Tech Law Journal Daily E-Mail Alert
March 21, 2001, 8:00 AM ET, Alert No. 148.
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Privacy Debate
3/20. The Cato Institute hosted a panel discussion titled Should the Government Regulate Online Privacy. Cato is a libertarian think tank, and the panelists criticized most proposals for government regulation of online privacy. The panelists were John Palafoutas (American Electronics Association), Mark Unacapher (ITAA), and James Harper (Policy and Clyde Crews of Cato moderated.
John Palafoutas stated that the AEA supports the adoption of federal preemption legislation. "We can't have 50 state laws governing privacy. And the way things are going on at the state level, that is one of our biggest concerns." He also advocated more education on the issue. "We have not adequately educated Members of Congress," said Palafoutas. "Members of Congress today are not surfing the net every day. They don't know what a cookie is, other than an Oreo. They don't know about new technologies that are out there. They are not focusing on this the same way the industry is. ... We have a lot of ignorance and a lot of confusion about it." He also predicted that Congress will pass legislation.
James Harper made the theoretical argument that privacy, like happiness, is a personal condition, that cannot be legislated by government. "The way to protect privacy is to distribute these decisions to those who are affected by them most." He said that the government should stop undermining people's ability to protect their information, and create circumstances in which people can protect their privacy, through enforcement of contracts, and tort litigation. Harper also argued that federal preemption legislation is unnecessary. State statutes pertaining to online privacy are unconstitutional under the Dormant Commerce Clause. However, he conceded that no cases have yet held this.
3/20. Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee, released a statement on medical privacy regulations. He said that "The decision to open this regulation to further debate and comment is not one I would have made." The Commerce Committee's Subcommittee on Health will hold a hearing titled "Assessing HIPAA: How Federal Medical Record Privacy Regulations Can Be Improved" on Thursday, March 22.
New Documents
PFAW: complaint challenging constitutionality of the Children's Internet Protection Act, 3/20 (PDF, PFAW).
ACLU: complaint challenging constitutionality of the Children's Internet Protection Act, 3/20 (PDF, EPIC).
USCA: opinion in Chance v. Pac Tel Teletrace re service mark priority of use, 3/20 (HTML, USCA).
Quote of the Day
"What governments are in a position to do is create circumstances -- life, liberty and the pursuit of happiness. Happiness, like privacy, is a personal condition, a state of being. A lot of people have searched around for a definition of privacy, and I am still searching ... Any claim by government that it is going to delivery privacy or happiness is an empty claim on its face. In the area of privacy, all governments can do is establish levels of secrecy or confidentiality, that represent the guesses of politicians and bureaucrats about what privacy would look like ..."

Jim Harper, address at Cato Institute, March 20.
CIPA Challenged
3/20. The Multnomah County Public Library (Portland Oregon area) and other plaintiffs filed a complaint [PDF] in U.S. District Court (EDPa) against the U.S. and other defendants challenging the constitutionality of the Children's Internet Protection Act (CIPA). The CIPA requires schools and libraries receiving e-rate subsidies to use pormography filtering technology on Internet access computers used by children. The lead counsel for the plaintiffs the ACLU. However, other attorneys include the EPIC, the law firm of Proskauer Rose, and others. The complaint asserts that the statute is unconstitutional on a variety of grounds. First, the complaint alleges that it "violates the First Amendment to the United States Constitution because it prevents plaintiffs from communicating and accessing constitutionally protected speech." The complaint also alleges that the CIPA "imposes a prior restraint in violation of the First Amendment ... because it provides for and induces suppression of speech without any judicial determination that the speech is unprotected by law." The complaint also alleges that the CIPA is void for overbreadth and vagueness. The plaintiffs seek a declaration that the statute is unconstitutional, and an injunction against its enforcement. The complaint also seeks an award of atttorney's fees. 11 attorneys' names are listed on the complaint. See also, ACLU release.
3/20. The American Library Association and others filed a separate complaint [PDF] challenging the constitutionality of the CIPA. These plaintiffs are represented by People for the American Way and the law firm Jenner & Block. "It's bad enough for government to intrude on the important decision-making authority of parents and individuals, but it should deeply concern us that a private software company that is not accountable to the public would be making decisions behind closed doors that could end up limiting our First Amendment rights," said Elliot Mincberg, Legal Director of PFAW. See, PFAW release. This complaint also alleges violation of the First Amendment, and seeks a declaration that the statute is unconstitutional, and an injunction against its enforcement. It also seeks attorneys fees. 8 attorneys are listed on this complaint.
