Tech Law Journal Daily E-Mail Alert
April 17, 2002, 9:00 AM ET, Alert No. 412.
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House Judiciary Committee to Mark Up Tech Bills
4/16. The House Judiciary Committee announced that it will hold a meeting on Thursday, April 18, to mark up several bills, including HR 3482, the Cyber Security Enhancement Act of 2001, and HR 3215, the Combatting Illegal Gambling Reform and Modernization Act.
Cyber Security. HR 3482, sponsored by Rep. Lamar Smith (R-TX), contains provisions relating to sentencing guidelines for computer hacking crimes, authority of Internet service providers (ISPs) and others to voluntarily disclosure the content of communications to law enforcement and other government entities, appropriations for the National Infrastructure Protection Center (NIPC), the creation of an Office of Science and Technology at the Department of Justice (DOJ), and other topics.
The bill further amends several sections of the criminal code that were just recently amended by the USA PATRIOT Act, which is also known as the anti terrorism bill. On February 26, the House Crime Subcommittee adopted amendment in the nature of a substitute, and a further amendment offered by Rep. Sheila Lee (D-TX). See also, article on the subcommittee markup in TLJ Daily E-Mail Alert No. 337, Feb. 27, 2002, and article on the subcommittee hearing in TLJ Daily E-Mail Alert No. 367, Feb. 13, 2002.
Internet Gambling. HR 3215 is Rep. Bob Goodlatte's (R-VA) latest attempt to pass legislation limiting Internet gambling. It would amend 18 U.S.C. §§ 1081 and 1084, which contain the definitions and prohibition, respectively, of the Wire Act. The Wire Act currently criminalizes the use of "wire communications facilities" in interstate commerce for gambling. The Wire Act does not ban gambling. This is a matter of state law. HR 3215 expands the prohibition to cover all communications between states or with other foreign countries. It maintains the principle that gambling is otherwise a matter of state law. Hence, under HR 3215, use of the Internet for gambling purposes would become illegal (if interstate or foreign).
The criminal prohibition of the Wire Act, 18 U.S.C. §§ 1084, currently provides that "Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers ... shall be fined under this title or imprisoned not more than two years, or both." Since the current statute affects only wire communication facilities, and some Internet communications do not involve wires, it leaves open the possibility that some Internet gambling may not be illegal under the Wire Act.
HR 3215 provides that "whoever, being engaged in a gambling business, knowingly (1) for the transmission in interstate or foreign commerce ..." or between the U.S. and abroad "... of bets or wagers ... shall be fined under this title or imprisoned not more than five years, or both." Hence, it pertains to all communications, not just wire communications.
Also, HR 3215 would amend 18 U.S.C. § 1081, which currently defines ''wire communication facility'' as "any and all instrumentalities, personnel, and services (among other things, the receipt, forwarding, or delivery of communications) used or useful in the transmission of writings, signs, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission." As amended, it would provide that "communications facility" means "any and all instrumentalities, personnel, and services (among other things, the receipt, forwarding, or delivery of communications) used or useful in the transmission of writings, signs, pictures, and sounds of all kinds by aid of wire, cable, satellite, microwave, or other like connection (whether fixed or mobile) between the points of origin and reception of such transmission."
HR 3215 would also criminalize "the transmission of a communication in interstate or foreign commerce ... which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers".
HR 1877, the Child Sex Crimes Wiretapping Act of 2001, is also scheduled for mark up on April 18. This bill would amend 18 U.S.C. § 2516(1)(c) to provide that that certain sezual crimes against children are predicate crimes for the interception of communications.
Senate Commerce Committee Holds Hearing on TA, NIST and ATP
4/16. The Senate Commerce Committee held a hearing on the Technology Administration and the National Institute of Standards and Technology (NIST), including the Advanced Technology Program.
Sen. Ernest Hollings (D-SC), the Chairman of the Committee, said in his opening statement that "we continue to be embroiled in an annual tug of war on funding for the Advanced Technology Program, known as ATP. I am encouraged that Secretary Evans and Deputy Secretary Bodman want to stabilize this program."
