Senate Judiciary Committee Holds Hearing on PATRIOT Act

4/5. The Senate Judiciary Committee held a hearing titled "Oversight of the USA PATRIOT Act". The witnesses were Attorney General Alberto Gonzales and FBI Director Robert Mueller. Both submitted written statements, and read shorter opening statements. See, longer written statement of Gonzales and longer written statement of Mueller. See, full story.

Senate Judiciary Committee Hearing Touches on Pen Register and Trap and Trace Device Authority

4/5. The Senate Judiciary Committee hearing titled "Oversight of the USA PATRIOT Act" included some discussion of pen register and trap and trace device (PR&TTD) authority. The PATRIOT Act provides that this authority also extends to addressing and routing information for internet communications.

FBI Director Robert Mueller addressed this topic in his longer written statement. Attorney General Alberto Gonzales also addressed this in his written statement. Also, Sen. Russ Feingold (D-WI) spoke about this during one round of questions.

Background. There are wiretap orders, pen registers and trap and trace device orders, and Foreign Intelligence Surveillance Act (FISA) orders. A wiretap order, which enables law enforcement agencies to obtain the content of a phone call or e-mail, is issued by a judge upon a showing of probable cause. This is often referred to as a Title III order. This is a very high standard.

There is a much lower standard for law enforcement agencies to obtain pen register and trap and trace orders, which merely obtain outgoing and incoming phone numbers, and since passage of the PATRIOT Act, e-mail addressing and routing information. The order must be issued if the government asserts mere relevance to a criminal investigation; the judge has no discretion. The Supreme Court has upheld this procedure on the basis that only phone numbers are obtained.

Finally, there is a separate, and low, standard for FISA orders. Under the PATRIOT Act, a significant purpose of the surveillance must be foreign intelligence gathering.

The statutes for wiretaps and PR&TTD orders were drafted with analog Public Switched Telephone Network (PSTN) voice service in mind. Originally, 18 U.S.C. § 3127 provided that a pen register records the numbers that are dialed or punched into a telephone, while a trap and trace device captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted. The PATRIOT Act expanded the scope of surveillance under pen register and trap and trace authority to include internet routing and addressing information. That is, an e-mail address in the "To:" line of an e-mail message is somewhat analogous to the number dialed in a PSTN voice call. However, this expanded authority also applies to new technologies for collecting addressing and routing information, such as the FBI's Carnivore system.

The PATRIOT Act did not change the standard for either wiretaps (a showing of probable cause) or PR&TTD orders (an assertion of mere relevance to a criminal investigation). It did, however, lower the standard for issuance of a FISA order. The statute required that the "primary purpose" of the surveillance be foreign intelligence gathering. The PATRIOT Act changed this to "a significant purpose". The PATRIOT Act made it easier for the government to get a FISA order.

Mueller's Written Statement. Mueller (at right) addressed PR&TTD authority under § 214 in his longer written statement. This section pertains to "Pen register and trap and trace authority under FISA"

However, he did not address § 216, which pertains to "Modification of authorities relating to use of pen register and trap and trace devices". § 214, but not § 216, is scheduled to sunset at the end of this year. Although, some have argued that § 216 should also be repealed.

§ 216 expanded the concept of PR&TTD to online communications for the purpose of criminal investigations. § 214 expanded PR&TTD authority in the context of the FISA.

Mueller wrote that "The FBI may now obtain a FISA pen/trap and trace order from the court if ``the information likely to be obtained is foreign intelligence information not concerning a United States person, or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.´´ This provision eliminated the previous requirement that the application also contain specific and articulable facts giving reason to believe that the targeted line was being used by an agent of a foreign power, or was in communications with such an agent, under specified circumstances. This provision now more closely tracks the requirements to obtain a pen/trap order under the criminal provisions set forth in 18 U.S.C. § 3123. The provision also expands the FISA pen/trap to include electronic communications, comparable to the criminal pen/trap provision."

He continued that "The results from these pen/trap orders often help agents to determine links between the subjects of different terrorism investigations, identify other unknown associates of the subject, discover contacts for potential assets, and develop the subject’s personal profile. When pen/trap orders are quickly obtained, they allow agents to more quickly identify the associates tied to the subject of international terrorism investigations than if the agents were required to wait for service providers to respond to subpoenas for toll records, which can take several months. The old standard required more fact gathering to meet the threshold to obtain the pen/trap order, making this technique less effective and sometimes even preventing the use of this technique altogether if the window of opportunity was missed. The FISA pen/trap orders that have been obtained have been used on both terrorism and counterintelligence cases."

