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September 25, 2001, 9:00 AM ET, Alert No. 272.
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Anti Terrorism Bill Delayed
9/24. The Bush Administration's efforts to rapidly pass its far reaching "Anti Terrorism Act of 2001" were set back on Monday afternoon when the House Judiciary Committee moved back its mark up session from Tuesday morning, September 25, until an unspecified day next week. Committee members balked at the idea of such rapid passage of major legislation affecting civil liberties.
Meanwhile, Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee, has already indicated that his Committee may take several weeks to pass a bill. His Committee is scheduled to hold a hearing on Tuesday, September 25.
The administration's bill, a draft [PDF] of which was sent to Capitol Hill on Wednesday, September 19, would update and greatly expand the authority of law enforcement agencies, and the intelligence community, to conduct electronic surveillance of telephone and Internet communications. It would also make major revisions to criminal, criminal procedure, immigration, and trade law. Many of its provisions apply specifically to terrorism. However, many others have broad applicability a wide range of crimes and procedures.
Attorney General John Ashcroft, and other Justice Department officials, had sought to expedite the process of passing this legislation, with the assitance of Rep. James Sensenbrenner (R-WI), Chairman of the House Judiciary Committee. Rep. Sensenbrenner's plan was to hold hearings on Monday, hold a mark up session on Tuesday, and then take the bill to the House floor for final passage before the House breaks for the Yom Kippur holiday on Thursday. However, at the Committee hearing on Monday afternoon all Committee Democrats who spoke expressed opposition to this schedule, while some Republicans also complained. By the end of the hearing Rep. Sensenbrenner agreed to postpone mark up until next week.
Rep. Sensenbrenner stated that "there is an unquestionable need for such legislation -- in fact, I am convinced that our homeland depends on it." He also stated that "such legislation must ... provide process changes and updates to investigative definitions in order to address new technology such as voice mail and disposable cell phones."
Attorney General John Ashcroft was the lead witness at the packed, standing room only, hearing. He stated that "terrorism is now the highest priority of the Department of Justice." He also said that criminal law and procedure has not kept up with changes in communications technology, and laws must therefore be updated. AG Ashcroft also stated, in response to questions from Rep. Howard Coble (R-NC), that had the provisions of this bill been passed previously, "there is no guarantee that these safeguards would have avoided the events of September 11."
Rep. John Conyers (D-MI), the ranking Democrat on the Committee, stated that there are provisions "that give us constitutional trouble." However, most of the Democrats who criticized the bill focused on the immigration and detention provisions, and not the electronic surveillance provisions.
Rep. Coble and Rep. Howard Berman (D-CA), who are the Chairman and ranking Democrat on the Courts, Internet, and Intellectual Property Subcommittee, both questioned AG Ashcroft about cyber terrorism. Ashcroft stated that the bill "is broad enough to include assaults on computers."
House Judiciary Committee Hears from Civil Liberties Groups
9/24. The House Judiciary Committee also held an event with representatives of civil liberties groups regarding the Anti Terrorism Act of 2001. The Committee named the event a "briefing". However, it had all of the characteristics of a legislative hearing. It began almost immediately after the conclusion of the "hearing." Rep. Sensenbrenner did not wish to call it a hearing. Doing so would have given the Attorney General and the ACLU equal status.
Critics of the Administration's draft bill raised concerns about the bill's affect on civil liberties. James Dempsey (CDT) addressed the proposed changes to the Foreign Intelligence Surveillance Act (FISA), and electronic surveillance procedures. Greg Nojeim (ACLU) also addressed electronic surveillance issues. David Cole (Georgetown University Law Center) covered immigration issues. Brad Jansen (Free Congress Foundation) addressed money laundering and forfeiture issues. Rachel King (ACLU) addressed criminal law. See, prepared statement of King. Morton Halperin also addressed the FISA.
