9th Circuit Issues Revised Opinion On Informational Privacy and 4th Amendment

6/20. The U.S. Court of Appeals (9thCir) issued a revised opinion [26 pages in PDF] in Nelson v. NASA. This replaces its January 11, 2008, opinion [19 pages in PDF]. The Court of Appeals also denied as moot thepetition for panel rehearing and the petition for rehearing en banc.

See also, story titled "9th Circuit Addresses Privacy and Government Background Investigations of Private Sector Scientists" in TLJ Daily E-Mail Alert No. 1,703, January 22, 2008.

Robert Nelson and the other plaintiffs are scientists and engineers at the Jet Propulsion Laboratory (JPL), a joint project of the National Aeronautics and Space Administration (NASA) and the California Institute of Technology (CalTech).

The JPL program is run by CalTech pursuant to something that both opinions of the Court of Appeals opinion characterize as a "contract" with the NASA. This "contract" provides that the NASA can unilaterally amend it. The NASA unilaterally amended the "contract" to require low risk CalTech scientists to submit to in depth background investigations, including questioning of the scientists, questioning of third parties, and accessing government electronic databases of information.

The NASA requires completion of a detailed form, numbered SF 85. It requires, among other things, disclosure of past educational entities, employers, and landlords. The NASA also requires the signing of an "Authorization for Release of Information" that applies to "any information". The NASA then sends a Form 42 to schools, employers, landlords, and others disclosed on SF 85 forms. The NASA asks for, among other things, any adverse information about this person’s employment, residence, or activities.

CalTech employees filed a complaint in U.S. District Court (CDCal) alleging violation of the Administrative Procedure Act (APA), violation of the Constitutional right to informational privacy, and violation of the 4th Amendment's ban on unreasonable searches.

The District Court denied the plaintiffs' motion for a preliminary injunction, based upon its finding of an unlikelihood of success on the merits. The plaintiffs then brought the present interlocutory appeal.

In its January opinion the Court of Appeals reversed and remanded on the APA and information privacy claims. However, it held that the background investigations are not searches within the meaning of the 4th Amendment.

In the just released opinion, the Court of Appeals switched its view on the APA claim. It now writes that "we agree with the district court that Appellants are unlikely to succeed on the merits of their APA claim".

However, the just released Court of Appeals opinion once again reversed the District Court on the information privacy claim. The Court of Appeals wrote that "We have repeatedly acknowledged that the Constitution protects an ``individual interest in avoiding disclosure of personal matters.´´ ... This interest covers a wide range of personal matters, including sexual activity, ... medical information, ... and financial matters".

It continued that "If the government's actions compel disclosure of private information, it ``has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.´´ ... We must “balance the government’s interest in having or using the information against the individual’s interest in denying access,´´ ..."

"Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information", wrote the Court. It concluded that most of the questions listed on the SF 85 form do not implicate information privacy rights. However, it concluded that "Because SF 85 appears to compel disclosure of personal medical information for which the government has failed to demonstrate a legitimate state interest, Appellants are likely to succeed on this -- albeit narrow -- portion of their informational privacy challenge to SF 85."

It also concluded that the Form 42 questions are not "narrowly tailored". It wrote that "the form invites the recipient to reveal any negative information of which he or she is aware. It is difficult to see how the vague solicitation of derogatory information concerning the applicant's ``general behavior or conduct´´ and ``other matters´´ could be narrowly tailored to meet any legitimate need".

The Court of Appeals also held, as it did in its January opinion, that the District Court was correct in holding that the plaintiffs are unlikely to succeed on their 4th Amendment claim.

The Court wrote that "the government’s actions are not likely to be deemed ``searches´´ within the meaning of the Amendment. An action to uncover information is generally considered a ``search´´ if the target of the search has a ``reasonable expectation of privacy´´ in the information being sought, a term of art meaning a ``subjective expectation of privacy ... that society is prepared to recognize as reasonable.´´ ... One does not have a ``reasonable expectation of privacy´´ in one's information for Fourth Amendment purposes merely because that information is of a “private´´ nature".

This case is Robert Nelson, et al. v. NASA, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-56424, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-07-05669-ODW, Judge Otis Wright presiding. Judge Kim Wardlaw wrote the opinion of the Court of Appeals, in which Judges David Thompson and Edward Reed, sitting by designation, joined.

House Approves FISA Reform Bill

6/20. The House approved HR 6304 [114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008", by a vote of 293-129. See, Roll Call No. 437.

This is the just announced bill to reform the Foreign Intelligence Surveillance Act (FISA). See, story titled "House and Senate Leaders Release Draft FISA Reform Bill" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008.

On June 19 the House Rules Committee (HRC) adopted HRes 1285, a rule for consideration of HR 6304. The HRC adopted a closed rule: no amendments in order.

The bill has bipartisan and bicameral support, as well as support from the Bush administration.

Sen. Arlen Specter (R-PA), the ranking Republican on the Senate Judiciary Committee (SJC), announced his opposition to this bill on June 20. He wrote in a release that "I am opposed to the proposed legislation because it does not require a judicial determination that what the telephone companies have done in the past is constitutional.  It is totally insufficient to grant immunity for the telephone companies’ prior conduct based merely on the written assurance from the administration that the spying was legal."

Sen Specter also wrote that "The provision that the bill will be the exclusive means for the government to wiretap is meaningless because that specific limitation is now in the 1978 Act and it didn’t stop the government from the warrantless terrorist surveillance program and what the telephone companies have done. That statutory limitation leaves the president with his position that his Article II powers as commander in chief cannot be limited by statute, which is a sound constitutional doctrine unless the courts decide otherwise. Only the courts can decide that issue and this proposal dodges it."

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, has also announced his opposition on June 19.

More News

6/20. The Department of Homeland Security (DHS) announced in a release that its has awarded REAL ID Demonstration Grants totaling about $80 Million. The REAL ID Act federalized state identification systems, and and thereby imposed mandates upon the states, the cost of which is borne by the states. The National Conference of State Legislatures (NCSL) and the National Governor's Association (NGA) have estimated that the program will cost over $11 Billion in the first five years. See, September 2006 NCSL/NGA report [60 pages in PDF] titled "The Real ID Act: National Impact Analysis".

