Tech Law Journal Daily E-Mail Alert
September 11, 2001, 9:00 AM ET, Alert No. 265.
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War on Drugs, Technology and Privacy
9/10. A broad range of groups wrote a letter to Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee regarding the use of new technologies in the War on Drugs that diminish individual privacy. Specifically, they urged the Committee to examine privacy issues at its hearing on September 11 on the nomination of John Walters to be Director of National Drug Control Policy.
They wrote that "Rapid advances in technology have unfortunately brought with them new opportunities for the invasion of privacy in the form of programs like Carnivore, a system designed to allow the FBI to sift through vast quantities of internet communications, or 'Know Your Customer,' a proposed regulation requiring banks to collect personal financial information about their customers, 'profile' them, and report 'suspicious activities' to the Government. The misguided drug war is often a driving force behind these initiatives."
Among the 63 signatories of the letter are representatives of the Free Congress Foundation (FCF), Center for Democracy and Technology (CDT), ACLU, Eagle Forum, American Conservative Union, and Libertarian Party. See also, FCF release and ACLU release.
Update on Intel v. Via
9/7. Intel filed a complaint in U.S. District Court (DDel) against VIA Technologies (VIA) and S3 Graphics alleging patent infringement. Intel alleges that VIA's P4X266 and P4M266 chipsets infringe the following patents: U.S. Patent No. 6,145,039 titled "Method and Apparatus for an Improved Interface Between Computer Components", U.S. Patent No. 6,009,477 titled "Bus Agent Providing Dynamic Pipeline Depth Control", U.S. Patent No. 5,761,449 titled "Bus System Providing Dynamic Control of Pipeline Depth for a Multi-Agent Computer", U.S. Patent No. 5,615,343 titled "Method and Apparatus for Performing Deferred Transactions", U.S. Patent No. 5,659,689 titled "Method and Apparatus for Transmitting Information on a Wired-Or Bus".
5th Circuit Rules on FCC CALLS Order
9/10. The U.S. District Court (5thCir) issued its opinion in Texas Office of Public Utility Counsel v. FCC, a petition for review of the FCC's CALLS Order. The Appeals Court affirmed in part, and reversed in part.
The CALLS (Coalition for Affordable Local and Long Distance Service) Order, which provides for an irrational interstate access charge and universal service regime, was adopted by the FCC on May 31, 2000, following meetings at the FCC which admitted some, but not all, interested parties. See, text version (without footnotes) and MS Word version. (CC Docket No. 94-129).
These petitioners, Texas Office of Public Utility Counsel (TOPUC), National Association of State Utility Consumer Advocates (NASUCA), and intervenor Consumer Federation of America (CFA), filed a petition for review of the FCC's CALLS Order with the U.S. Court of Appeals. They asserted that the CALLS Order violates the procedural requirements of the Administrative Procedure Act and substantive provisions of the Telecom Act of 1996. More specifically, they asserted that the Subscriber Line Charge (SLC) price cap increase violates § 254(b)(1) and § 254(i)'s purported affordability mandate, that it contravenes § 254(k)'s prohibition against unreasonable allocation of joint and common costs, and that the 1996 Act requires the FCC to conduct a comprehensive, forward looking study.
The Court of Appeals affirmed the CALLS Order in most respects, but remanded for further analysis the portions regarding the $650 million Universal Service Fund and the X-Factor.
Tauzin Dingell Bill
9/10. The Competitive Telecommunications Association (CompTel), a group based in Washington DC that represents competitive local exchange carriers, issued a release regarding HR 1542, the Tauzin Dingell bill. It states that the bill "is likely to come to a floor vote in the next few weeks". It also states that CompTel is not about "to cut a deal" with legislators promoting the bill.
FCC Enforcement Bureau News
9/10. The FCC hired five new lawyers to work in its Enforcement Bureau on competition enforcement matters. The five attorneys, and the firms from which they were hired, are as follows: Rosemary McEnery (Howrey Simon), Lisa Saks (Howrey Simon), Maureen Del Duca (Jenner & Block), David Janas (Mintz Levin), Hillary De Nigro (Milbank Tweed). See, FCC release [PDF].
