| Representatives Announce
Outline for Privacy Legislation |
10/12. Rep. Cliff
Stearns (R-FL), Rep.
Billy Tauzin (R-LA), Rep. Bob Goodlatte
(R-VA), and Rep. Rick
Boucher (D-VA) held a press conference to outline a
proposal for future privacy legislation. The four released a
one page outline,
but have not yet introduced a bill. The proposal calls for
preemption of state laws, FTC enforcement, and no private
right of action. The proposal would also apply to both online
and offline entities that collect personally identifiable
information. It recommends requiring privacy statements,
opportunity to limit sale or disclosure of information,
security statements, and safe harbor provisions. The four
suggested that legislation would be forthcoming early next
year.
Rep. Goodlatte said that one goal is to "make absolutely
certain that we preempt state legislatures from creating a
massive and conflicting array of regulatory entanglements that
would, I think, harm are efforts to truly protect privacy
while promoting the Internet." He also said that he wants
to "preempt anyone in the Congress from introducing
legislation that is a bureaucratic fix to this problem."
Rep. Tauzin also addressed privacy standards of government web
sites. "I think that it is abhorrent that any federal web
site should have a cookie on it."
Rep. Stearns is Chairman of the House Commerce Committee's
Subcommittee
on Commerce Trade and Consumer Protection, which has held
six hearings on Internet privacy this year. However, he has
not introduced any legislation. He commented on the Senate Commerce
Committee: "Fritz Hollings has dropped a bill, but he
did not have the hearings we had. So, I think we have a
knowledge of this issue here in the House, in our Committee
..."
Rep. Boucher addressed "the means by which enhanced
privacy guarantees be extended to Internet users." He
said that "it is very important that that anyone who uses
the Internet have notice of what information is collected from
him by the web sites that he visits, either through the use of
cookies or web bugs or other technologies that enable the web
site to collect information. So, every web site that collects
information should have a statement that is readily accessible
to the web site visitor of the precise information which is
collected."
Rep. Boucher also stated that "the web site should put
forward information about how the information, once collected,
is used, and provide clear disclosure of that. If it is used
internally for its own marketing purposes, that fact would be
reflected. If it is conveyed under any circumstances to third
parties, that fact would be stated, and in my opinion, there
ought to be some at least generic description about the kinds
of third parties who have access to the information."
Rep. Boucher continued that "once that information is
made available to the web site visitor, he needs to have an
opportunity to act on it. And so a third, very important
principle, is the ability for the web site visitor to opt out
and to decline to have any information about him collected. As
a practical matter, that might mean that he needs to leave the
web site without using the services of the web site." He
also reiterated the viewpoint that there is a need for
preemption, and a safe harbor. |
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| Kotelly Names Mediator in
Microsoft Case |
| 10/12. The U.S.
District Court (DDC) named Eric
Green to be a mediator in the Microsoft antitrust case. He
is a professor at the Boston University's School of Law, where
he teaches courses and seminars in evidence, dispute
resolution, complex processes, negotiation and mediation, and
mass torts. He is also the founder of two Boston firms
specializing in alternative dispute resolution. |
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| Sen. Enzi Introduces Net
Tax Moratorium and Sales Tax Bill |
| 10/11. Sen. Mike Enzi
(R-WY) introduced S 1542, the Internet Tax Moratorium and
Equity Act. This bill would make permanent the existing
moratorium on Internet access taxes, and extend the current
moratorium on multiple and discriminatory taxes for four
years. It would also and authorize states to enter into an
interstate sales use tax compact, and then require all remote
sellers to collect and remit sales and use taxes. The current
moratorium is set to expire on October 21. The bill was
referred to the Senate
Committee on Health, Education, Labor, and Pensions. |
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| More News |
10/12. The U.S.
Court of Appeals for the District of Columbia Circuit
heard oral argument in U.S. Telecom Association v. FBI,
No. 00-5386.
10/12. The Department of Justice's Antitrust Division
released a document
titled "Merger Review Process Initiative". See also,
DOJ
release.
10/12. The Senate
Judiciary Committee's Subcommittee on Technology,
Terrorism, and Government Information held a hearing to
examine the role of technology in preventing the entry of
terrorists into the U.S. See, prepared testimony of Glenn
Fine (Department of Justice), James
Ziglar (Immigration and Naturalization Service), Mary
Ryan (State Department), Steven
Camarota (Center for Immigration Studies), Greg
Spadorcio
(NEC Technologies), and Paul
Collier (Biometrics Foundation). See also, statement
by Sen. Patrick Leahy (D-VT). |
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| People and Appointments |
10/12. President Bush announced his intent to designate Thomas
White to be Acting Assistant Secretary of Defense for
Special Operations and Low Intensity Conflict. See, White
House release.
