EPIC Complains to DOT About Transfer of Airline Passenger Data to NASA

1/20. The Electronic Privacy Information Group (EPIC) submitted a complaint [11 pages PDF] to the Department of Transportation (DOT) that asserts that Northwest Airlines' (NWA) transfer of passenger data to the National Aeronautics and Space Administration (NASA) violated Northwest's privacy policy, and that this, in turn, constitutes an unfair and deceptive trade practice in violation of 49 U.S.C. § 41712.

Northwest has stated that it did transfer the data to NASA. It issued a statement on January 18, 2003: "In the aftermath of the September 11, 2001 tragedy, NASA had discussions with Northwest Airlines’ Security Department regarding a NASA research study to improve aviation security. In December 2001, NASA requested that Northwest’s Security Department provide it with passenger name record data from the period July, August, and September 2001 for NASA’s exclusive use in its research study. Northwest Airlines agreed to provide that data."

However, Northwest also asserts that "By providing the passenger name record data directly to NASA, a federal agency with its own strict privacy protections, Northwest acted appropriately and consistent with its own privacy policy and all applicable federal laws."

The EPIC alleges in its complaint Northwest did violated its privacy policy. The EPIC alleges that "NWA assures passengers that they will be in ``complete control of ... the use of information [they] provide to Northwest Airlines.´´ The airline further assures customers that it has ``put in place safeguards to ... prevent unauthorized access or disclosure´´ of the information it collects."

Section 41712 provides that "On the initiative of the Secretary of Transportation or the complaint of an air carrier, foreign air carrier, or ticket agent, and if the Secretary considers it is in the public interest, the Secretary may investigate and decide whether an air carrier, foreign air carrier, or ticket agent has been or is engaged in an unfair or deceptive practice or an unfair method of competition in air transportation or the sale of air transportation. If the Secretary, after notice and an opportunity for a hearing, finds that an air carrier, foreign air carrier, or ticket agent is engaged in an unfair or deceptive practice or unfair method of competition, the Secretary shall order the air carrier, foreign air carrier, or ticket agent to stop the practice or method."

The EPIC has filed administrative complaints in the past with the Federal Trade Commission (FTC) arguing that violation of privacy policies constitutes unfair and deceptive trade practices within the meaning of Section 5 of the Federal Trade Commission Act (FTCA), which is codified at 15 U.S.C. § 45(a)(1).

The FTCA contains no express prohibition on violating web site privacy policies. However, the FTC has interpreted Section 5 to mean there is a violation of the FTCA if a company operates a web site, publishes a privacy policy in that web site, and then violates its own stated privacy policy.

The DOT has not yet enforced its statute in this manner. Marc Rotenberg and David Sobel of the EPIC held a telephone new conference on January 20, 2004. Sobel (at right) stated that EPIC hopes that the DOT will follow the precedent set by the FTC. He added that "this might be breaking new ground" at the DOT.

The EPIC obtained records from the NASA in response to request made under the Freedom of Information Act (FOIA). These records, which are published in the EPIC's web site, demonstrate the transfer of data.

These records reflect that there was a meeting on December 10-11, 2001. One document, a presentation outline [20 pages in PDF] titled "NASA Ames Research Center: Northwest Airlines Briefing: December 10-11, 2001", contains NASA's explanation of what NASA intended to do with the passenger data.

It states that "We would like to build a passenger screening testbed that would include
 • Biometrics -- facial and other
 • Smart card with biometrics
 • Analysis, mining and threat assessment software
 • Addressing issue of scalability for national-scale system using IPG technology".

See also, story titled "Northwest Airlines Provided Passenger Data to NASA for Data Mining Study" in TLJ Daily E-Mail Alert No. 819, January 20, 2003.

However, the NASA also withheld other documents from the EPIC. Rotenberg and Sobel stated at their news conference that the EPIC will also file a complaint in U.S. District Court against the NASA alleging violation of the FOIA in connection with its refusal to produce copies of certain records. Rotenberg added that other laws may have been violated by the NASA, since it is a government agency affected by the Privacy Act.

The EPIC has filed administrative complaints with the FTC in the past, similar to the present complaint against Northwest, regarding practices of JetBlue, Microsoft, and Intel. It has obtained considerable success in changing the business practices of the companies that it has targeted.

In July of 2001, the EPIC and others submitted a complaint to the FTC regarding Microsoft's Passport and other software and services. See, original complaint [PDF] of July 26, 2001, and updated complaint [PDF] of August 15, 2001. See also, stories titled "EPIC Complains about Microsoft Passport" in TLJ Daily E-Mail Alert No. 250, August 16, 2001; "EPIC Seeks Government Investigations of Microsoft's Passport" in TLJ Daily E-Mail Alert No. 357, January 30, 2002; and "EPIC Complains to FTC About Windows XP" in TLJ Daily E-Mail Alert No. 236, July 27, 2002.

