|News Briefs from
September 11-15, 2001
Third Circuit Affirms in Smirnoff Case
9/14. The U.S.
Court of Appeals (3rdCir) issued its opinion in The
Joint Stock Society v. UDV North America, a case involving claims
under the Lanham Act, for false designation of origin, false advertising, and
trademark cancellation, as well as claims under Delaware law, in connection with
the use of name Smirnoff vodka. The District Court dismissed for lack of a case
or controversy within the meaning of Article III of the Constitution. The
Appeals Court affirmed.
Defendant Pleads Guilty to Theft of Itanium Designs
9/14. Say Lye Ow plead guilty in U.S.
District Court (NCCal) to copying trade secrets in violation of 18 U.S.C. §
1832(a)(2), the Economic Espionage Act of 1996. In 1998 Say Lye Ow copied
without authorization computer files relating to the design and testing of
Intel's Merced microprocessor, which is now known as Itanium. He now faces a
maximum jail sentence of ten years. Ross Nadel, Chief of the CHIP Unit for
Northern District of California, is the Assistant U.S. Attorney (USAO) who
prosecuted the case. See, Plea
Agreement [PDF], Superseding
Information [PDF], and USAO release.
GAO Identifies Computer Security Weaknesses at BPD
9/14. The GAO released a report [PDF] titled
"Bureau of the Public Debt: Areas for Improvement in Computer
Controls". The report concludes that Bureau of the Public Debt's
"computer resources or operating environment are exposed to threats such as
unintentional errors or omissions or intentional modification, disclosure, or
destruction of data and programs by disgruntled employees or intruders. Thus,
the vulnerabilities we note increase the risks of inappropriate disclosure and
modification of sensitive data and programs, misuse or damage of computer
resources, or disruption of critical operations."
9/14. Melissa Brown plead guilty in U.S. District
Court (NDOhio) to a one count indictment charging her with computer fraud in
violation of 18 U.S.C. § 1030(a)(5)(A). Without authority from her
employer, Brown used a company laptop to access the company's network, and
change the password of the company's CIO, who was out of town at the time. See, CCIPS release.
Senate Passes Bill Expanding Electronic Surveillance Powers
9/13. The Senate passed HR 2500, the appropriations bill for FY 2002 for the
Departments of Commerce, Justice, State, and the Judiciary, and related
agencies. It is also sometimes called the "CJS bill". The Senate also
Amendment 1562 to this bill. It would increases law enforcement powers. It
would expand wiretap authority. It would also extend the scope of pen register
and trap and trace orders from old fashioned wireline phone technology, to new
Internet communications. The bill also contains many other law enforcement
See also, TLJ opinion article titled An
Analysis of How the Events of September 11, 2001 May Change Federal Law. It
focuses on the wiretap, pen register, and trap and trace provisions of Senate
Amendment 1562. It also speculates about the possible impact of recent terrorist
events on other tech related issues, including Carnivore, CALEA, E-911,
encryption, the Export Administration Act, cyber terrorism, antitrust
enforcement, 3G wireless services, and broadband Internet access.
9/13. SA 1562, approved by
the Senate on September 13, expands wiretap authority. Currently, there is a
short list of criminal offenses that can serve as predicate offenses for the
issuance of wiretap orders. This amendment would add two new offenses -- terrorism
and cyber crime.
Pen Registers and Trap and Trace Devices
9/13. SA 1562, approved by
the Senate on September 13, expands law enforcement authority with respect to
the use of trap and trace devices and pen registers. These are both telephone
industry concepts. The amendment brings these concepts into the world of
Pen Registers. A pen register records the numbers that are dialed or
punched into a telephone. Current law covers "wire" communications
only. Specifically, a pen register is "a device which records or decodes
electronic or other impulses which identify the numbers dialed or otherwise
transmitted on the telephone line to which such device is attached ..."
See, 18 U.S.C. §
Under SA 1562, the concept of a pen register would be expanded from merely
capturing phone numbers, to capturing routing and addressing information in any
electronic communications, including Internet communications. Specifically, as
amended, the statutory definition of pen register would read: "a device or
process which records or decodes dialing, routing, addressing, or signaling
information transmitted by an instrument or facility from which a wire or
electronic communication is transmitted ..."
