TLJ News from May 11-15, 2006

Supreme Court Rules on Availability of Injunctive Relief in Patent Cases

5/15. The Supreme Court issued its opinion [12 pages in PDF] in eBay v. MercExhange, vacating the judgment of the U.S. Court of Appeals (FedCir). The Court held that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases. See, full story.

Supreme Court Denies Certiorari in P2P Music Infringement Case

5/15. The Supreme Court denied certiorari in Gonzalez v. BMG Music, a copyright infringement case involving peer to peer software. See, Order List [13 pages in PDF] at page 3, and Supreme Court docket. This lets stand the judgment of the U.S. Court of Appeals (7thCir).

The Court of Appeals held in its December 9, 2005, opinion [9 pages in PDF] that individuals who use Grokster's peer to peer software to download copyrighted music files are direct infringers, and that their use does not constitute fair use. See also, story titled "7th Circuit Holds Downloading Copyrighted Music with P2P Software is Not Fair Use" in TLJ Daily E-Mail Alert No. 1,270, December 12, 2005.

The Supreme Court wrote in its June 27, 2005, opinion [55 pages in PDF] in MGM v. Grokster that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

However, that case was a dispute between copyright holders and P2P companies. None of the individuals who downloaded copyrighted music were parties to that case. The Supreme Court held that the P2P services could be held vicariously liable for the direct infringement by others. The District Court held that individuals who use the Grokster software to download copyrighted files directly infringe copyrights. However, the District Court's holding was not an appeal issue before the Court of Appeals or the Supreme Court.

The District Court and Court of Appeals rulings in the present case do set the precedent that the individual copiers are infringers, and that the fair use defense fails.

This case is BMG Music, Inc. v. Celilia Gonzalez, Sup. Ct. No. 05-1172, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 05-1314. Judge Frank Easterbrook wrote the opinion of the Court of Appeals, in which Judges Evans and Williams joined. The Court of Appeals heard an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 6276, Judge Blanche Manning presiding.

Copps Releases Statement Regarding Privacy

5/15. Federal Communications Commission (FCC) Commissioner Michael Copps released a statement [PDF] regarding the article published on May 11, 2006, by the USA Today, titled "NSA has massive database of Americans' phone calls", and its relation to the FCC CPNI proceeding.

The article, authored by Leslie Cauley, states that "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY."

Michael CoppsCommissioner Copps (at right) wrote that "Recent news reports suggest that some -- but interestingly not all -- of the nation's largest telephone companies have provided the government with their customers' calling records. There is no doubt that protecting the security of the American people is our government's number one responsibility. But in a Digital Age where collecting, distributing, and manipulating consumers' personal information is as easy as a click of a button, the privacy of our citizens must still matter."

He added that "To get to the bottom of this situation, the FCC should initiate an inquiry into whether the phone companies' involvement violated Section 222 or any other provisions of the Communications Act. We need to be certain that the companies over which the FCC has public interest oversight have not gone -- or been asked to go -- to a place where they should not be."

Section 222. 47 U.S.C. § 222(c) requires carriers to keep confidential the customer proprietary network information (CPNI) that they possess.

Commissioner Copps referred to this section in his statement. However, he was vague. For example, he wrote that "the FCC should initiate an inquiry". He was not clear as to whether he advocates opening a new proceeding and issuing a request for comments via a notice of inquiry (NOI), whether he advocates an inquiry by the FCC's Enforcement Bureau with reference to a possible enforcement action against the companies that have provided data to the NSA, whether he advocates expanding the scope of the FCC's ongoing Section 222 proceeding, or what.

The FCC adopted a Notice of Proposed Rulemaking (NPRM) in February. It was a delayed response to the August 30, 2005, petition for rulemaking filed by the Electronic Privacy Information Center's (EPIC). The FCC acted after substantial media reporting of sale of consumer phone records caused the Congress to take interest in the issue. (There is also pending legislation. See, for example, HR 4943, the "Prevention of Fraudulent Access to Phone Records Act".)

