House Approves Bill Providing for Federally Regulated Identification Cards and Databases

5/5. The House approved HR 1268, the "Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, 2005". This conference report includes HR 418, the "REAL ID Act of 2005". The Senate has not yet approved the bill.

Title II of the REAL ID Act is titled "Improved Security for Driver's Licenses and Personal Identification Cards". Title II sets minimum standards that states must follow for issuing a driver's license or identification card to an individual. The bill also sets minimum standards for what information must be included on drivers' licenses and identification cards. Finally, the bill provides that states "shall participate in the interstate compact regarding sharing of driver license data, known as the `Driver License Agreement´, in order to provide electronic access by a State to information contained in the motor vehicle databases of all other States". This conference report is House Report No. 109-72.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, and the sponsor of the REAL ID Act, stated during floor debate that "These provisions will hamper the ability of terrorist and criminal aliens to move freely throughout our society by requiring that all states require proof of lawful presence in the U.S. for their drivers' licenses to be accepted as identification for federal purposes such as boarding a commercial airplane, entering a federal building, or a nuclear power plant."

The Electronic Privacy Information Center (EPIC) opposes the REAL ID Act. It stated after the House vote that the bill "would mandate federal identification standards and require state DMVs to collect sensitive personal information" at the same time that "the states motor vehicle agencies have become the target of identity thieves. In recent months three state DMVs have been penetrated by identity thieves. In March, burglars rammed a vehicle through a back wall at a DMV near Las Vegas and drove off with files, including Social Security numbers, on about 9,000 people. Last week Florida police arrested 52 people, including 3 DMV examiners, in a scheme that sold more than 2,000 fake driver's licenses. Two weeks ago Maryland police arrested three people, including a DMW worker, in a plot to sell about 150 fake licenses."

The American Civil Liberties Union (ACLU) stated in a release that the REAL ID Act "sets the stage for a national ID". It added that "The federalization of drivers' licenses, and the culling of all information into massive databases, creates a system ripe for identity theft. New standards could place our most private information - including photographs, address and social security numbers -- into the hands of identity thieves."

The House approved this conference report on a roll call vote of 368-58. See, Roll Call No. 161. However, the House narrowly defeated a motion to recommit on a roll call vote of 201-225. It was an almost straight party line vote. See, Roll Call No. 160.

FCC Denies SBC's Petition for Forebearance of Common Carrier Regulation of IP Services

5/5. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [12 pages in PDF] in its proceeding titled "In the Matter of Petition of SBC Communications Inc. for Forbearance from the Application of Title II Common Carrier Regulation to IP Platform Services". This MOO denies the petition on procedural grounds. See, full story.

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5/5. Hewitt Pate, the Assistant Attorney General in charge of the Department of Justice's (DOJ) Antitrust Division, wrote an amicus curiae brief for the U.S. Court of Appeals (2ndCir) in the Billing v. Credit Suisse First Boston. The Court of Appeals requested the views of the DOJ on implied antitrust immunity.

5/5. Jian Guo Qu pled guilty in U.S. District Court (EDWisc) to one count of violating 18 U.S.C. § 371 in connection with his efforts to export dual-use semi-conductors and other electronic components from the United States to the People's Republic of China without export licenses issued by the Department of Commerce's Bureau of Industry and Security (BIS/BXA). See, BXA release. Section 371 criminalizes a conspiracy by two or more persons to violate some underlying statute. In addition, Ruo Ling Wang, the wife of Jian Guo Qu, pled guilty to one count of violating 50 U.S.C. § 1705(b). The BXA stated in a release that this count relates to "falsifying and undervaluing a shipment of illegally exported electronics valued at $11,000 from the United States to China in an attempt to avoid scrutiny or inspection". Section 1705 criminalizes the violation of DOC regulations. The BXA also stated that two other defendants, Ning Wen and his wife Hailin Lin, are scheduled to be tried in September of 2005.

