|News from April 16-20, 2004|
Bush Continues to Speak About PATRIOT Act
4/20. President Bush, for the third time in four days, gave a speech regarding the USA PATRIOT Act. On Tuesday, April 20, he spoke in Buffalo, New York. He stated that "The Patriot Act needs to be renewed and the Patriot Act needs to be enhanced."
See, April 17 radio address and story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail Alert No. 879, April 19, 2004, and April 19 speech in Hershey, Pennsylvania, and stories titled "Bush Proposes to Extend and Expand PATRIOT Act" and "Bush Opposes Congressional Proposals to Roll Back Parts of PATRIOT Act" in TLJ Daily E-Mail Alert No. 880, April 20, 2004.
Bush said that "the reason I bring up the Patriot Act, it's set to expire next year. I'm starting a campaign to make it clear to members of Congress it shouldn't expire. It shouldn't expire, for the security of our country."
He again referenced the provisions of the PATRIOT Act pertaining to information sharing and roving wiretaps that are scheduled to sunset, unless the Congress passes legislation to extend them. Bush also touted the provision in the PATRIOT Act allowing for delayed notification search warrants. This provision is not scheduled to sunset. However, there are several bills pending in the Congress that would terminate it.
Bush also again promoted several proposals to enhance law enforcement agencies' ability to fight terrorism, including increased judicial authority to deny bail to terrorists, and administrative subpoenas for terrorists.
Former Deputy Attorney General Larry Thompson accompanied President Bush.
The American Civil Liberties Union (ACLU), which opposes many provisions of the USA PATRIOT Act, issued a release in which the ACLU's Laura Murphy states that "Rather than addressing the real reasons behind national security failings in America, President Bush continues to argue that we must sacrifice liberty for security ... By overemphasizing the Patriot Act, the president is attempting to deflect criticism of a culture of secrecy that flourished in the nation's intelligence agencies, which arguably led to 9/11."
In contrast, Rep. Lamar Smith (R-TX), a senior member of the House Judiciary Committee, stated in a release that "The PATRIOT Act passed by overwhelming margins in the House and Senate. Congress should strengthen the Act, not weaken it." He added that "Our success in preventing another catastrophic attack on the American homeland since September 11, 2001 would have been much more difficult without the PATRIOT Act. The powers Congress provided in the Act enhance the federal government’s ability to investigate, prosecute, and prevent acts of terror. The Act also helps law enforcement officials identify a terrorist from a non-terrorist, and an illegal alien from a legal immigrant. Since terrorism does not know any geographical boundary we must have this ability codified in law."
FCC and NextWave Settle
4/20. The Federal Communications Commission (FCC) announced in a release [PDF] that the FCC and NextWave Communications have reached a settlement.
The FCC stated that this settlement facilitates "a final resolution to the entire matter within the context of the Supreme Court’s NextWave opinion."
NextWave obtained spectrum licenses at FCC auctions in 1996. The FCC permitted NextWave to obtain the licenses, and make payments under an installment plan, thus creating a debtor creditor relationship between NextWave and the FCC. NextWave did not make payments required by the plan, and filed a Chapter 11 bankruptcy petition. The FCC cancelled the licenses. It then proceeded to re-auction the disputed spectrum. The U.S. Court of Appeals (DCCir) ruled in its June 22, 2001, opinion that the FCC was prevented from canceling the spectrum licenses by § 525 of the Bankruptcy Code. The FCC petitioned the Supreme Court for writ of certiorari. The Court granted certiorari.
January 27, 2003, the Supreme Court issued its opinion [34 pages in PDF] in FCC v. NextWave Personal Communications, holding that the Federal Communications Commission's (FCC) attempt to revoke NextWave's spectrum licenses violated Section 525 of the Bankruptcy Code.
The FCC stated in its release that the settlement "provides for the immediate return of spectrum licenses that will account for at least 90% of NextWave's spectrum when licenses already sold to Cingular Wireless are taken into account".
FCC Chairman Michael Powell wrote in a statement [PDF] that "After eight long years, we can finally end the litigation and begin the innovation. This landmark agreement takes valuable spectrum resources out of the courts and will put it in the hands of consumers who can finally use it."