6/20. The Department of Justice's (DOJ) Antitrust Division issued a release regarding an order and opinion of the U.S. District Court (SDWV) in U.S.A. v. Daily Gazette Company and MediaNews Group, Inc. Thomas Barnett, Assistant Attorney General in charge of the Antitrust Division, stated in this release that "We are pleased that the court has allowed the lawsuit to proceed and we look forward to presenting our case in court." On May 22, 2007, the Antitrust Division filed a complaint [19 pages in PDF] against the Daily Gazette Company and MediaNews Group, Inc. alleging violation of Section 7 of the Clayton Act and Sections 1 and 2 of the Sherman Act in connection with the ownership and operation of newspapers. See also, story titled "DOJ Antitrust Action Takes Segmented View of Media" in TLJ Daily E-Mail Alert No. 1,586, May 23, 2007.

House and Senate Leaders Release Draft FISA Reform Bill

6/19. House and Senate leaders announced the negotiation of a bill to reform the Foreign Intelligence Surveillance Act (FISA). See, draft of HR 6304 [114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

Immunity. The bill provides immunity, including retroactive immunity, from civil suits for carriers and other service providers who cooperate, and who cooperated in the past, with government intelligence agencies.

Title VII of the bill pertains to "Protection of Persons Assisting the Government". It provides that "Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that" any of five circumstances is present.

These five circumstances would give the Attorney General broad power to compel the dismissal of a wide range of civil suits against carriers and other companies.

One such circumstance is that a directive was issued under the Protect America Act of 2007, which was enacted in August of 2007, and in effect until February of 2008.

Another is that there was "an intelligence activity involving communications" that was "authorized by the President during the period beginning on September 11, 24 2001, and ending on January 17, 2007".

Another is that there was a "certification in writing" under 18 U.S.C. § 2511(2)(a)(ii)(B) or 18 U.S.C. § 2709(b).

Or, the Attorney General could compel dismissal by certifying that "the person did not provide the alleged assistance".

It should be noted that this gives the carriers and other companies no remedy or recourse. Only the Attorney General can compel dismissal. This may give the Department of Justice some leverage over carriers.

This extends to any "electronic communication service provider", which the bill defines to include communications carriers, a provider of "electronic communication service" within the meaning of 18 U.S.C. § 2510, a provider of a "remote computing service" within the meaning of 18 U.S.C § 2711, and "any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored".

The bill also allows for removal of all state actions to federal court. It provides that "A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code."

The bill also broadly preempts state laws.

Comments Senators and Representatives. Rep. Steny Hoyer (D-MD), the House Majority Leader, stated in a release that "his bipartisan bill balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements ... It is the result of compromise, and like any compromise is not perfect, but I believe it strikes a sound balance. Furthermore, we have ensured that Congress can revisit these issues because the legislation will sunset at the end of 2012."

Rep. Roy Blunt (R-M) stated in this release that "For months, leaders of both parties in both the House and the Senate have been working to find middle ground on FISA. Both sides have had to compromise".

He continued that "House Republicans have long believed that the Senate FISA bill was the best way forward -- and do not believe that the courts should hold the ultimate decision over how and when terrorist communications are monitored overseas."

Rep. Blunt also said that "we all worked from the very basic premise that we had to find a way to modernize FISA to ensure that our intelligence community has the tools it needs to continue monitoring foreign-based, terrorist communications, while maintaining the protections of individual liberties contained in the existing FISA law. I believe we have accomplished that in this bill."

Sen. Jay Rockefeller (D-WV) stated that this draft bill reflects a "historic, bipartisan agreement". Sen. Kit Bond (R-MO) stated that "we reached a bipartisan solution that will put the intelligence community back in business".

In contrast, Sen. Patrick Leahy (D-VT) stated in a release that "is not a bill I can support". He elaborated that "This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program. Therefore, it lacks accountability measures that I believe are crucial."

Reaction. Leslie Harris, head of the Center for Democracy and Technology (CDT), stated in a release that "Congress has had ample opportunity to ensure that the civil liberties of Americans are protected and it failed"

"Congress could have given intelligence agencies the necessary authority to domestically collect the communications of targets abroad while preserving privacy protections for Americans", said Harris. "Instead, under this flawed bill, intelligence agencies can authorize themselves to conduct surveillance. Meanwhile, court review of surveillance procedures will often be too little and too late to provide meaningful protection."

The CDT's Greg Nojeim stated that "By granting telecom immunity, the bill will provide relief to telecoms today, but create enormous uncertainty for companies in the future ... What happens when a future President asks them to assist with unlawful surveillance?"

Other Bills. On March 14, 2008, the House approved an amended version of HR 3773 [LOC | WW], the "Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007" or "RESTORE Act", by a vote of 213-197. See, Roll Call No. 145. President Bush promised to veto the bill on Thursday, March 13. See, story titled "Bush Announces He Will Veto Latest House Democratic FISA Proposal" in TLJ Daily E-Mail Alert No. 1,730, March 12, 2008. The Senate did not take up that bill.

The Senate approved its bill, S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007", on February 12, 2008, by a vote of 69-29. Twenty Senate Democrats voted for that bill. See, Roll Call No. 20. However, House Democrats refused to take up that bill.

S 1927 [LOC | WW], the "Protect America Act", the temporary act enacted in August of 2007 to revise and expand federal wiretap, surveillance, and related authorities, expired on Saturday, February 16, 2008. President Bush favored that bill. However, both the House and Senate declined to make it permanent.

Attorney General and DNI Praise FISA Reform Bill

6/19. Attorney General Michael Mukasey and Director of National Intelligence Michael McConnell sent a letter on June 19, 2008, to House Speaker Nancy Pelosi stating the views of the Bush administration on HR 6304 [114 pages in PDF], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

They wrote that this bill "would modernize FISA to reflect changes in communications technology since the Act was first passed 30 years ago. The amendments would provide the Intelligence Community with the tools it needs to collect the foreign intelligence necessary to secure our Nation while protecting civil liberties of Americans."

The continued that it "would also provide the necessary legal protection for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11."

Hence, they conclude that "we strongly support passage of this bill and will recommend that the President sign it."

They elaborated that the bill contains "vital protections for electronic communications service providers who assist the Intelligence Community's efforts to protect the Nation from terrorism and other foreign intelligence threats."

They also wrote that the bill "would provide liability protection related to future assistance while ensuring the protection of sources and methods. Importantly, the bill would also provide the necessary legal protection for those companies who are sued only because they are believed to have helped the Government with communications intelligence activities in the aftermath of September 11, 2001."

