|GAO Reports on NIPC
|5/22. The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism and Government Information held a hearing titled Challenges
in Cybercrime: The National Infrastructure Protection Center.
See, GAO report
[PDF] titled "Critical Infrastructure Protection:
Significant Challenges in Developing National
Capabilities", and prepared
testimony [PDF] of Robert Dacey, Director of Information
Security Issues at the GAO.
The report concluded that the FBI's NIPC "has issued numerous
analyses to support investigations of individual incidents,
but it has developed only limited capabilities for strategic
analysis of threat and vulnerability data. Accordingly, the
NIPC often is not able to provide timely information on
changes in threat conditions or warnings of imminent
attacks." The report also concluded that "it will
take an intense interagency effort to develop the related
methodology. In addition, information on critical
infrastructure components has not been provided to the NIPC,
and the NIPC does not yet have adequate staff and technical
expertise." In contrast, the report found that "The
NIPC has had greater success in providing technical support
and coordination for the FBI’s investigations of attacks on
computer systems, which it refers to as 'computer crime.'
|AG Ashcroft Addresses Cyber
|5/22. Attorney General John Ashcroft gave a speech
to the First Annual Computer Privacy, Policy, and Security
Institute at Rocky Mountain
College in Billings, Montana. He discussed the
difficulties involved in investigating cybercrimes, and
efforts by the FBI and DOJ to increase the cyber crime
capabilities. He also encouraged victims of cybercrimes to
promptly report criminal activity.
|Cyber Crime Sentencing
|5/21. The U.S. District Court (NDCal)
sentenced Max Butler (aka Max Vision) to 18 months in prison
for the felony charge of unauthorized access into protected
computers recklessly causing damage. See, release.
|House Judiciary Committee
Holds Hearing on Broadband Bills
|5/22. The House
Judiciary Committee held a hearing HR
1698, the "American Broadband Competition Act of
2001," and HR
1697, the "Broadband Competition and Incentives Act
of 2001," a pair of bills introduced on May 3, 2001 by Rep. Chris Cannon
(R-UT) and Rep. John
Conyers (D-MI). The Committee also heard testimony on HR
1542, a bill sponsored by Rep. Billy Tauzin
(R-LA) and Rep. John
Dingell (D-MI), and reported by the House Commerce
Committee on May 9. The sponsors and supporters of all of
these bills assert that they will incent widespread deployment
of broadband services.
The Committee Chairman, Rep. James
Sensenbrenner (R-WI), presided. He said in his opening
statement that "I want to ensure that all Americans
get high speed broadband service as quickly as possible while
at the same time maintaining competition and choice in that
market. Both of the bills before us today as well as the
Tauzin Dingell proposal seek that same goal. The question is
which, if any of them, will work? Contrary to what some have
suggested, I have not decided that question for myself."
Ranking Democrat, Rep.
John Conyers (D-MI), in contrast, is a sponsor and
supporter of the HR 1698 and HR 1697.
Bob Barr, General Counsel of Verizon,
testified against HR 1698 and HR 1697, as did John Malone, a
telecom industry consultant. Terry Harvill, a Commissioner on
the Illinois Commerce Commission, and Jeff Blumenfeld,
managing partner of the law firm of Blumenfeld and Cohen,
testified in favor of the two bills. See, prepared testimony
|Privacy and Social Security
|5/22. The House
Ways and Means Committee's Subcommittee on Social Security
of the Committee on Ways and Means held a hearing on
protecting the privacy and preventing misuse of Social
Security numbers. Rep.
Clay Shaw (R-FL), Chairman of the Subcommittee, said in
statement that "I, along with several of my Ways and
Means colleagues, plan to reintroduce our bipartisan
legislation. I will then work with my colleagues from Ways and
Means, and from the other Committees of jurisdiction, to
quickly bring to the House floor comprehensive legislation to
keep Social Security numbers private and protect citizens from
identity theft." See, prepared testimony of witness: Nicole
Robinson (identity theft victim), Emeka
Moneme (identity theft victim), James
Huse (Social Security Admin.), Michael
Robinson (Social Security Admin.), Michael
Fabozzi (NYC Police Dept.), Charles
Bacarisse (District Clerk, Harris County, Texas), Cory
Kravit (University of Florida), Evan
Hendricks (Privacy Times), John
Dugan (Financial Services Coordinating Council), Marc
Rotenberg (EPIC), Ronald
Plesser (Individual Reference Services Group), Paula
LeRoy (Pension Benefit Information Services), and Edmund
Mierzwinski (U.S. Public Interest Research Group).
