Tech Law Journal Daily E-Mail Alert
May 31, 2001, 8:00 AM ET, Alert No. 198.
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Privacy: Government Web Site Cookies
5/30. The GAO released a report [PDF] titled "Internet Privacy: Implementation of Federal Guidance for Agency Use of "Cookies" ". The report was written at the request of Sen. Fred Thompson (R-TN), Chairman of the Senate Governmental Affairs Committee. It reviewed federal agencies' compliance with the June 2000 Office of Management and Budget (OMB) guidance that established a presumption that persistent (as opposed to session) cookies will not be used on federal Web sites. The report found that "Of the 65 sites we reviewed, 57 did not use persistent cookies on their Web sites. However, of the eight sites that were using persistent cookies, four did not disclose such use in their privacy policies, as required by OMB. The remaining four sites using persistent cookies did provide disclosure but did not meet OMB's other conditions for using cookies. In addition, four other sites -- that did not use cookies -- did not post privacy policies on their home pages."
Public Participation in the ICANN
5/30. The NGO and Academic ICANN Study (NAIS) group released its interim report on elections and public participation in the ICANN. See, executive summary [HTML] and full report [540 KB in PDF]. The report states that "the legitimacy of ICANN's structure and policies have been questioned by various players in the Internet community. The central plank of this criticism is that ICANN's organizational structures and activities do not comply with the ethos of good and democratic governance." The 107 page report concludes that "If ICANN is a public entity formulating policy about the Internet, with broad impact on the public globally, then the legitimacy of ICANN will depend on public representation. If ICANN is viewed as a private business engaged in narrow technical work, the case for public participation in its decisions or selection of its directors is weaker."
E-Rate Subsidies
5/30. May 30 was the deadline to file reply 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, reply comments in PDF submitted by Funds for Learning, Council of the Great City Schools, and Education and Library Networks Coalition.
Bush Addresses Trade and Fast Track
5/29. President Bush gave a speech in California to the Los Angeles World Affairs Council in which he addressed trade and fast track trade negotiating authority. He stated that "I'm asking the United States Congress to approve U.S. trade promotion authority this year. And because trade creates prosperity, and prosperity promotes democracy, I will notify Congress on June 1st that I intend to extend normal trade relation status with China for another year."
President Bush also stated that free trade will promote democracy in the PRC. "Open trade is a force for freedom in China, a force for stability in Asia, and a force for prosperity in the United States. And this is not just my personal view; the institutions and individuals in China who are the least friendly to freedom are often the least friendly to trade. The institutions and individuals most sympathetic to freedom are often the most friendly to trade. They know what I know: Free trade supports and sustains freedom in all its forms. Free trade has expanded the portion of China's economy that is independent of the state. Free trade has swelled the ranks of independent businessmen. Free trade has introduced new technologies that offer Chinese people access to uncensored information and democratic ideas. When we open trade, we open minds. We trade with China because trade is good policy for our economy, because trade is good policy for democracy, and because trade is good policy for our national security."
Bush also stated that "we will secure our nation's energy future by generating clean and reliable power on which high-tech economy depends."
New Documents
EEOC: determination that library policy of unrestricted Internet access creates sexually hostile work environment, 5/23 (HTML, TLJ).
Pear: complaint against the Minneapolis Public Library re Internet access policy, 5/2/00 (HTML, TLJ).
CCA: opinion in M.G. v. Time Warner re invasion of privacy, free speech and SLAPP suits, 5/30 (PDF, CCA).
Bush: speech re trade and fast track, 5/30 (HTML, State).
GAO: report re use of persistent cookies by government web sites, 5/30 (PDF, GAO).
Invasion of Privacy v. Freedom of Speech
5/30. The California Court of Appeal (4/2) issued its opinion [PDF] in M.G. v. Time Warner, a case involving privacy rights and the California SLAPP statute. This is a case involving old media -- magazines and TV -- not Internet technology; however, the legal issues involved also pertain to Internet media and speakers.
Facts. Time Warner (now AOL Time Warner) published stories in a print publication (Sports Illustrated) and in a TV program about a child molester who coached little league baseball. The stories included a photograph of a team which he had coached. Some of the children in the picture had been molested by him.
Trial Court Proceeding. The plaintiffs, children and normal adult coaches who were captured in the picture, filed a complaint in the Superior Court of San Bernardino County against Time Warner alleging invasion of privacy and other claims. Time Warner filed a motion to strike the complaint, arguing that it violated CCCP 425.16, the anti SLAPP statute. SLAPP is the acronym for Strategic Lawsuits Against Public Participation. The trial court denied the motion, and Time Warner appealled.
SLAPP Statute. See, California Code of Civil Procedure, Sections 425.10 - 425.16. Section 425.16(a) provides that "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process."