The FTC acted upon the EPIC's complaints. On August 8, 2002, the FTC brought and settled an administrative complaint against Microsoft. The complaint alleged that Microsoft "represented, expressly or by implication, that it maintained a high level of online security by employing sufficient measures reasonable and appropriate under the circumstances to maintain and protect the privacy and confidentiality of personal information obtained from or about consumers in connection with the Passport and Passport Wallet services", whereas, in fact, Microsoft "did not maintain a high level of online security ..."

The FTC and Microsoft simultaneously entered into an Agreement Containing Consent Order. Microsoft admitted to no violations of federal law. Microsoft paid no fine. However, the agreement, which has a twenty year duration, imposed numerous requirements for Microsoft's information security program. See, stories titled "FTC Files and Settles Complaint Against Microsoft", August 8, 2002, also published in TLJ Daily E-Mail Alert No. 488, August 9, 2002; and "EPIC Comments on FTC's Proposed Consent Order Affecting Microsoft's Privacy Practices" in TLJ Daily E-Mail Alert No. 505, September 10, 2002.

See also, story titled "EPIC Submits Privacy Complaint To FTC Regarding JetBlue" in TLJ Daily E-Mail Alert No. 744, September 23, 2003.

In the present matter, Northwest's transfer of data occurred in early 2002, and the data has been returned to it. Moreover, it is questionable whether the EPIC has standing under Section 41712 to bring this complaint. And hypothetically, Northwest could avoid violating its privacy policy in the future by amending its privacy policy.

The filing of this complaint by the EPIC has a broader goal -- affecting European Union policy. The complaint states that the EU "has expressed concern that the United States government's collection and use of passenger information from European airlines may violate EU data protection laws. Officials from the United States and EU recently reached a temporary agreement on the matter after extensive negotiation. Moreover, privacy officials around the word have urged the establishment of privacy safeguards for airline passenger information."

See also, story titled "Europeans Agree to Transfer of Airline Passenger Data to DHS" in TLJ Daily E-Mail Alert No. 801, December 17, 2003.

Said Rotenberg on January 20, "we do want the European Union to be aware that that this action is going forward".

SCO Sues Novell for Slander of Title

1/20. The SCO Group filed a complaint [11 pages in PDF] in state court in Utah against Novell alleging slander of title. The dispute involves intellectual property rights in the UNIX operating system. The complaint does not include a claim for copyright infringement. Nor does it plead any other cause of action that it alleges arises under the Copyright Act or the Patent Act.

The single count complaint alleges that "SCO is the sole and exclusive owner of all copyrights related to UNIX and UnixWare source code and all documentation and peripheral code and systems related thereto" and that "Novell has slandered SCO's title and rights to its UNIX and UnixWare copyrights and damaged SCO's business reputation and relationships with potential customers by making false oaths of ownership to public officials, and by repeatedly representing both to the public in general and directly to several of SCO's customers and potential customers that Novell, and not SCO, owns the UNIX and UnixWare copyrights".

On March 6, 2003 SCO (also known as Caldera) filed a complaint in state court in Utah against IBM alleging misappropriation of trade secrets, tortious interference, unfair competition and breach of contract in connection with IBM's alleged use of Caldera's proprietary UNIX code. That complaint did not assert copyright or patent infringement.

On May 28, 2003, Novell entered the fray. It wrote a letter to SCO, which it publicly released, in which it stated that "SCO continues to say that it owns the UNIX System V patents, yet it must know that it does not. A simple review of U.S. Patent Office records reveals that Novell owns those patents."

Novell added that "SCO is not the owner of the UNIX copyrights. Not only would a quick check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights."

SCO's complaint against Novell alleges that "Through an Asset Purchase Agreement dated September 19, 1995 ... wherein Novell received 6.1 million shares of SCO common stock ... SCO, through its predecessor in interest, acquired from Novell all right, title, and interest in and to the UNIX and UnixWare business, operating system, source code, and all copyrights related thereto, as well as all claims arising after the closing date against any parties relating to any right, property, or asset including in the business."

SCO's complaint further alleges that "In a bad faith effort to interfere with SCO's exercise of its rights with respect to UNIX and UnixWare technologies, Novell has, in disregard of its obligations under the Asset Purchase Agreement, and subsequent to the Asset Purchase Agreement, filed for copyright protection in the same UNIX technology covered by SCO's copyrights."

SCO requests that the Court grant judgment "For actual and special damages in an amount to be proven at trial for Novell's slander of SCO's title to the UNIX and UnixWare copyrights" and "For punitive damages..."

SCO also requests a "preliminary and permanent injunction (a) requiring Novell to assign to SCO any and all copyrights Novell has registered in UNIX and UnixWare; (b) preventing Novell from representing in any forum that it has any ownership interest in the UNIX and UnixWare copyrights; and (c) requiring Novell to retract or withdraw all representations it has made regarding its purported ownership of the UNIX and UnixWare copyrights."