He added that "In one terrorism case, the only phone that the Field Office could prove was used by the subject was his associate’s phone. Additionally, the Field Office had insufficient information that this associate was an agent of a foreign power. Thus, under the previous standard for a FISA pen/trap, the office may not have succeeded in obtaining the FISA pen/trap order. The standard established by Section 214 allowed the agents to obtain the pen/trap order by demonstrating that the information to be collected was relevant to an ongoing terrorism investigation. The information obtained by the pen/trap was valuable because it demonstrated the extent that the subject and his associate were communicating with subjects of other terrorism investigations."

Gonzales' Written Statement. Gonzales wrote that "A pen register or trap-and-trace device can track routing and addressing information about a communication – for example, which numbers are dialed from a particular telephone. Such devices, however, are not used to collect the content of communications."

"Under FISA, intelligence officers may seek a court order for a pen register or trap-and-trace to gather foreign intelligence information or information about international terrorism. Prior to the enactment of the USA PATRIOT Act, however, FISA required government personnel to certify not just that the information they sought to obtain with a pen register or trap-and-trace device would be relevant to their investigation, but also that the particular facilities being monitored, such as phones, were being used by foreign governments, international terrorists, or spies. As a result, it was much more difficult to obtain a pen register or trap-and-trace device order under FISA than it was under the criminal wiretap statute, where the applicable standard was and remains simply one of relevance in an ongoing criminal investigation."

He also wrote that "Section 214 of the Act simply harmonized the standard for obtaining a pen register order in a criminal investigation and a national-security investigation by eliminating the restriction limiting FISA pen register and trap-and-trace orders to facilities used by foreign agents or agents of foreign powers. Applicants must still, however, certify that a pen register or trap-and-trace device is likely to reveal information relevant to an international terrorism or espionage investigation or foreign intelligence information not concerning a United States person. This provision made the standard contained in FISA for obtaining a pen register or trap-and-trace order parallel with the standard for obtaining those same orders in the criminal context. Now, as before, investigators cannot install a pen register or trap-and-trace device unless they apply for and receive permission from the FISA Court."

Sen. Feingold's Comments. Sen. Feingold (at right) was the only member to discuss at length PR&TTD authority. He did not use this hearing to advocate sunsetting or repealing any of the PR&TTD provisions. Rather, he discussed, and asked questions regarding, the scope of information that can be acquired under a PR&TTD order.

He made the point that while distinguishing between telephone numbers and the content of voice communications is easy in the context of PSTN communications, distinguishing between addressing and routing information and the content of internet communications is not easy.

Sen. Feingold asked how the Department of Justice determines whether something is content or non-content in the context of internet communications?

Attorney General Gonzales then spoke. He said that "it is appropriate to assure that content is not being collected" under a PR&TTD order. But, he did not answer Sen. Feingold's question. The Senator did not press the matter.

If, for example, investigators can obtain content information under a criminal PR&TTD order, then they will have circumvented the probable cause requirement for the issuance of a Title III order.

Sen. Specter Discusses Health

4/5. Sen. Arlen Specter (R-PA) presided at the Senate Judiciary Committee's hearing titled "Oversight of the USA PATRIOT Act". The hearing ran for over three hours. He then met privately with the witnesses, Attorney General Alberto Gonzales and FBI Director Robert Mueller.

In early February, Sen. Specter (at right) announced that he has been diagnosed with Hodgkin's disease, a cancer of the lymph system. See, release.

He held a news conference on February 24, 2005, at which he stated that he expects to be able to carry out his duties as Chairman of the Committee. See, story titled "Sen. Specter Holds News Conference" in TLJ Daily E-Mail Alert No. 1,083, February 25, 2005.

Sen. Specter stated at the April 5 hearing that "I have had a third of the treatments. I am doing fine." He also stated that his doctors have predicted full recovery.

Supreme Court Grants Certiorari in State Sovereign Immunity Case

4/4. The Supreme Court granted certiorari in Central Virginia Community College v. Katz. See, Order List [13 pages in PDF] at page 7.

