7/8. Rep. Henry Waxman (D-CA), Rep. Rick Boucher (D-VA) and others introduced HR 3125 [LOC | WW], the "Radio Spectrum Inventory Act".

The Senate Commerce Committee (SJC) amended and approved a Senate version on July 8, 2009. That bill, S 649 [LOC | WW], is also titled the "Radio Spectrum Inventory Act".

The just introduced House bill would require the National Telecommunications and Information Administration (NTIA) and Federal Communications Commission (FCC) to create within 180 days of enactment "an inventory of each radio spectrum band of frequencies used in the United States Table of Frequency Allocations, from 225 megahertz to 10 gigahertz".

The House bill also requires annual reports by the NTIA and FCC to the House and Senate Commerce Committees. These reports must include, among other things, "an identification, by relevant geographic area, of the least utilized blocks of spectrum inventoried".

The bill also requires the creation of a "centralized portal or website to make the inventory of the bands of frequencies available to the public".

Rep. Boucher (at right) stated in a release that this bill "represents a significant step in making available more spectrum for commercial and wireless services. The more efficient use of our nation's airwaves will increase innovation for wireless products and services and improve the connectivity of the American people. As more people use wireless devices and as advanced applications require higher data rates over time, additional spectrum will be needed to accommodate growth. Wireless technologies can also play a critical role in bringing broadband to more consumers, particularly in rural areas".

The House bill contains a detailed list of the contents of this inventory.

It must identify "the radio services authorized to operate in each band of frequencies", "the identity of each Federal or non-Federal user within each such radio service authorized to operate in each band of frequencies", and "the total amount of spectrum, by band of frequencies, allocated to each Federal or non-Federal user (in percentage terms and in sum) and the geographic areas covered by their respective allocations".

It must also contain "the approximate number of transmitters, repeaters, end-user terminals or receivers, or other radio frequency devices authorized to operate" in each band.

It must also contain "an approximation of the extent to which each Federal or non-Federal user is using, by geography, each band of frequencies, such as the amount and percentage of time of use, number of end users ..."

It must also contain "for non-Federal users, any commercial names under which facilities-based service is offered to the public using the spectrum of the non-Federal user, including where the spectrum is being offered via resale and under what commercial names".

It must also contain "to the greatest extent possible ... contour maps or other information that illustrate the coverage area, receiver performance, and other parameters relevant to an assessment of the availability of spectrum in each band".

Finally, it must contain "to the greatest extent possible ... for each band or range of frequencies, the identity of each entity offering unlicensed services and the types and approximate number of unlicensed intentional radiators verified or certified by the Commission that are authorized to operate".

The other original cosponsors of the bill are Rep. Joe Barton (R-TX), Rep. Cliff Stearns (R-FL), Rep. John Dingell (D-MI), Rep. Ed Markey (D-MA), Rep. Mike Doyle (D-PA), Rep. Bart Gordon (D-TN), Rep. Zach Space (D-OH), Rep. Jerry McNerney (D-CA), Rep. Jay Inslee (D-WA), Rep. Anna Eshoo (D-CA), Rep. Doris Matsui (D-CA), Rep. Bart Stupak (D-MI), Rep. Kathy Castor (D-FL), Rep. Steve Buyer (R-IN), Rep. Peter Welch (D-VT), and Rep. Fred Upton (R-MI).

Gary Shapiro, head of the Consumer Electronics Association (CEA), sent a letter to Senators on July 8, 2009, in which he wrote that S 649 "should enable policymakers to distinguish between those government and commercial spectrum users that are making efficient use of this precious public resource and those who are wasting it."

But, Shapiro added, the government "must find at least 200 MHz of spectrum below 3 GHz that can be assigned to wireless broadband services".

He argued that "an inventory is not enough".

7/9. The U.S. Court of Appeals (7thCir) issued its opinion in Narducci v. Moore, a case brought under the federal Wiretap Act and Section 1983 in connection with a government entity's use of its 911 system to surreptitiously record phone calls of its employees. The Court of Appeals affirmed the District Court's denial of qualified immunity to the defendants.

Summary. This opinion is authority for several propositions. First, government employees can have a reasonable expectation of privacy in their phone calls at work that is protected by the 4th Amendment.

Second, Section 1983 and Wiretap Act claims brought by government employees for surreptitious recording of their work calls can survive the defense of qualified immunity.

And third, government entities and officials who creep the missions of their 911 operations to include non-public safety operations risk incurring liability under Section 1983 and the Wiretap Act. (In this case the government entity used its 911 system to record phone calls of employees in part to find out if they were making non-work related calls.)

This case also illustrates that when state and local government entities, and the Federal Communications Commission (FCC), create systems for one set of purposes, those systems are vulnerable to mission creep and abuse by the officials who administer them.

