| House Judiciary Committee
to Mark Up Anti Terrorism Bill |
10/1. Rep.
James Sensenbrenner (R-WI) and Rep. John Conyers
(D-MI) introduced HR 2975, the PATRIOT
Act [122 pages in PDF]. The is an acronym for the Provide
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001. Rep. Sensenbrenner and Rep. Conyers are the
Chairman and ranking Democrat on the House Judiciary
Committee. This bill is a House revision of the
Administration's draft of the Anti
Terrorism Act of 2001 [PDF], which was released on
September 19. The bill would expand the authority of law
enforcement agencies to conduct surveillance of phone and
Internet communications, among other things.
The PATRIOT Act maintains most of the provisions of the
administration proposal, but removes or revises many of the
provisions that House members found objectionable on civil
liberties grounds. See also, House Judiciary Committee summary
[21 pages in PDF] of the PATRIOT Act. While House members and
administration officials continue to consider and negotiate
further revisions to the bill, the House Judiciary Committee
has scheduled a meeting to mark up the bill on Wednesday,
September 3, at 2:00 PM. Full House passage could follow
shortly thereafter. |
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| Electronic Surveillance and
the Anti Terrorism Bill |
10/2. Legislators, an administration official, and civil
liberties advocates discussed and debated the electronic
surveillance provisions of anti terrorism legislation at a
luncheon in Washington DC on October 2 hosted by the
Congressional Internet Caucus Advisory Committee. The
Administration's September 19 draft of the Anti
Terrorism Act of 2001 [PDF], and the House Judiciary
Committee's October 1 draft of the PATRIOT
Act [PDF] both would expand the authority of law
enforcement and intelligence agencies to conduct electronic
surveillance of phone and Internet communications.
Under current law, there are different standards for obtaining
different types of court orders authorizing electronic
surveillance. Under Title III, an order based upon a showing
of probable cause is necessary to obtain the content of phone
conversations (wiretaps). This is a high standard. In
contrast, there is a very low standard for obtaining pen
register and trap and trace orders (which merely obtain
outgoing and incoming phone numbers). The order must be issued
if the government asserts mere relevance. Finally, there is a
separate, and low, standard for Foreign Intelligence
Surveillance Act (FISA) orders.
Rep. Rick Boucher
(D-VA) stated that the Supreme Court opinion which upheld the
low standard for pen register and trap and trace orders was
predicated upon the assumption that only phone numbers would
be obtained. He suggested that that holding may not apply to
the language of the pending legislation, which would extend
pen register and trap and trace authority to "addressing
and routing information" for "electronic
communications". He said that there is the potential to
obtain far more information, such as subject lines and URLs.
He concluded that he would not oppose a requirement that pen
register and trap and trace orders for addressing and routing
information be issued only upon a showing of probable cause
and issuance of a Title III order.
Viet Dinh, the Assistant Attorney General for Legal Policy at
the Justice Department (DOJ), argued in favor of expanding pen
register and trap and trace authority to addressing and
routing information, while still maintaining the current
standard for issuance of such orders. He also said that
"content includes the subject line of an e-mail." In
addition, Chris Painter, of the DOJ's computer crime section,
argued that URLs are like telephone numbers. He said that
while the DOJ is not now collecting URL information, it may at
some point be interested in knowing if an individual accessed
the "cropdusters.com" web site.
The standards for orders allowing pen register and trap and
trace devices would apply to DOJ technologies for collecting
addressing and routing information, such as the Carnivore
system.
Viet Dinh also defended the FISA provisions of the bill. Under
current law, to obtain a wiretap order under the FISA, foreign
intelligence must be "the" purpose. Under the
Administration's draft Anti Terrorism Act, foreign
intelligence must only be "a" purpose. James Dempsey
of the Center for Democracy and
Technology argued that this would lead prosecutors to
obtain wiretap orders under FISA in essentially domestic
criminal investigations that would otherwise be held to the
higher Title III standard. The compromise language of the
PATRIOT Act states that foreign intelligence must be "a
significant" purpose of the wiretap. |
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| CPNI and Location Privacy |
10/2. The FCC published a notice
of proposed rulemaking (NPRM) in the Federal Register
regarding customer consent for the use of Customer Proprietary
Network Information (CPNI). See especially, Paragraph 10,
pertaining to location data generated by portable devices.
The Wireless Communications and Public Safety Act of 1999,
also know at the E-911 Act, designated 911 as the universal
emergency service number, and promoted wireless 911 service.