The underlying dispute in this case does not involve technology. This is a bankruptcy case. This case involves the authority of the Congress, under the bankruptcy clause of the Constitution, to abrogate state sovereign immunity in the bankruptcy code. See, 11 U.S.C. § 106(a). Four state colleges run by the state of Virginia challenge the constitutionality of § 106, asserting state sovereign immunity, 11th Amendment immunity, and the 10th Amendment. The Bankruptcy Court and the Court of Appeals ruled against the state colleges. Now, the Supreme Court will review this question.

The argument advanced by the state colleges is similar to those made by the state of Florida when it successfully argued before the Supreme Court that the Patent and Plant Variety Protection Remedy Clarification Act is an unconstitutional abrogation of state's 11th Amendment immunity. Indeed, the state colleges cite the Florida cases in their Petition for Writ of Certiorari [45 pages in PDF].

Hence, persons interested in state sovereign immunity and 11th Amendment immunity in the context of intellectual property litigation, may wish to follow developments in this case.

Wallace's Bookstores operated bookstores on the campuses of the four state colleges. It declared bankruptcy in U.S. Bankruptcy Court (E.D.Kent). Bernard Katz is the liquidating supervisor of the bankrupt estate. He commenced an adversary proceeding, under the bankruptcy code, to recover preferential transfers made by Wallace's Bookstores to the four state colleges, and to collect accounts receivable owed by the four state colleges.

11 U.S.C. § 106(a) provides that "Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following: ..." It then lists numerous sections of the bankruptcy code, including 11 U.S.C. § 547, which pertains to preferential transfers.

The four state colleges filed motions to dismiss the complaint, based upon sovereign immunity. They asserted that § 106(a) is unconstitutional. The Bankruptcy Court denied these motions.

The four colleges appealed. The Court of Appeals (6thCir) affirmed. The four colleges sought rehearing en banc. Not one judge voted to rehear the case. The four colleges petitioned the Supreme Court for writ of certiorari. The Supreme Court has granted certiorari.

The four colleges argue in their petition that there is a split among the circuits on Congressional authority to abrogate state sovereign immunity in the bankruptcy code. They assert that the 6th Circuit ruling is in conflict with the rulings of five other circuits.

The four colleges also relied heavily in their petition on the Supreme Court's opinions in Seminole Tribe v. Florida, 517 U.S. 44 (1996), which held that the Congress lacks authority under Article I of the Constitution to abrogate the States' 11th Amendment immunity from suit in federal courts, and in Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999), which extended the Seminole Tribe holding to intellectual property suits.

The present case is Central Virginia Community College, et al. v. Bernard Katz, Sup. Ct. No. 04-885, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit. The U.S. Bankruptcy Court's case number is 01-50545. The Appeals Court's case number is No. 03-6054.

Supreme Court Denies Certiorari in Copyright Fair Use and Attorneys Fees Case

4/4. The Supreme Court denied certiorari Ergonome v. Compaq Computer, a copyright infringement case involving the defense of fair use, and the recovery of attorneys fees. See, Order List [13 pages in PDF] at page 8.

Ergonome, a small company owned by a couple, held the copyright on a short book on computer related hand injuries. Compaq, which sells personal computers, acquired a copy of the booklet, and copied from it, without authorization, in its own user guides.

Compaq filed a complaint against Ergonome in distant and inconvenient forum seeking a declaratory judgment that its copying did not constitute infringement. The jury found that Compaq's copying of seven phrases and four illustrations was de minimis. The District Court also awarded Compaq $2,765,026.90 in attorneys fees as the prevailing party.

Ergonome appealed. The U.S. Court of Appeals (5thCir), applying the four prong fair use test of 17 U.S.C. § 107, affirmed. It also affirmed the attorneys fees award. Judge Edith Jones wrote the opinion.

See also, story titled "5th Circuit Rules on Copyright, Fair Use, Attorneys Fees, and Alter Egos" in TLJ Daily E-Mail Alert No. 991, October 6, 2004.

This case is Ergonome, Inc. v. Compaq Computer Corporation, Sup. Ct. No. 04-1105, a petition for writ of certiorari to the U.S. Court of Appeals for the 5th Circuit. The Appeals Court case number is 01-20861. It was an appeal from the U.S. District Court for the Southern District of Texas.