The FCC's open rulemaking proceeding is Docket No. 96-115 and RM-11277. The FCC adopted its NPRM on February 10, 2006. See, story titled "FCC Adopts NPRM Regarding Privacy of Consumer Phone Records" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006. It released the text [34 pages in PDF] on February 14, 2006. The NPRM is FCC 06-10.

Second, he referenced "companies over which the FCC has public interest oversight". This skirts one of the questions at issue in the ongoing Section 222 proceeding. While Section 222 is clear that it applies only to a "telecommunications carrier", and the Communications Act defines this term, the FCC has a recent history of ignoring statutory definitions, and the meanings of words in the English language, to place companies and technologies within the category of "carriers" to suit its policy objectives, and to simultaneously place them outside of the category of "carriers" to suit its other policy objectives.

Moreover, the FCC has indicated that it might engage in further definitional shell games in its Section 222 proceeding. Its NPRM asks, "Should any requirements the Commission adopts in the context of the present rulemaking extend to VoIP service providers or other IP-enabled service providers?" It adds that "Our action pertains to VoIP services, which could be provided by entities that provide other services such as email, online gaming, web browsing, video conferencing, instant messaging, and other, similar IP-enabled services." See also, story titled "FCC Rulemaking Proceeding on CPNI May Extend to Internet Protocol Services" in TLJ Daily E-Mail Alert No. 1,310, February 15, 2006.

The Department of Justice (DOJ) and other government agencies filed a comment [17 pages in PDF] with the FCC on April 28, 2006, in which they argued for expansion of the class of covered entities.

However, they went further, and asked for a data retention mandate. That is, the NPRM asked if the FCC should adopt a data destruction mandate. This had been recommended by the EPIC in its original petition for a rulemaking. The DOJ argued that "For law enforcement, such CPNI is an invaluable investigative resource, the mandatory destruction of which would severely impact the Departments' ability to protect national security and public safety."

However, the DOJ went even further, and suggested that records that are not now being collected must be collected and made available to the government. It wrote that "Today, many modern communications service providers maintain sensitive records about their customers' private communications, yet these new carriers have not been made subject to the rules that have traditionally governed CPNI. In addition, as carriers covered by the Commission's existing rules have increasingly moved away from classic billing models, in which charges are itemized and billed by type of service, to non-measured, bundled, and flat-rate service plans, some carriers have claimed that call records under such new plans are not covered by Section 42.6 because they are not ``toll records.´´ Therefore, these carriers have argued that no records need be retained. This has significantly diminished the availability of call records that were historically made available to law enforcement, pursuant to lawful process, as traditional ``billing records´´ under the Commission's rules."

The DOJ comment of April 28 may be related to Attorney General Alberto Gonzales' speech on April 20. He advocated a data retention mandate for internet service providers. See, story titled "Gonzales Proposes Data Retention Mandate, Web Site Labeling, and Ban on Deceptive Source Code" in TLJ Daily E-Mail Alert No. 1,357, April 25, 2006.

It appears that the DOJ seeks to convert Section 222, and the EPIC's petition for rulemaking, away from their purposes of protecting consumer privacy, into a record collection, retention, and distribution mandate, at the expense of consumer privacy.

Whether Commissioner Copps and the other FCC Commissioners will allow its implementation of the statute, and its rulemaking proceeding, to be so converted is yet to be seen.

Copps' Voting Record. While his rhetoric advocates the "privacy of our citizens" in the context of government access to records, his voting record at the FCC has been the opposite.

He has a record of voting for items that expand the surveillance and record collecting powers and capabilities of law enforcement and intelligence agencies. Moreover, most of these items include rules or declarations that are either without statutory authority, or are contrary to applicable statutes.

