|News Briefs from
August 11-15, 2001
Courts Committee Makes Recommendations on Electronic Case
8/15. The Administrative Office of U.S.
Courts' Committee on Court Administration and Case Management released a report [PDF]
titled "Report on Privacy and Public Access to Electronic Case Files."
The report recommends that most civil and bankruptcy cases should be made
available in electronic format, with redactions of some personal data
identifiers, but that criminal cases should not be made available. See also, release.
The report is dated June 26, 2001; it was publicly released on August 15. The
Judicial Conference of the U.S., which makes policy for the federal courts, will
meet on September 11 to consider the recommendations contained in the report.
Civil Cases. The report recommends that "documents in civil case
files should be made available electronically to the same extent that they are
available at the courthouse with one exception (Social Security cases should be
excluded from electronic access) and one change in policy (the requirement that
certain "personal data identifiers" be modified or partially redacted
by the litigants). These identifiers are Social Security numbers, dates of
birth, financial account numbers and names of minor children."
Criminal Cases. The report recommends that "public remote electronic
access to documents in criminal cases should not be available at this time, with
the understanding that the policy will be reexamined within two years of
adoption by the Judicial Conference."
Bankruptcy Cases. The report recommends that "documents in
bankruptcy case files should be made generally available electronically to the
same extent that they are available at the courthouse, with a similar policy
change for personal identifiers as in civil cases; that § 107(b)(2) of
the Bankruptcy Code should be amended to establish privacy and security concerns
as a basis for the sealing of a document; and that the Bankruptcy Code and Rules
should be amended as necessary to allow the court to collect a debtor’s full
Social Security number but display only the last four digits."
9th Circuit Rules on ADA and Keyboard Related Repetitive
8/15. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Thornton
v. McClatchy, in which it held, two to one, that repetitive
stress injuries that limit one's ability to use a computer keyboard do not
constitute a disability within the meaning of the ADA.
Facts. Thornton worked for the Fresno
Bee, a McClatchy newspaper, as a writer. This required her to work with a
keyboard. She suffered from work related repetitive stress disorder and could
not operate a keyboard or write by hand for more than brief periods. McClatchy
concluded that she could not perform her job, and terminated her employment.
District Court. Thornton filed a complaint in the U.S. District Court (EDCal)
against McClatchy alleging violation of the Americans with Disabilities Act
(ADA) and the California Fair Employment and Housing Act for terminating her on
the basis of disability. The District Court granted McClatchy summary judgment
on the grounds that she was not disabled.
Court of Appeals. The Appeals Court affirmed the summary judgment on the
ADA claim. It wrote that "Thornton was able to perform a wide range of
manual tasks, including grocery shopping, driving, making beds, doing laundry,
and dressing herself. Her inability to type and write for extended periods of
time is not sufficient to outweigh the large number of manual tasks that she can
perform. The ADA requires a "substantial limitation" in performing
manual tasks ..." However, it reversed on the state law claim. Judge
Hawkins wrote the opinion of the Court, in which Judge Kozinski joined.
Dissent. Judge Berzon wrote a lengthy dissent regarding computer use and
the ADA. She wrote that "The fact that using a computer is so essential to
modern life that teaching that skill universally has become embedded in our
national educational policy must inform our understanding of the ADA's
disability definition, for two reasons: First, the ADA is a statute addressed
generally to the opportunities of the disabled for success in modern society.
That a particular manual skill is of such importance to success in life that it
is now taught to most children and used pervasively throughout their schooling
is surely some indication that, like reading, spelling, and adding, it is a
skill essential to such success. Second, and critically, the ADA definition of
disability at issue in this case applies not only in the employment context but
in educational and testing settings as well, to determine whether reasonable
accommodations are required. ... The sum of the matter is that the ability to
use one's arms and hands to operate a computer and handwrite is, in the modern
world, a skill that is essential both in getting an education and in earning a
living, and is useful in carrying out many activities of daily life. The
question before us is whether Congress, in enacting the ADA, blinkered this
reality and, as the majority holds, determined that individuals who cannot carry
out the manual tasks involved in written communication are not substantially
impaired in carrying out manual tasks as long as they can carry out a number of
other tasks requiring the use of their arms and hands."
