News from December 6-10, 2003

Why Would Anybody Want to Launch a DDOS Attack on SCO?

12/10. SCO stated in a release that "it experienced a large scale distributed denial of service (DDoS) attack." It added that the attack caused its web site and corporate operational traffic "to be unavailable during the morning hours including e-mail, the company intranet, and customer support operations".

SCO stated that it is "working with law enforcement officials" and that it deplores these "cyber terrorist attacks".

SCO wrote a letter to Linux customers on May 12, 2003 in which it asserted that "SCO holds the rights to the UNIX operating system software" and that the "vast majority of UNIX software used in enterprise applications today is a derivative work of the software originally distributed under our UNIX Licenses."

It continued in this letter that "In recent years, a UNIX-like operating system has emerged and has been distributed in the enterprise marketplace by various software vendors. This system is called Linux. We believe that Linux is, in material part, an unauthorized derivative of UNIX."

SCO has also sued IBM in connection with its allege use of SCO's proprietary UNIX code.

This is not the first DDOS attack on SCO.

3rd Circuit Rules on Application of ECPA to Stored E-Mail

12/10. The U.S. Court of Appeals (3rdCir) issued its opinion [15 pages in PDF] in Fraser v. Nationwide, a case involving, among other issues, the application of the Electronic Communications Privacy Act (ECPA) to an employer's search of an employee's stored e-mail communications on a company server. The Appeals Court held that there was no violation of the ECPA. See, full story.

FCC Announces Agenda for December 17 Meeting

12/10. The Federal Communications Commission (FCC) released the agenda [PDF] for its Wednesday, December 17 meeting.

First, The FCC will consider a Notice of Proposed Rulemaking (NPRM) regarding the use of cognitive radio technologies and software defined radios. This is ET Docket No. 03-108 and ET Docket No. 00-47.

Second, the FCC will consider a Third Report and Order and Second Further NPRM regarding the administration of its e-rate subsidy program. This is CC Docket No. 02-6.

Finally, the FCC will consider a Report and Order regarding licensing and service rules for the Dedicated Short Range Communications (DSRC) Service in the Intelligent Transportation Systems (ITS) Radio Service in the 5.850-5.925 GHz band. This is WT Docket No. 01-90, ET Docket No. 98-95, and RM-9096.

There is nothing on the just released agenda pertaining to several other anticipated items, such as the regulation of voice over internet protocol (VOIP) services, or digital television must carry and multicasting requirements.

The meeting will be held at 9:30 AM Room TW-C305 (Commission Meeting Room), at 445 12th Street, SW. The meeting will be open to the public, and web cast.

FCC Announces Deadlines for Comments on Unlicensed Devices NPRM

12/10. The Federal Communications Commission (FCC) published a notice in the Federal Register summarizing, and providing comment deadlines for, its notice of proposed rulemaking (NPRM) regarding unlicensed devices.

This notice states that comments are due by January 9, 2004, and that reply comments are due by January 26, 2004. See, Federal Register, December 10, 2003, Vol. 68, No. 237, at Pages 68823 - 68831.

The FCC adopted this NPRM on September 10, 2003. See, FCC release [PDF]. See also, story titled "FCC Announces NPRM Regarding Unlicensed Devices" in TLJ Daily E-Mail Alert No. 739, September 15, 2003.

It released the NPRM [35 pages in PDF] on September 17, 2003. This NPRM is FCC 03-223 in ET Docket No. 03-201.

The NPRM states that it proposes to " 1) modify the rules to permit the use of advanced antenna technologies with spread spectrum devices in the 2.4 GHz band; 2) modify the replacement antenna restriction for Part 15 devices; 3) modify the equipment authorization procedures to provide more flexibility to configure transmission systems without the need to obtain separate authorization for every combination of system components; 4) harmonize the measurement procedures for digital modulation systems authorized pursuant to Section 15.247 of the rules with those for similar U-NII devices authorized under Sections 15.401- 15.407 of the rules; 5) modify the channel spacing requirements for frequency hopping spread spectrum devices in the 2.4 GHz band in order to remove barriers to the introduction of new technology that uses wider bandwidths; 6) clarify the equipment authorization requirements for modular transmitters; and 7) make other changes to update or correct Parts 2 and 15 of our rules." (Footnote omitted.)