The settlement still requires the approval of the U.S. Bankruptcy Court (SDNY).
See also, story titled "Supreme Court Rules Against FCC in NextWave Case" in TLJ Daily E-Mail Alert No. 592, January 28, 2003.
People and Appointments
4/20. President Bush nominated Virginia Covington to be a Judge of the U.S. District Court for the Middle District of Florida. See, White House release.
4/20. President Bush gave a speech in New York, New York in which he addressed numerous issues, including trade. He stated that "Lasting prosperity means that the country must fight off economic isolationism and open up as many markets as possible". He said that "Lasting prosperity means that the country must be confident with its trade policy." He continued that "economic isolationism" is "the willingness to either pull back from aggressive trade policy, or to encourage the creation of tariffs and barriers to trade." And this, said Bush, "would be a huge mistake for people looking for work." He also stated that "We're great at growing things, like corn and soybeans and cows and hogs. And we ought to be aggressively selling those products overseas. We're wonderful at entertainment. We're excellent at high-tech."
4/20. Alan Greenspan, Chairman of the Federal Reserve Board, testified before the Senate Banking Committee regarding the state of the banking industry. One of the subjects that he addressed was the use of information technologies to better manage risk. He stated that "Legislation designed to deregulate U.S. banking markets, technology, and other factors have contributed to significant structural change in the banking industry and to a decline of nearly 40 percent in the number of banking organizations since the mid-1980s, when industry consolidation began." He elaborated that "the basic thrust of recent efforts to improve the management of risk has been better quantification and the creation of a formal and more-disciplined process for recognizing, pricing, and managing risk of all types." And, he added that "the very improvements in technology that facilitated better bank risk measurement and management have undermined the current regulatory capital regime by creating transactions and instruments that were not conceived when the current regulatory standard was developed." See, prepared testimony.
4/20. Hewitt Pate, the Assistant Attorney General in charge of the Antitrust Division, gave a speech by video feed to the Seoul Competition Forum and the Third Annual International Competition Network (ICN) Conference in Seoul, South Korea.
4/20. MCI WorldCom announced in a release that it "today formally emerged from U.S. Chapter 11 protection. Today's emergence signifies that MCI's plan of reorganization, confirmed on October 31, 2003, by the U. S. Bankruptcy Court for the Southern District of New York is now effective and the company has begun to distribute securities and cash to its creditors. With the Chapter 11 process behind it, the company is now officially known as MCI, Inc." This case is In Re WorldCom, Inc., U.S. Bankruptcy Court (SDNY), Case No. 02-13533.
4/20. Microsoft announced that it settled a class action lawsuit in which the plaintiffs alleged that it violated the antitrust laws of the state of Minnesota. See, Microsoft release.
4/20. The story titled "Bush Addresses PATRIOT Act" in TLJ Daily E-Mail Alert No. 879, April 19, 2004 listed the sections of Title II of the PATRIOT Act that are scheduled to sunset. This list should also have included § 203(d) pertaining to sharing "Foreign intelligence information".
Bush Proposes to Extend and Expand PATRIOT Act
4/19. President Bush gave a speech in Hershey, Pennsylvania about terrorism and the USA PATRIOT Act. He said that all of the provisions of the Act that are scheduled to expire should be permanently extended, that several new provisions should be added, and that the various legislative proposals to roll back certain provisions of the Act should all be rejected. See, full story.
Bush Opposes Congressional Proposals to Roll Back Parts of PATRIOT Act
4/19. President Bush also expressed opposition to several pending bills in his speech in Hershey, Pennsylvania on April 19. He said, "And yet some senators and congressmen not only want to let the provisions expire, but they want to roll back some of the act's permanent features. And it doesn't make any sense. We can't return to the days of false hope. The terrorists declared war on the United States of America. And the Congress must give law enforcement all the tools necessary to protect the American people."
The bill that likely concerns the President the most is S 1709, the "Security and Freedom Ensured Act of 2003" (SAFE Act), because it is sponsored by a Republican, Sen. Larry Craig (R-ID), and because nearly one-fifth of the Senate is cosponsoring the bill.