10/12. William Kolasky was named Deputy Assistant
Attorney General in charge of international antitrust and
policy enforcement for the Department of Justice's Antitrust Division. He
was previously a partner in the Washington DC office of the
law firm of Wilmer Cutler
& Pickering, where he was co-chair of the firm's
antitrust and competition practice. See, DOJ
release.
10/4. Dave Segre rejoined the Palo Alto office of the
law firm of Wilson Sonsini
Goodrich & Rosati as a partner. For the last year and
a half Segre was an SVP at fusionOne,
a privately held provider of Internet based synchronization
software and services. See, WSGR
release. |
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| Seattle Prosecutor
Assassinated |
| 10/12. Thomas Wales, an Assistant U.S. Attorney for
the Western District of Washington in Seattle, died as a
result of gunshot wounds inflicted on Thursday night, October
11. He was responsible for prosecuting major business crimes
and bank frauds. He was also the Executive Assistant U.S.
Attorney to former U.S. Attorney Katrina Pflaumer at the time
of the "Assassination Politics" prosecutions. The USAO
obtained a conviction of Carl Johnson for sending threatening
e-mail messages to federal judges and others. Specifically,
Johnson was convicted of one count of retaliating against a
judicial officer, one count of obstructing justice by making a
death threat against a judicial officer, and two counts of
transmitting threatening communications. The first three
counts pertained to death threats against federal judges. The
fourth count pertained to a death threat sent to Bill Gates.
See, CCIPS
release number
one and release
number two regarding the Assassination Politics matter.
See also, USAO
release regarding the death of Wales. |
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| Senate and House Pass Anti
Terrorism Bills |
10/12. The Senate passed S
1510, the USA Act, by a vote of 96 to 1. Sen. Russ Feingold
(D-WI) cast the lone vote in opposition. See, Roll
Call No. 302. The House passed a substitute version of HR 2975,
the PATRIOT Act, by a vote of 337 to 79 late on Friday
afternoon, October 12. See, Roll
Call No. 386.
The House Rules
Committee met at 8:00 AM on Friday to adopt H Res 264,
a rule to substitute a bill that closely resembles the Senate
bill, in place of the version of HR 2975 that was unanimously
approved by the House
Judiciary Committee (HJC) on October 3. The full House
then approved this rule by a vote of 214 to 208, on a largely
party line vote, on Friday afternoon. Much of the criticism
voiced on the House floor focused on this last minute
procedure to bypass the HJC bill.
During final debate on the bill, supporters stressed the need
of law enforcement and intelligence agencies to have new tools
to fight terrorism. Rep. James
Sensenbrenner (R-WI) stated that "we have to change
the way we think about safety and security." Opponents
argued that the bill violates civil liberties. Rep. John Conyers
(D-MI) compared it to the Alien and Sedition Act, suspension
of habeas corpus during the Civil War, and internment of
Americans of Japanese ancestry during World War II. However,
after several close procedural and dilatory votes, the House
overwhelmingly voted for final passage.
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. While the bills passed by the House and the
Senate are now very similar, there remain some differences.
For example, the House bill contains a five year sunset
provision (the HJC version had included a two year sunset),
while the Senate bill has no sunset provision. Now, either the
Senate must accept the House version, or the bill must go to a
conference committee.
President Bush issued a statement
Friday morning praising the Senate for passing its bill. Later
in the day, he released a statement
praising the House for passing its version. |
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| Content Versus Routing and
Signaling Information |
10/12. The House and Senate versions of the anti terrorism
bill both extend pen register and trap and trace authority to
"routing" and "addressing" information in
an "electronic communication". Pen registers and
trap and trace devices are telephone industry concepts. The
former are used to obtain outgoing phone numbers. The latter
are used to obtain incoming numbers. Thus, these bills extend
pen register and trap and trace authority to Internet
communications. Both bills provide that "such information
shall not include the contents of any communication".
This still leaves much open for future implementation and
interpretation. The definition is important because court
orders authorizing pen registers and trap and trace devices do
not require a showing of probable cause, as is the case for
wiretaps.
