| Ways & Means Committee
Passes Trade Promotion Authority Bill |
10/9. The House
Ways and Means Committee amended and approved HR 3005
[PDF], the Bipartisan Trade Promotion Authority Act of 2001,
by a vote of 26 to 13 on Tuesday night, October 9. All of
the Republican members of the Committee voted for the bill.
Two Democrats voted for the bill, while several more did not
vote.
See, HR
3005 [57 pages in PDF] as introduced. The Committee
approved an amendment in the nature of a substitute offered by
Chairman Bill
Thomas (R-CA), which did not alter the key provisions of
the bill. The Committee also approved an amendment offered by Rep. Benjamin Cardin
(D-MD) regarding foreign corrupt practices.
Trade promotion authority (TPA), which is also known as fast
track, gives the President authority to negotiate trade
agreements which can only be voted up or down, but not
amended, by the Congress. TPA strengthens the bargaining
position of the President, and the U.S. Trade Representative, in
negotiations with other nations.
Technology companies that export equipment, software, or
services, and that seek greater protection abroad for their
intellectual property rights, stand to benefit from enactment
of TPA.
This bill gives the President authority to negotiate
agreements that only reduce tariffs without the need for any
implementation from the Congress. (See, § 3(a).) The
bill also gives the President trade promotion authority to
negotiate agreements that address both tariff and non-tariff
barriers. (See, § 3(b).)
TPA is a controversial issue, but not primarily because of the
basic authority granted to the President. Rather, the intense
debate has focused on the appropriate role of labor and
environmental standards in free trade agreements (FTAs). Free
traders and Republicans have tended to argue that these are
social issues that are not appropriately included in trade
agreements. In addition, there are concerns in Congress about
surrendering constitutional authority to the President.
Moreover, there are also some important, but not frequently
debated, standards in the bill pertaining to intellectual
property rights and e-commerce.
HR 3005 attempts to strike a compromise on both labor and
environmental standards, and maintaining a significant role
for the Congress in trade agreement negotiations. The bill
sets "overall trade negotiating objectives" and
"principal trade negotiating objectives". Among the
principal trade negotiating objectives are "to ensure
that a party to a trade agreement with the United States does
not fail to effectively enforce its environmental or labor
laws, through a sustained or recurring course of action or
inaction ..." and "to strengthen the capacity of
United States trading partners to protect the environment
..." Moreover, the bill also provides that trade
agreements that cover tariff and non-tariff barriers "may
be entered into ... only if such agreement makes progress in
meeting the applicable objectives ..."
HR 3005 attempts to involve Congress in the process by
mandating various consultations with the Congress.
Rep. Sander Levin
(D-MI) was the most vocal opponent of the bill. He argued that
the bill does not go far enough to promote labor and
environmental standards. Rep. Charles Rangel
(D-NY), the ranking Democrat on the Committee, also condemned
the bill. He accused Republicans of being partisan in a time
of national crisis. He then offered a substitute amendment,
which was sponsored only by Democrats. It was rejected.
The meeting, which was scheduled to start at 5:00 PM,
started late, broke for several floor votes, and finally
concluded over four hours later. The USTR, Robert Zoellick,
was present to answer technical questions about the bill.
However, much of the time was taken up in substantive debate
between Zoellick, who supports the bill, and some of the
Democrats on the Committee who oppose the bill. The two
Democrats on the Committee who voted for the bill were Rep. William Jefferson
(D-LA) and Rep. John
Tanner (D-TN). |
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| TPA Bill Sets IPR and
E-Commerce Objectives |
10/9. HR 3005, the Bipartisan Trade Promotion Authority Act
of 2001, which was approved by the House Ways and Means
Committee on October 9, also sets detailed objectives for the
President to meet regarding intellectual property rights (IPR)
and electronic commerce.
HR 3005, at § 2(b)(4), provides that the "principal
trade negotiating objectives" of the President shall
include intellectual property. This section states, in part,
that "The principal negotiating objectives of the United
States regarding trade-related intellectual property are (A)
to further promote adequate and effective protection of
intellectual property rights, including through (i)(I)
ensuring accelerated and full implementation of the Agreement
on Trade-Related Aspects of Intellectual Property Rights
..."
This section also sets as objectives "providing strong
protection for new and emerging technologies and new methods
of transmitting and distributing products embodying
intellectual property" and "ensuring that standards
of protection and enforcement keep pace with technological
developments, and in particular ensuring that rightholders
have the legal and technological means to control the use of
their works through the Internet and other global
communication media, and to prevent the unauthorized use of
their works".