On January 28, 2004, Attorney General John Ashcroft wrote a letter [4 page PDF scan] to Senate leaders in which he opposed passage of S 1709. He made many of the same points in his letter that President Bush made in his speech. Ashcroft added that, if passed by the Congress, the President might veto it. However, the President made no veto threat in his speech.
See also, story titled "Ashcroft Opposes Senate Bill to Roll Back PATRIOT Act Provisions" in TLJ Daily E-Mail Alert No. 827, February 2, 2004.
Bush delivered his speech in a large swing state during a Presidential election year. But, he did not characterize the debate as one between Republicans and Democrats. This may be because some of this key opponents on these issues are Republicans. Although, the majority of the cosponsors of these bills are Democrats.
Moreover, two of the Republican Senators who have taken positions against that of the President are facing serious re-election contests this year -- Sen. Lisa Murkowski (R-AK) and Sen. Arlen Specter (R-PA). Bush would like to maintain, and increase, the Republican majority in the Senate.
The following table summarizes six bills that are relevant to President Bush's speech.
|Bills Related to the PATRIOT Act|
|Craig||S 1709||Security and Freedom Ensured Act|
|Feingold||S 1701||Reasonable Notice and Search Act|
|Leahy||S 1695||PATRIOT Oversight Restoration Act|
|Murkowski||S 1552||Protecting the Rights of Individuals Act|
|Feingold||S 1507||Library, Bookseller, and Personal
Records Privacy Act
|Otter||HR 3352||Security and Freedom Ensured Act|
Craig Bill. On October 2, 2003, Sen. Craig (at right), Sen. Richard Durbin (D-IL), Sen. Mike Crapo (R-ID), Sen. Russ Feingold (D-WI), Sen. John Sununu (R-NH), Sen. Ron Wyden (D-OR), and Sen. Jeff Bingaman (D-NM) introduced S 1709, the "Security and Freedom Ensured Act of 2003". There are now 19 sponsors.
See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.
S 1709 would amend § 501 of the FISA, which was amended by § 215 of the PATRIOT Act, to raise the standards for obtaining an order to obtain business records. President Bush defended the PATRIOT Act's § 215 in his speech.
S 1709 would amend 18 U.S.C. § 2709, which currently requires that "A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation ..." (§ 505 of the PATRIOT Act amended § 2709 of Title 18.) S 1709, at Section 5, would insert an exception: "A library shall not be treated as a wire or electronic communication service provider for purposes of this section."
S 1709 would amend 18 U.S.C. § 3103a to limit the authority to delay notice of search warrants. § 213 of the PATRIOT Act expanded the availability of these sneak and peak warrants. President Bush defended § 213 in his speech.
S 1709 would amend § 105(c) of the FISA, which is codified at 50 U.S.C. § 1805, to limit the use of roving wiretaps. § 206 of the PATRIOT Act expanded the use of the roving wiretaps. President Bush defended § 206 in his speech.
S 1709 would also sunset § 216 of the PATRIOT Act pertaining to "Modification of authorities relating to use of pen register and trap and trace devices", and § 219 of the PATRIOT Act pertaining to "Single-jurisdiction search warrants for terrorism". § 216 expanded the statutory provisions regarding pen register and trap and trace devices (PR&TTD) to make clear that they also apply to online communications. President Bush did not address either of these sections in his speech.
Feingold's Reasonable Notice and Search Act. On October 2, 2003, Sen. Russ Feingold (D-WI) introduced S 1701, the "Reasonable Notice and Search Act", a bill to limit the use of delayed notice warrants, also know as sneak and peak warrants. See, story titled "Sen. Feingold Introduces Bill to Limit Delayed Notice Warrants" in TLJ Daily E-Mail Alert No. 753, October 6, 2003. This bill has no cosponsors. President Bush defended these warrants in his speech.
Leahy Bill. On October 1, 2003, Sen. Patrick Leahy (D-VT) and others introduced S 1695, the "PATRIOT Oversight Restoration Act". It pertains to the sunsetting of various provisions of the USA PATRIOT Act. See, story titled "Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted" in TLJ Daily E-Mail Alert No. 757, October 14, 2003. It would sunset provisions of the PATRIOT Act that the PATRIOT Act set aside for sunsetting. It would also sunset several other provisions.