Facts. The Village of Bellwood, Illinois, lies to the west of Chicago. It operates a 911 system that includes the recording of calls to the system. Nicholas Narducci was previously the Comptroller for Bellwood. Bellwood is a small town that did not require a full time Comptroller. Hence, Narducci worked for several towns. He conducted confidential business over the phone for these towns, sometimes while using the phones of other towns.

Bellwood extended its 911 operations to include surreptitious recording of the phone conversations of its Finance Department, which included phones used by Narducci. The Court of Appeals opinion does not address other 911 system topics, such as location surveillance.

Bellwood's Board of Trustees did not make this decision. Rather, the decision was made in what the Court of Appeals described as a "pre-board meeting". The Court of Appeals wrote that "The board requested that the Bellwood Emergency Telephone System Board, the board overseeing the village's 911 operations, connect the finance department phone lines to the recording system for emergency calls."

Employees of the Finance Department were not informed. Eventually, Narducci discovered the surveillence.

Gregory Moore was the Chief of the Bellwood police department. Donald Lemm was the mayor.

District Court. Narducci filed a complaint in the U.S. District Court (NDIll) against Moore, Lemm, the Trustees, Bellwood, and other employees, under § 1983, based upon violation of his 4th Amendment right not to be subjected to illegal searches and seizures and for illegal wiretapping. He also alleged violation of the federal Wiretap Act, and the state of Illinois' Eavesdropping Act. Finally, he pled the state tort action of intruding on a place of seclusion.

The claims against all but Moore and Lemm were dismissed. They moved for summary judgment on the ground of qualified immunity. The District Court granted summary judgment on the state law claims and on the Wiretap Act claims involving phone calls made after Narducci learned of the surveillance. The District Court denied summary judgment on the § 1983 claims and the Wiretap Act claims involving surreptitious recording.

Constitution and Statutes. The 4th Amendment to the Constitution provides, in full, that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

42 U.S.C. § 1983 provides, in part, that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The Wiretap Act, at 18 U.S.C. § 2511, prohibits, subject to exceptions, intercepts of any wire, oral, or electronic communication. The private right of action is codified at 18 U.S.C. § 2520.

Court of Appeals. Moore and Lemm brought the present appeal, challenging the District Court's denial of their qualified immunity claims.

The Court of Appeals began that "When examining a qualified immunity claim, a court examines whether a constitutional right has been violated; and then, if a constitutional right was violated, whether the right in question was sufficiently well established that a reasonable officer would have been aware of it."

Hence, the Court examined whether Narducci's 4th Amendment rights were violated, and whether or not that it was a violation was clearly established.

The Court concluded that Narducci "has demonstrated a reasonable expectation of privacy in his phone line at work".

It also concluded that "Given that the allegations in this case include the recording of every phone call, for at least a six-year period, with no notice to the affected employees and with the invasion of privacy falling particularly hard on finance department employees who used those lines every day, Narducci has presented sufficient evidence of a violation of the Fourth Amendment to withstand summary judgment."

The Court then reviewed previous court opinions, and concluded that "it was sufficiently clear that government employees enjoyed a reasonable expectation of privacy in the workplace to preclude qualified immunity."

The Court also held that Moore and Lemm waived their qualified immunity argument as to the Wiretap Act claim.

Hence, the Court of Appeals affirmed the judgment of the District Court. However, since this appeal merely went to the District Court's denial of the defendants' motion for summary judgment, the case returns to the District Court. Narducci still has to prove his claims.

This case is Nicholas Narducci v. Gregory Moore and Donald Lemm, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-3427, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 01 C 1425, Judge Milton Shadur presiding. Judge Flaum wrote the opinion of the Court of Appeals, in which Judges Williams and William Lawrence (USDC/SDInd) joined.

7/8. The Department of Justice (DOJ) announced that David S. Patton, another defendant in the Ralsky cases, pled guilty in U.S. District Court (EDMich) to aiding and abetting violations of the CAN-SPAM Act committed by Alan Ralsky and Scott Bradley.

Eight other defendants previously pled guilty. See, story titled "Ralsky, Bown and Others Plead Guilty in CAN-SPAM and CFAA Case" in TLJ Daily E-Mail Alert No. 1,960, June 23, 2009.

The DOJ unsealed its original indictment on January 3, 2008. See, story titled "DOJ Prosecutes Operators of Pump and Dump Securities Scheme Under CAN-SPAM and CFAA" in TLJ Daily E-Mail Alert No. 1,965, January 4, 2008.

This prosecution involves violation of criminal prohibitions of the federal CAN SPAM Act (18 U.S.C. § 1037), violation of the federal Computer Fraud and Abuse Act (CFAA) (18 U.S.C. § 1030), and other federal crimes, in connection with the operation of a pump and dump securities fraud operation.