Electronic Surveillance Debated
9/24. The electronic surveillance provisions of the administration's "Anti Terrorism Act of 2001" were one of the topics addressed at the House Judiciary Committee's hearing and meeting on September 24. This bill, for example, expands law enforcement agencies' authority with respect to the use of trap and trace devices and pen registers. These are both old telephone industry concepts. Justice Department witnesses, and Committee members, concurred that these provisions need to be updated to take into consideration Internet based communications. However, there were differences as to how the amendments should be worded.
A pen register records the numbers that are dialed or punched into a telephone. The current law covers "wire" communications only. Specifically, a pen register is "a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached ..." See, 18 U.S.C. 3127(3). Under the Anti Terrorism Act of 2001, the concept of a pen register would be expanded from merely capturing phone numbers, to capturing routing and addressing information in any electronic communications, including Internet communications.
The bill similarly expands the concept of trap and trace devices. Under current law, this is "a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." See, 18 U.S.C. 3127(4).
Rep. Bob Goodlatte (R-VA) questioned Assistant AG Chertoff about these provisions. He questioned whether expanding the scope of pen registers and trap and trace from phone to Internet communications would also expands the scope and quantity of information collected. In the context of telephones, the information obtained is only the phone number, not the content of the phone call. Rep. Goodlatte asked whether "routing, addressing, and signalling" information would include e-mail header information, including subject lines, and urls. Chertoff responded that the intent of this section is to provide technology neutrality, and not to obtain content or subject line information. Rep. Rick Boucher (D-VA) suggested during the "briefing" with civil liberties groups that he and Rep. Goodlatte should work on language that would have the effect of codifying the intent of the Justice Department. Rep. Boucher also said that he was concerned about the lack of a probable cause requirement for the issuance pen register or trap and trace orders affecting Internet communications.
Rep. Chris Cannon (R-UT) stated at the hearing that this is not simply a matter of providing for technology neutrality in the statute. He said that "there are differences between emails and telephone conversations." He suggested that perhaps the Congress should pass the recommended changes, but with a "sunsetting provision."
Rep. Cannon also questioned the language in the bill that would allow law enforcement agencies to obtain a single pen register or trap and trace order that would apply nationwide. Rep. Cannon suggested that this raises forum shopping questions. Currently, an order is only effective in the district in which it is issued.
Anti Terrorism Bills Proliferate
9/24. There are now many major bills in draft form that would make significant changes to law enforcement and intelligence agencies' authority to conduct electronic surveillance, conduct investigations, prosecute criminals, and detain and deport aliens.
Three draft bills have been circulated. However, hearings and discussions are being held at a rapid pace, and supporters of each of these bills have already determined to make major modifications to these drafts.
Administration Bill. On Wednesday, September 19, the Justice Department sent the Administration's draft [PDF] of the "Anti Terrorism Act of 2001" to Congressional leaders. See also, the Administration's summary [PDF]. Attorney General John Ashcroft, Assistant Attorney General (Criminal Division) Michael Chertoff, Deputy Attorney General Larry Thompson, and Assistant Attorney General (Legal Policy) Viet Dinh, have been working for its passage.
Leahy Bill. On September 21, Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee, released his own proposal. The Leahy bill [PDF] is 165 pages in its first draft. See also, Sen. Leahy's summary [HTML]. Sen. Leahy's bill is more protective of civil liberties than is the Administration's bill. The Senate Judiciary Committee will hold a hearing on this bill on Tuesday morning, September 25, at 11:00 AM.
Graham Bill. Sen. Bob Graham (D-FL), the Chairman of the Senate Intelligence Committee also released a bill in rough form on September 23. See, section by section summary of Sen. Graham's bill. His Committee held a hearing on Monday, September 24.
CJS Bill. The Senate has already passed one anti terrorism bill. On September 13 it passed the Appropriations bill for FY 2002 for the Departments of Commerce, Justice, and State, and for the Judiciary. It also passed Senate Amendment 1562 to this bill, which contains a more limited set of revisions to criminal law and procedure.
