TLJ News from October 6-10, 2005

USTR Seeks to Break Doha Deadlock

10/10. The Office of the U.S. Trade Representative (USTR) floated a new proposal in ongoing agriculture trade negotiations that are a part of the broad Doha Development Agenda trade negotiations. This proposal addresses export competition, market access, and domestic support.

Robert PortmanUSTR Robert Portman (at right) stated in a release that "The United States is committed to breaking the deadlock in multilateral talks on agriculture, and unleashing the full potential of the Doha Round". See also, USTR summary.

Agriculture is not technology. However, resolution of agriculture trade disputes is probably a necessary precondition for reaching a broader trade agreement that would include provisions promoting free trade in technology.

Harris Miller, President of the Information Technology Association of America (ITAA), stated in a release that "This important action moves us towards WTO agreements that advance the global marketplace for IT products and services while creating more and better paying jobs for US IT workers."

Trade negotiators are working under a two month deadline. The World Trade Organization (WTO) will hold its Sixth WTO Ministerial Conference in Hong Kong on December 13-18, 2005. See, WTO notice.

People and Appointments

10/8. David Conrad was hired by the Internet Corporation for Assigned Names and Numbers (ICANN) as General Manager of the Internet Assigned Numbers Authority (IANA). See, ICANN release.

10/6. The National Cable & Telecommunications Association (NCTA) hired Michael Turk for its newly created position of VP of Grassroots. He previously worked as the eCampaign Director for the Republican National Committee (RNC), and for the Bush-Cheney 2004 re-election campaign. The NCTA promoted Rick Cimerman to the position of VP of State Government Affairs. The NCTA also promoted Lisa Schoenthaler to the position of VP of Association Affairs and the Office of Rural/Small Systems. See, NCTA release.

More News

10/10. eBay and VeriSign announced "a strategic alliance that calls for the two companies to collaborate on payment services and security initiatives for e-commerce. Under the terms of the agreements, PayPal, an eBay company, will acquire VeriSign's payment gateway business and combine it with PayPal's leading merchant services platform. VeriSign will also provide eBay and PayPal with a suite of security services that includes the deployment of two-factor authentication, a security system that gives customers a one-time password or digital certificate to help protect against online identity theft." See, PayPal release and VeriSign release. This transaction is subject to regulatory approval. eBay acquired PayPal in 2002.

10/10. America Online (AOL) announced, but did not release, a survey based study titled "2005 AOL African American Cyberstudy". AOL stated that the study was conducted by Images Market Research (IMR). AOL further stated that IMR used focus groups, conducted a web survey of 1,016 African American internet users, and conducted telephone interviews of 300 African Americans, and 250 from a general market sample. The study compares use of the internet by African Americans to the general population. See, AOL release.

Cogent and Level 3 Have Peering Dispute

10/7. Cogent Communications issued a release regarding its peering dispute with Level 3 Communications. Cogent states that Level 3 turned off its internet backbone peering connection with Cogent.

Cogent CEO Dave Schaeffer stated in the release that "We feel this situation can easily be resolved without more impact to the customers of either company. The seriousness of the situation has been made abundantly clear, and for the sake of Internet users, Level 3 should turn the connection back on and both parties should sit down at the table to discuss the situation."

He added that "Cogent is willing to offer Level 3 free Internet service across our network to help alleviate their financial situation while also discussing appropriate traffic ratios. Cogent feels allegations of inappropriate traffic ratios have been incorrectly articulated by Level 3. In fact, it is Level 3 who requested that Cogent send more traffic across their network since Level 3 charges by the bit, and increased traffic flow helps them financially."

He concluded that "Cogent's connection to Level 3 remains open, on and ready to accept their traffic. There is no situation that prevents them from turning on the connection other than a mindset that is willing to sacrifice customer connectivity at this specific point in time. Cogent feels that Internet users deserve better treatment while this situation is ironed out. That is why Cogent is appealing directly to Level 3 single-homed customers and offering them one year of free, dedicated Internet access to provide them with access to the full Internet, not just the Level 3 portion of it. This offer bypasses the problem, helps the customer attain full access to the Internet and eliminates the roadblock to Cogent's portion of the Internet. Cogent has already had significant success with this offer and will continue to make it available as long as the peering connection remains turned off by Level 3."

