|News Briefs from
October 1-5, 2001
Depreciation of High Tech Equipment
10/5. Rep. Wes Watkins (R-OK)
3057, a bill to amend the Internal Revenue Code to reduce to 3 years the
depreciation recovery period for qualified technological equipment. The bill
would provide this 3 year depreciation period for "wireless
telecommunications equipment", "advanced services equipment", and
"network or network system equipment". Advanced services equipment is
defined as that "used in the provision of Internet or electronic
communications access services or support, or which supports access to
electronic media and data and associated communications support". The bill
was referred to the House Ways and
Means Committee. Rep. Watkins is a member.
Meanwhile, on October 2, Rep. Fred Upton
(R-MI), and others, introduced HR 2981,
another bill to amend the Internal Revenue Code. Like the Watkins bill, it would
provide a short depreciation period for qualified technological equipment;
however, it would set a 2 year recovery period. The Upton bill also contains two
provisions that are not in the Watkins bill: a 24 month useful life for
depreciation of computer software, and a 7 year useful life for depreciation of
certain spectrum licenses.
The Upton bill was referred to the House
Ways and Means Committee. Rep. Upton is the Chairman of the House Commerce Committee's Telecom and
Internet Subcommittee. He is not on the W&M Committee. However, as of
October 5, his bill had 54 cosponsors. Rep.
Jennifer Dunn (R-WA), whose Seattle area district includes many Microsoft
employees, is both a co-sponsor, and a member of the W&M Committee.
In addition, Rep. Jerry Weller
(R-IL), another member of the W&M Committee, has long advocated depreciation
reform for computer equipment. On April 5 he and Rep. Richard Neal (D-MA) introduced HR
1411, the Expensing Technology Reform Act of 2001. The bill would reform the
Internal Revenue Code by updating the existing depreciation schedules for high
Rep. Weller explained the bill in a statement
in the Congressional Record. "Currently, businesses must depreciate much of
their high tech equipment over a 5 year period. This bill would allow businesses
to expense these assets. The 5 year depreciation lifetime for tax purposes is
outdated since many companies today must update their computers as quickly as
every 14 months in order to stay technologically current. We allow businesses to
expense their computers, peripheral equipment, servers, networks, wireless
telecommunications equipment, software, high tech medical equipment and copiers
in this bill."
Fed Circuit Rules in Xerox v. 3Com Re Unistrokes Patent
10/5. The U.S.
Court of Appeals (FedCir) issued its opinion in Xerox
v. 3Com, a patent infringement case involving graffiti software
for hand held computers.
Xerox is the assignee of U.S.
Patent No. 5,596,656, which is titled "Unistrokes for Computerized
Interpretation of Handwriting." Xerox filed a complaint in U.S. District
Court (WDNY) against 3Com Corporation, U.S. Robotics Corporation, U.S. Robotics
Access Corporation, and Palm Computing, Inc.
claiming that the Graffiti software in its PalmPilot line of hand held computers
infringed its unistrokes patent. Defendants asserted the affirmative defenses of
invalidity, unenforceability, and non-infringement.
The District Court granted summary judgment of non-infringement to Defendants.
The Appeals Court affirmed in part, reversed in part, and remanded.
NTIA Announces New 3G Plan
10/5. The National Telecommunications and
Information Administration (NTIA) released a statement
regarding locating and reallocating spectrum for use by Third Generation (3G)
wireless services. 3G services are intended to bring broadband Internet access
to mobile devices, among other things. The NTIA, which is a part of the
Department of Commerce, stated that the NTIA, FCC,
and Department of Defense (DOD) have "a new plan for the assessment of
spectrum" which will be completed by "Spring 2000".
The NTIA stated that "the current assessment examines the potential use of
the 1710-1770 and 2110-2170 MHz bands for commercial advanced wireless
The NTIA also stated that "the 1770 to 1850 MHz band is not part of this
assessment" and that "the Federal government incumbents in the
1710-1770 MHz band will be assessing their future spectrum needs in light of new
national security demands." This spectrum is currently used primarily by
The FCC, which has responsibility for allocation of spectrum used by the private
sector, will assess the 2110-2170 MHz band. The NTIA, has responsibility for
spectrum used by government entities, including the 1710-1850 MHz band.
Tom Wheeler, P/CEO of Cellular
Telecommunications Industry Association (CTIA) praised the announcement. He
stated that "Everyone, under the leadership of the White House, Secretary
of Commerce Evans, FCC Chairman Powell and NTIA, has come together to address
the immediate needs of the wireless industry while simultaneously ensuring
national security. This band plan will enable the wireless industry to receive
spectrum sooner rather than later, focusing on the deliverable, while not
closing the door to future spectrum reallocation." See, CTIA release.
E-911 Deployment Delayed
10/5. The FCC announced, but did not release, orders allowing five major
wireless carriers, and a public safety agency, more time to comply with the GPS
mandates of the FCC's E-911 rules. Carriers had faced an October 1, 2001
deadline for enabling 911 calls from mobile phones to provide public safety
authorities with location information. The FCC issued a release
and a sheet
[PDF] describing its orders. All four Commissioners issued statements. See,
statements by Powell,
Commissioner Kevin Martin
wrote that "the current failure to meet the Commission's Phase II E911
deadlines is shameful. Nonetheless, we are told by manufacturers and suppliers
that meeting today's deadlines is a practical impossibility. Let me be clear,
however, these delays must come to an end."
Rep. Anna Eshoo (D-CA), a leading
advocate of E-911 technology in the House, also commented. She said that
"September 11, 2001 upped the ante on the importance of location detection
technology in crisis situations. Cellular phones were front and center in
nearly every story related to the terrorist attacks ... These revised deadlines
will be monitored and scrutinized by myself and my colleagues so that full
implementation is brought to the American people sooner rather than later in the
revised schedule the FCC has now set and approved."
See also, CTIA
FCC Dismisses Texas.net Complaint
10/5. The FCC released its order
[PDF] dismissing Texas Networking, Inc.'s complaint and petition
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. Texas.net alleged in its August 9 complaint that AOLTW
has not complied with the provisions regarding allowing access by unaffiliated
ISPs to AOLTW's cable system.
Bush Appoints Barksdale to Foreign Intelligence Advisory Board
10/5. President Bush announced his intent to appoint Jim Barksdale to the President's Foreign Intelligence
Advisory Board (PFIAB) for a term of two years. The PFIAB provides advice to
the President about the quality and adequacy of intelligence collection, of
analysis and estimates, of counterintelligence, and of other intelligence
In addition, he appointed Brent Scowcroft to be the Chairman. His other
selections are Cresencio Arcos, Robert Day, Stephen Friedman, Alfred Lerner, Ray
Hunt, Rita Hauser, David Jeremiah, Arnold Kanter, James Langdon, Marie Cornell,
John Streicker, Pete Wilson, and Phillip Zelikow. See, White
Bush Nominates Two for Appeals Courts
10/5. President Bush announced his intent to nominate Julia Gibbons to be
a United States Circuit Judge for the Sixth
Circuit, and to nominate William Steele to be a United States Circuit
Judge for the Eleventh Circuit. See,
10/5. House Financial Services
Committee Chairman Mike Oxley
(R-OH) praised FTC Chairman Timothy Muris'
October 4 speech
on privacy. Rep. Oxley released a statement in
which he said that "Privacy provisions included in the Gramm Leach Bliley
financial modernization law are the strongest financial consumer privacy
protections ever passed by Congress. The FTC's new agenda will focus, among
other things, on not only enforcing these provisions, but working with industry,
trade associations, agencies and consumers to ensure that the GLB provisions are
being implemented as intended -- to truly benefit and protect consumers. The
realm of financial privacy is constantly changing and, at times, confusing for
consumers. ... The FTC's balance of enforcement, education and outreach is an
excellent approach to this complex issue." Muris stated that the FTC would
increase resources devoted to protecting privacy by 50 percent. He also said
that he opposes new privacy legislation at this time. He was silent on pending
10/5. Rep. Darlene Hooley (D-OR)
introduced HR 3053, a bill to prevent identity theft. It was referred to
the House Financial Services Committee.