Mukasey and McConnell also note that the bill "states that the authorities in the bill sunset at the end of 2012", even though they oppose such language.

USTR Elaborates on BIT Negotiations with PRC

6/19. The Office of the U.S. Trade Representative (OUSTR) issued another release [PDF] regarding the negotiations between the US and People's Republic of China (PRC) for a bilateral investment treaty (BIT). The US and PRC announced the commencement of these negotiations on June 18, 2008.

This release states that this BIT would provide US companies "non-discriminatory treatment", "fair and equitable treatment", and "transparent regulation". The release also asserts that PRC investors "already enjoy these protections under U.S. law."

This release also states that "All U.S. BITs include an ``essential security´´ exception that allows the United States to take any action that is necessary to protect the national security, including action by the Committee on Foreign Investment in the United States (CFIUS) to condition or block a Chinese acquisition of control over a U.S. company."

The US CFIUS process is one means by which the US denies foreign investors non-discriminatory treatment.

People and Appointments

6/19. President Bush nominated Gregory Garre to be Solicitor General at the Department of Justice. If confirmed by the Senate, he would replace Paul Clement, who has resigned. President Bush previously announced his intent to nominate Garre. See, White House release.

6/19. President Bush nominated Michael O'Neill to be a Judge of the U.S. District Court for the District of Columbia. See, White House release. O'Neill is a professor at George Mason University's law school. He was Chief Counsel to the Senate Judiciary Committee (SJC) from 2005 through early 2007.

6/19. President Bush nominated Jeffrey Adam Rosen to be a Judge of the U.S. District Court for the District of Columbia. See, White House release. Rosen is currently General Counsel at the Office of Management & Budget (OMB). He was previously General Counsel of the Department of Transportation. Before that he was a partner in the law firm of Kirkland & Ellis. This Jeffrey Rosen is not to be confused with the Jeffrey Rosen who is a professor at George Washington University's law school, a frequent speaker on privacy law, and author of The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age [Amazon] and The Unwanted Gaze: The Destruction of Privacy in America [Amazon].

6/19. President Bush nominated Patrick Rowan to be Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD). He is currently the NSD's Principal Deputy Assistant Attorney General. See, White House release and release. If confirmed by the Senate, he would replace Kenneth Wainstein, who is now Assistant to the President for Homeland Security and Counterterrorism. See, story titled "Bush Names Wainstein Top Homeland Security and Counterterrorism Advisor" in TLJ Daily E-Mail Alert No. 1,734, March 20, 2008.

More News

6/19. The U.S. Court of Appeals (9thCir) issued its opinion [36 pages in PDF] in Richlin v. MGM, a copyright dispute over rights in a movie. The Court of Appeals affirmed the judgment of the District Court, which held that MGM owns the copyright for the Pink Panther. The plaintiffs in this case are heirs of Maurice Richlin, who back in 1962 coauthored a story treatment, or outline of a movie plot, for what became the 1963 movie titled "The Pink Panther". Richlin assigned his copyright and the right to renew that copyright. Nevertheless, his heirs filed a complaint in U.S. District Court (CDCal) against MGM Pictures asserting federal statutory renewal rights in the treatment and derivative works, including the movie. The District Court granted summary judgment to MGM. The Court of Appeals affirmed in an opinion that contains a discussion of underlying works, derivative works, publication, registration, statutory copyright, terms of copyright, renewal of copyright, authorship, and coauthorship. This case is Bradley Richlin, et al. v. Metro Goldwyn Meyer Pictures, Inc., et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 06-55307, an appeal from the U.S. District Court for Central District of California, D.C. No. CV-04-09162-DDP, Judge Dean Pregerson presiding. Judge Wardlaw wrote the opinion of the Court of Appeals, in which Judges Ferdinand and Collins, sitting by designation, joined.

6/19.The Federal Trade Commission (FTC) announced that the FTC and the California Office of Privacy Protection will host a half day public workshop in Los Angeles, California, on August 13, 2008, titled "Protecting Personal Information: Best Practices for Business". See, FTC release and notice.

Free Press and Public Knowledge Allege More ISP Bad Behavior

6/18. Robert Topolski, Chief Technology Consultant for the Free Press and Public Knowledge, wrote a paper [18 pages in PDF] titled "NebuAd and Partner ISPs: Wiretapping, Forgery and Browser Hijacking".

It states that NebuAd is a "targeted behavioral advertising company" that has "struck a deal" with Charter Communications, which is a provider of broadband internet access services.

Topolski's paper asserts that "NebuAd’s advertising hardware monitors, intercepts and modifies the contents of Internet packets using Transmission Control Protocol on Internet Protocol (TCP/IP). In doing so, NebuAd commandeers users’ Web browsers and collects uniquely identifying tracking cookies to facilitate its advertising model. Apparently, neither the consumers nor the affected Web sites have actual knowledge of NebuAd’s interceptions and modifications."

Free Press and Public Knowledge (PK) are groups that advocate the imposition of network neutrality mandates by the Congress and Federal Communications Commission (FCC). This paper is another in a series of FP and PK complaints, reports, and allegations regarding business practices that the two groups assert warrants government intervention.

Gigi Sohn, head of the PK, stated in a release that “Once again, it shows that ISPs are putting themselves where they don’t belong -- inserting themselves between consumers and Web sites ... Inserting unwanted information and advertising under false pretenses violates every concept of an open and free Internet."

Also, Rep. Joe Barton (R-TX), the ranking Republican on the House Commerce Committee (HCC), and Rep. Ed Markey (D-MA), the Chairman of the HCC's Subcommittee on Telecommunications and the Internet, sent a letter [PDF] on May 16, 2008, to Neil Smit, P/CEO of Charter Communications, requesting that "you do not move forward on Charter Communications' proposed venture with NebuAd until we have an opportunity to discuss with you issues raised by this proposed venture."

Topolski's report further states that "NebuAd exploits several forms of ``attack´´ on users’ and applications’ security ... including browser hijacking, cross-site scripting and man-in-the-middle attacks. These practices -- committed upon users with the paid-for cooperation of ISPs -- violate several fundamental expectations of Internet privacy, security and standards-based interoperability."

Moreover, writes Topolski, "NebuAd violates the Internet Engineering Task Force (IETF) standards that created today’s Internet where the network operators transmit packets between end users without inspecting or interfering with them. For example, the TCP protocol would normally not accept code from a source that is a third party from the client-server connection. NebuAd engages in packet forgery to trick a user’s computer into accepting data and Web page changes from a third party like NebuAd."

