Tech Law Journal Daily E-Mail Alert
October 17, 2001, 9:00 AM ET, Alert No. 288.
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Bush Issues Executive Order on Cyber Security
10/16. President Bush issued an executive order titled "Critical Infrastructure Protection in the Information Age". This order creates the "President's Critical Infrastructure Protection Board", yet another executive branch board to coordinate federal efforts and programs to protect information systems.
The order provides that "the Board shall recommend policies and coordinate programs for protecting information systems for critical infrastructure, including emergency preparedness communications, and the physical assets that support such systems." The board's responsibilities will extend to information systems and emergency preparedness communications.
The order also lists specific responsibilities of this newly created board, including: coordinating outreach to and consultation with the private sector; promoting information sharing with industry, state and local governments, and non governmental organizations; coordinating programs and policies for responding to information systems security incidents; coordinating federal research and development; and promoting cyber crime programs, assisting federal law enforcement agencies in gaining cooperation from executive branch departments and agencies, and supporting federal law enforcement agencies' investigation of illegal activities involving information systems for critical infrastructure.
The board will be large, and will be made up of cabinet members and other executive branch officials. The FCC will have one representative on the board.
The order also creates a "National Infrastructure Advisory Council", an advisory body made of representatives of the private sector, academia, and state and local government. It "shall provide the President advice on the security of information systems for critical infrastructure supporting other sectors of the economy: banking and finance, transportation, energy, manufacturing, and emergency government services."
The order further provides that the new board "shall work in coordination with the Critical Infrastructure Assurance Office (CIAO) and the National Institute of Standards and Technology of the Department of Commerce, the National Infrastructure Protection Center (NIPC), and the National Communications System (NCS)."
The order also references technological convergence. It states that "Changes in technology are causing the convergence of much of telephony, data relay, and internet communications networks into an interconnected network of networks. The NCS and its National Coordinating Center shall support use of telephony, converged information, voice networks, and next generation networks for emergency preparedness and national security communications functions assigned to them in Executive Order 12472." EO 12472 created the NCS in 1984.
Cyber Terrorism Panels to Meet
10/16. Cyberterrorism will be the topic of two events in Washington this week. On Wednesday, October 17, at 10:00 AM, the House Science Committee will hold a hearing titled "Cyber Terrorism -- A View From the Gilmore Commission."
On Thursday morning, October 18, the Center for Strategic and International Studies (CSIS) will host a half day conference titled "Strengthening Homeland Cyberdefense." Ron Dick, Director of the FBI's National Infrastructure Protection Center, will speak at 9:25 AM. There will be a panel titled "A Policy Agenda for Homeland Cyberdefense," at 9:45 AM, with Sen. Bob Bennett (R-UT) and Rep. Sherwood Boehlert (R-NY). There will be a panel titled "The Private Sector and Homeland Cyberdefense" at 11:00 PM. The panelists will be Steve Blumenthal (Genuity), George Conrades (Akamai), David Langstaff (Veridian), Gail Phipps (CACI International), Ernst Volgenau (SRA International), and John Tritak (Critical Infrastructure Assurance Office). John Hamre, P/CEO of the CSIS, and Harris Miller, P/CEO of the ITAA, will also speak. See also, CSIS notice.
NIPC Issues Report on Cyber Protest Hacking
10/16. The FBI's NIPC released a report [PDF] titled "Cyber Protests: The Threat to the U.S. Information Infrastructure." The report states that while "cyber protests that have occurred thus far have had little impact on U.S. infrastructure ... Cyber protesters are becoming increasingly more organized and their techniques more sophisticated but, most likely, will continue to deface web sites and perform DoS attacks." Tthe report also reviews the history of politically motivated hacking by Chinese, Israeli, Palestinian, Pakistani, Indian, and Japanese hackers.
FCC May Fine SBC $2.52 Million for False Statements
10/16. The FCC announced its intent to fine SBC $2.52 Million for filing inaccurate information in the Section 271 proceeding pertaining to Kansas and Oklahoma. The FCC issued a Notice of Apparent Liability and Order and a release [PDF] summarizing the order.