The NPRM also request comments on ways the FCC "might improve spectrum sharing among unlicensed devices".

World Summit on the Information Society

12/10. The first phase of the United Nation's World Summit on the Information Society (WSIS) is being held in Geneva, Switzerland on December 10-12, 2004. The second phase will be held in Tunisia in 2005.

On December 9, the WSIS released a document [MS Word] titled "Draft Declaration of Principles: Building the Information Society: a global challenge in the new Millennium".

It states that "radio frequency spectrum should be managed in the public interest". It states that there should be "universal service obligations". Also, it states that there should be "stability, predictability and fair competition".

The document also addressed intellectual property rights (IPR) protection. While it includes numerous statements regarding access to information and the importance of the public domain, it also references IPR. It states that "Intellectual Property protection is important to encourage innovation and creativity in the information society; similarly, the wide dissemination, diffusion, and sharing of knowledge is important to encourage innovation and creativity. Facilitating meaningful participation by all in intellectual property issues and knowledge sharing through full awareness and capacity building is a fundamental part of an inclusive Information Society."

The document also contains the following statement. "Information in the public domain should be easily accessible to support the Information Society, and protected from misappropriation."

The document also addressed freedom of speech. It states that "everyone has the right to freedom of opinion and expression" and "We reaffirm our commitment to the principles of freedom of the press".

However, it adds this: "We call for the responsible use and treatment of information by the media". And, it provides that "Nothing in this declaration shall be construed as impairing, contradicting, restricting or derogating ... national laws".

This document also states that "Diversity of media ownership should be encouraged, in conformity with national law, and taking into account relevant international conventions. We reaffirm the necessity of reducing international imbalances affecting the media, particularly as regards infrastructure, technical resources and the development of human skills."

The document also addresses cyber security. It states that "Strengthening the trust framework, including information security and network security, authentication, privacy and consumer protection, is a prerequisite for the development of the Information Society and for building confidence among users of ICTs. A global culture of cyber-security needs to be promoted, developed and implemented in co-operation with all stakeholders and international expert bodies. These efforts should be supported by increased international co-operation. Within this global culture of cyber-security, it is important to enhance security and to ensure the protection of data and privacy, while enhancing access and trade."

The document briefly mentions spam. "Spam is a significant and growing problem for users, networks and the Internet as a whole. Spam and cyber-security should be dealt with at appropriate national and international levels."

Finally, the document addresses open source software. It states that "Access to information and knowledge can be promoted by increasing awareness among all stakeholders of the possibilities offered by different software models, including proprietary, open-source and free software, in order to increase competition, access by users, diversity of choice, and to enable all users to develop solutions which best meet their requirements. Affordable access to software should be considered as an important component of a truly inclusive Information Society."

On December 9, David Gross of the U.S. Department of State gave a speech in Geneva regarding information and communications technologies (ICT) and the U.S. position at the WSIS.

David GrossGross (at right) is the Deputy Assistant Secretary of State for International Communications and Information Policy, in the Bureau of Economic and Business Affairs.

He stated that "The rise of the Internet also promised to make possible an unprecedented exchange of information and knowledge. In the process, it promised to challenge censorship and erode the foundations of authoritarianism. In the most optimistic and simplistic formulations, the mere introduction of the Internet was going to unhinge authoritarian regimes and lead to a flowering of democracy. Some of these promises have been fulfilled but not everywhere and not equally. Undoubtedly, more people in more countries have access to more information than ever before. ICT has even played a significant role in promoting political change."

He continued that "The truth is that the Internet often defies but alone cannot defeat the forces of repression. Some countries use firewalls and force users to connect to the Internet through state-controlled networks. Some limit their citizens' access to computers, register users, monitor e-mails and impose punitive deterrents. Still others use patronage and censorship to shape what their citizens know. Some try to do all of these things. These countries are attempting -- vainly I believe -- to deflect the course of history. With the aim of maintaining political control, they run the risk of undermining much of the promise of the Internet and denying their peoples a richer more rewarding life. Freedom to express, innovate and exchange are the lifeblood of the progress these countries and their peoples desire."