Similarly, § 2(b)(8) provides that the "principal
negotiating objectives of the United States with respect to
electronic commerce are (A) to ensure that current
obligations, rules, disciplines, and commitments under the
World Trade Organization apply to electronic commerce; (B) to
ensure that (i) electronically delivered goods and services
receive no less favorable treatment under trade rules and
commitments than like products delivered in physical form; and
(ii) the classification of such goods and services ensures the
most liberal trade treatment possible; (C) to ensure that
governments refrain from implementing trade-related measures
that impede electronic commerce; (D) where legitimate policy
objectives require domestic regulations that affect electronic
commerce, to obtain commitments that any such regulations are
the least restrictive on trade, nondiscriminatory, and
transparent, and promote an open market environment; and (E)
to extend the moratorium of the World Trade Organization on
duties on electronic transmissions."
These provisions were the subject of very little debate or
discussion at the Committee mark up meeting. There was some
discussion of IPR. This was mostly regarding patent protection
in the context of pharmaceuticals. However, Rep. Sander Levin
(D-MI) also stated that "we are imposing" on other
countries by requiring them to comply with TRIPS. USTR Robert
Zoellick responded bluntly: "we object to people stealing
property." |
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| Rules Committee Adopts Rule
for Distance Education Bill |
10/9. The House Rules
Committee adopted a modified closed rule for
consideration of HR
1992, the Internet Equity and Education Act of 2001. This
bill would make it easier to obtain student loans for Internet
based education, and other distance learning. The bill is
sponsored by Rep.
Johnny Isakson (R-GA).
This rule allows for one hour of debate in the House equally
divided and controlled by the chairman and ranking minority
member of the Committee on Education and the Workforce. It
also allows Rep. Patsy
Mink (D-HI) to offer her amendment
in the nature of a substitute [PDF].
The bill would remove the burden of the "12-hour
rule" for non-traditional programs. This rule requires
educational institutions to keep voluminous attendance records
to demonstrate that their students attended certain types of
work sessions. The bill also makes exceptions to the 50%
requirement by allowing a limited number of institutions to
offer more than 50 % of their courses by telecommunications,
or to serve more than 50 % of their students through
telecommunications courses. The bill also addresses incentive
compensation provisions. |
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| Supreme Court Denies
Certiorari in Microsoft Case |
| 10/9. The Supreme
Court of the United States denied, without opinion,
Microsoft's petition for writ of certiorari in the antitrust
case brought against it by the government. See, Order
List [PDF] at page 4. The Department of Justice issued a release
which quoted a spokesman as saying, "We're pleased with
the Court's decision. We'll continue our progress in the
District Court." (SCUS No. 01-236, Microsoft Corporation
v. United States, et al.) |
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| House and Senate Set to
Vote on Anti Terrorism Bills |
10/9. Neither the House nor the Senate passed their versions
of the anti terrorism bill on Tuesday. However, both bodies
are poised to take up the bills this week. Senate Majority
Leader Tom Daschle (D-SD) sought unanimous agreement on
Tuesday to proceed to a vote on the USA Act without debate or
amendments. However, Sen.
Russ Feingold (D-WI) objected.
The House bill is HR 2975, titled the PATRIOT Act. See, HTML
version in the Library of Congress web site, and PDF
version in the CDT web
site. (However, both of these lack the amendments adopted by
the House Judiciary
Committee on October 3.) The Senate bill is S 1510, titled
the USA Act. See, HTML
version in the Library of Congress web site, and PDF version in Sen. Patrick Leahy's
(D-VT) web site. See also, Sen. Leahy's summary
[PDF] of the bill.
Both bills contain many provisions that would increase the
ability of law enforcement, intelligence, and other government
agencies to combat terrorism, including expanded authority to
conduct electronic surveillance of phone and Internet
communications. Both bills have broad bipartisan support. The
Bush Administration favors the Senate bill, in part because it
lacks the two year sunset provision contained in the House
bill. |
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| Gov. Davis Vetoes E-Mail
Monitoring Bill |
10/9. California Gov. Gray Davis vetoed Senate
Bill 147, sponsored by Sen. Debra
Bowen (D-Marina del Rey). This bill would prohibit an
employer from secretly monitoring the electronic mail or other
computer records generated by an employee.
Gov. Davis stated that "This bill would require
employers, by March 1, 2002, to execute signed or
electronically verifiable agreements between an employer and
employees regarding the right of the employer to monitor the
e-mail traffic and computer files of employees. If such
agreements are not provided, the bill prohibits employers from
monitoring business computers by employees to guard against
inappropriate business or personal uses."
