|Bush Signs Anti Terrorism
|10/26. President Bush signed HR 3162,
the "anti terrorism bill". It contains many
provisions that will 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. Bush said
at a signing ceremony at the White House that "These
terrorists must be pursued, they must be defeated, and they
must be brought to justice. And that is the purpose of this
legislation." See, transcript.
|Bush Summarizes Anti
|10/26. President Bush stated at the signing ceremony for the
anti terrorism bill (HR 3162)
that "We're dealing with terrorists who operate by highly
sophisticated methods and technologies, some of which were not
even available when our existing laws were written. The bill
before me takes account of the new realities and dangers posed
by modern terrorists. It will help law enforcement to
identify, to dismantle, to disrupt, and to punish terrorists
before they strike."
Bush continued that "Surveillance of communications is
another essential tool to pursue and stop terrorists. The
existing law was written in the era of rotary telephones. This
new law that I sign today will allow surveillance of all
communications used by terrorists, including e-mails, the
Internet, and cell phones. As of today, we'll be able to
better meet the technological challenges posed by this
proliferation of communications technology. Investigations are
often slowed by limit on the reach of federal search warrants.
Law enforcement agencies have to get a new warrant for each
new district they investigate, even when they're after the
same suspect. Under this new law, warrants are valid across
all districts and across all states." See, transcript.
|Key Tech Related Provisions
of the Anti Terrorism Bill
|10/26. HR 3162 is named the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT). It is a
huge and broad bill that covers immigration, money laundering,
relief for victims of terrorism, and foreign intelligence. It
also affects surveillance of Internet communications. See,
article titled "Pen Registers and Trap and Trace
Devices," above right. However, there are numerous other
tech related provisions. Some of the key provisions are
Predicate Offenses for Wiretaps. HR 3126 expands the
list of crimes which can serve as the basis for issuance of
Title III wiretap orders. § 201 adds crimes relating to
terrorism to the list of predicate offenses for the issuance
of a wiretap order. § 202 adds crimes relating to computer
fraud and abuse to the list of predicate offenses for the
issuance of a wiretap order.
Voice Mail. § 209 allows the seizure of voice mail
messages pursuant a warrant.
Subpoenas to Electronic Communications Service Providers.
§ 210 expands the types of records that law enforcement
agencies (LEAs) may obtain, pursuant to a subpoena, from
electronic communications service providers. It requires
service provides to produce "name",
"address", "local and long distance telephone
connection records, or records of session times and
durations", "length of service (including start
date) and types of service utilized", "telephone or
instrument number or other subscriber number or identity,
including any temporarily assigned network address", and
"means and source of payment for such service (including
any credit card or bank account number)". Currently,
users can register with ISPs with false names. This section
enables LEAs to establish a user's identity through his method
Cable is Covered. § 211 provides that laws
regarding interception and disclosure of wire and electronic
communications apply to cable service providers when they
provide telephony or Internet access services. However, this
section still excepts "records revealing cable subscriber
selection of video programming from a cable operator."
Computer Trespassers. § 217 expands LEAs'
authority to intercept computer trespasser communications. It
provides that "It shall not be unlawful under this
chapter for a person acting under color of law to intercept
the wire or electronic communications of a computer trespasser
transmitted to, through, or from the protected computer, if
(I) the owner or operator of the protected computer authorizes
the interception of the computer trespasser's communications
on the protected computer; (II) the person acting under color
of law is lawfully engaged in an 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."
This section is intended to enable LEAs to come to the
assistance of companies, universities, and other entities that
are subject to distributed denial of service, or other,
Four Year Sunset. § 224 provides a four year
sunset that applies to some, but not all, sections of the
bill. It does apply to §§ 201 and 202 (expanding the list of
predicate offenses for wiretaps), 209 (voice mail), 210 (scope
of subpoenas for electronic communications service providers),
and 217 (computer tresspasser information). The sunset
provision does not apply to § 216 (expansion of pen
register and trap and trace authority), § 211 (cable
services), or § 222 (no technology mandates).