He argued that the WSIS' "overriding vision for the information society should be one that promotes political and economic freedom in order to offer our citizens the opportunity to access and utilize information to better their lives."

Also, "The final Summit Declaration and Plan of Action should promote press freedom and preserve intellectual property rights that fuel knowledge creation and innovation."

The Department of State elaborated on the WSIS. On December 10, 2003, the Department of State's Office of the Spokesman released a statement which says that "We believe that the keys to prosperity in the Information Society are education, individual creativity and an environment of economic and political freedom. Access to information is at the core of a truly inclusive Information Society."

This statement continues that "The delegates to the WSIS identified and achieved consensus on a series of difficult issues that represent key challenges presented by the Information Society. First, States have affirmed their commitment to freedom of the press, as well as to the independence, pluralism and diversity of the media. The United States believes that the principle free flow of information, as enshrined in the Universal Declaration of Human Rights, lies at the heart of the Information Society. Second, states agreed that achieving ubiquitous and affordable access to ICT infrastructure and services requires a stable, predictable and fair national economic climate that can attract private capital and the development of human capacity through education and training."

"The WSIS also recognized that building confidence and security in the use of ICTs is a critical element of the Information Society and that all stakeholders must act nationally and cooperate internationally to foster a global culture of cyber security. The United States welcomes the plan of action that will involve all participants in this global effort. In addition, a global consensus was developed around a multi-stakeholder approach to the Internet."

The State Department statement concludes that "The WSIS also acknowledged the importance of intellectual property to the Information Society. The United States believes that the contributions made to the Information Society by creators and inventors are essential. Through existing intellectual property protection agreements these contributions are protected so that innovation and creativity by all people are encouraged. The wide dissemination of knowledge is also important to the Information society and we are pleased to have this reaffirmed by the WSIS."

See also, transcript of David Gross's December 3 briefing on the WSIS.

People and Appointments

Pam Olson12/10. Pam Olson (at right), Assistant Secretary for Tax Policy at the Department of the Treasury, announced her resignation, "effective after the completion of the fiscal year 2005 budget". See, statement by John Snow and Olson's letter to President Bush.

More News

12/10. The U.S. District Court (DUtah) ordered a permanent injunction against ClearOne Communications. On January 15, 2003, the Securities and Exchange Commission (SEC) filed a civil complaint alleging violation of federal securities laws in connection with ClearOne's inflating company revenues and net income by engaging in improper revenue recognition. This case is SEC v. ClearOne Communications, Inc., et al., D.C. No. 2:03 CV-0055 DAK. See, SEC release.

12/10. Richard Mills, Spokesman for the U.S. Trade Representative (USTR) released a statement [PDF] regarding eligibility to bid on Iraq reconstruction contracts. It states, in full, that "Purchases on behalf of the Coalition Provisional Authority (CPA) are not covered by international trade procurement obligations because the CPA is not an entity subject to these obligations. Accordingly, there is no need to invoke the 'essential security' exception to our trade obligations." Also on December 10, the Department of Defense announced that "Nations that are not part of the coalition cannot serve as prime contractors for any of the $18.6 billion in reconstruction funds provided by Congress as part of the fiscal 2004 Defense supplemental spending bill". See, DOD release.

12/10. The Securities and Exchange Commission (SEC) filed a civil complaint in U.S. District Court (NDIll) against Cumulus Media Inc. and three of its officers and directors (Richard J. Bonick, Jr., Richard W. Weening, and Daniel O'Donnell) alleging violation of federal securities laws in connection with alleged schemes to artificially inflate Cumulus' financial condition. Cumulus is engaged in the acquisition, operation and development of radio stations in small and mid-sized markets. The SEC also stated in a release that "All of the defendants, without admitting or denying the allegations of the Complaint, consented to the entry of final judgments against them upon filing of the Complaint." This case is SEC v. Cumulus Media, et al., U.S.D.C. for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 8908.

12/10. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS), which is also still known as the Bureau of Export Administration (BXA), published a notice in the Federal Register that summarizes a final rule that amends the Commerce Control List to implement revisions to the Wassenaar List that were agreed upon in the December 2002 meeting. The changes pertain to, among other things, dual use items, including computers, software, telecommunications equipment, and information security products. See, Federal Register, December 10, 2003, Vol. 68, No. 237, at Pages 68975 - 68996.