Murkowski Bill. On July 31, 2003, Sen. Lisa Murkowski (R-AK) introduced S 1552 [21 pages in PDF], the "Protecting the Rights of Individuals Act", or PRI Act. See, TLJ story titled "Sen. Lisa Murkowski Introduces Bill to Roll Back Surveillance Provisions of PATRIOT Act" in TLJ Daily E-Mail Alert No. 712, August 6, 2003.
S 1552 would toughen the requirement for obtaining and pen register and trap and trace orders. It would clarify that pen register and trap and trace orders cannot be used to obtain the subject lines of e-mail messages or any portion of a uniform resource locator (URL) beyond the top level domain. It would raise the standard for obtaining a FISA order from "a significant purpose" of the surveillance must be foreign intelligence gathering, to "the primary purpose". It would eliminate "John Doe" roving wiretaps. It would restrict the circumstances under which the government may delay giving notice of the issuance of a search warrant. It would restrict the government's access to business records under the FISA. It would provide that the FBI's access to the toll billing records and electronic communication transactional records of a "electronic communications service provider" does not apply to libraries. And, it would impose a moratorium on government data mining. Thus, it contains many proposals that President Bush criticized in his speech.
This bill has only one cosponsor, Sen. Ron Wyden (D-OR). However, Sen. Murkowski both is a Republican, and faces a contested election in November.
Feingold Library Bill. Sen. Feingold introduced S 1507, the "Library, Bookseller, and Personal Records Privacy Act", on July 31, 2003. It addresses the business records issue of § 215 of the PATRIOT Act, and provides further privacy protections for booksellers and libraries (including libraries providing internet access). It has eleven other sponsors, all of whom are Democrats.
Otter Bill. On October 21, 2003, Rep. Butch Otter (R-ID) introduced HR 3352, the "Security and Freedom Ensured Act of 2003 (SAFE) Act". This bill is similar, but not identical, to S 1709. See, story titled "Rep. Otter Introduces Bill to Amend PATRIOT Act" in TLJ Daily E-Mail Alert No. 764, October 23, 2003.
HR 3352 has 57 sponsors, including 7 Republicans. The cosponsors include Rep. Ron Paul (R-TX), Rep. George Nethercutt (R-WA), Rep. Vern Ehlers (R-MI), Rep. Jeff Miller (R-FL), Rep. Jeff Flake (R-AZ), and Rep. Mike Simpson (R-ID).
Supreme Court Denies Certiorari in Greene v. Sprint
4/19. The Supreme Court denied certiorari Greene v. Sprint. See, Order List [15 pages in PDF] at page 3.
This lets stand the August 25, 2003 opinion [PDF] of the U.S. Court of Appeals (9thCir) holding that there is no private right of action for violation of 47 U.S.C. § 276, which requires interexchange carriers (IXCs) to compensate payphone service providers for dial around calls made from their payphones.
See, story titled "9th Circuit Holds No Private Right of Action for Violation of Payphone Compensation Rules" in TLJ Daily E-Mail Alert No. 726, August 26, 2003.
This case is Zane Greene, et al. v. Sprint Communications Company, et al., a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, Sup. Ct. No. 03-1158. The Appeals Court case number is 02-56339. The Appeals Court affirmed the judgment of the U.S. District Court for the Central District of California, D.C. No. CV-02-03841-LGB, Judge Lourdes Baird presiding.
4th Circuit Holds that Consumers Lack Standing to Sue Under Lanham Act
4/19. The U.S. Court of Appeals (4thCir) issued its opinion [6 pages in PDF] in USA Foundation v. Phillips Foods, affirming the District Court's dismissal of a complaint on the grounds that consumers lack standing to bring suit under the Lanham Act.
The Made in the USA Foundation is a nonprofit consumer membership organization. Phillips Foods is a Maryland Corporation that sells, among other things, crab cakes. The USA Foundation asserts that Phillips sells crab cakes that are 90% Asian crab meat, and 10% U.S. crab meat, and labels these crab cakes as "Made in the U.S.A."
The USA Foundation filed a complaint in U.S. District Court (DMd) against Phillips Foods, alleging violation of the Lanham Act, and in particular, making a false designation of origin in violation of 15 U.S.C. § 1125. The District Court dismissed for lack of standing.
