|TLJ News from February 26-28, 2007|
People and Appointments
2/28. Oren Shaffer will retire as vice chairman and chief financial officer of Qwest Communications International Inc., effective April 1, 2007. John Richardson, who is currently controller and senior vice president of finance, will become executive vice president and chief financial officer. See, Qwest release.
2/28. The House amended and approved HR 556, the "National Security Foreign Investment Reform and Strengthened Transparency Act of 2007", a bill pertaining to the Committee on Foreign Investment in the United States (CFIUS) process. The vote on final passage was 423-0. See, Roll Call No. 110.
2/28. The Information Technology and Innovation Foundation (ITIF) released a report [PDF] titled "The 2007 State New Economy Index: Benchmarking Economic Transformation in the States".
4th Circuit Rules Person Seeking Anonymous usTLD Domain Name Registration Lacks Standing to Challenge NTIA's Disclosure Rules
2/27. The U.S. Court of Appeals (4thCir) issued its opinion [11 pages in PDF] in Peterson v. NTIA. affirming the District Court's denial of Peterson motion for a preliminary injunction of the National Telecommunications and Information Administration's (NTIA) requirement that people who register internet domains on the .us top level domain (usTLD) disclosure certain information.
Summary. Peterson argued that the NTIA's requirement violated his First Amendment right to engage in anonymous speech. The District Court denied the motion on several grounds, including Peterson's lack of standing. The Court of Appeals affirmed solely on the standing issue.
Unless the Court of Appeals on rehearing or en banc reverses itself, or the Supreme Court overturns, Peterson's action has failed. However, it should be noted that his lack of standing was based on facts peculiar to him, and that another plaintiff might be found to have standing to challenge the NTIA's requirement. That is, he argued that his freedom of speech rights were violated by a government policy that he disclose his identity in obtaining his web site registration.
However, before and after filing his complaint, he disclosed his identity and other personal information in his web site. The Court of Appeals reasoned that he could not have been injured by the NTIA requirement. In contrast, if another plaintiff, who seeks not only anonymous registration, but also engages in anonymous speech, were to file a complaint, then the Court of Appeals might find that standing exists.
Background. Nations control national TLDs. The US controls the usTLD through the Department of Commerce's (DOC) NTIA. Defendant Michael Gallagher was head of the NTIA at the time that the suit was filed. Defendant Carlos Gutierrez remains the Secretary of Commerce.
The NTIA contracted with defendant Neustar to manage the usTLD. It required Neustar to maintain and publish a public database of registrants' contact information, including the name and address of the domain name holder, as well as the name, telephone number, physical address and e-mail address for the technical and administrative contacts for the domain name. The contract also allows Neustar to subcontract with third parties to sell .us domain registrations, but requires any such contracts to incorporate all of the substantive disclosure requirements of the NTIA Neustar contract.
Neustar then contracted with GoDaddy, which such domain names without satisfying the disclosure requirement. Plaintiff Robert Peterson was one such registrant. The NTIA required GoDaddy to stop this practice and comply with its disclosure requirements.
District Court. Peterson filed a complaint in the U.S. District Court (EDVa) against the NTIA, Gallagher, Gutierrez, and Neustar. He alleged that the NTIA's disclosure requirement violates his First Amendment right to speak anonymously. He also alleged that the NTIA failed to engage in a rulemaking proceeding, with notice and comment, pursuant to the Administrative Procedure Act (APA), codified at 5 U.S.C. § 553. He sought a preliminary injunction against NTIA enforcement of its disclosure rule.
The District Court denied Peterson's request for a preliminary injunction, on three grounds. First, it held that the disclosure requirement was a content neutral time, place and manner restriction on speech that did not violate the First Amendment.
Second, it held that the NTIA's actions were exempt from notice and comment requirements under the government contracts exception to the APA. 5 U.S.C. § 553(a)(2) exempts from rulemaking proceedings "a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts".
Third, it held that Peterson lacks standing because he has not suffered an injury in fact. The District Court noted that since Peterson published identifying information about himself in his web site, he cannot be injured by the NTIA's disclosure policy.
Court of Appeals. The Court of Appeals affirmed the judgment of the District Court. However, it affirmed solely on the grounds that Peterson lacked standing.
