Tech Law Journal Daily E-Mail Alert
August 16, 2001, 9:00 AM ET, Alert No. 250.
TLJ Home Page | News from the Web | Calendar | Search | Back Issues Complains to FCC about AOL Time Warner
8/15. Texas Networking, Inc. ( filed a complaint and petition with the FCC seeking a declaratory ruling that AOL Time Warner (AOLTW) has not complied with the FCC's Memorandum Opinion and Order released January 22, 2001 in its AOL Time Warner merger proceeding. Specifically, alleged in its August 9 complaint that AOLTW has not complied with the provisions regarding allowing access by unaffiliated ISPs to AOLTW's cable system. On August 15 the FCC issued a notice requesting public comments on the complaint. The deadline to file is 20 days after the release of this notice. provides residential dialup Internet access, and broadband Internet access and other services to businesses in Austin, Dallas, Houston, and San Antonio. See FCC notice.
Chapter 11 Bankruptcy Petitions
8/15. DSL service provider Covad filed a Chapter 11 petition for bankruptcy in U.S. Bankruptcy Court (DDel). The petition was filed by Covad Communications Group, Inc., the parent company of Covad Communications Company. Covad also stated in a release that "Covad's operating subsidiaries, which provide DSL services to customers, are not expected to be included in the court supervised proceeding and will continue to operate in the ordinary course of business without any court imposed restrictions."
8/15. filed a Chapter 11 petition for bankruptcy in U.S. Bankruptcy Court. Egghead, based in Menlo Park, California, is an Internet retailer of computer hardware and software, consumer electronics and office products, and other items. Egghead also entered into a definitive agreement for the sale of assets to Fry's Electronics, a chain of electronics stores based in San Jose, California. Egghead also stated in a release that "Subject to approval of the sale by the Bankruptcy Court, it is expected that the transaction will close by the end of September."
RUS Announces Grants for Providing Internet Access in Rural Areas
8/15. The Rural Utilities Service (RUS) published a notice in the Federal Register announcing a grant program to finance the acquisition, construction and installation of equipment, facilities and systems to provide dial-up Internet access services in rural areas. This is a $2 Million pilot program to encourage entities to provide Internet service in areas where it is unavailable. The deadline for submitting grant applications is November 13, 2001. See, Federal Register, August 15, 2001, Vol. 66, No. 158, at Pages 42836 - 42838.
New Documents
AOUSC: report re privacy and public access to electronic case files, 8/15 (PDF, AOUSC).
RUS: notice re grants for providing dial up Internet access in rural areas, 8/15 (HTML, RUS).
EPIC: amended complaint to FTC re Microsoft's Passport and privacy, 8/15 (PDF, EPIC). complaint to FCC re AOL Time Warner and open access, 8/9 (PDF, FCC).
FCC: notice and request for comments re complaint, 8/15 (PDF, FCC).
EPIC Complains about Microsoft Passport
8/15. The Electronic Privacy Information Center (EPIC) and others submitted an updated complaint (PDF) to the Federal Trade Commission (FTC) regarding Microsoft's Passport and other software and services. EPIC filed its original complaint (PDF] on July 26, 2001. EPIC request that the FTC conduct an investigation of Microsoft, and enjoin a number of software features and services which it alleges violate § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.
Paragraph 1 of the original complaint, which is incorporated by reference in the amended complaint, states that this "concerns the privacy implications of the Microsoft XP operating system that is expected to become the primary means of access for consumers in the United States to the Internet. ... Microsoft has engaged, and is engaging, in unfair and deceptive trade practices intended to profile, track, and monitor millions of Internet users. Central to the scheme is a system of services, known collectively as ".NET," which incorporate "Passport," "Wallet," and "HailStorm" that are designed to obtain personal information from consumers in the United States unfairly and deceptively. The public interest requires the Commission to investigate these practices and to enjoin Microsoft from violating Section 5" of the FTCA.
