| Subscriptions |
| The last free copy of the TLJ Daily E-Mail Alert will be
sent on Wednesday, January 2, 2002. After that, the TLJ
Daily E-Mail Alert will be sent only to paid subscribers, and
those who have qualified for free subscriptions. The basic
rate for a subscription is $250 per year. However, there are
discounts for entities with multiple subscribers. Free one
month trial subscriptions are available. Also, free
subscriptions are available for law students, journalists,
elected officials, and employees of the Congress, courts,
executive branch. The TLJ web site will remain a free access
web site. No hyperlinks will be broken. However, copies of the
TLJ Daily E-Mail Alert and news items will not be published in
the web site until one month after writing. See, subscription
information page. |
|
|
| DC Circuit Upholds FCC in
MCI v. FCC |
12/28. The U.S.
Court of Appeals (DCCir) issued its opinion
in MCI WorldCom Network
v. FCC. The Court of Appeals upheld an FCC order
dismissing MCI's complaint that Bell Atlantic violated the
terms of a pricing condition contained in the order approving
the merger of Bell Atlantic and NYNEX. MCI should have filed
its complaint with a state public utility commission. See
also, PDF
copy of opinion.
MCI filed a complaint with the FCC pursuant to 47 U.S.C.
§ 208 alleging that Bell Atlantic (now Verizon) violated
the pricing requirement set forth by the FCC in its order
approving the merger of Bell Atlantic and NYNEX Corporation.
The FCC issued an order dismissing MCI's complaint, on the
basis that the proper forum for MCI's complaint was the state
public utility commissions, pursuant to 47 U.S.C.
§ 252.
MCI filed the present petition for review with the Court of
Appeals. A unanimous three judge panel agreed with the FCC,
and denied the petition for review. The Court wrote:
"Given the presumption of validity and the high level of
deference due to an agency in interpreting its own orders and
regulations ... we cannot say that the FCC acted unreasonably
in declining to enforce the Paragraph 6 condition of the
Merger Order in a parallel and duplicative section 208
proceeding. MCI seeks no relief from the FCC that the state
public utility commissions cannot grant in their capacity as
arbitrators under section 252." |
|
|
| DC Circuit Rules in
Teledesic Case |
12/28. The U.S.
Court of Appeals (DCCir) issued its opinion
in Teledesic v. FCC,
dismissing as moot challenges to FCC rules which the FCC
revised after the filing of Teledesic's petition for review,
and denying as meritless the remaining challenges. See also, PDF
copy of opinion.
Teledesic is a
Bellevue, Washington, based company that is building a global
broadband communications network based on low earth orbit
satellites. It states that it plans to deploy this
"Internet in the Sky" service in 2005. It is a
privately held company whose primary investors are McCaw, Bill
Gates, Motorola, Saudi Prince Alwaleed Bin Talal, the Abu
Dhabi Investment Company and Boeing.
Teledesic filed with the Court of Appeals a petition for
review of an FCC order
governing the reallocation of a band of radio spectrum
previously shared by satellite and traditional terrestrial
spectrum users. Teledesic objected to the new rules requiring
satellite operators to pay the relocation costs incurred by
terrestrial operators during the initial reallocation period.
However, the FCC revised its rules just after the filing of
the petition for review. The Appeals Court held two issues on
appeal are rended moot by the rule revisions. It found other
issues to be meritless. |
|
|
| 10th Circuit Affirms
Conviction Based on Laptop Search |
12/28. The U.S.
Court of Appeals (10thCir)." issued its opinion
in U.S.
v. Russell Walser, a criminal search and
seizure case involving a laptop. The Appeals Court upheld
warrant based searches of a laptop, and a sentencing condition
prohibiting use of the Internet without permission of the
probation office.
Background. A motel manager reported to police that
Walser had drugs in motel room occupied by him and another
person. Police obtained a search warrant that covered
"records, and/or receipts, written or electronically
stored, ... that show or tend to show ownership or control of
the premises and other property used to facilitate the
distribution and delivery [of] controlled substances".
Police then searched the room, found Walser's laptop, and
searched it for drug related records. However, police also
opened a single AVI file, and found child pormography. Police
then obtained a second warrant specifically addressing
evidence of child pormography. The second search found further
illegal images. Walser was charged with possession of child
pormography.
District Court. The U.S.
District Court (DWyo) denied Walser's motion to suppress
evidence collected from his laptop by police officers. Walser
then plead guilty. The Court imposed a sentencing condition
that prohibits him from using the Internet without prior
permission from the U.S. Probation Office. He appealed both
the denial of the motion to suppress, and the sentencing
condition.