Others have written summaries and commentaries. Sen. Patrick Leahy (D-VT),
Chairman of the Senate
Judiciary Committee, has a section by section summary
of the entire bill. The Department of Justice put out a short release.
See also, short CDT
criticism and summary and ACLU criticism
and summary of the electronic surveillance provisions.
|7th Circuit Rules in
Identity Theft Case
|10/26. The U.S.
Court of Appeals (7thCir) issued its opinion
v. Monteiro, an appeal from a sentencing
condition in an identity theft case. Joel Monteiro is a career
fraud artist. He used the identities of numerous other persons
to fraudulently obtain credit accounts. He then made
purchases, including computers from Sears, equipment from
Ameritech, and services from MCI WorldCom. He was indicted on
four counts of mail fraud in violation of 18
U.S.C. § 1341 and one count of access device fraud in
violation of 18
U.S.C. § 1029(a)(2) and (c)(1)(b). However, he was
allowed to plead to only one count of access device fraud. The
District Court sentenced him to 33 months of imprisonment. It
also sentenced him to serve a three year term of supervised
release, with the condition that his "person, residence,
and vehicle shall be subject to search and seizure upon demand
of any law enforcement officer." He appealed the
condition. The Appeals Court vacated and remanded.
|4th Circuit Affirms in
Boyle v. USPTO
|10/26. The U.S.
Court of Appeals (4thCir) issued its short unpublished opinion
v. USPTO, a trademark case. The Solicitor of
the USPTO denied
John Boyle's request to depose a trademark examiner as a third
party witness. Boyle filed a complaint in the U.S. District
against the USPTO. The District Court dismissed his action. He
appealed. The Court of Appeals affirmed.
|People and Appointments
|10/26. President Bush announced his intent to nominate Richard
Russell to be Associate Director of the Office of Science and Technology
Policy (OSTP). Russell has been Chief of Staff of the OSTP
since January. He previously worked for the House Science Committee.
The OSTP is a part of the Executive Office of the President.
10/26. Michael Robinson was named Director of the SEC's Office
of Public Affairs, Policy Evaluation, and Research.
Previously, he was Vice President of Corporate Communications
at the investment firm of Friedman
Billings Ramsey. Before that, he was a spokesman for
Mobil, and the National
Association of Securities Dealers. See, SEC release.
10/26. The USPTO published
[PDF] in the Federal Register announcing appointments to its
Performance Review Board. See, Federal Register, Vol. 66, No.
208, October 26, 2001, at page 54234.
|FTC Announces NPRM to
Extend Children's Online Privacy Protection Rule
|10/26. The Federal Trade
Commission (FTC) announced a notice of proposed rulemaking
(NPRM) regarding its Children's Online Privacy Protection
Rule. It proposes to extend the time period during which web
site operators may use an e-mail message from the parent,
coupled with additional steps, to obtain verifiable parent
consent for the collection of personal information from
children for internal use by the web site operator. The
current rule expires on April 21, 2002. The FTC proposes to
extend this until April 21, 2004. The deadline to submit
comments to the FTC is November 30, 2001. See, FTC release
to be published in the Federal Register.
|Pen Registers and Trap and
|10/26. § 216 is one of the key sections of the anti
terrorism bill, HR 3162.
It expands law enforcement agencies' (LEAs') authority with
respect to the use of pen registers and trap and trace devices
(PR&TTs). These are both old telephone industry concepts.
A pen register records the numbers that are dialed or punched
into a telephone. The current law covers "wire"
communications only. Specifically, a pen register is "a
device which records or decodes electronic or other impulses
which identify the numbers dialed or otherwise transmitted on
the telephone line to which such device is attached ..."
U.S.C. § 3127(3). § 216 provides that the concept of a
pen register would be expanded from merely capturing phone
numbers, to capturing routing and addressing information in
any electronic communications, including Internet
communications. § 216 similarly expands the concept of
trap and trace devices. Under current law, this is "a
device which captures the incoming electronic or other
impulses which identify the originating number of an
instrument or device from which a wire or electronic
communication was transmitted." See, 18
U.S.C. § 3127(4).