The AEI Brookings Joint Center for Regulator Studies published a paper
[PDF] titled "Constitutional Issues in Information Privacy." The
authors are Fred Cate and Robert Litan. The two argue that "the First
Amendment restrains the power of the government to enact and enforce privacy
laws that curtail expression."
NIPC Issues Advisory
10/5. The FBI's National Infrastructure
Protection Center (NIPC) issued an advisory in
which it stated that it "continues to observe hacking activity targeting
the e-commerce or e-finance/ banking industry." It continued that
"hackers have increased their targeting of several third party service
providers that employ weak security practices".
Terrorism and CALEA
10/5. The House Government Reform
Committee's Subcommittee on Governmental Efficiency, Financial Management
and Intergovernmental Relations held a hearing titled "A Silent War: Are
Federal, State, and Local Governments Prepared for Biological and Chemical
Attacks." Almost all of the testimony and questions focused on the nature
and delivery of biological and chemical attacks, and emergency public health and
safety preparations. However, one witness, Edward Norris, Commissioner of the Baltimore City Police
Department, also argued that further CALEA requirements are necessary
"to prevent recurrences of terrorism".
Congress passed the Communications
Assistance for Law Enforcement Act (CALEA) in 1994 to enable law enforcement
authorities to maintain their existing wiretap capabilities in new
telecommunications devices. It provides that wireline, cellular, and broadband
PCS carriers must make their equipment capable of certain surveillance
functions. The FBI has since sought an implementation of CALEA that expands
surveillance capabilities beyond those provided in the statute. The FCC,
which has written implementing rules, has largely backed the FBI. This has
imposed considerable burdens and costs upon service providers, and their
customers. The wireless service providers and privacy groups have battled with
government agencies for years over CALEA implementation.
Specifically, Commissioner Norris stated that "The Communications
Assistance for Law Enforcement Act (CALEA), which was passed in 1994 but has
never been fully implemented, must be enforced. CALEA requires telephone
companies to ensure that their systems and networks can accommodate federal,
state, and local wiretaps in the face of changing telephone technology. Right
now we can't intercept certain digital phone technologies, and that is keeping
all of us dangerously in the dark."
The hearing was chaired by Rep. Steve Horn
(R-CA). No member of the Subcommittee questioned Norris about CALEA.
AAI Proposes Court Management of Microsoft
10/5. The American Antitrust
Institute (AAI) released a paper advocating
remedies in the Microsoft antitrust case at a press briefing at the National Press Club in Washington DC. The AAI
expressed its disappointment that the Department
of Justice (DOJ) will not seek a break up of Microsoft. It then proposed ten
mandates, to be enforced by the Court with the assistance of "Special
Masters" and "technical experts". The proposals, if adopted,
would result in Court supervised management of Microsoft in the manner of
commission based regulation of publicly owned utilities. The AAI proposals are
(1) "Require Microsoft to give computer manufacturers (OEMs) the virtually
unrestricted right to control the initial bootup sequence of their products
(2) "Microsoft must license the source code for its DOS based operating
systems, including all versions and all components of MS-DOS, Windows 3, Windows
95, Windows 98 and Windows Me."
(3) "Require Microsoft to include Sun's JAVA "virtual machine" as
a mandatory component of Microsoft's operating system."
(4) "Prohibit Microsoft from adding any proprietary extensions ... to any
product, standard or feature currently available in the public domain or
pursuant to open source license, such as kerebos or xml."
(5) "Require Microsoft to include the middleware products of its
competitors in the operating system including, but not limited to, Netscape's
web browser, RealPlayer's and Apple's multimedia and streaming software."
(6) "Require Microsoft to "open source" its middleware products,
including Internet Explorer."
(7) "Require Microsoft to develop and market, in good faith, current and
future versions of its applications for competing operating systems. The
applications would include Microsoft Office as well as middleware products such
as Internet Explorer and Windows Media Player. Competing operating systems would
include Linux, versions of UNIX, BeOS and Amiga ... and any operating system
(8) "Require Microsoft to ... license its software to all OEMs on the same
(9) "Require Microsoft to give independent software developers the same
access to the source code, plans, training, APIs, technical information and
communications interfaces for all of Microsoft's operating systems that
Microsoft gives its own developers."
(10) "The Court should appoint, at Microsoft's expense, one or more Special
Masters with the authority to hire technical experts to take evidence and
evaluate information in order to advise the Court in a timely manner regarding
Microsoft's compliance and to assist the court in interpreting the relief
10/5. The partners of Morrison & Hecker
and the shareholders of Stinson Mag &
Fizzell announced that they approved the basic framework for a potential
merger agreement between the firms. Stinson Mag & Fizzell has 152 lawyers in
Kansas City, St. Louis and Omaha. Morrison & Hecker has 180 attorneys in
Kansas City, Phoenix, Washington DC and Wichita, Kansas. See, release.
FTC Chairman Opposes Privacy Legislation
10/4. Timothy Muris, Chairman of the Federal Trade
Commission (FTC), gave a speech titled
"Protecting Consumers' Privacy: 2002 and Beyond" at the Privacy 2001
Conference in Cleveland, Ohio. He stated that "We plan to increase
resources devoted to protecting privacy by 50 percent". He also said that
he opposes new privacy legislation at this time. He was silent on pending spam
Privacy Legislation. Muris stated that "I have learned that there
are clearly good arguments for such legislation: online privacy legislation
could increase consumer confidence in the Internet by establishing a clear set
of rules about how personal information is collected and used. Moreover, federal
legislation could help ensure consistent regulation of collection practices
across the 50 states. These are desirable goals. Nevertheless, it is too soon to
conclude that we can fashion workable legislation to accomplish these
Muris elaborated three reasons for opposing legislation. First, he stated that
the "recent experience with Gramm Leach Bliley privacy notices should give
everyone pause about whether we know enough to implement effectively broad based
legislation based on notices. Acres of trees died to produce a blizzard of
barely comprehensible privacy notices. Indeed, this is a statute that only
lawyers could love -- until they found out it applied to them."
He also stated that he is concerned that pending legislation addresses only
online privacy, and not privacy generally. He also said that "the slowing
of the growth of the Internet emphasizes the need to understand the cost of
online privacy legislation."
Enforcement of Privacy Policies. Muris stated that the FTC would continue
to encourage businesses to adopt privacy policies, and to bring enforcement
actions against those which violate their policies. He added that "Privacy
promises made offline should be held to the same standard."
Muris also suggested how the FTC would catch violators. "We will seed lists
with names to ensure that restrictions on disclosures to third parties are
honored. We will also work with seal programs and others to get referrals of
possible privacy violations."
Spam. Muris addressed unsolicited e-mail. He stated that "We will
also heighten our attack on deceptive spam. It is the bane of cyberspace.
Unsolicited messages from legitimate businesses may be annoying, but most
businesses stop before they alienate their customers. Fraudulent spammers have
no such incentive and promote shifty schemes like chain letters, pyramid
schemes, and other forms of deceptive, "get rich quick" frauds."
