| Easter Recess |
| 4/6. The Senate passed a budget resolution, and then
adjourned until April 23 for the traditional Easter recess. By
a vote of 65 to 35, the Senate approved a budget that provides
for a $1.2 Trillion tax cut over ten years -- not the $1.6
Trillion that President Bush requested. The House adjourned on
April 4 for its two week recess. |
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| Location Privacy |
4/6. The FCC received a
dozen comments regarding rules for location privacy for mobile
devices. At issue are privacy rules for cell phones, PDAs,
in car map and traffic services, wireless tollbooth collection
systems, Blackberry
e-mail pagers, Bluetooth
enabled devices, and anything else which can be embedded with
a GPS chip, or other technology, capable of generating
location data. The CTIA
filed a petition
[PDF] with the FCC on Nov. 22, 2000, requesting a rule making
proceeding. In response, the FCC issued a Public
Notice [PDF] on March 16, 2001 requesting comments on the
CTIA's petition. Comments were due by April 6. Reply comments
are due by April 17. (See, WT Docket No. 01-72.)
The 106th Congress enacted, and President Clinton signed, the
Wireless Communications and Public Safety Act of 1999. This
bill was S
800, sponsored by Sen.
Conrad Burns (R-MT), and HR 438, sponsored by Rep. John Shimkus
(R-IL). It designated 911 as the universal emergency service
number, and promoted wireless 911 service. The bill also
amended Section 222 of the Communications Act to include cell
phone call location information in the definition of customer
proprietary network information (CPNI). The FCC has authority
to strictly regulate the use of CPNI by telecommunications
carriers. (The FCC has another proceeding concerning CPNI;
see, Docket No. 96-115.) However, while the FCC does not have
statutory authority to regulate the privacy practices of many
other entities that may obtain location data from web enabled
devices, many commenters requested that the FCC adopt rules
that apply to all such entities.
All commenters stated that location privacy is a good thing,
but differed as to how the FCC should proceed. The comments
addressed many issues, including whether the FCC should
conduct a rule making proceeding, whether it should promulgate
rules, whether any proceeding should be separate from the CPNI
docket, whether state laws should be preempted, what entities
with location data are subject to FCC jurisdiction, what
privacy principles should be included in any FCC rules, and
what legislative recommendations the FCC should make to
Congress, if any.
Nokia submitted a comment
in which it said that the FCC "should initiate a formal
rulemaking to further consider the issues raised in CTIA's
petition and should ultimately adopt nationally uniform
principles that provide consumers with strong location privacy
protection." It added that "As third-generation (3G)
and other advanced wireless services continue to develop,
location based information will play an increasingly critical
role in providing consumers with valuable services that will
increase their efficiency and safety." Nokia added that
rules should apply to all entities with location information. Ericsson submitted a comment
in which it too supported the CTIA's petition, and argued that
"ensuring the security and integrity of personal private
information is important to foster the wide deployment of
location-based services." It also stated that the
"FCC should consider privacy principles that hold
carriers and overlay providers to the same standards of
conduct."
Sprint PCS filed a comment
in which it stated that it "supports Commission
confirmation of the Fair Information Practices policies
(notice, consent, access and security) -- whether by rule or
via a policy statement. However, for two reasons, Sprint PCS
submits that the Commission must resist the temptation to
adopt new detailed regulations at this time. First, the
provision of location-based services is at an embryonic stage.
... Second, the Commission must recognize that it lacks
authority to regulate most entities that will generate or gain
access to wireless location information. The Commission's
jurisdiction over CPNI is limited to "telecommunications
carriers," but most of the entities that will have access
to wireless location information will be non-carrier third
parties." It also argued for preemption of state laws.
Verizon Wireless filed a
comment in which it stated that "does not believe that a
new set of Commission regulations on the use of location
information is necessary at this time." The Wireless Advertising
Association, a group organized last year, submitted a comment
arguing that the FCC should not conduct a rule making
proceeding, and should instead rely upon voluntary industry
self regulation.