Other Bills. There are also other specific and narrowly targeted anti terrorism bills. For example, on September 24, Sen. Bob Bennett (R-UT) introduced the Critical Infrastructure Information Security Act (CIISA), a bill to give companies incentives to share information in order to help defend against cyber attacks. It contains Freedom of Information Act (FOIA) and antitrust exemptions. See, Bennett release.
FCC Announces Order Affecting 3G Wireless
9/24. The FCC announced that back on September 6 it adopted an order pertaining to use of the 2500 - 2690 MHz band. This is one spectrum band that has been identified for possible reallocation for use for Third Generation (3G) wireless services. 3G is intended to bring broadband Internet access to portable devices. The  FCC stated that it will not reallocate this band for 3G purposes. The FCC also released this document, titled First Report and Order and Memorandum Opinion and Order [PDF]. (ET Docket No. 00-258.) See also, FCC release.
The FCC explained in the order that "we are adding a mobile allocation to the 2500 - 2690 MHz band to provide additional near-term and long-term flexibility for use of this spectrum, thereby making this band potentially available for advanced mobile and fixed terrestrial wireless services, including third generation ("3G") and future generations of wireless systems. However, because the 2500 - 2690 MHz band is extensively used by incumbent ITFS and MMDS licensees, and in order to preserve the viability of the incumbent services, we are not relocating the existing licensees or otherwise modifying their licenses. Building upon our prior decisions to expand the potential uses of this band, adding a mobile allocation to the band will provide additional near-term and long-term flexibility without forcibly displacing incumbent operators." The FCC added that it was relying "on market forces rather than making regulatory judgments about the best use of the band ..."
The Cellular Telecommunications Industry Association (CTIA) criticized the order. Tom Wheeler, P/CEO of the CTIA, stated that "We are disappointed the Commission would limit its flexibility at this time as it seeks a solution to the spectrum shortage. This action tries to have it both ways -- removing the 2500 - 2690 MHz band from consideration for advanced wireless services, while simultaneously suggesting its licensees might someday permit that spectrum to be used for wireless applications." See, CTIA release.
The other major spectrum band being considered for reallocation for use by 3G services is currently being used by the Defense Department for, among other things, satellite communications and precision guided munitions. The events of September 11, and ongoing military operations against terrorism, may decrease the likelihood that this spectrum will be reallocated in the near future.
Comments Filed in FCC's Section 706 Inquiry
9/24. Monday, September 24, was the deadline to file comments with the FCC in its third inquiry into whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion, pursuant to Section 706 of the Telecom Act of 1996. This notice of inquiry was adopted by the FCC at its August 9, 2001, meeting. See, Aug. 9 FCC release. See also, notice in Federal Register, August 24, 2001, Vol. 66, No. 165, at Page 44636. (CC Docket No. 98-146.)
Commenters took this opportunity to address whether advanced telecommunications capability is being deployed, as well as to address a range of issues pertaining to broadband Internet access. See for example, comment submitted by the Progress and Freedom Foundation, comment submitted by Sprint, comment submitted by Qwest, comment submitted by BellSouth, and comment submitted by the National Rural Telecommunications Cooperative. (All comments are PDF documents in the FCC web site, and may download slowly.)
Senate Approves U.S. Jordan FTA
9/24. The Senate passed HR 2603, a bill implementing the the U.S. Jordan Free Trade Agreement (FTA) [PDF], by a voice vote. The House passed this bill on July 31. President Bush stated that he will promptly sign the bill. Jordan is only the fourth country with which the U.S. has negotiated a free trade agreement. The others are Canada, Mexico, and Israel.
