Tech Law Journal Daily E-Mail Alert
May 23, 2001, 8:00 AM ET, Alert No. 193.
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GAO Reports on NIPC Weaknesses
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 Crime
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 of Barr, Malone, Harvill, and Blumenfeld.
Privacy and Social Security Numbers
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 his opening 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."
Subcommittee Approves Patent Bills
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) in In 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 adequately consider."
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. ..."
Rule Correction
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 and Copyright
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) and 112 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 E-Commerce
5/22. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection held a hearing on Impediments to Digital Trade. See, prepared testimony of witnesses: Bonnie Richardson (Motion Picture Association of America), George Vradenburg (AOL/Time Warner), Deborah Waggoner (Corning Inc.), Barbara Wellbery (Morrison and Foerster), and Jeffrey Kovar (State Dept.). See also, release or Rep. Cliff Stearns (R-FL), Chairman of the Subcommittee.
Trade and Fast Track
5/22. The Progressive Policy Institute, a Democratic Party think tank, released a briefing 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".
FCC Budget
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 testimony [PDF].
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 release.
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, Rayburn Building.
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, Russell Building.
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 Building.
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, Dirksen Building.
Wireless Spectrum Cap
5/22. The Consumers Union and Consumer Federation of America submitted a comment [PDF] to the FCC in which they argued that the FCC should not lift the 45 MHz spectrum cap for wireless services. (See, FCC Docket No. 01-14.)
More News
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.
5/22. BellSouth 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 release.
5/22. President Bush nominated Lavenski Smith to be U.S. Circuit Judge for the Eighth Circuit. See, release.
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