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October 4, 2001, 9:00 AM ET, Alert No. 279.
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House Judiciary Committee Passes PATRIOT Act
10/3. The House Judiciary Committee adopted HR 2975, the PATRIOT Act, by a vote of 36 to 0, Wednesday night, October 3, following a lengthy mark up session. The bill as adopted contains many amendments to the draft [124 pages in PDF] of the bill released by the Committee on October 2. The bill contains a wide array of provisions intended to increase the power of law enforcement, intelligence, and other government agencies to combat terrorism. Title I of this bill increases authority to conduct electronic surveillance of phone and Internet communications.
The adoption of this bill is another step in a continuing process, which began when the Bush Administration released its draft Anti Terrorism Act of 2001 [PDF] on September 19. House leaders and members of the House Judiciary Committee have been working continuously since then on revisions to the Administration's proposal. Moreover, there are many sections of the bill which are still being negotiated. A further refinement of the bill will likely be offered next week when the bill comes up for a vote on the House floor.
PATRIOT is an acronym for the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. This version of the bill is also known as the "Conyers Sensenbrenner" compromise bill. Rep. James Sensenbrenner (R-WI) and Rep. John Conyers (D-MI) are the Chairman and ranking Democrat on the House Judiciary Committee. Committee members have been working on this legislation with an unusual degree on bi-partisanship and cooperation.
The Senate is developing its own different version of the bill. The House and Senate are almost certain to quickly pass anti terrorism bills. Then, the differences between the two bills will need to be resolved by conference committee, or other procedure.
Content, Subject Lines, and URLs
10/3. The Administration's original anti terrorism bill would have simply extended pen register and trap and trace authority to "routing" and "addressing" information in an "electronic communication". It did not contain any language limiting such authority to exclude the content of the communication. This left much open for future implementation and interpretation. The bill adopted by the House Judiciary Committee on October 3 adds language restricting the scope to information other than content.
The bill, as adopted by the Committee, would amend (see, draft at pages 7-8) the definitions of pen register and trap and trace devices, found at 18 U.S.C. 3127, by including the following language: "other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication (but not including the contents of such communication);" (Parentheses in original.)
Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) proposed amendment, which they did not offer at the mark up session, that would further clarify the information that could be collected under pen register and trap and trace orders. Their proposal is as follows: "In Section 101, strike "(but not including the contents of such communication)" each place it appears and insert "(but not including in formation that reveals the subject matter of electronic communications, information identifying files or web pages accessed over the Internet (beyond the host name), or other contents of communications)". In Section 101, on page 5, line 3, by inserting after "(but not including information that reveals the subject matter of electronic communications, information identifying files or web pages accessed over the Internet (beyond the host name), or other contents of communications)" after "communications." " (Parentheses in original.)
Rep. Goodlatte discussed, but did not offer, this amendment, at the mark up session. Rep. James Sensenbrenner (R-WI), the Chairman of the Committee, stated that the purpose of the expanded pen register and trap and trace authority is "not to get into content." He said that he would work on language in the committee report that addresses this subject of this amendment.
No Technology Mandates
10/3. Rep. Rick Boucher (D-VA) offered an amendment at the House Judiciary Committee's mark up of the PATRIOT Act on October 3, which was adopted by a unanimous voice vote. The amendment prevents the government from requiring ISPs or other service providers to modify their equipment or services under the PATRIOT Act. The amendment was cosponsored by Rep. Bob Goodlatte (R-VA) and Rep. Chris Cannon (R-UT).
The amendment states as follows: "Insert at the end of Title I the following. Section ___: Clarification of No Technology Mandates. Nothing in this Act shall impose any additional technical obligation or requirement on a provider of wire or electronic communication service or other person to furnish facilities, services or technical assistance."
There was nothing in the bill which required service providers to furnish any facilities or services to the government. Reps. Goodlatte and Boucher both explained their reasons for offering this amendment. They are concerned about the history of the Communications Assistance for Law Enforcement Act (CALEA). Congress passed this Act in 1994 to enable law enforcement authorities to maintain their existing wiretap capabilities in new telecommunications devices. The Congress had cell phones in mind. It provides that wireline, cellular, and broadband PCS carriers must make their equipment capable of certain surveillance functions. However, the FBI has since sought an implementation of CALEA that expands surveillance capabilities beyond those provided in the statute. Moreover, the FCC, which has written implementing rules, has largely backed the FBI. This has imposed considerable burdens and costs upon service providers, and their customers.