The DOJ stated in July 8, 2009, release that Patton stated in his plea agreement, that he and "his company Lightspeed Marketing Inc. developed, marketed, sold and distributed customized software products" including "Nexus" and "Proxy Scanner".

This release continues that "Patton admitted that he intentionally designed Nexus to enable users to insert materially false information into the ``headers´´ of the spam e-mails it sent. Patton designed Proxy Scanner to enable users to make use of third-party ``proxy´´ computers to relay or retransmit spam e-mails and in turn disguise their true origin. Patton admitted he sold both Nexus and Proxy Scanner to Alan Ralsky and other customers, knowing that the two software programs would be used to commit violations of the CAN-SPAM Act."

7/8. The Department of Justice (DOJ) announced that the U.S. District Court (DC) sentenced Gerald Lueders, a former employee of the Department of State (DOS), to serve one year of probation and pay a $5,000 fine. In January he pled guilty to violation of 18 U.S.C. § 1030 in connection with his unauthorized accessing of computer databases, including the Passport Information Electronic Records System (PIERS), to view passport application files. See, DOJ's July 8 release, and January 27 release.

7/7. The U.S. Attorneys Office (USAO) for the Central District of California announced that Derek Hawthorne pled guilty in U.S. District Court (CDCal) to two counts of copyright infringement in connection with his making available for download from a web site two movies that had not yet been shown in movie theaters or released on DVD -- "The Curious Case of Benjamin Button" and "Australia". See, USAO release.

The House will meet at 9:00 AM for legislative business. It will consider HR 3082 [LOC | WW], the "Military Construction and Veterans Affairs Appropriations Act, 2010". See, Rep. Hoyer's schedule for the week of July 6, and schedule for July 10.

The Senate will meet at 10:00 AM for morning business.

POSTPONED TO JULY 14. 10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nomination of William Wilkins to be Chief Counsel of the Internal Revenue Service (IRS). Location: Room 215, Dirksen Building.

12:00 NOON - 2:00 PM. The Progress & Freedom Foundation (PFF) will host an event titled "Regulating Online Advertising: What Will it Mean for Consumers, Culture & Journalism?". The speakers will be Howard Beales, Thomas Lenard (Technology Policy Institute), Jules Polonetsky (Director of the Future of Privacy Forum), Mark Adams (PFF), and Berin Szoka (PFF). See, notice. Location: Room 208, Capitol Visitor Center.

9:00 AM - 5:00 PM. Day one of a three day event hosted by the National Institute of Standards and Technology (NIST) titled "Workshop on the Protocol for Lightweight Authentication of Identity (PLAID)". See, notice in the Federal Register, June 19, 2009, Vol. 74, No. 117, at Pages 29183-29184. Location: Administration Building, NIST Gaithersburg campus, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Senate Judiciary Committee (SJC) will begin its hearing on the nomination of Judge Sonia Sotomayor to be a Justice of the Supreme Court. See, notice. Location: Room 216, Hart Building.

12:00 NOON - 2:00 PM. The Technology Policy Institute (TPI) will host a panel discussion titled "Broadband Competition Policy: What Comes After the Stimulus?". The speakers will be Michael Katz (New York University business school), Eli Noam (Columbia School of Business), William Lehr (MIT), Scott Wallsten (TPI), and Joseph Waz (Comcast). This event is free. Lunch will be served. See, registration page. Location: Room B-340, Rayburn Building.

3:00 PM. Deadline to submit applications to the National Institute of Standards and Technology (NIST) for money to conduct research on, among other things, information technology and cyber security. See, notice in the Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26209-26213.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to it Fourth Further Notice of Proposed Rulemaking regarding whether or not to modify FCC Form 323-E, the Ownership Report filed by noncommercial educational (NCE) licensees of AM, FM, and TV broadcast stations, to obtain gender, race, and ethnicity data. This 4thFNPRM is FCC 09-33 in MB Docket Nos. 07-294, 06-121, 02-277 and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244. See, public notice DA 09-1195, and notice in the Federal Register, May 27, 2009, Vol. 74, No. 100, at Pages 25205-25208.

9:00 AM - 5:00 PM. Day two of a three day event hosted by the National Institute of Standards and Technology (NIST) titled "Workshop on the Protocol for Lightweight Authentication of Identity (PLAID)". See, notice in the Federal Register, June 19, 2009, Vol. 74, No. 117, at Pages 29183-29184. Location: Administration Building, NIST Gaithersburg campus, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing on the nomination of William Wilkins to be Chief Counsel of the Internal Revenue Service (IRS). See, notice. Location: Room 215, Dirksen Building.

