Tech Law Journal Daily E-Mail Alert
September 12, 2001, 9:00 AM ET, Alert No. 266.
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Federal Government Closes On Tuesday
9/11. Government offices, the Congress, and Courts closed Tuesday morning, September 11. Congressional hearings and meetings that started early Tuesday morning were cut short, and buildings were evacuated. President Bush stated in his address Tuesday night that Federal agencies in Washington will be open for business on Wednesday. The House and Senate are both scheduled to meet Wednesday morning.
The status of many previously scheduled hearings and other events has not been determined. Tech Law Journal's calls to many offices went unanswered on Tuesday. Some staff and officials who were reached stated that scheduling decisions had not yet been made.
Witnesses and other participants are currently unable to fly into Washington DC. Nevertheless, some events scheduled for Wednesday will proceed. For example, the Senate Governmental Affairs Committee hearing on the security of critical governmental infrastructure will be held a 11:00 AM, rather than its previously scheduled time of 9:30 AM. Sen. Joe Lieberman (D-CT) and Sen. Fred Thompson (R-TN) are the Chairman and ranking Republican on the Committee.
The Senate Judiciary Committee's Technology, Terrorism, and Government Information Subcommittee is scheduled to hold a hearing on S 1055, a privacy bill sponsored by Subcommittee Chairman Sen. Dianne Feinstein (D-CA). Her staff told TLJ late Tuesday that they did not know if this hearing would proceed on Wednesday. This bill would require the consent of an individual prior to the sale and marketing of such individual's personally identifiable information.
Judicial Conference Postpones Meeting
9/11. The Judicial Conference of the U.S., which had been scheduled to meet at the Supreme Court of the United States on Tuesday afternoon, postponed its meeting. The Conference makes policy for the federal courts. It had been scheduled 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]. The Supreme Court closed on Tuesday morning. Court guards bearing shotguns took up positions at its entrances.
Telecommunications Networks
9/11. Telecommunications carriers issued statements regarding the status of their landline and cellular phone networks. See, statements by AT&T, BellSouth, Sprint, and Verizon.
Verizon, which is the incumbent local exchange carrier in both New York City and Washington DC, stated that its "Two facilities at the World Trade Center that handled calls to and from the complex were destroyed in the building collapse. ... The company has accounted for most of these employees." Also, "At 140 West Street in Manhattan, the company's operations center was evacuated before the WTC buildings collapsed. Normally, 1,737 employees are assigned to that building."
Verizon also stated that it has "as many as 10 wireless cell cites in New York City that are not operating. These are mostly out of service because facilities that connect the sites to the landline network went through the World Trade Center." Verizon also detailed its deployment of temporary cell cites, as well as increasing power at cell cites in Northern New Jersey adjacent to southern Manahattan.
9/11. Meanwhile, the Senate Commerce Committee postponed its hearing on E-911 issues, which had been scheduled for Tuesday afternoon.
California Court Rules on Duty to Defend 43(a) Claims
9/10. The California Court of Appeal (1/5) issued its opinion [PDF], in part, in El-Com Hardware v. Fireman's Fund, a case regarding an insurer's duty to defend and indemnify in Lanham Act Section 43(a) suits. El-Com Hardware and Penn Fabrication make similar products.
Fireman's Fund issued an insurance policy to El-Com Hardware that provided coverage for "Advertising Injury Liability." Penn sued El-Com alleging patent infringement, unfair competition for copying its product's design, and false designation of origin under Section 43(a) of the Lanham Act (15 U.S.C. 1125) for copying its product. El-Com tendered the defense of the Penn action to Fireman's Fund. It declined to defend.
El-Com then filed a complaint in California Superior Court against Fireman's Fund alleging breach of an insurance contract and breach of the covenant of good faith and fair dealing. El-Com argued that a Section 43(a) claim constitutes an advertising injury covered by the policy. The trial court granted summary judgment to Fireman's Fund. The Court of Appeal reversed.
Privacy Law
9/11. The development of laws which implicate individual privacy -- particularly laws regarding the collection of information by law enforcement entities -- may be affected by the events of Tuesday. In past debates over issues such as electronic surveillance, Carnivore, CALEA, ECHELON, and encryption restraints, government and law enforcement officials have usually cited several threats that warrant expanded law enforcement authority -- drug dealers, money launderers, child pornographers, and international terrorists. Historically, privacy advocates have downplayed the seriousness of these threats. The final argument, regarding terrorism, may now take on new meaning.
9/11. The Senate Judiciary Committee postponed its hearing on the nomination of John Walters to be Director of National Drug Control Policy, which had been scheduled for the morning of September 11. Several groups which advocate privacy rights have urged the Committee to examine the impact of the War on Drugs on privacy rights. These groups have urged the Committee to examine the government's use of electronic surveillance, Carnivore, and ECHELON.