Samuel Bodman, Deputy Secretary of the Commerce Department, addressed the ATP in his prepared testimony. He stated that "our review concluded that some reforms are needed", including "Offering universities increased incentive to participate in developing commercially relevant technologies by allowing them to negotiate with joint venture partners over the rights to hold the intellectual property that results from research".
Bodman also addressed several NIST computer technology initiatives. For example, he stated that "NIST is proposing to increase the resources devoted to its Program for Accelerating Critical Information Technologies. This increase in emphasis will support the development of networked systems of embedded devices (``EmNets´´) to detect, prevent, and respond to natural and human caused disasters. As computing device costs decline and capabilities increase, devices and sensors will be embedded in buildings, office spaces, manufacturing floors, transportation medians, and appliances and will be interconnected using wired or wireless networks."
Bodman also addressed NIST's Computer Security Expert Assist Team. He stated that this team "assists other Federal agencies on a cost reimbursable basis. Federal agencies are taking action to improve security, but most do not understand what actions to take or in what order. NIST staff includes world leaders in all aspects of information security."
See also, prepared testimony of other witnesses, Anne Armstong (Virginia's Center for Innovative Technology), Lewis Branscomb (Harvard), and Scott Donnelly (General Electric).
FTC To Hold Workshops on Merger Investigation Best Practices
4/16. The Federal Trade Commission's (FTC) Bureau of Competition announced that it will hold a series of public workshops on merger investigation best practices in June and July. See, FTC release.
The workshops will be held in Washington DC (June 3, June 27, and July 10), San Francisco (June 5), Los Angeles (June 25), Chicago (June 18), and New York City (June 12). There will be five workshops with a general agenda, and two with specialized agendas: electronic records, and accounting and financial data.
Supreme Court Upholds Speech Rights of Child Pormographers
4/16. The Supreme Court issued its opinion [44 pages in PDF] in Ashcroft v. FSC, a case involving a constitutional challenge to the Child Pormography Prevention Act of 1996 (CPPA). The Supreme Court ruled that provisions of the statute banning computer generated images depicting minors engaging in sezually explicit conduct is overbroad, and violates the First Amendment.
Statute. The CPPA expanded the federal prohibition on child pormography to encompass new technologies. 18 U.S.C. § 2256, the section containing definitions, was amended to provides that child pormography means "any visual depiction, including any photograph, film, video, picture, or computer or computer- generated image or picture, whether made or produced by electronic, mechanical, or other means, of sezually explicit conduct, where (A) the production of such visual depiction involves the use of a minor engaging in sezually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sezually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sezually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sezually explicit conduct;" (Words misspelled by TLJ.)
Proceedings Below. A trade association of purveyors of pormography, the Free Speech Coalition (FSC), filed a complaint in U.S. District Court challenging the constitutionality of the CPPA. The District Court granted summary judgment to the government. However, the U.S. Court of Appeals (9thCir) reversed. Four other circuits had upheld the constitutionality of the CPPA.
Supreme Court. Justice Kennedy wrote the opinion of the Court. He wrote that the CPPA, to the extent that it extends the federal prohibition against child pormography to sezually explicit images that appear to depict minors but were produced without using any real children, is substantially overbroad and violates the First Amendment.
He elaborated that the prohibited conduct is not obscene under the standard announced in Miller v. California, 413 U.S. 15 (1973), and it is not child pormography under the standard announced in New York v. Ferber, 458 U.S. 747 (1982).
Justice O'Connor wrote a separate opinion, concurring in part, and dissenting in part, in which Chief Justice Rehnquist and Justice Scalia joined. Rehnquist also wrote a separate dissent in which Scalia joined. Justice Thomas wrote a concurrence.
Editor's Note: Tech Law Journal intentionally misspells certain words, such as "porm" and "sez". The reason is that some subscribers' e-mail servers block delivery of the TLJ Daily E-Mail Alert if these words are spelled correctly.