§ 216 extends PR&TT authority to addressing and routing
information. It also provides that a single order shall apply
nationwide. This section will serve as the legal authority for
technologies that monitor e-mail systems, such as the FBI's
There are three different standards for obtaining surveillance
orders -- one for obtaining PR&TT orders, another for
wiretap orders under Title III (which allow the government to
obtain the content phone conversations), and a third for
orders under the Foreign Intelligence Surveillance Act (FISA).
The standard for PR&TT orders is a very low standard.
§ 216 provides that "the court shall enter an ex
parte order authorizing the installation and use of a pen
register or trap and trace device anywhere within the United
States, if the court finds that the attorney for the
Government has certified to the court that the information
likely to be obtained by such installation and use is relevant
to an ongoing criminal investigation." Issuance of the
order is mandatory, and the standard -- mere relevance -- is
low. In contrast, wiretap orders are within the discretion of
the Judge, and require a showing of probable cause. Hence, it
is critical whether the information sought by LEAs can be
obtained by a mere PR&TT order, or requires a full blown
Title III order.
Routing and Addressing v. Content. Much of the debate
over the extension of PR&TT authority focused on what
information in an Internet communication can be obtained under
a PR&TT order, and what information requires a Title III
order. § 216 provides that the following can be obtained
under a PR&TT order: "dialing, routing, addressing,
or signaling information transmitted by an instrument or
facility from which a wire or electronic communication is
transmitted, provided, however, that such information shall
not include the contents of any communication".
House Committee Report. To the extent that legislative
history may be pertinent, the House Judiciary
Committee's report elaborates on this point. House
Report 107-236 states that: "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. ...
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."
Technology Mandates. § 222 is also relevant to
§ 216. It provides that "Nothing in this Act shall
impose any additional technical obligation or requirement on a
provider of a 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." Rep Bob Goodlatte
(R-VA) and Rep. Rick
Boucher (D-VA) had this language inserted because of their
concern 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. This has imposed a
financial burden upon service providers, and hence, their
|FCC Commissioner Martin
Addresses Broadband Policy
|10/26. FCC Commissioner Kevin Martin
gave a speech
titled "Framework for Broadband Deployment" at a NARUC
convention in northern Virginia. He advocated facilities based
competition, less taxation of broadband, a rocket docket for
enforcement proceedings, and fewer state, local and federal
Martin stated that "Encouraging broadband deployment
should be a fundamental priority of the Commission and
government in general." But, he said, "I am not
speaking of making industrial policy. Rather, I think the
government should be focusing on eliminating disincentives to
broadband deployment that already exist."
Facilities Based Competition. He argued that facilities
based competition, rather than requiring sharing of
facilities, is the best way to promote broadband deployment.
He stated that "In the past, the Commission adopted a
framework that may have discouraged facilities based
competition, allowing competitors to use every piece of the
incumbents' network at super efficient prices. This regime
creates significant disincentives for the deployment of new
facilities that could be used to provide broadband. Under such
a regime, new entrants have little incentive to build their
own facilities, since they can use the incumbents' cheaper and
more quickly. And incumbents have some disincentive to build
new facilities, since they must share them with all their
competitors. The goal of the Telecommunications Act was to
establish a competitive and deregulated environment. But to
get to true deregulation, we need facilities based
Taxation of Broadband. Martin stated that "at
every level, government too often sees broadband deployment
and telecommunications more generally as a potential revenue
stream." He cited federal and state excise taxes, as well
as local franchise fees.
Unnecessary Regulation. Martin stated that "At
every level of government, we ought to work to remove
regulatory underbrush -- burdensome regulations that may be
impeding deployment. For competitive carriers, many of these
hurdles occur at the state and local levels. These include
local rights of way, permits for zoning and tower siting, and
franchise fees that I have already discussed. Many of these
local restrictions are the most cumbersome and difficult for
broadband providers to navigate through. Some state and local
governments -- and the federal government with respect to
federal lands -- could be more proactive in facilitating
deployment by streamlining these permitting processes."