Interception of Computer Trespasser Communications
10/3. The PATRIOT Act as adopted by the House Judiciary Committee on October 3 expands law enforcement agencies' authority to intercept computer trespasser communications. It provides that "It shall not be unlawful ... for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser, if (i) the owner or operator of the protected computer authorizes the interception ... (ii) the person acting under color of law is lawfully engaged to the investigation; (iii) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and (iv) such interception does not acquire communications other than those transmitted to or from the computer trespasser." (See, Title I,  105.)
The bill also defines "computer trespasser" as "a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer."
This section is intended to permit law enforcement agencies to assist ISPs and e-commerce companies that are under distributed denial of service (DDOS), and other, attacks.
Rep. Howard Berman (D-CA) did not offer language to amend these provisions. However, he wants to work with others to revise this language before final House passage. He argued at the mark up session that "it is drafted in a fashion that is too open ended." He said that it does not limit the authorized intercepts to communications involved in the unauthorized access. He also stated that it allows phone taps of cyber attackers. He also stated that he is concerned that there is no court order involved.
In addition, civil liberties groups have argued that the language pertaining to "without authorization" should be clarified. Their concern is not that DDOS attacks would be considered "without authorization", but that other activity, such as spam, might also serve as the basis for government involvement under this provision.
Rep. James Sensenbrenner (R-WI), the Chairman of the Committee, stated that "the Gentleman makes a good point, and we will look at it between now and going to the floor."
Electronic Surveillance Under the PATRIOT Act
10/3. Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, stated at the October 3 mark up session that "the PATRIOT Act modernizes surveillance capabilities by ensuring that pen register and trap and trace court orders apply to new technologies, such at the Internet, and can be executed in multiple jurisdictions anywhere in the United States. Criminal provisions dealing with stored electronic communications will be updated to allow law enforcement to seize stored voice mail messages the same way they can seize a taped answering machine message. Additionally, under this bill, a court may authorize a pen register or trap/trace order that follows the person from cell phone to cell phone rather than requiring law enforcement to return to court every time the person switches cell phones. The bill, consistent with our constitutional system of government, still requires a judge to approve wiretaps, search warrants, pen registers and trap/trace devices."
The bill maintains, but modifies, the current legal structure. There are currently three different standards for obtaining different types of court orders authorizing electronic surveillance. A wiretap order, which enables law enforcement agencies to obtain the content of a phone call, is issued by a judge upon a showing of probable cause. This is often referred to as a Title III order. This is a very 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; the judge has no discretion. The Supreme Court has upheld this procedure on the basis that only phone numbers are obtained. Finally, there is a separate, and low, standard for Foreign Intelligence Surveillance Act (FISA) orders. However, under current law, the purpose of surveillance must be foreign intelligence.
The bill adopted by the Committee changes pen register and trap and trace authority in two significant ways. First, it expands the information available from mere phone numbers to "routing" and "addressing" information in an "electronic communication". Thus, it extends such authority from old fashioned phone systems to new and emerging Internet communications. Second, it enables law enforcement agencies to obtain a single order that would apply nationwide, rather than have to get a separate order in each judicial district.
Both changes have been rigorously debated. Extending the information available to routing and addressing information is controversial because such information could potentially contain far more information than mere phone numbers. Moreover, the standards for orders allowing pen register and trap and trace devices would apply to technologies for collecting addressing and routing information, such as the FBI's Carnivore system.
The bill also makes changes to the FISA authority. In particular, under the bill as adopted by the Committee, foreign intelligence must be a significant purpose of the order. Opponents of this change argue that it might enable unscrupulous prosecutors to obtain wiretap orders in essentially domestic criminal investigations under the lower FISA standard, by asserting a significant intelligence purpose. This would enable such prosecutors to get around the higher standard required for wiretap orders in criminal investigations.
Finally, another key provision of the bill as adopted by the Committee, allows law enforcement agencies to intercept computer trespasser communications, if requested to do so by the ISP or other victim of the unauthorized intrusions.
More Members Assigned to House Judiciary Committee
10/2. The House adopted HRes 249, which adds two new members to the House Judiciary Committee, Rep. Ed Bryant (R-TN) and Rep. Mike Pence (R-IN).
Senate Committee Holds Hearing on Constitutional Freedoms and Terrorism
10/3. The Senate Judiciary Committee's Subcommittee on the Constitution, Federalism, and Property Rights held a hearing titled "Protecting Constitutional Freedoms in the Face of Terrorism." See, opening statement of Sen. Patrick Leahy (D-VT), and opening statement of Sen. Orrin Hatch (R-UT).