Study of Internet Traffic Shows Competition
8/15. Caspian Networks, an
Internet infrastructure company, released a study
[PowerPoint] of Internet traffic. It found a high level of competition, and a
large number of competitors. It found that "19 companies make significant
contributions to core traffic, yet the top 4 service providers carry 50% of the
Internet’s traffic". This may be relevant to regulators who conduct
antitrust merger reviews at the Department of Justice's Antitrust Division, at
the Federal Trade Commission's Bureau of Competition, and at the Federal
Communications Commission. The study concluded that "The large number of
ISPs suggests high potential for consolidation within the industry". See
Caspian Networks (CN) stated that this is the first scientific study of network
traffic since the NSF's 1996 study. It conducted confidential surveys of the 19
largest tier 1 ISPs in the U.S.
The study also found that despite the economic troubles of dot com companies,
"the Internet is not shrinking, nor does it appear to be slowing yet in its
growth". It asserts that the speculation by some analysts and journalists
that the Internet traffic has shrunk are wrong. The study measured "The IP
backbone carrying potential, as well as utilization, of the 19 largest tier 1
U.S. Internet service providers". It found that "Trunk ports grew from
800 Gbps in April, 2000 to 3 Tbps in April, 2001" and that
"Utilization stayed the same, approximately 40%"
The study also examined what makes up this traffic. It found that very little
traffic is accounted for by dot com companies. Rather, "Companies in the
U.S. are beginning to realize they must move traffic to the Internet in order to
stay competitive." It also found that "Personal broadband doesn’t
significantly affect overall IP data rates at the core" and that
"Personal traffic represents a small percentage of Internet traffic overall
Chapter 11 Bankruptcy Petitions
service provider Covad filed a Chapter 11
petition for bankruptcy in U.S. Bankruptcy Court (DDel). The petition was filed by Covad
Communications Group, Inc., the parent company of Covad Communications Company.
Covad also stated in a release
that "Covad's operating subsidiaries, which provide DSL services to
customers, are not expected to be included in the court supervised proceeding
and will continue to operate in the ordinary course of business without any
court imposed restrictions."
8/15. Egghead.com filed a Chapter 11
petition for bankruptcy in U.S. Bankruptcy Court. Egghead, based in Menlo Park,
California, is an Internet retailer of computer hardware and software, consumer
electronics and office products, and other items. Egghead also entered into a
definitive agreement for the sale of assets to Fry's
Electronics, a chain of electronics stores based in San Jose, California.
Egghead also stated in a release
that "Subject to approval of the sale by the Bankruptcy Court, it is
expected that the transaction will close by the end of September."
EPIC Complains about Microsoft Passport
8/15. The Electronic Privacy Information Center
(EPIC) and others submitted an updated complaint
(PDF) to the Federal Trade Commission (FTC)
regarding Microsoft's Passport and other software and services. EPIC filed its
(PDF] on July 26, 2001. EPIC request that the FTC conduct an investigation of
Microsoft, and enjoin a number of software features and services which it
alleges violate § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.
Paragraph 1 of the original complaint, which is incorporated by reference in the
amended complaint, states that this "concerns the privacy implications of
the Microsoft XP operating system that is expected to become the primary means
of access for consumers in the United States to the Internet. ... Microsoft has
engaged, and is engaging, in unfair and deceptive trade practices intended to
profile, track, and monitor millions of Internet users. Central to the scheme is
a system of services, known collectively as ".NET," which incorporate
"Passport," "Wallet," and "HailStorm" that are
designed to obtain personal information from consumers in the United States
unfairly and deceptively. The public interest requires the Commission to
investigate these practices and to enjoin Microsoft from violating Section
5" of the FTCA.