FCC Arrests Man for Unlicensed Speech
4/16. Agents of the Federal Communications Commission (FCC), U.S. Marshals Service, and Office of the U.S. Attorney for the Eastern District of New York arrested one Paul Dorleans for engaging in unlicensed speech in violation of Section 301 of the Communications Act, 47 U.S.C. § 301.
Dorleans broadcast speech in the FM band without an FCC license. The FCC stated in a release [PDF] that Dorleans "may be subject to criminal sanctions, including fines and imprisonment ($100,000 and up to one year)." (Parentheses in original.)
The Supreme Court does not extend the same level of First Amendment protection to broadcast speakers that it does to child pormographers. Contrast, for example, National Broadcasting Company v. United States, 319 U.S. 190 (1943) and Red Lion v. FCC, 395 U.S. 367 (1969), upholding the Communications Act against First Amendment challenges, to Ashcroft v. FSC (S.C.U.S., April 16, 2002), overturning part of the Child Pormography Prevention Act of 1996 on First Amendment grounds.
FCC Cross Ownership Rules and the Internet
4/16. The Media Access Project (MAP) submitted a comment [21 pages in PDF] to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rule Making (NPRM) regarding media cross ownership rules, and the appropriateness of either retaining or eliminating entirely the newspaper broadcast cross ownership rule." The comment addresses, in part, the role of Internet media.
MAP's comment states that "There is no evidence to indicate that the Internet and cable pose a competitive threat to independently produced local news and public affairs content. National cable channels (e.g., ESPN and CNN) and Internet services (e.g., MSN and Slate) compete for audiences for non-local content and non-local advertising dollars. At the local level, the Internet and cable mainly function as delivery systems for existing suppliers of local content."
The comment was written by Andrew Calabrese of the University of Colorado at Boulder. This is MM Docket No. 01-235.
People and Appointments
4/16. Marlene Dortch has been named Secretary of the Federal Communications Commission (FCC), effective April 18, 2002. See, FCC release [PDF].
More News
4/9. A grand jury of the U.S. District Court (NDCal) returned an indictment against Tse Thow Sun, alleging one count of theft of trade secrets in violation of 18 U.S.C. § 1832 and one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314. The government alleges that Defendant Sun contacted the President of Language Line Services in Monterey, California, in March, 2002, and offered to sell to him proprietary information of Language Line Service's chief competitor, Online Interpreters. The government further alleges that it set up a sting operation at which Sun exchanged trade secrets for money. See, CCIPS release.
4/16. The U.S. Court of Appeals (3rdCir) issued its opinion in USA v. $734,578.82, a case involving a forfeiture of funds seized from an offshore illegal gambling operation. The District Court granted summary judgment to the government, pursuant to 18 U.S.C. § 1955, and issued a civil order of forfeiture. The Appeals Court affirmed.
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Wednesday, April 17
The House will meet at 10:00 AM for legislative business.
9:00 AM. Oral argument on cross motions for summary judgment in Swedenburg v. Kelly, a constitutional challenge by a Virginia winery and wine consumers to New York State's liquor control law, which prohibits out of state wineries from selling directly to New York residents, including via the Internet. Location: U.S. District Court, New York, NY.
9:30 AM - 12:00 NOON. The U.S. International Telecommunication Advisory Committee, which advises the State Department on policy and technical issues regarding the International Telecommunication Union, will meet to prepare for the June 2002 meeting of the Telecommunication Sector Advisory Group. Location: Alliance for Telecommunications Industry Solutions, 1200 G St. NW, Suite 350.
10:00 AM. The House Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2003 for the SEC. Location: Room H-309, The Capitol.
10:00 AM. The FEC will hold a hearing regarding proposed voluntary standards for computerized voting systems. See, witness list, and notice in Federal Register.
12:15 PM. The FCBA's Mass Media Committee will host a brown bag lunch. The speaker will be Jane Mago, FCC General Counsel. RSVP to: kdole @npr.org. Location: 1st Floor, NPR, 635 Mass Ave., NW.