The Court of Appeals first addressed first party standing -- standing based upon injury to the plaintiff. It wrote that "In order to have standing, a plaintiff must establish, inter alia, that he has suffered an injury in fact, that is, ``an invasion of a legally protected interest which is concrete and particularized, as well as actual or imminent´´", citing Friends of the Earth, Inc. v. Gaston Copper Recycling, Corp., 204 F.3d 149 (4th Cir. 2000).
It added that the plaintiff in an action against the government must demonstrate a realistic danger of sustaining a direct injury as a result of government action.
The Court of Appeals acknowledged that "The First Amendment protects anonymous speech in order to prevent the government from suppressing expression through compelled public identification", and that "Speech is chilled when an individual whose speech relies on anonymity is forced to reveal his identity as a pre-condition to expression."
However, the Court of Appeals continued that "the First Amendment protects anonymity where it serves as a catalyst for speech." In the present case, Peterson's "online postings are wholly inconsistent with his invocation of this right because they demonstrate that his expression did not rely on his ability to remain anonymous." That is, he identified himself in his online speech, so he cannot be injured by the NTIA policy requiring disclosure of his identity in obtaining his domain name registration.
The Court of Appeals added that Peterson "continued posting personally identifying information after filing this lawsuit".
The Court of Appeals then rejected third party standing -- standing to represent non-parties who have been injured by the complained of government action -- in a single paragraph.
The Electronic Privacy Information Center (EPIC) filed an amicus curiae brief [PDF] with Court of Appeals. See also, EPIC's web page on this case.
Related Domain Name Registration Debates. This is just one forum in which domain name registration, collection of information, and access to that information, have been debated.
The Internet Corporation for Assigned Names and Numbers (ICANN) has considered proposals to limit access to the WHOIS database of domain name registration information. The database is publicly available online.
However, many registrants, particularly those who engage in online fraud, spamming, and intellectual property theft, register with false information. See, story titled "GAO Reports There is Widespread Domain Name Registration Dishonesty" in TLJ Daily E-Mail Alert No. 1,268, December 8, 2005.
Some have argued that the database should only be accessible to law enforcement entities. For example, Marc Rotenberg, head of the EPIC, testified at a July 18, 2006, hearing of the House Financial Services Committee (HFSC) in opposition to the ICANN policy. He argued that the current policy allows spammers and other bad actors to access the WHOIS database. He said that as with state driver licensing regimes, web site registration information should be accessible only to law enforcement. See, prepared testimony [12 pages in PDF].
Some financial services entities have argued that they too should access to the database. Others have argued that the database should be available to all. See also, story titled "House Subcommittee Holds Hearing on Access to WHOIS Database" in TLJ Daily E-Mail Alert No. 1,423, August 2, 2006.
The Congress has also considered legislation that addresses registration of domain names with false information. For example, HR 3754, the "Fraudulent Online Identity Sanctions Act", which was enacted in the 108th Congress, did not create any new civil or criminal prohibition of registering a domain name with false information. But, it did create a rebuttable presumption of willfulness in trademark and copyright infringement cases, where the violation also involves registering a domain name with false information.
HR 3754 was enacted as Title II of HR 3632 (108th), the "Intellectual Property Protection and Courts Amendments Act of 2004". It is now Public Law No. 108-482. See also, story titled "Representatives Introduce Bill to Deter Domain Name Fraud" and story titled "House Subcommittee Holds Hearing on False Domain Name Registration Data" in TLJ Daily E-Mail Alert No. 830, February 5, 2004.
This case is Robert Peterson v. National Telecommunications and Information Administration, Michael Gallagher, Carlos Gutierrez, and Neustar, Inc., U.S. Court of Appeals for the 4th Circuit, App. Ct. Nos. 06-1216 and 06-1548, appeals from the U.S. District Court for the Eastern District of Virginia, at Alexandria, 1:06-cv-00096-GBL, Judge Gerald Bruce Lee presiding. Judge Duncan wrote the opinion of the Court of Appeals, in which Judges King and Shedd joined.
House Commerce Committee Targets Digital Currencies
2/27. Leaders of the House Commerce Committee (HCC) sent a letter containing written interrogatories to Secretary of the Treasury Henry Paulson.
The House Financial Services Committee (HFSC) has jurisdiction over financial services. Nevertheless, Rep. John Dingell (D-MI), Rep. Joe Barton (R-TX), Rep. Bart Stupak (D-MI), and Rep. Ed Whitfield (R-KY), the Chairmen and ranking Republicans on the full HCC, and its Subcommittee on Oversight and Investigations (SOI), signed the letter.