EPIC requests that the FTC "Initiate an investigation into the information
collection practices of Microsoft through Passport and associated
services". EPIC also wants the FTC issue a far reaching injunction against
Microsoft. EPIC want the FTC to order Microsoft "to revise the XP
registration procedures so that purchasers of Microsoft XP are clearly informed
that they need not register for Passport to obtain access to the Internet",
"to block the sharing of personal information among Microsoft areas
provided by a user under the Passport registration procedures absent explicit
consent", "to incorporate techniques for anonymity and pseudo-
anonymity that would allow users of Windows XP to gain access to Microsoft web
sites without disclosing their actual identity", and "to incorporate
techniques that would enable users of Windows XP to easily integrate services
provided by non-Microsoft companies for online payment, electronic commerce, and
other Internet-based commercial activity".
The amended complaint contains new allegations regarding security, and non
compliance with the Children's Online Privacy Protection Act (COPPA). It also
requests that the FTC begin an investigation to determine whether Passport
complies with the requirements of the COPPA.
Executive Director of EPIC, spoke at a press conference in Washington DC on
August 15. He stated that EPIC has not filed, and does not intend to file, a
civil action against Microsoft. The complaint requests that the FTC enjoin
Microsoft; yet, Rotenberg asserted at the press conference that "it is not
our goal here to delay unnecessarily the release of XP ..."
After EPIC submitted its original complaint, Microsoft announced that it is
reducing the amount of information necessary to establish a Passport account.
Rotenberg stated that while he is pleased with these steps, "more needs to
be done." He sited the remaining Passport requirement of providing an
e-mail address. He stated that this is personally identifying, and unnecessary
to provide Passport services.
The FTC has consumer protection authority under the FTCA, which states that
"unfair or deceptive acts or practices in or affecting commerce, are hereby
declared unlawful." However, it has no privacy specific statutory
authority. Moreover, while EPIC's complaint is structured like a legal pleading,
the FTCA creates no administrative cause of action for private parties. Parties,
such as EPIC, and ordinary consumers, may submit complaints to the FTC. In fact,
the FTC encourages the submission of public complaints. However, it is within
the sole discretion of the FTC to determine whether to conduct any
investigation, or take any action.
The complainants are EPIC, Center for Digital Democracy, Center for Media
Education, Computer Professionals for Social Responsibility, Consumer Action,
Consumer Federation of America, Consumer Task Force for Automotive Issues,
Electronic Frontier Foundation, Junkbusters, Media Access Project, Net Action,
Privacy Rights Clearinghouse, U.S. Public Interest Research Group, Consumer
Project on Technology. Other groups involved in advocating for personal privacy
on the Internet, such as the Center for Democracy and Technology, are not
parties to this complaint.
Texas.net Complains to FCC about AOL Time Warner
8/15. Texas Networking, Inc. (Texas.net)
filed a complaint and
petition with the FCC seeking a declaratory ruling
that AOL Time Warner (AOLTW) has not complied with the FCC's Memorandum Opinion
and Order released January 22, 2001 in its AOL Time Warner merger proceeding. Specifically, Texas.net alleges that AOLTW has
not complied with the provision regarding allowing access by unaffiliated ISPs
to AOLTW's cable system. On August 15 the FCC issued a notice requesting
public comments on the complaint. The deadline to file is 20 after the release
of this notice. Texas.net provides residential dialup Internet access, and
broadband Internet access and other services to businesses in Austin, Dallas,
Houston, and San Antonio. See FCC
RUS Announces Grants for Providing Internet Access in Rural
8/15. The Rural Utilities Service
(RUS) published a notice
in the Federal Register announcing a grant program to finance the acquisition,
construction and installation of equipment, facilities and systems to provide
dial-up Internet access services in rural areas. This is a $2 Million pilot
program to encourage entities to provide Internet service in areas where it is
unavailable. The deadline for submitting grant applications is November 13,
2001. See, Federal Register, August 15, 2001, Vol. 66, No. 158, at Pages 42836 -
FCC Grants CALEA Extension
8/15. The FCC released an order
[PDF] that grants wireline carriers' petition for an extension under CALEA, Section 107(c). This
proceeding is "In the Matter of The Communications Assistance For Law
Enforcement Act (CALEA), Section 107(c) Extension of Capability
Requirements", CC Docket No. 97-213.