The act also amended Section
222 of the Communications Act to include cell phone call
location information in the definition of CPNI; see,
subsection 222(f). The FCC has authority to regulate the use
of CPNI by telecommunications carriers only. The FCC does not
have statutory authority to regulate the privacy practices of
the many other entities that may obtain location data from web
enabled devices.
The notice states that in passing the E-911 Act "Congress
amended section 222 of the Communications Act by adding
provisions regarding CPNI. The amendments were enacted as
incentives for greater deployment of wireless E911 services.
The new CPNI provisions are intended to encourage that
objective by providing separate provisions to protect certain
wireless location information, and by expressly authorizing
carriers to release this information to specified third
parties for specified emergency purposes. The Commission seeks
comment on what affect, if any, the provisions of section
222(f) have on our interpretation of the provisions of section
222(c)(1) and the customer approval requirements that are
under consideration here."
Comments due by November 1, 2001. Reply comments due by
November 16, 2001. This is CC Docket No. 96-115 and CC Docket
No. 96-149. See, Federal Register, October 2, 2001, Vol. 66,
No. 191, at Pages 50140 - 50147. |
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| Senate Democrats Criticize
WTO Draft |
| 10/1. Senators Max
Baucus (D-MT), Jay
Rockefeller (D-WV), and Jeff Bingaman (D-NM)
sent a letter
to USTR Robert Zoellick
regarding a WTO draft issued last
week. The wrote "to express our strong concern about the
Draft Ministerial Declaration issued last week by the Chairman
of the WTO General Council, along with the Chairman's Draft
Decision on Implementation- Related Issues and Concerns. The
Chairman's Drafts, if adopted by the WTO, would open the door
to a weakening of the agreements on antidumping and subsidies
rules. We must not permit this." |
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| Encryption Restraints and
the Anti Terrorism Bill |
10/2. Three legislators, an administration official, and
civil liberties advocates discussed and debated anti terrorism
legislation at a luncheon in Washington DC on October 2 hosted
by the Congressional Internet Caucus Advisory Committee.
Neither the Administration's September 19 draft of the Anti
Terrorism Act of 2001 [PDF], nor the House Judiciary
Committee's October 1 draft of the PATRIOT
Act [PDF] contain encryption provisions. Participants at
the event spoke against adding any encryption restraints to
the bill.
Rep. Bob Goodlatte
(R-VA), a Co-Chair of the Internet
Caucus, argued that provisions limiting encryption rights,
or mandating key escrow, should not be made a part of the
bill. Such provisions are not a part of the bill now, and Viet
Dinh, the Assistant Attorney General for Legal Policy at the
Justice Department (DOJ), confirmed that the DOJ does not seek
to have such provisions added to the bill.
During the late 1990s there was a major battle in the Congress
over encryption rights. The FBI, Defense Department, State
Department, and intelligence community, and their allies in
the Congress, maintained restraints on the export of
encryption products. They also sought to impose new limits on
the use of encryption within the U.S. The pro encryption camp
in the Congress was led Rep. Goodlatte, Rep. Zoe Lofgren
(D-CA), Sen. Conrad Burns
(R-MT), Sen. Pat Leahy
(D-VT), and former Sen. John Ashcroft (R-MO), who is now the
Attorney General. In 1999, when the House was on the verge of
passing a pro encryption bill, the Clinton administration
capitulated. However, since September 11, some members of
Congress have sought to revive the encryption restraint issue.
Rep. Goodlatte argued at the October 2 luncheon that mandating
key escrow would be bad policy. He stated that the widespread
use of strong encryption is an essential element of defending
against attacks by cyber terrorists. He also pointed out that
if the government mandates escrow of encryption keys, the
location of such escrow could be a targeted by hackers and
terrorist attacks. He also argued that such policy would not
be effective: "Osama Bin Laden is not going to escrow his
keys."
Sen. Burns, who also spoke at the luncheon, opposed including
any encryption restraints in the anti terrorism bill. He
pointed out that there is no evidence that the terrorists who
committed the attacks of September 11 ever used encrypted
communications. |
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| BellSouth Files 271
Application for Georgia and Louisiana |
10/2. BellSouth
filed its Section 271 applications with the FCC to provide in
region interLATA service in Georgia and Louisiana. See, BS
release.
10/2. The Georgia Public
Service Commission (GPSC) voted 4-0 to endorse BellSouth's
application to enter the long distance market in Georgia. The
GPSC stated in a release
[PDF] that "BellSouth has
complied with the requirements set forth under Section 271 of
the federal Telecommunications Act of 1996."