12:15 PM. The FCBA's Online Communications Committee will host a brown bag lunch. The speaker will be Scott Marcus, Senior Advisor for Internet Technology at the Federal Communications Commission's (FCC) Office of Plans and Policy. The title will be "Broadband, When? -- A View from OPP". RSVP to Scott Harris at sharris @harriswiltshire.com. Location: Wiley Rein & Fielding, 1776 K St., NW, 4th Floor Conference Room.
2:00 PM. The House Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the proposed budget for FY 2003 for the FCC. Location: Room H-309, The Capitol.
2:00 - 3:00 PM. The FCBA's International Practice Committee will host an event titled "Today's International Issues". The speaker will be FCC Commissioner Michael Copps. RSVP to Scott Harris. Location: FCC, 445 12th Street, SW.
Thursday, April 18
The House will meet at 10:00 AM for legislative business.
8:30 AM. Rep. Joe Knollenberg (R-MI) will speak at a breakfast hosted by the Greater Washington Board of Trade's Federal PAC and CapNet. RSVP to either JaimeHjort @bot.org or 202 857-5909. Location: Greater Washington Board of Trade Board Building, 1129 20th St., NW, Suite 200.
8:30 AM - 4:00 PM. The Progress and Freedom Foundation will host a conference titled "Digital Online Content: Creating a Market that Works". James Rogan, Undersecretary of Commerce for Intellectual Property, will give the opening keynote address at 9:00 AM. The first panel, at 9:45 AM, is titled "The Emerging Market for Online Music". The second panel, at 11:00 AM, is titled "The Digital Challenge to Intellectual Property Rights". Rep. Bob Goodlatte (R-VA) will give a luncheon address at 12:15 PM. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave, NW.
9:30 AM. The FCC will hold a meeting. See, agenda. Location: FCC, 445 12th Street, SW, Room TW-C05.
9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a pair of panel discussions titled "Gene Related Inventions: Evolving Patent Standards and Their Consequences". The first panel will address "Science, Economics, and Patent Law". The panelists will be Lee Bendekgey (Incyte Genomics), Iain Cockburn (Boston University), and Rochelle Seide (Baker Botts). The second panel will be titled "Perspectives from the Patents and Trademark Office and Capitol Hill". The panelists will be John Doll (USPTO), Chris Katopis (House CIIP Subcommittee), Maureen Mellody (office of Rep. Howard Berman (D-CA)), and Gerald Mossinghoff (Oblon Spivak). See, agenda and online registration page. Location: 12th Floor, AEI, 1150 17th Street, NW.
10:00 AM. The House Judiciary Committee will meet to mark up many bills, including HR 3482, the Cyber Security Enhancement Act of 2001, and HR 3215, the Combatting Illegal Gambling Reform and Modernization Act. Location: Room 2141, Rayburn Building.
10:00 AM. The Senate Judiciary Committee has scheduled a business meeting. The agenda includes a vote on several pending judicial nominations, including that of Jeffrey Howard to be a Judge of the U.S. Court of Appeals (1stCir). The agenda also includes consideration of S 2031, the Intellectual Property Protection Restoration Act of 2002, a bill to prevent states from recovering damages for infringement of state owned IPR, unless they have first waived their 11th Amendment sovereign immunity from suits against them for their infringement of the IPR of others. Location: Room 226, Dirksen Building.
Day one of a two day ALI-ABA course for inside and outside counsel titled "Trademarks, Copyrights, and Unfair Competition for the General Practitioner and the Corporate Counsel". The price to attend is $685. See, online brochure. Location: Loews L'Enfant Plaza.
Day one of a two day conference titled "IT Law and the Response to Terror: New Laws, Rules and Strategies". The event is hosted by the Computer Law Association and the FCBA. See, online brochure [PDF]. Location: Monarch Hotel, 2401 M Street NW.
Friday, April 19
The House will not be in session.
9:00 AM - 5:15 PM. The George Washington University Law School (GWULS) will host an event titled Symposium on Patents and Standard Setting. See, agenda in GWULS web site. Registration is required. For more information, contact Martin Adelman at madelman @main.nlc.gwu.edu. Location: GWULS, Moot Court Room, 2000 H St., NW.