House Republican Hi-Tech Working Group Announces Agenda

5/4. The House Republican Hi-Tech Working Group held a news conference to announce its agenda for 109th Congress.

See, release of Rep. Bob Goodlatte (R-VA), which lists the items on the agenda. It includes permanently extending the research and development tax credit, reducing trade barriers, and supporting the Central American Free Trade Agreement (CAFTA).

It includes "ensuring employee stock ownership remains viable", but does not address legislation regarding the mandatory expensing of stock options.

It includes unspecified "patent reform", and promoting and enforcing "strong copyright and patent protection laws to prevent and combat the growing trend of digital piracy".

It also states, "prepare and develop workers for an information economy by supporting education reforms and funding that improve American’s math and science programs in order to fill high-tech jobs". It does not address H1B visas.

It also states that the Working Group "will continue to work to update the Telecommunications Act to reflect the changes in technology and competition that may have been driven by the Internet".

It also states this: "Spyware and Phishing -- We will work to ensure that innovation is not stifled and consumer confidence is not threatened by bad actors, but that the Internet remains a safe and secure place for electronic commerce to take place."

See also, statement by Speaker Denny Hastert (R-IL).

House to Take Up Supplemental Appropriations Bill That Includes Drivers License Mandates

5/4. The House Rules Committee approved a rule for the consideration of the conference report on HR 1268, the "Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, 2005". The full House will likely consider this conference report on Thursday, May 5, 2005. This conference report includes HR 418, the "REAL ID Act of 2005". This conference report is House Report No. 109-72.

Title II of the REAL ID Act is titled "Improved Security for Driver's Licenses and Personal Identification Cards".

Title II of the REAL ID Act sets minimum standards that states must follow for issuing a driver's license or identification card to an individual. The bill also sets minimum standards for what information must be included on drivers' licenses and identification cards.

Section 203 of the REAL ID Act also provides that "To be eligible to receive any grant or other type of financial assistance made available under this title, a State shall participate in the interstate compact regarding sharing of driver license data, known as the `Driver License Agreement´, in order to provide electronic access by a State to information contained in the motor vehicle databases of all other States."

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, and the sponsor of the REAL ID Act, released a summary [PDF] of the REAL ID Act that asserts that this bill "Does not create a national ID card or a national database".

The House approved the REAL ID Act as a stand alone bill on February 10, 2005 by a vote of 261-161. See, Roll Call No. 31. The Senate has not approved it. See, story titled "House Approves Real ID Act" in TLJ Daily E-Mail Alert No. 1,076, February 14, 2005.

Rep. Boucher Comments on FCC Subsidies for Telemedicine

5/4. Rep. Rick Boucher (D-VA) wrote a letter [PDF] to Federal Communications Commission (FCC) Chairman Kevin Martin, and to the other Commissioners, regarding the Rural Health Care Support Mechanism of the Universal Service Fund.

He stressed the importance of telemedicine and telehealth services in rural districts, such as his own, in far western Virginia. He stated that technological advances are "tremendously beneficial for patients in rural settings, who can avoid the time and expense associated with travel to the distant medical center. The patient can simply go to a clinic in his hometown that has telemedicine capability, and while he stays in the local examining room, the specialist located hundreds of miles away can conduct the examination and render a diagnosis."

Rep. Boucher continued that "In the absence of our universal service policy, the high cost of delivering and receiving telemedicine services would make the cost prohibitive for many of the health care providers ..."

He urged the FCC "to retain our core basic universal service policy: affordable access for everyone" when reviewing universal service support for health care communications. He further proposes several specific changes to the FCC's universal service rules.

Rep. Boucher is a senior member of the House Commerce Committee, and its Subcommittee on Telecommunications and the Internet, which oversee the FCC.