Wireline telecommunications carriers filed petitions with the FCC seeking
extensions of the deadline for complying with the capability requirements of
Section 103 of the CALEA. The FCC ordered that "pursuant to sections 4(i)
and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i)
and 154(j), and sections 107(c) of the Communications Assistance for Law
Enforcement Act, 47 U.S.C. § 1006(c), the carriers listed in the Appendix
attached to this Order are HEREBY GRANTED AN EXTENSION of the compliance date of
the assistance capability requirements of section 103 of CALEA, 47 U.S.C.
§1002(a)(1)-(4), until the dates agreed to by the FBI as set forth in each
carrier's individual FBI support letter."
8/15. The U.S.
Court of Appeals (FedCir) issued its opinion in Generation
II Orthotics v. Medical Technology Inc., a patent infringement
case involving post operative knee braces. Generation II appealed the District
Court’s claim construction and resulting judgment of noninfringement of U.S.
Patent Nos. 5,302,169
The Appeals Court affirmed in part, and vacated in part.
7th Circuit Reverses Class Certification Order in Sprint Right
of Way Case
8/14. The U.S.
Court of Appeals (7thCir) issued its opinion
v. Sprint, a case regarding procedure for certification of
classes under FRCP 23. Sprint purchased from railroads operating in every state
of the continental United States the right to install fiber optic cables on the
railroads' rights of way. Plaintiffs filed a complaint in the U.S. District
seeking class action status on behalf of owners of the land adjacent to railroad
rights of way, asserting that the right belongs to them, not to the railroads.
Plaintiffs requested damages for alleged conversion. The District Court
certified two plaintiff classes, one consisting of landowners adjacent to rights
of way obtained by condemnation, the other of landowners adjacent to rights of
way obtained by grants of public land to the railroads. Sprint filed this appeal
of the order of certification. Judge Posner, writing for a three judge panel,
reversed the District Court.
9th Circuit Decides Wiretap Act Case
8/14. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Price
v. Turner, a civil suit alleging violation of the Wiretap Act in
connection with the monitoring of cordless wireless phone conversations.
However, since the events giving rise to this case occurred ten years ago, this
appeal was decided according to state of federal law prior to the 1994
amendments to the Wiretap Act.
Frank Turner used a radio scanner to listen to and record conversations of his
neighbors who used cordless telephones. These phones used analog radio signals
at fixed frequencies, and hence, were easy to monitor. He heard discussions of
criminal activities. Turner also informed the El Dorado County Sheriff's
Department, which told him to continue, and provided him assistance. All of the
intercepted phone communications at issue in this case took place prior to the
1994 amendments to the Wiretap Act. One person whose conversations he monitored
was Leora Price.
Price filed a civil complaint against Frank Turner and El Dorado County
alleging, among other things, violation of the Wiretap Act, invasion of privacy,
and a civil rights claim under 42 U.S.C. § 1983. The District Court granted
summary judgment to defendants on all of Price's federal claims. Price appealed.
The Appeals Court wrote that "At the time of its original enactment in
1968, the Wiretap Act did not expressly refer to the monitoring of radio
transmissions. When Congress enlarged the Act's coverage in 1986, Congress
explicitly excepted protection for the 'radio portion of a cordless telephone
communication.' ... It was not until 1994 that Congress amended the Act to
prohibit the interception of cordless telephone communications." The
Appeals Court affirmed.