Topolski's use the term "wiretapping" may be intended as a metaphor, rather than as an allegation of violation of the federal wiretap statute, which is codified at 18 U.S.C. § 2511. Similarly, his use of the term "forgery" may not be intended as an allegation of violation of either state or federal forgery statutes, such as those codified in Chapter 47 of Title 18 of the U.S. Code.

Topolski also wrote a declaration in support the complaint [48 pages in PDF] filed with the FCC by the PK and FP on November 1, 2007, titled "Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation For Secretly Degrading Peer-to-Peer Applications".

That complaint alleged that Comcast was "degrading peer-to-peer protocols" by inserting forged reset packets into communications between peers in peer to peer (P2P) communications that terminate those communications, which had the affect of interfering with BitTorrent. See, story titled "Free Press Files Complaint with FCC Alleging that Comcast Is Violating 2005 Policy Statement" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2008.

Comcast and BitTorrent subsequently announced that they reached an accord on this subject. See, story titled "Comcast and BitTorrent Reach Accord on Network Management Practices" in TLJ Daily E-Mail Alert No. 1,738, March 27, 2008.

Rep. Barton Asks Yahoo for Information Regarding its Advertising Agreement with Google

6/18. Rep. Joe Barton (R-TX), the ranking Republican on the House Commerce Committee (HCC), sent a letter [4 pages in PDF] to Jerry Yang, CEO of Yahoo, in which he asked for information about Yahoo's recently announced advertising agreement with Google.

Yahoo stated in a release on June 12, 2008, that "it has reached an agreement with Google" regarding search and advertising. See, story titled "Google and Yahoo Announce Search and Advertising Agreement" in TLJ Daily E-Mail Alert No. 1,779, June 13, 2008.

Rep. Barton (at left) wrote, "Given the consolidation within the online advertising industry, and with three companies dominating the U.S. online search market, I am concerned about how this collaboration will impact competition within the online search advertising industry."

He added that "I am also concerned about how the relationship between Google and Yahoo! will affect the collection, storage, and use of data relating to an individual's online activity."

The letter then propounds numerous interrogatories that relate to competition or privacy issues.

11th Circuit Addresses Commingling of §271 and §251 Elements

6/18. The U.S. Court of Appeals (11thCir) issued its opinion [12 pages in PDF] in Nuvox Communications v. BellSouth, a case regarding CLEC access to UNEs of ILECs under 47 U.S.C. § 251, competitive checklist items listed in 47 U.S.C. § 271, and the Federal Communications Commission's (FCC) implementing rules. In particular, this case involves commingling of §271 items with §251 UNEs.

The Court of Appeals affirmed the judgment of the District Court, which held that BellSouth, as an ILEC, is required to commingle §271 elements with §251 UNEs.

BellSouth Communications, which now AT&T, is an incumbent local exchange carrier (ILEC) and regional Bell operating company (RBOC) in the state of Florida within the meaning of the Communications Act. Nuvox Communications and Xspedius Communications are competitive local exchange carriers (CLECs). They sought access to BellSouth's facilities.

47 U.S.C. § 251 provides the interconnection requirements of all telecommunications carriers. §251(c) provides additional interconnection requirements for ILECs. §251(c)(3) addresses unbundled network elements (UNEs).

It states that ILECs have "The duty to provide, to any requesting telecommunications carrier for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title. An incumbent local exchange carrier shall provide such unbundled network elements in a manner that allows requesting carriers to combine such elements in order to provide such telecommunications service."

Prior to enactment of the Telecommunications Act of 1996, the RBOCs were prohibited from offering long distance services. 47 U.S.C. § 271 established a process by which RBOCs could petition the FCC on a state by state basis to obtain authority to provide long distance service.

§271 further provided that for RBOCs to obtain this long distance authority, they must implement of a "competitive checklist" of services and facilities that the RBOC must make available to CLECs operating in the state. The §271 checklist overlaps the §251 UNEs list.

FCC rules provide that elements that are required to be made available only under §271 -- unlike elements required under §251 -- need not be provided in combined, prepacked form. The U.S. Court of Appeals (DCCir) affirmed these rules in 2004 opinion [62 pages in PDF] in USTA v. FCC, 359 F.3d 554. (Although, the Court of Appeals overturned other rules in that opinion.)

The Court of Appeals wrote that "The FCC also eliminated its general ban on ``commingling, ´´ defined as combining loops or loop-transport combinations obtained as unbundled network services with services obtained at wholesale from an incumbent LEC. ... The FCC’s commingling requirement contains the statement: ``[A]n incumbent LEC shall permit a requesting telecommunications carrier to commingle an unbundled network element or a combination of unbundled network elements with wholesale services obtained from an incumbent LEC.´´"

Nuvox and Xspedius and BellSouth did not reach an agreement. Nuvox and Xspedius filed a petition for arbitration with the Florida Public Service Commission (FPSC), under procedure set forth in 47 U.S.C. § 252. The FPSC held that the FCC did not intend for its commingling requirement to apply to §271 elements.

Nuvox and Xspedius then filed a complaint in U.S. District Court (NDFl) seeking judicial review of the FPSC ruling. The District Court reversed. It held that the FCC’s commingling requirements mandated that BellSouth combine facilities provided under §271 with those that must be provided under §251.

BellSouth then brought the present appeal. The Court of Appeals affirmed the District Court.

This case is Nuvox Communications, Inc. and Xspedius Communications, LLC v. BellSouth Communications, Inc., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 07-13028, an appeal from the U.S. District Court for the Northern District of Florida, D.C. No. 06-00308 CV-4-SPM-WCS.

US and PRC Conclude Meeting of Strategic Economic Dialogue

6/18. Secretary of the Treasury Henry Paulson gave a speech at the conclusion of the Strategic Economic Dialogue (SED) between representatives of the US and the People's Republic of China (PRC). He said that "Our discussions these last two days covered a wide range of priority issues" and have "fostered broad, productive relations".

Paulson (at right) said that "Both nations renewed their commitment to work actively toward a positive conclusion of the Doha negotiations."

"We discussed the importance of open investment to both our countries." He added that " we agreed to launch negotiations of a bilateral investment treaty (BIT)".

However, Paulson did not reference trade related aspects of intellectual property rights (IPR) in his speech.