12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host an event titled "Privacy Online: A Report on the Internet Practices and Policies of Commercial Websites". The speakers will include FTC Commissioner Orson Swindle, Paul Misener (Amazon), David Klaus (Privacy Leadership Initiative), and Peter Ford (Australian Attorney General's Dept.). See, PFF notice. Location: Room B369, Rayburn Building.
2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Freeing the Chinese Internet". The speakers will be Arthur Waldron (AEI), Paul Baranowski (Peekabooty Project), Ethan Gutmann (PNAC), and Greg Walton (Human Rights in China). See, online registration page. Location: AEI, 12th floor, 1150 17th St., NW.
Day two of a two day ALI-ABA course for inside and outside counsel titled "Trademarks, Copyrights, and Unfair Competition for the General Practitioner and the Corporate Counsel". The price to attend is $685. See, online brochure. Location: Loews L'Enfant Plaza.
Day two of a two day conference titled "IT Law and the Response to Terror: New Laws, Rules and Strategies". The event is hosted by the Computer Law Association and the FCBA. See, online brochure [PDF]. Location: Monarch Hotel, 2401 M Street NW.
Deadline to submit reply comments to the FCC regarding its annual report to Congress regarding progress made in achieving the objectives of the ORBIT Act, 47 U.S.C. § 646. The next FCC Orbit Act report is due to Congress on June 15, 2002. See, FCC notice [PDF].
Deadline to register to attend the "Copyright Conference" hosted by the USPTO, the purpose of which is to "discuss current domestic and international issues vital to the development of e-commerce with members of the business and intellectual property communities." See, USPTO notice. Registration is required.
Monday, April 22
Day one of a three day conference of the Electronics Industry Alliance (EIA). See, agenda [MS Word]. Location: Grand Hyatt Hotel.
12:00 NOON - 2:00 PM. Sen. John Breaux (D-LA) will speak at a luncheon at the spring convention of the Electronics Industry Alliance (EIA). Location: Grand Hyatt Hotel.
Extended deadline to file reply comments with the FCC in response to its notice of proposed rulemaking (NPRM) regarding the appropriate regulatory requirements for incumbent local exchange carriers' provision of broadband telecommunications services. See, notice in Federal Register and Order [PDF] extending deadline from April 1 to 22.
Tuesday, April 23
Day two of a three day conference of the Electronics Industry Alliance (EIA). See, agenda [MS Word]. Location: Grand Hyatt Hotel.
9:30 - 11:30 AM. The American Enterprise Institute (AEI) will host a lecture by Jerry Hausman of MIT titled From 2G to 3G: Wireless Competition for Internet Related Services. See, program summary and online registration page. Location: Twelfth Floor, AEI, 1150 Seventeenth Street, NW.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Saga Broadcasting Corp v. FCC, No. 01-1249. Judges Ginsburg, Sentelle and Henderson will preside. Location: 333 Constitution Ave. NW.
10:00 AM. The House Appropriations Committee's CJS Subcommittee will hold a hearing on the FY 2003 budget for the USPTO. Location: George Washington Univ., Loudoun Campus.
12:00 NOON - 2:00 PM. General Richard Myers, Chairman of the Joint Chiefs of Staff, will speak on contributions that the electronics industry has made to military preparedness at a luncheon at the spring convention of the Electronics Industry Alliance (EIA). Location: Grand Hyatt Hotel.
2:30 PM. The Senate Judiciary Committee's Subcommittee on Antitrust, Competition, and Business and Consumer Rights will hold a hearing titled Cable Competition and the ATT Comcast Merger. Sen. Herb Kohl (D-WI) will preside. This hearing had originally been scheduled for April 10. Location: Room 226, Dirksen Building.
7:00 - 10:00 PM. Tom Ridge, Director of the Office of Homeland Security, will speak at a dinner at the spring convention of the Electronics Industry Alliance (EIA). Location: Grand Hyatt Hotel.