There are no statutory requirements affecting the negotiation of peering or interconnection agreements among internet backbone providers. In contrast, telecommunications carriers have long been required to interconnect with other carriers, and regulators have authority to mandate interconnection, and imposed terms, included prices.

There are legislative proposals to impose an interconnection requirement upon internet backbone providers. For example, on September 15, 2005, the House Commerce Committee's (HCC) released the discussion draft [77 pages in PDF] of a bill to regulate broadband internet transmission services (BITS), voice over internet protocol (VOIP) services, and broadband video services (BVS). It requires BITS providers to interconnect with both other BITS providers and telecommunications carriers. See also, story titled "House Commerce Committee Releases Draft of Bill to Regulate Internet Protocol Services" in TLJ Daily E-Mail Alert No. 1,216, September 19, 2005.

Even a legislative proposal [46 pages in PDF] of the Progress and Freedom Foundation (PFF), a group that usually advocates free markets, would create a government imposed interconnection requirement. Its proposed legislative language provides that "Unfair methods of competition in or affecting electronic communications networks and electronic communications services, and unfair or deceptive practices in or affecting electronic communications networks and electronic communications services, are hereby declared unlawful."

It then provides that "unfair methods of competition means ... with respect to interconnection, practices that pose a substantial and non-transitory risk to consumer welfare by materially and substantially impeding the interconnection of public communications facilities and services in circumstances in which the Commission determines that marketplace competition is not sufficient adequately to protect consumer welfare, providing that in making any such determination the Commission must consider whether requiring interconnection will affect adversely investment in facilities and innovation in services."

See also, story titled "PFF Project Recommends Making FCC More Like the FTC and Antitrust Division" in TLJ Daily E-Mail Alert No. 1,157, June 20, 2005.

4th Circuit Rules Dirty Dancing is not Expressive Conduct

10/7. The U.S. Court of Appeals (4thCir) issued its opinion [26 pages in PDF] in Willis v. Marshall, a First Amendment and Equal Protection case involving government regulation of dirty dancing and women's wardrobes. The courts hear many dancing cases. However, while most dancing cases involve municipal efforts to regulate commercial establishments that stage dancers for prurient purposes, this case involves a public forum for dancing by members of the public. This is subject to a different legal analysis.

The small Town of Marshall, in far western North Carolina, leased a former railroad depot for use as a community center. It established Friday nights for music performances and dancing. The public was invited. One Rebecca Willis was a regular. The Town was shocked. It said she danced in a sexually provocative and indecent manner. And, she bent over while wearing very short skirts. But, she said that she was merely an enthusiastic and flamboyant dancer, who gyrated like Elvis Presley. And, whatever proprietary information she disclosed, she wore underwear.

Local newspaper accounts, but not the recitation of facts in the Court's opinion, suggest another reason why the Town thought Willis's lack of cotton fabric so threatened the Town's moral fabric -- she was 59 years old. The Board of Aldermen banished her, but not her dancing partners, from further Town dances.

Perhaps in Willis's view, the Marshall's Board of Aldermen functioned in a capacity not unlike that of the Harper Valley PTA, or similarly situated federal regulators.

Stripped of her associational and expressive rights, she filed a complaint in U.S. District Court (WDNC) under 42 U.S.C. 1983, based upon state violations of her rights under the First Amendment, the Equal Protection Clause, substantive due process, and other constitutional provisions. The District Court granted summary judgment to the Town, and she appealed.

The unusual posture of Willis's case, a challenge to municipal regulation of indecent dancing at a municipal forum established for the purpose of music and dancing, creates analogies to government regulation of indecent broadcast content.

There are many conceptual similarities between the Town's regulation of dancers, and government regulation of broadcast content. Radiofrequency spectrum is owned by the government. Some spectrum is licensed, by the Federal Communications Commission (FCC), for among other purposes, broadcasting entertainment programming. Moreover, the FCC regulates the content of programming by prohibiting obscenity, indecency and profanity.

