|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
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
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
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.
|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 ..."
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
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
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
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
|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.
[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.
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
|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 ..."
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
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,
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
|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
King Abdullah of Jordan will visit Washington on September 28.
House release. See also, State
|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
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
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
• 9:45 - 10:30 AM. Rep. Heather Wilson
(R-NM), member of the House Telecom Subcommittee.
|Thursday, Sept 27
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.
in Federal Register, August 13, 2001, Vol. 66, No. 156, at
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.
|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
|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
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.
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