The FCC amended its rules regarding health clinics in November of 2003. See, story titled "FCC Expands Universal Service Support for Rural Clinics and Telemedicine" in TLJ Daily E-Mail Alert No. 779, November 14, 2003. It further amended its rules by adopting, on December 15, 2004, its "Second Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking". See, story titled "FCC Expands Rural Telemedicine Subsidy Program" in TLJ Daily E-Mail Alert No. 1,040, December 17, 2004. Rep. Boucher submitted the present letter in response to the rule making portion of this item.

This is WC Docket 02-60. The FCC has received over 200 comments. To access all comments, go to the FCC web site's comments search page, and enter the docket number (02-60) in the first dialog box.

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5/4. The Department of Justice (DOJ), and state plaintiffs, filed a motion with the U.S. District Court (DC) in US v. Microsoft. The motion requests the Court to re-appoint Harry Saal, Franklin Fite, and Edward Stritter as Members of the Technical Committee provided for by the final judgment in this case. See also, memorandum in support. This case is D.C. No. 98-1232 (CKK).

5/4. World Trade Organization (WTO) Director General Supachai Panitchpakdi gave a speech at the OECD Council at Ministerial Level in Paris, France regarding trade negotiations under the Doha Development Round. He stated that "The question now is whether we are on course or not. I am afraid that the short reply is that we are not." He reviewed the progress in each area of negotiations. He concluded that "A successful outcome would have a substantial positive effect on the world economy and on your peoples. Failure would be a major setback for growth, development and the multilateral system."

People and Appointments

5/3. The Motion Picture Association of America (MPAA) announced in a release that Bill Murray, the EVP and C-Chief Operating Officer, will leave on May 10.

5/3. Abraham Sofaer was named to the Board of Directors of Rambus. He works at the Hoover Institution at Stanford University. From 1979 to 1985, he was a Judge of the U.S. District Court for the Southern District of New York. See, Rambus release.

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5/3. Comcast announced in a release that AT&T "reached a settlement of certain At Home litigation. Comcast will pay AT&T Corp. $170 million to reimburse it for Comcast's portion of AT&T's settlement. Pursuant to the terms of its acquisition of AT&T Broadband from AT&T, Comcast is contractually liable for 50% of the $340 million settlement amount for these lawsuits, which are described below. The settlement also releases all claims by AT&T and AT&T Broadband in the At Home bankruptcy. The settlement is subject to the approval of the United States Bankruptcy Court for the Northern District of California." Comcast continued that "The lawsuits are: (i) a lawsuit filed against AT&T and others in Santa Clara, California state court alleging various breaches of fiduciary duties, misappropriation of trade secrets and other causes of action and (ii) an action filed against AT&T in the District Court for the Northern District of California alleging patent infringement. As part of the settlement, a lawsuit filed in the United States Bankruptcy Court against AT&T, AT&T Broadband and others seeking to recover alleged "preference" payments will be dismissed."

5/3. European Commissioner for Trade Peter Mandelson wrote an essay on the Doha Development Round, published in both Financial Times and his web site, in which he asserted that "As trade ministers from across the world meet in Paris this week, they will be aware of growing scepticism about the outlook for further liberalising international trade. I understand the anxiety but I think the pessimism is misplaced. There is still time -- just -- to deliver on the original development-through-trade agenda envisaged in the World Trade Organisation's Doha round of talks before negotiating fatigue takes over." He went on to explain the benefits of a successful Doha round.

Supreme Court Denies Certiorari in DMCA Notice and Take Down Case

5/2. The Supreme Court denied certiorari, without opinion, in Rossi v. MPAA. See, Order List [15 pages in PDF], at page 9.

This is a petition for writ of certiorari to the U.S. Court of Appeals (9thCir) in a state tort case in which a web site operator, Michael Rossi, alleged that a copyright holder, the Motion Picture Association of America (MPAA), wrongfully served a Digital Millennium Copyright Act (DMCA) notice and take down letter upon his internet service provider.

The U.S. District Court (DH) granted summary judgment to the MPAA. The Court of Appeals affirmed. It held that the notice and take down provisions, which are codified at 17 U.S.C. § 512(c)(3)(A), require only a subjective good faith belief on the part of the copyright holder, and good faith can be present even where the copyright holder is mistaken.