|First Amendment Rights of
Whistleblowers to Report Misuse of Government Computers
|5/22. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Hufford
v. McEnaney, a case involving First Amendment
rights of government employees to report misuse of government
computers. Hufford, Shift Captain of a local fire department
in Idaho, discovered that fire department employees had used a
fire department computer with Internet access to download pormography,
including pictures a females aged 7-9. He reported his
findings to a superior, and to the police department. The fire
department then fired Hufford in retaliation for reporting his
findings. Hufford filed a complaint in U.S. District Court (DId)
against the Chief, Deputy Chief, and Commissioners of the fire
department, alleging violation of 42
U.S.C. § 1983. The Defendants moved for summary judgment
on the grounds of qualified immunity. The District Court
denied the motion, and defendants brought this interlocutory
appeal. The Appeals Court affirmed. It wrote that
"discharging Hufford in retaliation for his truthful
whistleblowing violated his constitutionally protected right
to free speech."
|5/22. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Intellectual Property adopted two bills pertaining to
patent reexaminations, HR
1866 and HR
1886, by unanimous voice votes after a brief discussion.
HR 1866 is intended to overturn the opinion of the U.S. Court of Appeals (FedCir)
Re Portola Packaging. HR 1886 affords all participants,
including third party requesters, in reexamination proceedings
judicial review before federal appeals courts. Rep. Howard Berman
(D-CA) also used the occasion to suggest other changes to
patent law that he would like the subcommittee to consider at
some later date. See, excerpts
from the hearing.
Rep. Coble stated that "the 1997 In Re Portola Packaging
case ... has been widely criticized as undermining the goals
of Congress when it passed the 1980 reexamination statute.
Further, the case is criticized for having established an
illogical and overly strict bar concerning the scope of
reexamination requests. The bill that is under consideration
preserves the substantial question standard, which I like to
call the speed bump. We kept the speed bump intact. That is an
important safeguard to protecting vendors against frivolous
action, while allowing the process to continue as originally
intended. I believe that by adding this one sentence to the
Patent Act, we will help prevent the misuse of defective
patents, especially those concerning business methods."
The one sentence added by HR 1866 is as follows: "The
existence of a substantial new question of patentability is
not precluded by the fact that a patent or printed publication
was previously cited by or to the Office."
Rep. Berman added that the Portola cased "narrowly
construed the term "substantial new question of
patentability" to mean prior art that was not before the
examiner during an earlier examination. Because the PTO
Director can only order a reexamination if a substantial new
question of patentability exists, the Federal Circuit's
decision effectively bars the PTO from conducting a
reexamination based on prior art that was cited in the patent
application. The Portola decision is troublesome because it
prevents reexaminations from correcting mistakes made
examiners. Ideally, a reaxamination should be requested based
on prior art cited by an applicant that the examiner failed to
Rep. Berman also discussed other patent issues. "I think
you start us down the road, and I emphasize, START, down the
road, of making reexamination a far more attractive and
effective option for challenging a patent's validity. I look
forward to working with you on additional legislation to
further the improve the robustness and effectiveness of post
grant challenges. In particular, Mr. Chairman, I hope we can
expand post grant challenges to address the full range of
novelty, non- obviousness, and specificity requirements for
patentability. I believe post grant challenges should have
less draconian estoppel provisions than those applied
currently to inter partes reexamination. We should look to the
burden of proof, as it applies in post grant challenges, as
well as the adjudicator's discretion to gather additional
evidence. I also hope that we can work out some mutually
acceptable legislation to increase the strength of patents
that are issued by improving the examination process, for
example, by improving the prior art available to examiners.
Preventing bad patents from issuing is just as important as
curing defects in issued patents. ..."
|5/22. The USPTO published
in the Federal Register, and in its web site, a notice
of corrections to its final rule of March 22, 2001, revising
the rules of practice relating to applications filed under the
Patent Cooperation Treaty (PCT) to conform the United States
rules of practice to the PCT Regulations that became effective
on March 1, 2001.
|Internet Distance Learning
|5/17. The Senate
Judiciary Committee amended and reported S 487, the
Technology, Education and Copyright Harmonization (TEACH) Act
of 2001, sponsored by Sen.
Orrin Hatch (R-UT) and Sen.
Pat Leahy (D-VT). The bill would amend §§ 110(2)
of the Copyright Act to extend the distance learning
exemptions enacted in 1976 to digital delivery media. Under current
law, there are exemptions for
"face-to-face" and "transmission" teaching
activities; but, Internet based education is not referenced.
|Trade and Fast Track
|5/22. The Progressive
Policy Institute, a Democratic Party think tank, released
paper that supports, in part, President Bush's request for
fast track trade negotiating authority. The paper, which was
authored by Edward Gresser, stated that "We continue to
believe approval of trade promotion authority makes sense. It
is a proven way to facilitate passage of trade agreements in
the U.S. national interest".