Sprint expressed
its opposition. David Eisenberg, VP for State External
Affairs, stated in a release
that "Sprint believes that BellSouth's application to the
FCC to provide long distance service in Georgia and Louisiana
is premature." Similarly, the Southeastern Competitive
Carriers Association (SECCA), the Association of
Communications Enterprises (ASCENT) and the Competitive Telecommunications
Association (CompTel), expressed their "strong
disappointment" that Georgia PSC endorsed BellSouth's
application. See, CompTel
release. |
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| 7th Circuit Rules in
Trademark Case |
| 10/2. The U.S.
Court of Appeals (7thCir) issued its opinion
in CAE
v. Clean Air Engineering, a trademark
infringement case. CAE, a Canadian conglomerate, argued
that Clean Air Engineering's use of the initials
"CAE" infringed its federally registered
"CAE" trademark. The Trademark
Trial and Appeal Board (TTAB) found that Clean Air's use
of a "virtually identical" mark was not likely to
cause confusion among consumers. The U.S. District Court (NDIll)
disagreed. It found that consumers were likely to be confused,
entered judgment for CAE, and enjoined Clean Air from future
use of the initials absent a disclaimer of any association
with CAE. The Court of Appeals affirmed. |
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| Indiana Court Rules In
Imposter E-Mail and Web Site Case |
10/1. The Supreme Court of Indiana issued its opinion
in Felsher v. University of Evansville, a state law
case involving the right to privacy and the use of
imposter e-mail user names and web sites for the purpose
harming the reputations of the University and some of its
officers and faculty. The Court held that a corporate entity
cannot maintain an invasion of privacy action. Otherwise, it
upheld an injunction against the use of imposter user names
and URLs.
William Felsher is a former professor at the University of
Evansville (UE) with a personal vendetta against his former
employers. He created and used web sites and e-mail addresses
that contained the names of officers and faculty at the UE. He
created imposter web sites and e-mail addresses for the sole
purpose of harming their reputations. The UE, and the
individuals whose names were used, filed a complaint in state
court in Indiana alleging invasion of privacy. The plaintiffs
did not plead violation of the Lanham Act, state unfair trade
practices, or defamation.
The trial court granted summary judgment to the plaintiffs,
and enjoined Felsher from using e-mail addresses or URLs that
incorporate the plaintiffs' names. The Indiana Court of
Appeals affirmed.
On appeal to the Indiana Supreme Court Felsher argued that the
UE, a corporate entity, cannot maintain an action for invasion
of privacy. The Supreme Court, relying on the Restatement
(Second) of Torts, and precedent from other states, held that
a corporation is not entitled to maintain an invasion of
privacy action. Felsher also challenged the grant of
injunctive relief. The Supreme Court upheld the injunction. |
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| Supreme Court Hears Pole
Attachments Case |
| 10/2. The Supreme
Court of the United States heard oral argument in NCTA
v. Gulf Power (No. 00-832) and FCC v. Gulf Power
(No. 00-843), consolidated, known as the "pole
attachments cases". |
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| Bankruptcy Court Grants
Continuance to NextWave |
| 10/1. The U.S. Bankruptcy Court granted NextWave Telecom's
motion to continue its Disclosure Statement Hearing until
October 22. NextWave stated in a release
that "At the hearing on the 22nd, the company will ask
the Court to approve the Disclosure Statement for solicitation
of approvals to its pending plan of reorganization, which was
filed on August 6, 2001." |
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| FTC Brings COPPA
Enforcement Action |
| 10/2. The Federal Trade
Commission (FTC) filed a civil complaint [PDF]
in U.S. District Court (EDVa) against Lisa Frank, Inc.,
alleging violation of the Children's Online Privacy Protection
Act of 1998 (COPPA), and FTC rules promulgated thereunder.
Defendant operates a web site directed at children that
collected personally identifying data from children without
first obtaining parental consent. The FTC also filed a Consent
Decree [PDF], which was agreed to by both the government
and defendant, under which the defendant is enjoined from
further violation of the COPPA, and defendant agrees to pay a
$30,000 fine. See also, FTC
release. |
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| Wednesday, Oct 3 |
NEW TIME. 9:30 AM. The Senate Judiciary
Committee's Subcommittee on the Constitution, Federalism,
and Property Rights will hold a hearing titled
"Protecting Constitutional Freedoms in the Face of
Terrorism." Sen.
Russ Feingold (D-WI) will preside. Location: Room 226,
Dirksen Building.
10:00 AM. The House
Commerce Committee will hold a meeting to mark up three
bills. One pertains to bio terrorism. The second pertains to
threats to nuclear facilities. The third is a bill to clarify
the application of cable TV system privacy requirements to
new cable services. Location: Room 2123, Rayburn Building.