Open Access Proceeding. Martin also referenced the
FCC's cable open access proceeding. The FCC issued a Notice
of Inquiry on September 28, 2001, regarding whether the
FCC should require providers of broadband Internet access over
cable facilities to provide access to competing ISPs. Martin
stated that "we ought to complete the cable open access
proceeding. Personally, I would be very cautious about
applying that type of legacy regulatory regime to a new and
innovative service. I believe that we should be striving to
achieve regulatory parity by providing deregulatory
Enforcement Rocket Docket. Martin also stated that
"We should also consider changing our enforcement
procedures to make an effective and reliable rocket docket --
that all parties can use to resolve disputes quickly."
|Monday, Oct 29
|The U.S. Capitol Building will be open.
The House will meet at 2:00 PM in pro forma session only.
The Senate will not be in session. The Hart Senate Office
Building will remain closed. The Russell and Dirksen Senate
Office Buildings will be open (with the exception of the
Dirksen mailroom). The Hart Dirksen garage will reopen at 8:00 AM.
12:00 NOON - 5:00 PM. The FCC's Office of Plans and Policy
will hold a forum to discuss FCC media ownership policies.
Location: FCC, Commission Meeting Room (Room TW-C305), 445
12th Street, SW, Washington DC. The schedule is as follows:
• 12:00 NOON. Speech by FCC Chairman Michael
• 12:15 PM. Panel: Ownership Policies and Competition.
The speakers will be Stanley Besen (Charles River Associates),
Mark Cooper (Consumer Federation of America), Robert Majure
(Department of Justice), Bruce Owen (Economists Incorporated).
• 2:30 PM. Panel: Ownership Policies, Diversity and
Localism. The speakers will be Douglas Gomery (University of
Maryland), Philip Napoli (Fordham University), and Joel
Waldfogel (University of Pennsylvania).
• 4:15 PM. Concluding Observations: Jane Mago and
|Tuesday, Oct 30
|The House will meet at 12:30 PM for morning hour and 2:00 PM
for legislative business. No recorded votes are expected
before 6:00 PM. The House will consider measures under
suspension of the rules.
The Senate will meet at 10:00 AM. It will likely consider HR
3061, the Labor HHS Appropriations bill.
10:00 AM - 1:00 PM. The FCC's Network Reliability and
Interoperability Council will hold a meeting. See, FCC
release. Location: FCC, Room TW-C305, 445 12th Street, SW,
12:00 NOON - 1:30 PM. The National
Telephone Cooperative Association (NTCA) will host a press
luncheon to release and discuss its 2001 Wireless Survey. The
speakers will be Michael Brunner (NTCA CEO), Jill Canfield (NTCA
regulatory counsel), and Rick Schadelbauer (NTCA economic
analyst). RSVP to Contact Donna L. Taylor at 703 351-2086 or firstname.lastname@example.org. Location:
Hyatt Regency Washington, Lobby Level, Congressional A, 400
New Jersey Avenue, NW, Washington DC.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Cable Practice
Committee will host a luncheon. The speakers will be Susanna
Zwerling, the Mass Media and Cable legal advisor to FCC
Commissioner Copps. The price to attend is $15. RSVP to email@example.com. NCTA, 1724
Massachusetts Ave., NW, Washington DC.
1:30 - 3:00 PM. The U.S. International Telecommunication
Advisory Committee (ITAC) will hold a meeting. The purpose of
this meeting is to prepare the State Department for the 2002
Plenipotentiary Conference and the 2002 World
Telecommunication Development Conference. See, notice
in Federal Register, October 17, 2001, Vol. 66, No. 201, Page
52825. Location: FCC, Room 6-B516.
2:30 - 4:30 PM. The FCC will host a tutorial on developments
in wireless networks and technology, including wireless data,
CDMA, TDMA, GSM, IDEN, wireless content, applications and
market growth. The speakers will be Mark Desautels (CTIA) and
representatives of TBD, Verizon, Voicestream, Nextel, NextBus,
Nokia, Qualcomm, OnStar, Aether Technologies, Openwave,
Telephia and others. See, FCC
notice. Location: FCC, Commission meeting room.
|Wednesday, Oct 31
|10:00 AM. The House Financial
Services Committee is scheduled to mark up several bills,
including HR 556, the Unlawful Internet Gambling Funding
Prohibition Act. See, release.