The letter propounds three interrogatories:
"Please describe any investigations, reviews, actions, initiatives, reports, or studies conducted by the Department of the Treasury (``Department´´), including the Office of Terrorism and Financial Intelligence, Office of the Comptroller of the Currrency (``OCC´´), and the Financial Crimes Enforcement Network (``FinCEN´´), with respect to digital currencies."
"Please describe the Department's jurisdiction over digital currencies."
"Please identify any Money Service Business (``MSB´´) that has registered with FinCEN, and whether that registration is current."
The letter states that "Pursuant to Rules X and XI of the Rules of the U.S. House of Representatives" the HCC and its SOI "are conducting an inquiry into illegal activity over the Internet", including "sexual exploitation of children over the Internet".
Rule X of the House Rules gives the HFSC jurisdiction over "banks and banking" and "money and credit, including currency".
The letter raises "the increased use of alternative payment systems, such as digital currencies, to purchase child pornography images over the Internet." It also references "the use of these alternative payment systems by individuals and firms dealing in the illegal importation of pharmaceuticals as well as child pornography into the United States."
The letter adds that "According to law enforcement agents who testified before the Subcommittee, digital currencies largely are unregulated by the United States or any other country in the world. Therefore, the agents often are unable to trace digital currency payments to their recipients who are either distributing or transmitting the images or processing the payments for the distributors. In addition, some digital currency companies either do not collect or do not retain any information relating to the identity of the account holder, further hampering law enforcement's ability to bring to justice the operators of commercial child pornography and other Web sites that promote contraband."
The HCC staffers handling this matter are Karen Christian (Democrats) and David Nelson and Steven Rangel (Republicans).
Rep. Boucher Introduces FAIR USE Act
2/27. Rep. Rick Boucher (D-VA), Rep. John Doolittle (R-CA), and Rep. Zoe Lofgren (D-CA) introduced HR 1201 [PDF], the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007" or "FAIR USE Act".
Rep. Boucher (at right) and Rep. Doolittle introduced a bill in the previous Congress that was also numbered HR 1201 (109th Congress). It was tiled the "Digital Media Consumers' Rights Act of 2005". The two Representatives also had a similar bills in the 107th and 108th Congresses. However, the just introduced bill has new language bill, but not a substantially different purpose or likely effect.
Moreover, this bill as introduced contains enough provisions to insure that a powerful coalition of copyright based industries will organize in effective opposition, as in previous Congresses.
Moreover, Rep. Boucher has abandoned the pretext that the bill is a consumer protection bill, rather than a copyright bill. Hence, this bill will go to the House Judiciary Committee (HJC), and its Subcommittee on Courts, the Internet, and Intellectual Property (SCIIP). The SCIIP is chaired by Rep. Howard Berman (D-CA), a leading advocate of the audio and video content industries.
The primary provisions of both the previous bills, and the just introduced bill, are amendments to 17 U.S.C. § 1201, to create a exceptions to the ban on circumvention.
Section 1201(a)(1) provides, in part, that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."
Section 1201(a)(2) provides, in part, that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title ..."
The key provision of the previous version of the bill was to provide that "it is not a violation of this section to circumvent a technological measure in order to obtain access to the work for purposes of making noninfringing use of the work". This language is not in the just introduced version of the bill.
However, the just introduced bill contains other exceptions to the ban on circumvention. The numerous exceptions enumerated in the current bill would have a similar effect to the previous bills.
The bill would also revert back from the MGM v. Grokster standard to the Sony v. Universal standard for hardware devices. It would also limit the availability of statutory damages for secondary infringement.
Exceptions to the Ban on Circumvention. The bill would add two new subsections (F) and (G) to Section 1201(a)(1). Both of these would provide further exceptions to the ban on circumvention.
First, the new subsection (F) would provide that "The prohibition contained in subparagraph (A) shall not apply to a person by reason of that person's engaging in a noninfringing use of any of the 6 classes of copyrighted works set forth in the determination of the Librarian of Congress in Docket No. RM 2005-11, as published as a final rule by the Copyright Office, Library of Congress, effective November 27, 2006 (71 F. R. 68472 (Nov. 27, 2006))."