SCO is represented in this case by Brent Hatch of the Salt Lake City law firm of Hatch James & Dodge, and Steven Zack and Mark Heise of the law firm of Boies Schiller and Flexner.

Mark Heise stated in a release that "SCO takes this action today given Novell's recent and repeated announcements regarding their claimed ownership of the UNIX and UnixWare copyrights. SCO has received many questions about Novell's actions from potential customers, investors and the press. Although SCO owns the UNIX and UnixWare copyrights, Novell's efforts to claim ownership of these copyrights has forced this action".

Heise added that "We encourage the public and commercial Linux users to read the Asset Purchase Agreement from 1995 (including Attachment E found at www.sco.com/novell) and Amendment 2 so they can see for themselves that SCO owns the copyrights to UNIX and UnixWare."

This case is SCO Group, Inc. v. Novell, Inc., Third Judicial District Court, Salt Lake County, State of Utah, Case No. 40900936, Judge Anthony Quinn presiding.

SCO's McBride Writes Letter to Congress Regarding Open Source Software

1/20. Daryl McBride, the President and CEO of SCO Group (formerly Caldera), sent a wide ranging letter [9 pages in PDF] to Members of Congress in which he asserts various claims regarding open source software, Linux, and code copied from UNIX into Linux. The letter is four pages. It attaches an open letter from SCO dated December 4, 2003 on related subjects.

SCO asserts ownership of intellectual property rights in UNIX. It also filed a complaint on March 6, 2003 in state court in Utah against IBM. SCO also filed a complaint [11 pages in PDF] on January 20, 2004 against Novell. See, story titled "SCO Sues Novell for Slander of Title" in TLJ Daily E-Mail Alert No. 820, January 21, 2004.

McBride argues, first, that the General Public License (GPL) under which Linux and other open source software is developed and distributed, may be unconstitutional and a violation of the Digital Millennium Copyright Act (DMCA).

He continues that "Those who designed the GPL readily admit that they created this license to have the effect of ``freeing´´ software -- taking it out of the realm of copyright protection by placing it in the public domain."

He also states that "The GPL seeks to commoditize software by reducing its monetary value to zero and making it freely available to anyone. The GPL is carefully designed to have a viral effect -- it ``frees´´ the software that is proprietary, licensable, and a source of income from the companies that developed it. Until now it has been generally agreed that the GPL has never faced a legal test."

McBride does not articulate an explanation for why in this letter for why the GPL is unconstitutional. However, the attached December 4, 2003 addresses this subject at length, although not with clarity.

The second argument that McBride makes in his latest letter is that open source software "is not all original". He repeats his claim that "Linux software contains significant UNIX software code that has been inappropriately, and without authorization, placed in Linux."

He then asserts, "But as use of Linux has grown, license revenue from UNIX has shrunk. Why wouldn't it? Why would someone license UNIX code from SCO and other legitimate providers when they can get much of that same code, for free, in Linux?"

McBride concludes that "The damage this has inflicted on SCO's UNIX business is an example of what could happen to the entire software industry if the current Open Source model continues."

McBride goes on to argue that this problem with open source software could threaten the information technology industry, threaten American economic competitiveness, and threaten national security. For example, he warns that "a computer expert in North Korea who has a number of personal computers and an Internet connection can download the latest version of Linux, complete with multi-processing capabilities misappropriated from UNIX, and, in short order, build a virtual supercomputer."

The Open Source & Industry Alliance (OSAIA) responded to the SCO letter in a release. It wrote that "SCO is expanding its campaign to spread Fear, Uncertainty, and Doubt about open source software to Congress. The excessive hyperbole and ``the sky is falling rhetoric´´ underlines the failure SCO has had in advancing its apparently frivolous claims against other companies which still create technology products and innovate."

The OSAIA added that "SCO, which long ago abandoned a business model of creating innovative and exciting software, has placed all its corporate eggs in the licensing and litigation basket. Without providing any demonstrable evidence, SCO is claiming that vast amounts of its UNIX based code has made its way into Linux."

Lawrence Lessig, a professor at Stanford University Law School, wrote in his personal web site titled "lessig blog" that "Like his last letter, this one too has no relation to the truth."

Lessig added this: "That the president of failing company would be driven to utter such silliness is of course nothing new. (See, e.g., the annual reports of Enron). But if there are members of this government that take this malarky seriously, then indeed we are in serious trouble." (Parentheses in original.)

Lessig is the author of Author of The Future of Ideas (e-book or paperback) and Code and Other Laws of Cyberspace. Lessig wrote favorably of open source software in The Future of Ideas. See especially, Chapter 4, at pages 49-72.

Supreme Court Rules on Petitions for Writ of Certiorari in Cases Related to Trinko

1/20. The Supreme Court granted certiorari in BellSouth v. Covad and Qwest v. Metronet Services. In both cases, the Court granted certiorari, and ordered that "The judgment is vacated and the case is remanded" to the Courts of Appeals "for further consideration in light of Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. ___ (2004)." See, Order List [8 pages in PDF], at page 1.

