Tech Law Journal Daily E-Mail Alert
October 29, 2001, 9:00 AM ET, Alert No. 296.
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Bush Signs Anti Terrorism Bill
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 Terrorism Bill
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 summarized below.
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 of payment.
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, attacks.
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 in USA 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 in Boyle 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 Court (EDVa) 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. See, White House release.
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 a notice [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 and notice to be published in the Federal Register.
Pen Registers and Trap and Trace Devices
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 ..." See, 18 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 Carnivore.
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 customers.
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 regulations.
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."
Kevin
Martin
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 competition."
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 relief."
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 Powell.
  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 Robert Pepper.
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, Washington DC.
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 dtaylor@ntca.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 wendy@fcba.org. 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.
POSTPONED. 10:00 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 Programming."
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 34155.
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 HR 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, Washington DC.
Free Trade and Trade Promotion Authority
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 Sarah West.
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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