Trap and Trace. The amendment also expands the concept of trap and trace.
Under current law, this is "a device which captures the incoming electronic
or other impulses which identify the originating number of an instrument or
device from which a wire or electronic communication was transmitted." See,
18 U.S.C. § 3127(4).
The amended language reads: "a device or process which captures the
incoming electronic or other impulses which identify the originating number or
other dialing, routing, addressing, and signaling information relevant to
identifying the source of a wire or electronic communication''.
Effect of Amendments. This is not just a matter of expanding pen register
and trap and trace orders from phone to Internet communications. It also expands
the scope and quantity of information collected. In the context of telephones,
the information obtained is only the phone number, not the content of the phone
call. In Internet communications, a significant amount of substantive content is
included within "routing, addressing, and signaling" information.
Civil liberties advocates have argued that this is significant because the
standard for obtaining pen register and trap and trace orders (for phone
numbers), as opposed to wiretap orders (for phone conversations), is much lower.
The current statute reads: "the court shall enter an ex parte order
authorizing the installation and use of a pen register or a trap and trace
device within the jurisdiction of the court if the court finds that the attorney
for the Government or the State law enforcement or investigative officer has
certified to the court that the information likely to be obtained by such
installation and use is relevant to an ongoing criminal investigation."
Note the use of the mandatory -- shall. Note also the low standard -- mere
relevance. The ease of obtaining pen register and trap and trace orders is based
on the assumption that only phone numbers, rather than the content of
conversations, is being obtained. Under the SA 1562, this low standard will be
used to obtain a wider scope of information.
National Scope of Orders. Note also that the above quoted language of
current law states that pen register and trap and trace orders apply
"within the jurisdiction of the court". The amendment would also
change this. It would add this: "The order shall, upon service of the
order, apply to any entity providing wire or electronic communication service in
the United States whose assistance is required to effectuate the order."
Offering Virtual Stocks Can Violate Securities Laws
9/13. The U.S. Court of Appeals (1stCir) issued its opinion
v. SG Ltd, a case regarding whether virtual shares in an
enterprise existing only in cyberspace fall are affected by the federal
securities laws. The Appeals Court, applying SEC
v. Howey, reversed the District Court's dismissal of the SEC's complaint.
Facts. SG operated a web site called StockGeneration that offered shares
in eleven "virtual companies" listed on the web site's "virtual
stock exchange." SG arbitrarily set the purchase and sale prices of each of
these imaginary companies in biweekly "rounds," and guaranteed that
investors could buy or sell any quantity of shares at posted prices. SG
advertised that investing in one of the stocks was a "game without any
risk" and that it "is supported by the owners of SG, this is why its
value constantly rises; on average at a rate of 10% monthly". SG further
stated that "capital inflow from new participants provided liquidity for
existing participants who might choose to sell their virtual
shareholdings". SG later sharply reduced the prices of shares, and
suspended all pending requests to withdraw funds. Finally, SG asserted that the
web site offerings were merely a "game".
SEC Complaint. The SEC filed a civil complaint in U.S. District Court (DMass)
alleging violation of the registration and anti fraud provisions of the federal
securities laws. Specifically, the SEC alleged offer, sale or delivery of
unregistered securities in violation of the Securities Act of 1933 § 5(a), (c),
15 U.S.C. § 77e(a),
(c); the SEC also alleged fraud in the offer or sale of securities in
violation of § 17(a), 15
U.S.C. § 77q(a); finally, the SEC alleged fraud in purchase or sale of
securities in violation of the Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b),
and SEC Rule 10b-5, 17 C.F.R. 240.10b-5. The SEC alleged that SG's offerings
constituted investment contracts.
District Court Dismissal. The District Court dismissed the complaint for
failure to state a claim upon which relief can be granted pursuant to FRCP
12(b)(6), holding that the complaint did not allege facts constituting
transactions in investment contracts.