However, he took no position on any anti-spam legislation pending in the
Congress. Nor did he state that the FTC would initiate any rule making
He also addressed identity theft, pretexting (obtaining personal financial
information by fraud), enforcement of the Fair Credit Reporting Act, and the
Telemarketing Sales Rule.
Commissioner Anthony's Response. Muris also stated that the views which
he expressed "are those of the Chairman, and do not necessarily reflect the
views of the Commission or of any other Commissioner." FTC Commissioner
Sheila Anthony, a Democrat appointed by former President Clinton, issued a response stating
her contrary views.
Anthony wrote, in full, that: "I support the Chairman's plans to expand the
Commission’s privacy agenda in the commercial arena, but I do not believe that
he has made the case for the Commission to depart from its earlier legislative
recommendation. Although some companies have made a good faith effort, the
private sector, as a whole, continues to fail to effectively self regulate.
Absent federal legislation that sets standards to be followed by everyone, it is
unlikely that consumers' privacy can be adequately protected from identity
theft, commercial harassment, and hucksterism."
Industry Reaction. Industry groups expressed support for Muris'
statement. Jonathan Zuck, of the Association
for Competitive Technology, praised the speech: "Chairman Muris is
obviously aware of the problems inherent in most privacy bills floating around
Capitol Hill. Generally, they concentrate on regulating new technologies instead
of protecting sensitive information regardless of how it was collected. The
result is anti technology rather than pro privacy policies that are ineffective
and unfairly burden small online companies. Additionally, the pace of
technological change makes any attempt to legislatively address specific aspects
of technology extremely difficult and potentially very costly for the industry.
The new direction of the FTC is exactly what ACT and the American people have
been advocating." See also, US Chamber of Commerce release.
Sen. Enzi Advocates Export Administration Act
10/4. Sen. Mike Enzi (R-WY) gave the keynote address at a Bureau of Export
Administration (BXA) conference on export controls in Washington DC. He
stated that the attacks of September 11 have "only further highlighted the
importance of strong export controls." He also advocated passage of S 149, the
Export Administration Act of 2001, of which he is the lead sponsor. He said that
the "2001 EAA is a comprehensive package that balances both national
security and the need for open, fair trade laws."
The bill would modernize export control laws. It would ease restraints on most
dual use products, such as computers and software, but increase penalties for
violations. The Bush Administration has endorsed it. The Senate passed it by a
vote of 85 to 14, five days before the terrorist attacks, over the opposition of
a small group of Senators who assert that it would harm national security. The House International
Relations Committee passed a much different version just before the August
Sen. Enzi stated that "the bill recognizes that the U.S. is rarely the only
producer of militarily useful high tech products, and items available from
foreign sources or available in mass market quantities cannot be effectively
He also addressed high performance computers. He stated that "the 2001 EAA
greatly enhances the President's ability to respond to rapidly changing
technology. Specifically, the bill repeals a provision in the Fiscal Year 1998
National Defense Authorization Act, which locked into statute a metric for
measuring the performance of computers. Congress should not be in the business
of locking technological measurement into law. The Senate's measured pace of
legislation cannot keep pace with changes in technology."
10/4. The Computer and Communications Industry
Association (CCIA) wrote a letter [PDF] to Sen. Judd Gregg (R-NH) and Congressional
leaders in which it expressed "serious concern with your proposal to roll
back important reforms in U.S. encryption policy, and implement unprecedented
government controls on technology and computer networks."
The CCIA also stated that "Government controls on encryption and mandatory
key escrow would do very little to prevent terrorism or protect our national
security, and there is no evidence that your proposal would have even a
negligible impact in anti-terrorism efforts. Furthermore, this legislation would
be extremely counterproductive to our industry's efforts to promote a healthy,
competitive, global economy as well as ensuring secure, authenticated, trusted
communications and digital asset protection in the global business
FBI Files Affidavit Regarding Key Logger System
10/4. An FBI agent filed an affidavit [PDF] with
District Court (DNJ) in USA
v. Nicodemo Scarfo. As a part of its criminal investigation, the
FBI surreptitiously installed on Scarfo's personal computer its "Key Logger
System" to record the keystroke entry of his encryption passphrase. Scarfo
now seeks to suppress evidence gathered as a result of this.
Nicodemo Scarfo is an encryption savvy mobster involved in illegal gambling and
loan sharking operations. Previously, the FBI obtained court authority to
surreptitiously install on Scarfo's computer "recovery methods" that
could capture password and encryption key information. The Court order stated:
"IT IS ORDERED ... that Special Agents of the F.B.I. ... deploy recovery
methods which will capture the necessary key related information and encrypted
file(s) ... that Special Agents of the F.B.I. ... be authorized to enter the
TARGET LOCATION surreptitiously, covertly, and by breaking and entering, if
necessary, in order to deploy recovery methods which will capture the necessary
key related information and encrypted file(s) whether they are stored on
Nicodemo S. Scarfo's computer hard drive in the TARGET LOCATION or on removable
The Electronic Privacy Information Center
(EPIC) has collected and published case documents from this proceeding. See, index.
7th Circuit Rules in Lanham Act Case
10/4. The U.S.
Court of Appeals (7thCir) issued its opinion
Salon v. Bliss World, a Lanham Act case. Bliss Salon has operated
a single beauty salon in northwest Chicago for over twenty years; it never
registered a mark. Bliss World is a newer New York based chain that operates
spas and sells products. It registered its mark in 1997. Bliss Salon (the
Chicago shop) filed a complaint in U.S.
District Court (NDIll) against Bliss World (the chain) under § 43(a)(1)(A)
of the Lanham Act, 15
U.S.C. § 1125(a)(1)(A), seeking an injunction that would forbid Bliss World
from operating within 100 miles of Chicago. The District denied the request for
an injunction. The Appeals Court affirmed, on the grounds that there is no
likelihood of confusion. It called the 100 mile request an "outlandish
demand" for a single beauty parlor. It also noted that Bliss Salon had
engaged in cyber squatting on Bliss World's marks. Hence, if there were
any likelihood of confusion, it would have resulted from Bliss Salon's conduct.
9th Circuit Affirms in Humetrix v. Gemplus
10/4. The U.S.
Court of Appeals (9thCir) issued its opinion
v. Gemplus, a contract and Lanham Act case relating to smart card
technology. Humetrix, an American health
care consulting company, filed a complaint against Gemplus, a French smart card technology
company, in U.S. District Court (SDCal)
alleging breach of contract and breach of its fiduciary duty as Humetrix's
partner. Humetrix also sued Guy Guistini, a Gemplus employee, for intentional
interference with contractual relations. It also sued Inovaction, a French
company holding the French trademark for "Vaccicard", seeking a
declaration that Humetrix was entitled to use the "Vaccicard"
trademark in the U.S. The jury awarded Humetrix $15 Million in damages and
declared that Humetrix was entitled to use the trademark "Vaccicard"
in the U.S. The Court of Appeals affirmed.
Senate Committee Holds Hearing on Information Infrastructure
10/4. The Senate Governmental
Affairs Committee held another hearings on the security of critical
governmental infrastructure. It also held a hearing on September 12, 2001.
See, prepared statements of witnesses: Ronald Dick
(FBI's National Infrastructure Protection Center), Sally McDonald
(GSA's Federal Computer Incident Response Center), John Tritak (BXA's
Critical Infrastructure Assurance Office), Frank Cilluffo
(Center for Strategic and International Studies), Joseph Nacchio (Qwest
Communications), and Kenneth Watson
(Partnership for Critical Infrastructure Protection Security).