In addition, the Supreme Court denied certiorari in Cavalier Telephone v. Verizon Virginia, No. 03-271. See, Order List [8 pages in PDF], at page 2. All of these cases turned on the issue decided in Verizon v. Trinko.

On January 13, 2004, the Supreme Court issued its opinion [22 pages in PDF] in Verizon v. Trinko, reversing the U.S. Court of Appeals (2ndCir). The Supreme Court held that a claim alleging a breach of an ILEC's duty under the 1996 Telecom Act to share its network with competitors does not state a violation of Section 2 of the Sherman Act. See, TLJ story titled "Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko", January 13, 2004.

These cases are BellSouth Corporation, et al. v. Covad Communications Co., No. 02-1423, on petition for writ of certiorari to the U.S. Court of Appeals for the 11th Circuit; Qwest Corporation v. Metronet Services Corporation, No. 02-241, on petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit; and Cavalier Telephone v. Verizon Virginia, Inc., No. 03-271, on petition for writ of certiorari to the U.S. Court of Appeals for the 4th Circuit.

On May 20, 2003, the U.S. Court of Appeals (4thCir) issued its split opinion [27 pages in PDF] in Cavalier Telephone v. Verizon Virginia. See, story titled "4th Circuit Rules on Relation of Telecom Act to Antitrust Law" in TLJ Daily E-Mail Alert No. 667, May 22, 2003.

On May 21, 2003 the U.S. Court of Appeals (9thCir) issued its amended opinion [47 pages in PDF] in MetroNet Services v. U S West. See, story titled "9th Circuit Rules on Antitrust Immunity of ILECs" in TLJ Daily E-Mail Alert No. 634, April 1, 2003.

On August 2, 2002 the U.S. Court of Appeals (11thCir) issued its opinion in Covad v. BellSouth. It is reported at 299 F.3d 1272. See also, story titled "Divided 11th Circuit Denies Rehearing En Banc in Covad v. BellSouth" in TLJ Daily E-Mail Alert No. 573, December 23, 2002.

More Supreme Court News

1/20. The Supreme Court denied certiorari in Skywalker Communications of Indiana v. Skywalker Communications, Inc., No. 03-753. See, Order List [8 pages in PDF], at page 2. On June 25, 2003 the U.S. Court of Appeals (7thCir) issued its opinion [5 pages in PDF] in the Skywalker case. It is also reported at 333 F3d 829. This case is a contract dispute involving the sale of satellite equipement.

1/20. The Supreme Court announced that "The Court will take a recess from Monday, January 26, 2004, until Monday, February 23, 2004. See, Order List [8 pages in PDF], at page 8.

People and Appointments

1/20. Lisa Zaina (at right) was named Chief Executive Officer of the Federal Communications Commission's (FCC) Universal Service Administrative Company (USAC). Zaina is currently senior legal advisor to FCC Commissioner Jonathan Adelstein. She will replace Cheryl Parrino as head of the waste and fraud plagued USAC. Zaina was previously Vice President for Industry and Regulatory Affairs and Corporate Secretary of Shenandoah Telecommunications Company (Shentel) in Edinburg, Virginia. Before that, she worked at Wallman Strategic Consulting. And before that, she worked at the FCC, as Senior Counsel and Deputy Bureau Chief of the Common Carrier Bureau. She has also worked for the Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO), and the National Association of Regulatory Utility Commissioners (NARUC). See, FCC release [PDF] and Adelstein statement [PDF].

1/20. President Bush nominated Claude Allen to be a Judge of the U.S. Court of Appeals for the Fourth Circuit. Allen is the Deputy Secretary of Health and Human Services (HHS) at the Department of HHS. Before that he was the Secretary of Health and Human Resources for the Commonwealth of Virginia. See, White House release.

1/20. President Bush nominated Paul Diamond to be a Judge of the U.S. District Court for the Eastern District of Pennsylvania. See, White House release.

1/20. President Bush nominated Robert Bryan Harwell to be a Judge of the U.S. District Court for the District of South Carolina. See, White House release.

1/20. President Bush nominated George Schiavelli to be a Judge of the U.S. District Court for the Central District of California. See, White House release.

1/20. Glenn Hutchins and Mark Neporent were named to the board of MCI WorldCom. Hutchins is a founder and managing member of investment firm Silver Lake Partners. Neporent is COO, General Counsel, and Senior Managing Director of Cerberus Capital Management. See, MCI release.

More News

1/20. President Bush delivered the annual State of the Union Address to a joint session of Congress. He did not address technology related policy. However, he did state that "As technology transforms the way almost every job is done, America becomes more productive, and workers need new skills. Much of our job growth will be found in high-skilled fields like health care and biotechnology. So we must respond by helping more Americans gain the skills to find good jobs in our new economy."

