Letters by the FBI". Sen. Russ Feingold (D-WI) will preside. See, notice. Location: Room 226, Dirksen Building.

Deadline to submit requests to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) to make presentations at the May 2, 2007 meeting of the BIS's Deemed Export Advisory Committee (DEAC) in Atlanta, Georgia. See, notice in the Federal Register: March 7, 2007, Vol. 72, No. 44, at Page 10141.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 236, the "Federal Agency Data Mining Reporting Act of 2007" and HR 740, the "Preventing Harassment through Outbound Number Enforcement (PHONE) Act of 2007". The agenda also includes consideration of several judicial nominees: Frederick Kapala (to be a Judge of the U.S. District Court for the Northern District of Illinois), Halil Suleyman Ozerden (U.S.D.C. Southern District of Mississippi), and Benjamin Hale Settle (U.S.D.C. Western District of Washington). The SJC rarely follows its published agenda. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Filing Your Taxes: An Ounce of Prevention is Worth a Pound of Cure". The hearing will also address the use of identity theft to fraudulently obtain the tax refunds of others, and the Internal Revenue Service's loss of computers and data thereon. Location: Room G50, Dirsksen Building.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Developments in Trade Remedy Proceedings and Legislation with China". The speakers will be Robert Heilferty (Office of Chief Counsel for Import Administration, Department of Commerce), Stephen Kho (Akin Gump), Jayme Roth, Marguerite Trossevin (Mayer Brown), and Eileen Bradner (moderator, Wiley Rein). See, notice. The price to attend ranges from $5-$25. For more information, call 202-626-4363. Location: Alston & Bird, 950 F St., NW.

12:00 NOON. Rep. Tom Davis (R-VA) and others will hold a news conference to release a report on how effective federal agencies have been at addressing their information security challenges, and in complying with the Federal Information Security Management Act of 2002. The other speakers will include Karen Evans (Office of Management and Budget) and Bobbie Kilberg (head of the Northern Virginia Technology Council). For more information, contact David Marin at 202-225-5074. Location: Center for Innovative Technology, auditorium, 2214 Rock Hill Road, Herndon, VA.

Day one of a three day conference hosted by the American Bar Association (ABA) titled "The 22nd Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott Hotel, Arlington, VA.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Missoula intercarrier compensation reform plan federal benchmark mechanism proposal. This proceeding is CC Docket No. 01-92. See, notice in the Federal Register, March 26, 2007, Vol. 72, No. 57, at Pages 14060-14061.

9:00 AM - 12:30 PM. Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) will host one of its series of Advanced Technology Program (ATP) Proposers' Conferences regarding its FY 2007 award of subsidies under the ATP program. This program provides about $60 Million in funding for technology research, including nanotechnology research. The deadline to submit proposals is 3:00 PM on May 21, 2007. See, notice in the Federal Register, April 10, 2007, Vol. 72, No. 68, at Pages 17838-17841. Location: NIST Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

Day two of a three day conference hosted by the American Bar Association (ABA) titled "The 22nd Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott Hotel, Arlington, VA.

Day three of a three day conference hosted by the American Bar Association (ABA) titled "The 22nd Annual Intellectual Property Law Conference". See, notice. Location: Crystal Gateway Marriott Hotel, Arlington, VA.

The House will return from recess at 2:00 PM.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice of proposed rulemaking regarding amending 37 CFR 2.64 to require a request for reconsideration of an examining attorney's final refusal or requirement to be filed through the Trademark Electronic Application System (TEAS) within three months of the mailing date of the final action. See, notice in the Federal Register, February 14, 2007, Vol. 72, No. 30, at Pages 6984-6986.

8:30 - 10:30 PM. The DC Bar Association will host a lecture titled "Entertainment Law: The Year In Review". The speaker will be Stan Soocher (University of Colorado at Denver). The price to attend ranges from $20 to $37.50. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.

ROOM CHANGE. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Department of Justice Oversight". The witness will be Attorney General Alberto Gonzales. Press contract: Tracy Schmaler (Leahy) at 202-224-2154 or Courtney Boone (Specter) at Courtney_Boone at judiciary-rep dot senate dot gov or 202-224-2984. Location: Room 216, Hart Building.

11:00 AM. The Cato Institute will host a panel discussion titled "Calm before the Storm? Developments in U.S. Trade Remedy Laws". The speakers will be Rep. Phil English (R-PA), David Hartquist (Committee to Support U.S. Trade Laws), Daniel Porter (Vinson & Elkins), and Daniel Ikenson (Cato). See, notice. Lunch will be served after the program. Location: Cato, 1000 Massachusetts Ave., NW.

12:30 PM. Rep. Charles Rangel (D-NY), Chairman of the House Ways and Means Committee, will give a speech. Location: National Press Club, 529 14th St. NW, 13th Floor.

TIME? The U.S. Chamber of Commerce (USCC) will host a workshop titled "Planning Your Online Legislative Affairs and Advocacy Campaign". This is the third of four workshops in a series titled "Online Strategies for Grassroots Advocacy". Location: USCC, 1615 H St., NW.

TIME? The Computer and Communications Industry Association (CCIA) will host an event titled "Policy in a New Congressional Environment". Location: Willard Intercontinental Hotel.

Day one of a three day workshop hosted by the National Institute of Standards and Technology (NIST) and others titled "6th Annual PKI R&D Workshop: Applications-Driven PKI (It's The Apps, Stupid!)". See, notice. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will meet in closed session regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

12:00 NOON - 2:00 PM. The Federal Communications Bar Association (FCBA) will host an lunch titled "2nd Annual Diversity and Young Lawyers Committees Mentoring Luncheon". For more information contact, Colin Sandy at 202-682-2496 or csandy at neca dot org. Location: Arnold & Porter, 10th Floor, 555 12th St. NW.

4:00 - 5:30 PM. Klaus Kleinfeld, P/CEO of Siemens AG, will give a speech. See, registration page. Prices vary. Location: U.S. Chamber of Commerce, 1615 H St., NW.

Day two of a three day workshop hosted by the National Institute of Standards and Technology (NIST) and others titled "6th Annual PKI R&D Workshop: Applications-Driven PKI (It's The Apps, Stupid!)". See, notice. Location: NIST, Red Auditorium, 100 Bureau Drive, Gaithersburg, MD.

TIME? The Department of Defense's (DOD) Defense Science Board Task Force on Integrating Sensor-Collected Intelligence will meet in closed session regarding intelligence, surveillance and reconnaissance systems. See, notice in the Federal Register, April 2, 2007, Vol. 72, No. 62, at Page 15659. Location: Science Applications International Corporation, 4001 N. Fairfax Drive, Arlington, VA.

April 11, New York City. 4:15 - 7:15 PM. There will be an event titled "XBRL for Equity Research and Investment Analysis". The speakers will include John White, Director of the Securities and Exchange Commission's (SEC) Division of Corporation Finance. See, notice. For more information, contact Mark Newsome at 646-424-8453. Location: Baruch College, Vertical Campus, 55 Lexington Ave., Room 14-220, New York, New York.