Electronic Surveillance Under USA PATRIOT Act
|11/28. Michael Chertoff testified at a Senate Judiciary
Committee hearing titled "DOJ Oversight: Preserving
Our Freedoms While Defending Against Terrorism". Chertoff
is the Assistant Attorney General in charge of the Criminal Division at
the Justice Department. He was also one of the drafters of the
language contained in HR
3162, the USA PATRIOT Act, the anti terrorism bill that
the Congress passed last month.
He discussed the USA PATRIOT Act in response to a question
from Sen. Orrin Hatch
(R-UT), the ranking Republican on the Committee. However, the
primary foci of the hearing were detentions, military
tribunals, and monitoring of attorney client communications of
Information Sharing. Chertoff stated first that the Act
has been used to enable the sharing of information between law
enforcement and intelligence agencies. (See, for example,
Section 203 of HR 3162.)
Cable Communications. Second, he stated that the DOJ
has utilized the newly amended Section 2703 of Title 18 to
obtain customer communications or records from cable
companies. (See, Section 212 of HR 3162. See also, Section 211,
which provides that laws regarding interception and disclosure
of wire and electronic communications apply to cable service
providers when they provide telephony or Internet access
Nation Wide Search Warrants for ISPs. Chertoff
continued that "We have obtained court orders directed to
out of district Internet service providers providing
information, which has been, to enhance efficiency in terms of
pursuing this investigation. We have used the nation wide
search warrant provision to obtain relevant information."
(See, Sections 219 and 220 of HR 3162.)
Emergency Disclosure Provisions. Chertoff next stated
that "We have used the emergency disclosure provisions to
support our use of information which is provided to us by an
Internet service provider." (See, Section 211 of HR
Addresses on the Internet. Finally, Chertoff concluded
with a vague reference to obtaining an order for
"addresses on the Internet". He did not reference
any section of the bill or the U.S. Code. Nor was he clear as
to whether he was talking about e-mail addressing information,
uniform resource locators, IP numbers, or something else. This
is what he said: "In fact, I can tell you personally,
not, not more than two days ago, a request came to me about
whether we could get some information about address, addresses
on the Internet. And, it was information that was important
that we might not have been able to get under the prior law.
But because of the new law, I was able to direct people to go
out and get an order, and make sure we get that information.
So, we have absolutely made use of these tools ..."
|Senate Judiciary Committee
Holds Hearing on Anti Terrorist Measures
|11/28. The Senate
Judiciary Committee held a hearing titled "DOJ
Oversight: Preserving Our Freedoms While Defending Against
Terrorism". The lead witness was Michael Chertoff,
Assistant Attorney General in charge of the Criminal Division at
the Justice Department. The hearing focused on the use of
military tribunals, monitoring of attorney client
communications, and detentions. However, Chertoff also
addressed electronic surveillance. Attorney General John
Ashcroft is scheduled to testify to the Committee on December
Sen. Patrick Leahy
(D-VT) used the event to criticize the Bush administration,
and the Justice Department specifically, for three recently
announced anti terrorist measures: use of military tribunals
to try terrorists, interception of attorney client
communications of terrorists who might use those
communications to commit further terrorist acts, and the
detention of persons in connection with investigation,
prosecution, and prevention of terrorism.
Sen. Leahy was the most critical member of the panel. Other
Senators also voiced concerns about administration actions,
including Sen. Arlen
Specter (R-PA), Sen.
Russ Feingold (D-WI), Sen.
Herb Kohl (D-WI), and Sen.
Ted Kennedy (D-MA).
Several Senators praised the actions taken by the
administration as constitutional, necessary and appropriate.
These included Sen. Orrin
Hatch (R-UT), Sen. Jon
Kyl (R-AZ), Sen.