The Department of the Treasury issued a longer release [5 pages in PDF] that does address IPR. This release states that the US and PRC "agreed to intensify cooperation on IPR protection through the IPR Working Group under the JCCT as soon as possible after the close of SED IV and prior to the 19th JCCT."

It continues that "Both sides agree to start the above mentioned cooperation with an introduction of China's recently published ``Outline of National Intellectual Property Rights Strategy´´ and ``Plan for IPR Protection Initiatives in 2008,´´ and both sides may discuss issues that are not related to the claims of the current WTO dispute settlement."

The US and PRC also issued a joint release [4 pages in PDF]. It contains substantially identical language on IPR.

People and Appointments

6/18. President Bush nominated J.V. Schwan to be a member of the U.S. International Trade Commission for a term expiring June 16, 2017. He is currently Deputy Chief of Staff at the Department of Commerce. See, White House release and release.

6/18. Donald Hoerl was named acting Regional Director of the Securities and Exchange Commission's (SEC) Denver Regional Office. See, SEC release.

More News

6/18. The U.S. Court of Appeals (5thCir) issued a revised opinion [8 pages in PDF] in Stroman Realty v. Florida and California, a case regarding personal jurisdiction over distant state regulators of internet and direct mail based businesses. See, story titled "5th Circuit Rules on Personal Jurisdiction Over State Regulators" in TLJ Daily E-Mail Alert No. 1,768, May 16, 2008.

6/18. The Senate Commerce Committee (SCC) postponed its hearing titled "Privacy Implications of Online Advertising", which had been scheduled for June 18, 2008.

6/18. William Kovacic, Chairman of the Federal Trade Commission (FTC), gave a speech [6 pages in PDF] in Monterey, California, titled "The Federal Trade Commission at 100: Into Our Second Century".

6/18. Howe Electric Inc. pled guilty in U.S. District Court (NDCal) to conspiracy to rig bids for contracts with the Federal Communications Commission's (FCC) Universal Service Corporation. This is another in a long series of criminal prosecutions arising out of the FCC's waste, fraud and abuse plagued e-rate tax and subsidy program. The Department of Justice (DOJ) also announced in a release that Howe Electric agreed to pay $300,000 in criminal fines and $3,000,000 in restitution and civil settlement.

Constitutional Rights in Intellectual Property

6/17. The U.S. Supreme Court issued its opinion [134 pages in PDF] on June 12, 2008, in Boumediene v. Bush, a case regarding the Constitutional habeas corpus rights of enemy combatants being held by the U.S. military at Guantanamo Bay, Cuba.

Justice Anthony Kennedy, who wrote the opinion of the Court, noted, "Indeed, the only mention of the term ``right´´ in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, §8, cl. 8."

However, Kennedy did not go on to hold, or advocate holding, that intellectual property rights are Constitutional rights.

Indeed, federal courts have held that they are not rights. See for example, May 24, 2007, opinion [14 pages in PDF] of the U.S. Court of Appeals (4thCir) in Darden v. Peters. The Supreme Court denied certiorari on February 25, 2008. See also, story titled "4th Circuit Rules Copyright is Not a Constitutional Right" in TLJ Daily E-Mail Alert No. 1,588, May 29, 2007, and story titled "Supreme Court Denies Cert in Darden v. Peters" in TLJ Daily E-Mail Alert No. 1,723, February 26, 2008.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), referenced Justice Kennedy's statement at a SJC hearing on June 17 titled "Protecting Consumers by Protecting Intellectual Property". He added that "These rights in intellectual property have been fundamental to Americans since our founding and have never been more important than they are today." See, opening statement.

The intellectual property case case is William Darden v. Marybeth Peters, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 06-1177, an appeal from the U.S. District Court for the Eastern District of North Carolina, D.C. No. 2:04-cv-00030-BO, Judge Terrence Boyle presiding. Judge Traxler wrote the opinion of the Court of Appeals, in which Judges Widener and Duncan joined.

The habeas corpus case is Lakhadar Boumediene, et al. v. George Bush, et al., Supreme Court of the U.S., Sup. Ct. Nos. 06–1195 and 06–1196.

Senate Judiciary Committee Holds Hearing on Intellectual Property

6/17. The Senate Judiciary Committee (SJC) held a hearing titled "Protecting Consumers by Protecting Intellectual Property".

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, wrote in his opening statement that the subject matter of this hearing "should have no partisan flavor whatsoever". He also said that "The lack of coordination among the Federal agencies responsible for IP enforcement seems to be one of the biggest hurdles we face".

There are pending bills that address the topics of funding for, and coordination among, government agencies. First, there is HR 4279 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO IP Act". The House passed this bill by a vote of 410-11 on May 7, 2008. See, Roll Call No. 300. See also, story titled "House Passes PRO IP Act" in TLJ Daily E-Mail Alert No. 1,763, May 8, 2008.

Second, there is S 522 [LOC | WW], "Intellectual Property Rights Enforcement Act" or "IPREA", introduced by Sen. Evan Bayh (D-IN) and Sen. George Voinovich (R-OH) on February 7, 2007.

Third, there is S 2317 [LOC | WW], the "Intellectual Property Enforcement Act", which Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX) introduced on November 7, 2007. See, story titled "Senators Leahy and Cornyn Introduce Intellectual Property Enforcement Act" in TLJ Daily E-Mail Alert No. 1,672, November 8, 2007.

Loren Yager testified on behalf of the Government Accountability Office (GAO), which is an arm of the Congress. The GAO's prepared testimony [PDF] concludes that "The current U.S. government coordinating structure that has evolved for protecting and enforcing U.S. intellectual property rights lacks leadership and permanence, presenting challenges for effective and viable coordination for the long term."

Brian Monks (Underwriters Laboratories) advocated "Additional staffing and resources for DOJ and FBI, with dedicated personnel allocated to combating IP crimes" in his prepared testimony.

See also, prepared testimony [4 pages in PDF] of Mike Rose (Johnson & Johnson), and prepared testimony of Jeffrey Thurnau (Gates Corporation).

Sen. Leahy also commented on the People's Republic of China and copyrights related to the Olympic games. He wrote that "Even the Chinese government, which allows some of the most rampant theft of intellectual property in the world, has realized the value and importance of IP enforcement now that their own IP has been threatened, and they have begun to crack down on infringement of their Olympic copyrights."

