Department of State Adopts Rules for Vicinity RFID Passport Cards

12/31. The Department of State (DOS) published a notice in the Federal Register that announces, describes, recites, and sets the effective date (February 1, 2008) for, its final rule regarding the use of radio frequency identification (RFID) technology in passport cards. See, Federal Register, December 31, 2007, Vol. 72, No. 249, at Pages 74169-74173.

This notice acknowledges that the DOS received numerous comments criticizing the use of vicinity RFID chips in passport cards, including from Senators and a Representative from border states.

The notice presents the argument that "The vicinity RFID electronic chip contains only one item of information--a unique identifying number that has meaning only inside the secure CBP computer system. No other form of personally identifiable information, such as name, date of birth, SSN, place of birth etc., will be electronically stored on the passport card or transmitted through RFID. All personal information will be contained in DHS systems and will only be accessible by authorized personnel through secure networks. Upon receipt of the passport card number, the border crosser's personal information will be downloaded from the CBP system and provided to the CBP officer. The CBP officer will then interview the individual, verify their identities, and determine the appropriate action to take.

The Center for Democracy and Technology (CDT) wrote in its web site that "The new rule calls for the use of ``vicinity read´´ RFID technology without the use of encryption. This means the card will be able to be read remotely, at a long distance. CDT strongly objected to the use of this technology -- developed for tracking inventory, not people -- because it is inherently insecure and poses threats to personal privacy, including identity theft, location tracking by government and commercial entities outside the border control context, and other forms of mission creep."

The new rules take effect on February 1, 2008.

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12/31. The Federal Communications Commission (FCC) published a notice in the Federal Register that belatedly announces the start date for filing applications for nationwide non-exclusive licenses in the 3650-3700 MHz band in November 15, 2007. See, Federal Register, December 31, 2007, Vol. 72, No. 249, at Pages 74283-74288. The relevant FCC proceedings are ET Docket No. 04-151 and WT Docket No. 05-96. See also, FCC notice numbered DA 07-4605.

DC Circuit Rules in Biggerstaff v. FCC

12/28. The U.S. Court of Appeals (DCCir) issued its opinion [pages in PDF] in Biggerstaff v. FCC, rejecting two challenges related to the Federal Communications Commission's (FCC) junk fax rule, and its established business relationship (EBR) exception.

The FCC adopted this rule on April 5, 2006, and released it on April 6 in an order [50 pages in PDF] titled "Report and Order and Third Order on Reconsideration". It amends the FCC's junk fax rules, as required by the Junk Fax Prevention Act of 2005.

See also, S 714, the "Junk Fax Prevention Act of 2005", which was signed into law on July 11, 2005. It is now Public Law No. 109-21. And see, FCC release [PDF] and story titled "FCC Amends Junk Fax Rules" in TLJ Daily E-Mail Alert No. 1,345, April 7, 2006.

The 2006 order states that the rules changes "(1) codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited facsimile advertisements; (2) provide a definition of an EBR to be used in the context of unsolicited facsimile advertisements; (3) require the sender of a facsimile advertisement to provide specified notice and contact information on the facsimile that allows recipients to ``opt-out´´ of any future facsimile transmissions from the sender; and (4) specify the circumstances under which a request to ``opt-out´´ complies with the Act."

The present opinion rejects two consolidated petitions for review filed by Robert Biggerstaff and Douglas McKenna.

The Court of Appeals dismissed Biggerstaff's petition as untimely. That is, he did not challenge the final order, but rather a past administrative action that falls outside of the scope of the 2006 rulemaking.

The Court of Appeals dismissed McKenna's petition for lack of standing. That is, he did not challenge the final order, but rather the future effect of the wording.