Mitch McConnell (R-KY), and Sen. Jeff Sessions
The Committee also heard from a second panel of witnesses
comprised of William Barr (Former Attorney General in first
Bush administration), Philip Heymann (Former Deputy Attorney
General in Clinton administration), Griffin Bell (former
Attorney General in Carter administration), Scott Silliman
(Duke University School of Law), Kate Martin (Center for
National Security Studies), and Neal Katyal (Georgetown
|DOJ Seeks Public Comment on
|11/28. The Department of
Justice published in the Federal Register copies of the
proposed Final Judgment and Competitive Impact Statement in
the Microsoft antitrust case. Public comments are due within
sixty days of publication in the Federal Register. Submit
comments to microsoft.atr
@usdoj.gov, or by mail or fax. See, notice
in Federal Register, November 28, 2001, Vol. 66, No. 229, at
Pages 59452 - 59476.
|UK Competition Bill
|11/28. The United Kingdom
Department of Trade and Industry (DTI) announced plans to
introduce legislation regarding its merger regime and criminal
penalties for price fixing, bid rigging, and market sharing
cartels. Melanie Johnson, Minister for Competition, Consumers
and Markets, stated in a release
that "The Enterprise Bill is a key part of our mission to
promote enterprise and drive up productivity in the UK which
will improve living standards for us all. Strong competition
drives improvements in efficiency and innovation across the
economy. Entrepreneurs willing to take risks are essential to
economic growth. Our proposals will strengthen competition,
benefit consumers, and encourage enterprising behaviour."
Charles James, Assistant Attorney General for the Antitrust Division of the
U.S. Department of Justice, praised the announcement. James
released a statement
in which he said that "The proposed amendments to the
U.K.'s antitrust laws embody fundamental antitrust principles
and are welcome signs of the growing convergence between the
U.K.'s and the U.S.' view of the appropriate scope of
antitrust enforcement. The central principle of U.S. antitrust
law is the protection of competition and the U.K.'s clear
statement of this guiding principle in its merger law is an
important step forward in an increasingly global economy. The
proposal to impose criminal sanctions on individuals who
participate in hard core cartels will also greatly benefit
U.K. businesses and consumers. The United States has long held
the view that the most effective method to deter individuals
from committing antitrust crimes is through the imposition of
tough and certain penalties. We welcome the United Kingdom to
the growing number of jurisdictions that share these
|Bush Signs Net Tax
|11/28. President Bush signed HR
1552, the Internet Tax Nondiscrimination Act. This bill
extends the moratorium on multiple and discriminatory Internet
taxes, and taxes on Internet access, through November 1, 2003.
|NCTA Chief Addresses
Competition and Broadband Issues
|11/28. National Cable
Telecommunications Association (NCTA) P/CEO Robert Sachs
gave a speech
in Anaheim, California, in which he stated that "One of
the lessons of September 11th is the importance of having
competitive telecommunications networks. With the growing
recognition that multiple communications paths provide an
extra and necessary measure of national security, we are
likely to see facilities based competition take on increased
importance in Washington."
Sachs also stated that "there is likely to be a greater
emphasis placed on broadband deployment. We saw this recently
in the economic stimulus package reported by the Senate
Finance Committee where tax credits were provided to encourage
|WTO DG Moore Addresses Doha
|11/28. WTO Director General
Mike Moore gave a speech
in Hong Kong on the recent meeting in Doha, Qatar, and the new
round of trade talks. He praised the outcome of the Doha
meeting, summarized its accomplishments, advocated the
benefits of free trade, and discussed the compromise on TRIPs
and pharmaceutical products.
Moore stated that "By any standards, the 4th Ministerial
conference of the WTO was an extraordinarily successful
meeting. We tend to talk rather glibly about the historic
importance of such events, but this time, for once, the claim
is not exaggerated; the meeting at Doha will be remembered as
a turning point in the history of the WTO and the trading
system and in relations between developed and developing
countries within that system." He added that "The
outcome at Doha brings to an end the uncertainty, loss of
momentum and lack of confidence created by the equally
spectacular failure at Seattle two years earlier."
Intellectual Property Rights. Moore stated that
"The first major success of the conference was the
completion of the Ministerial Declaration on TRIPs and Public
Health. This had been a very difficult question, impossible to
settle in Geneva, which raised economic and humanitarian
issues of the highest importance. A delicate balance had to be
struck between every Member government's right to act to
protect public health and confront health crises and the need
to avoid undermining the TRIPS Agreement, which could easily
lead to the drying up of the investment funds needed for
research into the drugs of the future. The job was well done,
making it clear that there are important elements of
flexibility in the TRIPS Agreement which can be used to
respond to health emergencies. They include the right to grant
compulsory licenses and to determine the grounds upon which
they should be granted, and the right to establish national
regimes for the exhaustion of intellectual property rights.
