Tech Law Journal Daily E-Mail Alert
June 18, 2001, 8:00 AM ET, Alert No. 210.
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9th Circuit Rules in Electronic Surveillance Case
6/15. The U.S. Court of Appeals (9thCir) issued an en banc opinion [PDF] in Cramer v. Consolidated Freightways, a case regarding surreptitious electronic surveillance of employees and the right to privacy. The Appeals Court rejected an argument that the LMRA preempted this state law privacy action.
Facts and Trial Court Proceedings. Consolidated Freightways (CF), a trucking company, installed hidden cameras and microphones in employee bathrooms. This violates the California criminal code. Employees and others filed two separate complaints in California Superior Court alleging violation of privacy based upon state law. CF removed both cases to the U.S. District Court (CDCal), where they were consolidated. CF argued that 301 of the Labor Management Relations Act (LMRA) preempted the state law action because the plaintiffs were subject to a collective bargaining agreement (CBA). The trial court dismissed as to all plaintiffs, except those who were not employees of CF.
Holding. The Appeals Court was unimpressed with the preemption argument. It held that since the CBA did not cover privacy claims, there could be no preemption. However, the Court continued that " when an employer's surreptitious surveillance constitutes a per se violation of established state privacy laws, the employees affected thereby may bring an action for invasion of privacy regardless of the terms of the collective bargaining agreement governing their employment." The parties to a CBA cannot bargain to do that which is illegal. Judge Raymond Fisher wrote the opinion of the en banc panel. Judge Tallman wrote a concurring opinion. Judge O'Scannlain dissented. Reversed and remanded.
DC Circuit Affirms FCC in Qwest v. FCC
6/15. The U.S. Court of Appeals (DCCir) issued its opinion in Qwest v. FCC, a petition for review of an FCC order. The Appeals Court denied the petition of Qwest and others to the FCC's order granting complaints by paging carriers that local exchange carriers (LECs) improperly imposed charges for facilities used to deliver LEC originated traffic and for Direct Inward Dialing numbers in violation of 201(b) and 251(b)(5) of the Communications Act and regulations thereunder.
DC Circuit Affirms FCC in NECA v. FCC
6/15. The U.S. Court of Appeals (DCCir) issued its opinion in NECA v. FCC, a petition for review of an FCC order adopting a formula for distributing money from the Universal Service Fund (USF) to subsidize high cost telephone service providers and thereby promote telephone subscribership. The Appeals Court denied the petition.
Judge Dismisses All Claims in DC Tower Case
6/15. The U.S. District Court (DDC) issued its opinion [PDF] in American Towers v. District of Columbia. The District of Columbia (DC) issued a permit to American Towers (AT) to build a 756 foot communications tower in Northwest DC. AT started construction. DC then revoked the permit. AT filed a complaint for declaratory and injunctive relief that would allow it to proceed with construction, asserting violations of several sections of the Communications Act, and the equal protection and due process clauses of the Constitution. The Court ruled for DC on all claims, and dismissed with prejudice.
New Documents
USCA: opinion in Cramer v. Consolidated Freightways, re LMRA preemption of privacy actions, 6/15 (PDF, USCA).
USCA: opinion in NECA v. FCC re Universal Service Fund, 6/15 (TXT, USCA).
USCA: opinion in Qwest v. FCC, 6/15 (TXT, USCA).
Cannon: HR 2120, the Broadband Antitrust Restoration and Reform Act, 6/12 (HTML, LibCong).
Holt: HR 2148, a bill to re-establish the Office of Technology Assessment, 6/13 (HTML, LibCong).
Murray: S 1056, a bill to provide grants for  community communications planning, 6/14 (HTML, LibCong).
Feinstein: S 1055, a comprehensive privacy bill, 6/14 (HTML, LibCong).
Sen. Feinstein Introduces Privacy Bill
6/14. Sen. Dianne Feinstein (D-CA) introduced S 1055, a bill titled the Privacy Act of 2001. This is a long and comprehensive bill dealing with many privacy related topics. It would restrict the dissemination of personally identifiable information, limit the use of social security numbers, amend the Gramm Leach Bliley bill, regulate the use of medical information privacy, and extend drivers license privacy. The bill was referred to the Senate Judiciary Committee. See, Feinstein release.
Personally Identifiable Information. Title I of the bill provides that "It is unlawful for a commercial entity to collect personally identifiable information and disclose such information to any nonaffiliated third party for marketing purposes or sell such information to any nonaffiliated third party, unless the commercial entity provides (A) notice to the individual to whom the information relates in accordance with the requirements of subsection (b); and (B) an opportunity for such individual to restrict the disclosure or sale of such information." It would also preempt similar state laws, and provide civil enforcement authority to the FTC.
Social Security Numbers. Title II of the bill provides limitations on the use of social security numbers. It provides that "no person may display any individual's social security number to the general public without the affirmatively expressed consent of the individual ... no person may sell or purchase any individual's social security number without the affirmatively expressed consent of the individual ... No person may obtain any individual's social security number for purposes of locating or identifying an individual with the intent to physically injure, harm, or use the identity of the individual for any illegal purpose". This title of the bill provides for criminal enforcement and a private right of action.