Appeals Court. The Appeals Court affirmed on both
issues. It wrote that "The advent of the electronic age
and, as we see in this case, the development of desktop
computers that are able to hold the equivalent of a library's
worth of information, go beyond the established categories of
constitutional doctrine. Analogies to other physical objects,
such as dressers or file cabinets, do not often inform the
situations we now face as judges when applying search and
seizure law. ... officers conducting searches (and the
magistrates issuing warrants for those searches) cannot simply
conduct a sweeping, comprehensive search of a computer's hard
drive. Because computers can hold so much information touching
on many different areas of a person's life, there is a greater
potential for the ``intermingling´´ of documents and a
consequent invasion of privacy when police execute a search
for evidence on a computer."
The Court found that opening a single AVI, or other graphics
file, during a search for records of drug transactions is
permissible. However, the Court suggested that had the police
searched through more graphics files, without a warrant
covering graphics files, this would have violated the Fourth
Amendment rights of the defendant.
The prosecution had also argued that "because computer
files can be re-labeled to disguise their contents, an agent
is free to open any file in order to determine its contents
and that therefore, opening the AVI file did not exceed the
scope of the warrant." The Court left this argument
"for another day", since it affirmed on other
grounds. |
|
|
|
| Court Holds Computer Search
Can Violate Both 1st and 4th Amendment Civil Rights |
12/28. The U.S.
Court of Appeals (4thCir) issued its opinion
in Trulock
v. Freeh, holding that Notra Trulock may
proceed with his civil suit for damages against FBI employees
for searching password protected files on a computer in
violation of his constitutional rights. All three members of
the appeal panel agreed that Trulock sufficiently plead a
claim for violation of his First Amendment rights, based upon
retaliation for publication of a news article critical of the
government. Two judges wrote that Trulock could not proceed
with a second claim for violation of his Fourth
Amendment rights. They wrote that he had
sufficiently plead a violation of the Fourth Amendment, but
since the case law on computer searches was not clear on this
point at the time of the search, this claim may not proceed.
One judge would have let this claim proceed also.
Los Alamos - Wen Ho Lee Affair. This case arises out of
the saga of security breaches and bungled investigations and
prosecutions involving nuclear weapons technology held by the U.S. Department of Energy
(DOE). Much of the media coverage and Congressional
investigations focused on the Los
Alamos Nuclear Laboratory, and Wen Ho Lee. One of the
plaintiffs, Notra Trulock, was the DOE's Director of the
Office of Intelligence from 1994 to 1998, and Director of the
DOE's Office of Counterintelligence from 1995 to 1998.
Whistleblower. Trulock was the "whistle
blower" in this affair. He had uncovered evidence of
espionage at the DOE. However, the DOE, FBI, and Clinton administration
did not take significant action upon his warnings. When the
matter became a public scandal in 1998, he appeared before
Congressional committees, and spoke with journalists. He
states that he was demoted, and then forced out of the DOE.
FBI Retaliation. The complaint
states that the National
Review (NR) published an article that circulated in early
July 2000 that contained excerpts from a longer article
written by Trulock. The complaint states that the Trulock's
article contained "his criticisms of the Clinton Gore
White House, the DOE, the FBI and the CIA for their
mishandling and cover-up of the Chinese spy threat, as well as
the compromise of national security at U.S. nuclear weapons
laboratories, including Los Alamos." (Neither Trulock's
original article, nor the NR article containing excerpts, is
now in the NR web site; however, this article
about the article is.) On July 14, the FBI retaliated.
The Computer. The complaint states that one Linda
Conrad and Trulock shared a townhouse, which Conrad owned. The
two also shared a computer, but each maintained separate,
password protected files on the hard drive. The computer was
located in a bedroom. No warrant had been issued for either a
search of the house, or the computer. Conrad signed a consent
to search. She states that it was coerced. Trulock consented
to nothing. The FBI searched the computer for about 90
minutes. The FBI then confiscated the hard drive.
District Court Complaint. Trulock and Conrad promptly
filed a complaint
in U.S. District Court (EDVa) against various FBI employees,
in their individual capacities, alleging violation of their
First Amendment and Fourth Amendment rights. The defendants
range from then FBI Director Louis Freeh down to the FBI
technician who searched the computer in the bedroom. The
complaint is based on Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), which held that an individual may bring a
civil suit against a federal officer for damages stemming from
a constitutional violation.