Also on October 7, the FCC issued a release [PDF] announcing the publication of a new web site section. It is titled "Regulation of Obscenity, Indecency and Profanity", or "ROIP", which perhaps, rhymes with VOIP.

Similarly, the Town of Marshall owns or leases property for public purposes. It allows certain property to be used at certain times for music and dancing. It too regulates this music and dancing to prohibit obscenity, indecency and profanity.

Also, the Court of Appeals noted that the Town's Friday night events are "are attended by community members of all ages", and "Community members were concerned about their children being exposed to Willis's dancing". Similarly, the Supreme Court noted that broadcast programming is "uniquely accessible to children" in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which is also known at George Carlin's seven filthy words case.

Some of the cases relied upon by the Court of Appeals are cases involving FCC regulations, including FCC v. Beach Communications, Inc., 508 U.S. 307 (1993) and Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989).

On the other hand, this case differs from broadcast cases in one key aspect. Willis was not performing for a broadcast audience. For example, she did not dance in a Superbowl half time performance.

After 26 pages of legal gyrations, the Court took the position that Marshall has not exposed itself to a First Amendment claim, for the reason that her dirty dancing is not expressive conduct. It first reasoned that "most forms of dance, whether ballet or striptease, when performed for the benefit of an audience, are considered expressive conduct protected by the First Amendment. ... Willis, however, was not a performer in any meaningful sense -- she was simply dancing for her own enjoyment". It held that her performance for the other citizens at the dance was not sufficient to make her movements expressive.

Second, the Court reasoned that the music performances were protected speech, and that Willis had a first amendment right to listen, but this right did not extend to her dancing to the music. Thus, it affirmed the summary judgment for the Town on the First Amendment claim.

And since the Court found no protected expressive conduct in her dirty dancing, it also held that there is no void for vagueness or overbreadth claim, or violation of a First Amendment right of association. Thus, even though the Town had no written rules, there is no vagueness problem, because there is no underlying protected right.

The Court also rejected Willis's right to travel, substantive due process, and procedural due process claims.

Finally, the Court addressed the Equal Protection claim. Since the Court found no protected First Amendment or other constitutional rights involved, it applied the lowest standard of review -- rational basis. This generally requires only that the classification be rationally related to a legitimate governmental interest. It then concluded that "a prohibition against lewd or suggestive dancing at the Depot is unquestionably valid. The Town opened up the Depot for the Friday night events to provide a venue for wholesome, family entertainment. Protecting children from inappropriate sexual displays at the Depot is, at the very least, a legitimate governmental interest. ... A ban on lewd or suggestive dancing is rationally related to that interest. Accordingly, to the extent that Willis challenges the Town's lewd dancing policy, that challenge fails."

However, the Equal Protection analysis did not end here. Willis had dancing partners, with whom she was "on the floor, simulating sexual intercourse", according to the Town. They were not banished. Hence, she may have been treated differently from others with whom she was "similarly situated".

The District Court decided the case on summary judgment after limited discovery. While there was evidence in the record that people had complained about Willis's conduct, there was no evidence in the record as to whether there were complaints against others. Hence, the Court concluded the summary judgment on this issue was premature.

At bottom, it vacated and remanded on the Equal Protection claim. Yet, in the future, the Town might prevail on an Equal Protection claim by banishing all similarly situated dancers.

Under the Court's analysis, the outcome might have been vastly different if Willis's bending over on the dance floor had been broadcast over the airwaves. In this case, Willis's gyrating would arguably have been "performed for the benefit of an audience", and thus been accorded First Amendment protection. And, this protection would have extended to the broadcaster, and to her. Moreover, this might also have elevated the Equal Protection analysis from rational basis to strict scrutiny, and breathed life into the vagueness and overbreadth claims.

The Court's analysis is essentially that whether purported expressive conduct is actually expressive for the purposes of the First Amendment is not determined on the basis of the content of the expression, or the mental state of the person making the expression. Rather, it is dependent upon the nature of the audience. Dancing in front of the good citizens of Marshall is not expressive conduct. Dancing on a stage in a strip joint, or on television, is expressive conduct.