Labor and Environment Provisions. There has been no dispute that a FTA with Jordan is appropriate for political reasons. However, this FTA, which was negotiated by the Clinton administration, has been controversial because it includes labor and environmental (L&E) provisions. They provide that neither party "shall fail to effectively enforce its" L&E laws. Trade with Jordan is minimal. Neither Jordan nor the U.S. cares about the other's L&E records. Rather, the Clinton administration insisted on these provisions with the idea that this FTA would serve as a model for all future FTAs. Sen. Phil Gramm (R-TX) had opposed this FTA for this reason, but recently dropped his opposition due to changed circumstances following the events of September 11.
Intellectual Property and E-Commerce. The U.S. Jordan FTA is also significant because it contains extensive language pertaining to intellectual property and e-commerce that may serve as guidance for future FTAs. The FTA addresses patents, trademarks, copyright, and enforcement of IPR. Jordan agreed to ratify and implement the WIPO's Copyright Treaty and WIPO Performances and Phonograms Treaty within two years. The FTA also provides that "each Party shall seek to refrain from: (a) deviating from its existing practice of not imposing customs duties on electronic transmissions; (b) imposing unnecessary barriers on electronic transmissions, including digitized products; and (c) impeding the supply through electronic means of services ..."
President Bush: "I commend the Congress for advancing trade and relations with Jordan, a valued friend and partner. The U.S. Jordan Free Trade Agreement will promote peace and security in the region, while creating jobs and new investment opportunities in both countries. The agreement demonstrates Jordan's strong commitment to economic reform and sends a strong signal to Jordan, as well as other countries in the region, that support for peace and economic reform yields concrete benefits. I look forward to signing this important legislation." See, White House release.
King Abdullah of Jordan will visit Washington on September 28. See, White House release. See also, State Department release.
Tuesday, Sept 25
The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business.
POSTPONED UNTIL NEXT WEEK. 10:00 AM. The House Judiciary Committee will mark up the Administration's draft of the "Anti Terrorism Act of 2001."
10:00 AM. The USTR will hold a public hearing in the investigation of the intellectual property laws and practices of the government of Ukraine. Rebuttal comments are due by September 28, 2001. See, notice in Federal Register, September 24, 2001, Vol. 66, No. 185, at Page 48898. Location: Office of the USTR, 1724 F Street, NW, Rooms 1 and 2, Washington DC.
NEW TIME AND LOCATION. 11:00 AM. The Senate Judiciary Committee will hold hearings to examine homeland defense matters, including the anti terrorism bill. Sen. Patrick Leahy (D-VT) will preside. Attorney General John Ashcroft will testify. Location: Room 106, Dirksen Building.
12:00 NOON - 2:00 PM. The FCC's North American Numbering Council will hold a meeting. Location: FCC, 445 12th Street, SW, Room 8-C245, Washington, DC.
12:15 PM. The Federal Communications Bar Association's (FCBA) Professional Responsibility Committee will host a brown bag lunch. Location: Arnold & Porter, 555 12th Street, NW, Washington DC.
Second day of a three day conference of the Association for Local Telecommunications Services (ALTS). See, ALTS brochure [PDF]. Location: The Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, Virginia. The agenda for September 25 includes a speech by FCC Chairman Michael Powell at 3:15 PM.
Deadline to submit reply comments to the FCC in its notice of proposed rule making to amend the FCC's rules to improve spectrum sharing by unlicensed devices operating in the 2.4 GHz band, to provide for introduction of new digital transmission technologies, and to eliminate unnecessary regulations for spread spectrum devices. See, NPRM and notice in Federal Register: June 12, 2001, Vol. 66, No. 113, at Pages 31585 - 31589.
Wednesday, Sept 26
The House will meet at 10:00 AM for legislative business; no votes are expected past 2:00 PM.
9:30 AM. The Senate Energy and Natural Resources Committee will hold a closed hearing to examine critical energy infrastructure security and the energy industry's response to the events of September 11. Location: unannounced.
