Tech Law Journal Daily E-Mail Alert
October 8, 2001, 9:00 AM ET, Alert No. 281.
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Senate Leaders Introduce Anti Terrorism Bill
10/4. Senate leaders introduced S 1510 [243 page in PDF], the USA Act, the Senate version of the anti terrorism bill. This bill, like it House counterpart, contains a wide array of provisions intended to increase the ability of law enforcement, intelligence, and other government agencies to combat terrorism. In particular, both bills increases authority to conduct electronic surveillance of phone and Internet communications.
USA is an acronym for Uniting and Strengthening America. Its counterpart is HR 2975, the PATRIOT Act, which is an acronym for the Provide Appropriate Tools Required to Intercept and Obstruct Terrorism. The House Judiciary Committee approved  the PATRIOT Act on October 3 by a vote of 36 to 0. See, October 2 draft [124 pages in PDF] of the PATRIOT Act, which does not incorporate amendments adopted at the October 3 mark up meeting.
The USA Act is sponsored by Sen. Tom Daschle (D-SD), the Senate Majority Leader, Sen. Trent Lott (R-MS), the Senate Minority Leader, Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SJC), Sen. Orrin Hatch (R-UT), the ranking Republican on the SJC, Sen. Paul Sarbanes (D-MD), the Chairman of the Senate Banking Committee (SBC), Sen. Phil Gramm (R-TX), ranking Republican on the SBC, and Sen. Richard Shelby (R-AL), the ranking Republican on Senate Intelligence Committee.
The USA Act is a large and broad bill designed to give government agencies increased powers to combat terrorism. It provides for increased electronic surveillance powers, increased authority under the Foreign Intelligence Surveillance Act (FISA), and increased anti money laundering and anti terrorism financing powers. It also contains relief for victims of terrorism, increased Canadian border protection, and other provisions.
Pen Registers and Trap and Trace Devices. Both the USA and PATRIOT Acts expand pen register and trap and trace authority to include Internet communications. (See,  101 of the PATRIOT Act, and  216 of the USA Act.) Pen register and trap and trace orders currently apply to acquisition by law enforcement agencies (LEAs) of outgoing and incoming phone numbers. Both bills would extend pen register and trap and trace authority to "routing" and "addressing" information in an "electronic communication". Both bills also currently contain language stating that "content" cannot be obtained with a pen register or trap and trace order. However, neither bill goes into detail regarding what constitutes content, and what constitutes routing and addressing information.
Computer Trespassers. Both bills would allow LEAs to intercept wire and electronic communications of computer trespassers when asked by the owner or operator of a computer under attack. This section is designed to facilitate defense against such things as distribute denial of service attacks. (See,  217 of the USA Act, and  105 of PATRIOT Act.)
No Technology Mandates. The House and Senate bills now both contain language stating that the bills impose no technology mandates. However, the language of the two bills differs.  222 of the USA Act includes the following: "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 or technical assistance. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to section 216 shall be reasonably compensated for such reasonable expenditures incurred in providing such facilities or assistance." The House Judiciary Committee approved an amendment on October 3 which provides: "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." Thus, the Senate bill adds a second sentence.
Terrorism and CALEA
10/5. The House Government Reform Committee's Subcommittee on Governmental Efficiency, Financial Management and Intergovernmental Relations held a hearing titled "A Silent War: Are Federal, State, and Local Governments Prepared for Biological and Chemical Attacks." Almost all of the testimony and questions focused on the nature and delivery of biological and chemical attacks, and emergency public health and safety preparations. However, one witness, Edward Norris, Commissioner of the Baltimore City Police Department, also argued that further CALEA requirements are necessary "to prevent recurrences of terrorism".
Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994 to enable law enforcement authorities to maintain their existing wiretap capabilities in new telecommunications devices. It provides that wireline, cellular, and broadband PCS carriers must make their equipment capable of certain surveillance functions. The FBI has since sought an implementation of CALEA that expands surveillance capabilities beyond those provided in the statute. 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. The wireless service providers and privacy groups have battled with government agencies for years over CALEA implementation.
Specifically, Commissioner Norris stated that "The Communications Assistance for Law Enforcement Act (CALEA), which was passed in 1994 but has never been fully implemented, must be enforced. CALEA requires telephone companies to ensure that their systems and networks can accommodate federal, state, and local wiretaps in the face of changing telephone technology. Right now we can't intercept certain digital phone technologies, and that is keeping all of us dangerously in the dark."