Section 1201 also requires the Copyright Office (CO) to conduct a rulemaking proceeding every three years to designate exemptions to the anti-circumvention provisions.
The CO published a notice in the Federal Register (FR) that announces, describes, recites, and sets effective dates, for this rule. The effective date of this rule is November 27, 2006. It remains in effect until October 27, 2009. See, FR, November 27, 2006, Vol. 71, No. 227, at Pages 68472-68480.
While the Copyright Office's rule remains in effect for three years, the proposed statutory language would make these six exceptions permanent.
See also, story titled "Copyright Office Releases DMCA Anti-Circumvention Exemptions" in TLJ Daily E-Mail Alert No. 1,494, November 27, 2006.
These six exemptions relate to the use of rootkits on CDs and DVDs, e-book controls that affect the read aloud function, programs protected by dongles, programs that enable cellphones to connect to a wireless network (where circumvention is for the purpose of connecting to a network), programs and games in obsolete formats, and audiovisual works in university libraries.
Second, the new subsection (G) provides six additional exceptions. These are as follows:
(i) an act of circumvention that is carried out solely for the purpose of making a compilation of portions of audiovisual works in the collection of a library or archives for educational use in a classroom by an instructor;
(ii) an act of circumvention that is carried out solely for the purpose of enabling a person to skip past or to avoid commercial or personally objectionable content in an audiovisual work;
(iii) an act of circumvention that is carried out solely for the purpose of enabling a person to transmit a work over a home or personal network, except that this exemption does not apply to the circumvention of a technological measure to the extent that it prevents uploading of the work to the Internet for mass, indiscriminate redistribution;
(iv) an act of circumvention that is carried out solely for the purpose of gaining access to one or more works in the public domain that are included in a compilation consisting primarily of works in the public domain;
(v) an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; or
(vi) an act of circumvention that is carried out solely for the purpose of enabling a library or archives meeting the requirements of section 108(a)(2), with respect to works included in its collection, to preserve or secure a copy or to replace a copy that is damaged, deteriorating, lost, or stolen.
The fifth item, as it applies to "news reporting", is currently hypothetical. There is currently no record of access controls and the legislative ban on circumvention being used to prevent reporters from reporting, and publishers from publishing. Although, it is not unreasonable for Rep. Boucher to anticipate that this tactic will be employed in the future. It may also be the case that this is a class of circumvention that the courts would find to be protected by the First Amendment's "speech, or of the press" clause. Albeit, there are no cases on point.
The fifth item, as is applies to "scholarship", would create a huge loophole in the anti-circumvention regime for any publications consumed by schools and universities. The fifth item, in the context of "criticism", approaches the concept of creating a general fair use exception to the ban on circumvention. The book publishing and news industries, in particular, are likely to oppose these provisions. Similarly, the second item, regarding content skipping, and the third item, regarding circumvention by home networkers, will incur the wrath of the video and audio content industries. Moreover, allowing circumvention for all of these purposes would render the ban on circumvention ineffective. It is these sorts of provisions that prevented previous versions of Rep. Boucher's bills from moving in previous Congresses.
Limitation on Damages for Secondary Infringement. The bill would amend 17 U.S.C. § 504(c)(2) by adding the following language: "The court shall remit statutory damages for secondary infringement, except in a case in which the copyright owner sustains the burden of proving, and the court finds, that the act or acts constituting such secondary infringement were done under circumstances in which no reasonable person could have believed such conduct to be lawful."
The bill does not define the term "remit". Its usual meanings in law are either to refrain from enforcing or collecting, or to give back.
The bill does not define the term "secondary infringement". For example, the bill does not provide whether or not the term is equivalent to vicarious infringement, whether or not it encompasses contributory infringement, whether it would also include violations of Section 1201(a)(1) and (2), and whether it includes liability based upon an agency relationship.
However, Rep. Boucher wrote in a summary of the bill that this term includes "contributory infringement, inducement of infringement, vicarious liability, or other indirect infringement".
By amending Section 504(c)(2), which pertains to "statutory damages", and by using the words "statutory damages", this provision would appear not to affect awards of actual damages, profits, costs, or attorneys fees. Rep. Boucher wrote in his summary that "actual damages would continue to remain available to a person harmed by secondary infringement".
Also, this section of the bill contains no limitations upon the availability of injunctive relief.