FCC Files Brief with Appeals Court in Consolidated Challenges to Media Ownership Rules

12/9. The Federal Communications Commission (FCC) filed its brief [126 pages in PDF] with the U.S. Court of Appeals (3rdCir) in Prometheus Radio Project v. FCC, a challenge to the media ownership rules changes that the FCC announced at its June 2, 2003 meeting. This proceeding is also consolidated with many other challenges to the FCC's rules.

On June 2, 2003, the FCC announced its Report and Order and Notice of Proposed Rulemaking [257 pages in PDF] amending its media ownership rules. This item is FCC 03-127. See, story titled "FCC Announces Revisions to Media Ownership Rules" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.

The FCC released the text of the order on July 2, 2003. See, story titled "FCC Releases Media Ownership Order and NPRM" in TLJ Daily E-Mail Alert No. 692, July 7, 2003.

Numerous petitions for review of various parts of the order were filed, mostly in the District of Columbia. On August 19, the Judicial Panel on Multidistrict Litigation consolidated all of the petitions in the Third Circuit.

The Third Circuit issued an order [3 page PDF scan] on September 3 staying the FCC's rules changes. See, story titled "3rd Circuit Stays FCC's Media Ownership Rule Changes" in TLJ Daily E-Mail Alert No. 732, September 4, 2003.

Some petitions argue that the FCC went too far in relaxing some of its media ownership rules. Others argue that the FCC should have further relaxed, or eliminated, certain rules.

The FCC argues that the Court of Appeals lacks jurisdiction over some of the claims, on the basis that they are the subject of petitions for reconsideration that are still pending at the FCC.

More generally, the FCC's brief argues that "The FCC's revised broadcast ownership rules are a responsible exercise of the agency’s expansive authority to regulate television and radio broadcasting in the public interest. The revised rules advance three well-established goals: (1) promoting competition among broadcasters, (2) preserving a diversity of views in the media marketplace, and (3) ensuring that broadcast stations are responsive to the needs and interests of their local communities."

The brief states that "The Commission's revised rules do not, by any stretch of the imagination, ``eviscerate´´ the system of media ownership regulation, as Prometheus contends. ... While in some cases the Commission relaxed existing rules (for example, the local television ownership limits and the national audience reach cap), in others the Commission’s changes have the effect of tightening existing rules (as with the Commission’s choice of Arbitron radio market definitions). In every instance, however, the revised rules leave in place a comprehensive set of ownership limitations that continue to restrain multiple ownership of broadcast stations in local markets, regulate cross-media ownership, and cap the national reach of television station groups." (Parentheses in original.)

The brief adds that "By the same token, the record did not compel the Commission to ``relax´´ its ownership rules ``further,´´ or to ``repeal them outright,´´ as the industry petitioners contend. ... As the Commission recognized, the abundance of media voices in today's information society has not yet eliminated the need for protections against undue domination of the media marketplace."

This case is Prometheus Radio Project, et al. v. FCC and USA, Nos. 03-3388, 03-3577, 03-3578, 03-3579, 03-3580, 03-3581, 03-3582, 03-3651, 03-3665, 03-3675, 03-3708, 03-3894, 03-3950, 03-3951 & 03-4073, petitions for review of a final order of the FCC. Numerous redundant petitions were filed in numerous federal circuits by some petitioners, in part, as a forum shopping strategy, which succeeded.

Sen. Frist Addresses Intellectual Property Piracy

12/9. Sen. Bill Frist (R-TN), the Senate Majority Leader, spoke in the Senate about intellectual property rights. See, Congressional Record, December 9, 2003, at page S16157-8

Sen. Bill FristSen. Frist (at left) stated that "The music community that creates these opportunities and this joy is being threatened ... by those who love it so much, who appreciate it so much; that is, the millions of people who are downloading billions of illegal music files."

"The bottom line is clear: Piracy is greatly impacting the music community. The situation is, indeed, growing worse. Online music piracy is out of control', said Sen. Frist.