First, for example, Copps voted for the FCC's August 2004 CALEA NPRM & DR. See, story titled "FCC Adopts NPRM and Declaratory Ruling Regarding CALEA Obligations" and story titled "FCC Legislatively Expands Scope of CALEA Obligations" in TLJ Daily E-Mail Alert No. 953, August 5, 2004; and series of articles in TLJ Daily E-Mail Alert 960, August 17, 2004.

Second, Copps voted for the FCC's May, 2005, VOIP E911 order. See, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order" in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005; and story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

Third, Copps voted for the FCC's August 5, 2005 CALEA order and NPRM. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005.

Fourth, he voted for the FCC's August 5, 2005, policy statement [3 pages in PDF]. This statement addresses network freedoms of consumers, but includes an extraneous provision, "subject to the needs of law enforcement". See, story titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005.

Fifth, he voted for the FCC's May 3, 2006, CALEA order.

People and Appointments

5/15. Paul McNulty was sworn in as Deputy Attorney General. See, speech by Attorney General Alberto Gonzales.

5/15. David Meyer was named Deputy Assistant Attorney General (DAAG) in charge of civil enforcement at the Department of Justice's (DOJ) Antitrust Division (ATR). A DOJ release states that he will oversee three of the Division's civil sections. The ATR's organizational chart lists three sections in civil enforcement: Litigation I, Litigation II, and Litigation III. However, the ATR does not now follow its own organizational structure. The ATR web site states that "These sections assess the economic impact of proposed mergers in unregulated industries and act to clear the proposed mergers, negotiate a restructuring of the proposals, or file suit to block the mergers. They drive the Division's enforcement efforts by actively developing new, significant, and high-impact cases, including cases involving international markets. They also investigate and prosecute civil non-merger cases in all sectors of the economy."  The ATR organizational chart also provides that there is another DAAG in charge of regulatory matters who oversees the Telecommunications and Media Enforcement Section and the Networks and Technology Enforcement Section. An ATR spokesman told TLJ that "it hasn't been determined" which sections Meyer will oversee, and which sections DAAG Bruce McDonald will oversee. Meyer has worked since 1989 in the Washington DC office of the law firm of Covington & Burling (CB), in its Antitrust and Consumer Law Practice Group. He also worked at the ATR when Charles Rule was the AAG. See, CB release.

Kent Sullivan5/15. Greg Abbott, Attorney General of the State of Texas, named Judge Kent Sullivan (at right) to be the First Assistant Attorney General. Sullivan will begin on June 12. See, release. He was presiding judge of the 80th Judicial District Court of Harris County, which includes Houston. He previously worked for the law firm of Butler & Binion in Houston. He replaces Barry McBee, who will become Vice Chancellor for Governmental Affairs at the University of Texas system. The appointment may be significant because Texas has become active in technology related litigation in recent years. In March of this year, in Texas v. EMO, Texas filed a civil complaint [13 pages in PDF] in state court against EMO Corporation, and several of its officers and directors, alleging violation of the Texas Finance Code in connection with their alleged operation of an unlicensed internet payment service. See, story titled "Texas Sues to Shut Down Unlicensed Online Payment Service" in TLJ Daily E-Mail Alert No. 1,329, March 14, 2006. Late last year, in Texas v. Sony BMG, Texas filed a civil complaint [14 pages in PDF] in state court regarding Sony BMG's sale of music CDs that install software on purchasers' computers, without notice to purchasers. See, story titled "Texas Sues Sony BMG Alleging Violation of Texas Spyware Statute" in TLJ Daily E-Mail Alert No. 1,258, November 22, 2005, and story titled "Texas Amends Spyware Complaint Against Sony BMG" in TLJ Daily E-Mail Alert No. 1,280, December 29, 2005. Earlier last year, in Texas v. Vonage, Texas filed a civil complaint [14 pages in PDF] in state court against Vonage alleging violation of the Texas Deceptive Trade Practices Act (DTPA) in connection with Vonage's marketing and sale of voice over internet protocol (VOIP) service. The complaint alleged that Vonage engaged in deceptive marketing of its VOIP service by failing to clearly inform consumers of the difference between its 911 service and "traditional 911 service". See, story titled "Texas Sues Vonage Over Marketing of VOIP Service" in TLJ Daily E-Mail Alert No. 1,101, March 23, 2005. Also, in 2004, Texas was a plaintiff in the failed lawsuit against Oracle seeking to block its acquisition of PeopleSoft on antitrust grounds. See, stories titled "DOJ Loses Oracle Case" in TLJ Daily E-Mail Alert No. 974, September 10, 2004, and "Antitrust Division Sues Oracle to Enjoin Its Proposed Acquisition of PeopleSoft" in TLJ Daily E-Mail Alert No. 846, March 1, 2004.