9/10. The FCC's Enforcement Bureau released an Order of Forefeiture imposing a $920,000 fine against All American Telephone, Inc. (AAT) for violations of the Communications Act of 1934 and the FCC's anti slamming rules. See also, FCC release.
GAO Releases Report on SEC Information Systems
9/10. The GAO released a report [PDF] titled "Information Systems: Opportunities Exist to Strengthen SEC's Oversight of Capacity and Security." The report assesses "the effectiveness of the Securities and Exchange Commission's (SEC) oversight of capacity planning and security procedures for information systems at the securities and options exchanges and clearing organizations." It concludes that the various components of the SEC’s Automation Review Policy (ARP) program "provide it with a reasonable level of assurance that the SROs address capacity, security, and other information system issues. However, SEC's ARP oversight could be improved." The report was prepared at the request of Rep. John Dingell (D-MI), the ranking Democrat on the House Commerce Committee.
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CPNI and Location Privacy
9/10. The FCC released a document [32 pages in PDF] titled "Clarification Order and Second Further Notice of Proposed Rulemaking." It pertains to maintaining the privacy of personally identifiable information held by telecommunications carriers.
CPNI. CPNI is customer proprietary network information. 47 U.S.C. § 222 provides, in part: "Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunication service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories."
E-911 Bill and Location Privacy. The 106th Congress enacted, and President Clinton signed, the Wireless Communications and Public Safety Act of 1999. This bill was S 800, sponsored by Sen. Conrad Burns (R-MT), and HR 438, sponsored by Rep. John Shimkus (R-IL). It designated 911 as the universal emergency service number, and promoted wireless 911 service. The bill also amended § 222 to include cell phone call location information in the definition of CPNI.
New Technologies. § 222 covers only telecommunications carriers. However, with the development of PDAs, in car map and traffic services, wireless tollbooth collection systems, Blackberry e-mail pagers, Bluetooth enabled devices, and anything else that can be embedded with a GPS chip, or other technology, personally identifying data, including location data, is being collected by entities which are not telecommunications carriers.
The FCC adopted rules pursuant to § 222 in its CPNI Order on February 26, 1998. US West and other telecommunications carriers challenged the constitutionality of the order on First Amendment free speech grounds. The 10th Circuit agreed, and vacated that part of the order pertaining to opt in requirements. See, opinion of the U.S. Court of Appeals (10thCir) in U S WEST v. FCC, 182 F.3d 1224 (10th Cir. 1999), cert. denied, 120 S. Ct. 2215 (Jun. 5, 2000).
In this latest document, the FCC seeks "to obtain a more complete record on ways in which customers can consent to a carrier's use of their CPNI." It further requests "comment on whether it is possible for the Commission to implement a flexible opt-in approach that does not run afoul of the First Amendment, or whether opt-out approval is the only means of addressing the constitutional concerns expressed by the 10th Circuit."
The document primarily goes to the 10th Circuit decision. However, the FCC also requests comment on the implications of the E-911 Act. (See, paragraph 22 and footnote 55.)
Comments will be due 30 days after publication in the Federal Register, and reply comments will be due 45 days after publication. See, Docket Nos. 96-115 and 96-149.
DOT Says GPS Is Vulnerable
9/10. The Department of Transportation released a report [113 pages in PDF] titled "Vulnerability Assessment of the Transportation Infrastructure Relying on the Global Positioning System." It concludes that the GPS is susceptible to unintentional disruption from such causes as atmospheric effects, signal blockage from buildings, and interference from communications equipment, as well as to potential deliberate disruption. See, DOT release.
Ferree Addresses Cable and Broadband Regulation
9/9. Kenneth Ferree, Chief of the FCC's Cable Services Bureau, gave a speech at a meeting of the National Association of Telecommunications Officers and Advisors in Miami Beach, Florida, on FCC regulation of cable and broadband services. He argued that people must "disenthrall ourselves from the regulatory answers appropriate for a more static past."