|5/22. The House
Appropriations Committee's Subcommittee on Commerce,
State, Justice and the Judiciary held a hearing on the FY 2002
budget of the FCC. FCC
Chairman Michael Powell testified that the FCC seeks
$248,545,000, which is $18.5 Million more that the previous
year's appropriation, an 8 percent increase. See, Powell
|Cell Phone Health Issues
|5/22. The GAO
released a report
[PDF] titled "Telecommunications: Research and Regulatory
Efforts on Mobile Phone Health Issues." The report, which
was prepared at the request of Sen. Joe Lieberman
(D-CT) and Rep. Ed
Markey (D-MA), states that "the research to date does
not show that mobile phone radiofrequency emissions have
adverse health effects but there is not enough information at
this point to conclude that these products are without risk." Lieberman and Markey
called for further study. See, Markey
statement and Lieberman
release. See also, CTIA
|10:00 AM. The House
Commerce Committee's Subcommittee on Commerce, Trade, and
Consumer Protection will hold a hearing titled On-line
Fraud and Crime: Are Consumers Safe? Location: Room 2123,
10:00 AM. The House
Commerce Committee's Subcommittee on Oversight and
Investigations will hold a hearing titled "How Secure Is
Private Medical Information? A Review of Computer Security at
the Health Care Financing Administration and Its Medicare
Contractors." The scheduled witnesses include Michael
McMullan and Jared Adair (Health Care Financing
Administration), Joseph Vengrin and Ed Meyers (Department of
Health and Human Services), and Michael Neuman (En Garde
Systems, Inc.). Location: Room 2322, Rayburn Building.
10:00 AM. The House
Judiciary Committee will hold a mark up session. The
agenda includes HR 718, the Unsolicited Commercial Electronic
Mail Act of 2001. Location: Room 2141, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee might hold a hearing on several
judicial and Justice Department nominations, including:
Deborah Cook (6th Circuit), Jeffrey Sutton (6th Circuit), John
Roberts (DC Circuit), Ralph Boyd (Assistant Attorney General),
and Robert McCallum (Assistant Attorney General). Location:
Room 226, Dirksen Building.
12:15 PM. The Federal
Communications Bar Association's Online Committee will
host a brown bag luncheon. The speaker will be Cliff Sloan, VP
and General Counsel of the Washington Post - Newsweek
Interactive. RSVP to Diane
Hinson. Location: Lampert & O'Connor, Suite 600, 1750
K Street, NW, Washington DC.
1:00 - 4:30 PM. The SEC will host
a roundtable on issues related to relationships between
broker-dealers and Internet web sites. The roundtable will
address several questions, including: What is happening
outside of the financial services area on the Internet? What
is happening in the financial services area on the Internet?
How do broker-dealer web sites and other financial web sites
differ? What role do the NASD rules play? When is a web site
operator is a broker? What are the investor protection issues?
What are the alternatives to broker-dealer registration? See, agenda.
Location: Room 1C30, SEC, 450 Fifth Street, NW, Washington DC.
Deadline to submit nominations for the Electronic Tax
Administration Advisory Committee to the IRS. The ETAAC provides an
organized public forum for discussion of electronic tax
administration issues in support of the goal that paperless
filing should be the preferred and most convenient method of
filing tax and information returns. See, notice
in the Federal Register, April 23, 2001, Vol. 66, No. 78, at
Pages 20525 - 20526.
Deadline to file comments with the FCC in response to its Notice
of Proposed Rulemaking (NPRM) regarding revisions to the
method of subsidizing schools and libraries under its e-rate
program when there is insufficient funding to support all
requests. See, Federal Register, May 8, 2001, Vol. 66, No. 89,
at Pages 23204 - 23208.
|Thursday, May 24
|9:30 AM. The Senate
Commerce Committee will hold a mark up session. The agenda
includes votes on pending nomination to the FCC (Michael
Powell, Michael Copps, Kevin Martin, and Kathleen Abernathy),
the FTC (Timothy Muris), and the Department of Commerce (Bruce
Mehlman, Kathleen Cooper, and Mari Cino). Location: Room 253,
10:00 AM - 12:00 NOON. The FCC's Advisory Committee for
the 2003 World Radiocommunication Conference will hold its a
meeting. Location: FCC, Portals II, Room TW-C305 (Commission
Meeting Room), Washington DC.
10:30 AM. The House
Judiciary Committee's Crime Subcommittee will hold an
oversight hearing titled Fighting Cyber Crime: Efforts by
State and Local Officials. Location: Room 2237, Rayburn
2:00 PM. The Senate
Judiciary Committee might hold a hearing on competition in
the pharmaceutical marketplace, focusing on the antitrust
implications of patent settlements. Location: Room 226,
|5/21. The Court of Appeal of California (6thAppDist)
issued an opinion
[PDF] in Weshba v. Apple, a state class action against Apple
regarding its policy for technical support over the telephone.
filed with the Mississippi Public Service Commission a notice
of its intent to file with the FCC a petition for permission
to provide long distance service. See, BellSouth
5/22. President Bush nominated Lavenski Smith to be
U.S. Circuit Judge for the Eighth Circuit. See, release.
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