USPTO Clarifies Affect of Tuesday Closing
9/11. The USPTO closed on September 11. Acting chief Nicholas Godici issued a statement regarding the affect of the closing on filing and fee payment deadlines. He wrote that "Any action or fee due on September 11, 2001, will be considered as timely for the purposes of, e.g., 35 U.S.C 119, 120, 133 and 151, if the action is taken, or the fee paid, on the next succeeding business day on which the Patent and Trademark Office is open."
Federal Circuit Decisions in Patent Cases
9/7. The U.S. Court of Appeals (FedCir) issued its opinion in GFI v. Franklin Corporation, a pair of patent case appeals involving a number of issues, including unenforceability for inequitable conduct, the doctrine of equivalents, obviousness, and waiver of attorney client privilege for testifying at trial. The patent in suit is U.S. Patent No. 5,064,244, which discloses a reclining sofa with push button controls.
9/7. The U.S. Court of Appeals (FedCir) issued its opinion in Schaefer Fan v. J&D Manufacturing, a case in which the Appeals Court upheld a District Court interpretation of a settlement agreement in a patent infringement case.
9/6. The U.S. Court of Appeals (FedCir) issued its opinion in Ecolab v. Envirochem, an appeal from a pair of opinions in a patent infringement case. The Appeals Court reversed the opinion finding literal infringement, and affirmed the opinion finding that neither estoppel nor laches precluded the plaintiff from obtaining an injunction.
9/6. The U.S. Court of Appeals (FedCir) issued its opinion in Kustom Signals v. Applied Concepts, affirming a grant of summary judgment of non infringement in a suit involving makers of radar devices for traffic police. The patent in suit is U.S. Patent No. 5,528,246, titled "Traffic Radar with Digital Signal Processing".
Agenda for FCC Meeting, Thursday, Sept 13
A Notice Proposed Rule Making (NPRM) to reexamine the FCC's rule that establishes safeguards for the provision of in-region, interexchange services by incumbent independent local exchange carriers. CC Docket No. 00-175.
A NPRM to modify its rule and/or waiver policies relating to common ownership of broadcast stations and newspaper in the same geographic area.
A Further Notice of Proposed Rule Making concerning its cable horizontal and vertical ownership limits and certain aspects of its attribution rules as affected by the opinion of the U.S. Court of Appeals (DCCir) in Time Warner Entertainment v. FCC, 240 F.3d 1126 (D.C. Cir. 2001, No. 94-1035, March 2, 2001).
A First Report and Order to streamline the equipment authorization procedures for software defined radios. ET Docket No. 00-47.
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Wednesday, Sept 12
9:00 AM - 5:00 PM. The Computer System Security and Privacy Advisory Board (CSSPAB) is scheduled to hold the second session of a three day meeting. Calls from TLJ on Tuesday to confirm the status of this meeting went unanswered. The CSSPAB advises the Secretary of Commerce and the Director of NIST on security and privacy issues pertaining to federal computer systems. 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.
10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet is scheduled to hold a hearing titled "Transition to Digital Television: Progress on Broadcaster Buildout and Proposals to Expedite Return to Spectrum." Location: Room 2322, Rayburn Building.
11:00 AM. The Senate Governmental Affairs Committee will hold a hearing to examine the security of critical governmental infrastructure. Location: Room 342, Dirksen Building. An assistant to Committee Chairman, Sen. Fred Thompson (R-TN), the ranking Republican, told TLJ Tuesday night that the hearing will proceed, but with a shortened witness list, due to some witnesses' inability to fly to Washington DC. This hearing had been scheduled for 9:30 AM.
2:00 PM. The Senate Judiciary Committee's Technology, Terrorism, and Government Information Subcommittee is scheduled to hold a hearing on S 1055, sponsored by Sen. Dianne Feinstein (D-CA). This bill would require the consent of an individual prior to the sale and marketing of such individual's personally identifiable information. Location: Room 226, Dirksen Building. An assistant to the Subcommittee Chairman, Sen. Dianne Feinstein (D-CA), told TLJ late Tuesday that she did not know if this hearing would be held at its scheduled time.
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, August 13, 2001, Vol. 66, No. 156, at Page 42499.
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) is scheduled to hold the third 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.
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 is scheduled to meet 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 is scheduled to hold an executive business meeting. The agenda includes Sen. Leahy's drug competition bill, the Hatch Leahy anti drug package, and nominations. Room 226, Dirksen Building. An assistant to Sen. Leahy told TLJ late Tuesday that this meeting is still scheduled.
12:00 NOON - 2:00 PM. The Information Technology Association of America's (ITAA) IP Counsels Roundtable is scheduled to hold its 3rd Quarter Meeting. For more information, contact Sarah Crumley, scrumley@itaa.org.
2:00 PM. The Senate Commerce Committee's Science, Technology, and Space Subcommittee is scheduled to hold a hearing on digital divide issues. Location: Room 253, Russell Building.