Appeals Court. The First Circuit reversed. It held the SEC had satisfied
the three pronged test set out in the seminal case of SEC
v. Howey, 328 U.S. 293 (1946), to determine whether SG offered investment
contracts, that is, (1) the investment of money (2) in a common enterprise (3)
with an expectation of profits to be derived solely from the efforts of the
promoter or a third party.
IIPA Supports Trade Promotion Authority Bill
9/13. The International Intellectual Property
Alliance wrote a letter [PDF]
to House Rules Committee Chairman David
Dreier (R-CA) urging prompt enactment of Trade Promotion Authority (TPA),
which is also known as fast track.
It wrote that "If America's copyright industries are to remain successful
in global markets, the President, in consultation with Congress and the private
sector, must have effective and credible authority to negotiate bilateral,
regional and multilateral trade agreements that will reduce barriers to American
creative works, and enhance intellectual property protection and enforcement
available for American creators. Failure to grant TPA will limit our nation’s
efforts to secure non-discriminatory market access and achieve strong
intellectual property rights protection and enforcement worldwide. If Congress
fails to act promptly, America’s ability to retain its leadership role in
setting world trade standards will be seriously jeopardized."
The signatories included the heads of the IIPA, Motion Picture Association of
America, American Publishers Association, Business Software Alliance, Recording
Industry Association of America, and the Interactive Digital Software
9/13. HR2500, the FY 2002 appropriations bill for the Departments of Commerce,
Justice, State and the Judiciary, was passed by the Senate late on Thursday,
September 13. It provides for $1,139,001,000 in funding for the USPTO,
derived from user fees.
The includes the following language regarding USPTO funding: "For necessary
expenses of the United States Patent and Trademark Office provided for by law,
including defense of suits instituted against the Under Secretary of Commerce
for Intellectual Property and Director of the United States Patent and Trademark
Office, $856,701,000, to remain available until expended, which amount shall be
derived from offsetting collections assessed and collected pursuant to 15 U.S.C.
1113 and 35 U.S.C. 41 and 376, and shall be retained and used for necessary
expenses in this appropriation: Provided, That the sum herein
appropriated from the general fund shall be reduced as such offsetting
collections are received during fiscal year 2002, so as to result in fiscal year
2002 appropriation from the general fund estimated at $0: Provided further,
That during fiscal year 2002, should the total amount of offsetting fee
collections be less than $856,701,000, the total amounts available to the United
States Patent and Trademark Office shall be reduced accordingly: Provided
further, That an additional amount not to exceed $282,300,000 from fees
collected in prior fiscal years shall be available for obligation in fiscal year
2002, to remain available until expended: ..."
9/13. HR 2500, as passed by the Senate on September 13, provides $156,270,000 in
funding for the Federal Trade Commission (FTC)
for FY 2002.
Ninth Circuit Rules in Downing v. Abercrombie
9/13. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Downing
v. Abercrombie & Fitch, a case involving publication of
pictures and names of individuals without their permission in an advertising
catalogue. The Appeals Court reversed a District Court summary judgment for the
advertiser. The individuals' intellectual property, privacy, and other, rights
prevailed over the free speech and fair use rights of the advertiser.
Facts. Abercrombie & Fitch
(AF) publishes a fat quarterly catalogue to advertise its clothing and other
products. This advertising catalogue also contains some "articles".
One edition of the catalogue published pictures and identities of the plaintiffs
without their permission. The pictures were taken in Hawaii. The catalogue also
included pictures of scantily clad models.
Complaint. Plaintiffs filed a complaint in U.S.
District Court (CDCal) against AF alleging various federal and California
claims. Plaintiffs alleged violation of California's common law and statutory
prohibition against misappropriation of a person's name and likeness for
commercial purposes, a violation of the Lanham Act for confusion and deception
indicating sponsorship of Abercrombie goods, and a claim for negligence and
District Court. The District Court entered summary judgment for AF. It
held that the California state claims were foreclosed because AF's use of the
photograph was protected by the First Amendment; it also held that these claims
were preempted by the federal Copyright Act. It further held that Hawaii law was
the proper choice of law for some of these claims; that the Lanham Act claim was
precluded by the First Amendment and it was also precluded by the nominative
fair use doctrine; and that there was insufficient evidence to sustain the
negligence or defamation claims.