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5/15. The Supreme Court issued its opinion [12 pages in PDF] in eBay v. MercExhange, vacating the judgment of the U.S. Court of Appeals (FedCir). The Supreme Court held that the traditional four factor framework that guides a court's decision whether to grant an injunction applies in patent cases. Justice Clarence Thomas, who wrote the opinion of the Court, wrote that "a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." That is, injunctions should not issue automatically following a finding of infringement.

Tate Discusses Role of Telecom Regulators

5/12. Federal Communications Commission (FCC) member Deborah Tate gave a speech [PDF] at the Accenture Global Convergence Forum 2006 in Beijing, PR China. She described the appropriate role of a telecommunications regulatory.

She stated that she believes in "regulatory humility", removing "unnecessary regulatory burdens", "regulatory parity", and technology neutrality.

Deborah TateTate (at right) said that "regulatory policy is one of the most closely watched and important factors to investors", and that "Investors have consistently stated that the independence and quality of the regulator and its decision-making are key factors in an investment decision".

She added that "Our end game should be to put in place a regulatory framework that creates opportunities for the private sector to invest; so innovators can innovate."

She also said that the FCC faces "the challenging task of balancing the interests of an array of different stakeholders, from within and outside our national borders. We are accountable to the telecommunications and media industry, to advocacy groups representing consumers and the public interest, to the investment community, to consumers with disabilities who may need new forms of technology and equipment, to rural telecommunications consumers, to the international trade community, and, most importantly, to our citizens generally."

Tate then discussed those areas where she does not oppose regulatory burdens. First, she said that "Regulators have an obligation to ensure that public safety needs continue to be met as new, innovative services develop and proliferate. If there is a market failure or companies cannot come to commercially negotiated resolution -- our role may be as a facilitator."

Second, she advocated regulation of VOIP. She said that "We may all know that VoIP and plain old telephone service have many differences, but most Americans don't." This, she said, justifies the FCC VOIP regulation order. (This order is FCC 05-116 in WC Docket No. 04-36 and WC Docket No. 05-196. See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order" in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005; and story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.)

Tate's explanation in this speech of the appropriate role of a telecommunications regulator has many common points with speeches that one of her Republican predecessors, Kathleen Abernathy, gave early in her tenure. Both spoke of a light regulatory touch, regulatory parity, competition, and the importance of incenting investment and innovation. However, Abernathy also used to state that the FCC had a duty to follow Congressional statutes and court rulings. Tate said nothing about regulators being bound by statute or case law in the prepared text of her speech.

FCC Reports Another Decline in Phone Subscribership

5/12. The Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division (IATD) released a report [51 pages in PDF] titled "Telephone Subscribership in the U.S.". See also, FCC release [PDF].

The FCC reports that as of November of 2005, total telephone penetration in the U.S. was 92.9%. This includes both wireline and wireless phones. This is down from the previous report, for July of 2005. While penetration increased between the March 2005 and July 2005 reports, there is a three year downward trend.

Penetration peaked at 95.5% in March of 2002, and again in March of 2003. The FCC report offers no explanation for this trend. There are many possible explanations.