Senate Leaders Introduce Anti Terrorism Bill
10/4. Senate leaders introduced S 1510 [243 page in
PDF], the USA Act, the Senate version of the anti terrorism bill. This bill,
like it House counterpart, contains a wide array of provisions intended to
increase the ability of law enforcement, intelligence, and other government
agencies to combat terrorism. In particular, both bills increases authority to
conduct electronic surveillance of phone and Internet communications.
USA is an acronym for Uniting and Strengthening America. Its counterpart is HR
2975, the PATRIOT Act, which is an acronym for the Provide Appropriate Tools
Required to Intercept and Obstruct Terrorism. The House Judiciary Committee
approved the PATRIOT Act on October 3 by a vote of 36 to 0. See, October 2
draft [124 pages in
PDF] of the PATRIOT Act, which does not incorporate amendments adopted at the
October 3 mark up meeting.
The USA Act is sponsored by Sen. Tom
Daschle (D-SD), the Senate Majority Leader, Sen. Trent Lott (R-MS), the Senate Minority
Leader, Sen. Patrick Leahy (D-VT), the
Chairman of the Senate Judiciary
Committee (SJC), Sen. Orrin Hatch
(R-UT), the ranking Republican on the SJC, Sen.
Paul Sarbanes (D-MD), the Chairman of the Senate Banking Committee (SBC), Sen. Phil Gramm (R-TX), ranking Republican
on the SBC, and Sen. Richard Shelby
(R-AL), the ranking Republican on Senate
The USA Act is a large and broad bill designed to give government agencies
increased powers to combat terrorism. It provides for increased electronic
surveillance powers, increased authority under the Foreign Intelligence
Surveillance Act (FISA), and increased anti money laundering and anti terrorism
financing powers. It also contains relief for victims of terrorism, increased
Canadian border protection, and other provisions.
Pen Registers and Trap and Trace Devices. Both the USA and PATRIOT Acts
expand pen register and trap and trace authority to include Internet
communications. (See, § 101 of the PATRIOT Act, and § 216 of the USA
Act.) Pen register and trap and trace orders currently apply to acquisition by
law enforcement agencies (LEAs) of outgoing and incoming phone numbers. Both
bills would extend pen register and trap and trace authority to
"routing" and "addressing" information in an
"electronic communication". Both bills also currently contain language
stating that "content" cannot be obtained with a pen register or trap
and trace order. However, neither bill goes into detail regarding what
constitutes content, and what constitutes routing and addressing information.
Computer Trespassers. Both bills would allow LEAs to intercept wire and
electronic communications of computer trespassers when asked by the owner or
operator of a computer under attack. This section is designed to facilitate
defense against such things as distribute denial of service attacks. (See,
§ 217 of the USA Act, and § 105 of PATRIOT Act.)
No Technology Mandates. The House and Senate bills now both contain
language stating that the bills impose no technology mandates. However, the
language of the two bills differs. § 222 of the USA Act includes the
following: "Nothing in this Act shall impose any additional technical
obligation or requirement on a provider of wire or electronic communication
service or other person to furnish facilities or technical assistance. A
provider of a wire or electronic communication service, landlord, custodian, or
other person who furnishes facilities or technical assistance pursuant to
section 216 shall be reasonably compensated for such reasonable expenditures
incurred in providing such facilities or assistance." The House Judiciary
Committee approved an amendment on October 3 which provides: "Nothing in
this Act shall impose any additional technical obligation or requirement on a
provider of wire or electronic communication service or other person to furnish
facilities, services or technical assistance." Thus, the Senate bill adds a
Trade Promotion Authority
10/4. Rep. Charles Rangel (D-NY) and
others introduced HR 3019, a bill pertaining to trade promotion authority (also
know as "fast track"). On October 3 Rep. Bill Thomas (R-CA), Chairman of
the House Ways and Means Committee,
introduced HR 3005
[57 pages in PDF], the "Bipartisan Trade Promotion Authority Act of
2001". Rep. Rangel is the ranking Democrat on the Committee.
10/4. Sen. Richard Durbin (D-IL) spoke
in the Senate about modernizing the FBI's computer systems. He stated that
"no successful business in America could operate with the computers we have
given to the premier law enforcement agency in America". He said that he is
preparing legislation "that will allow an exception to our procurement laws
in areas of national need and national emergency". See, Congressional
Record, October 4, at page S10268.
Sen. Rockefeller Introduces NET COP Act
10/4. Sen. Jay Rockefeller (D-WV)
introduced S 1509, the Networking Electronically To Connect Our Police Act
of 2001, or the NET COP Act. This bill would establish a grant program to fund
Internet access for rural police departments. Sen. Rockefeller stated in the
Senate that this bill would create "a grant program, administered by the
United States Department of Justice, to enable rural police departments without
Internet access to purchase appropriate computer hardware and software, or to
pay for Internet access, so that they can join the many thousands of federal,
State, and local agencies already sharing information and cooperating to track
down and arrest criminals via such Internet based services as DOJ's Regional
Information Sharing Systems, RISS, and the FBI's Law Enforcement On-Line, LEO,
Senators Introduce Bill to Briefly Extend Net Tax Moratorium
10/4. Sen. Byron Dorgan (D-ND) and Sen. John Breaux (D-LA) introduced
S 1504, a bill to extend the moratorium on new and discriminatory Internet
taxes through June 30, 2002. The current moratorium, enacted by the Internet Tax
Freedom Act in 1998, expires on October 20. This bill was referred to the Senate Commerce Committee, of which
both Dorgan and Rockefeller are members. On October 2, Sen. Patrick Leahy (D-VT), Sen. Ron Wyden (D-OR), and Sen. John McCain (R-AZ) introduced
S 1481, a bill to provide a two year extension.
10/4. Dave Segre rejoined the Palo Alto office of the law firm of Wilson Sonsini Goodrich & Rosati as a
partner. For the last year and a half Segre was an SVP at fusionOne, a privately held provider of
Internet based synchronization software and services. See, WSGR
10/4. The Telecommunications Industry
Association (TIA) wrote a letter
[PDF] to President Bush urging the "development of a national broadband
policy and implementation strategy." The TIA stated that such policy should
include tax credits for investing in broadband services, more spectrum for Third
Generation (3G) wireless services, and various changes to FCC regulations.
10/4. October 4 was the deadline to submit reply comments to the FCC
regarding SBC's Section 271 application to
provide interLATA service in the states of Arkansas and Missouri. See, FCC
notice [PDF] and reply
comment [PDF] submitted by Sage Communications. (CC Docket No. 01-194.)
10/4. The Senate Judiciary Committee
postponed its executive business meeting which had previously been scheduled for
10/4. The Mississippi Public Service
Commission (MPSC) endorsed BellSouth's
Section 271 application to provide interLATA service in Mississippi. BellSouth
now plans to file its long distance application for Mississippi with the FCC.
10/4. California Gov. Gray Davis announced the appointment of Susan Breall
as a judge of the San Francisco County Superior Court. She has been with the San
Francisco District Attorney's office since 1984.
10/4. California Gov. Gray Davis signed Assembly
Bill 245, an identity theft bill sponsored by Assembly member Mark
Wyland (R-Del Mar). It broadens the definition of identity theft to include
using lawfully gained information in an illegal manner.
House Judiciary Committee Passes PATRIOT Act
10/3. The House Judiciary Committee
adopted HR 2975, the PATRIOT Act, by a vote of 36 to 0, Wednesday night, October
3, following a lengthy mark up session. The bill as adopted contains many
amendments to the draft
[124 pages in PDF] of the bill released by the Committee on October 2. The bill
contains a wide array of provisions intended to increase the power of law
enforcement, intelligence, and other government agencies to combat terrorism.
Title I of this bill increases authority to conduct electronic surveillance of
phone and Internet communications.