Computer and Internet Crime
8/14. The FBI's National Infrastructure
Protection Center (NIPC) announced that on July 23, 2001, British law
enforcement authorities arrested an unnamed person for violation of the United
Kingdom's Computer Misuse Act 1990 in connection with designing and propagating
malicious code, known as the Leaves worm, into Windows based computer systems.
See, NIPC release.
8/14. The U.S.
District Court (NDCal) appointed a receiver for PackSwitch.com. The SEC
filed a civil complaint on July 9, 2001, against PacketSwitch.com and its
founder and former CEO, Steven Ristau, alleging fraud by claiming that the
company had a proprietary technology for broadcasting movies wirelessly over the
Internet. See, SEC
8/14. Afilias, the ICANN
designated operator of the .info TLD registry, announced plans to challenge
unqualified sunrise registrations. To qualify for a sunrise registration, the
applicant for a domain name must have a registered trademark of national effect
that was issued before October 2, 2000, and the trademarked word must exactly
match the domain name. See, ICANN release.
8/14. The U.S.
Court of Appeals (FedCir) issued its opinion in Mycogen
Plant Science v. Agrigenetics, a petition for rehearing of the
Court's initial opinion, in which it held that Mycogen is not entitled to invoke
the doctrine of equivalents with respect to claims 13 and 14 of Mycogen's U.S.
Patent No. 5,380,831 titled "Synthetic insecticidal crystal protein
gene". The Appeals Court denied the petition for rehearing.
8/14. Microsoft filed a reply brief [PDF]
with the U.S. Court of Appeals (DCCir)
in support of its motion for stay of mandate pending the Supreme Court's final
disposition of Microsoft's petition for a writ of certiorari.
Ninth Circuit Rules Seven Dirty Words Case Is Moot
8/13. The U.S.
Court of Appeals (9thCir) issued its opinion
Words v. Network Solutions a case regarding the principle of
mootness. This appeal arose out of the incessant attempts by Seven Words LLC to
compel Network Solutions, on freedom of speech grounds, to register to it as
domain names various "dirty words" once used by comedian George
NSI's Refusal to Register. Seven Words LLC initially sought to register
ten second level domain names through Network
Solutions (NSI). The names included seven words that were the subject of a
comic monologue titled "Seven Words You Can Never Say on Television"
from the recording "Class Clown" by George Carlin (Little David
Records, 1972). Seven Words sought to register each word with each of the top
level domains (TLDs) of .com, .org, and .net. NSI, which at the time had the
exclusive authority to register domain names with these TLDs, refused to
register domains containing all but one of the dirty words, on the grounds that
it violated its policy against registering domains it deemed inappropriate.
Seven Words I. Seven Words filed an original complaint in the U.S.
District Court (CDCal)
against NSI for injunctive and declaratory relief, but not damages. It sought an
order compelling NSI to register the names. It also sought a declaration that
NSI violated its rights under the federal and California law. It later sought
registration of six more similar words; NSI again refused; and, it sought to
amend its complaint. This complaint included a claim for damages. Meanwhile, a
similarly minded plaintiff on the east coast sought registration of some of the
same words. NSI refused her requests as well. She filed a complaint in U.S.
District Court (DNH)
alleging violation of her First Amendment rights. The California action (Seven
Words I) was transferred to New Hampshire, and consolidated with that action.
The District Court in California declined to exercise jurisdiction over the
remaining state law claim. Seven Words failed to comply with various orders
issued by the New Hampshire court, and as a result, its portion of that
consolidated action was dismissed.
Seven Words II. Seven also filed a second action in California state
court, based on the same refusal to register dirty words, but this time only
alleged violation of California law. It did not seek damages until the case was
on appeal. NSI removed the case to U.S. District Court, based upon diversity of
citizenship. This case, Seven Words II, was assigned to the same judge, Stephen
Wilson, that heard Seven Words I. NSI then moved to dismiss Seven Words II for
failure to state a claim, pursuant to FRCP 12(b)(6). The Court granted this
motion. This appeal followed.