He then expanded the discussion. "Piracy affects more than just the music industry. It affects that larger element of intellectual property. It includes the movie industry, it includes the software industry. Indeed, the numbers are staggering. According to a report released by the International Intellectual Property Alliance, U.S. copyright industries -- and that includes music, movies, books, and software -- contributed $535 billion to the U.S. economy in 2001. They collectively employ over 4.7 million workers. They generate almost $900 billion in foreign sales, making intellectual property one of our largest exports."

Moreover, said Sen. Frist, "Other countries often do not respect our copyright laws. They allow mass copying of music and other works. For example, it is estimated that an astounding 92 percent of business software used in China is pirated. In my travels to Asia several months ago, I directly stressed the importance of protecting our copyright laws to the leaders of China and Taiwan and Korea, the countries I visited."

He called for educating the public "that illegally downloading music or copyrighted material is stealing, straight and simple." He also said that "we can encourage consumers to download music from legitimate online fee services. There are several sites that are up and running, and I encourage the industry to continue to work hard to improve their online products to meet consumer demand."

Rogan Will Leave USPTO

12/9. James Rogan announced his resignation as Director of the U.S. Patent and Trademark Office (USPTO). The USPTO stated in a release that the resignation is effective January 9, 2004. The USPTO cited no reasons for the departure. Deputy Director Jon Dudas will become Acting Director.

He was nominated by President Bush on May 25, 2001, and confirmed by the Senate on November 30, 2001. The USPTO's Brigid Quinn stated that "he has pretty much accomplished what he set out to accomplish", citing the preparation of the 21st Century Strategic Plan.

James RoganRogan (at right) was previously a state prosecutor in California, a state judge, a state legislator, and a member of the House of Representatives.

Many of the Burbank residents of his House district worked for NBC and Disney studios. Hence, he worked to protect the copyright interests of the entertainment industry, as well as the rights of all intellectual property owners generally. His district was also home to many engineering and high tech firms located around CalTech in Pasadena.

He was a member of the House Commerce Committee and its Telecommunications and Internet Subcommittee, and the House Judiciary Committee and its Subcommittee on Courts, and its Internet and Intellectual Property Subcommittee (CIIP). He was also a an impeachment manager. He lost the 2000 election to Rep. Adam Schiff (D-CA), who is now a member of the House Judiciary Committee and its CIIP. See also, TLJ biography of Rogan, written in 1999.

Quinn further stated that Rogan and his family will soon return to Southern California. She added that he is "leaving to edit his autobiography". It will be titled Rough Edges, and will be published in the summer of 2004 by Harper Collins.

More People and Appointments

12/9. President Bush formally nominated Samuel Bodman to be Deputy Secretary of the Treasury. He would replace Kenneth Dam, who resigned. President Bush also formerly withdrew his nomination of Susan Schwab for this position. Both actions had previously been announced. See, White House release.

12/9. President Bush nominated Brian Carlton Roseboro to be an Under Secretary of the Treasury. He would replace Peter Fisher, who resigned. See, White House release.

12/9. President Bush nominated Rhonda Keenum to be Assistant Secretary of Commerce and Director General of the United States and Foreign Commercial Service. She would replace Maria Cino, who resigned. See, White House release.

12/9. President Bush nominated Peter Hall to be a Judge of the U.S. Court of Appeals (2ndCir). He is currently the U.S. Attorney for the District of Vermont. See, White House release.

12/9. President Bush nominated James Robart to be a Judge of the U.S. District Court (WDWash). See, White House release. He is currently the managing partner of the law firm of Lane Powell Spears & Lubersky.

FCC Commissioner Abernathy Addresses Competition and Regulation

12/8. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy gave a speech [3 pages in PDF] in Geneva, Switzerland, in which she discussed her views about regulation.

She participated in a panel discussion on universal access. She stated that "The goal of providing high quality telecommunications services to all consumers in the United States at affordable rates is a cherished principle of U.S. telecommunications policy and law." She added that a "fully functioning competitive markets deliver greater value and services to consumers than those that are heavily regulated. Despite the noblest of intentions, government simply cannot allocate the resources, punish and reward providers, and encourage innovation as efficiently as markets."

She then discussed three topics: competition, transparency and consumer education.