Sponsors and backers of the CIPA defended the statute. Supporters on Capitol Hill held a press conference. "We're providing $3 Billion a year in federal tax money for computers and Internet access in schools and libraries," said Rep. Ernest Istook (R-OK). "Common sense says they should do their best to weed out the things that aren't right for kids." See, Istook release. The American Center for Law and Justice said that it would file briefs on behalf of Members of Congress. See, ACLJ release. See also, Family Research Council release.
IP News
3/20. The U.S Court of Appeals (9th Cir) issued its opinion in Chance v. Pac Tel Teletrac, a case involving priority of use of a service mark. Pac Tel and Chance claim first use of the words Teletrac and TeleTrak, respectively. Pac Tel Teletrac operates a radio frequency based system for tracking fleet vehicles and recovering lost or stolen vehicles. Pac Tel Teletrac filed a complaint in U.S. District Court (CDCal) against Chance for damages. The District Court entered summary judgment in favor of Pac Tel based on a finding of first use. The Appeals Court affirmed.
Securities Class Action
3/20. An individual represented by the law firm of Keller & Rohrback filed a complaint in U.S. District Court (WDWash) against and several of its officers and directors alleging violation of federal securities laws, and seeking class action status.
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The House is scheduled to debate HR 496, the Independent Telecommunications Consumer Enhancement Act of 2001, sponsored by Rep. Barbara Cubin (R-WY). This bill provides regulatory relief to small (less than 2% of subscriber lines) telephone companies. The House Commerce Committee approved this bill on February 28 by unanimous voice vote.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will meet to mark up HR 718, the Unsolicited Commercial Electronic Mail Act of 2001, sponsored by Rep. Heather Wilson (R-NM). Location: Room 2123, Rayburn Building.
12:00 NOON. FEC Commissioner Bradley Smith will speak at Cato Institute Book Forum about his book, Unfree Speech: The Folly of Campaign Finance Reform. Jamin Raskin of the American University law school will also speak. Lunch will follow. See, online registration page. Location: Cato Institute, 1000 Massachusetts Avenue, NW, Washington DC.
Trade News
3/20. The Senate Finance Committee held a hearing on the U.S. Jordan Free Trade Agreement (FTA) [PDF], signed on October 24, 2000. The Senate has yet to ratify it. There was no dispute at the hearing that a FTA with Jordan is appropriate for political reasons. However, the FTA includes labor and environmental (L&E) paragraphs that were hotly debated. (They provide that neither party "shall fail to effectively enforce its" L&E laws.) Trade with Jordan is minimal. And, neither Jordan nor the U.S. cares about the other's L&E records. Rather, the Clinton administration insisted on these provisions with the idea that this FTA would serve as a model for all future FTAs. This FTA is serving as a vehicle for debate over what all future FTAs and other trade agreements should contain. This debate may affect what future trade agreements provide, as well as what trade agreements will be successfully negotiated.
Clinton administration veterans Charlene Barshefsky (former USTR) and Samuel Berger (former National Security Advisor) defended their Jordan treaty, and its L&E provisions. John Sweeney (AFL-CIO President), and Rodger Schlickeisen (Defenders of Wildlife) also defended them. Sen. Max Baucus (D-MT), the ranking Democrat on the Senate Finance Committee, supported them. Sen. John Kerry (D-MA) defended them emphatically. Committee Chairman Charles Grassley (R-IA) condemned them, as did Michael Smith (Deputy USTR in Republican administrations), Timothy Deal (U.S. Council for Int. Business), Jagdish Bhagwati (Columbia University), and Thomas Donohue (U.S. Chamber of Commerce). The Bush administration sent no one to testify.
Sen. Grassley stated that "these provisions could lead to the use of trade sanctions. Given the nearly unanimous opposition of the world's developing nations to the use of trade sanctions to enforce labor and environmental standards -- opposition that lead directly to the collapse of the last WTO Ministerial in Seattle -- this is a development that concerns me deeply." Smith elaborated that "these provision on labor and environment are a double edged sword. U.S. enforcement, possibly as a waiver under the Clean Air Act or any exercise of discretion by enforcement agencies, prosecutors, or courts, could become a trade agreement violation subject to trade sanctions."
The U.S. Jordan FTA is also significant in that it contains extensive language pertaining to intellectual property and e-commerce. The FTA addresses patents, trademarks, copyright, and enforcement of IPR. Jordan agreed to ratify and implement the WIPO's Copyright Treaty and WIPO Performances and Phonograms Treaty within two years. The FTA also provides that "each Party shall seek to refrain from: (a) deviating from its existing practice of not imposing customs duties on electronic transmissions; (b) imposing unnecessary barriers on electronic transmissions, including digitized products; and (c) impeding the supply through electronic means of services ..." This received little attention at the Senate Finance Committee hearing.