8th Circuit Rules Against Crackpot Cybersquatter

4/4. The U.S. Court of Appeals (8thCir) issued its opinion [4 pages in PDF] in Faegre v. Purdy, a cybersquatting case. The Court of Appeals affirmed the District Court order granting a preliminary injunction to Faegre, the trademark holder.

William S. Purdy is an anti-abortion activist and serial cybersquatter who registers domain names that often contain well known trademarks, and then causes web surfers who enter these domains in their browsers to be redirected to an anti-abortion web site.

Faegre & Benson is a large law firm based in Minneapolis, Minnesota. It has registered a trademark for its name. Purdy registered domains such as www.faegre-benson.com. Purdy made no commercial use of this domain.

Faegre & Benson, and two of its partners, filed a complaint in U.S. District Court (DMinn) against Purdy alleging violation of the Anticybersquatting Consumer Protection Act (ACPA), which is codified at 15 U.S.C. § 1125(d), violation of the Lanham Act, 15 U.S.C. §§ 1114(a), 1125(a), violation of the Minnesota Deceptive Trade Practices Act, Minn. Stat. Ann. §325D.44, and violation of tort law of the state of Minnesota. The plaintiffs' complaint requested injunctive and declaratory relief, and damages. The plaintiffs also filed a motion for a temporary restraining order (TRO) and a preliminary injunction (PI).

The District Court issued an order [PDF] granting the TRO and PI.

The District Court enjoined Purdy from using domain names identical to or confusingly similar to Faegre's marks unless the protest or critical commentary nature of the attached website is apparent from the domain name itself, from using marks identical to or confusingly similar to Faegre's marks, from displaying any website whose appearance is identical or confusingly similar to the trade dress of Faegre's website, and from illegally appropriating Faegre names.

Purdy appealed. The Court of Appeals affirmed. It wrote a brief opinion that contains no application of the ACPA, Lanham Act, or other bodies of law to the facts of this case.

This case is Faegre & Benson, et al. v. William S. Purdy, et al., U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 04-1189, an appeal from the U.S. District Court for the District of Minnesota, D.C. No. 03-6472, Judge Michael Davis presiding.

9th Circuit Rules in Favor of Crackpot Cybersquatter

4/4. The U.S. Court of Appeals (9thCir) issued its opinion [18 pages in PDF] in Bosley Medical Institute v. Kremer, a cybersquatting case. The Court of Appeals affirmed in part the District Court's judgment for Kremer, the cybersquatter.

Michael Kremer received hair replacement services from Bosley Medical Institute. He was displeased. He then registered the domain name www.BosleyMedical.com and created a non-commercial web site that is critical of Bosley. Bosley has registered the trademark "Bosley Medical".

Bosley filed complaints in U.S. District Court (SDCal) against Kremer alleging trademark infringement, dilution, violation of the Anticybersquatting Consumer Protection Act (ACPA), unfair competition, various state law claims, and libel. Bosley dismissed the libel claim.

This case did not go to trial. Also, the District Court allowed only limited discovery. Rather, the District Court granted summary judgment to Kremer on the trademark infringement, trademark dilution, and ACPA claims, all on the grounds that Kremer did not make commercial use of the mark. The District Court also dismissed the state law claims under California's anti-SLAPP statute.

This appeal followed.

The Court of Appeals affirmed the summary judgment on the trademark infringement claim. It held that "the noncommercial use of a trademark as the domain name of a website -- the subject of which is consumer commentary about the products and services represented by the mark -- does not constitute infringement under the Lanham Act."

The Court of Appeals reasoned that no one will buy hair replacement services from Kremer thinking that he is Bosley. It concluded that "Neither is Kremer capitalizing on the good will Bosley has created in its mark. Any harm to Bosley arises not from a competitor's sale of a similar product under Bosley's mark, but from Kremer’s criticism of their services. Bosley cannot use the Lanham Act either as a shield from Kremer’s criticism, or as a sword to shut Kremer up."