Rep. Boucher explained the rationale for this provision in his summary. "Congress developed the statutory damages award process in a world of physical works, principally paper and vinyl. Today, in a world in which silicon is the principal medium of storage, statutory damages can be so large and disproportionate that entrepreneurs and consumer electronics and information technology companies are declining to bring new technology to market out of fear that they could be bankrupted by an adverse finding of secondary liability--even in cases in which they believed on the advice of counsel that their new innovative hardware or software products would be found legal if they survived costly litigation with its highly intrusive discovery."
Sony v. Universal and MGM v. Grokster. The bill would add a new subsection (g) to 17 U.S.C. § 501, which pertains to infringement of copyright. The new language is as follows: "CERTAIN HARDWARE DEVICES. --- No person shall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device or of a component of the device if the device is capable of substantial, commercially significant noninfringing use."
This would codify, in part, for hardware devices, the Supreme Court's 1984 opinion in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, which held that Sony did not contributorily infringe with its Betamax technology. This 5-4 opinion, has been widely praised by consumer electronics (CE) companies, criticized by some others, and modified by the Supreme Court.
Notably, this bill does not attempt to codify the Supreme Court 2005 unanimous opinion [55 pages in PDF] in MGM v. Grokster. See, story titled "Supreme Court Rules in MGM v. Grokster" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005. Rather, it would have the effect of overturning or minimizing the effect of MGM v. Grokster in the context of hardware devices.
Rep. Boucher wrote that this provision would "provide greater legal certainty to legitimate CE companies bringing new products to market in the wake of the uncertainty created by the" opinion in MGM v. Grokster. This suggests that Rep. Boucher is dissatisfied with the MGM v. Grokster standard, and wants to legislatively revert back to the older Sony v. Universal standard for hardware devices.
The proposed language would only affect hardware devices. Rep. Boucher added in his summary that this provision "is not intended to have any negative effect on the continued availability and application of the Betamax standard with respect to services and software products or to non-commercial activities." The bill does not define the term "hardware device".
It should be noted that MGM v. Grokster was a peer to peer service (P2P) case, rather than a hardware device case. Hence, under this bill, P2P services would remain subject to the MGM v. Grokster standard.
Legislative History of Rep. Boucher's Fair Use Bills. Rep. Boucher first introduced a DMCA related fair use bill in 2002. The following stories address Rep. Boucher's prior bills:
Comments on the Bill by Sponsors and Supporters. Rep. Boucher stated in a release that "The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use".
He added that "The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work ... Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market".
Rep. Doolittle stated in this release that "America can and must be a world leader in technological innovation ... This objective is hindered by the provisions in the DMCA that discourage the free flow of ideas and information. The FAIR USE Act removes those disincentives"
Gary Shapiro, head of the Consumer Electronics Association (CEA), stated in a release that "This bill will reinforce the historical fair use protections of constitutionally-mandated copyright law that are reflected in the Digital Millennium Copyright Act (DMCA). It ensures that consumers, libraries and educators will not be liable for otherwise legal conduct and it codifies the important principles of the Supreme Court's Betamax decision. H.R. 1201 provides much needed fair use protection at a time when some in the content industry are challenging consumer rights to make use of lawfully acquired content."
He added that "Fair use is central to innovation because it allows for the invention of new products for the benefit of the public, not just major copyright owners."
Matthew Schruers, of the Computer and Communications Industry Association (CCIA), stated in a release "This bill promises to remedy the worst excesses of our secondary liability doctrines and the DMCA... Instituting these reforms will help to ensure that copyright law protects artists without stifling innovation."
9th Circuit Holds That Web Based Software That Prepares Bankruptcy Petitions Is Unlicensed Practice of Law
2/27. The U.S. Court of Appeals (9thCir) issued its opinion [15 pages in PDF] in Frankfort Digital Services v. Kistler, affirming the judgments of the Bankruptcy Appeal Panel, and the Bankruptcy Court, that Frankfort Digital Services, Ltd., engaged in the unlicensed practice of law in the state of California in connection with its selling access for a fee to web based software that fills in bankruptcy petitions and schedules.
The Court of Appeals also affirmed the judgments that Frankfort operated as a bankruptcy petition preparer within the meaning of 11 U.S.C. § 110, violated the requirements thereof, and engaged in fraudulent, unfair, or deceptive conduct.
