| 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. |
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| 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. |
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| 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. |
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| 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." |
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| 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. |
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| 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). |
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| 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. |
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| 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. |
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| 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. |
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| 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). |
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| 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. |
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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.
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]. |
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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, 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. |
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| 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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