While she said that she has faith in markets, she also stated that "it is necessary for regulators to intervene when structural or competitive barriers impede the development of competition. Therefore, as markets transition from a monopoly to a competitive model, it is important for the regulators to craft narrowly tailored regulations aimed at curtailing the anti-competitive behavior of incumbents."

She also said that universal service goals "are unlikely to be advanced in the marketplace absent regulatory intervention".

She next discussed "transparency". She stated that "I believe that transparency is best achieved through the creation and publication of clear rules. However, for the regulatory regime to be successful, these rules must also be strictly enforced."

She did not reference, in her prepared text, some of the elements of transparency that are often raised by U.S. companies and trade negotiators when complaining about lack of transparency in other nations' regulation, such as open procedures for promulgating rules, notice and opportunity to comment, impartial regulators, and an opportunity for judicial review. Nor did she assert that the FCC conducts its affairs in a transparent manner.

She did assert that "the U.S. regulatory model has only been successful when the FCC has enforced its rules vigorously. Failure to enforce rules sends the inappropriate signal that companies may engage in anticompetitive behavior or other unlawful conduct with impunity."

She added that "I also find strict enforcement of narrowly tailored rules to be more effective than broad prescriptive rules, which prohibit whole categories of conduct, only some of which may be problematic. By relying more on enforcement mechanisms, the FCC has been able to tailor its intervention to particular circumstances, thereby allowing markets to operate with minimal regulatory distortion."

Finally, she said that regulators "must ensure that consumers have access to the information they need." She said that the FCC does this by "issuing newsletters".

FCC Fines Infinity for Broadcasting Garbage

12/8. The Federal Communications Commission (FCC) released a Forfeiture Order [11 pages in PDF] in its proceeding titled "In the Matter of Infinity Broadcasting Operations, Inc. Licensee of Station WKRK-FM Detroit, Michigan". The FCC adopted this order on November 24, 2003, but did not release it until December 8, 2003.

This order fines Infinity $27,500, the maximum fine for a single utterance, for violation of 18 U.S.C. § 1464 and section 73.3999 of the FCC's rules.

The FCC issued a Notice of Apparent Liability (NAL) in this proceeding back on April 4, 2003. A transcript Infinity's garbage is in the NAL.

FCC Chairman Michael Powell wrote in a separate statement [PDF] that "Broadcasters should take this latest action as yet another sign that the Commission will continue to rigorously enforce our indecency regulations." FCC Commissioner Michael Copps wrote in a dissent [PDF] that "a fine of $27,500 is not even a slap on the wrist to Infinity". FCC Commissioner Kevin Martin, noting that the talk radio program included nine separate calls, argued that the FCC should have fined Infinity for nine violations, for a total fine of $247,500.

This Forfeiture Order is FCC 03-302 in File No. EB-02-IH-0109.

This is not the only proceeding against Infinity for garbage broadcasting. See, story titled "FCC Fines Infinity for Indecent Broadcasts" in TLJ Daily E-Mail Alert No. 752, October 3, 2003.

EU Adopts Resolution on FSC/ETI Retaliatory Tariffs

12/8. The European Union released a document [30 pages in PDF] titled "2552th Council meeting: GENERAL AFFAIRS: Brussels, 8 December 2003". Among other topics, it addresses the U.S. Foreign Sales Corporation (FSC) and Extraterritorial Income (ETI) tax regimes, which the World Trade Organization (WTO) has found to constitute illegal export subsidies. Further replacement legislation is pending in both the House and Senate.

This document states that "The Council adopted a Regulation establishing additional customs duties on imports of certain products from the United States in response to continuing non-compliance by the US with World Trade Organisation dispute settlement rulings on the incompatibility with WTO rules of its Foreign Sales Corporation Act and replacement legislation (14359/03)."

"The Regulation provides for the imposition of countermeasures by means using a gradual approach, both in terms of timing and the level of duties. The applications of duties at an initial level of 5 % in March 2004, will be increased monthly up to a level of 17 % in March 2005, and thereafter the Commission will present a proposal for further action in the light of developments."