The Court did not address what would be the consequence if Willis, or anyone else, brought a video camera and webcast or vodcast her gyrations.

Bush Nominates Bohigian to Head Market Access and Compliance

10/7. President Bush nominated David Steele Bohigian to be Assistant Secretary of Commerce for Market Access and Compliance. If confirmed by the Senate, he will replace William Lash, who has already resigned. See, White House release and release.

The Department of Commerce's (DOC) Market Access and Compliance (MAC) office is one of many federal government offices that is involved in seeking market access in foreign countries for U.S. firms and individuals, and in pursuing compliance by foreign nations with their trade agreements.

He is currently Assistant to the Secretary and Director of Policy and Strategic Planning at the DOC. In addition, a report [PDF] of the White House Office of Faith-Based and Community Initiatives states that "David Bohigian was named Director of the Center for Faith-Based and Community Initiatives at the Department of Commerce on July 16, 2004."

Before going to work in the Bush administration, he worked at Idealab, a company that starts and operates technology companies. Before that he worked at VenCatalyst, a company that he founded, and which was acquired by Idealab. Before that, he worked for Jefferson Partners. He also previously worked for former House Speaker Newt Gingrich (R-GA). He is an attorney.

Federal Election Commission (FEC) records show that a David S. Bohigian of Washington DC 20007 contributed $250 to Bush Cheney (Primary) Inc. on March 24, 2004. FEC records also show that on March 24, 2004 a Mrs. Catherine C. Bohigian of Washington DC 20007 contributed $250 to Bush Cheney (Primary) Inc. A Catherine Crutcher Bohigian is senior legal advisor to Federal Communications Commission (FCC) Chairman Kevin Martin. She works on media issues. Both Catherine Bohigian and Kevin Martin previously worked in the Washington DC office of the law firm of Wiley Rein & Fielding.

The Department of Commerce did not immediately return phone calls from TLJ regarding the nomination.

People and Appointments

10/7. The Senate confirmed David McCormick to be Under Secretary of Commerce for Export Administration, and Darryl Jackson to be Assistant Secretary of Commerce. McCormick now leads the Department of Commerce's (DOC) Bureau of Industry and Security (BIS), which was previously named the Bureau of Export Administration (BXA). See, story titled "Bush Nominates McCormick and Jackson for Export Control Office" in TLJ Daily E-Mail Alert No. 1,165, June 30, 2005.

10/7. President Bush announced the withdrawal of the nomination of Timothy Flanigan to be Deputy Attorney General (DAG). Bush announced his intent to nominate Flanigan on May 24, 2005. See, "People and Appointments" in TLJ Dailly E-Mail Alert No. 1,142, May 25, 2005. The Senate Judiciary Committee held a hearing on his nomination in July. The previous was James Comey. See, White House release. Bush has also had difficulty getting Alice Fisher confirmed as Assistant Attorney General in charge of the Criminal Division. Bush gave her a recess appointment during the August Congressional recess. President Bush first nominated Fisher back on March 29, 2005. See also, stories titled "Bush to Nominate Alice Fisher to Head DOJ's Criminal Division" TLJ Daily E-Mail Alert No. 1,107, April 1, 2005; and "Recess Appointments in the August Break" in TLJ Daily E-Mail Alert No. 1,192, August 10, 2005.

10/7. President Bush announced the withdrawal of the nomination of Philip Morrison to be an Assistant Secretary of the Treasury. See, White House release. Bush nominated Morrison back on May 26, 2005. This is the tax policy position, last held by Pam Olson. It has long sat vacant. Although, Greg Jenner was an acting assistant secretary for tax policy. On July 22, 2004, Bush announced his intent to nominate Jenner to be the Assistant Secretary. See, White House release. This position is significant because the person who holds this position, at least nominally, is responsible for formulating policy with respect to taxation that affects technology and innovation. However, the Bush administration has tended to formulate tax policy in the Executive Office of the President. This may be one reason why President Bush has had difficulties obtaining nominees, and getting them confirmed, by the Senate.