The Appeals Court affirmed. It wrote that "This is the first time we have been presented with the consumer standing issue. However, in an earlier case involving commercial parties, we noted in passing that the Lanham Act is ``a private remedy [for a] commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor’s false advertising.´´" The Court quoted its early opinion in Mylan Laboratories, Inc. v. Maktari, 7 F.3d 1130 (4th Cir. 1993).
The Court added that "Our statement in Mylan Laboratories is consistent with the basic approach of other circuits that requires the Lanham Act plaintiff to be engaged in commercial activity. We endorse that approach today and hold that a consumer does not have standing under the Lanham Act to sue for false advertising."
This case is Made in the USA Foundation v. Phillips Foods, Inc., et al., U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 03-1752, an appeal from the U.S. District Court for the District of Maryland, at Baltimore, Judge Benson Legg presiding, D.C. No. CA-02-1290-L.
People and Appointments
4/19. Sue McNeil was named to head the Federal Communications Commission's (FCC) newly created Office of Intergovernmental Affairs (IGA) in the Consumer & Governmental Affairs Bureau (CGB). She is currently the CGB's Special Counsel for Intergovernmental Affairs. She will be a liaison to state, local, and tribal governments, and other federal regulatory agencies. She has also worked for Sprint, Lucent, the law firm of Latham & Watkins, Sen. Harry Reid (D-NV), and Rep. Henry Waxman (D-CA). See, FCC release [PDF]
4/19. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein named Geraldine Taylor to be his Confidential Assistant. She previously worked for the law firm of Dow Lohnes & Albertson. See, FCC release [PDF].
4/19. The Supreme Court denied certiorari in Shoketsu Kinzoku Kogyo, et al. v. Festo Corp., No. 03-1129, and Festo Corp. v. Shoketsu Kinzoku Kogyo, No. 03-1133. See, Order List [15 pages in PDF] at page 3.
4/19. The Supreme Court denied certiorari in Self Communications, Inc. v. FCC, No. 03-1181. See, Order List [15 pages in PDF] at page 3.
4/19. Secretary of Homeland Security Tom Ridge gave a speech at a meeting of the Radio-Television News Directors Association and Foundation in Las Vegas, Nevada. He said that "In an earlier era, Alexis de Tocqueville said the press in America does not ``just guarantee liberty; [it] maintain[s] civilization.´´ Today, in an era of 24-hour satellite coverage and instant Internet communication, that is no less true." He also said that the Department of Homeland Security (DHS) "will work to strengthen vertical communication systems and significantly increase protections around our nation's most vital assets -- our bridges and water supplies, telecommunications and cyber-systems, chemical and nuclear facilities, hospitals and laboratories, food processing systems and more."
4/19. The U.S. Court of Appeals (9thCir) issued its opinion [8 pages in PDF] in Computer Task Group v. Brotby affirming the District Court's dismissal for failure to comply with pre-trial discovery orders. William Brotby worked for Computer Task Group (CTG) as an information technology consultant. He signed a non-disclosure and non-solicitation agreement whereby he agreed not to work for any of CTG's customers, and not to disclose or use confidential or proprietary information after leaving CTG. While at CTG he worked on a project for Alyeska Pipeline Service Company. He then left CTG and went to work for Alyeska. CTG filed a complaint in U.S. District Court (DAlaska) against Brotby alleging breach of contract, and various business torts. Brotby did not provide responsive answers to written interrogatories. Despite numerous court orders compelling him to comply, he continued his dilatory and evasive tactics. Eventually, the District Court dismissed the complaint. Brotby appealed. The Court of Appeals affirmed the dismissal. This case is Computer Task Group, Inc. v. William Brotby, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 01-36006.
Bush Addresses PATRIOT Act
4/17. President Bush gave a radio address in which he discussed the USA PATRIOT Act. He said that "Congress must renew the Patriot Act". This speech was similar to parts of his January 20, 2004 State of the Union address.
The PATRIOT Act was passed by the 107th Congress as HR 3162 shortly after the terrorist attacks of September 11, 2001. It became Public Law 107-56 on October 26, 2001. The PATRIOT Act provides that some of its provisions sunset, or cease to have effect, on December 31, 2005. In addition, there are bills that would sunset more provisions of the Act.