2:00 PM. The House
Judiciary Committee will hold a meeting to mark up several
bills, including HR 2975, the PATRIOT
Act of 2001 [122 pages in PDF]; this is the
"Conyers Sensenbrenner" compromise bill to replace
the Administration's Anti
Terrorism Act of 2001 [PDF]. Location: Room 2141, Rayburn
Building. |
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| Thursday, Oct 4 |
9:30 AM. The Senate
Governmental Affairs Committee will continue its hearing
on the security of critical governmental infrastructure.
(It began this hearing on September 12, 2001.) Location: Room
342, Dirksen Building.
10:00 AM. The Senate
Judiciary Committee will hold an executive business
meeting. Sen. Leahy will preside. Location: Room 226, Dirksen
Building.
2:00 PM. The Senate
Judiciary Committee will hold a hearing on judicial
nominations. The following nominees will testify: Edith
Clement (nominated to be a U.S. Circuit Judge for the Fifth
Circuit), Karen Caldwell (U.S. District Judge for the Eastern
District of Kentucky), Laurie Camp (U.S. District Judge for
the District of Nebraska), Claire Eagan (U.S. District Judge
for the Northern District of Oklahoma), James Payne (U.S.
District Judge for the Northern, Eastern and Western Districts
of Kentucky), and Jay Bybee (Assistant Attorney General for
the Office of Legal Counsel). Sen. Herb Kohl (D-WI) will
preside. Location: Room 226, Dirksen Building.
2:00 PM. The House
Government Reform Committee's Subcommittee on Technology
and Procurement Policy will hold a hearing titled
"Transforming the IT and Acquisition Workforces: Using
Market-Based Pay, Recruiting Strategies to Make the Federal
Government an Employer of Choice for IT and Acquisition
Employees" Location: Room 2154, Rayburn Building.
First day one of a two day conference hosted by the Department
of Commerce's Bureau of
Export Administration on export control law. This is the
14th annual east coast "Update Conference on Export
Controls and Policy." It will cover U.S. export control
policies, regulations, and procedures through a wide array of
plenary sessions and workshops. The price is $595. See, BXA's
web page on the conference. Location: Hilton Washington
Hotel, Washington DC.
Deadline to submit reply comments to the FCC regarding SBC's Section 271 application
to provide interLATA service in the states of Arkansas and
Missouri. (CC Docket No. 01-194.) See, FCC
notice [PDF]. |
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| Friday, Oct 5 |
9:30 AM. There will be a press briefing on possible remedies
in the Microsoft antitrust case. For more information, contact
Bert Foer, American
Antitrust Institute, at 202-244-9800 or by email.
Location: West Room, National
Press Club, 529 14th St. NW, 13th Floor, Washington DC.
10:00 AM. The House
Government Reform Committee's Subcommittee on Government
Efficiency, Financial Management, and Intergovernmental
Affairs will hold a hearing titled "Information
Technology -- Essential Yet Vulnerable: How Prepared Are We
for Attack?" Location: Room 2154, Rayburn Building.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Wireless
Telecommunications Practice Committee will host a lunch. The
speakers will be Kathleen Ham and Jim Schlichting,
Deputy Chiefs of the FCC's Wireless
Telecommunications Bureau. The price to attend is $15.
Register with wendy@fcba.org
by 5:00 PM on October 2. Location: Sidley & Austin, 1501 K
Street, NW Conference Room 6-E, Washington DC.
Second day one of a two day conference hosted by the
Department of Commerce's Bureau
of Export Administration on export control law. This is
the 14th annual east coast "Update Conference on Export
Controls and Policy." It will cover U.S. export control
policies, regulations, and procedures through a wide array of
plenary sessions and workshops. The price is $595. See, BXA's
web page on the conference. Location: Hilton Washington
Hotel, Washington DC.
Deadline to submit reply comments to the FCC in response to
its Notice of Proposed Rulemaking (NPRM) regarding the concept
of a unified intercarrier compensation regime, including
reciprocal compensation, and alternative approaches such as
"bill and keep." See, notice
in Federal Register, May 23, 2001, Vol. 66, No. 100, at Pages
28410 - 28418.
Deadline to submit comments to the USPTO regarding
its notice of proposed rulemaking (NPRM) pertaining to
requirements for claiming the benefit of prior filed
applications under 18 month publication of patent
applications. See notice,
Federal Register, September 5, 2001, Vol. 66, No. 172, at
Pages 46409 - 46415. |
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