However, the Court of Appeals vacated and remanded the summary judgment for Kremer on the ACPA claim. It held that the District Court erred in applying the commercial use requirement to Bosley's ACPA claim. It should have confined its inquiry to the elements of the ACPA claim listed in the statute, at 15 U.S.C. § 1125(d)(1)(B). The Court of Appeals held that the District Court should have inquired whether Kremer had a bad faith intent to profit from his use of Bosley's mark in his web site's domain name. This claim goes back to the District Court for discovery and further proceedings. Kremer may yet prevail on this issue too.

Finally, the Court of Appeals reversed the dismissal of the state law claims under the California anti-SLAPP statute. These claims are remanded to the District Court, for discovery, and further proceedings.

This case is Bosley Medical Institute v. Kremer, Inc., et al. v. Michael Steven Kremer, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-55962, an appeal from the U.S. District Court for the Southern District of California, D.C. No. CV-01-01752-WQH, Judge William Hayes presiding. Judge Barry Silverman wrote the opinion of the Court of Appeals, in which Judges Thomas Nelson and Richard Tallman joined.

More Supreme Court News

4/4. The Supreme Court issued an order in Merck v. Integra LifeSciences I, a drug patent case involving a research exemption to patent infringement. The Supreme Court wrote that "The motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted." See, Order List [13 pages in PDF] at page 6. This is Sup. Ct. No. 03-1237. See also, story titled "Supreme Court Takes Case Involving Research Exemption to Patent Infringement" in TLJ Daily E-Mail Alert No. 1,053, January 11, 2005.

4/4. The Supreme Court denied certiorari in Focus Media, Inc. v. NBC, Inc., No. 04-1107. See, Order List [13 pages in PDF] at page 12. This lets stand the August 2, 2004 opinion [23 pages in PDF] of the U.S. Court of Appeals (9thCir). This is an involuntary Chapter 7 bankruptcy case involving a company that booked and paid for commercial spots from television and radio stations on behalf of advertising clients. The Appeals Court affirmed the District Court. The Court of Appeals case number is 03-55808. This was an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-01-01146-AHS.

4/4. The Supreme Court denied certiorari in Tony Colida v. Sanyo North America Corporation, No. 04-8644. This is a petition for writ of certiorari to the U.S. Court of Appeals (FedCir) in a patent case. See, Order List [13 pages in PDF] at page 10.

4/4. The Supreme Court issued two opinions, neither of which are technology related, and an Order List [13 pages in PDF]. It then began a two week recess. It will return on Monday, April 18.

People and Appointments

4/4. The Federal Communications Commission (FCC) announced the appointment of members of its Technological Advisory Council (TAC) for 2005. See, FCC release.

More News

4/4. The Department of Commerce's Office of Technology Policy released a report [31 pages in PDF] titled "The Digital Freedom Initiative Annual Report". The Bush administration announced its Digital Freedom Initiative on March 4, 2003. See, story titled "Bush Administration Announces Digital Freedom Initiative" in TLJ Daily E-Mail Alert No. 617, March 5, 2003.

4/4. The Federal Communications Commission (FCC) released a report [14 pages in PDF] titled "FCC Amended Report to Congress on the Deployment of E911 Phase II Services by Tier III Service Providers".

More News

4/3. Kyle McSlarrow, the new P/CEO of the National Cable & Telecommunications Association (NCTA), gave a speech at an NCTA convention in San Francisco, California, in which he discussed regulatory issues. He said, with respect to voice over internet protocol, that "we must avoid reflexively applying traditional rules of the road. We believe that VOIP should be subject to minimal regulation. In return, we accept the responsibility of providing emergency 9-1-1 service, meeting certain requirements to allow law enforcement to fight crime and terrorism, and participating in the Universal Service Fund." He also said that "like services should be treated alike" and that "these services are most appropriately regulated under uniform national standards".

Congressional Committees Schedule Hearings On USA PATRIOT Act

4/1. The Senate Judiciary Committee (SJC) announced that it will hold a series of hearings on the USA PATRIOT Act, beginning on Tuesday, April 5. The House Judiciary Committee (HJC) announced that it will hold the first of a series of hearings on Wednesday, April 6.

The SJC will hold a hearing titled "Oversight of the USA PATRIOT Act" on April 5 at 9:30 AM. This hearing will be open to the public. It will be in Room 216 of the Hart Building, rather than the SJC's hearing room, which is much smaller.

