|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
Council.com and Privacilla.org).
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.
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.
challenging constitutionality of the Children's Internet
Protection Act, 3/20 (PDF, PFAW).
challenging constitutionality of the Children's Internet
Protection Act, 3/20 (PDF, EPIC).
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.
|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
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.
|3/20. The U.S
Court of Appeals (9th Cir) issued its opinion
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 Amazon.com 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
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.
|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
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