"On the selected products, tariff bindings granted by the EU to the US will be suspended from 1 March 2004, and the suspension will be noted to the WTO by that date. The timing is aimed at allowing the US to comply with the WTO ruling before the countermeasures are actually imposed. The suspension of tariff bindings will be temporary and will only be applied until such time as the incompatibility with WTO rules has been removed. The Commission will present a proposal for repeal of the Regulation even before the countermeasures are applied on 1 March in the case the US has fully complied with WTO rulings before that date."

Finally, it states that "Following the dispute settlement rulings in March 2000 and January 2003, the WTO Dispute Settlement Body in May 2003 authorised the EU to impose countermeasures against the US for a total of USD 4 billion."

See also, document [14 pages in PDF] titled "Proposal for a COUNCIL REGULATION establishing additional customs duties on imports of certain products originating in the United States of America".

ChoicePoint Database Acquisitions Prompted Criticism in Mexico

12/8. The Electronic Privacy Information Center (EPIC) published in its web site a heavily redacted copy of a memorandum [PDF scan] titled "MEDIA HAMMERS U.S. ON ALLEGED PURCHASE OF DATABASE INFORMATION". This memorandum was sent from the U.S. Embassy in Mexico City to the Department of State in Washington DC, and other government entities. It pertains to ChoicePoint's purchase of Mexican databases.

The memorandum, which was written in April of 2003, states that "In the last three days, local media have run front-page stories on the alleged purchase by Atlanta-based ChoicePoint of the Federal Electoral Institute's (IFE) electoral registry that includes 60 million Mexican voters' data, and another database with information on six million drivers licenses from Mexico City." (The original memorandum was written in all capitals.)

"Mexican editorials have decried the alleged sale of information to the American company, spinning conspiracy theories about the information's likely use and misuse by the CIA, FBI, and DEA." The memorandum adds that "Prominent members of Congress have begun to speak out negatively on the issue", and that "a potential firestorm may be brewing."

The memorandum was also sent to the Department of Justice (DOJ), Department of Homeland Security (DHS), Department of the Treasury, the Central Intelligence Agency (CIA), and other government entities.

ChoicePoint states in its web site that it "has grown from the nation's premier source of data to the insurance industry into the premier provider of decision-making intelligence to businesses and government. Through the identification, retrieval, storage, analysis and delivery of data, ChoicePoint serves the informational needs of businesses of all sizes, as well as federal, state and local government agencies."

It further states that "Through unique filtering and delivery capabilities, ChoicePoint Public Records Group provides access to billions of public records. Our revolutionary technology – unprecedented in the information industry – makes us the preferred provider for government agencies and Fortune 1000 companies."

On May 13, 2003, the EPIC published a heavily redacted copy of a Federal Bureau of Investigation (FBI) memorandum [16 page PDF scan] titled "GUIDANCE REGARDING THE USE OF CHOICEPOINT FOR FOREIGN INTELLIGENCE COLLECTION OR FOREIGN COUNTERTERRORISM INVESTIGATIONS".

The memorandum is dated September 17, 2001. On the question of whether the FBI may use ChoicePoint's private database, the memorandum's key sections are redacted.

See, story titled "FBI Legal Memorandum Addresses FBI Use of Internet and Private Databases" in TLJ Daily E-Mail Alert No. 661, May 14, 2003.

The EPIC obtained these document in response to requests made pursuant to the Freedom of Information Act (FOIA).

Supreme Court Denies Certiorari in Raritan Computer v. Apex

12/8. The Supreme Court denied certiorari, without opinion, in Raritan Computer v. Apex, a patent infringement case involving computerized switching systems (aka KVM switches) technology. See, Order List [PDF], at page 2.

Apex filed a complaint in the U.S. District Court (SDNY) against Raritan Computer alleging infringement of its U.S. Patent Nos. 5,884,096, 5,937,176, and 6,112,264. The District Court held that the patents were not infringed, and dismissed the complaint. The District Court opinion is published at 187 F. Supp. 2d 141.

The Court of Appeals (FedCir) issued its opinion on April 2, 2003, vacating and remanding on the grounds that the District Court erred as a matter of law in the construction of the disputed claim limitations of the patents.