First Amendment. The Appeals Court reversed on almost all issues, and
remanded. It held that the First Amendment does not insulate AF in this case
because its "articles" were advertising copy.
Copyright Act Preemption. The Appeals Court also held that the federal
Copyright Act does not preempt this action. It wrote that while the Copyright
Act does preempt state laws that are equivalent to the exclusive rights
contained in § 106 of the Copyright Act, in this case, "it is not the
publication of the photograph itself, as a creative work of authorship, that is
the basis for Appellants' claims, but rather, it is the use of the Appellants'
likenesses and their names pictured in the published photograph."
Other Issues. The Appeals Court also reversed the District Court on
the choice of law issue. The Appeals Court also reversed District Court's
rejection of the Lanham Act 43(a) claim, and its holding for AF on nominative
Scantily Clad Models. However, the Appeals Court affirmed the summary
judgment on the defamation claim. Plaintiffs had submitted no evidence of
injury. Apparently, it is not defamation to depict someone in a clothing
catalogue with nude or scantily clad beach models.
BXA Issues Injunction for Exporting Computer Equipment to
9/13. The Bureau of Export Administration
(BXA) published a notice
in the Federal Register regarding its injunction against Infocom, its officers,
and others, for selling computer equipment to Libya and Syria in violation of
the Export Administration Regulations (EAR). The notice contains a full copy of
the BXA's September 6 order, which provides, in part, that Infocom and others
"may not, directly or indirectly, participate in any way in any transaction
involving any commodity, software or technology (hereinafter collectively
referred to as "item") exported or to be exported from the United
States that is subject to the Export Administration Regulations (EAR), or in any
other activity subject to the EAR ..." The notice further provides
"notice to companies in the United States and abroad that they should cease
dealing with Infocom ..." Infocom is based in Richardson, Texas. Its CEO is
Bayan Medhat Elashi. Four other Elashis are covered by the order, as is Fadwa
Elafrangi, the majority owner of Infocom. The order also covers Tetrabal
Corporation, Inc. See, Federal Register, September 13, 2001, Vol. 66, No. 178,
at pages 47630 - 47632.
FCC Adopts Software Defined Radio Rules
9/13. The FCC adopted rule changes at its
September 13 meeting to accommodate the authorization and deployment of a
software defined radios (SDRs). The FCC released a statement,
in which it wrote: "Software defined radios can be quickly reprogrammed to
transmit and receive on multiple frequencies in different transmission formats.
This reprogramming capability could change the way users traditionally
communicate across wireless services and promote more efficient use of radio
spectrum. In a software defined radio, functions that were formerly carried out
solely in hardware, such as the generation of the transmitted radio signal and
the tuning of the received radio signal, are performed by software. Because
these functions are carried out in software, the radio is programmable, allowing
it to transmit and receive over a wide range of frequencies and to emulate
virtually any desired transmission format." (ET Docket 00-47.)
Michael Powell Addresses Events of September 11
9/13. FCC Chairman Michael
Powell made a statement
at the FCC's September 13 meeting regarding the events of September 11. He
praised the work of telecom companies to maintain service in New York City, and
stated that "I am confident that these efforts will continue to ensure the
nation's communications infrastructure will operate effectively to serve the
communications needs of our citizens and an efficient functioning economy."
Martin Names Bohigan to be Legal Advisor
9/13. FCC Commissioner Kevin
Martin named Catherine Bohigian to be his Legal Advisor on cable and
mass media issues. Like Martin, she previously worked in the Washington DC
office of the law firm of Wiley Rein &
Fielding. Prior to law school, she worked as a legislative analyst for
Bellcore (now Telcordia Technologies),
and as a program analyst for IBM governmental
affairs. See, FCC
FCC Examines Ownership Rules
9/13. The FCC adopted, but did not release, a Further Notice of Proposed
Rulemaking (FNPRM) to review its horizontal and vertical limits for cable
companies. (CS Docket Nos. 98-82 and 96-85, and MM Docket No. 92-264.) See, FCC
release. The FCC also adopted, but did not release, a NPRM to review its
rule barring common ownership of a broadcast station and daily newspaper in the
same market, and to consider whether or to what extent the rule should be
revised. (MM Docket No. 01-235). See, FCC
9/13. Most Congressional hearings that had been scheduled for Thursday,
September 13, were cancelled or postponed, including the House Judiciary Committee's meeting
to mark up HR
1552 (Internet Tax Nondiscrimination Act), and the Senate Commerce Committee's Science,
Technology, and Space Subcommittee's hearing on digital divide issues.