The FCC found that SBC submitted affidavits containing false information in support of its request for permission to provide long distance service in Kansas and Oklahoma. However, the FCC found that the conduct was negligent, rather than deliberate.
Russell Frisby, President of Comptel, stated in a release that "The fine issued by the FCC this afternoon is the regulatory equivalent of a 'five dollar' parking ticket. CompTel is disappointed that the FCC did not take stronger action and send a message to SBC that the Commission is serious about its role in opening local phone markets and that the accuracy of information filed at the Commission is paramount."
7th Circuit Rules in Lanham Act 43(a) Case
10/16. The U.S. Court of Appeals (7thCir) issued its opinion in First Health Group v. BCE Emergis, a suit involving Section 43(a) of the Lanham Act. Plaintiff, an intermediary between hospitals and insurers, filed a complaint in U.S. District Court (NDIll) against defendant, another such intermediary, alleging that defendant's use of the term "preferred provider organization" was misleading, and violated Section 43(a)(1)(B) of the Lanham Act, 15 U.S.C. 1125(a)(1)(B). The District Court granted summary judgment to defendant. The Court of Appeals affirmed. Judge Easterbrook wrote: "This entire suit strikes us as one designed to hamstring a competitor whose success reflects its ability to please its trading partners. If the vocabulary of a business such as [defendant] is to be revised, that is a job for legislatures and regulatory agencies, rather than for judges and juries in suits under the Lanham Act and state consumer- fraud statutes."
Anti Terrorism Legislation and Liberty
10/16. The House and Senate have yet to reconcile the differences between their two anti terrorism bills, S 1510, the USA Act, and HR 2975, the PATRIOT Act.
On Thursday, October 18, The New Republic will host a panel discussion titled "Security v. Liberty: Is There a Choice?" The speakers will be James Woolsey (a former CIA Director), Rep. Bob Barr (R-GA), Marc Rotenberg (EPIC), Fred Cate (University of Indiana), and Jeffrey Rosen (The New Republic). This event will be at 6:30 PM at National Press Club.
The Cato Institute published a paper [PDF] titled "Watching You: Systematic Federal Surveillance of Ordinary Americans", by Charlotte Twight. See also, executive summary [HTML].
House Passes Internet Tax Nondiscrimination Act
10/16. The House passed HR 1552, the Internet Non-Discrimination Act, by a unanimous voice vote. This bill  extends the current moratorium on Internet access taxes, and multiple and discriminatory taxes on Internet commerce, for two years. The current ban expires on October 21. The measure was considered under suspension of the rules, meaning that it could not be amended, and required a two thirds majority for passage. The Senate has yet to pass legislation to extend the ban.
Sen. Ron Wyden (D-OR) stated in a release that "Congressman Cox and I have been working together for a long time to ban discriminatory Internet taxes ... I hope his success today in the House will pave the way for the Senate to expeditiously approve a similar two year extension of the moratorium. I'm engaged in a bipartisan full court press to get the Senate to pass a two-year extension before the moratorium expires this Sunday so the Senate can return to its constructive conversations regarding a more permanent solution."
SEC Commissioner Unger Advocates Securities Law Reform
10/16. SEC Commissioner Laura Unger gave a speech in which she advocated updating securities laws and regulations in light of Internet technologies.
She stated that "the current regulatory system was created in a time when technology was not what it is today." She said that some areas "particularly need reform. The first is embracing technology and the Internet in the offering process. Although companies raised more than $400 billion in the U.S. private market last year, the Commission's rules constrain companies from taking advantage of low-cost electronic communications to raise capital from potentially qualified investors. Eliminating the 'general solicitation' prohibition in the private market would enable small companies to use the Internet to reach a wider breadth of potentially qualified investors."