Ferree stated that "it has been suggested that the cable industry missed an entire upgrade cycle in the mid-90s because of rate regulation. ... We cannot therefore help but recognize that there is a trade-off between our desire for lower subscriber rates on one hand and our desire to see broadband services deployed more widely, particularly in rural areas, on the other hand."
He concluded that "as the Cable Services Bureau moves forward into the new broadband world, we will be just as careful not to reduce consumer surplus through imposition of anachronistic regulatory requirements, as we will be vigilant against market failures that may require affirmative government remedies. ... In both instances, we will work in partnership with state and local authorities for common and consistent solutions -- solutions that will be based on the new facts and circumstances, and not necessarily tied to any preconceived notions bound to the past.
Much of his address devoted to a comparison of the evolution of species to technology developments.
Internet Crimes
9/6. Costa Rican law enforcement authorities arrested Alyn Waage and James Webb in San Jose, Costa Rica, pursuant to United States arrest warrants for mail fraud and securities fraud issued in connection with an Internet based investment fraud scheme that allegedly netted the defendants more that $50 Million. Defendants have been charged by criminal complaint filed in the U.S. District Court (EDCal). See, CCIPS release.
9/7. A grand jury of the U.S. District Court (NDTex) returned a nine count indictment against David Horne for various crimes related to the distribution of child pornography via an AOL account. See, USAO release.
More News
9/10. The U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in High Plains Wireless v. FCC, No. 00-1292. Judges Ginsburg, Edwards and Sentelle presided.
9/10. FCC Wireless Telecommunications Bureau (WTB) fees changes go into effect. See, WTB release.
9/7. The National Association of Broadcasters (NAB) held a convention in New Orleans from September 5-7. See, speech by FCC Commissioner Michael Copps, speech by Edward Fritts, P/CEO of the NAB, and speech by Hillary Rosen, P/CEO of the RIAA.
Tuesday, Sept 11

9:00 AM. The House Judiciary Committee's Subcommittee on Commercial and Administrative Law will hold a hearing on HR 2526, the "Internet Tax Fairness Act of 2001." Location: Room 2141, Rayburn Building.

9:00 AM - 12:00 NOON. The USTR's Industry Sector Advisory Committee on Services for Trade Policy Matters (ISAC-13) will hold a meeting. It will be open to the public from 9:00 - 9:45 AM. It will be closed to the public from 9:45 AM to 12:00 NOON. Location: Conference Room 6057, Department of Commerce, 14th Street between Pennsylvania and Constitution Avenues, NW, Washington DC. See, notice in Federal Register, September 7, 2001, Vol. 66, No. 174, at Page 46861.
9:00 AM - 5:00 PM. The Computer System Security and Privacy Advisory Board (CSSPAB) will hold the first session of a three day meeting. The CSSPAB advises the Secretary of Commerce and the Director of NIST on security and privacy issues pertaining to federal computer systems. All sessions will be open to the public. See, notice in Federal Register, August 27, 2001, Vol. 66, No. 166, at Pages 45009 - 45010. Location: National Security Agency's National Cryptologic Museum, Colony 7 Road, Annapolis Junction, Maryland.
10:30 AM. The Senate Judiciary Committee will hold a hearing on the nomination of John Walters to be Director of National Drug Control Policy. Several groups which advocate privacy rights have urged the Committee to examine the impact of the War on Drugs on privacy rights. Sen. Joe Biden (D-DE) will preside. Location: Room 226, Dirksen Senate Office Building.
2:00 PM. The Senate Commerce Committee will hold a hearing on E-911 issues. Location: Room 253, Russell Building.
2:00 PM. The Congressional Internet Caucus Advisory Committee will host three panel presentations on e-learning, an e-learning technology fair, and a cocktail reception. RSVP to or Danielle at 202-637-4370. The schedule is as follows: 2:00 PM. Grades K-12 Panel; 3:00 PM. Higher Education Panel; 4:00 PM. Workforce Training Panel; 5:00 PM. Cocktail Reception and E-Learning Technology Fair. Location: Room 902, Hart Building.