The hearing was chaired by Rep. Steve Horn (R-CA). No member of the Subcommittee questioned Norris about CALEA.
FBI Computers
10/4. Sen. Richard Durbin (D-IL) spoke in the Senate about modernizing the FBI's computer systems. He stated that "no successful business in America could operate with the computers we have given to the premier law enforcement agency in America". He said that he is preparing legislation "that will allow an exception to our procurement laws in areas of national need and national emergency". See, Congressional Record, October 4, at page S10268.
NIPC Issues Advisory
10/5. The FBI's National Infrastructure Protection Center (NIPC) issued an advisory in which it stated that it "continues to observe hacking activity targeting the e-commerce or e-finance/ banking industry." It continued that "hackers have increased their targeting of several third party service providers that employ weak security practices".
Trade Promotion Authority
10/4. Rep. Charles Rangel (D-NY) and others introduced HR 3019, a bill pertaining to trade promotion authority (also know as "fast track"). On October 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". Rep. Rangel is the ranking Democrat on the Committee.
Bush Nominates Two for Appeals Courts
10/5. President Bush announced his intent to nominate Julia Gibbons to be a United States Circuit Judge for the Sixth Circuit, and to nominate William Steele to be a United States Circuit Judge for the Eleventh Circuit. See, White House release.
NTIA Announces New 3G Plan
10/5. The National Telecommunications and Information Administration (NTIA) released a statement regarding locating and reallocating spectrum for use by Third Generation (3G) wireless services. 3G services are intended to bring broadband Internet access to mobile devices, among other things. The NTIA, which is a part of the Department of Commerce, stated that the NTIA, FCC, and Department of Defense (DOD) have "a new plan for the assessment of spectrum" which will be completed by "Spring 2000".
The NTIA stated that "the current assessment examines the potential use of the 1710-1770 and 2110-2170 MHz bands for commercial advanced wireless services."
The NTIA also stated that "the 1770 to 1850 MHz band is not part of this assessment" and that "the Federal government incumbents in the 1710-1770 MHz band will be assessing their future spectrum needs in light of new national security demands." This spectrum is currently used primarily by the DOD.
The FCC, which has responsibility for allocation of spectrum used by the private sector, will assess the 2110-2170 MHz band. The NTIA, has responsibility for spectrum used by government entities, including the 1710-1850 MHz band.
Tom Wheeler, P/CEO of Cellular Telecommunications Industry Association (CTIA) praised the announcement. He stated that "Everyone, under the leadership of the White House, Secretary of Commerce Evans, FCC Chairman Powell and NTIA, has come together to address the immediate needs of the wireless industry while simultaneously ensuring national security. This band plan will enable the wireless industry to receive spectrum sooner rather than later, focusing on the deliverable, while not closing the door to future spectrum reallocation." See, CTIA release.
E-911 Deployment Delayed
10/5. The FCC announced, but did not release, orders allowing five major wireless carriers, and a public safety agency, more time to comply with the GPS mandates of the FCC's E-911 rules. Carriers had faced an October 1, 2001 deadline for enabling 911 calls from mobile phones to provide public safety authorities with location information. The FCC issued a release and a sheet [PDF] describing its orders. All four Commissioners issued statements. See, statements by Powell, Abernathy, Copps, and Martin.
Commissioner Kevin Martin wrote that "the current failure to meet the Commission's Phase II E911 deadlines is shameful. Nonetheless, we are told by manufacturers and suppliers that meeting today's deadlines is a practical impossibility. Let me be clear, however, these delays must come to an end."
Rep. Anna Eshoo (D-CA), a leading advocate of E-911 technology in the House, also commented. She said that "September 11, 2001 upped the ante on the importance of location detection technology in crisis situations.  Cellular phones were front and center in nearly every story related to the terrorist attacks ... These revised deadlines will be monitored and scrutinized by myself and my colleagues so that full implementation is brought to the American people sooner rather than later in the revised schedule the FCC has now set and approved."
See also, CTIA release.