E-Mail and Other Substitutes. First, one hypothesis is that some consumers could be terminating their phone service because they are substituting the use alternative means of communicating, such as e-mail and instant messaging, and even delivery services.

Wireless Service and Disconnects. Second, the penetration rate could be decreasing because of the migration from wireline carriers to wireless carriers, and the higher bills and more aggressive involuntary disconnect policies of wireless carriers. This is a hypothesis advanced by David Gable, a professor of economics at Queens College in New York City.

He points to the variation among states in the decline in the penetration rate. He observes that the decline is occurring in states other than those served by Qwest. He notes too that Qwest owns no wireless carrier. His argument is that many young people obtain service, run up large bills, which they cannot pay, and are disconnected. Moreover, they cannot switch back to wireline service with their carrier unless they pay off their delinquent wireless bill. But, Qwest has no wireless service.

A corollary to this hypothesis might be that wireless carriers have higher disconnect rates, so that as more people shift to wireless service, more people will be without service at any point in time.

Another corollary to this hypothesis might be that the overall decline is also the result of wireline service providers becoming more aggressive in terminating service as a result of increasing competition.

Unreported VOIP. Third, some consumers may be switching to various forms of voice over internet protocol (VOIP) service, and do not understand this to be covered by the survey question. Respondents are asked "Does this house, apartment, or mobile home have telephone service from which you can both make and receive calls? Please include cell phones, regular phones, and any other type of telephone." Neither the initial question, nor follow up questions, reference VOIP.

A corollary to this hypothesis might be that the uptick in the previous FCC penetration report was caused by consumers who resubscribed to POTS service following the FCC's action against VOIP service providers in its VOIP E911 order. On May 19, 2005, the FCC adopted a First Report and Order and Notice of Proposed Rulemaking in its proceeding regarding the regulation of internet protocol (IP) enabled services that applied E911 regulatory requirements to interconnected VOIP services providers in draconian fashion. The FCC released this order on June 5, 2005. The Census Bureau surveyed consumers again in July of 2005. This order is FCC 05-116 in WC Docket No. 04-36 and WC Docket No. 05-196. See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order" in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005; and story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005.

Privacy and Misreporting. Fourth, the downward trend could be caused by misreporting by consumers. That is, consumers with phone service could be telling the Census Bureau's survey takers with increasing frequency that they have no phone service. Consumers might mislead government survey takers out of a desire to protect their privacy. Consumers might anticipate, for example, that if they answer in the affirmative, follow up questions will request their phone number, service provider, and so forth.

Consumers may also be increasingly using, and not reporting to the Census Bureau, anonymous pre-paid wireless service. Publicity regarding pretexting to obtain phone records, sale of consumer phone records, the USA PATRIOT Act, extension of the USA PATRIOT Act, and the FCC's CALEA proceeding, may be influencing consumers' purchasing and survey response behavior.

If this is the case, then the disclosure last week by USA Today of the NSA's national phone call database, and the December 2005 disclosure by the New York Times regarding the NSA's extrajudicial intercepts of electronic communications between people inside and outside of the U.S., would likely further decrease the the apparent (but not real) penetration rate. (Both of these disclosures came after the Census Bureau collected the data used in the FCC's just released report.)

Under this fourth hypothesis, the penetration of voice capable communications services is not on the decline. Rather, consumers trust in their government and in most telecommunications carriers is on the decline.

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5/12. The Federal Communications Commission (FCC) released the text [83 pages in PDF] of its "Second Report and Order and Memorandum Opinion and Order" in its proceeding related to the Communications Assistance for Law Enforcement Act (CALEA). It contains many items that the FCC did not disclose at the May 3, 2006, meeting at which this item was adopted.