The EPIC filed
a comment
in which it stated that the "devices and services that
will make use of location data will be varied and complex,
ranging from hand-held personal digital assistants ("PDAs"),
such as a Palm Pilot or a Blackberry, to automotive
navigational systems." The EPIC argued that the FCC
should adopt rules that are "technology neutral",
and thus, extend to entities beyond the jurisdiction of the
FCC. The EPIC further wrote that the FCC "should seek
comment on extending similar privacy regulation to any such
business, and its authority to impose such regulation ...
[and] consider making legislative recommendations to Congress
... to ensure that location data is treated uniformly
..." The Media
Access Project also signed this comment. The CDT also filed a comment
in which it argued that the FCC should conduct a rule making
proceeding separate from the CPNI docket. |
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| New Documents |
Weller:
HR
1411, Expensing Technology Reform Act of 2001, 4/5 (HTML,
TLJ).
Weller: statement
re tax treatment of software and hardware purchases, 4/5
(HTML, TLJ).
USTR:
notice
re Ukraine and intellectual property rights, 4/6 (TXT, FedReg).
GAO:
report
re medical privacy regulations, 4/6 (PDF, GAO). |
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| FCC Appointments |
4/6. President Bush announced his intent to nominate
Kevin Martin, Kathleen Abernathy, and Michael Copps to be
Commissioners of the Federal
Communications Commission. See, White
House release. If confirmed, there will be three
Republicans and two Democrats on the Commission.
Kevin Martin is a former Legal Advisor to outgoing
Commissioner Harold Furchtgott-Roth. He authored many of HFR's
dissenting opinions, speeches and statements for Congressional
committees on common carrier matters. These typically
advocated free market approaches, and adherence to
Congressional statutes. But, his name did not appear on these
documents. However, Tech Law Journal did transcribe one panel
discussion in which Martin participated in 1999. He
previously worked at Wiley Rein
& Fielding, a Washington DC based law firm with
Republican ties that specializes in communications law. Senior
partner Richard Wiley is a former General Counsel,
Commissioner, and Chairman of the FCC during the Nixon and
Ford administrations. Fred Fielding was the White House
Counsel for the first six years of the Reagan administration.
Last year Martin was Deputy General Counsel for Bush for
President; he is currently Special Assistant to the President
for Economic Policy. He will be nominated for a five-year term
expiring June 30, 2006.
Kathleen Abernathy, also a Republican, is VP for Public
Policy of BroadBand Office
Communications. She was previously VP of Air Touch
Communications. Before that, she worked at the FCC as a
Legal Advisor to former Commissioner Sherry Marshall and as
Legal Advisor to former Chairman James Quello. She will be
nominated for the remainder of a five-year term expiring June
30, 2005.
Michael Copps, a Democrat, was a longtime aide to Sen. Ernest Hollings
(D-SC), the Ranking Democrat on the Senate Commerce
Committee, which oversees the FCC. He was Assistant
Secretary of Commerce for Trade Development from 1998 to 2001,
and Deputy Assistant Secretary of Commerce for Basic
Industries from 1993 to 1998. From 1989 to 1993, he held the
position of Senior Vice President of the American Meat
Institute and from 1985 to 1989 he was Director of Government
Affairs for Collins and Aikman Corporation. Copps served
for 15 years in the Office of Senator Fritz Hollings in
several positions including Chief of Staff. He will be
nominated for the remainder of a five-year term expiring June
30, 2004. |
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| Reaction to FCC Picks |
FCC Chairman Michael Powell released a statement
in which he said "Each of the three nominees -- Kathleen
Abernathy, Michael Copps and Kevin Martin -- if confirmed by
the Senate, will bring important experience and expertise to
the Commission and I welcome the opportunity to carry out the
responsibilities of the FCC with them."