Location: Room 2128, Rayburn Building.
AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing titled "An
Examination of How the Corporation for Public Broadcasting
Uses Federal Funds for National Public Television
|Thursday, Nov 1
|9:00 AM - 5:00 PM. National
Institute of Standards and Technology (NIST) will hold
first session of a two day workshop to discuss the development
of cryptographic key management guidance for federal
government applications. Location: Administration Building
(Bldg. 101), Lecture Room A, National Institute of Standards
and Technology, Gaithersburg, MD. See, notice
in Federal Register, June 27, 2001, Vol. 66, No. 124, at Page
9:30 AM. The U.S.
Court of Appeals for the District of Columbia Circuit will
hear oral argument in MCI WorldCom v. FCC, No. 00-1406.
Judges Edwards, Williams and Randolph will preside. Location:
333 Constitution Ave., NW, Washington DC.
10:00 AM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet is scheduled to hold a legislative hearing on
2417, the Dot Kids Domain Name Act of 2001. Location: Room
2123, Rayburn Building.
2:00 - 4:00 PM. The U.S. International Telecommunication
Advisory Committee (ITAC) will hold a meeting regarding
preparations for the 2002 World Telecommunication Development
Conference (WTDC). See, notice
in Federal Register, October 17, 2001, Vol. 66, No. 201, Page
52825. Location: State Department, Room 1408.
2:00 PM. The Senate Committee on Environment and Public Works
will hold a hearings to examine infrastructure security,
chemical site security, and economic recovery. Location: Room
406, Dirksen Building.
4:00 PM. The Cato Institute
will host a forum on the book Rebels
on the Air: An Alternative History of Radio in America.
The speaker will be Jesse Walker (author) and Tom Hazlett
(American Enterprise Institute). Reception to follow. See, Cato notice.
Location: The Cato Institute, 1000 Massachusetts Avenue, NW,
|Free Trade and Trade
|10/26. The Progressive
Policy Institute (PPI), a New Democrats think tank,
released a report
[PDF] titled "The Facts About American Trade and a Debate
That Misses the Point". The report states that during the
1950s and 1960s natural resource products and basic
manufactures made up the majority of U.S. imports and exports.
However, by the 1990s, information technologies led U.S.
exports. The report states that "semiconductors,
computers, and high tech services dominate our world
trade." The report concludes that the current debate over
the appropriate place of labor and environmental standards in
trade agreements fails to grasp the basic questions -- how to
"give Americans the education, training and other tools
necessary to compete in such an economy" and "how to
best develop the infrastructure of rules and agreements that
will fit a world economy in which America's greatest
opportunities and advantages lie in newly emerging
industries." The report was written by Edward Gresser and
10/25. Rep. Marcy
Kaptur (D-OH), one of the leading Congressional
protectionists, spoke against free trade in the House. She
said that "free trade does not bring freedom." She
condemned the talks set for next month in Doha, Qatar.
"The oil monarchy of Qatar wants to host the World Trade
Organization talks next month, but yesterday the monarchy of
Qatar condemned the actions of our brave soldiers who are
fighting in Afghanistan in the war against terrorism,"
said Rep. Kaptur. "Now the United States plans to send
our top trade negotiators to this country for an international
trade meeting? ... President Bush has no choice. He must not
permit U.S. negotiators to attend the World Trade Organization
ministerial in Qatar next month. There should be no Qatar
round. Free trade should bring freedom." See,
Congressional Record, October 25, 2001, at page H7327.
10/25. In contrast, Rep.
Judy Biggert (R-IL) spoke in the House in support of free
trade, and pending trade promotion authority legislation:
"I rise today to urge my colleagues to support granting
the President Trade Promotion Authority". She said that
it "does not mean no authority for Congress and the
American people. Our trade negotiators have proven their
commitment to developing consensus positions so that, once the
negotiations are concluded, the trade agreements will win the
approval of Congress and the American people. Without Trade
Promotion Authority, there can be no more Free Trade
Agreements. Without free trade, America loses." See,
Congressional Record, October 25, 2001, at page H7312.
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