5/12. The Department of Justice's (DOJ) Antitrust Division, various states, and Microsoft filed a pleading with the U.S. District Court (DC) titled "Joint Status Report on Microsoft's Compliance with the Final Judgments". The original final judgment expires later this year. In this report the parties to the case agree to a two year extension of part of the final judgment. This requires approval by the District Court. The District Court will hold a status conference at 10:00 AM on May 17, 2006. This is D.C. No. 1-1998-cv-01232-CKK and 1-1998-cv-01233-CKK, consolidated. The DOJ stated in a release that "Microsoft has agreed to a two-year extension of the communications protocol licensing program contained in Section III.E of the final judgment, along with all of the final judgment's enforcement provisions. Microsoft has also agreed that the Department and state antitrust enforcement agencies may, at their discretion, apply to the court in Fall 2009 for an additional extension of all or part of the extended provisions of the final judgment for a period of up to three additional years, through November 2012."

5/12. The U.S. District Court (EDVa) sentenced Kenneth Kwak to five months in prison, and other penalties, following his previous guilty plea to one count unauthorized access to a protected computer at the Department of Education. Kwak, a government official, placed software on his superior's computer that enabled Kwak to read his superior's e-mail communications. See, DOJ release.

House Democrats Write Regarding NSA Phone Records Database and Phone Privacy

5/11. Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, and all of the other Democrats on the HCC, wrote a letter [PDF] to Rep. Joe Barton (R-TX), the Chairman of the HCC, regarding HR 4943, the "Prevention of Fraudulent Access to Phone Records Act".

Rep. Dingell wrote that "The Committee on Energy and Commerce recently passed unanimously H.R. 4943, the Prevention of Fraudulent Access to Phone Records Act, that would protect consumers from having their phone calls accessed without their permission as is currently happening. Although it was scheduled for a vote on the House floor on May 2, 2006, it was pulled because of undisclosed concerns of the House Intelligence Committee that may relate to the above-mentioned article. As you know, we have had a good history of working on privacy and consumer issues together. With these recent revelations, we respectfully request that a full Committee hearing be held as soon as possible. We believe it is important to our constituents that we continue the fight to protect their rights."

The HCC approved a committee print of this bill on March 8, 2006.

Section 101 of the bill prohibits obtaining phone records under false pretenses. It targets the practice of pretexting.

It also contains an exception for law enforcement. It provides that "No provision of section 101 shall be construed so as to prevent any action by a law enforcement agency, or any officer, employee, or agent of such agency, from obtaining or attempting to obtain customer proprietary network information from a telecommunications carrier in connection with the performance of the official duties of the agency, in accordance with other applicable laws."

The bill also revises 47 U.S.C. § 222(c), which requires carriers to keep confidential customer proprietary network information (CPNI).

As amended, it would provided that "Except as required by law or as permitted under the following provisions of this paragraph, a telecommunications carrier that receives or obtains individually identifiable customer proprietary network information (including detailed customer telephone records) by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to such information or records in the provision by such carrier of -- (i) the telecommunications service from which such information is derived; or (ii) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories."

The bill also provides that "A telecommunications carrier may only use detailed customer telephone records through, or disclose such records to, or permit access to such records by, a joint venture partner, independent contractor, or any other third party (other than an affiliate) if the customer has given express prior authorization for that use, disclosure, or access, and that authorization has not been withdrawn."

Neither Section 222(c), as currently written, or as it would be amended by HR 4943, provide an exception for disclosure to law enforcement or intelligence agencies. Arguably, the government would still have to follow one of the relevant procedures contained in Title 18 (criminal code) or the FISA provision of Title 50 to obtain CPNI from carriers.

It is perhaps a related event that the FCC, which has a parallel CPNI rulemaking proceeding, has extended the comment periods. The initial comment and reply comment deadlines were April 14 and May 15. On April 11, the FCC issued its notice of extension [PDF], extending deadlines to April 28 and May 19.