The SJC also announced that it will hold "a classified briefing where Senators will be briefed on the Department of Justice's practical use of certain PATRIOT Act provisions, such as Section 206, which authorizes the limited use of ``roving wiretaps.´´"

Finally, the SJC will a third hearing in "early May" that will "allow for scholars and critics of the PATRIOT Act to weigh in on the delicate balance between protecting civil liberties and protecting America from future acts of terrorism."

The HJC's first hearing will be at 1:00 PM on April 6 in Room 2141 of the Rayburn Building, which is the HJC's regular hearing room. The witness at this first hearing will be Attorney General Alberto Gonzales. The HJC, and its subcommittees, will hold a series of eight hearings in the months of April and May.

Rep. James Sensenbrenner (R-WI), the Chairman of the HJC, stated in a release announcing these hearings that "Consideration of reauthorization of the PATRIOT Act represents one of the most important tasks Congress faces this year. Lawmakers will focus a keen eye on all aspects of this law and how it has been implemented. What improvements, if any, are needed? Does the PATRIOT Act deserve to be made permanent? These are a few of the questions that will be asked."

The HJC release singled out the following issues:
 • Terrorism Plans Disrupted
 • The “Wall”
 • Information Sharing
 • Access to Business Records
 • Material Support of Terrorism
 • Wiretap Authorities

The USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was enacted quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

While the PATRIOT Act is a huge bill that addresses a wide range of issues, there are sixteen sections of Title II, which cover electronic surveillance and information technology, that are set to sunset on December 31, 2005. These sections of the PATRIOT Act modified numerous sections of the criminal code, which is codified at Title 18, and the Foreign Intelligence Surveillance Act (FISA), which is codified at 50 U.S.C. § 1861, et seq.

The sections of Title II that are scheduled to sunset are as follows:

  § 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".

President Bush wants to extend all of the sunsetting provisions. See, story titled "Bush Seeks Extension of Sunsetting Provisions of the PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,077, February 15, 2005.

There are also several sections of Title II of the PATRIOT Act that are not scheduled to sunset, but that some legislators would like to eliminate, such as § 213 pertaining to delayed notification of search warrants. Critics often refer to this as "sneak and peak" authority. There have also been proposals to sunset § 216, pertaining to "Modification of authorities relating to use of pen register and trap and trace devices".

§ 216 expanded the concept of pen register and trap and trace devices (PR&TTD) to online communications. PR&TTD are telephone industry concepts. Pen registers are used to obtain outgoing phone numbers. Trap and trace devices are used to obtain incoming numbers. Before enactment of the PATRIOT Act, the relevant statute referenced "wire" communications.

The PATRIOT Act provides that the concept of a pen register is expanded from merely capturing phone numbers, to capturing routing and addressing information in any electronic communications, including internet communications. It similarly expands the concept of trap and trace devices. That is, § 216 relates to e-mail surveillance. The Act also provides that a single order shall apply nationwide.

Section 206. The SJC will hold a closed hearing on § 206. This section of the PATRIOT Act, pertaining to "Roving surveillance authority under the FISA", amended 50 U.S.C. § 1805. § 206 provides in full that "Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting `, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after `specified person'." § 206 is scheduled to sunset.

Several Senators, including Sen. Patrick Leahy (D-VT) and Sen. Larry Craig (R-ID), have proposed to allow this provision to sunset. 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; and story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

Critics of roving wiretap authority state that it does not specify the target of the wiretap or the place to be wiretapped, and that this increases the likelihood that the conversations of innocent people will be intercepted.

Section 215. The HJC release identifies this section as one subject for its hearings. § 215 pertaining to "Access to records and other items under the FISA". There was a long dispute over this section, primarily former Attorney General John Ashcroft and the American Library Association (ALA).

The Foreign Intelligence Surveillance Act (FISA) only applies to foreign powers, and agents of foreign powers, including international terrorists. § 501 of the FISA 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. Although, Attorney General John Ashcroft stated in September of 2003 that it has not been used to obtain library records.

§ 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.

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, or passing a bill such as Sen. Craig's, would raise the standards for obtaining a FISA order for business records.