10/7. President Bush nominated Susan Schwab to be Deputy United States Trade Representative. She is the P/CEO of the University of Maryland Foundation, Inc. and USM Vice Chancellor for Advancement. She has also been Dean of the University of Maryland School of Public Policy. Earlier in her career, she worked as a trade negotiator at the Department of Commerce, and for former Sen. John Danforth (R-MO). She is the author of the 1994 book titled Trade Offs: Negotiating the Omnibus Trade and Competitiveness Act [Amazon]. She has also worked for Motorola. See, White House release and release, and USTR release.

10/7. President Bush nominated Eric Vitaliano to be a Judge of the U.S. District Court for the Eastern District of New York. Pursuant to bipartisan agreement that covers judicial appointments in the state of New York, this is a pick by Sen. Charles Schumer (D-NY). See, White House release. See also, Sen. Schumer's release of May 10, 2005.

10/7. President Bush nominated Antonio Fratto to be Assistant Secretary of the Treasury for Public Affairs. He is currently the acting Assistant Secretary of the Treasury for Public Affairs. See, White House release and release.

More News

10/7. Secretary of the Treasury John Snow will visit Japan on October 10-11, 2005, and the People's Republic of China of October 12-18, 2005. See, Treasury release.

10/7. The European Commission gave its approval to the merger of Verizon and MCI WorldCom. See, Verizon release and MCI release.

10/7. The U.S. Court of Appeals (9thCir) issued its opinion [25 pages in PDF] in Idaho Potato Commission v. GT Terminal Packaging, a case regarding certification marks. This case is State of Idaho Potato Commission v. GT Terminal Packaging, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct.Nos. 04-35229 and 04-35238, appeals from the U.S. District Court for the District of Idaho, D.C. Nos. CV 98-0088 DOC and CV 98-0088 DOC, Judge David Carter presiding. See also, the July 11, 2003 opinion [26 pages in PDF] of the U.S. Court of Appeals (2ndCir) in Idaho Potato Commission v. M&M Produce Farm and Sales (reported at 335 F.3d 130). And see, stories titled "Senators Introduce Bill Pertaining to Certification Marks" in TLJ Daily E-Mail Alert No. 980, September 21, 2004; and "Senate Approves Bill Regarding Certification Marks" in TLJ Daily E-Mail Alert No. 992, October 7, 2004. A related bill pending in the current Congress is HR 784. It would provide that service marks, collective marks, and certification marks are entitled to the same protections, rights, and privileges of trademarks.

Senate Banking Committee Holds Hearing on CFIUS

10/6. The Senate Banking Committee held a hearing titled "A Review of the CFIUS Process for Implementing the Exon-Florio Amendment". The secretive Committee on Foreign Investments in the U.S. (CFIUS) is the instrument by which the federal government blocks foreign investment in, and acquisition of, certain technology companies.

Sen. Richard Shelby (R-AL), the Chairman of the Committee, wrote in his opening statement that "improvements are needed". He said that the Government Accountability Office's (GAO) testimony "suggests that implementation of the Exon-Florio amendment may not protect national security". He added that "The Treasury Department may believe that the process is sufficiently transparent as it currently exists. This is the United States Senate committee with jurisdiction over the process in question, and we most certainly do not agree."

The GAO's Katherine Schinasi wrote in her prepared testimony [PDF] that "in light of differing views among Committee members about the scope of Exon-Florio -- specifically, what defines a threat to national security, we have suggested that Congress should consider amending Exon-Florio to more clearly emphasize the factors that should be considered in determining potential harm to national security."

She noted, for example, that some CFIUS member agencies, including the Department of the Treasury, "apply a more traditional and narrow definition of what constitutes a threat to national security -- that is, (1) the U.S. company possesses export-controlled technologies or items; (2) the company has classified contracts and critical technologies; or (3) there is specific derogatory intelligence on the foreign company." In contrast, other CFIUS members, including the Department of Defense and the Department of Justice, "argue that acquisitions should be analyzed in broader terms. According to officials from these departments, vulnerabilities can result from foreign control of critical infrastructure, such as control of or access to information traveling on networks."

She also wrote that "to provide more transparency and facilitate congressional oversight, we are suggesting that the Congress may want to revisit the criterion for reporting circumstances surrounding cases to the Congress. Currently, the criterion is a presidential decision. However, there have only been two such decisions since 1997 and thus only two reports to Congress".