Financial Information. Title III of the bill contains comprehensive amendments to the Gramm Leach Bliley bill regarding the sale of nonpublic personal information.
Health Information. Title IV of the bill contains comprehensive prohibitions on the sale of health information.
Sen. Byrd Addresses Trade with China
6/14. Sen. Robert Byrd (D-WV) addressed a hearing of the U.S. China Congressional Commission. He stated that the PR of China is "operating in the United States, to procure advanced dual-use and military technology, such as high-performance computers and navigation and communications equipment. Some sources estimate that there are as many as 3,000 Chinese government front companies operating in the United States." See, statement.
Sen. Murray Introduces Telecom Planning Grant Bill
6/14. Sen. Patty Murray (D-WA) and others introduced S 1056, a bill titled the Community Telecommunication Planning Act of 2001. The bill authorizes the federal government to make grants totaling $60 Million in FY 2002 (and unspecified amounts thereafter) for "community telecommunications infrastructure planning". Local governments, non-profits, and public utilities would be eligible. Priority would go to rural and underserved areas. The bill was referred to the Senate Commerce Committee. She said in the Senate that "This bill can open the door for thousands of small and rural areas across our state to tap the potential of the information economy." See, Murray release.
More News
6/15. The FCC's Office of Engineering and Technology provided a tutorial on voice over the Internet, including next generation networks based on VoIP, soft switches, media gateways, media servers, VoIP standardization status, and market drivers of VoIP technologies. See, FCC notice.
6/15. The Senate Government Affairs Committee's Subcommittee on Investigations held the second of two hearings on cross border fraud, focusing on U.S. Canadian law enforcement cooperation.
6/13. Jesus Oquendo was sentenced in U.S. District Court (SDNY) to 27 months in prison for computer hacking and electronic eavesdropping. He is a former computer security specialist whose hacking began with physical access to the offices of his first victim. See, release.
People and Appointments
6/15. FCC Commissioner Kathleen Abernathy named Bryan Tramont to be her Senior Legal Advisor. He was previously Senior Legal Advisor to former FCC Commissioner Harold Furchtgott- Roth. He is also currently an adjunct professor at Catholic University in Washington DC. Tramont is also a former associate in the Washington DC office of the law firm of Wiley Rein & Fielding. Abernathy also named Ann Monahan to be her Confidential Assistant, and Tjuana Price to be a Staff Assistant (with responsibility of scheduling). See, release.
6/15. USTR Robert Zoellick named Regina Vargo Assistant USTR for the Americas. See, USTR release.
Monday, June 18
The House will meet at 2:00 PM in pro forma session.
4:00 PM. Public ceremonial swearing in of FTC Chairman Timothy Muris. Location: FTC, 600 Pennsylvania Ave., NW, Room 432, Washington DC.
6:30 PM. Intel Chairman Andy Grove will deliver a speech titled "Building the Internet Economy" at a dinner event hosted by the Progressive Policy Institute (PPI) and the Intel Corporation. The event is open to the media and free of charge. RSVP to Katharine Lister at 202- 547-0001. See, PPI release. Location: The Mayflower Hotel, State Room, 1127 Connecticut Avenue, NW, Washington DC.
Deadline to submit comments to the U.S. Copyright Office in response to its Notice of Proposed Rulemaking (NPRM) regarding proposed amendments to its regulation governing notices of termination of transfers and licenses covering the extended renewal term. The current regulation is limited to notices of terminations made under section 304(c) of the copyright law. The Sonny Bono Copyright Term Extension Act created a separate termination right under section 304(d). Under the proposed regulation, procedures governing notices of termination of the extended renewal term would cover notices made under either section 304(c) or 304(d). See, Federal Register, May 3, 2001, Vol. 66, No. 86, at Pages 22139 - 22140. See also, PDF copy in CO web site.
Tuesday, June 19
The House will meet at 12:30 PM for morning hour and 2:00 PM for legislative business. No recorded votes are expected before 6:00 PM. No tech bills are on the agenda.
9:30 AM. The Senate Commerce Committee will hold a hearing on local phone competition. The scheduled witnesses are Rep. Ed Markey (D-MA), Michael Armstrong (AT&T), Margaret Greene (BellSouth), Royce Holland, (Allegiance Telecom), Clark McLeod (McLeod USA), David Rolka (Rhoads & Sinon), Dave Sullivan (State Senator, Illinois), Gene Kimmelman (Consumers Union). Location: Room 253, Russell Senate Office Building.
12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a lunch panel discussion titled "Wireless Privacy and the Mobile Internet". The panelists will include Robert Petit (Wiley Rein & Fielding), James Dempsey (Center for Democracy & Technology), John Collins (Mobility Technologies), Marci Weisler (Vindigo), Becky Richards (TRUSTe), and Jonas Niehardt (Qualcomm). RSVP to Danielle at 202-638-4370. Location: Room 2168 (Gold Room), Rayburn House Office Building.
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