Outgoing Commissioner Harold Furchtgott-Roth also released a statement:
"President Bush has chosen very wisely. ... I have every
confidence that they will be a credit to the Commission and to
the country. I am particularly pleased with President Bush’s
selection of Kevin Martin. Before joining President Bush's
election campaign as Deputy General Counsel, Kevin served with
distinction on my staff. His first hand experiences inside the
Commission, keen intellect, good humor, and strong commitment
to public life will serve him well. Kevin will be an
outstanding Commissioner ..."
Rep. Billy Tauzin
(R-LA), Chairman of the House Commerce Committee,
had this to say: "They may be incoming freshmen, but
there are no rookies in this class. All three of the nominees
have impeccable credentials and fully understand the important
role telecommunications plays in our global economy. I plan to
meet with each of them individually in the upcoming weeks to
discuss the importance of working with Congress to
fundamentally reform the FCC." See, statement. |
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| Ukraine Special 301 |
| 4/6. The USTR published
a notice
in the Federal Register pertaining further actions against
Ukraine for its denial of adequate protection of intellectual
property rights. On March 12, the USTR designated Ukraine as a
"Priority Foreign Country" under the "Special
301" program. Section 301 is the statutory means by which
the U.S. asserts its international trade rights, including its
rights under WTO Agreements. Under the "Special 301"
provisions of the Trade Act of 1974, the USTR identifies
trading partners that deny adequate and effective protection
of intellectual property or deny fair and equitable market
access to U.S. artists and industries that rely upon
intellectual property protection. The USTR now invites
interested persons to submit written comments and to
participate in a public hearing concerning further action.
Requests to appear at the public hearing are due by April 13,
2001. Written testimony is due by April 20, 2001. A public
hearing will be held on April 27, 2001. Written comments and
rebuttal comments are due by May 7, 2001. See, Federal
Register, April 6, 2001, Vol. 66, No. 67, at Pages 18346 -
18348. See also, USTR
release of March 13. |
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| Federal Circuit |
4/6. The U.S.
Court of Appeals (FedCir) issued its opinion in Waymark
v. Porta Systems, a patent infringement
case. The case involves U.S. Patent No. 5,505,929, which
claims a system and corresponding method for monitoring the
capacity of batteries in a string. Waymark filed a complaint
for patent infringement against Porta Systems. The District
Court granted summary judgment of non-infringement, and the
Appeals Court affirmed. However, because the District Court
relied on an incorrect interpretation of § 271(f)(2) in
reconsidering summary judgment, the Appeals Court vacated in
part and remanded.
4/6. The U.S.
Court of Appeals (FedCir) issued its opinion in
Bridgestone v. Automobile Club De L'Ouest De La France, a case
involving the defense of laches to a trademark claim.
Bridgestone is the owner of Trademark Registration No. 756,436
for the mark LEMANS for "pneumatic rubber tires" on
the principal register, issued on September 10, 1963. The
Automobile Club sought cancellation of Bridgestone's
registration, 27 years later, on the ground that Bridgestone's
trademark use of LEMANS falsely suggested a connection with
the Automobile Club and its sponsorship of its annual Le Mans
automobile race, in violation of §2(a) of the Lanham Act.
Bridgestone raised the defense of laches. The USPTO Trademark
Trial and Appeal Board granted the petition of the Automobile
Club to cancel the registration. The Appeals Court reversed.
4/6. The U.S. Court of
Appeals (Fed Cir) heard oral argument in Allvoice
Computing v. Dragon Systems, Appeal No. 00-1428.
4/6.. The U.S. Court of
Appeals (Fed Cir) heard oral argument in Goldtouch
Technologies v. Microsoft, Appeal No. 00-1430. |
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| Depreciation |
| 4/5. Rep. Jerry
Weller (R-IL) and Rep.
Richard Neal (D-MA) introduced HR
1411 IH, the Expensing Technology Reform Act of 2001. The
bill would reform the Internal Revenue Code by updating the
existing depreciation schedules for high tech assets.