House Commerce Committee Leaders Oppose UN Efforts to Regulate Internet

10/6. Leaders of the House Commerce Committee (HCC) wrote a letter to Michael Gallagher, head of the National Telecommunications and Information Administration (NTIA), and David Gross of the Department of State (DOS), opposing the United Nation's efforts gain regulatory authority over the operation and use of the internet. The letter evidences bipartisan Congressional support for the position of the NTIA and DOS.

The HCC leaders wrote that "it is essential that the underlying domain name system of the Internet remains stable and secure. As such, the United States should take no action that would have the potential to adversely impact the effective and efficient operation of the domain name system. Therefore, the United States should maintain its historic role in authorizing changes or modifications to the authoritative root zone file."

On July 18, 2005, the United Nation's (UN) Working Group on Internet Governance (WGIG) released a report [24 pages in PDF] titled "Report of the Working Group on Internet Governance". This report states the UN's case for acquiring vast power to regulate various aspects of the operation and use of the internet. See also, story titled "UN Seeks Vast Authority to Regulate Operation and Use of the Internet" in TLJ Daily E-Mail Alert No. 1,178, July 20, 2005.

The International Telecommunications Union (ITU) will hold the second phase of its meeting titled "World Summit on Information Society" (WSIS) in Tunis, Tunisia, on November 16-18, 2005. The UN report will be discussed. See also, WSIS web site.

Gallagher has previously stated that the US will not cede authority to the UN. See also, story titled "NTIA Rebuffs UN Efforts to Gain Control Over Internet Governance" in TLJ Daily E-Mail Alert No. 1,166, July 1, 2005. See also, story titled "Ambassador Gross Says UN Will Not Be in Charge of the Internet" in TLJ Daily E-Mail Alert No. 1,212, September 13, 2005.

The letter was signed by Rep. Joe Barton (R-TX) and Rep. John Dingell (D-MI), the Chairman and ranking Democrat of the HCC, and by Rep. Fred Upton (R-MI) and Rep. Ed Markey (D-MA), the Chairman and ranking Democrat of the Subcommittee on Telecommunications and the Internet.

The body of the letter contains four paragraphs. They are as follows:

"We are writing in support of the United States position on Internet governance as the Unites States delegation heads to Geneva for the Preparatory Committee for the United Nation's World Summit on Information Society.

Consistent with market-based policies and the belief that private sector leadership has allowed the Internet the flexibility to innovate and evolve, we believe in the continued growth of the Internet and the variety of applications it supports. Given the Internet's importance to the world's economy, it is essential that the underlying domain name system of the Internet remains stable and secure. As such, the United States should take no action that would have the potential to adversely impact the effective and efficient operation of the domain name system. Therefore, the United States should maintain its historic role in authorizing changes or modifications to the authoritative root zone file.

The Internet Corporation for Assigned Names and Numbers (ICANN) is the appropriate technical coordinator of the Internet domain name system. While improvements continue to be made to the ICANN model, the Bush Administration, and specifically the Department of Commerce, should continue to maintain strong oversight so that ICANN maintains its focus and meets it core technical mission.

Governments have legitimate interest in the management of their country code top-level domains. The Administration should continue to work with the international community to address these concerns, bearing in mind the fundamental need to ensure stability and security of the Internet domain name system."

Groups Seek Delay in Broadcast Flag Legislative Process

10/6. The Center for Democracy and Technology (CDT) and other groups wrote a letter [PDF] to leaders of the House Commerce Committee, and a similar letter [PDF] to leaders of the Senate Commerce Committee, arguing that the Congress should not now enact a broadcast flag mandate. Rather, there should first be hearings.

They write that "The broadcast flag regime would reach not just the design and manufacture of televisions, but also that of digital devices networked with televisions, including personal video recorders, personal computers, and Internet enabled mobile phones. In addition to involving the federal government in the process of technological innovation, there is a substantial risk that the flag regime would restrict users from engaging in a wide variety of fair uses critical to public affairs, education, and culture."