1/20. The European Union stated in a release that the "Council of Ministers responsible for economic and monetary affairs today gave its final approval to a new Merger Regulation which will come into force on May 1st. The formal adoption follows the unanimous political agreement at the Competitiveness Council on 27 November 2003." The EU also released a FAQs page. It further stated that "The new Merger Regulation, the Horizontal Guidelines and the Best Practices will be published in the coming days on the Commission's Competition website".

1/20. The U.S. Patent and Trademark Office (USPTO) published in its website the comments that it has received regarding the proposed rule changes regarding revision of patent term extension and patent term adjustment provisions related to decisions by the Board of Patent Appeals and Interferences. See, notice in the Federal Register, December 4, 2003, Vol. 68, No. 233, at Pages 67818 - 67821, requesting comments.

Northwest Airlines Provided Passenger Data to NASA for Data Mining Study

1/18. The Electronic Privacy Information Center (EPIC) published in its web site copies of several documents pertaining to the transfer of passenger data from Northwest Airlines to the National Aeronautics and Space Administration (NASA).

These records reflect that there was a meeting on December 10-11, 2001. See, presentation outline [20 pages in PDF] titled "NASA Ames Research Center: Northwest Airlines Briefing: December 10-11, 2001", for NASA's explanation of what NASA intended to do with the passenger data.

It states that "We would like to build a passenger screening testbed that would include
 • Biometrics -- facial and other
 • Smart card with biometrics
 • Analysis, mining and threat assessment software
 • Addressing issue of scalability for national-scale system using IPG technology".

Northwest participated in the meeting. See, NASA e-mail letter to Northwest dated December 19, 2001.

Then, NASA sent a fax letter [PDF] to Northwest requesting passenger data. NASA wrote that "We would like to request system-wide Northwest Airlines passenger data from July, August and September 2001."

See also, undated paper [10 pages in PDF] titled "Near Linear Time Detection of Distance-Based Outliers and Applications to Security" jointly authored by employees of NASA and Stanford University.

However, NASA ultimately abandoned the project, and returned the CDs containing the data that it had obtained from Northwest.

On September 23, 2003, NASA sent an e-mail letter [PDF] to Northwest stating that "As you probably have heard by now, our data mining for aviation security project did not receive any FY2003 funds. My interpretation is that NASA management decided that they did not want to continue working with passenger data in order to avoid creating the appearance that we are violating people's privacy. You may have heard about the problems that JetBlue is now having after providing passenger data for a project similar to ours".

The EPIC obtained these documents from the NASA in response to request made under the Freedom of Information Act (FOIA).

Northwest Airlines issued a statement on January 18, 2003: "In the aftermath of the September 11, 2001 tragedy, NASA had discussions with Northwest Airlines’ Security Department regarding a NASA research study to improve aviation security. In December 2001, NASA requested that Northwest’s Security Department provide it with passenger name record data from the period July, August, and September 2001 for NASA’s exclusive use in its research study. Northwest Airlines agreed to provide that data."

Northwest continued that "The NASA research study has been discontinued and the passenger data has been returned to Northwest Airlines."

It also stated that "Northwest believes that it was appropriate to provide data directly to NASA for a research study designed to improve aviation security. In the immediate aftermath of September 11, 2001, the federal government was searching for technological solutions to improve aviation security and it was the responsibility of the airline industry to cooperate with these efforts."

Northwest concluded that "By providing the passenger name record data directly to NASA, a federal agency with its own strict privacy protections, Northwest acted appropriately and consistent with its own privacy policy and all applicable federal laws."

In contrast, the EPIC stated in a release that Northwest's transfer of the data was a "clear violation of its stated privacy policy".

House Democrats Criticize Bush Administration on Cyber Security and Use of IT

1/16. The Democrats on the House Homeland Security Committee released a report [18 pages in PDF] titled "America At Risk: The State of Homeland Security: Initial Findings". While the report criticizes the Bush administration across all areas of homeland security, it levels numerous accusations related to information technology vulnerabilities and problems. See, full story.

Governments and Microsoft File Joint Status Report

1/16. The Department of Justice, state plaintiffs, and Microsoft filed with the U.S. District Court (DC) their "Joint Status Report on Microsoft's Compliance with the Final Judgments".

The District Court issued an Order [PDF] on May 14, 2003 in the governments' antitrust cases against Microsoft requiring the filing of status reports every six months. This report must include "a general description of Microsoft's compliance efforts, keyed to the requirements in the Final Judgment, including the timelines of the compliance and the extent of compliance", "a general description by each Plaintiff or Plaintiff group of its efforts to monitor Microsoft’s compliance with the Final Judgments", and "a description of the type of complaints received by Microsoft, Plaintiffs, and the Technical Committee or any other enforcement entities in the prior six months".

At the October 24, 2003 status conference, the District Court directed the plaintiffs to file the second six month status report on January 16, 2004.