Second, she advocated reforming "the distinctions between oral and written communications that have become anomalous with advancements in technology. Is streaming video 'oral' until it is archived? The legal distinctions between written and oral communications mostly discourage disclosure - which does not make for an efficient market. For example, to prevent issuers from 'conditioning the market' during an offering, current rules limit how and what issuers communicate to the public." She also addressed the oral versus written distinction in the context of electronic roadshows.
Third, Unger stated that "the Internet could speed up the 'back office' part of transactions - especially IPO investments. Although technology means that access to an issuer's prospectus can be real time, the Commission continues to insist on brokers satisfying the prospectus 'delivery' obligation. Any new system will have to consider whether and to what extent access may be deemed delivery."
Commissioner Unger spoke to the Westchester / Southern Connecticut Chapter of The American Corporate Counsel Association.
Senate Committee Holds Hearing on E-911
10/16. The Senate Commerce Committee held an oversight hearing to examine the implementation of the Wireless Communication and Safety Act and the integration of emergency 911 technologies. This hearing had originally been scheduled for September 11. Senators encouraged accelerated implementation. Tom Sugrue of the FCC's Wireless Telecommunications Bureau said that "the Commission is serious about ensuring the deployment of wireless E911."
In 1996, the FCC adopted rules which set October 1, 2001 as the deadline for wireless carriers to begin the process of deploying technology to accurately report the location of wireless 911 calls. In 1999, the Congress passed the Wireless Communications and Public Safety Act, which mandated 911 as the universal number for emergency calling and addressed carrier liability protection and privacy issues. Earlier this month the FCC extended the October 1 deadline for five major carriers. See, FCC release.
Sen. Ron Wyden (D-OR) and Sen. Daniel Inouye (D-HI) presided at the hearing. Sen. Conrad Burns (R-MT) and Sen. Gordon Smith (R-OR) also participated. Sen. Wyden stated, "I don't want this to become the longest running battle since the Trojan War." Sen. Inouye said to Thomas Sugrue that "September 11 demonstrated to us how important 911 was ... So, I hope you will get out the whip."
See also, prepared testimony of witnesses in PDF: Thomas Sugrue (FCC Wireless Telecom Bureau), Michael Amarosa (TruePosition, Inc.), Jenny Hansen (State of Montana), John Melcher (National Emergency Number Assoc.), Brett Sewell (SnapTrack, Inc.), and Thomas Wheeler (CTIA).
FTC Takes Action Against Online Fraud
10/11. The FTC filed civil complaint in U.S. District Court (WDWash) against Bargains & Deals Magazine and its principal, Michael Casey, alleging that they made misrepresentations over the Internet to induce consumers to purchase merchandise, and then either failed to deliver the merchandise promised or did not send any merchandise. The complaint alleges violation of the FTC Act, 15 U.S.C.  41 et seq., and the FTC's Mail Order Rule. The FTC also obtained a temporary restraining order. See, FTC release.
10/11. The FTC filed an administrative complaint against FanBuzz, Inc., alleging that its sold textile products over the Internet without disclosing whether such products were made in the U.S.A., in violation of the FTC Act and the Textile Fiber Products Identification Act. The FTC and FanBuzz also filed an Agreement Containing Consent Order, which prohibits future violations.
10/16. The FTC published a notice in the Federal Register of the FanBuzz settlement; this notice also sets November 11, 2001 as the deadline for public comments. See, Federal Register, October 16, 2001, Vol. 66, No. 200, at Pages 52625 - 52626.
Novell v. Microsoft
10/15. Novell stated that Microsoft "has agreed to stop the dissemination of statements about Novell that are the center of Novell's false advertising lawsuit filed Oct. 1 against Microsoft. Microsoft has also agreed to send a retraction letter along with corrective information ..." See, Novell release.
Novell filed a complaint in U.S. District Court (DUtah) against Microsoft alleging that Microsoft made false and misleading statements about Novell's NetWare 6. Novell alleged violation of 43(a) of the Lanham Act, 15 U.S.C. 1125(b), and violation of the Utah Truth in Advertisings Act.