The Court of Appeals wrote that "McKenna’s concern is that permissive wording in the Order wrongly implies that the JFPA grants statutory authority to send unsolicited faxes when an EBR only grants an exemption from federal liability under the statute. We must dismiss his petition because McKenna lacks standing. He proposes no substantive changes to the Order that will affect the legal rights of those who send unsolicited faxes and only speculates that textual revisions to the Order would reduce the number of unsolicited faxes he receives and thereby redress the harm he alleges."

This case is Robert Biggerstaff v. FCC and USA, U.S. Court of Appeals for the District of Columbia Circuit, App. Ct. Nos. 06-1191 and 06-1251, petitions for review. Judge Rogers wrote the opinion of the Court of Appeals, in which Judges Ginsburg and Griffith joined.

One More Opinion in Doe v. Chao

12/28. The U.S. Court of Appeals (4thCir) issued yet another opinion [10 pages in PDF] in Doe v. Chao, a Privacy Act case. In this opinion the Court of Appeals reversed the District Court's token award of attorneys fees to Buck Doe.

This proceeding began a decade ago following the Secretary of Labor's publication of Social Security Numbers (SSN) of claimants to the Department of Labor for black lung benefits. The government thereby violated the Privacy Act of 1974 and the privacy of individuals.

This case has involved extensive litigation in the District Court, three appeals, and one Supreme Court opinion. The government has prevailed, not on the basis that it did not violate the statute, but on the the basis that the plaintiffs did not prove actual damages. In 2006 the District Court nevertheless awarded Buck Doe $15,887 in attorneys fees. The federal government, which zealously contests privacy claims against it, appealed. And in the just released opinion, the Court of Appeals reversed.

On September 20, 2002, the Court of Appeals issued its split opinion [53 pages in PDF] holding that a plaintiff must prove actual damages to recover under the Privacy Act for improper disclosure of SSNs by the federal government. See, story titled "4th Circuit Rules No Recovery Under Privacy Act for Disclosure of SSNs Without Showing of Actual Damages" in TLJ Daily E-Mail Alert No. 514, September 23, 2002.

The Supreme Court issued its 6-3 opinion [33 pages in PDF] affirming the Court of Appeals on February 24, 2004. See, story titled "Supreme Court Holds No Recovery Against Federal Government Under Privacy Act for Disclosure of SSNs Without Showing of Actual Damages" in TLJ Daily E-Mail Alert No. 843, February 25, 2004.

This case is Buck Doe, et al. v. Elaine Chao, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-2015, an appeal from the U.S. District Court for the Western District of Virginia, at Big Stone Gap, Judge Glen Williams presiding, D.C. No. 2:97-cv-00043. Judge Wilkinson wrote the opinion of the Court of Appeals, in which Judge Williams and Michael joined.

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12/28. The Office of the Director of National Intelligence's (ODNI) National Counterterrorism Center (NCTC) published a notice in the Federal Register that announces, recites, and sets the effective date (February 6, 2008) for, its rules establishing several systems of records subject to the Privacy Act of 1974. See, Federal Register, December 28, 2007, Vol. 72, No. 248, at Pages 73887-73898.

12/28. The Office of the Director of National Intelligence's (ODNI) Office of the National Counterintelligence Executive published a notice in the Federal Register that announces, recites, and sets the effective date (February 6, 2008) for, its rules establishing a system of records subject to the Privacy Act of 1974. See, Federal Register, December 28, 2007, Vol. 72, No. 248, at Pages 73898-73899.

12/28. The Office of the Director of National Intelligence's (ODNI) Office of the Inspector General published a notice in the Federal Register that announces, recites, and sets the effective date (February 6, 2008) for, its rules establishing several systems of records subject to the Privacy Act of 1974. See, Federal Register, December 28, 2007, Vol. 72, No. 248, at Pages 73899-73904.

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12/27. The Cato Institute's Sallie James wrote a short article on the possible impact upon intellectual property rights of the World Trade Organization's (WTO) remedies decision in the Antigua and Barbados versus United States internet gambling case.

Go to News from December 21-25, 2007.