Rep. Bob Goodlatte
(R-VA) and Rep. Rick
Boucher (D-VA) had sought language clarifying what
constitutes content in the context of Internet communications,
but settled for language in the House Judiciary
Committee (HJC) report. During floor debate on October 12,
Rep. Goodlatte asked whether the HJC's report on HR 2975 also
applies to the version of the bill approved by the full House.
Rep. James
Sensenbrenner (R-WI), the Chairman of the Committee, and
floor manager of the bill, stated that it does.
The following are relevant excerpts from this report, House
Report 107-236:
"This section updates the language of
the statute to clarify that the pen/register authority applies
to modern communication technologies. Current statutory
references to the target `line,' for example, are revised to
encompass a `line or other facility.' Such a facility
includes: a cellular telephone number; a specific cellular
telephone identified by its electronic serial number (ESN); an
Internet user account or e-mail address; or an Internet
Protocol (IP) address, port number, or similar computer
network address or range of addresses. In addition, because
the statute takes into account a wide variety of such
facilities, section 3123(b)(1)(C) allows applicants for pen
register or trap and trace orders to submit a description of
the communications to be traced using any of these or other
identifiers.
Moreover, the section clarifies that orders
for the installation of pen register and trap and trace
devices may obtain any non-content information -- `dialing,
routing, addressing, and signaling information' -- utilized in
the processing or transmitting of wire and electronic
communications. [Footnote 1: Thus, for example, non-content
information contained in the `options field' of a network
packet header constitutes `signaling' information and is
properly obtained by an authorized pen register or trap and
trace device.]
Thus, for example, an order under the
statute could not authorize the collection of email subject
lines, which are clearly content. Further, an order could not
be used to collect information other than `dialing, routing,
addressing, and signaling' information, such as the the
portion of a URL (Uniform Resource Locator) specifying Web
search terms or the name of a requested file or article." |
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| Third Circuit Rules in
Computer Sabotage Case |
10/12. The U.S.
Court of Appeals (3rdCir) issued its opinion
in USA
v. Lloyd, reversing a declaration of mistrial
in a case involving computer sabotage.
Timothy Lloyd was the computer system administrator for Omega
Engineering Corp., a New Jersey based manufacturer of
industrial process measurement devices and control equipment.
He had a falling out with his employer, and eventually, was
fired. Prior to being fired he installed a malicious program
on the central file server of Omega's computer network. It
caused Omega's design and production computer programs to be
permanently deleted after his termination. 1,200 computer
programs were deleted and purged, crippling Omega's
manufacturing capabilities and resulting in a loss of millions
of dollars in sales and contracts.
Lloyd was indicted and convicted by a jury of computer
sabotage in violation of 18 U.S.C. § 1030(a)(5)(A) and 18
U.S.C. § 2. Subsequently, a trial juror informed the
District Court that during deliberations she saw a TV report
on the Love Bug computer virus. The District Court declared a
mistrial. The U.S. appealed. The Appeals Court reversed the
grant of a new trial, reinstated the conviction, and directed
the District Court to proceed to sentencing. |
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| PPI Backs Trade Promotion
Authority Bill |
| 10/12. The Progressive
Policy Institute (PPI), a Democratic party think tank,
released a report
titled "Trade Promotion Authority: The Key
Questions". It encourages support for HR 3005, the
Bipartisan Trade Promotion Authority Act of 2001, which was
passed by the House
Ways and Means Committee on Tuesday, October 9, by a vote
of 26 to 13. The bill's lead sponsor is Rep. Bill Thomas
(R-CA), Chairman of the Committee. Other sponsors include Rep. Cal Dooley
(D-CA), Rep. William
Jefferson (D-LA) and Rep. John Tanner
(D-TN). The PPI concluded that "The Dooley - Jefferson -
Tanner - Thomas proposal is a good approach to it, and
deserves progressive support." The report was written by
Edward Gresser. |
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| Tuesday, Oct 16 |
House will meet at 12:30 PM for morning hour and at 2:00 PM
for legislative business. No recorded votes are expected
before 6:00 PM. The House will consider a number of measures
under suspension of the rules, including HR 1552, the Internet
Tax Nondiscrimination Act, which extends the existing
Internet tax moratorium for two years.
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in COMSAT Corp v. FCC, No. 00-1458.
Judges Ginsburg, Williams and Henderson will preside.
Location: 333 Constitution Ave., NW, Washington DC.