EPIC requests that the FTC "Initiate an investigation into the information collection practices of Microsoft through Passport and associated services". EPIC also wants the FTC issue a far reaching injunction against Microsoft. EPIC want the FTC to order Microsoft "to revise the XP registration procedures so that purchasers of Microsoft XP are clearly informed that they need not register for Passport to obtain access to the Internet", "to block the sharing of personal information among Microsoft areas provided by a user under the Passport registration procedures absent explicit consent", "to incorporate techniques for anonymity and pseudo- anonymity that would allow users of Windows XP to gain access to Microsoft web sites without disclosing their actual identity", and "to incorporate techniques that would enable users of Windows XP to easily integrate services provided by non-Microsoft companies for online payment, electronic commerce, and other Internet-based commercial activity".
The amended complaint contains new allegations regarding security, and non compliance with the Children's Online Privacy Protection Act (COPPA). It also requests that the FTC begin an investigation to determine whether Passport complies with the requirements of the COPPA.
Marc Rotenberg, Executive Director of EPIC, spoke at a press conference in Washington DC on August 15. He stated that EPIC has not filed, and does not intend to file, a civil action against Microsoft. The complaint requests that the FTC enjoin Microsoft; yet, Rotenberg asserted at the press conference that "it is not our goal here to delay unnecessarily the release of XP ..."
After EPIC submitted its original complaint, Microsoft announced that it is reducing the amount of information necessary to establish a Passport account. Rotenberg stated that while he is pleased with these steps, "more needs to be done." He sited the remaining Passport requirement of providing an e-mail address. He stated that this is personally identifying, and unnecessary to provide Passport services.
The FTC has consumer protection authority under the FTCA, which states that "unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." However, it has no privacy specific statutory authority. Moreover, while EPIC's complaint is structured like a legal pleading, the FTCA creates no administrative cause of action for private parties. Parties, such as EPIC, and ordinary consumers, may submit complaints to the FTC. In fact, the FTC encourages the submission of public complaints. However, it is within the sole discretion of the FTC to determine whether to conduct any investigation, or take any action.
The complainants are EPIC, Center for Digital Democracy, Center for Media Education, Computer Professionals for Social Responsibility, Consumer Action, Consumer Federation of America, Consumer Task Force for Automotive Issues, Electronic Frontier Foundation, Junkbusters, Media Access Project, Net Action, Privacy Rights Clearinghouse, U.S. Public Interest Research Group, Consumer Project on Technology.
Courts Committee Makes Recommendations on Electronic Case Files
8/15. The Administrative Office of U.S. Courts' Committee on Court Administration and Case Management released a report [PDF] titled "Report on Privacy and Public Access to Electronic Case Files." The report recommends that most civil and bankruptcy cases should be made available in electronic format, with redactions of some personal data identifiers, but that criminal cases should not be made available. See also, release.
The report is dated June 26, 2001; it was publicly released on August 15. The Judicial Conference of the U.S., which makes policy for the federal courts, will meet on September 11 to consider the recommendations contained in the report.
Civil Cases. The report recommends that "documents in civil case files should be made available electronically to the same extent that they are available at the courthouse with one exception (Social Security cases should be excluded from electronic access) and one change in policy (the requirement that certain "personal data identifiers" be modified or partially redacted by the litigants). These identifiers are Social Security numbers, dates of birth, financial account numbers and names of minor children."
Criminal Cases. The report recommends that "public remote electronic access to documents in criminal cases should not be available at this time, with the understanding that the policy will be reexamined within two years of adoption by the Judicial Conference."
Bankruptcy Cases. The report recommends that "documents in bankruptcy case files should be made generally available electronically to the same extent that they are available at the courthouse, with a similar policy change for personal identifiers as in civil cases; that § 107(b)(2) of the Bankruptcy Code should be amended to establish privacy and security concerns as a basis for the sealing of a document; and that the Bankruptcy Code and Rules should be amended as necessary to allow the court to collect a debtor’s full Social Security number but display only the last four digits."
Computer and Internet Crime
8/14. The FBI's National Infrastructure Protection Center (NIPC) announced that on July 23, 2001, British law enforcement authorities arrested an unnamed person for violation of the United Kingdom's Computer Misuse Act 1990 in connection with designing and propagating malicious code, known as the Leaves worm, into Windows based computer systems. See, NIPC release.
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