Bush stated that "Because we passed the Patriot Act, FBI agents can better conduct electronic surveillance and wiretaps on suspected terrorists. And they now can apply other essential tools -- many of which have long been used to investigate white-collar criminals and drug traffickers -- to stop terrorist attacks on our homeland."
He continued that "Key elements of the Patriot Act are set to expire next year. Some politicians in Washington act as if the threat to America will also expire on that schedule. Yet we have seen what the terrorists intend for us, in deadly attacks from Bali to Mombassa to Madrid. And we will not forget the lessons of September the 11th. To abandon the Patriot Act would deprive law enforcement and intelligence officers of needed tools in the war on terror, and demonstrate willful blindness to a continuing threat."
Title II of the PATRIOT Act, which addresses electronic surveillance, provides, at § 224, for the sunsetting of many of the provisions of Title II. It provides, in part, that "this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005." (Parentheses in original.)
Consequently, the following sections are scheduled to sunset:
§ 201 pertaining to "Authority to intercept wire, oral, and electronic communications relating to terrorism"
§ 202 pertaining to "Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses"
§ 203(b) pertaining to "Authority to share electronic, wire and oral interception information" of criminal investigations
§ 203(d) pertaining to sharing "Foreign intelligence information"
§ 204 pertaining to "Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication"
§ 206 pertaining to "Roving surveillance authority under the FISA"
§ 207 pertaining to "Duration of FISA surveillance of non-United States persons who are agents of a foreign power"
§ 209 pertaining to "Seizure of voice-mail messages pursuant to warrants"
§ 212 pertaining to "Emergency disclosure of electronic communications to protect life and limb"
§ 214 pertaining to "Pen register and trap and trace authority under FISA"
§ 215 pertaining to "Access to records and other items under the FISA"
§ 217 pertaining to "Interception of computer trespasser communications"
§ 218 pertaining to "Foreign intelligence information"
§ 220 pertaining to "Nationwide service of search warrants for electronic evidence"
§ 223 pertaining to "Civil liability for certain unauthorized disclosures"
§ 225 pertaining to "Immunity for compliance with FISA wiretap".
Several bills have been introduced that would affect the sunsetting of these and other sections. For example, Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, introduced S 1695, the "PATRIOT Oversight Restoration Act" on October 1, 2003. See, story titled "Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted" in TLJ Daily E-Mail Alert 757, October 14, 2003.
Another key bill is S 1709, the "Security and Freedom Ensured Act of 2003", or SAFE Act, introduced by Sen. Larry Craig (R-ID) on October 2, 2003. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.
The Leahy and Craig bills would not only reaffirm that many of these sections
will sunset, they would also add several additional sections for sunsetting:
§ 213 pertaining to "Authority for delaying notice of the execution of a warrant"
§ 216 pertaining to "Modification of authorities relating to use of pen register and trap and trace devices"
§ 219 pertaining to "Single-jurisdiction search warrants for terrorism"
§ 215, which is scheduled to sunset, is perhaps the section that has attracted the most public opposition.
§ 215 rewrote § 501 of the Foreign Intelligence Surveillance Act (FISA), which is codified in Title 50 as § 1861. It pertains to "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". § 215 (of the PATRIOT Act) replaced §§ 501-503 (of the FISA) with new language designated as §§ 501 and 502.
FISA only applies to foreign powers, and agents of foreign powers, including international terrorists. § 501 enables the FBI to obtain from a judge or magistrate an order requiring the production business records. While the statute does not expressly include library records, it is not disputed that library records could be obtained. The American Library Association (ALA) has been the most vocal opponent of § 215.
Currently, § 501 (as amended by § 215) requires that an application to a judge or magistrate "shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." Allowing § 215 to sunset would raise the standard for obtaining a FISA order for business records, back to the pre-PATRIOT Act language.
§ 216 is another key section. It expands the concept of pen register and trap and trace devices (PR&TTD) to online communications.
PR&TTD are telephone industry concepts. PRs are used to obtain outgoing phone numbers. TTDs are used to obtain incoming numbers. Before passage of the PATRIOT Act, the relevant statute referenced "wire" communications.