The adoption of this bill is another step in a continuing process, which began
when the Bush Administration released its draft Anti Terrorism Act of
2001 [PDF] on September 19. House leaders and members of the House Judiciary
Committee have been working continuously since then on revisions to the
Administration's proposal. Moreover, there are many sections of the bill which
are still being negotiated. A further refinement of the bill will likely be
offered next week when the bill comes up for a vote on the House floor.
PATRIOT is an acronym for the Provide Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001. This version of the bill is also known as
the "Conyers Sensenbrenner" compromise bill. Rep. James Sensenbrenner (R-WI)
and Rep. John Conyers (D-MI) are the
Chairman and ranking Democrat on the House Judiciary Committee. Committee
members have been working on this legislation with an unusual degree on
bi-partisanship and cooperation.
The Senate is developing its own different version of the bill. The House and
Senate are almost certain to quickly pass anti terrorism bills. Then, the
differences between the two bills will need to be resolved by conference
committee, or other procedure.
Electronic Surveillance Under the PATRIOT Act
10/3. Rep. James Sensenbrenner
(R-WI), the Chairman of the House
Judiciary Committee, stated at the October 3 mark up session that "the
PATRIOT Act modernizes surveillance capabilities by ensuring that pen register
and trap and trace court orders apply to new technologies, such at the Internet,
and can be executed in multiple jurisdictions anywhere in the United States.
Criminal provisions dealing with stored electronic communications will be
updated to allow law enforcement to seize stored voice mail messages the same
way they can seize a taped answering machine message. Additionally, under this
bill, a court may authorize a pen register or trap/trace order that follows the
person from cell phone to cell phone rather than requiring law enforcement to
return to court every time the person switches cell phones. The bill, consistent
with our constitutional system of government, still requires a judge to approve
wiretaps, search warrants, pen registers and trap/trace devices."
The bill maintains, but modifies, the current legal structure. There are
currently three different standards for obtaining different types of court
orders authorizing electronic surveillance. A wiretap order, which enables law
enforcement agencies to obtain the content of a phone call, is issued by a judge
upon a showing of probable cause. This is often referred to as a Title III
order. This is a very high standard. In contrast, there is a very low standard
for obtaining pen register and trap and trace orders, which merely obtain
outgoing and incoming phone numbers. The order must be issued if the government
asserts mere relevance; the judge has no discretion. The Supreme Court has
upheld this procedure on the basis that only phone numbers are obtained.
Finally, there is a separate, and low, standard for Foreign Intelligence
Surveillance Act (FISA) orders. However, under current law, the purpose of
surveillance must be foreign intelligence.
The bill adopted by the Committee changes pen register and trap and trace
authority in two significant ways. First, it expands the information available
from mere phone numbers to "routing" and "addressing"
information in an "electronic communication". Thus, it extends such
authority from old fashioned phone systems to new and emerging Internet
communications. Second, it enables law enforcement agencies to obtain a single
order that would apply nationwide, rather than have to get a separate order in
each judicial district.
Both changes have been rigorously debated. Extending the information available
to routing and addressing information is controversial because such information
could potentially contain far more information than mere phone numbers.
Moreover, the standards for orders allowing pen register and trap and trace
devices would apply to technologies for collecting addressing and routing
information, such as the FBI's Carnivore system.
The bill also makes changes to the FISA authority. In particular, under the bill
as adopted by the Committee, foreign intelligence must be a significant purpose
of the order. Opponents of this change argue that it might enable unscrupulous
prosecutors to obtain wiretap orders in essentially domestic criminal
investigations under the lower FISA standard, by asserting a significant
intelligence purpose. This would enable such prosecutors to get around the
higher standard required for wiretap orders in criminal investigations.
Finally, another key provision of the bill as adopted by the Committee, allows
law enforcement agencies to intercept computer trespasser communications, if
requested to do so by the ISP or other victim of the unauthorized intrusions.
Content, Subject Lines, and URLs
10/3. The Administration's original anti terrorism bill would have simply
extended pen register and trap and trace authority to "routing" and
"addressing" information in an "electronic communication".
It did not contain any language limiting such authority to exclude the content
of the communication. This left much open for future implementation and
interpretation. The bill adopted by the House Judiciary Committee on October
3 adds language restricting the scope to information other than content.
The bill, as adopted by the Committee, would amend (see, draft at pages 7-8) the
definitions of pen register and trap and trace devices, found at 18 U.S.C. § 3127, by
including the following language: "other dialing, routing, addressing, and
signaling information reasonably likely to identify the source of a wire or
electronic communication (but not including the contents of such
communication);" (Parentheses in original.)
Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) proposed
amendment, which they did not offer at the mark up session, that would further
clarify the information that could be collected under pen register and trap and
trace orders. Their proposal is as follows: "In Section 101, strike
"(but not including the contents of such communication)" each place it
appears and insert "(but not including in formation that reveals the
subject matter of electronic communications, information identifying files or
web pages accessed over the Internet (beyond the host name), or other contents
of communications)". In Section 101, on page 5, line 3, by inserting after
"(but not including information that reveals the subject matter of
electronic communications, information identifying files or web pages accessed
over the Internet (beyond the host name), or other contents of
communications)" after "communications." " (Parentheses in
Rep. Goodlatte discussed, but did not offer, this amendment, at the mark up
session. Rep. James Sensenbrenner
(R-WI), the Chairman of the Committee, stated that the purpose of the expanded
pen register and trap and trace authority is "not to get into
content." He said that he would work on language in the committee report
that addresses this subject of this amendment.
No Technology Mandates
10/3. Rep. Rick Boucher (D-VA)
offered an amendment at the House
Judiciary Committee's mark up of the PATRIOT Act on October 3, which was
adopted by a unanimous voice vote. The amendment prevents the government from
requiring ISPs or other service providers to modify their equipment or services
under the PATRIOT Act. The amendment was cosponsored by Rep. Bob Goodlatte (R-VA) and Rep. Chris Cannon (R-UT).
The amendment states as follows: "Insert at the end of Title I the
following. Section ___: Clarification of No Technology Mandates. Nothing in this
Act shall impose any additional technical obligation or requirement on a
provider of wire or electronic communication service or other person to furnish
facilities, services or technical assistance."
There was nothing in the bill which required service providers to furnish any
facilities or services to the government. Reps. Goodlatte and Boucher both
explained their reasons for offering this amendment. They are concerned about
the history of the Communications
Assistance for Law Enforcement Act (CALEA). Congress passed this Act in 1994
to enable law enforcement authorities to maintain their existing wiretap
capabilities in new telecommunications devices. The Congress had cell phones in
mind. It provides that wireline, cellular, and broadband PCS carriers must make
their equipment capable of certain surveillance functions. However, the FBI has
since sought an implementation of CALEA that expands surveillance capabilities
beyond those provided in the statute. Moreover, the FCC,
which has written implementing rules, has largely backed the FBI. This has
imposed considerable burdens and costs upon service providers, and their
Interception of Computer Trespasser Communications
10/3. The PATRIOT Act as adopted by the House Judiciary Committee on October
3 expands law enforcement agencies' authority to intercept computer trespasser
communications. It provides that "It shall not be unlawful ... for a person
acting under color of law to intercept the wire or electronic communications of
a computer trespasser, if (i) the owner or operator of the protected computer
authorizes the interception ... (ii) the person acting under color of law is
lawfully engaged to the investigation; (iii) the person acting under color of
law has reasonable grounds to believe that the contents of the computer
trespasser's communications will be relevant to the investigation; and (iv) such
interception does not acquire communications other than those transmitted to or
from the computer trespasser." (See, Title I, § 105.)