The plaintiffs begin by stating that "At the October 24, 2003 Status Conference, Plaintiffs informed the Court that they continued to investigate and evaluate Microsoft's compliance with Section III.E of the Final Judgments. Since that time, Plaintiffs have gathered information to evaluate whether the current Microsoft Communications Protocol Program ("MCPP") licensees will further the remedial goals of Section III.E. This process has included interviewing most of these licensees and, in some cases, issuing compulsory process for documents and other information. In addition, Plaintiffs have interviewed a number of companies that considered the MCPP but have not yet signed a license. The Technical Committee ("TC") members have participated in and assisted with this activity."

The plaintiffs continue that they "are concerned that the current licensing program has thus far fallen short of satisfying fully the goals of Section III.E. Plaintiffs' investigation has revealed that additional work still needs to be done to develop and improve the MCPP. Plaintiffs have recently communicated to Microsoft a number of suggested improvements in the Microsoft licensing program and Plaintiffs understand that Microsoft is in the process of making additional changes in response to Plaintiffs' comments."

The plaintiffs added that they will update the District Court at the next status conference on their discussions with Microsoft and Microsoft's recent activities. The District Court will hold a status conference at 10:00 AM on Friday, January 23, 2004 in Courtroom 11.

In a section of the status report written by Microsoft, Microsoft states that it "has made full compliance with its obligations under the final judgments a top priority of the company, and the company continues to devote substantial resources to its compliance work. To that end, Microsoft is in constant communication with the Plaintiffs in an effort to respond to their questions and address any concerns they may present. With respect to Section III.E in particular, Microsoft is in the process of making changes to its protocol licensing program that are responsive to the suggestions Plaintiffs have made."

This pleading was filed in United States v. Microsoft, D.C. No. 98-1232 (CKK) and New York, et. al. v. Microsoft, D.C. No. 98-1232 (CKK), Judge Colleen Kotelly presiding.

DC Circuit Vacates Part of FCC Order Regarding Fees Charges by LEC to Paging Carrier

1/16. The U.S. Court of Appeals (DCCir) issued its opinion [10 pages in PDF] in Mountain Communications v. FCC, a case regarding fees charged by a local exchange carrier (LEC) to a paging carrier. The Court vacated in part and remanded.

Mountain Communications is a paging carrier that operates in three local calling areas (Colorado Springs, Walsenburg, and Pueblo) which are all located in one Local Access and Transport Area (LATA) in the state of Colorado. Qwest is the local exchange carrier in these calling areas. Mountain uses a single point of interconnection (POI) with Qwest, in Pueblo.

Qwest sought to collect fees from Mountain for calls that originated and terminated in one area (such as Colorado Springs), but went through the POI in Pueblo. The Court also noted that while Qwest considers these to be toll calls for Mountain, it does not  charge its own customer -- the caller -- for placing such calls.

That is, for example, if some in Colorado Springs pages someone else in Colorado Springs who is a Mountain customer, the call goes from Colorado Springs, to Pueblo, and back to Colorado Springs. Then, Qwest wants to charge Mountain for a toll call.

Mountain filed a complaint with the FCC challenging this type of fee, and another fee. The FCC dismissed the complaint, and this petition for review followed.

The Court reasoned that 47 U.S.C. § 251(c)(2)(B) provides that LECs must provide interconnection facilities with other carriers "at any technically feasible point within the [incumbent local exchange] carrier's network". In addition, 47 C.F.R. § 51.703(b) provides that LECs "may not assess charges on any other telecommunications carrier for telecommunications traffic that originates on the LEC’s network".

Moreover, the Court wrote that the FCC conclusion in this proceeding was inconsistent with TSR Wireless, LLC v. US West Communications, Inc., 15 FCCR 11166 (2000).

The Court of Appeals ruled that the FCC's decision regarding the first issue was arbitrary and capricious, and therefore vacated in part and remanded.

Judge Silberman, who wrote the opinion, went beyond merely vacating the order. He wrote that "We are befuddled at the Commission's efforts to explain away its TSR decision; the facts seem -- and are conceded to be -- identical, but the results are opposite." He added that the FCC "changed direction without explanation, indeed without even acknowledging the change." Moreover, the FCC "has not even tried to explain how its position can be reconciled with the statutory provision, 47 U.S.C. § 251(c)(2)(B)". Hence, he wrote that the Court can "rather easily conclude" that the FCC was arbitrary and capricious.

This case is Mountain Communications, Inc. v. FCC and USA, respondents, T-Mobile USA, Inc., et al., No. 02-1255,  intervenors, a petition for review of a final order of the FCC.

NTIA Submits Comment to FCC in UWB Proceeding

1/16. The National Telecommunications and Information Administration (NTIA) submitted a comment to the Federal Communications Commission (FCC) in its ultrawideband (UWB) proceeding.

Michael Gallagher (at right), the acting head of the NTIA, stated in a release that "We support the FCC's clarification of the UWB rules so that this new industry sector can take hold and grow while we protect critical federal systems from harmful interference". He added that "The rules adopted by the Commission in its first Report and Order successfully strike that balance, and provide a stable platform for development of new devices that will save lives, boost U.S. productivity and enrich the experience of U.S. consumers."