They want the Congress to examine numerous issues, including "What impact would the flag regime have on the development of new technologies?"

The signers of the letters are the CDT, American Library Association, American Association of Law Libraries, Association of Research Libraries, Consumers Union, Electronic Frontier Foundation, Medical Library Association, Public Knowledge, and the Special Libraries Association.

The Federal Communications Commission (FCC) adopted a broadcast flag rule, which was overturned by the U.S. Court of Appeals (DCCir), for lack of statutory authority. See, story titled "DC Circuit Reverses FCC's Broadcast Flag Rules" in TLJ Daily E-Mail Alert No. 1,131, May 9, 2005.

Digital Radio. The FCC's broadcast flag rule pertained to digital television. The letter also notes that "the record industry is advocating expanding flag legislation to authorize a comparable regime for digital radio -- an idea that has received virtually no congressional consideration to date."

In addition, one of the signers of these letters, Public Knowledge (PK), stated in a separate release that the Recording Industry Association of America (RIAA) "is floating on the Hill another version of content control language for digital radio".

PK also wrote that the RIAA's latest proposal is that the FCC be given authority "to adopt regulations requiring licensees broadcasting using digital audio broadcast systems to encrypt the transmission of copyrighted material and to regulate devices that receive such transmissions as may be necessary or appropriate to permit the reception of such encrypted transmissions and to implement any authorized copying and redistribution limitations authorized under such regulations as may be adopted pursuant to this section, provided, however, that the Commission may not authorize any digital audio broadcast transmission system that does not include such encryption at the source; the adoption of any digital audio regulations pursuant to this section shall not delay the adoption of final operational rules for digital audio broadcasting".

DHS Advisory Committee Recommends Conditions for Use of Commercial Data

10/6. Paul Rosenweig, Chairman of the Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee (DPIAC), wrote a letter to Secretary of Homeland Security Michael Chertoff, enclosing a copy of the DPIAC's report titled "The Use of Commercial Data to Reduce False Positives in Screening Programs". See, letter and report [18 pages in PDF].

This report only addresses the use of commercial databases to reduce false positives (the misidentification of an individual as a person on a terrorist watch list when that individual is not in fact a person on a terrorist watch list). The report does not address the use of commercial data to identify terrorists, or to reduce false negatives (the misidentification of an individual as not a person on a terrorist watch list when that individual is in fact a person on a terrorist watch list). The report states that the latter use "raises serious issues", and will be addressed in a subsequent DPIAC report.

The report recommends that commercial data be used with respect to false positive errors only when thirteen conditions are met. These are as follows.

"It is necessary to satisfy a defined purpose
The minimization principle is used
Data Quality issues are analyzed and satisfactorily resolved
Access to the data is tightly controlled
The potential harm to the individual from a false positive misidentification is substantial
Use for secondary purposes is tightly controlled
Transfer to third parties is carefully managed
Robust security measures are employed
The data are retained only for the minimum necessary period of time
Transparency and oversight are provided
The restrictions of the Privacy Act are applied, regardless of whether an exemption may apply
Simple and effective redress is provided
Less invasive alternatives are exhausted"

The report is dated September 28, 2005. The letter is dated October 6, 2005.

More News

10/6. The Copyright Office (CO) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (July 1, 2005) of new regulations governing the adjustment of the royalty rates for the cable statutory license. See, Federal Register, October 6, 2005, Vol. 70, No. 193, at Pages 58310 - 58311.

10/6. The U.S. Court of Appeals (2ndCir) issued its opinion [14 pages in PDF] in Music Choice. v. Broadcast Music, Inc., again vacating and remanding the District Court's rate setting decision regarding the price for Music Choice's licensing of BMI's music on its cable, satellite, and internet services. This case is U.S., plaintiff, Music Choice, movant/appellant v. Broadcast Music, Inc., defendant/appellee, U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 04-3444-CV, an appeal from the U.S. District Court for the Southern District of New York, Judge Stanton presiding. Judge Parker wrote the opinion of the Court of Appeals, in which Judges Wesley and Sotomayor joined.