The bill also defines "computer trespasser" as "a person who
accesses a protected computer without authorization and thus has no reasonable
expectation of privacy in any communication transmitted to, through, or from the
This section is intended to permit law enforcement agencies to assist ISPs and
e-commerce companies that are under distributed denial of service (DDOS), and
Rep. Howard Berman (D-CA) did not
offer language to amend these provisions. However, he wants to work with others
to revise this language before final House passage. He argued at the mark up
session that "it is drafted in a fashion that is too open ended." He
said that it does not limit the authorized intercepts to communications involved
in the unauthorized access. He also stated that it allows phone taps of cyber
attackers. He also stated that he is concerned that there is no court order
In addition, civil liberties groups have argued that the language pertaining to
"without authorization" should be clarified. Their concern is not that
DDOS attacks would be considered "without authorization", but that
other activity, such as spam, might also serve as the basis for government
involvement under this provision.
Rep. James Sensenbrenner
(R-WI), the Chairman of the Committee, stated that "the Gentleman makes a
good point, and we will look at it between now and going to the floor."
Senate Committee Holds Hearing on Constitutional Freedoms and
10/3. The Senate Judiciary Committee's
Subcommittee on the Constitution, Federalism, and Property Rights held a hearing
titled "Protecting Constitutional Freedoms in the Face of Terrorism."
statement of Sen. Patrick Leahy
(D-VT), and opening
statement of Sen. Orrin Hatch (R-UT).
See also, prepared testimony of witnesses: David Kris
(Department of Justice), Jerry Berman
(Center for Democracy & Technology), David Cole
(Georgetown University Law Center), Morton Halperin
(Center for National Security Studies), Douglas Kmiec
(Catholic University Law School), John McGinnis
(Cardozo School of Law), and Grover Norquist
(Americans for Tax Reform).
Bipartisan Trade Promotion Authority Bill Introduced
10/3. Rep. Bill Thomas (R-CA),
Chairman of the House Ways and Means
Committee, introduced HR 3005
[57 pages in PDF], the "Bipartisan Trade Promotion Authority Act of
2001". The bill, which is cosponsored by Rep. Phil Crane (R-IL), Rep. Cal Dooley (D-CA), and Rep. John Tanner (D-TN), Rep. David Dreier (R-CA), and Rep. Bill Jefferson (D-LA), is a
bipartisan compromise that includes labor and environmental provisions. See
also, sponsors' bill
Rep. Dooley, a cosponsor of the bill, said in a release that "It's the
sort of bipartisan compromise approach on trade that we've talked about for
years, but has eluded us until now. Democrats have said for a long time that we
want labor and environment addressed in trade bills. We've finally done that in
a strong and sensible way, and come up with a trade plan that Democrats can be
See also, joint
statement by Commerce Secretary Don Evans and USTR Robert Zoellick in support
of the bill.
FEC Sets Deadline for Public Comments on NPRM on Internet
10/3. The Federal Election Commission (FEC)
published a notice
in the Federal Register regarding its proposed rule changes affecting political
activity on the Internet. Public comments on the proposals are due by December
3, 2001. See, Federal Register, October 3, 2001, Vol. 66, No. 192, at Pages
50358 - 50366.
On September 27, the FEC approved a Notice of Proposed Rulemaking
(NPRM) [PDF] regarding political activity on the Internet. The FEC is the agency
charged with enforcing the Federal Election Campaign Act (FECA), which regulates
political contributions and expenditures. While the FEC had previously
considered wide ranging regulation of political speech on the Internet, this
NPRM merely proposes to permit certain personal political web sites, and to
allow corporations and unions to put certain hyperlinks and press releases in
their web sites. See, TLJ story of
September 27. See also, FEC
10/3. The U.S.
Court of Appeals (8thCir) issued its opinion [PDF] in
v. Becht, an appeal from a conviction for possession and
dissemination through interstate commerce of child pormography, in violation of
18 U.S.C. § 2252A(a)(1) & (a)(5)(B). Becht argued on appeal that the
introduction into evidence of 39 images seized from his PC hard drive unfairly
prejudiced his defense in violation of Federal Rule of Evidence 403. The Appeals
Rep. Upton Introduces Tech Depreciation Bill
10/2. Rep. Fred Upton (R-MI)
introduced HR 2981, a bill to amend the Internal Revenue Code to establish a 2
year recovery period for depreciation of computers and other technological
equipment, a 24 month useful life for depreciation of computer software, and a 7
year useful life for depreciation of certain spectrum licenses. The bill was
referred to the House Ways and Means
Committee. Rep. Upton is the Chairman of the House Commerce Committee's Telecom and
Internet Subcommittee. He is not on the Ways and Means Committee.
Encryption Restraints and the Anti Terrorism Bill
10/2. Three legislators, an administration official, and civil liberties
advocates discussed and debated anti terrorism legislation at a luncheon in
Washington DC on October 2 hosted by the Congressional Internet Caucus Advisory
Committee. Neither the Administration's September 19 draft of the Anti Terrorism Act of
2001 [PDF], nor the House
Judiciary Committee's October 1 draft of the PATRIOT Act [PDF]
contain encryption provisions. Participants at the event spoke against adding
any encryption restraints to the bill.
Rep. Bob Goodlatte (R-VA), a
Co-Chair of the Internet Caucus, argued
that provisions limiting encryption rights, or mandating key escrow, should not
be made a part of the bill. Such provisions are not a part of the bill now, and
Viet Dinh, the Assistant Attorney General for Legal Policy at the Justice
Department (DOJ), confirmed that the DOJ does not seek to have such provisions
added to the bill.
During the late 1990s there was a major battle in the Congress over encryption
rights. The FBI, Defense Department, State Department, and intelligence
community, and their allies in the Congress, maintained restraints on the export
of encryption products. They also sought to impose new limits on the use of
encryption within the U.S. The pro encryption camp in the Congress was led Rep.
Goodlatte, Rep. Zoe Lofgren (D-CA), Sen. Conrad Burns (R-MT), Sen. Pat Leahy (D-VT), and former Sen. John
Ashcroft (R-MO), who is now the Attorney General. In 1999, when the House was on
the verge of passing a pro encryption bill, the Clinton administration
capitulated. However, since September 11, some members of Congress have sought
to revive the encryption restraint issue.
Rep. Goodlatte argued at the October 2 luncheon that mandating key escrow would
be bad policy. He stated that the widespread use of strong encryption is an
essential element of defending against attacks by cyber terrorists. He also
pointed out that if the government mandates escrow of encryption keys, the
location of such escrow could be a targeted by hackers and terrorist attacks. He
also argued that such policy would not be effective: "Osama Bin Laden is
not going to escrow his keys."
Sen. Burns, who also spoke at the luncheon, opposed including any encryption
restraints in the anti terrorism bill. He pointed out that there is no evidence
that the terrorists who committed the attacks of September 11 ever used
Electronic Surveillance and the Anti Terrorism Bill
10/2. Legislators, an administration official, and civil liberties advocates
discussed and debated the electronic surveillance provisions of anti terrorism
legislation at a luncheon in Washington DC on October 2 hosted by the
Congressional Internet Caucus Advisory Committee. The Administration's September
19 draft of the Anti
Terrorism Act of 2001 [PDF], and the House Judiciary Committee's October 1
draft of the PATRIOT Act
[PDF] both would expand the authority of law enforcement and intelligence
agencies to conduct electronic surveillance of phone and Internet
Under current law, there are different standards for obtaining different types
of court orders authorizing electronic surveillance. Under Title III, an order
based upon a showing of probable cause is necessary to obtain the content of
phone conversations (wiretaps). This is a high standard. In contrast, there is a
very low standard for obtaining pen register and trap and trace orders (which
merely obtain outgoing and incoming phone numbers). The order must be issued if
the government asserts mere relevance. Finally, there is a separate, and low,
standard for Foreign Intelligence Surveillance Act (FISA) orders.