Frankfort is owned and operated by Henry Ihejirika, who is not an attorney. Frankfort did business as Ziinet.com and 700law.com. Frankfort's web sites collected fees from individuals seeking automated web based support in preparing bankruptcy petitions and schedules. The users paid a fee and provided data, and the web site software then created completed forms and schedules that the user could download, print out, sign, and file. The completed documents did not disclose that Frankfort assisted in preparing the documents, or that a fee was paid.
This case is Frankfort Digital Services, Ltd. and Henry Ihejirika v. Sara Kistler, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-17190.
EFF Files FOIA Suit To Obtain FISA Court's TSP Orders and Rules
2/27. The Electronic Frontier Foundation (EFF) filed a complaint [5 pages in PDF] in U.S. District Court (DC) against the Department of Justice (DOJ) alleging violation of the Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552, in connection with its failure to produce copies of records pertaining to a electronic surveillance program conducted by the National Security Agency (NSA).
The EFF seeks records regarding NSA surveillance of electronic communications, which the DOJ has stated involves communications where one party is inside of the U.S., and the other party is outside of the U.S. This program was first publicly disclosed in December of 2005 by the New York Times. The NSA and DOJ use the term "Terrorist Surveillance Program" or "TSP". Until recently, it was conducted without obtaining either Title III orders, or orders under the Foreign Intelligence Surveillance Act (FISA).
On January 17, 2007, the DOJ wrote in a letter [PDF] to the U.S. Court of Appeals (6thCir) that "a Judge of the Foreign Intelligence Surveillance Court has issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization, and that, as a result of these orders, any electronic surveillance that was occurring as part of the TSP will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court. In light of these circumstances, the President has determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires."
In addition, Attorney General Alberto Gonzales wrote to Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) regarding this matter.
See, stories titled "NSA to Obtain FISA Authority for Disputed Electronic Surveillance" in TLJ Daily E-Mail Alert No. 1,521, January 17, 2007, and "Gonzales Testifies Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 1,522, January 18, 2007.
White House Press Secretary Tony Snow also discussed this matter in a news briefing on January 17. He added that the FISA court has written for the DOJ rules and guidelines under which surveillance can be conducted.
Then, on January 23, 2007, the EFF submitted a FOIA request to the DOJ for "copies of all Foreign Intelligence Surveillance Court (``FISC´´) orders referenced by the Attorney General in his letter to Sens. Leahy and Specter, and all FISC rules and guidelines associated with such orders and/or referenced by Mr. Snow in the January 17 press briefing."
The DOJ has not given the EFF the requested records. The statutory time limit has expired. The EFF now wants the court to order the DOJ to process its requests and provide it with responsive records.
The EFF's counsel of record are Marcia Hoffman and David Sobel. Sobel stated in an EFF release that "While national security and law enforcement demand a limited amount of secrecy, Americans have the right to know the government's basic guidelines for this kind of invasive electronic surveillance of their personal communications ... The burden is on the Justice Department to justify its failure to disclose the information we've requested."
Many federal agencies routinely violate the FOIA, and federal courts rarely enforce it.
Also, the FOIA contains exceptions which might be asserted by the DOJ in this case. 5 U.S.C. § 552(b) provides, in part, as follows:
"This section does not apply to matters that are --
(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
. . .
(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings ..."
Back in 2002 the FISA Court of Review released, in redacted form, its opinion in In re: Sealed Case No. 02-001, 310 F.3d 717 (F.I.S. Ct. Rev. 2002). That the FISA Court of Review, on its own, released a redacted opinion, provides the EFF with the argument that the DOJ can now produce a copy of the order referred to in January. Also, if there are matters that should not be released, they can be redacted, leaving the remainder of the opinion available for public inspection.
This case is Electronic Frontier Foundation v. Department of Justice, U.S. District Court for the District of Columbia, D.C. No. 1:07CV00403, Judge James Robertson presiding.
People and Appointments
2/27. President Bush nominated Jeffrey Taylor to be the U.S. Attorney for the District of Columbia for the term of four years. See, White House release.2/27.