Transition to Digital TV
10/16. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing on Thursday, October 18, titled "Transition to Digital Television: Progress on Broadcaster Buildout and Proposals to Expedite Return to Spectrum." The witnesses will be Rick Chessen (Associate Bureau Chief, Mass Media Bureau, FCC), Jim Yager (P/CEO of Benedek Broadcasting Corporation), Michael McCarthy (SVP of Belo Corporation), John Lawson (P/CEO of APTS), Dean Goodman (COO of PAXtv), Paul Crouch (President of Trinity Broadcasting Network), David Donovan (President of MSTV), Michael Petricone (VP of Consumer Electronic Association), Richard Green (P/CEO of CableLabs), and Brian Lamb (P/CEO C-SPAN).
10/16. The NCTA submitted a report [PDF] regarding digital must carry requirements to the FCC. It rebuts the NAB's filing [PDF] to the FCC of August 14.
Wednesday, Oct 17
The Senate reconvenes at 10:00 AM. It will continue consideration of HR 2506, the Foreign Operations, Export Financing, and Related Programs Appropriations Act for FY 2002. The Senate may also take up the conference report to accompany HR 2217, the Interior Appropriations Act for FY 2002.
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 - 12:00 NOON. The House Science Committee will hold a hearing titled Cyber Terrorism -- A View From the Gilmore Commission. Location: Room 2318, Rayburn Building.
10:00 - 11:30 AM. The Progressive Policy Institute (PPI), a Democratic think tank, will host a forum regarding new technologies for aviation security, such as biometrics and smart cards, and pending aviation security legislation. The speakers will include Rep. Mike Honda (D-CA), Rep. Jim Matheson (D-UT), Rob Atkinson (PPI VP), and industry representatives. See, PPI release. Location: Room 210, Cannon Building.
CANCELLED. 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 Location: National Public Radio, first floor conference room, 635 Massachusetts Ave., NW, Washington DC.
2:00 PM. The House Government Reform Committee's Subcommittee on Technology and Procurement Policy will hold a hearing titled "Turning the Tortoise Into the Hare: How the Federal Government Can Transition From Old Economy Speed to Become a Model for Electronic Government." Location: Room 2154, Rayburn Building.
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.
9:00 AM - 12:30 PM. The Center for Strategic and International Studies (CSIS) will host a half day conference titled Strengthening Homeland Cyberdefense. The speakers will include Sen. Robert Bennett (R-UT), Rep. Sherwood Boehlert (R-NY), Ron Dick (NIPC Director). See, CSIS notice. Location: CSIS, 1800 K Street, NW, B-1 conference level, Washington DC.
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.
10:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled Intellectual Property Litigation. Location: Room 2141, Rayburn Building.
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.
6:30 PM. The New Republic will host a panel discussion titled Security v. Liberty: Is there a choice? Location: Holman Lounge, National Press Club, 529 14th Street, NW, Washington DC.
Friday, Oct 19
Day two 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 National Association of State Boards of Education (NASBE) will hold a press conference to release a report titled "Any Time, Any Place, Any Path, Any Pace: Taking the Lead on e-Learning Policy." For more information, contact Dave Griffith at 703-684-4000. Breakfast will be served at 9:00 AM. See, NASBE release. Location: Lisagor Room, National Press Club, 529 14th Street, NW, Washington DC.
More News
10/16. President Bush signed HR 1860, the "Small Business Technology Transfer Program Reauthorization Act of 2001," which extends the authority for the Small Business Technology Transfer Program through FY 2009. See, White House release.
10/16. USTR Robert Zoellick gave a speech, and answered questions, in Singapore, regarding trade, and a new round of WTO negotiations. See, transcript.
10/16. The U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in COMSAT Corp v. FCC, No. 00-1458.
10/16. Verizon named Allan Thoms to the newly created position of Vice President - Public Policy and External Affairs for Verizon's Northwest Region. He will be responsible for regulatory, governmental and external affairs for Verizon in Washington, Oregon and Idaho. See, Verizon release.
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