Senate Committee Examines Cyber Terrorism
9/12. Since the events of September 11, almost all public hearings
and meetings on Capitol Hill have been cancelled or postponed. The House and
Senate both met to pass a joint resolution
on September 12. One of the few previously scheduled events that did proceed on
September 12 was a hearing of the Senate
Governmental Affairs Committee on cyber terror threats to America's critical
The events of September 11 were not an attack on information systems. However,
the members of the Committee examined what terrorist threats exist to these
systems, and what should be done to minimize the risks. The Committee has
jurisdiction over information infrastructure of government agencies only.
Nevertheless, the Senators addressed both government and private sector issues.
The Senate Judiciary Committee's Technology, Terrorism, and Government
Information Subcommittee had scheduled a hearing on another matter for September
12. But, it cancelled its hearing.
Sen. Joe Lieberman (D-CT), the
Chairman of the Committee, presided. Sen.
Fred Thompson (R-TN), the ranking Republican also participated. Sen. Bob Bennett (R-UT) was present
throughout the two hour hearing. Sen. Jim
Bunning (R-KY), Sen. Carl Levin
(D-MI), Sen. Tom Carper (D-DE), and Sen. Mark Dayton (D-MN), also participated.
Sen. Lieberman said that the events of September 11 begin a new era for American
national security, and that future attacks will also target critical information
infrastructure. The primary witness, Joel Willemssen of the General Accounting Office, testified that
"federal computer systems are riddled with weaknesses that continue to put
critical operations and assets at risk." See, prepared testimony [PDF] of
Sen. Lieberman questioned Willemssen about the reasons for lack of preparedness
in both the public and private sectors. Willemssen stated that Presidential Decision
Directive 63 [PDF], dated May 1998, has not been adequately implemented. He
also said that the problem is that agencies have not made this a priority.
Willemssen testified that another problem is that "the private sector does
not always want to share information."
Sen. Thompson suggested that the way to get the private sector to share
information about cyber security with government is to give it the same sort of
statutory protection that the Congress gave in The Y2K Act. Sen. Bennett
interjected, "Have I got a bill for you," perhaps referring to HR 2435, the
Cyber Security Information Act.) Willemssen agreed with them. Willemssen also
testified later that he supports a proposal contained in a bill sponsored by
Sen. Lieberman and Sen. Thompson that would create a new federal office of Chief
Information Officer. (See, S 803, the
E-Government Act of 2001.)
Sen. Dayton pressed Willemssen on specific types of cyber threats. He responded
that these are "disruption and stoppages of operation",
"inappropriate disclosure of sensitive information", and that
terrorists might "change or modify or destroy data ..." Sen. Carper
asked Willemssen which sectors of the economy are most secure from cyberthreats,
and which are most vulnerable. He responded that banking, finance, and electric
power are in the best position, while the public health sector is weak.
Sept 11 Events Seen As an Attack Upon Infrastructure
9/12. Sen. Bennett made the point that the attacks of September 11 were not only
attacks upon human life and symbols of America; they were also successful
attacks upon American infrastructure. Moreover, said Sen. Bennett, they had some
of the same sort of results as a major cyber attack upon information
infrastructure. He noted that the attacks succeeded in completely shutting down
both the air traffic system and the stock markets. He also noted that a
significant amount of data was destroyed in the World Trade Center in law
offices, brokerages, and other offices.
Sen. Bennett was the Senate's point man on ensuring that critical information
systems of the federal government were not adversely affected as a result of
failure to remedy Y2K conversion problems. He is now the Senate's leading
authority on terrorist threats to the critical information infrastructure.