11:00 AM - 12:30 PM. The Heritage Foundation will host a panel discussion titled "Securing Identification Cards: REAL ID vs. PASS ID". The speakers will be Stewart Baker (Steptoe & Johnson), Brian Zimmer (Coalition for a Secure Driver’s License), Janice Kephart (Center for Immigration Studies), and Jena McNeil (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding procedures for allocating new FM channels and AM frequency assignments. The FCC adopted this item on April 7, 2009, and released the text [33 pages in PDF] on April 20, 2009. It is FCC 09-30 in MB Docket No. 09-52. See, notice in the Federal Register, May 13, 2009, Vol. 74, No. 91, at Pages 22498-22507.

5:00 PM. Deadline to submit applications to the National Telecommunications and Information Administration (NTIA) for Priority Round funding under its Low-Power Television and Translator Upgrade Program. See, notice in the Federal Register, May 12, 2009, Vol. 74, No. 90, at Pages 22401-22415.

12:30 - 3:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. See, notice in the Federal Register, June 1, 2009, Vol. 74, No. 103, at Pages 26252-26253. Location: J.W. Marriott, Salons E and F, 1331 Pennsylvania Ave., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) in which it proposes to modify its cost sharing requirements for the 2 GHz BAS band. The FCC adopted this FNPRM on June 10, 2009, and released the text on June 12, 2009. It is FCC 09-49 in WT Docket No. 02-55 and ET Docket Nos. 00-258 and 95-18. See, notice in the Federal Register, June 23, 2009, Vol. 74, No. 119, at Pages 29636-29650.

8:30 - 11:30 AM. The Phoenix Center for Advanced Legal and Economic Policy Studies will host an event titled "Understanding Broadband Metrics: The Broadband Adoption Index". FCC Commissioner Robert McDowell will speak at 9:00 AM. See, agenda [PDF]. RSVP to 202-274-0235 or info at phoenix-center dot org Location: National Press Club, 13th floor, 529 14th St., NW.

9:00 AM - 5:00 PM. Day three of a three day event hosted by the National Institute of Standards and Technology (NIST) titled "Workshop on the Protocol for Lightweight Authentication of Identity (PLAID)". See, notice in the Federal Register, June 19, 2009, Vol. 74, No. 117, at Pages 29183-29184. Location: Administration Building, NIST Gaithersburg campus, 100 Bureau Drive, Gaithersburg, MD.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Contraband Cell Phones in Correctional Facilities: Public Safety Impact and the Potential Implications of Jamming Technologies". See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "Identification Security: Reevaluating the REAL ID Act". Location: Room 342, Rayburn Building.

1:00 - 5:00 PM. The U.S. Patent and Trademark Office (USPTO) will host an event titled "2009 Business Methods Partnership Meeting". See, notice. Location: USPTO, Madison Auditorium (South), Concourse Level, Madison Building, 600 Dulany Street, Alexandria, VA.

2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of Mignon Clyburn and Meredith Baker to be Commissioners of the Federal Communications Commission (FCC). See, notice. Location: Room 253, Russell Building.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "The Role of Information Technology in Creating New Kinds of High Schools". The speakers will be Robert Atkinson (ITIF), Curtis Johnson, Tim MacDonald, and Alan Shusterman. See, notice. This event is free and open to the public. A light breakfast will be served. Location: ITIF, Suite 610, 1101 K St., NW.

12:00 NOON - 2:00 PM. 6:00 - 9:15 PM. The DC Bar Association will host an event titled "The ABCs of IP: A Primer on Patent, Copyright, and Trademark Law". The speakers will be Janet Fries (Drinker Biddle), Gary Krugman (Sughrue Mion), Steven Warner (Fitzpatrick Cella), and Mark Williamson (Fitzpatrick, Cella). See, notice. The price to attend ranges from $25-$35. Location: DC Bar Conference Center, 1101 K St., NW.

6:00 - 9:15 PM. The DC Bar Association will host an event titled "Antitrust Investigations: Tactical and Ethical Issues". The speakers will be Ann O'Brien (Department of Justice), Ray Hartwell (Hunton & Williams), Kathryn Fenton (Jones Day), and Donald Klawiter (Mayer Brown). The price to attend ranges from $89 to $129. Most DC Bar events are not open to the public. See, notice. Location: DC Bar Conference Center, 1101 K St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its public notice regarding technical specifications for FM digital audio broadcasting (DAB). This public notice is DA 09-1127 in MM Docket No. 99-325. See, notice in the Federal Register, June 12, 2009, Vol. 74, No. 112, at Pages 27985-27988.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST IR 7502 [42 pages in PDF] titled "The Common Configuration Scoring System (CCSS): Metrics for Software Security Configuration Vulnerabilities".

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2009 David Carney. All rights reserved.