The declaration removed a critical point of discord between
developed and developing countries, and it has been welcomed
by governments, by public health lobbies and by the
|11/27. Rep. Jeff Flake
(R-AZ) and others introduced HR 3353, a bill to require the
Assistant to the President for Homeland Security to establish
a web site for providing information on suspicious activities
that may be used by the FBI and other government agencies in
the war on terrorism or to protect homeland security. The bill
was referred to the House
11/27. Rep. Mike
Ferguson (R-NJ) and Rep.
Danny Davis (D-IL) introduced HRes 295, a resolution
urging the establishment of a commission on technology and
education. It was referred to the House Committee on Education
and the Workforce.
11/27. Sen. John Edwards
(D-NC) introduced S 1733, a bill to develop a unified
electronic data system to enhance access to information that
is relevant to determine whether to issue a visa or admit an
alien to the U.S. The bill was referred to the Senate Judiciary
Committee. Sen. Edwards also issued a release
that stated that "The legislation would use sophisticated
computer programs to match names on passports, visas or other
official documents against names on federal lookout lists. ...
Based on recommendations from federal agencies involved in
keeping would be terrorists out of the country, the
legislation would insure that names stored in different
databases may be matched more accurately. It would require the
State Department, Customs Service, INS and other agencies to
use a uniform record keeping system, and let the agencies take
advantage of sophisticated computer software that spots
variations of the same name."
|11/28. The FBI's National
Infrastructure Protection Center (NIPC) issued Advisory
No. 01-027, titled "Significant Vulnerability
Identified In Common Linux File: Transport Protocol Program
Identified". The Advisory warns that there is a
"vulnerability in versions of the Washington University
File Transport Protocol Daemon (WU-FTPD) that could lead to an
attacker gaining surreptitious access to sensitive
information. For those systems using the WU-FTPD service for
which a patch is not yet available, it is suggested that you
either disable FTP by blocking TCP port 21 or, in those
instances where this is not an option, disable anonymous
11/28. The Supreme
Court heard oral argument in Ashcroft v. ACLU, No.
00-1293. This case involves the constitutionality of the 1998 Child
Online Protection Act which makes it illegal to
provide to minors over the web material that is harmful to
|Starting on January 1, 2002, the Tech Law Journal Daily
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|About Tech Law Journal
|Tech Law Journal is a free access web site and e-mail alert
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|Thursday, Nov 29
|The House is scheduled to take up take up HR 3210,
the Terrorism Risk Protection Act.
8:00 AM - 5:00 PM. Day one of a two day meeting of the National Science Foundation's
Advisory Committee for Cyber Infrastructure. See, notice
in Federal Register, November 16, 2001, Vol. 66, No. 222, at
Page 57743. Location: Room 1150, National Science Foundation,
4201 Wilson Boulevard, Arlington, VA.
10:00 AM. The Senate
Judiciary Committee is scheduled to hold an executive
business meeting to mark up several bills, including S
986, a bill to allow electronic media coverage of court
proceedings. Location: Room 226, Dirksen Building.
10:00 AM. The House
Government Reform Committee's Subcommittee on National
Security, Veterans Affairs, and International Relations will
hold a hearing titled "Risk Communication: National
Security and Public Health". Location: Room 2154, Rayburn
12:00 NOON - 2:00 PM. Jane Mago,
General Counsel of the FCC, will speak at a brown bag lunch
hosted by the District of Columbia Bar Association (DC Bar)
and the FCBA. To
register, contact the DC Bar at 202 626-3463.
12:15 PM. The FCBA's
International Committee will host a brown bag lunch. Jeanette
Chan and Michael Reede of the Hong Kong office of Paul Weiss
will speak on recent regulatory developments in Hong Kong,
China and India. Location: Paul Weiss, 1615 L Street, 13th
12:15 PM. Sen. Paul
Sarbanes (D-MD), Chairman of the Senate Banking
Committee, will be the luncheon keynote speaker at the
Consumer Federation of America's conference titled "The
Consumer in the Financial Services Revolution -- Challenges
and Opportunities." Location: Jurys Hotel, 1500 New
Hampshire Avenue, NW.
1:30 PM. FTC Commissioner Orson Swindle will participate in an
audio conference titled "Privacy and the Antiterrorism
Act," sponsored by Communications Daily. Location: 600
Pennsylvania Ave., NW.