More Statements From Cyber Terrorism Hearing
More Money. Sen. Thompson stated that "we have to get more
serious." He said this includes a larger military budget, more money for
intelligence, and more money for infrastructure protection. Sen. Thompson also
stated that the Governmental Affairs Committee has been active in promoting
government information security. He cited hearing held by the Committee, reports
prepared for it by the GAO, and bills passed. He also distributed a CYA memo
which listed 17 of actions taken by the Committee.
New Leadership. Sen. Bennett said that the U.S. must reform the way the
federal government is organized to protect against attacks on America's
information infrastructure. He stated that it was a mistake in PDD 63 to put the
leadership of this effort at the FBI's National
Infrastructure Protection Center. He reasoned that the FBI and Department of
Justice are law enforcement agencies focused on detecting and prosecuting past
crimes. He said that what is needed is leadership that focuses of prospective
threats, and strategically seeks to prevent them from being realized. However,
he did not say who this should be.
GAO Criticizes Lack of Computer Security at Education
9/12. The GAO released
a report [PDF] titled
"Education Information Security: Improvements Made But Control Weaknesses
Remain." The GAO concluded that the Department
of Education "has made progress in correcting security weaknesses
identified by Education’s IG, and that the department has taken other actions
to improve security. However, we identified weaknesses that place critical
financial and sensitive grant information at risk of unauthorized access and
disclosure, and key operations at risk of disruption. Specifically, Education
did not sufficiently protect its network from unauthorized users, effectively
manage user IDs and passwords, appropriately limit access to authorized users,
effectively maintain system software controls, or routinely monitor user access
activity. Further, Education was not providing adequate physical security for
its computer resources ..." The report was prepared for Rep. Peter Hoekstra (R-MI) and Rep. Charlie Norwood (R-GA).
Cancellations and Postponements
9/12. The House Commerce
Committee's Subcommittee on Telecommunications and the Internet postponed
its hearing titled "Transition to Digital Television: Progress on
Broadcaster Buildout and Proposals to Expedite Return to Spectrum", which
had been scheduled for September 12.
9/12. The Senate Judiciary Committee's
Technology, Terrorism, and Government Information Subcommittee postponed its
hearing on S
1055, which had been scheduled for Wednesday afternoon, September 12. The
bill is sponsored by Sen. Dianne
Feinstein (D-CA). It would require the consent of an individual prior to the
sale and marketing of such individual's personally identifiable information.
No new date for the hearing has yet been set.
5th Circuit Rules on Jurisdiction in Patent Related Appeals
9/12. The U.S.
Court of Appeals (5thCir) issued its opinion
Logan v. Burgers Ozark Country Cured Hams, a case involving
several issues, including when the U.S. Court
of Appeals for the Federal Circuit has jurisdiction over appeals from
judgments of U.S. District Courts in disputes which implicate patents. The Fifth
Circuit held that it had jurisdiction, and affirmed the District Court on
Patent Infringement Case
9/12. The U.S.
Court of Appeals (FedCir) issued its opinion in Fin
Control Systems v. OAM, a patent infringement case involving
removable surfboard fins. The District Court granted summary judgment that OAM
did not infringe Fin Control System's U.S.
Patent No. 5,464,359, either literally or under the doctrine of equivalents.
The Appeals Court affirmed in part, vacated in part, and remanded.
9th Circuit Affirms in FTC v. Gill
9/12. The U.S.
Court of Appeals (9thCir) issued its opinion
v. Gill, affirming a District Court judgment in an FTC civil
enforcement action brought under the Credit Repair Organizations Act (15 U.S.C.
§§ 1679-1679j). The FTC is a federal agency with authority to bring
enforcement actions to stop a wide range of deceptive business practices that
harm consumers. In recent years, it has been involved in shutting down Internet
This is not an Internet fraud case. Rather, the defendants operated a credit
repair scam. The FTC filed a complaint in the U.S. District Court (CDCal) seeking a
permanent injunction from participating in the credit repair business, and
monetary relief in the form of consumer redress, restitution and disgorgement.
Defendant Keith Gill is an attorney in California. The defendants fought the
action. The FTC won in the District Court (including a $1,335,912.14 money
judgment). The Appeals Court affirmed.