Rep. Rick Boucher (D-VA) stated that
the Supreme Court opinion which upheld the low standard for pen register and
trap and trace orders was predicated upon the assumption that only phone numbers
would be obtained. He suggested that that holding may not apply to the language
of the pending legislation, which would extend pen register and trap and trace
authority to "addressing and routing information" for "electronic
communications". He said that there is the potential to obtain far more
information, such as subject lines and URLs. He concluded that he would not
oppose a requirement that pen register and trap and trace orders for addressing
and routing information be issued only upon a showing of probable cause and
issuance of a Title III order.
Viet Dinh, the Assistant Attorney General for Legal Policy at the Justice
Department (DOJ), argued in favor of expanding pen register and trap and trace
authority to addressing and routing information, while still maintaining the
current standard for issuance of such orders. He also said that "content
includes the subject line of an e-mail." In addition, Chris Painter, of the
DOJ's computer crime section, argued that URLs are like telephone numbers. He
said that while the DOJ is not now collecting URL information, it may at some
point be interested in knowing if an individual accessed the "cropdusters.com"
The standards for orders allowing pen register and trap and trace devices would
apply to DOJ technologies for collecting addressing and routing information,
such as the Carnivore system.
Viet Dinh also defended the FISA provisions of the bill. Under current law, to
obtain a wiretap order under the FISA, foreign intelligence must be
"the" purpose. Under the Administration's draft Anti Terrorism Act,
foreign intelligence must only be "a" purpose. James Dempsey of the Center for Democracy and Technology argued that
this would lead prosecutors to obtain wiretap orders under FISA in essentially
domestic criminal investigations that would otherwise be held to the higher
Title III standard. The compromise language of the PATRIOT Act states that
foreign intelligence must be "a significant" purpose of the wiretap.
More Members Assigned to House Judiciary Committee
10/2. The House adopted HRes 249, which adds two new members to the House Judiciary Committee, Rep. Ed Bryant (R-TN) and Rep. Mike Pence (R-IN).
7th Circuit Rules in Trademark Case
10/2. The U.S.
Court of Appeals (7thCir) issued its opinion
v. Clean Air Engineering, a trademark infringement case.
CAE, a Canadian conglomerate, argued that Clean Air Engineering's use of the
initials "CAE" infringed its federally registered "CAE"
trademark. The Trademark
Trial and Appeal Board (TTAB) found that Clean Air's use of a
"virtually identical" mark was not likely to cause confusion among
consumers. The U.S. District Court (NDIll)
disagreed. It found that consumers were likely to be confused, entered judgment
for CAE, and enjoined Clean Air from future use of the initials absent a
disclaimer of any association with CAE. The Court of Appeals affirmed.
FTC Brings COPPA Enforcement Action
10/2. The Federal Trade Commission (FTC) filed
a civil complaint [PDF] in
U.S. District Court (EDVa) against Lisa Frank, Inc., alleging violation of the
Children's Online Privacy Protection Act of 1998 (COPPA), and FTC rules
promulgated thereunder. Defendant operates a web site directed at children that
collected personally identifying data from children without first obtaining
parental consent. The FTC also filed a Consent Decree [PDF],
which was agreed to by both the government and defendant, under which the
defendant is enjoined from further violation of the COPPA, and defendant agrees
to pay a $30,000 fine. See also, FTC release.
BellSouth Files 271 Application for Georgia and Louisiana
10/2. BellSouth filed its Section 271
applications with the FCC to provide in region interLATA service in Georgia and
Louisiana. See, BS
10/2. The Georgia Public Service
Commission (GPSC) voted 4-0 to endorse BellSouth's application to enter the
long distance market in Georgia. The GPSC stated in a release [PDF] that
"BellSouth has complied with the requirements
set forth under Section 271 of the federal Telecommunications Act of 1996."
Sprint expressed its opposition.
David Eisenberg, VP for State External Affairs, stated in a release
that "Sprint believes that BellSouth's application to the FCC to provide
long distance service in Georgia and Louisiana is premature." Similarly,
the Southeastern Competitive Carriers Association (SECCA), the Association of
Communications Enterprises (ASCENT) and the Competitive
Telecommunications Association (CompTel), expressed their "strong
disappointment" that Georgia PSC endorsed BellSouth's application. See, CompTel release.
Senators Introduce Bill to Extend Internet Tax Moratorium
10/2. Sen. Patrick Leahy (D-VT), Sen. Ron Wyden (D-OR), and Sen. John McCain (R-AZ) introduced S 1481,
a bill to provide a two year extension to the current Internet tax moratorium,
which expires on October 20. See, Leahy release.
CPNI and Location Privacy
10/2. The FCC published a notice
of proposed rulemaking (NPRM) in the Federal Register regarding customer consent
for the use of Customer Proprietary Network Information (CPNI). See especially,
Paragraph 10, pertaining to location data generated by portable devices.
The Wireless Communications and Public Safety Act of 1999, also know at the
E-911 Act, designated 911 as the universal emergency service number, and
promoted wireless 911 service. The act also amended Section 222 of the
Communications Act to include cell phone call location information in the
definition of CPNI; see, subsection 222(f). The FCC has authority to regulate
the use of CPNI by telecommunications carriers only. The FCC does not have
statutory authority to regulate the privacy practices of the many other entities
that may obtain location data from web enabled devices.
The notice states that in passing the E-911 Act "Congress amended section
222 of the Communications Act by adding provisions regarding CPNI. The
amendments were enacted as incentives for greater deployment of wireless E911
services. The new CPNI provisions are intended to encourage that objective by
providing separate provisions to protect certain wireless location information,
and by expressly authorizing carriers to release this information to specified
third parties for specified emergency purposes. The Commission seeks comment on
what affect, if any, the provisions of section 222(f) have on our interpretation
of the provisions of section 222(c)(1) and the customer approval requirements
that are under consideration here."
Comments due by November 1, 2001. Reply comments due by November 16, 2001. This
is CC Docket No. 96-115 and CC Docket No. 96-149. See, Federal Register, October
2, 2001, Vol. 66, No. 191, at Pages 50140 - 50147.
Supreme Court Hears Pole Attachments Case
10/2. The Supreme Court of the United
States heard oral argument in NCTA v. Gulf Power (No. 00-832) and FCC
v. Gulf Power (No. 00-843), consolidated, known as the "pole
House Judiciary Committee to Mark Up Anti Terrorism Bill
10/1. Rep. James Sensenbrenner
(R-WI) and Rep. John Conyers (D-MI)
introduced HR 2975, the PATRIOT
Act [122 pages in PDF]. The is an acronym for the Provide Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001. Rep. Sensenbrenner and
Rep. Conyers are the Chairman and ranking Democrat on the House Judiciary Committee. This bill
is a House revision of the Administration's draft of the Anti Terrorism Act of
2001 [PDF], which was released on September 19. The bill would expand the
authority of law enforcement agencies to conduct surveillance of phone and
Internet communications, among other things.
The PATRIOT Act maintains most of the provisions of the administration proposal,
but removes or revises many of the provisions that House members found
objectionable on civil liberties grounds. See also, House Judiciary Committee summary [21
pages in PDF] of the PATRIOT Act. While House members and administration
officials continue to consider and negotiate further revisions to the bill, the
House Judiciary Committee has scheduled a meeting to mark up the bill on
Wednesday, September 3, at 2:00 PM. Full House passage could follow shortly
Indiana Court Rules In Imposter E-Mail and Web Site Case
10/1. The Supreme Court of Indiana issued its opinion
in Felsher v. University of Evansville,
a state law case involving the right to privacy and the use of imposter
e-mail user names and web sites for the purpose harming reputations.