The NTIA is a unit of the Department of Commerce. It is designated to advise and represent the administration on telecommunications issues.

UWB devices, which use very narrow pulses with very wide bandwidths, have applications in both radar and communications technologies.

This long running proceeding is titled "In the Matter of Revision of Part 15 of the Commission's Rules Regarding Ultra-Wideband Transmission Systems". It is ET Docket No. 98-153.

The FCC adopted its First Report and Order [119 pages in PDF] permitting the marketing and operation of certain types of new products incorporating UWB technology on February 14, 2002. However, the FCC did not release the actual document until April 22, 2002.

The FCC received numerous petitions for reconsideration of the First Report and Order. The FCC addressed these in its Memorandum Opinion and Order and Further Notice of Proposed Rulemaking [91 pages in PDF] adopted on February 13, 2003. The MO&O portion largely reaffirmed the procedures adopted in 2002 to authorize the unlicensed operation of UWB, but made some changes to further facilitate the operation of imaging devices. The FNPRM portion proposed numerous new rules. The NTIA comment addresses this FNPRM.

See also, story titled "FCC Announces UWB Report and Order and Further NPRM" in TLJ Daily E-Mail Alert No. 604, February 14, 2003, and FCC release [2 pages in PDF]

This FNPRM includes proposed rules that address:

• the operation of low pulse repetition frequency (PRF) UWB systems, including vehicular radars, in the 3.1-10.6 GHz band,
• the operation of frequency hopping vehicular radars in the 22-29 GHz band as UWB devices,
• the establishment of new peak power limits for wideband Part 15 devices that do not operate as UWB devices, and
• the definition of a UWB device.

The NTIA comment begins with the statement that the "NTIA believes that the rules adopted by the Commission in the First Report and Order for UWB strike a balance between protecting critical federal systems while permitting UWB technology to evolve. NTIA also agrees with the Commission that significant changes to the rules should not be considered until more experience has been gained with UWB technology."

Operation of low pulse repetition frequency (PRF) UWB systems. The NTIA argues that restrictions on the pulse repetition frequency are unnecessary as long as the current emission limits for handheld devices are met.

The NTIA wrote that it "believes that if the Commission adopts the hand-held UWB device emission limits for expanded outdoor device applications, no restrictions on the PRF are necessary. NTIA agrees with the Commission that this proposal should be limited to UWB systems that employ impulse modulation or high speed chipping rates with a fractional bandwidth equal to or greater than 0.20 or a minimum bandwidth of 500 MHz, as they are currently defined in the Commission's rules. NTIA also believes that if the hand-held emission limits are adopted, there is no technical reason to further limit UWB device applications, as long as the Commission retains the current restrictions forbidding the use of a fixed outdoor infrastructure and the operation of UWB devices in toys."

Frequency hopping vehicular radars in the 22-29 GHz band. The NTIA stated that it found that there is no greater interference to government passive sensing satellites than is presently permitted for impulse UWB vehicular radar systems. It added that its conclusions do not apply to UWB frequency hopping systems in other bands. The NTIA also proposed a compliance measurement procedure for pulsed frequency hopping vehicular radar systems.

Siemens VDO Automotive submitted a comment [68 pages in PDF] on July 21, 2003 and a reply comment [10 pages in PDF] on August 20, 2003 in which it argued in support of allowing the operation under the UWB rules of pulsed frequency hopping vehicular short range radar systems, which it currently has under development.

In contrast, Northrup Grumman and Raytheon submitted a reply comment [9 pages in PDF] on August 20, 2003 in which they urged the FCC "not to permit the operation of pulsed frequency-hopping vehicular short range radar systems near or in the 23.6-24.0 GHz band without adopting strict limits to reduce the potential for increased interference that likely will result under standards being proposed by manufacturers."

Similarly, the National Academy of Sciences' Committee on Radio Frequencies submitted a comment [10 pages in PDF] on July 16, 2003 in which it argued that the proposal to amend the rules to permit frequency-hopping systems in the 22-29 GHz band "would pose a significant threat of interference to remote sensing instruments, and thus to the important data being gathered by such instruments."

Definition of UWB transmitter. The NTIA also wrote that it "does not support the Commission's proposal to eliminate the minimum bandwidth requirement from the definition of a UWB transmitter". It added that "Such a change could be disruptive to current industry product development and ongoing standards development activities such as those in the Institute of Electrical and Electronics Engineers 802.15 Task Group 3a."

Other comments. All comments in this proceeding may be accessed through the FCC's web page titled "Search for Filed Comments". Enter the the docket number, 98-153, in the first box, titled "Proceeding", and click on the button titled "Retrieve Document List". This document retrieval system operates very slowly.

See especially, comment [71 pages in PDF] submitted by Multispectral Solutions, Inc. (MSSI) on July 21, 2003, and reply comment [40 pages in PDF] submitted on July 25, 2003. MSSI makes products that have been certified under the FCC's rules.