4:00 PM. FCC Chairman Timothy Muris will give a speech titled "Current Economic Issues in Merger Review" at the Law and Economic Consulting Groups Economics Finance Conference. Location: Farragut Conference Center, 1725 Eye Street NW, Washington DC.
4:30 PM. The Judicial Conference of the U.S., which makes policy for the federal courts, will meet to consider the recommendations contained in the report [PDF] titled "Report on Privacy and Public Access to Electronic Case Files." This report was prepared by the Administrative Office of U.S. Courts' Committee on Court Administration and Case Management. It 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, AOUSC release [PDF]. Location: Room G43, Supreme Court of the U.S.
6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a reception for new NTIA chief Nancy Victory. The price to attend is $35 for private sector people, and $20 for government employees and students. RSVP to Wendy Parish at by Friday, September 7, at 10:00 AM. Location: Capital Hilton Hotel, 16th & K Streets NW, Washington DC.
Second day of a two day conference hosted by the International Trademark Association (INTA) and the National Bar Association (NBA) titled "Basics of Trademark Law Forum". See, INTA brochure [PDF] for regisration information, prices, and agenda. Location: Grand Hyatt Washington, 1000 H Street NW, Washington DC.
Wednesday, Sept 12
9:00 AM - 5:00 PM. The Computer System Security and Privacy Advisory Board (CSSPAB) will hold the second session of a three day meeting. See, notice in Federal Register. Location: National Security Agency's National Cryptologic Museum, Colony 7 Road, Annapolis Junction, Maryland.
9:30 AM. The Senate Governmental Affairs Committee will hold a hearing to examine the security of critical governmental infrastructure. Location: Room 342, Dirksen Building.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Transition to Digital Television: Progress on Broadcaster Buildout and Proposals to Expedite Return to Spectrum." Location: Room 2322, Rayburn Building.
2:00 PM. The Senate Judiciary Committee's Technology, Terrorism, and Government Information Subcommittee will hold a hearing on S 1055, sponsored by Sen. Dianne Feinstein (D-CA), and requiring the consent of an individual prior to the sale and marketing of such individual's personally identifiable information. Sen. Feinstein will preside. Location: Room 226, Dirksen Building.
Deadline to submit comments to the FCC in response to its Notice of Proposed Rulemaking (NPRM) regarding implementation of the local competition provisions of the Telecom Act of 1996. This NPRM invites parties to update and refresh the record on issues pertaining to the rules the FCC adopted in the First Report and Order in CC Docket No. 96-98. See, notice in Federal Register.
Thursday, Sept 13
7:30 AM. The Northern Virginia Technology Council's Finance Committee will hold an event titled "Meet the Capital Players". The program will run from 8:00 - 9:30 AM. The event is sponsored by Ernst & Young and the law firm of Wilmer Cutler & Pickering. See, brochure. Location: Ernst & Young Solutions Center, 8381 Old Courthouse Road, Vienna, Virginia.
9:00 AM - 2:00 PM. The Computer System Security and Privacy Advisory Board (CSSPAB) will hold the third session of a three day meeting. See, notice in Federal Register. Location: National Security Agency's National Cryptologic Museum, Colony 7 Road, Annapolis Junction, Maryland.
9:30 AM. The FCC will hold a meeting. Location: FCC, 445 12th Street, SW, Washington DC. See, agenda in box at right.
9:30 AM. The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Grid Radio v. FCC, No. 99-1463. This is a petition for review of a final order of the FCC against an unlicensed radio broadcaster. Judges Williams, Tatel and Garland will preside. Location: 333 Constitution Ave., NW, Washington DC.
10:00 AM. The House Judiciary Committee will hold a meeting to mark up several bills, including HR 1552, the "Internet Tax Nondiscrimination Act." Location: Room 2141, Rayburn Building.
10:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Room 226, Dirksen Building.
12:00 NOON - 2:00 PM. The Information Technology Association of America's (ITAA) IP Counsels Roundtable will hold its 3rd Quarter Meeting. For more information, contact Sarah Crumley,
2:00 PM. The Senate Commerce Committee's Science, Technology, and Space Subcommittee will hold a hearing on digital divide issues. Location: Room 253, Russell Building.