See also, stories titled "Ashcroft Says American Library Association Attacks on PATRIOT Act Are Hysteria and Hyperbole" in TLJ Daily E-Mail Alert No. 740, September 16, 2003; "Ashcroft and Critics Continue Debate Over Section 215 Access to Business Records" in TLJ Daily E-Mail Alert No. 745, September 24, 2003; "Ashcroft Addresses Roving Wiretaps and Access to Business Records" in TLJ Daily E-Mail Alert No. 746, September 25, 2003; and "Ashcroft Defends PATRIOT Act in Speech" in TLJ Daily E-Mail Alert No. 781, November 18, 2003.

Bush Picks Bernanke To Be Chairman of Council of Economic Advisors

4/1. President Bush announced his intent to nominate Ben Bernanke to be a Member of the President's Council of Economic Advisers. Bush added that upon confirmation, he will designate him as Chairman. Bernanke is currently a member of the Federal Reserve System's Board of Governors. See, White House release.

Bernanke (at right) is also an economics professor at Princeton University. See, Bernanke's Princeton web page.

Bernanke has spoken in recent years about technology related economic issues.

For example, on November 6, 2003 he gave a speech at Carnegie Mellon University in Pittsburgh, Pennsylvania, titled "The Jobless Recovery". See also, story titled "FRB Governor Says Info Tech Is One Reason for Jobless Recovery" in TLJ Daily E-Mail Alert No. 774, November 7, 2003.

Also, on March 30, 2004, FRB Governor  gave a speech titled "Trade and Jobs" at Duke University in Durham, North Carolina. See also, story titled "FRB Governors Offer Economic Analyses of Offshoring and Free Trade" in TLJ Daily E-Mail Alert No. 877, April 15, 2004.

He is also the co-author of a book titled "Macroeconomics" [Amazon].

Bush Announces Appointments to Key DOD Post

4/1. President Bush gave a recess appointment to Michael Wynne to be Under Secretary of Defense (USD) for Acquisition, Technology and Logistics (ATL). This office oversees, among other things, the Defense Advanced Research Projects Agency (DARPA), which is involved in numerous information technology related projects.

In 2001, Bush nominated Wynne (at right), and the Senate confirmed him, to be Principal Deputy Under Secretary of Defense for ATL. He still holds that position; he is also the acting USD for ATL. Bush nominated Wynne to be USD for ATL in September of 2003, but the Senate did not confirm him. He was previously a long time employee of General Dynamics. See, White House release.

In addition, President Bush announced his intent to nominate Kenneth Krieg to be USD ATL. He is currently Director for Program Analysis and Evaluation in the Office of the Secretary of Defense. He previously worked for International Paper. See, White House release.

For an overview of DARPA current activities, see prepared testimony [PDF] of Tony Tether, Director of the DARPA, at a March 10, 2005, hearing of the House Armed Services Committee's (HASC) Subcommittee on Terrorism, Unconventional Threats and Capabilities.

People and Appointments

4/1. President Bush announced his intent to nominate David Sampson to be Deputy Secretary of Commerce. Sampson is currently Assistant Secretary of Commerce for Economic Development. He was previously P/CEO of the Arlington Chamber of Commerce. Arlington lies between Dallas and Ft. Worth in the state of Texas. It is home to the Texas Rangers baseball team. It is represented by Rep. Joe Barton (R-TX), the Chairman of the House Commerce Committee. See, White House release.

4/1. President Bush announced his intent to designate Rhonda Keenum acting Under Secretary of Commerce for International Trade. See, White House release.

4/1. Meyer Eisenberg was named acting Director of the Securities and Exchange Commission's (SEC) Division of Investment Management. He has been Deputy General Counsel of the SEC since 1998. See, SEC release.

4/1. Phillip Swagel became a Resident Scholar at the American Enterprise Institute (AEI). He was previously Chief of Staff at the White House Council of Economic Advisers.

More News

4/1. The Federal Communications Commission (FCC) released an order [65 pages in PDF] in its proceeding titled "In the Matter of Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems: E911 Phase II Compliance Deadlines for Tier III Carriers". The FCC adopted this item on March 22, 2005, and released it on April 1. It is FCC 05-79 in CC Docket No. 94-102.

4/1. The Federal Trade Commission (FTC) released a report [51 pages in PDF] titled "The FTC in 2005: Standing Up for Consumers and Competition". See also, FTC release summarizing this report.

Go to News from March 26-31, 2005.