Sen. Rockefeller Introduces NET COP Act
10/4. Sen. Jay Rockefeller (D-WV) introduced S 1509, the Networking Electronically To Connect Our Police Act of 2001, or the NET COP Act. This bill would establish a grant program to fund Internet access for rural police departments. Sen. Rockefeller stated in the Senate that this bill would create "a grant program, administered by the United States Department of Justice, to enable rural police departments without Internet access to purchase appropriate computer hardware and software, or to pay for Internet access, so that they can join the many thousands of federal, State, and local agencies already sharing information and cooperating to track down and arrest criminals via such Internet based services as DOJ's Regional Information Sharing Systems, RISS, and the FBI's Law Enforcement On-Line, LEO, program."
Senators Introduce Bill to Briefly Extend Net Tax Moratorium
10/4. Sen. Byron Dorgan (D-ND) and Sen. John Breaux (D-LA) introduced S 1504, a bill to extend the moratorium on new and discriminatory Internet taxes through June 30, 2002. The current moratorium, enacted by the Internet Tax Freedom Act in 1998, expires on October 20. This bill was referred to the Senate Commerce Committee, of which both Dorgan and Rockefeller are members. On October 2, Sen. Patrick Leahy (D-VT), Sen. Ron Wyden (D-OR), and Sen. John McCain (R-AZ) introduced S 1481, a bill to provide a two year extension.
AAI Proposes Court Management of Microsoft
10/5. The American Antitrust Institute (AAI) released a paper advocating remedies in the Microsoft antitrust case at a press briefing at the National Press Club in Washington DC. The AAI expressed its disappointment that the Department of Justice (DOJ) will not seek a break up of Microsoft. It then proposed ten mandates, to be enforced by the Court with the assistance of "Special Masters" and "technical experts". The proposals, if adopted, would result in Court supervised management of Microsoft in the manner of commission based regulation of publicly owned utilities. The AAI proposals are as following:
(1) "Require Microsoft to give computer manufacturers (OEMs) the virtually unrestricted right to control the initial bootup sequence of their products ..."
(2) "Microsoft must license the source code for its DOS based operating systems, including all versions and all components of MS-DOS, Windows 3, Windows 95, Windows 98 and Windows Me."
(3) "Require Microsoft to include Sun's JAVA "virtual machine" as a mandatory component of Microsoft's operating system."
(4) "Prohibit Microsoft from adding any proprietary extensions ... to any product, standard or feature currently available in the public domain or pursuant to open source license, such as kerebos or xml."
(5) "Require Microsoft to include the middleware products of its competitors in the operating system including, but not limited to, Netscape's web browser, RealPlayer's and Apple's multimedia and streaming software."
(6) "Require Microsoft to "open source" its middleware products, including Internet Explorer."
(7) "Require Microsoft to develop and market, in good faith, current and future versions of its applications for competing operating systems. The applications would include Microsoft Office as well as middleware products such as Internet Explorer and Windows Media Player. Competing operating systems would include Linux, versions of UNIX, BeOS and Amiga ... and any operating system ..."
(8) "Require Microsoft to ... license its software to all OEMs on the same terms."
(9) "Require Microsoft to give independent software developers the same access to the source code, plans, training, APIs, technical information and communications interfaces for all of Microsoft's operating systems that Microsoft gives its own developers."
(10) "The Court should appoint, at Microsoft's expense, one or more Special Masters with the authority to hire technical experts to take evidence and evaluate information in order to advise the Court in a timely manner regarding Microsoft's compliance and to assist the court in interpreting the relief provisions."
Fed Circuit Rules in Xerox v. 3Com
10/5. The U.S. Court of Appeals (FedCir) issued its opinion in Xerox v. 3Com, a patent infringement case involving graffiti software for hand held computers.
Xerox is the assignee of U.S. Patent No. 5,596,656, which is titled "Unistrokes for Computerized Interpretation of Handwriting." Xerox filed a complaint in U.S. District Court (WDNY) against 3Com Corporation, U.S. Robotics Corporation, U.S. Robotics Access Corporation, and Palm Computing, Inc. claiming that the Graffiti software in its PalmPilot line of hand held computers infringed its unistrokes patent. Defendants asserted the affirmative defenses of invalidity, unenforceability, and non-infringement.
The District Court granted summary judgment of non-infringement to Defendants. The Appeals Court affirmed in part, reversed in part, and remanded.
Monday, Oct 8
Columbus Day. The House is in recess until Tuesday. The Senate is in recess until 9:30 AM on Tuesday. The FCC is closed.