2/27. The U.S. Court of Appeals (4thCir) issued its opinion [8 pages in PDF] in USA v. Dalton. The Court of Appeals vacated and remanded a 105 month sentence for credit card fraud in violation of 18 U.S.C. § 1029(a)(2). Dalton used other people's credit cards to buy about $100,000 of computer programs over the internet, which he then sold via eBay. Dalton had eighteen prior convictions that involved fraud, and numerous other convictions and arrests. Hence, the District Court imposed an upward departure from the top of the advisory guidelines range. But, the Court of Appeals ruled that 105 months was too much, and unreasonable. This case is USA v. Thomas Joseph Dalton, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 05-5265, an appeal from the U.S. District Court for the District of South Carolina, at Charleston, D.C. No. CR-03-739, Judge David Norton presiding. Judge Wilkinson wrote the opinion of the Court of Appeals, in which Judges Motz and Gregory joined.
2/27. Rep. John Dingell (D-MI), the Chairman of the House Commerce Committee, gave a speech to the National Association of Broadcasters (NAB) in which he discussed the DTV transition. He said that "Based on the initial proposal from NTIA, the Administration appears to view this program as little more than an unwelcome homework assignment. By law, the coupon program starts in 10 months. We don’t yet have technical standards for the boxes. We don't know when the boxes will be ready. We don't know how much personal information consumers must disclose on the application. We don’t know whether retailers will maintain an adequate supply of boxes and report redemption rates in a timely manner." See also, HR 608, the "Digital Television Consumer Education Act of 2007", sponsored by Rep. Joe Barton (R-TX) and other Republicans. Rep. Dingell also stated that "I intend for our Committee to vigorously oversee the FCC as it once again turns its attention to media ownership issues."
Supreme Court Denies Certiorari in Copyright Preemption Case
2/26. The Supreme Court denied certiorari in Laws v. Sony Music Entertainment, a case regarding federal copyright preemption. See, Orders List [9 pages in PDF] at page 3.
This lets stand the May 24, 2006, opinion [21 pages in PDF] of the U.S. Court of Appeals (9thCir). The Court of Appeals held that Debra Laws' state law claims of invasion of privacy for the misappropriation of her name and voice, and misappropriation of her name and voice for a commercial purpose under California Civil Code § 3344, are preempted by 17 U.S.C. § 301. See, story titled "9th Circuit Attempts to Explain Copyright Preemption" in TLJ Daily E-Mail Alert No. 1,382, June 1, 2006.
There is a string of 9th Circuit opinions that fail to bring clarity to the subject of copyright preemption. See also, the September 13, 2001, opinion [27 pages in PDF], in Downing v. Abercrombie & Fitch, which is reported at 265 F.3d 994, and story titled "Ninth Circuit Rules in Downing v. Abercrombie" in TLJ Daily E-Mail Alert No. 268, September 14, 2001. And see, Midler v. Ford, 849 F.2d 460 (1989), and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (1992). The Supreme Court's denial of certiorari also lets stand the prevailing level of uncertainty in the 9th Circuit regarding the meaning of Section 301.
This case is Debra Laws v. Sony Music Entertainment, dba Epic Records, Sup. Ct. No. 06-481, a petition for writ of certiorari to the U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 03-57102. Judge Jay Bybee wrote the opinion of the Court of Appeals, in which Judges Jerome Farris and Ferdinand Fernandez joined. The Court of Appeals heard an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-03-02038-LGB, Judge Lourdes Baird presiding. See also, Supreme Court docket.
2/26. The Supreme Court denied certiorari in Fuji Kogyo v. Pacific Bay International, a trademark case regarding the registration of product designs as trademarks, to provide protection beyond the twenty year term of utility patents. See, Orders List [9 pages in PDF] at page 3. This lets stand the August 23, 2006, opinion [12 pages in PDF] of the U.S. Court of Appeals (6thCir). The District Court held that the trademarked product configurations were functional and therefore could not be protected. The Court of Appeals affirmed. This case is Fuji Kogjo Co., Ltd. v. Pacific Bay International, et al., Sup. Ct. No. 06-722, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit, App. Ct. No. 05-5854. The Court of Appeals heard an appeal from the U.S. District Court for the Middle District of Tennessee, at Nashville, D.C. 02-00042, Judge William Haynes presiding. See also, Supreme Court docket.
2/26. President Bush signed HR 742, the "Antitrust Modernization Commission Extension Act of 2007". This act merely extends for 30 days the term of the Antitrust Modernization Commission (AMC). See, White House release.
Go to News from February 21-25, 2007.