10th Circuit Holds that Digital Models Lack Sufficient Originality to Be Protected by Copyright

6/17. The U.S. Court of Appeals (10thCir) issued its opinion [27 pages in PDF] in Meshwerks v. Toyota, a copyright infringement case involving digital modeling of Toyota cars. The Court of Appeals affirmed the summary judgment of the District Court, which held that these digital models lacked sufficient originality to be protected by copyright.

	Source: Exhibit A of opinion.

Meshwerks created digital models, in the form of unadorned digital wire frames, of Toyota cars and trucks. Meshwerks did not create the cars and trucks that are represented in its digital models -- Toyota did. But, Toyota wanted advertising of its cars and trucks; and this involved the creation and use of digital models.

The Court of Appeals wrote that "digital models have substantial advantages over the product photographs for which they substitute. With a few clicks of a computer mouse, the advertiser can change the color of the car, its surroundings, and even edit its physical dimensions to portray changes in vehicle styling".

The creation of these digital models involves the use of computers, modeling software, and extensive measurements. Then, the initial digital model is fine tuned manually, and some further features are manually added. The final digital model takes about 80 to 100 hours of effort per vehicle to create.

Toyota contracted with an advertising agency, Saatchi & Saatchi (SS), which in turn contracted with Grace & Wild, Inc. (GW), which in turn contracted with Meshwerks to create the digital models. Meshworks' contract with GW only provided for use in one television commercial. But, the digital models were used to create other ads in other media. Meshwerks registered copyrights with the U.S. Copyright Office.

Meshwerks filed a complaint in U.S. District Court (DUtah) against Toyota, SS and GW alleging copyright infringement and breach of contract. The District Court granted summary judgment to the defendants on the copyright claim, and declined to exercise jurisdiction over the state law contract claim.

Statute. 17 U.S.C. § 102 addresses the subject matter of copyright. It provides in full as follows:

"(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

17 U.S.C. § 101, the definitional section of the Copyright Act, defines "Pictorial, graphic, and sculptural works" to include "two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

Neither §101 nor §102 defines the term "original". The courts have, in opinions construing §102, read meaning into this word that does not necessarily follow from the plain meaning of the word, and the context in which it is used in §102.

The Court of Appeals made two brief references to §101, and two to §102, in its opinion. Its analysis was based largely on application of judicial precedent.

The intellectual property clause of the Constitution makes no reference to "original", "originality", or any equivalent term.

Court of Appeals. Meshwerks brought this appeal. The Court of Appeals affirmed.

The Court of Appeals, citing the Supreme Court's 1991 opinion in Feist Publications v. Rural Telephone Services, 499 U.S. 340, wrote that "not every work of authorship, let alone every aspect of every work of authorship, is protectable in copyright; only original expressions are protected. This constitutional and statutory principle seeks to strike a delicate balance -- rewarding (and thus encouraging) those who contribute something new to society, while also allowing (and thus stimulating) others to build upon, add to, and develop those creations." (Parentheses in original.)

The Court of Appeals then offered a short review of the history of copyright protection for photographs, including 19th Century litigation regarding photographs of Oscar Wilde.

It continued that copyright protects "original expression", but does not "reward the labor of authors". It also wrote that originality requires both independent creation and a minimal degree of creativity. And, it wrote that "the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world."

It continued that "we do not doubt for an instant that the digital medium before us, like photography before it, can be employed to create vivid new expressions fully protectable in copyright."

The Court also noted that the pertinent facts of this case are that "Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features" and that "Meshwerks’ models depict nothing more than unadorned Toyota vehicles".

Quoting the book titled "Nimmer on Copyright", the Court of Appeals wrote that "the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form."

The Court then continued that "It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like -- in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection."

It therefore held that "To the extent that Meshwerks’ digital wire-frame models depict only those unadorned vehicles, having stripped away all lighting, angle, perspective, and ``other ingredients´´ associated with an original expression, we conclude that they have left no copyrightable matter."

The Court of Appeals also reasoned in dicta that "Digital modeling can be, surely is being, and no doubt increasingly will be used to create copyrightable expressions. Yet, just as photographs can be, but are not per se, copyrightable, the same holds true for digital models. There’s little question that digital models can be devised of Toyota cars with copyrightable features, whether by virtue of unique shading, lighting, angle, background scene, or other choices."

But, "The problem for Meshwerks in this particular case is simply that the uncontested facts reveal that it wasn’t involved in any such process, and indeed contracted to provide completely unadorned digital replicas of Toyota vehicles in a two-dimensional space."

TLJ Commentary. The Court of Appeals has ruled that Meshwerks' expressions are not entitled to copyright protection. The Court added that some digital models could be entitled to protection. However, Meshwerks' digital models are not, because they are representative of things that Meshwerks did not create.

Also, "in an age of virtual worlds", wrote the Court of Appeals, "digital media ...seek to mimic the ``real´´ world".

It might also be noted that, in the world of plays, the purpose of creative expression, according to Hamlet, "was and is, to hold, as 'twere, the mirror up to nature".

Mimicking the real world, and holding a mirror up to nature, is what photographers, creators of digital models, and Hamlet's players do.

But, this opinion holds, if that mimicking or mirroring merely expresses "raw facts in the world", it is not subject to copyright protection.

This conclusion is difficult to reconcile with the legal treatment of photography. If the courts were to apply recent originality analysis to photography in the same manner that they have applied it to forms of expression other than photography, then many photographs would have only shakey claims to protection.

Of course, the courts could not now exclude photographs from copyright protection under originality analysis because the Congress (as well as other nations and the Berne convention) has enumerated categories of expression entitled to protection, and this enumeration includes photographs.

However, these enumerations aside, the inconsistency is this. Many photographers take pictures of nature, or things (like Toyota cars) that they have not created. Prior to their photographing, there is creativity in the invention of all the technologies that go into the camera; but the photographer's copyright claims in photographs do not derive from the inventors' creativity. The photographer may have exhibited creativity in getting to the site of the photograph, but this gives rise to no copyrightable interest. The photographer may select a camera, lens, film, camera settings, lighting, angles, and positions. But, selection of an angle is not copyrightable expression. The §102 "tangible medium of expression" in which the photographer claims protection is the photograph. But, this is the direct result of the interaction of a machine and the objective reality of nature. All of the non-copyrightable invention and action has been completed when the photographer presses a button. The result is a pre-ordained object, the picture. The expression is the consequence of the interaction of a machine with nature. There is no originality in this "tangible medium of expression".