He continued that "Under current law, employers are
potentially liable if the employer's agents or employees use
the employer's computers for improper purposes, such as sexual
harassment, defamation and the like. It therefore follows that
any employer has a legitimate need to monitor, either on a
spot basis or at regular intervals, such company property,
including e-mail traffic and computer files stored on either
employer owned hard drives, diskettes or CD ROMs."
Gov. Davis concluded in his veto statement that "This
bill places unnecessary and complicating obligations on
employers and may likely to lead to litigation by affected
employees over whether the required notice was provided and
whether it was read and understood by the employee." |
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| Covad Rebuts Intel and PFF
on Broadband Deployment |
10/9. October 9 was the 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. Covad submitted a reply
comment [PDF] which criticized comments submitted by Intel, the Progress and Freedom Foundation
(PFF), and Bell companies regarding broadband deployment.
On September 24, Intel submitted a comment
[PDF] in which it stated that "current regulations are
unnecessarily undermining the reasonable and timely deployment
of broadband". It stated that the FCC "should begin
a comprehensive Section 706 rulemaking to review the
regulations that apply to all broadband providers." Intel
concluded that "the Commission should tentatively propose
deregulating all new, last mile broadband investment to
encourage the fastest possible deployment of the highest speed
technology. For example, it is premature to require cable
companies to make their cable modem facilities available to
unaffiliated ISPs at regulated rates. Similarly, new last mile
DSL investment should not be encumbered by excessive
regulation."
See also, comment
[PDF] submitted by the PFF on September 24. The PFF also
submitted a reply
[PDF] on October 9 to its original comments.
Covad wrote in response that "To preserve competition,
and to retain invaluable competitive pressures on broadband
deployment, the Commission should not adopt the proposals of
the BOCs, Intel, and PFF. It can, however, take concrete steps
to further the goals of Congress by acting on the petition to
adopt concrete federal rules for UNE provisioning that will
allow facilities- based CLECs to continue to offer customers a
real choice in broadband services. It has been five years
since the Act was passed, and the BOCs still do not provide
parity treatment to their CLEC wholesale customers. Adopting
real provisioning rules, and associated self-executing
penalties, will give CLECs and consumers the equitable
treatment Congress envisioned."
This FCC 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.) |
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| FBI Files Affidavit
Regarding Key Logger System |
10/4. An FBI agent filed an affidavit
[PDF] with the U.S.
District Court (DNJ) in USA v. Nicodemo Scarfo.
As a part of its criminal investigation, the FBI
surreptitiously installed on Scarfo's personal computer its
"Key Logger System" to record the keystroke entry of
his encryption passphrase. Scarfo now seeks to suppress
evidence gathered as a result of this.
Nicodemo Scarfo is an encryption savvy mobster involved in
illegal gambling and loan sharking operations. Previously, the
FBI obtained court authority to surreptitiously install on
Scarfo's computer "recovery methods" that could
capture password and encryption key information. The Court
order stated: "IT IS ORDERED ... that Special Agents of
the F.B.I. ... deploy recovery methods which will capture the
necessary key related information and encrypted file(s) ...
that Special Agents of the F.B.I. ... be authorized to enter
the TARGET LOCATION surreptitiously, covertly, and by breaking
and entering, if necessary, in order to deploy recovery
methods which will capture the necessary key related
information and encrypted file(s) whether they are stored on
Nicodemo S. Scarfo's computer hard drive in the TARGET
LOCATION or on removable media."
The Electronic Privacy
Information Center (EPIC) has collected and published case
documents from this proceeding. See, index. |
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| More News |
10/9. The Recording Industry
Association of America (RIAA) released a one page report
[PDF] titled "2001 Mid Year Anti-Piracy Statistics".
See also, RIAA
release.
10/9. The National Music
Publishers' Association (NMPA), The Harry Fox Agency (HFA)
and the Recording Industry
Association of America (RIAA) announced that they reached
an agreement on the licensing of musical works for new
subscription services on the Internet. See, RIAA release.
10/9. California Gov. Gray Davis vetoed Assembly
Bill 148, sponsored by Assembly Member Charlene Zettel
(R-Poway). Gov. Davis stated that "This bill would have
required a study to determine the cost and the most
cost-effective means of providing Internet access to every
middle and junior high school. While I am most supportive of
technology in schools, AB 148's study is duplicative of
existing and very current information." |
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| Bush Names Special Advisor
for Cyberspace Security |
| 10/9. President Bush picked Richard Clarke to be the
President's Special Advisor for Cyberspace Security. He will
report to Thomas Ridge, the Assistant to the President for
Homeland Security, and to Condi Rice, the Assistant to the
President for National Security Affairs. Clarke was Deputy
Assistant Secretary of State for Intelligence under President
Reagan. He was also Assistant Secretary of State for Political
Military Affairs under the elder President Bush. In May 1998,
he was appointed National Coordinator for Security,
Infrastructure Protection, and Counter Terrorism. See also, White
House release and transcript
of event announcing Clarke appointment. |
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| 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.