Rep. Weller explained the bill in a statement
in the Congressional Record. "Currently, businesses must
depreciate much of their high tech equipment over a 5 year
period. This bill would allow businesses to expense these
assets. The 5 year depreciation lifetime for tax purposes is
outdated since many companies today must update their
computers as quickly as every 14 months in order to stay
technologically current. We allow businesses to expense their
computers, peripheral equipment, servers, networks, wireless
telecommunications equipment, software, high tech medical
equipment and copiers in this bill." |
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| More Bills |
4/6. Sen. Bill
Nelson (D-FL) introduced S 729, a bill to provide grant
money to states to enable states to expand the opportunity for
citizens to vote over the Internet. It was referred to the
Senate Committee on Rules and Administration.
4/5. Sen. Charles Schumer
(D-NY) introduced S 705, a bill to establish a health
information technology grant program for hospitals, skilled
nursing facilities, and home health agencies. It was referred
to the Senate
Finance Committee.
4/5. Sen. Olympia Snowe
(R-ME) and Sen. John Kerry
(D-MA) introduced S 714, a bill to urge the USTR to pursue
the establishment of a small business advocate within the WTO.
It was referred to the Senate Finance
Committee.
4/5. Sen. Bill Frist
(R-TN) introduced S
722, a bill to amend the Communications Act of 1934 to
prohibit telemarketers from interfering with the caller
identification service of any person to whom a telephone
solicitation is made. It was referred to the Senate Commerce
Committee. The House Commerce Committee approved a related
but not identical bill, HR
90, on February 28. |
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| Hastert on High Tech |
| 4/2. House Speaker
Denny Hastert (R-IL) gave a speech
in Chicago, Illinois, in which he addressed Internet taxes and
privacy. He said that "Congress originally enacted the
moratorium to prevent thousands of state and local taxing
jurisdictions from using the Internet as a cash cow. Well, in
October, the moratorium ends. Rather than slow down the
Internet with a slew of new taxes, we must extend the
moratorium ..." He also said that "I believe it is
the Internet technology industry's job to lead when it comes
to privacy matters." |
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| Medical Privacy |
| 4/6. The GAO
released a report
[PDF] titled "Medical Privacy Regulation: Questions
Remain About Implementing the New Consent Requirement."
The report was written at the request of Sen. James Jeffords
(R-VT), Chairman of the Senate Health, Education, Labor and
Pensions Committee. |
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| NIPC Advisory |
| 4/6. The FBI's National
Infrastructure Protection Center issued an advisory
restating PDG Software's
advisory to customers of its Shopping Cart software regarding
a potential security vulnerability. The NIPC stated that it
issued this advisory "to confirm the significance of this
vulnerability and to let systems administrators know that
hackers are actively exploiting it. Based on ongoing
investigations, including information immediately provided to
the FBI by PDG Software and numerous victim companies, the
NIPC is aware that the vulnerability has already resulted in
compromise and theft of important information, including
consumer data." |
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| Securities Fraud |
| 4/4. The U.S. District Court (SDFl)
entered judgment against Sean Healey enjoining him from
further violations of § 17(a) of the Securities Act of
1933 and § 10(b)
of the Securities Exchange Act of 1934 and Rule 10b-5
thereunder. The Court further ordered disgorgement and a civil
penalty. The SEC alleged
that Healey and other defendants used wash sales to create the
appearance of active stock trading in the stock of New
Directions Manufacturing, Inc., a company quoted on the NASD's
OTC Bulletin Board system. Healey and another defendant then
arranged to have a false and misleading research report
published on a stock-picker web site, on their own web site,
and through unsolicited mass e-mails. See, SEC
release. |
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| About Tech Law Journal |
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legislation, litigation, and regulation affecting the computer
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Contact: 202-364-8882; E-mail.
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