The complaint contains two counts. Count one alleges violation
of the Fourth Amendment. It alleges that the Defendants
violated Conrad's rights by seizing her during the interview,
violated Conrad and Trulock's rights by coercing Conrad's
consent to search their home, and that Conrad's consent, even
if voluntary, was insufficient to permit the search of
Trulock's private computer files. Count two alleges violation
of the First Amendment. It alleges that the FBI conducted the
search and seizure in direct retaliation for the unflattering
magazine article.
District Court Ruling. The District Court, Judge Albert
Bryan presiding, dismissed the complaint prior to pre-trial
discovery for failure to state a claim upon which can be
granted, pursuant to FRCP 12(b)(6).
Appeals Court. Judge
Benson Legg wrote the opinion of the Court, in which Judge
Roger Gregory joined, reversing the dismissal of the complaint
as to the First Amendment count. Judge Blane Michael concurred
on the First Amendment count reversal, but dissented regarding
the majority's affirmance of the dismissal as to the Fourth
Amendment count.
Fourth Amendment Claim. The Appeals Court first wrote
that there was no Fourth Amendment violation based on
allegations of coerced consent; the interrogation was not
custodial, and Conrad consented to the search. However, the
Court continued that "Conrad lacked authority to consent
to the search of Trulock's files. Conrad and Trulock both used
a computer located in Conrad's bedroom and each had joint
access to the hard drive. Conrad and Trulock, however,
protected their personal files with passwords; Conrad did not
have access to Trulock's passwords. Although Conrad had
authority to consent to a general search of the computer, her
authority did not extend to Trulock's password protected
files."
The Court reasoned that "Consent to search in the absence
of a warrant may, in some circumstances, be given by a person
other than the target of the search." However, "the
third party must have authority to consent to the
search." It continued that "Authority to consent
originates not from a mere property interest, but instead from
"mutual use of the property by persons generally having
joint access or control for most purposes, so that it is
reasonable to recognize that any of the co-inhabitants has the
right to permit the inspection in his own right and that
others have assumed the risk that one of their number might
permit the common area to be searched." The Court cited U.S.
v. Matlock, 415 U.S. 164 (1974), as authority.
However, having concluded that under the Fourth Amendment the
FBI lacked authority to search Trulock's files, the Court
nevertheless upheld the dismissal of his Fourth Amendment
claim. The Court stated that the case law on this issue was
not clear in July 2000, when the search was conducted. It
wrote that "the Defendants are entitled to immunity
because a reasonable officer in their position would not have
known that the search would violate clearly established
law".
Now, the law is clear. Trulock cannot proceed with his Fourth
Amendment claim for damages, but future similarly situated
plaintiffs will be able to pursue Fourth Amendment Bivens
claims.
First Amendment Claim. The Appeals Court wrote that
"we find that Trulock has alleged sufficient facts in
support of his retaliation claim to withstand a motion to
dismiss and proceed to discovery. The complaint contains facts
that bolster Trulock's claim of improper motive. First, the
timing of the search raises an inference of retaliatory
motive. ... The article was published in early July 2000 and
the search occurred on July 14, 2000. The article chastised
the White House, the CIA, the DOE, and the FBI, the very
agency that executed the search. According to the Plaintiffs,
a criminal referral is necessary for the FBI to commence an
official investigation. The complaint alleges, however, that
the FBI initiated the investigation without receiving a
criminal referral from the DOE. ... All of these factors, when
viewed together and accepted as true, raise a reasonable
inference that the interrogation and search were
retaliatory."
The Court also found that the defendants lacked qualified
immunity from a First Amendment Bivens claim. The government
argued that the NR "did not enjoy First Amendment
protection" and hence no "reasonable officer would
have known that retaliatory conduct was impermissible".
The Court rejected this argument with brevity.
Dissent. Judge Michael dissented in part. He wrote that
"The owner of password protected computer files has a
clear expectation of privacy in those files that is protected
by the Fourth Amendment. Another person who does not know the
passwords has no authority to consent to a search of these
private files because he lacks the ``joint access or
control´´ required by U.S. v. Matlock ... This should have
been abundantly clear to any reasonable law enforcement
officer operating in the year 2000. I therefore respectfully
dissent ..." |
|
|
|
| FCC Allows E-Rate Funds to
Support Non Educational Uses |
12/28. The FCC published a notice
in the Federal Register that it adopted an Order
[PDF] on November 29, 2001, that permits schools and libraries
in the State of Alaska that receive e-rate subsidies to allow
their facilities to be used by the general public to receive
telecommunications and Internet services. This order took
effect on December 28, 2001.