9:30 - 11:30 AM. The American
Enterprise Institute (AEI) will host a seminar at which Jeffrey
Rohlfs (Strategic Policy Research, Inc.) will present his
new book titled Bandwagon
Effects in High Technology Industries. He will also
address the role of bandwagon effects in the debate among
economists and policy analysts over whether governments should
set technical standards. The price to attend is $5 (waived for
AEI supporters, government employees, and media). Location:
AEI, Wohlstetter Conference Center, Twelfth Floor, 1150 17th
Street, NW, Washington DC. |
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| Wednesday, Oct 17 |
9:30 AM. The Senate
Banking Committee will hold a hearing on the nominations
of Susan Bies and Mark Olson to be members of
the Board of Governors of the Federal Reserve System.
Location: Room 538, Dirksen Building.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine
homeland defense matters. Location: Room 106, Dirksen
Building.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Mass Media
Practice Committee will host a brown bag lunch. The speakers
will be the FCC Commissioners' legal advisors on mass media
issues: Susan Eid (Powell), Stacy Robinson (Abernathy), Susana
Zwerling (Copps), and Catherine Bohigian (Martin). RSVP to
Kathy Dole at kdole@npr.org.
Location: National Public Radio, first floor conference room,
635 Massachusetts Ave., NW, Washington DC. |
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| Thursday, Oct 18 |
Day one of a three day conference of the American
Intellectual Property Law Association (AIPLA). Location:
Crystal Gate Marriott Hotel, 1700 Jefferson Davis Highway,
Arlington, Virginia.
9:30 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "Transition
to Digital Television: Progress on Broadcaster Buildout and
Proposals to Expedite Return to Spectrum." Rep. Fred
Upton (R-MI) will preside. Location: Room 2123, Rayburn
Building.
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in Celtronix Telemetry v. FCC, No.
00-1400. Judges Ginsburg, Williams and Henderson will preside.
Location: 333 Constitution Ave., NW, Washington DC.
9:30 - 11:30 AM. The American
Enterprise Institute (AEI) will host another program in
its Seminar Series in Telecommunications Deregulation. This
event is titled "On Refusing to Deal with Rivals."
The speaker will be Glen
Robinson of the University of Virginia School of Law. The
price to attend is $5 (waived for AEI supporters, government
employees, and media). Location: AEI Wohlstetter Conference
Center, Twelfth Floor, 1150 17th Street, NW, Washington DC.
12:00 NOON. The Heritage
Foundation will host a panel discussion titled
"Freedom and Security: Preserving Constitutional
Liberties in Times of War." The speakers will be Jennifer
Neustead (Office of Legal Policy, DOJ), Lee Casey (Baker &
Hostettler), Todd Gaziano (Heritage), and Ed Meese (Heritage).
Location: Heritage Foundation, 214 Massachusetts Ave NE,
Washington DC.
2:00 PM. The Senate
Judiciary Committee will hold hearings on pending
nominations. Location: Room 226, Dirksen Building.
2:30 - 4:00 PM. The American
Enterprise Institute (AEI) will host a panel discussion
titled "Trade Promotion Authority -- What's the Bottom
Line for Congress?" The speakers will be Jagdish Bhagwati
(Columbia University), I.M. Destler (University of Maryland),
Brink Lindsey (Cato Institute), and Daniel Tarullo (Georgetown
University). See, online
registration page. Location: AEI Wohlstetter Conference
Center, Twelfth Floor, 1150 17th Street, NW, Washington DC. |
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| Securities Fraud |
| 10/11. The SEC filed a
civil complaint in the U.S. District Court (SDNY)
against AbsoluteFuture.com
and several individuals alleging manipulation of stock price
in violation of § 17(a) of the Securities Act of 1933,
§ 10(b) of the Securities Exchange Act of 1934, and Rule
10b-5 thereunder. AF is a Seattle based software company. See,
SEC
release. |
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| GAO Releases Report on
Infringement by States |
| 10/12. The GAO
released a report
[78 pages in PDF] titled "Intellectual Property: State
Immunity in Infringement Actions." The report was
prepared for Sen. Orrin
Hatch (R-UT), ranking Republican on the Senate Judiciary
Committee. |
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| Fed Circuit Reverses in
FFDCA Case |
| 10/12. The U.S.
Court of Appeals (FedCir) issued its opinion in Mylan
Pharmaceuticals v. Thompson, reversing the
District Court's preliminary injunction order in a case
involving the statutory framework governing new and generic
drug approvals and its mechanisms for patent enforcement. |
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