William Felsher is a former professor at the University of Evansville (UE) with
a personal vendetta against his former employers. He created and used web sites
and e-mail addresses that contained the names of officers and faculty at the UE.
He created imposter web sites and e-mail addresses for the sole purpose of
harming their reputations. The UE, and the individuals whose names were used,
filed a complaint in state court in Indiana alleging invasion of privacy. The
plaintiffs did not plead violation of the Lanham Act, state unfair trade
practices, or defamation.
The trial court granted summary judgment to the plaintiffs, and enjoined Felsher
from using e-mail addresses or URLs that incorporate the plaintiffs' names. The
Indiana Court of Appeals affirmed.
On appeal to the Indiana Supreme Court Felsher argued that the UE, a corporate
entity, cannot maintain an action for invasion of privacy. The Supreme Court,
relying on the Restatement (Second) of Torts, and precedent from other states,
held that a corporation is not entitled to maintain an invasion of privacy
action. Felsher also challenged the grant of injunctive relief. The Supreme
Court upheld the injunction.
Senate Democrats Criticize WTO Draft
10/1. Senators Max Baucus (D-MT), Jay Rockefeller (D-WV), and Jeff Bingaman (D-NM) sent a letter
Robert Zoellick regarding a WTO draft issued last week. The wrote
"to express our strong concern about the Draft Ministerial Declaration
issued last week by the Chairman of the WTO General Council, along with the
Chairman's Draft Decision on Implementation- Related Issues and Concerns. The
Chairman's Drafts, if adopted by the WTO, would open the door to a weakening of
the agreements on antidumping and subsidies rules. We must not permit
Bankruptcy Court Grants Continuance to NextWave
10/1. The U.S. Bankruptcy Court granted NextWave Telecom's motion to continue
its Disclosure Statement Hearing until October 22. NextWave stated in a release
that "At the hearing on the 22nd, the company will ask the Court to approve
the Disclosure Statement for solicitation of approvals to its pending plan of
reorganization, which was filed on August 6, 2001."
FTC Chairman Muris to Unveil Privacy Agenda
10/1. The FTC announced that its Chairman, Timothy Muris, will give a
speech at the Privacy 2001 Conference in Cleveland, Ohio, on October 4 in which
he will unveil the FTC's privacy agenda. The FTC stated in a release that Muris
"has spent the past four months meeting with agency staff, consumer groups,
information technology executives, academics, and several trade association
representatives on privacy issues." It continued that he "will
describe the specifics of how the FTC plans to increase protection of consumer
privacy in the market place by focusing on: telemarketing, spam, ID theft, and
pretexting, as well as enforcement under the Fair Credit Reporting Act, the
Children's Online Privacy Protection Act (COPPA), the Gramm-Leach-Bliley Act and
the Telemarketing Sales Rule. He will also discuss his views on legislative
NTIA Funds Cyber Cafe and Surveillance Cameras
10/1. The National Telecommunications and
Information Administration (NTIA) announced the award of $42.8 Million in
Technology Opportunities Program (TOP) grants to 74 non profit organizations.
Among the funded projects are a cyber cafe for gang members in Detroit, a
network of surveillance cameras on California beaches, and a web site containing
pictures of artifacts from Maine. The unifying theme of this year's grants is
that all projects make some use of the Internet. Other projects will provide
medical, public housing, and other information through web sites. Other projects
will provide networking and training. See, NTIA release
and list of
Cyber Cafe. One grant will provide $500,500 to "develop a state of
the art Cyber cafe and multi media lab designed to provide employment
opportunities to gang involved youth" in Detroit, Michigan. See, project
Bay Watch. Another grant will provide $557,378 to fund a "network of
video surveillance cameras and meteorological instruments ... along Los
Angeles's 72-mile coastline". The purpose of this project is
"protecting the lives and property of the more than 50 million visitors
that come from all over the world to swim, surf, and recreate each year."
Rep. Boehlert Addresses Impact of Terrorism on R&D Funding
10/1. Rep. Sherwood Boehlert
(R-NY), Chairman of the House Science
Committee, gave a speech in Albany, New York, regarding the possible impact
of terrorism on federal science and technology research and development funding,
and higher education generally.
R&D Funding. Rep. Boehlert asked rhetorically, "Do we need to
redirect government or academic R&D in the wake of the attacks?" He
opined that "while there are a few areas that need additional focus, the
general thrust of R&D need not change." However, he added that R&D
has been inadequate in "computer security" and "improving the
technical capabilities of our law enforcement agencies." He said the
Science Committee will hold a hearing on computer security issues on October 10.
He also said that there may need to be more focus on "identification
techniques – especially biometrics: the use of iris patterns or heartbeat
patterns or other aspects of the human body to ensure that people are not using
false identities – may get a higher priority."
Immigration. He stated that "the United States has to screen all
visa applicants more thoroughly and needs to keep better track of those who
enter our country, and, in particular, to crack down on those with expired
visas. But we must not imperil the openness of our universities, which are
magnets for students around the world, many of whom choose to settle in the
United States. Foreign students who remain here are absolutely critical elements
of our science and technology workforce, and those who return home often
increase the goodwill toward the U.S. in their home countries."
Novell Sues Microsoft Over Marketing
10/1. Novell filed a complaint in U.S. District Court (DUtah) against Microsoft alleging making and distributing
false and misleading statements about Novell and its products in violation of
state and federal laws. Novell seeks injunctive relief, corrective advertising,
a recall of the false advertising, and money damages. At issue are Microsoft
statements about Novell's NetWare 6, the latest version of its network operating
system. See, Novell
Supreme Court Begins New Term
10/1. The Supreme Court of the United
States held its opening conference of the new term. It also released an Order
List [88 pages in PDF]. The Court denied petitions for writ of certiorari in
the following cases: Transglobal Telecom v. AT&T (No. 01-101), El Paso Water
Improvement v. Southwestern Bell (No. 01-116), TCI Cablevision v. Intellectual
Property Dev. (No. 01-234), and Bonczyk v. USPTO (No. 01-262).
The Order List also contains the following: "D-2270 IN THE MATTER OF
DISCIPLINE OF BILL CLINTON Bill Clinton, of New York, New York, is suspended
from the practice of law in this Court and a rule will issue, returnable within
40 days, requiring him to show cause why he should not be disbarred from the
practice of law in this Court."
People and Appointments
10/1. Martha Boersch was named Chief of the Securities Fraud Unit in the
U.S. Attorney's Office for the Northern District of California. See, USAO
10/1. Glenn Reynolds was named VP Federal Regulatory in BellSouth's
Washington DC, Governmental Affairs office. He previously worked at the Federal Communications CommissionFCC, most
recently as acting Deputy Chief of the Common
Carrier Bureau, where he had responsibility for issues within the Bureau's
Policy and Competitive Pricing Divisions. See, BS
10/1. Harrold Barron joined the Chicago office of the law firm of McDermott, Will & Emery as counsel in the
firm's Corporate Department. Previously, he worked at Unisys, most recently as Vice Chairman, and
before that, as SVP and General Counsel. See, release.
10/1. President Bush signed an executive
order establishing a President's Council of Advisors on Science and
10/1. The U.S. Court of Appeals (DCCir)
heard oral argument in AT&T Wireless Services v. FCC, No. 00-1304.
Go to News Briefs from September 26-30,