Appeals Court Holding. The Appeals Court first noted that while the statute may have first been conceived to protect impecunious protesters from wealthy plaintiffs, it has been applied to protect media defendants. The Court then followed a two part analysis. It first analyzed whether the anti SLAPP statute applies in this case. It held that since Time Warner, in publishing and broadcasting on the serious topic of child molestation, exercised its right of free speech concerning an issue of public interest in a public forum, the anti SLAPP statute applies. The Court next analyzed whether the plaintiffs presented a prima facie case. It held that they had presented a prima facie claim that the private fact of their membership on the molester's team was not newsworthy. The Court therefore held that, based on the theory of invasion of privacy for public disclosure of private facts, their cause of action is sufficient to overcome defendants' SLAPP motion. Affirmed.
Lawyers. The law firm of O'Melveney and Myers and Harvard Law Professor Laurence Tribe represented Time Warner.
Ultrawideband News
5/30. XtremeSpectrum submitted to the FCC a presentation outline [PDF] regarding ultrawideband (UWB) transmission systems, and in particular, their interference with existing systems. UWB operates across a wide range of spectrum frequencies at low power levels using very narrow pulses. Hence, there is the potential for interference. It is a promising technology that can be used for wireless networks, remote sensing or tracking, and ground penetrating radars.
DOC Issues Request for Quotations for .us Top Level Domain
5/30. The Department of Commerce published in its web site a notice that it intends to issue a written solicitation (Request for Quotations) on behalf of the NTIA for services to establish centralized management and coordination of the registry, registrar, database, and information services for the .us top level domain (usTLD).
E-SIGN and SEC Record Keeping Rules
5/30. The SEC published in the Federal Register a final rule regarding electronic storage of required records. The SEC adopted amendments to its rules, which are effective May 30, 2001, that permit registered investment companies and registered investment advisers to preserve required records using electronic storage media such as magnetic disks, tape, and other digital storage media. This rule change is made pursuant to the Electronic Signatures in Global and National Commerce Act (E-SIGN). See, Federal Register, May 30, 2001, Vol. 66, No. 104, at Pages 29224 - 29229.
SEC Selects New Office Location
5/29. The SEC announced that it selected a new location for its Washington DC headquarters. The new site will be on the corner of F and 2nd Streets, NE, adjacent to Union Station and the Thurgood Marshall Building. The building, named Station Place, is not yet under construction. It is scheduled for occupancy in approximately three years. See, SEC release.
Library Policy of Unrestricted Internet Access Creates Sexually Hostile Work Environment
5/23. The Equal Employment Opportunity Commission (EEOC), Minneapolis Area Office, issued a Determination that the Minneapolis Public Library subjected librarians employed by the library to a "sexually hostile work environment" in violation of Title VII of the Civil Rights Act of 1964. The librarians filed complaints with the EEOC that stated that the library's policy of unrestricted Internet access, which allowed patrons to view and print out any obscene content, combined with the library's policy that librarians enforce a 30 minute time limit on Internet use, forced librarians to observe obscene content, subjected librarians to abuse by patrons accessing obscenity, and exposed librarians to masturbatory scholars. See, complaint of one librarian.
The EEOC ruled for the librarians. It wrote: "Based on the Commission' investigation, the Commission is able to conclude that the information obtained established violations of the statutes with regards to the allegations set forth in the charge, that the Respondent did subject the Charging Party to sexually hostile work environment. This is in violation of Title VII of the Civil Rights Act of 1964, as amended." The EEOC added that "it shall endeavor to eliminate the alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion."
Pro filtering groups, including the Family Research Council and the American Family Association, praised the EEOC's determination. See, FRC release.
The House and Senate are in recess this week for the Memorial Day District Work Period.
Friday, June 1
Recommended deadline for submitting written materials to the NIST regarding the June 19-21, 2001, meeting of the Computer System Security and Privacy Advisory Board (CSSPAB). The Advisory Board was established by the Computer Security Act of 1987 (Public Law 100-235) to advise the Secretary of Commerce and the Director of NIST on security and privacy issues pertaining to federal computer systems. The meeting will be held at the John Marshall School of Law in Chicago, Illinois. See, notice in Federal Register, May 11, 2001, Vol. 66, No. 92, at Page 24117.
12:15 PM. The Federal Communications Bar Association's Wireless Committee will host a luncheon.
Trade Groups Release White Papers on Antitrust
5/30. The Association for Competitive Technology (ACT) and the Computing Technology Industry Association (CompTIA) released a report [PDF] which rebutes a report [PDF] issued by ProComp on May 15, and an earlier report. ProComp, which is funded by Microsoft's competitors, alleged that "Microsoft has ... introduced a series of business initiatives that put Microsoft in a position to extend its monopoly to the Internet itself." The trade groups supporting Microsoft responded that this is "yet another effort by Microsoft rivals to misuse the antitrust laws to stifle the very competition and innovation these laws are designed to promote. The actions of Microsoft which were attacked in the ProComp white papers violate neither the antitrust laws nor the 1995 consent decree." Boyden Gray, a partner at the Washington DC law firm of Wilmer Cutler & Pickering, and a contributor to the ACT CompTIA report, stated in a release that "Not surprisingly, the beneficiaries of a breakup would be Microsoft rivals Oracle and Sun, but those who would be harmed most by a breakup are the ones that antitrust law is designed to protect -- consumers."
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