The statutory section which serves as the basis for the e-rate
program applies to "schools, and libraries for
educational purposes". It states, in part:
"Telecommunications services for certain providers ...
All telecommunications carriers serving a geographic area
shall, upon a bona fide request for any of its services that
are within the definition of universal service under
subsection (c)(3) of this section, provide such services to
elementary schools, secondary schools, and libraries for
educational purposes at rates less than the amounts charged
for similar services to other parties." See, 47 U.S.C.
§ 254(h)(1)(B).
This order applies to "rural remote communities in Alaska
... when the services are not in use by the schools and
libraries for educational purposes." [Order, at ¶ 6.]
The order further states that it is limited "to
communities in Alaska where there is no local or toll-free
dial-up Internet access". [Order, at ¶ 13.]
See, Federal Register, December 28, 2001, Vol. 66, No. 249, at
Pages 67112 - 67114. This is FCC 01-350 in CC Docket No.
96-45. |
|
|
| Monday, Dec 31 |
Deadline to submit reply comments 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.
Deadline to submit comments to the Department of Justice's Bureau of Prisons (BOP)
regarding its interim rule permitting monitoring of
communications by detainees of the Bureau of Prisons. This
interim rule provides that the Attorney General may order the
monitoring of attorney client communications of detainees whom
he suspects are using those communications to further a
terrorist act. See, notice
in Federal Register, October 31, 2001, Vol. 66, No. 211, at
Pages 55061 - 55066. |
|
|
| Tuesday, Jan 1 |
| New Years Day. Federal offices and Courts will be closed.
The TLJ Daily E-Mail Alert will not publish. |
|
|
|
|
|
| Friday, Jan 4 |
10:00 AM - 1:00 PM. The FCC's Network
Reliability and Interoperability Council will hold a meeting.
See, notice
in Federal Register, November 13, 2001, Vol. 66, No. 219, at
Page 56823. Location: FCC, Commission Meeting Room, Room
TW-C305, 445 12th St. SW., Washington DC.
12:15 PM. The Federal
Communications Bar Association's Wireless
Telecommunications Practice Committee will host a luncheon.
The speakers will be advisors to the FCC Commissioners: Peter
Tenhula (Powell), Bryan Tramont (Abernathy), Paul Margie (Copps),
and Monica Desai (Martin). The price to attend is $15.00. RSVP
to Wendy Parish at wendy@fcba.org.
Location: Sidley Austin Brown
& Wood, 1501 K Street, NW Conference Room 6-E,
Washington DC.
Deadline to submit oppositions and comments to the FCC in
response to Cingular Wireless', Nextel's, and Verizon
Wireless' petitions for reconsideration of certain provisions
of the FCC's October 12 orders addressing and conditionally
approving requests for waivers and approval of revised
deployment plans for wireless Enhanced 911 (E911) services.
See, FCC
Notice. (CC Docket No. 94-102.) |
|
|
| More Court Opinions |
12/28. The U.S.
Court of Appeals (5thCir) issued its opinion
in Compaq
v. IRS, a tax case. Compaq engaged in a foreign
stock transaction involving the purchase and resale of
American Depository Receipts (ADRs). The U.S. Tax Court held that
because the ADR transaction lacked economic substance, the
transaction should be disregarded for federal income tax
purposes. The Appeals Court reversed.
12/28. The California
Court of Appeal (4/3) issued its opinion
[PDF] in Charles
Burns v. Nature's Best, a case regarding
application of the definition of "confidential
communication" under § 632 of California Privacy
Act in a civil suit arising out of the audio recording of a
telephone conversation conducted with a speakerphone without
the consent of the plaintiff. The plaintiff prevailed in the
trial court. The Court of Appeal reversed. |
|
|
| More News |
12/28. President Bush signed into law HR 2883,
the Intelligence Authorization Act for Fiscal Year 2002. See, signing
statement by Bush.
12/28. President Bush signed into law S 1438,
the National Defense Authorization Act for Fiscal Year 2002.
See, signing
statement by Bush. |
|
|
| About Tech Law Journal |
Tech Law Journal publishes a web site and daily e-mail alert
that provide news, records, and analysis of legislation,
litigation, and regulation affecting the computer and Internet
industry.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All
rights reserved. |
|
|