1:30 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 House
Judiciary Committee's Subcommittee on Crime will hold a
556, the Unlawful Internet Gambling Funding Prohibition
Act, and HR
3215, the Combating Illegal Gambling Reform and
Modernization Act. Location: Room 2237, Rayburn Building.
to submit comments and Notices of Intention to Participate
with the Copyright
Office (CO) regarding royalty payments for retransmission
of over the air broadcast signals. The CO notice
"directs all claimants to royalty fees collected under
the section 119 statutory license in 2000 to submit comments
as to whether a Phase I or Phase II controversy exists as to
the distribution of those fees, and a Notice of Intention to
Participate in a royalty distribution proceeding." See, 17 U.S.C.
§ 119. See also, Federal Register, October 30, 2001, Vol.
66, No. 210, at Pages 54789 - 54791. See, November 23
|Friday, Nov 30
|8:00 AM - 5:00 PM. Day two of a two day meeting of the
National Science Foundation's Advisory Committee for Cyber
Infrastructure. See, notice
in Federal Register, November 16, 2001, Vol. 66, No. 222, at
Page 57743. Location: Room 1150, National Science Foundation,
4201 Wilson Boulevard, Arlington, VA.
9:00 AM. The Electronic Privacy
Information Center (EPIC) will host a panel discussion
titled "Security or Surveillance II". The topics
will include "the technical reliability and privacy
implications of new security systems and legal measures being
considered both domestically and internationally since
September 11." The participants will be Bruce Schneier
(Counterpane Internet Security), Simon Davies (Privacy
International), Chris Hoofnagle (EPIC), and Marc Rotenberg
(EPIC). See, agenda.
For more information, contact Sarah Andrews at andrews @epic.org or 202
483-1140 ext 107. Location: National
Press Club, First Amendment Lounge, 529 14th St. NW, 13th
9:00 AM - 5:00 PM. The FCC's Consumer Disability
Telecom Advisory Committee will host a meeting titled
"The State of the Telecom Act of 1996: Has It Benefitted
Consumers and Where Do We Go From Here?" Location: FCC,
445 12th Street, SW, Room TW-C305.
10:00 AM - 12:00 NOON. The American
Enterprise Institute (AEI) will host a panel discussion
titled "The PCS C Block Mess: The FCC as Auctioneer and
Banker". The panelists will be Robert Hahn (AEI
Brookings), Rudy Baca (Precursor Group), Harold Furchtgott
Roth (AEI), George Reed Dellinger (Washington Analysis), John
Thorne (Verizon), and Thomas Hazlett (AEI). See, online registration
page. Location: AEI, Wohlstetter Conference Center, 12th
Floor, 1150 17th Street, NW.
Deadline to submit comments to the Federal Trade Commission (FTC)
in its a notice of proposed rulemaking (NPRM) regarding
extending 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. See, FTC release
Deadline to submit comments to the Bureau of Export Administration
(BXA) regarding its annual review of the foreign policy based
export controls in the Export Administration Regulations to
determine whether they should be modified, rescinded, or
extended. See, for example, Export Administration Regulations
(EAR), Section 742.12, pertaining to high performance
computers. See, BXA
|Monday, Dec 3
|10:00 AM. The U.S. Court of
Appeals (FedCir) will hear oral argument in Datapoint
Corporation v. Standard Microsystems, No. 99-1239, and Charles
E. Hill & Associates v. Compuserve, No. 00-1562.
Location: Courtroom 402, 717 Madison Place, NW.
12:30 PM. Ivan Seidenberg, P/CEO of Verizon will deliver a
luncheon address. Location: Ballroom, National Press Club, 529 14th
St. NW, 13th Floor.
Deadline to submit comments to the Federal Election Commission (FEC)
regarding its proposed rule changes affecting political
activity on the Internet. The FEC is the agency charged with
enforcing the Federal Election Campaign Act (FECA), which
regulates political contributions and expenditures. While the
FEC had previously considered wide ranging regulation of
political speech on the Internet, this NPRM merely proposes to
permit certain personal political web sites, and to allow
corporations and unions to put certain hyperlinks and press
releases in their web sites. See, TLJ
story of September 27, 2001. See also, FEC release,
in the Federal Register.