10:00 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.
POSTPONED. 10:00
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.
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.
2:00 PM. The House
Judiciary Committee will hold a meeting to mark up several
bills, including HR
1408, the Financial Services Antifraud Network Act of 2001
and HR
1552, the Internet Tax Nondiscrimination Act.
Location: Room 2141, Rayburn Building.
POSTPONED. 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. |
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| Thursday, Oct 11 |
9:30 AM. The FCC will hold a meeting. Location:
Commission Meeting Room, FCC, 445 12th Street, SW, Room
TWC305, Washington DC.
9:30 AM. The House
Finance Committee will hold a meeting to mark up HR 3004,
the Financial Anti Terrorism Act of 2001. Location: Room 2128,
Rayburn Building.
10:00 AM. The Senate
Judiciary Committee will hold an business meeting to
consider pending calendar business. Location: Room 226,
Dirksen Building.
10:00 AM. The House
Judiciary Committee will hold an oversight hearing titled
"Using Information Technology to Secure America's
Borders: INS Problems with Planning and Implementation."
Location: Room 2141, Rayburn House Office Building. 12:00
NOON. The Federal
Communications Bar Association (FCBA) will host a luncheon
titled "Competition in Japan's Telecommunications
Sector." The speaker will be Shogo Itoda, Commissioner,
Japan Fair Trade Commission. RSVP to DC Bar Sections Office at
202-626-3463. The price is $25 for FCBA members. Location:
Arnold & Porter, Paul Porter Room, 10th Floor, 555 12th
Street, NW, Washington DC.
2:00 PM. The Senate
Judiciary Committee will hold hearings to examine homeland
defense matters. Location: Room 226, Dirksen Building.
4:15 PM. FTC Commissioner Thomas Leary will speak at
the Transatlantic Business Dialogue on "Regulatory Policy
Networked Economy." Location: Folger's Shakespeare
Library, 201 East Capitol Street, SE, Old Reading Room,
Washington DC.
6:00 - 8:00 PM. The Federal
Communications Bar Association (FCBA) will host a
reception featuring David Gross, Deputy Assistant
Secretary of State for Communications and Information Policy,
and Nancy Victory, head of the NTIA. The price of
admission is $35 for private sector members and $20 for
government or students. RSVP to Wendy Parish at fcba@fcba.org by Tuesday,
October 9, at 10:00 AM. Location: Capital Hilton Hotel, 16th
& K Streets, NW, Washington DC.
Deadline to submit comments to the FCC in its rule making
proceeding regarding locating spectrum bands below 3 Ghz for
possible reallocation for Third Generation (3G)
wireless services, and for other purposes. (ET Docket Nos.
00-258 and 95-18 and IB Docket No. 99-81.) See, notice
in Federal Register.
Deadline to submit comments to the FCC in its rule making
proceeding regarding permitting Mobile Satellite Service (MSS)
operators flexibility to use their spectrum for land based
transmitters. (IB Docket No. 01-185, ET Docket No. 95-18.)
See, notice
in Federal Register. |
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| Friday, Oct 12 |
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in U.S. Telecom Association v. FBI,
No. 00-5386. Judges Ginsburg, Williams and Henderson will
preside. Location: 333 Constitution Ave., NW, Washington DC.
10:00 AM. The The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism, and Government Information will hold a hearing to
examine the role of technology in preventing the entry of
terrorists into the United States. Location: Room 226, Dirksen
Building. |
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| People and Appointments |
10/9. The SEC announced
that Commissioner Laura Unger plans to leave the SEC
"this fall". See, SEC release.
10/9. Nancy Victory, head of the NTIA,
named people to fill several top positions. Michael
Gallagher will be Deputy Assistant Secretary of Commerce
for Communications and Information starting on November 2. He
previously worked for Verizon Wireless. William Bailey
will be NTIA Senior Advisor starting on October 11. He
previously worked for Coreexpress. Stephen Madden will
be NTIA Special Assistant starting on October 10. He
previously worked for the Department of Agriculture. See, NTIA
release.
10/9. The U.S. Telecom
Association (USTA) elected Arne Haynes, President
and General Manager of the Rainier Group in Eatonville,
Washington, to be Chairman of the Board for a term of one
year. See, USTA
release.
10/9. President Bush nominated Julia Gibbons to be U.S.
Circuit Judge for the Sixth Circuit and William Steele
to be a U.S. Circuit Judge for the Eleventh Circuit. |
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