The FCC granted a request for an extension [PDF] that cited only flimsy grounds, such as "spring vacation for family members". The request was filed by Laura Parsky, a Deputy Assistant Attorney General in the Department of Justice's (DOJ) Criminal Division, and others. Parsky has for years worked on surveillance issues, including CALEA. She also testified at a hearing of the House Judiciary Committee's Subcommittee on Crime regarding government seizure of stored telephone calls. See, story titled "House Crime Subcommittee Holds Hearing on § 209 of PATRIOT Act, Stored Communications and VOIP" in TLJ Daily E-Mail Alert No. 1,125, April 29, 2005.

Qwest wrote in its April 28, 2006, comment [43 pages in PDF] to the FCC that "Qwest also cooperates with law enforcement in the prosecution of illegal conduct as required or permitted by law." (See, page 32.) The NSA's collection of records for its phone call database could not be described as "prosecution of illegal conduct".

The DOJ wrote in its April 28, 2006, comment [17 pages in PDF] that "access to communications records is a critical tool in the fight against global terrorism", and that "CPNI has enabled law enforcement and national security agencies to prevent terrorist acts and acts of espionage".

The DOJ raised a number of specific issues. It opposes the data destruction proposal. It also wants the FCC to broaden the set of service providers that are covered by the FCC's CPNI rules. The DOJ also complains that some service providers that have flat rate service plans do not keep detailed phone call records. It wants more service providers to keep records. It wants them to keep call by call records. It wants them not to destroy the records. And, it wants access to this data.

Bush Responds to USA Today Story Regarding NSA Database of Phone Calls

5/11. President Bush spoke briefly at the White House to defend the surveillance activities of the National Security Agency (NSA). See, transcript.

He said that "Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America." He was speaking of an article published on May 11, 2006 by the USA Today, a daily newspaper, in both its paper edition, and in its web site.

The USA Today article, titled "NSA has massive database of Americans' phone calls", states that "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY."

The article adds that "Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information."

See, full story.

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5/11. The U.S. Court of Appeals (FedCir) issued its opinion [PDF] in Inpro II Licensing v. T-Mobile, a patent case involving personal digital assistants (PDAs) in which the Court of Appeals affirmed the District Court's judgment of noninfringement. This case is Inpro II Licensing S.A.R.L. v. T-Mobile USA, Inc., Research in Motion, Ltd, and Research in Motion Corporation, App. Ct. No. 05-1233, an appeal from the U.S. District Court for the District of Delaware, D.C. No. 03-1074. Judge Pauline Newman wrote the opinion of the Court of Appeals, in which Judges Dyk and Prost joined.

5/11. The Progress and Freedom Foundation (PFF) released a paper [5 pages in PDF] titled "The DMCA Dialectic: Towards Constructive Criticism". The author is Solveig Singleton of the PFF.

5/11. The Federal Communications Commission (FCC) released an Order [8 pages in PDF] that adopts a consent decree affecting Pilot Travel Centers LLC. The consent decree, which is attached to the order, states that pertains to marketing of Amateur Radio Service (ARS) devices products that can easily be converted by consumers into Citizens Band (CB) devices. ARS devices are not subject to the FCC's equipment authorization rules, while CB devices are. Pilot agreed to get FCC approvals, and pay a $90,000 fine (identified in the consent decree as a "voluntary contribution"). The FCC adopted this order on May 1, and released it on May 11. It is FCC 06-53 in File No. EB-03-DL-099.

5/11. The Department of Commerce's (DOC) Technology Administration published a notice in the Federal Register that states that the Secretary of Commerce has renewed the Charter for the National Medal of Technology Nomination Evaluation Committee. See, Federal Register, May 11, 2006, Vol. 71, No. 91, at Page 27467. See also, stories titled "Bush Awards National Medals of Technology and Science" and "Commentary: National Medal of Technology Program" in TLJ Daily E-Mail Alert No. 1,312, February 17, 2006.

Go to News from May 6-10, 2006.