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.
Tuesday, Oct 9
2:30 PM. The Senate Commerce Committee will hold a hearing on the nomination of John Marburger to be Director of the Office of Science and Technology Policy, and the nomination of Phillip Bond to be Under Secretary of Commerce for Technology. Location: Room 253, Russell Senate Office Building.
5:00 PM. The House Ways and Means Committee will meet to mark up HR 3005 [PDF], the "Bipartisan Trade Promotion Authority Act of 2001." Location: Room 1100, Longworth Building.
Day two 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.
Deadline to file reply 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.)
Wednesday, Oct 10
POSTPONED. 9:00 AM - 3:30 PM. The Federal Communications Commission (FCC) will hold a Public Forum and Technology Expo on telecommunications relay services (TRS). TRS, which is required by Title IV of the Americans with Disabilities Act (Section 225 of the Communications Act of 1934), pertains to services for hearing impaired persons. Location: Commission Meeting Room, Room TW-C305 and adjacent rooms, 445 12th St., SW, Washington DC. See, FCC notice and agenda [MS Word]. See also, notice in Federal Register, August 28, 2001, Vol. 66, No. 167, at Pages 45310 - 45312.
10 AM. The Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts will hold a hearing to examine new priorities and challenges for the FBI. Sen. Charles Schumer (D-NY) will preside. Location: Room 226, Dirksen Building.
10:00 AM - 12:00 NOON. The House Science Committee will hold a hearing titled "Cyber Security How Can We Protect American Computer Networks From Attack?" Location: 2318 Rayburn Building.
The Supreme Court of the United States will hear oral argument in Verizon v. FCC (00-511), WorldCom v. Verizon (00-555), FCC v. Iowa Utilities Board (00-587), AT&T v. Iowa Utilities Board (00-590), and General Communications v. Iowa Utilities Board (00-602), consolidates. There will be 90 minutes for argument.
12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) International Practice Committee will host a brown bag lunch titled "Survey of Issues Facing the International Bureau." The speaker will be Donald Abelson, Chief of the FCC's International Bureau. No RSVP necessary.
2:00 PM. FCC Chairman Michael Powell will hold an informal press conference with reporters who cover the FCC. Location: FCC Meeting Room, 12th Street Level, 445 12th Street SW, Washington DC.
Privacy News
10/5. House Financial Services Committee Chairman Mike Oxley (R-OH) praised FTC Chairman Timothy Muris' October 4 speech on privacy. Rep. Oxley released a statement in which he said that "Privacy provisions included in the Gramm Leach Bliley financial modernization law are the strongest financial consumer privacy protections ever passed by Congress. The FTC's new agenda will focus, among other things, on not only enforcing these provisions, but working with industry, trade associations, agencies and consumers to ensure that the GLB provisions are being implemented as intended -- to truly benefit and protect consumers. The realm of financial privacy is constantly changing and, at times, confusing for consumers. ... The FTC's balance of enforcement, education and outreach is an excellent approach to this complex issue." Muris stated that the FTC would increase resources devoted to protecting privacy by 50 percent. He also said that he opposes new privacy legislation at this time. He was silent on pending spam bills.
10/5. Rep. Darlene Hooley (D-OR) introduced HR 3053, a bill to prevent identity theft. It was referred to the House Financial Services Committee.
The AEI Brookings Joint Center for Regulator Studies published a paper [PDF] titled "Constitutional Issues in Information Privacy." The authors are Fred Cate and Robert Litan. The two argue that "the First Amendment restrains the power of the government to enact and enforce privacy laws that curtail expression."
Bush Appoints Barksdale to Foreign Intelligence Advisory Board
10/5. President Bush announced his intent to appoint Jim Barksdale to the President's Foreign Intelligence Advisory Board (PFIAB) for a term of two years. The PFIAB provides advice to the President about the quality and adequacy of intelligence collection, of analysis and estimates, of counterintelligence, and of other intelligence activities.
In addition, he appointed Brent Scowcroft to be the Chairman. His other selections are Cresencio Arcos, Robert Day, Stephen Friedman, Alfred Lerner, Ray Hunt, Rita Hauser, David Jeremiah, Arnold Kanter, James Langdon, Marie Cornell, John Streicker, Pete Wilson, and Phillip Zelikow. See, White House release.
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