Of course, it should be noted that the court in this case, and other courts, have held, and Nimmer has written, that there is originality in photographs, as a consequence of the photographer's selection of lighting, angle, and perspective. See for example, the 9th Circuit's 2000 opinion in Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, which held that a photograph of a non-copyrightable bottle is copyrightable because of the photographers selection of "lighting, shading, angle, background".

Meshworks exercised skill and discretion, and manually edited, its digital models. However, this Court held that these factors do not entitle it to a claim of originality in its digital models. In contrast, courts have held that if a photographer selects lighting and angles, this entitles him to a claim of originality. Yet, both the digital modeler and photographer are merely producing a tangible expression that only mimics a reality that they did not create.

There is reality, nature, and ideas (which are not subject to copyright protection). There is also expression (which may be subject to protection). In the matter of photography, the courts push the photographer's actions and input to the expression side of the ledger. In the matter of digital modeling, this Court pushes all of the modeler's actions and input to the reality side of ledger.

There is a policy argument, which was not addressed by the Court of Appeals in this opinion, for distinguishing between digital models used in advertising, and photographs used in advertising, and affording disparate treatment under copyright law.

A digital modeler such as Meshwerks can contract with an advertiser, such Toyota and its agents, not to publish the digital model, but rather only to use the digital model to produce photo like graphics that are published in advertising. Downstream copiers can only copy these graphics. If Toyota or its agents breach the contract, Meshwerks has a contract remedy even if it has no copyright remedy.

Meshwerks has no contract remedy against persons who copy the ads. But, these ads are not the digital model. In contrast, when a photographer licenses a photograph to Toyota, and a downstream copier copies from Toyota's ads, the photographer's work is copied, and he has no contract remedy against the downstream copier.

In short, digital modelers who work with advertisers are better able to protect their proprietary interests via contract than are photographers, and hence, as a policy matter, are less in need of a copyright remedy.

This case is Meshwerks, Inc. v. Toyota Motor Sales USA, Inc., et al., U.S. Court of Appeals for the 10th Circuit, App. Ct. No. 06-4222, an appeal from the U.S. District Court for the District of Utah, D.C. No. 2:06-CV-97-TC. Judge Neil Gorsuch wrote the opinion of the Court of Appeals, in which Judge Briscoe and Holmes joined.

Judge Gorsuch is not unfamiliar with copyright. He is a recent appointee who previously worked at the Department of Justice, where he was a member of the Intellectual Property Task Force. Also, he wrote the 10th Circuit's January 28, 2008, opinion [36 pages in PDF] in Dudnikov v. Chalk & Vermilion Fine Arts, the Betty Boop DMCA take down case. See, story titled "10th Circuit Addresses Personal Jurisdiction in Copyright DJ Actions Following DMCA Take Down Notices" in TLJ Daily E-Mail Alert No. 1,706, January 29, 2008.

In the event that Meshwerks files a petition for writ of certiorari with the Supreme Court, it may be significant that the author of the 3rd Circuit's en banc opinion in Southco v. Kanebridge, another leading case on originality and subject matter of copyright, was Judge Sam Alito, who is now a Supreme Court Justice. See, December 3, 2004, divided en banc opinion [40 pages in PDF]. See also, story titled "3rd Circuit Opines on Copyright Originality Requirement and Rules Based Expression" in TLJ Daily E-Mail Alert No. 1,042, December 22, 2004. The Supreme Court denied certiorari in this case on October 3, 2005. See also, story titled "Supreme Court Lets Stand Holding That Product Numbers Are Not Copyrightable" in TLJ Daily E-Mail Alert No. 1,228, October 6, 2005. Also, Judge Gorsuch is a former law clerk of Justice Anthony Kennedy of the Supreme Court.

FCC Releases Do Not Call Registry Report and Order

6/17. The Federal Communications Commission (FCC) released a Report and Order [21 pages in PDF] that amends the FCC's rules regarding the National Do-Not-Call Registry

The new rules provide that "Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator."

The FCC adopted this R&O on June 11, 2007. This item is FCC 08-147 in CG Docket No. 02-278. See also, FCC release.

FCC Chairman Kevin Martin wrote in his prepared statement [PDF] that "These registrations would have begun to expire later this month leaving millions of consumers without protection from unwanted telemarketing calls. Earlier this year, Congress prohibited the automatic removal of telephone numbers from the National Do-Not-Call Registry. Consistent with this direction, we require telemarketers to honor registrations with the Registry until consumers have cancelled their registration or their telephone number is disconnected and reassigned.

See also, S 781 [LOC | WW], the "Do-Not-Call Registry Fee Extension Act", which is now Public Law No. 110-188, and HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007", which is now Public Law No. 110-187. And see, story titled "House and Senate Pass Two Do Not Call Registry Bills" in TLJ Daily E-Mail Alert No. 1,713, February 7, 2008.

People and Appointments

6/17. President Bush announced that he designated Shara Aranoff as Chairman and Daniel Pearson as Vice Chairman of the U.S. International Trade Commission, effective June 17, 2008. See, White House release, USITC release regarding Aranoff, and USITC release regarding Pearson. The USITC has authority with respect to Section 337 intellectual property investigations, and antidumping and countervailing duties investigations.

More News

6/17. The US, Microsoft and state plaintiffs filed their periodic pleading [17 pages in PDF] titled "Joint Status Report on Microsoft's Compliance with the Final Judgments". This case is U.S. v. Microsoft, U.S. District Court for the District of Columbia, D.C. No. 98-1232 (CKK), and New York, et al. v. Microsoft, D.C. No. 98-1233, consolidated. The District Court has scheduled a status conference for June 24, 2008.

6/17. The Office of the United States Trade Representative (OUSTR) published a notice in the Federal Register that announces, describes, and sets the comment deadline (July 11, 2008) for, its request for comments regarding the OUSTR's complaint filed with the World Trade Organization (WTO) on May 28, 2008, regarding European tariff treatment accorded to set-top boxes with a communication function, flat panel displays, input or output units, and facsimile machines. See, Federal Register, June 17, 2008, Vol. 73, No. 117, at Pages 34350-34351. See also, story titled "US and Japan File Complaints with WTO Regarding EU Duties on Tech Products" in TLJ Daily E-Mail Alert No. 1,776, June 4, 2008.