9/12. The USPTO published a notice [PDF]
in the Federal Register regarding its new rules relating to civil actions and
claims involving the USPTO. These rules provide procedures for service of
process, obtaining USPTO documents and employee testimony, indemnifying
employees, and making a claim against the USPTO under the Federal Tort Claims
Act. See, notice in Federal Register, Vol. 66, No. 177, September 12, 2001, at
pages 47387 - 47392.
9/12. The FCC announced that the meeting of
the Commission set for September 13 at 9:30 AM will proceed as scheduled. The
agenda remains unchanged.
9/12. The FCC announced that the meetings its Public Safety National
Coordination Committee scheduled for September 13 and 14 have been postponed.
The FCC has not yet rescheduled these meetings. See, FCC release [PDF].
9/12. The FCC issued a statement
regarding the effect of its closure on September 11 on filing and fee payment
deadlines. It stated: "Due to the national emergency that occurred
yesterday, September 11, the Federal Communications Commission closed its
offices early in the morning. According to section 1.4(e)(1) of the Commission's
rules, 47 C.F.R. Section 1.4(e)(1), all filings, paper and electronic, that were
due on September 11, 2001, are due today, September 12, 2001, the Commission's
next official work day after early closing. In addition, September 11th does not
count in computing filing periods that are less than seven days. See 47 C.F.R.
9/12. FCC Chairman Michael
Powell praised the "tireless and heroic efforts of those in the
telecommunications industry who are working hard to keep our most fundamental
communications systems – such as telephone service, wireless phone service and
television service – operating efficiently under the circumstances." See,
Verizon Assesses Damage to its New York City Facilities
9/12. Verizon stated that it "began work to restore phone service to a
major switching center that was damaged as a result of yesterday's attacks on
the World Trade Center." See, Verizon
release. On September 11, Verizon stated "Two facilities at the World
Trade Center that handled calls to and from the complex were destroyed in the
building collapse." It also stated that "Verizon has as many as 10
wireless cell cites in New York City that are not operating." See, Verizon
California Upholds Conviction for Removing Battery from
9/12. The Court
of Appeal of California (4/2) issued its opinion [PDF]
v. Tafoya, affirming a criminal conviction of a California man
for removing a battery from a cordless telephone. This is a domestic abuse case.
However, in addition to abuse related charges, the defendant was charged with
violation of California Penal Code, Section 591, which makes it a crime
unlawfully and maliciously to injure or obstruct a telephone line "or
appurtenances or apparatus connected therewith". The Court of Appeal held
that "the jury could properly find defendant Michael Martin Tafoya guilty
under section 591 based on the evidence that, during an argument with his
estranged wife, he removed the battery from her cordless phone. This is true
even though she was still able to call the police from another phone."
However, the Court of Appeal reasoned that "it does not make it a crime to
leave a phone off the hook either negligently or accidentally."
Federal Government Closes On Tuesday
9/11. Government offices, the Congress, and Courts closed Tuesday morning,
September 11. Congressional hearings and meetings that started early Tuesday
morning were cut short, and buildings were evacuated. President Bush stated in
Tuesday night that Federal agencies in Washington will be open for business on
Wednesday. The House and Senate are both scheduled to meet Wednesday morning.
The status of many previously scheduled hearings and other events has not been
determined. Tech Law Journal's calls to many offices went unanswered on Tuesday.
Some staff and officials who were reached stated that scheduling decisions had
not yet been made.
Witnesses and other participants are currently unable to fly into Washington DC.
Nevertheless, some events scheduled for Wednesday will proceed. For example, the
Senate Governmental Affairs
Committee hearing on the security of critical governmental infrastructure
will be held a 11:00 AM, rather than its previously scheduled time of 9:30 AM. Sen. Joe Lieberman (D-CT) and Sen. Fred Thompson (R-TN) are the
Chairman and ranking Republican on the Committee.
The Senate Judiciary Committee's
Technology, Terrorism, and Government Information Subcommittee is scheduled to
hold a hearing on S 1055, a privacy
bill sponsored by Subcommittee Chairman Sen.
Dianne Feinstein (D-CA). Her staff told TLJ late Tuesday that they did not
know if this hearing would proceed on Wednesday. This bill would require the
consent of an individual prior to the sale and marketing of such individual's
personally identifiable information.