Registration of Dirty Words to Third Parties. Meanwhile, the dirty words
for which Seven Words sought registration (except for some which were subject to
an order in the New Hampshire action) were not the subject of any court
injunction. They were registered to other parties. After the registration of six
words, Seven Words sought an injunction from the Court in Seven Words II. The
request was denied, and Seven Words did not appeal that decision. When the New
Hampshire Court proceeded to release the words under its control, Seven Words
took no action prevent that release. Those words were then registered. By the
time the present appeal was heard, all of the words at issue had been registered
to third parties.
Mootness. The U.S. Court of Appeals did not address the merits of the
appeal. Rather, it ruled that the case had been rendered moot by the
registration of the words in dispute to third parties. The Court wrote that
"Seven Words never sought damages in this litigation (until a few days
before argument in this court) and, indeed, effectively disavowed damages for
tactical reasons. As for the declaratory relief, which is closely intertwined
with the injunctive relief, there is no longer a live controversy. At this
juncture, Seven Words effectively seeks an advisory opinion. We conclude that
neither of these claims is sufficient to resurrect Seven Words's suit." The
Court continued that "Here, the dispute with NSI has "evaporated"
and there is no remaining potentially adverse effect on the interests of the
parties. NSI no longer has a policy prohibiting registration of domain names
containing certain words; NSI is no longer the only company that can register
the domain names; and the domain names have already been registered to third
parties." The Court also commented that "a timely claim for damages
could have saved this case from dismissal for mootness ..."
Finally, the Court granted NSI's motion with respect to mootness, vacated the
District Court's judgment in favor of NSI, and instructed the District Court to
dismiss the case as moot.
The ACLU Foundation of Southern California,
which apparently has way too much free time on its hands, filed an amicus curiae
FCC NPRM Re Local Competition
8/13. The FCC published a notice
of regarding its Notice of Proposed Rulemaking (NPRM) in the Federal Register
regarding implementation of the local competition provisions of the Telecom Act
of 1996. This notice invites parties to update and refresh the record on issues
pertaining to the rules the FCC adopted in the First Report and Order in CC
Docket No. 96-98. Comments are due by September 12, 2001. Reply comments are due
September 27, 2001. See, Federal Register, August 13, 2001, Vol. 66, No. 156, at
FEC Fines Announced
8/13. The Federal Election Commission (FEC)
released summary information about 44 cases in which it assessed administrative
fines cases totaling $67,525. Several cases involve tech companies or Members of
Congress who are involved in tech issues. The FEC fined a committee supporting Rep. Jerry Weller (R-IL) $9,000 for not
filing a 30 day post general election 2000 report. Rep. Weller, who sits on the
Ways and Means Committee, often takes the lead in protecting the interests of
high tech workers, the Internet economy, and technology companies on tax issues.
The FEC fined a committee supporting Rep.
John Conyers (D-MI) $3,500 for the same omission. He is the ranking Democrat
on the House Judiciary Committee, where he is active in intellectual property
issues, privacy issues, and in opposing the Tauzin Dingell bill. The FEC fined
the Internet Leadership PAC $825 for late filing of the same post election
report. Finally, the FEC fined the Qwest PAC $900 for late filing of the report.
See, FEC release.
Covad Settles Securities Class Action Suit
8/13. Covad Communications, which provides
Internet access services via DSL, announced that it and the other defendants
have settled the case D.C.
Capital Partners v. Covad Communications Group. This is a
securities class action case pending in the U.S. District Court (NDCal).
Covad stated that "Under the terms of this agreement, Covad will contribute
to the settlement fund shares equal to 3 1/2 percent of its fully diluted common
stock as of August 10, 2001. Covad's insurance carriers will fund the cash
portion of the settlement. Covad and the other defendants continue to deny
plaintiffs' allegations." See, Covad
Go to News Briefs from August 6-10, 2001.