6/17. The Progress & Freedom Foundation (PFF) released a preliminary agenda for its conference titled "Aspen Summit", to be held on August 17-19, 2008, in Aspen, Colorado. This agenda includes the following panels and discussions:

• Should We Deputize the Middleman? New Debates about Intermediary Liability
• Copyright Enforcement Online: Can We Do Better?
• Online Advertising, Behavioral Marketing & Privacy
• The Innovation Imperative: Engage or Retreat?
• Next Generation Network Policy -- Here and Abroad
• Kids, Media & Marketing: Child Safety and Privacy in a Web 2.0 World
• China: A Challenge of Olympic Proportions
• Patent Reform: Where We Are, and Where We Might Go
• Spectrum Policy: White Spaces and Beyond

Lori Drew Pleads Not Guilty in Section 1030 Case

6/16. Lori Drew entered a plea of not guilty in U.S. District Court (CDCal) on June 16, 2008.

On May 15, a grand jury returned a four count indictment [PDF] that charges Drew with violation of the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. § 1030, as well as conspiracy and aiding and abetting.

This indictment alleges that she violated the terms of service (TOS) of the social networking web site MySpace. It alleges that Drew is an adult woman who created a fake MySpace profile of a teenage boy, and proceeded to cyber bully a teenage girl named Megan Meier who also used MySpace.

The key allegation in the indictment regarding harassment is that Drew, using her MySpace alias, "told M.T.M., in substance, that the world would be a better place without M.T.M in it."

The indictment alleges that Meier killed herself the same day.

The indictment does not charge MySpace or Fox Interactive Media, Inc.

The indictment states that "the MySpace TOS requires prospective members, members and users of the website to ... Provide truthful and accurate registration information" and to "Refrain from using any information obtained from MySpace services to harass, abuse, or harm other people".

It alleges that Drew's registration with MySpace, use of MySpace information, and sending communications to Meier, constituted intentionally accessing "a computer used in interstate and foreign commerce without authorization and in excess of authorized access, and by means of an interstate communication, obtain information from that computer to further a tortious act, namely infliction of emotional distress, in violation of 18 U.S.C. §§ 1030(a)(2)(C), (c)(2)(B)(2).

The U.S. Attorneys Office for the Central District of California stated in a release that "Whether we characterize this tragic case as `cyber-bullying,´ cyber abuse or illegal computer access, it should serve as a reminder that our children use the internet for social interaction ...".

John Morris, of the Center for Democracy and Technology (CDT), stated in a release that this indictment represents "a gross and inappropriate expansion of federal power to regulate speech and communications over the Internet".

He added that "If this indictment stands, all that ``fine print´´ of the user agreement is moved from an annoyance to a significant legal risk; if you violate any term, you are committing a federal crime. This could seriously chill the robust interactivity of the Internet."

The District Court has scheduled a status conference for Thursday, July 26 at 8:00 AM. Trial is scheduled to begin on July 29.

TLJ has made many requests for interviews and information from the CCIPS over many years regarding its understanding of Section 1030's application to various activities. All such requests have been denied or ignored.

XM and Sirius Propose Merger Conditions

6/16. Legal counsel for XM and Sirius sent a  letter [PDF] dated June 16, 2008, to the Federal Communications Commission (FCC) listing "voluntary commitments" that the two companies propose to follow if the FCC approves the merger. These include a la carte programming options, best of both programming, discounted family friendly programming, and options to select either mostly music, mostly news, mostly sports or mostly talk programming.

This letter also addresses the setting aside of channels for public interest and qualified entity channels, allowing device manufacturers to incorporate in satellite radio receivers any other technology that would not result in harmful interference with the merged company's network, interoperable receivers, rates, and service in Puerto Rico.

FCC Chairman Kevin Martin expressed support for approval of the merger on June 16.

The National Association of Broadcaster's (NAB) Dennis Wharton stated in a release on June 16 that "Given their systematic breaking of virtually every rule set forth by the FCC in their 11 years of existence, it would be curious if the Commission now rewards XM and Sirius with a monopoly".

Gigi Sohn, head of the Public Knowledge, stated in a release on June 16, 2008, that "many of the conditions the Federal Communications Commission (FCC) is considering placing on a potential merger of XM Satellite Radio and Sirius Satellite Radio are conditions that we have proposed and supported for more than a year, both in Congressional testimony, as well as in meetings with the Commission."

She continued that the FCC "is considering placing a price cap on programming of perhaps three years, as well as that the new combined company; offer a la carte programming choices; open the standards for satellite radio receivers so that any device manufacturer can make satellite radios; set aside 4 percent of their spectrum capacity (what now amounts to 12 channels) for non-commercial educational programming; lease another 4 percent to groups like minorities and women who are underrepresented in broadcasting; and manufacture interoperable radios that allow a subscriber to receive programming from both providers."

XM and Sirius announced their merger plans in February of 2007. See, story titled "XM and Sirius Announce Plans to Merge" in TLJ Daily E-Mail Alert No. 1,540, February 20, 2007.

The Department of Justice's (DOJ) Antitrust Division, which has statutory authority to conduct antitrust merger reviews, announced in March of 2008 that it will not challenge the merger of XM and Sirius. See, story titled "DOJ Won't Challenge XM Sirius Merger" in TLJ Daily E-Mail Alert No. 1,736, March 25, 2008.

This FCC's merger review proceeding is Docket No. 07-57.

More News

6/16. The Government Accountability Office (GAO) sent a letter [9 pages in PDF] to the Federal Reserve Board (FRB) regarding "Federal Reserve Banks: Areas for Improvement in Information Security Controls". The GAO wrote that "we found matters involving information security controls that we do not consider to be significant deficiencies." It elaborated that "Our fiscal year 2007 audit procedures identified 12 information security control deficiencies, all of which relate to general controls. Specifically, the control deficiencies identified were in the areas of entitywide security program planning and management, access control, and system software." However, "None of our findings pose significant risks to the FRB financial systems."

6/16. The U.S. District Court (DC) sentenced Parthasarathy Sudarshan to serve 35 months in prison following his plea of guilty to violating export control regulations. The Department of Justice (DOJ) stated in a release that he exported microprocessors to "an enterprise within the Department of Space of the Government of India" and "an enterprise within the Ministry of Defence of the Government of India", and that these enterprises participate in India's "space launch vehicle program" and "development and production of ballistic missiles".

Go to News from June 11-15, 2008.