See also, prepared testimony of witnesses: David Kris (Department of Justice), Jerry Berman (Center for Democracy & Technology), David Cole (Georgetown University Law Center), Morton Halperin (Center for National Security Studies), Douglas Kmiec (Catholic University Law School), John McGinnis (Cardozo School of Law), and Grover Norquist (Americans for Tax Reform).
Rep. Upton Introduces Tech Depreciation Bill
10/2. Rep. Fred Upton (R-MI) introduced HR 2981, a bill to amend the Internal Revenue Code to establish a 2 year recovery period for depreciation of computers and other technological equipment, a 24 month useful life for depreciation of computer software, and a 7 year useful life for depreciation of certain spectrum licenses. The bill was referred to the House Ways and Means Committee. Rep. Upton is the Chairman of the House Commerce Committee's Telecom and Internet Subcommittee. He is not on the Ways and Means Committee.
FEC Sets Deadline for Public Comments on NPRM on Internet Political Activity
10/3. The Federal Election Commission (FEC) published a notice in the Federal Register regarding its proposed rule changes affecting political activity on the Internet. Public comments on the proposals are due by December 3, 2001. See, Federal Register, October 3, 2001, Vol. 66, No. 192, at Pages 50358 - 50366.
On September 27, the FEC approved a Notice of Proposed Rulemaking (NPRM) [PDF] regarding political activity on the Internet. The FEC is the agency charged with enforcing the Federal Election Campaign Act (FECA), which regulates political contributions and expenditures. While the FEC had previously considered wide ranging regulation of political speech on the Internet, this NPRM merely proposes to permit certain personal political web sites, and to allow corporations and unions to put certain hyperlinks and press releases in their web sites. See, TLJ story of September 27. See also, FEC release.
Computer Crime
10/3. The U.S. Court of Appeals (8thCir) issued its opinion [PDF] in USA v. Becht, an appeal from a conviction for possession and dissemination through interstate commerce of child pormography, in violation of 18 U.S.C. 2252A(a)(1) & (a)(5)(B). Becht argued on appeal that the introduction into evidence of 39 images seized from his PC hard drive unfairly prejudiced his defense in violation of Federal Rule of Evidence 403. The Appeals Court affirmed.
More Documents
Novell: complaint in Novell v. Microsoft, 10/1 (HTML, TLJ).
Boehlert: speech regarding impact of terrorism on R&D funding, 10/1 (HTML, TLJ).
Bipartisan Trade Promotion Authority Bill Introduced
10/3. Rep. Bill Thomas (R-CA), Chairman of the House Ways and Means Committee, introduced HR 3005 [57 pages in PDF], the "Bipartisan Trade Promotion Authority Act of 2001". The bill, which is cosponsored by Rep. Phil Crane (R-IL), Rep. Cal Dooley (D-CA), and Rep. John Tanner (D-TN), Rep. David Dreier (R-CA), and Rep. Bill Jefferson (D-LA), is a bipartisan compromise that includes labor and environmental provisions. See also, sponsors' bill summary [PDF].
Rep. Dooley, a cosponsor of the bill, said in a release that "It's the sort of bipartisan compromise approach on trade that we've talked about for years, but has eluded us until now. Democrats have said for a long time that we want labor and environment addressed in trade bills. We've finally done that in a strong and sensible way, and come up with a trade plan that Democrats can be proud of."
See also, joint statement by Commerce Secretary Don Evans and USTR Robert Zoellick in support of the bill.
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.
10:30 - 11:00 AM. Timothy Muris, Chairman of the Federal Trade Commission (FTC), will give a speech on the FTC's privacy agenda at the Privacy 2001 Conference in Cleveland, Ohio.
11:30 AM - 12:00 PM. Timothy Muris will hold a remote press availability to answer questions about the FTC's privacy agenda. See, FTC release. Location: Room 432, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, DC.
12:00 NOON. Nicholas Godici, acting Director of the USPTO will be available online to answer questions from the agency's customers and the public on issues related to the work of the USPTO. See, USPTO release.
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].
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, 202-244-9800 or bfoer@antitrustinstitute.org. 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.
Monday, Oct 8
Columbus Day.
Day one of a two day seminar offered by the Federal Communications Bar Association (FCBA) on communications law. See, agenda [PDF]. Location: Georgetown University Law Center, 600 New Jersey Avenue, NW, Washington DC.
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