The PATRIOT Act provides that the concept of a PR is expanded from merely capturing phone numbers, to capturing routing and addressing information in any electronic communications, including internet communications. The Act similarly expands the concept of TTDs.
PR&TTD orders do not authorize a LEA to obtain the content of communications. Court orders authorizing PR&TTD devices do not require a showing of probable cause, as is the case for wiretaps, which enable law enforcement agencies to obtain the content of communications.
Greenspan Reviews Roles of Commercial Law and Reputation for Integrity
4/16. Federal Reserve Board (FRB) Chairman Alan Greenspan gave a speech titled "Capitalizing Reputation".
He stated that "a market economy requires a structure of formal rules -- for example, a law of contracts, bankruptcy statutes, a code of shareholder rights. But rules cannot substitute for character."
He then reviewed the history in the United States of the role of reputation for integrity in business.
He that stated that "Over the past half century, the American public has embraced the protections of the myriad federal agencies that have largely substituted government financial guarantees and implied certifications of integrity for business reputation. As a consequence, the market value of trust so prominent in the nineteenth century seemed unnecessary and by the 1990s appeared to have faded to a fraction of its earlier level."
"Presumably," said Greenspan, "we are better protected and, accordingly, better off as a consequence of these governmental protections. But corporate scandals of recent years have clearly shown that the plethora of laws of the past century have not eliminated the less-savory side of human behavior."
He concluded that "We should not be surprised then to see a re-emergence of the market value placed on trust and personal reputation in business practice. After the revelations of corporate malfeasance, the market punished the stock prices of those corporations whose behaviors had cast doubt on the reliability of their reputations."
FBI's National Crime Prevention and Privacy Compact Council to Address Outsourcing
4/16. The Federal Bureau of Investigation (FBI) published a notice in the Federal Register stating that the National Crime Prevention and Privacy Compact Council will hold a meeting on May 18-19, 2004.
The notice states that topics addressed at the meeting may include the "Draft of Noncriminal Justice Outsourcing Rule and Security and Management Outsourcing Standard", the "Draft of National Fingerprint File Rule", and the "Report on the National Fingerprint-Based Applicant Check Study". See, Federal Register, April 16, 2004, Vol. 69, No. 74, at Pages 20641 - 20642.
Consistent with the FBI's commitment to making the policy making activities and operations of government open and accessible to the public in a transparent manner, the meeting will be held in Minnetonka, Minnesota, and will not be webcast. Last year's meeting was held in West Yellowstone, Montana.
The Minnesota Department of Natural Resources has announced that the 2004 season for Walleye, Northern and Lake Trout opens on May 15.
People and Appointments
4/16. Thomas Derenge was named Deputy Division Chief for Engineering in the Mobility Division of the Wireless Telecommunications Bureau (WTB) of the Federal Communications Commission (FCC). He has worked at the FCC since 1991. For the last four years he has been Chief of the Spectrum Policy Branch of the FCC's Office of Engineering and Technology (OET). He has a decree in electrical engineering. See, FCC release [PDF].
4/16. Renée Crittendon was named Associate Division Chief of the Mobility Division. She has worked at the FCC since 2001. She was previously a Senior Attorney Advisor in the Wireline Competition Bureau's (WCB) Competition Policy Division, where she worked on Section 271 applications and local competition rulemaking proceedings. Before joining the FCC, she worked at Prism Communication Services, and at the law firms of Leventhal Senter & Lerman and Piper Rudnick. See, FCC release [PDF].
4/16. The Department of Homeland Security (DHS) published a notice in the Federal Register stating that the President's National Security Telecommunications Advisory Committee (NSTAC) will hold a two day meeting to discuss "cyber-related vulnerabilities of the internet", on May 18-19, 2004. The notice states that the meeting is closed to the public. See, Federal Register, April 16, 2004, Vol. 69, No. 74, at Pages 20635 - 20636.
4/16. The U.S. Court of Appeals (DCCir) issued its opinion [12 pages in PDF] in AT&T v. FCC, a petition for review of an order of the Federal Communications Commission (FCC) regarding coinless payphone compensation. The Appeals Court denied the petition. This case is AT&T Corporation, petitioner, v. FCC and USA, respondents, and WorldCom, intervenor, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 03-1017.
Go to News from April 11-15, 2004.