9/11. The development of laws which implicate individual privacy -- particularly
laws regarding the collection of information by law enforcement entities -- may
be affected by the events of Tuesday. In past debates over issues such as
electronic surveillance, Carnivore, CALEA, ECHELON, and encryption restraints,
government and law enforcement officials have usually cited several threats that
warrant expanded law enforcement authority -- drug dealers, money launderers,
child pornographers, and international terrorists. Historically, privacy
advocates have downplayed the seriousness of these threats. The final argument,
regarding terrorism, may now take on new meaning.
9/11. The Senate Judiciary Committee
postponed its hearing on the nomination of John Walters to be Director of
National Drug Control Policy, which had been scheduled for the morning of
September 11. Several groups which advocate privacy rights have urged the
Committee to examine the impact of the War on Drugs on privacy rights. These
groups have urged the Committee to examine the government's use of electronic
surveillance, Carnivore, and ECHELON.
Judicial Conference Postpones Meeting
9/11. The Judicial Conference of the U.S., which had been scheduled to meet at
the Supreme Court of the United States Tuesday afternoon, postponed its meeting.
The Conference makes policy for the federal courts. It had been scheduled to
consider the recommendations contained in the report [PDF]
titled "Report on Privacy and Public Access to Electronic Case Files."
This report was prepared by the Administrative
Office of U.S. Courts' Committee on Court Administration and Case
Management. It 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,
[PDF]. The Supreme Court closed on Tuesday morning. Court guards bearing
shotguns took up positions at its entrances.
USPTO Clarifies Affect of Tuesday Closing
9/11. The USPTO closed on September 11.
Acting chief Nicholas Godici issued a statement regarding the
affect of the closing on filing and fee payment deadlines. He wrote that
"Any action or fee due on September 11, 2001, will be considered as timely
for the purposes of, e.g., 35 U.S.C §§ 119, 120, 133 and 151, if the action is
taken, or the fee paid, on the next succeeding business day on which the Patent
and Trademark Office is open."
9/11. Telecommunications carriers issued statements regarding the status of
their landline and cellular phone networks. See, statements by AT&T, BellSouth,
Verizon, which is the incumbent local exchange carrier in both New York City and
Washington DC, stated that its "Two facilities at the World Trade Center
that handled calls to and from the complex were destroyed in the building
collapse. ... The company has accounted for most of these employees." Also,
"At 140 West Street in Manhattan, the company's operations center was
evacuated before the WTC buildings collapsed. Normally, 1,737 employees are
assigned to that building."
Verizon also stated that it has "as many as 10 wireless cell cites in New
York City that are not operating. These are mostly out of service because
facilities that connect the sites to the landline network went through the World
Trade Center." Verizon also detailed its deployment of temporary cell
cites, as well as increasing power at cell cites in Northern New Jersey adjacent
to southern Manhattan.
9/11. Meanwhile, the Senate Commerce
Committee postponed its hearing on E-911 issues, which had been
scheduled for Tuesday afternoon.
CSSPAB Cancels Meetings
9/11. The Computer System Security and
Privacy Advisory Board (CSSPAB) had been scheduled to hold three days of
meetings on September 11-13. The CSSPAB advises the Secretary of Commerce and
the Director of NIST on security and privacy issues pertaining to federal
computer systems. The meeting was cancelled just after it began early on the
morning of September 11. The CSSPAB meets quarterly. This meeting will not be
rescheduled. The next quarterly meeting will be in early December. See, original
in Federal Register, August 27, 2001, Vol. 66, No. 166, at Pages 45009 - 45010.
9/11. Karen Kincaid, a partner in the communications practice of the law firm of
Wiley Rein & Fielding, died on September
11 in the crash of American Airlines Flight 77. See, WRF statement.
9/11. Microsoft filed its Reply
Brief with the Supreme Court in Microsoft v. U.S.A. This is its reply
to the government's opposition to its petition for writ of certiorari seeking to
have the entirety of Judge Jackson's findings of fact and conclusions of law and
judgment set aside for improper conduct by the Judge.
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