Bush Gives Judge Pickering a Recess Appointment

1/16. President Bush made a recess appointment of Judge Charles Pickering to the U.S. Court of Appeals for the 5th Circuit. He is currently a U.S. District Court Judge in Mississippi. He is one of several nominees being filibustered by Senate Democrats.

President Bush argued in a statement that "For the past two and a half years, Judge Pickering has been waiting for an up-or-down vote in the Senate. A bipartisan majority of Senators supports his confirmation, and if he were given a vote, he would be confirmed. But a minority of Democratic Senators has been using unprecedented obstructionist tactics to prevent him and other qualified individuals from receiving up-or-down votes. Their tactics are inconsistent with the Senate's constitutional responsibility and are hurting our judicial system."

The Constitution gives the President the authority to make recess appointments. It provides that "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The first session of the 108th Congress ended in December. The second session of the 108th Congress begins on January 20.

Recess appointments of federal judges are rare. However, former President Clinton gave a recess appointment in December of 2000 to Roger Gregory to serve on the U.S. Court of Appeals for the 4th Circuit. President Bush later nominated Gregory, and the Senate confirmed him in 2001. Clinton also gave a recess appointment to former Federal Communications Commission (FCC) Susan Ness in December of 2000.

More People and Appointments

1/16. Leon Jackler was named Legal Advisor to the Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB). The FCC stated in a release [PDF] that he will "provide legal and policy counsel to the Bureau Chief and senior staff on wireless, technology, and international matters." He was previously a staff attorney in the Wireless Telecommunications Bureau (WTB).

1/16. Andrew Bailey was name Deputy Chief Accountant for the Securities and Exchange Commission (SEC). The SEC stated in a release that he "will share with Scott A. Taub, current Deputy Chief Accountant, responsibilities for the day-to-day operations of the Office of the Chief Accountant, including resolution of accounting and auditing issues, rulemaking projects, and oversight of private sector standard-setting efforts and regulation of auditors. Bailey will work closely with the Public Company Accounting Oversight Board on all auditing-related matters." The SEC's Chief Accountant remains Donald Nicolaisen. Bailey was previously a professor of accounting at the University of Illinois at Urbana-Champaign.

1/16. Cristin Flynn was named BellSouth's director national security emergency preparedness, effective January 20. She replaces Shawn Cochran who has been activated for military service in the Middle East.

More News

1/16. The General Accounting Office (GAO) released a report [55 pages in PDF] titled "World Trade Organization: Cancun Ministerial Fails to Move Global Trade Negotiations Forward; Next Steps Uncertain". The report was prepared for Sen. Charles Grassley (R-IA), the Chairman of the Senate Finance Committee, and Rep. Bill Thomas (R-CA), the Chairman of the House Ways and Means Committee.

1/16. The Federal Communications Commission (FCC) published a notice in the Federal Register stating that it has renewed the charter for the Network Reliability and Interoperability Council through December 29, 2005. See, Federal Register, January 16, 2004, Vol. 69, No. 11, at Page 2597.

1/16. Rep. Bob Goodlatte (R-VA) (at right), who is a member of the House Judiciary Committee and a Co-Chair of the Congressional Internet Caucus, issued a statement regarding the Supreme Court's January 13 opinion [22 pages in PDF] in Verizon v. Trinko. The Supreme Court held that a claim alleging a breach of an ILEC's duty under the 1996 Telecom Act to share its network with competitors does not state a violation of Section 2 of the Sherman Act. See, story titled "Supreme Court Holds That There is No Sherman Act Claim in Verizon v. Trinko", also published in TLJ Daily E-Mail Alert No. 815, January 14, 2003. Rep. Goodlatte stated that "The recent Supreme Court ruling in the Trinko case protects the integrity of both the nation's antitrust laws and the Telecommunications Act of 1996. It will likely prevent frivolous lawsuits in this industry and thus free up resources that can be used by both incumbent and local exchange carriers to invest in new technologies and reduce costs for their customers."

1/16. The National Institute of Standards and Technology's (NIST) Computer Security Division released its final version of its document [148 pages in PDF] numbered Special Publication (SP) 800-61, and titled "Computer Security Incident Handling Guide". It states that "Computer security incident response has become an important component of information technology (IT) programs. Security-related threats have become not only more numerous and diverse but also more damaging and disruptive. New types of security-related incidents emerge frequently. Preventative activities based on the results of risk assessments can lower the number of incidents, but not all incidents can be prevented. An incident response capability is therefore necessary for rapidly detecting incidents, minimizing loss and destruction, mitigating the weaknesses that were exploited, and restoring computing services. To that end, this publication provides guidelines for incident handling, particularly for analyzing incident-related data and determining the appropriate response to each incident. The guidelines can be followed independently of particular hardware platforms, operating systems, protocols, or applications." It was written by Tim Grance, Karen Kent, and Brian Kim.

Go to News from January 11-15, 2004.