10/6. The Senate Judiciary Committee (SJC) held an executive business meeting. The SJC held over its consideration of Timothy Flanigan to be the Deputy Attorney General, and Susan Neilson to be a Judge of the U.S. Court of Appeals (6thCir). The SJC also held over numerous bills related to personal data and privacy, including S 1789, the "Personal Data Privacy and Security Act of 2005", and S 751, the "Notification of Risk to Personal Data Act", and S 1326, the "Notification of Risk to Personal Data Act". It also held over two bills pertaining to trademark protection, S 1095, the "Protecting American Goods and Services Act of 2005", and HR 683, the "Trademark Dilution Revision Act of 2005". It also held over S 443, the "Antitrust Criminal Investigative Improvements Act of 2005". Most of these items have been on the SJC's agenda before, only to be held over.

10/6. The Office of the U.S. Trade Representative (USTR) released a statement by spokesman Christin Baker regarding EU support of the A350 Airbus. He wrote that "The United States has been clear in its message: Launch aid for the A350 or any other Airbus aircraft is completely unacceptable. The commitment of launch aid by any of the EU Member States is yet another step in the wrong direction. We want to negotiate an end to aircraft subsidies, but the commitment of aid makes that even harder to do. It's clear that the EU countries are unwilling to stop subsidizing Airbus. Therefore, we will continue to push ahead with our WTO case. We take no comfort from any offer to postpone the actual payment of the launch aid these countries have already promised to provide. The announcement of their commitment to back the A350 will affect Airbus's financing costs regardless of when they formally write the check." This statement pertains to US concerns about EU support for its aircraft industry, and the EU's concerns about US support for Boeing. This also implicates the US's FSC, ETI, and Jobs Act tax regimes. See, story titled "WTO Concludes AJCA Still Violates DSB's FSC/ETI Rulings" in TLJ Daily E-Mail Alert No. 1,225, October 3, 2005. And generally, failure by the US and EU to resolve trade disputes involving aircraft, and other non-technology sector disputes, has the potential to adversely impact technology related trade.

10/6. The Electronic Privacy Information Center (EPIC) published a report titled "Registered Traveler Card: A Privatized Passenger ID". This pertains to Verified Identity Pass, Inc.'s fee based program titled "Clear Registered Traveler" for air travelers. The EPIC complains that this program, which will involve the maintenance of electronic databases of personal information, will not be subject to the protections of the Privacy Act of 1974. It also states that "the program has a risk of mission creep -- a risk that information volunteered will be used for reasons not related to their original aviation security purposes". It suggests that this private program might be used for admission to office buildings and other locations. It concludes that "The development of such an unregulated ID system has significant implications for Americans. Entry into an office building or stadium should not be conditioned upon whether the person can afford a privatized ID card."

10/6. Anthony Wayne, Assistant Secretary for Economic and Business Affairs, gave a speech in Kiev, Ukraine, in which he discussed Ukraine's accession to the World Trade Organization (WTO) and enforcement of intellectual property rights.

10/6. The Federal Communications Commission (FCC) and Department of Justice (DOJ) filed their brief [56 pages in PDF] with the U.S. Court of Appeals (DCCir) in Mobile Relay Associates v. FCC. This is s petition for review of the FCC's orders that reorganized the 800 MHz spectrum band. This case is App. Ct. No. 04-1413.

10/6. The Department of Justice (DOJ) filed its brief [37 pages in PDF] with the U.S. Court of Appeals (9thCir) in U.S. v. San Francisco Liberation Radio. The U.S. filed a sealed complaint in U.S. District Court (NDCal) seeking writs and warrants for the seizure of the radio broadcasting equipment of San Francisco Liberation Radio, which operated without license from the Federal Communications Commission (FCC). The District Court issued writs and warrants, and U.S. Marshals seized the equipment. The District Court then granted summary judgment of forfeiture to the U.S. This appeal followed. The U.S. argues that the procedure followed comports with the requirements of due process.

10/6. David Gross (State Department) and Michael Gallagher (head of the National Telecommunications and Information Administration) spoke at a media roundtable of the Foreign Press Center in Washington DC regarding regulation of the internet. See, transcript.

Go to News from October 1-5, 2005.