This case is Raritan Computer, Inc. v. Apex, Inc., Supreme Court No. 03-326, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, A.C. No. 02-1303

More Supreme Court News

12/8. The Supreme Court denied certiorari, without opinion, in Western Wireless Corporation v. South Dakota Department of Revenue, Supreme Court No. 03-539. See, Order List [PDF], at page 3.

12/8. The Supreme Court announced that it will take a recess from Monday, December 15, 2003, until Monday, January 12, 2004. See, Order List [PDF], at page 10. When the Court returns on the 12th it will hear oral argument in Nixon v. Missouri Municipal League, regarding 47 U.S.C. § 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. See, stories titled "Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 687, June 25, 2003, and "Briefs Filed With Supreme Court in Nixon v. Missouri Municipal League" in TLJ Daily E-Mail Alert No. 776, November 11, 2003.

People and Appointments

12/8. The Senate confirmed Michael Fisher to be a Judge of the U.S. Court of Appeals for the Third Circuit. Fischer is Attorney General of Pennsylvania.

12/8. The Senate confirmed George Miller to be a Judge of the U.S. Court of Federal Claims for a term of fifteen years.

James Comey12/8. The Senate confirmed James Comey (at right) to be the Deputy Attorney General, the second highest position at the Department of Justice (DOJ). He is the U.S. Attorney for the Southern District of New York. He replaces Larry Thompson, who left in August. He is a graduate of the University of Chicago School of Law.

12/8. The Senate confirmed Arnold Havens to be General Counsel of the Department of the Treasury.

12/8. Secretary of Homeland Security Tom Ridge announced several new appointments to the Department of Homeland Security's (DHS) Private Sector Senior Advisory Committee (PVTSAC) of the Homeland Security Advisory Council (HSAC). The list of appointees includes George Vradenburg and Houston Williams. Vradenburg was previously an EVP at AOL Time Warner, and before that, at AOL. Williams is Ch/CEO of Pacific Network Supply, a telecommunications company that he founded in 1987. Before that, he worked for Pacific Bell and for Honeywell Communications. Ridge also named representatives from the aircraft manufacturing, airline, chemical, cruise ship, nuclear energy and retail industries. See, DHS release.

12/8. Secretary of Homeland Security Tom Ridge announced several new appointments to the Department of Homeland Security's (DHS) Academe and Policy Research Senior Advisory Committee (APRSAC) of the Homeland Security Advisory Council (HSAC). The list includes Victoria Haynes, CEO of the Research Triangle Institute. Previously, she was VP of the Advanced Technology Group and CTO at BF Goodrich. See, DHS release.

Marsha MacBride12/8. Marsha MacBride (at right) was named Executive Vice President of the National Association of Broadcasters' (NAB) Legal and Regulatory Affairs Department. She was Chief of Staff to Federal Communications Commission (FCC) Chairman Michael Powell from 2001 to September 2003. See, NAB release.

12/8. Linn Draper and Gerald Storch were named to Sprint's Board of Directors. See, Sprint release.

House Passes Bills

12/8. The House passed the conference report on HR 2673, the Consolidated Appropriations Act for Fiscal Year 2004, by a vote of 242-176. See, Roll Call No. 676. The Senate has yet to pass this conference report. It may do so on Tuesday, December 9.

12/8. The House passed S 877, the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003", also known as the "CAN-SPAM Act of 2003", by unanimous consent. This is the same version that the Senate passed on November 25, 2004. The bill is thus ready for President Bush's signature.

More News

12/8. The Bureau of Industry and Standards (BIS) published an item in its web site pertaining to changes in its deemed export license applications process.

12/8. The Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register requesting comments on the operation and effectiveness of, and the implementation of and compliance with, the World Trade
Organization (WTO) Basic Telecommunications Agreement, other WTO agreements affecting market opportunities for U.S. telecommunications products and services, the telecommunications provisions of the North American Free Trade Agreement (NAFTA), Chile FTA and Singapore FTA, and other telecommunications trade agreements. Comments are due by January 5, 2004. Reply comments are due by January 23, 2004. The notice further states that the USTR will conclude this review on March 31, 2004. See, Federal Register, December 8, 2003, Vol. 68, No. 235, at Pages 68444 - 68445.

Go to News from December 1-5, 2003.