12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Committee will host a brown bag lunch titled the "The Upcoming Common Carrier Agenda." The speakers will be FCC Legal Advisors Kyle Dixon (Powell), Matthew Brill (Abernathy), Jordan Goldstein (Copps), and Sam Feder (Martin). RSVP to Rhe Brighthaupt at rbrighthaupt@wrf. Location: Wiley Rein & Fielding, 1750 K Street, 10th Floor Conference Room.
Third day of a three day conference of the Association for Local Telecommunications Services (ALTS). See, ALTS brochure [PDF]. Location: The Crystal Gateway Marriott, 1700 Jefferson Davis Highway, Arlington, Virginia. The agenda for September 26 includes:
  9:00 - 9:45 AM. Bruce Mehlman, Assistant Secretary of Commerce.
  9:45 - 10:30 AM. Rep. Heather Wilson (R-NM), member of the House Telecom Subcommittee.
Thursday, Sept 27
Yom Kippur.
Deadline to submit reply 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.
Deadline to submit comments to the USPTO on issues associated with the development of a plan to remove the patent and trademark classified paper files from the USPTO's public search libraries. See, notice in Federal Register, August 27, 2001, Vol. 66, No. 166, at Pages 45012 - 45014.
Deadline to submit comments to the Copyright Office (CO) on proposed amendments to the regulations governing the content and service of certain notices on the copyright owner of a musical work. The notice is served or filed by a person who intends to use the work to make and distribute phonorecords, including by means of digital phonorecord deliveries, under a compulsory license, pursuant to 17 U.S.C. 115. See, notice in Federal Register, August 28, 2001, Vol. 66, No. 167, Page 45241 - 45245.
Friday, Sept 28
10:00 AM - 12:00 NOON. The FCC's WRC-03 Advisory Committee will hold a meeting to continue preparations for the 2003 World Radiocommunication Conference. Location: Federal Communications Commission, 445 12th Street, SW, Room TW-C305, Washington DC. See, notice in Federal Register, September 7, 2001, Vol. 66, No. 174, at Pages 46793 - 46794.
Extended deadline for submitting comments and notices of intent to participate in a copyright arbitration royalty panel proceeding to the Copyright Office regarding its proposed regulations that will govern the Recording Industry Association of America (RIAA) collective when it functions as the designated agent receiving royalty payments and statements of accounts from nonexempt, subscription digital transmission services which make digital transmissions of sound recordings, pursuant to 17 U.S.C. 114. See, notice [PDF] in Federal Register, September 21, 2001, Vol. 66, No. 184, at page 48648.
Antitrust News
9/24. The Antitrust Division of the Department of Justice issued its evaluation for the FCC regarding SBC's Section 271 application to provide in region interLATA service in Arkansas and Missouri. The Antitrust Division concludes that several issues "merit careful consideration by the Commission and preclude the Department from supporting this joint application on the basis of the current record." The FCC has previously approved SBC's applications to offer long distance service in Texas, Kansas, and Oklahoma. This evaluation is required by 47 U.S.C. 271(d)(2)(A). (This is the FCC's CC Docket No. 01-194.)
9/24. Charles James, Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice, Timothy Muris, Chairman of the FTC, and Mario Monti, European Union Competition Commissioner, held a day long working session in Washington DC. See, FTC release.
9/21. Charles James, Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice, gave a speech in Ottawa, Canada, to the Canadian Bar Association titled "International Antitrust in the Bush Administration".
More News
9/24. Sen. Fred Thompson (R-TN) announced that he will run for re-election in 2002. He had previously considered stepping down. He is the ranking Republican on the Senate Governmental Affairs Committee. He is also one of the Senate's leading advocates of imposing restraints on the export of computer hardware, encryption products, and other software, for national security reasons.
9/24. Napster announced that it has reached a preliminary settlement agreement with American songwriters and music publishers who filed a class action complaint in U.S. District Court (NDCal) against Napster alleging copyright infringment. See, Napster release.
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