The denial of certiorari lets stand the opinion [13 pages in PDF] of the Court of Appeals.

See also, story titled "Appeals Court Finds MPAA Not Liable for Good Faith Exercise of DMCA Notice and Takedown Procedure" in TLJ Daily E-Mail Alert No. 1,029, December 2, 2004.

This case is Michael Rossi v. Motion Picture Association of America, Inc., et al., Sup. Ct. No. 04-1166, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit. The Court of Appeals No. is 03-16034. It is an appeal from the U.S. District Court for the District of Hawaii, D.C. No. CV-02-00239-BMK, Judge Barry Kurran presiding. Judge Johnnie Rawlinson wrote the opinion of the Court of Appeals, in which Judges Jerome Farris and John Noonan joined.

2nd Circuit Affirms District Court's Dismissal of 9/11 Suit Against Motorola

5/2. The U.S. Court of Appeals (2ndCir) issued its opinion [21 pages in PDF] in Virgilio v. NYC and Motorola. The Court of Appeals affirmed the District Court's dismissal of the complaint.

The plaintiffs are personal representatives of New York City firefighters who died at the World Trade Center responding to the terrorist attacks of September 11, 2001. The plaintiffs filed a complaint in U.S. District Court (SDNY) against New York City and Motorola alleging a variety of wrongful death claims arising out of the performance of radio equipment used by the firefighters on September 11.

Immediately after the attacks, the Congress enacted the Air Transportation Safety and System Stabilization Act, Public Law. No. 107-42, which, among other things, created the Victim Compensation Fund, and provided that all claimants who filed with the Fund waived the right to sue for injuries resulting from the attacks. The plaintiffs filed with the Fund.

The District Court dismissed the action. The Court of Appeals affirmed, in full.

This case is Lucy Virgilio, et al. v. City of New York and Motorola, Inc., No. 04-1942-cv, an appeal from the U.S. District Court for the Southern District of New York. Judge Wesley wrote the opinion of the Court of Appeals, in which Judges Newman and Straub joined.

People and Appointments

5/2. President Bush announced his intent to designate David Sampson to be acting Deputy Secretary of Commerce. See, White House release. Sampson is the Assistant Secretary of Commerce for Economic Development.

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5/2. Time Warner announced in a release, and in a letter to its employees, that it lost computer back up tapes containing the personal information of current and former employees. Time Warner stated in the release that "a container of its computer back-up tapes was lost by an outside data storage firm during shipment to one of that firm’s storage facilities. For several years, as part of its regular processes to protect its computerized data, Time Warner has used this firm, a leader in data storage, to ship and store its computer back-up tapes offsite. The missing tapes contained data from Time Warner, including personal information on current and former employees. The tapes did not include personal data on Time Warner customers."

5/2. The Federal Communications Commission (FCC) released the text [15 pages in PDF] of its notice of proposed rulemaking (NPRM) to implement satellite broadcast carriage requirements in the noncontiguous states, as required by Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA).. The FCC adopted this NPRM at its April 29, 2005 meeting. This NPRM is FCC 05-92 in MB Docket No. 05-181. Comments are due by June 6, 2005. Reply comments are due by June 20, 2005.

5/2. The National Institute of Standards and Technology's (NIST) Computer Security Division released its annual report [huge PDF file] for 2004. This is NIST IR 7219.

5/2. EMC Corporation and HP announced in a release that "they have agreed to amicably dismiss all claims and counterclaims with no findings or admissions of liability in a settlement of a longstanding patent dispute involving patent infringement allegations between the two companies." They added that "As part of this settlement agreement, HP will pay a net $325 million balancing payment to EMC, which can be satisfied through the purchase for resale or internal use of complementary EMC products, such as the VMware product line, over the next five years. EMC and HP also have signed a five-year patent cross-license agreement." See also, EMC release.

Go to News from April 26-30, 2005.