Tech Law Journal Daily E-Mail Alert
April 26, 2002, 9:00 AM ET, Alert No. 419.
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Senate Commerce Committee Holds Hearing on Privacy Legislation
4/25. The Senate Commerce Committee held a hearing on S 2201, the Online Personal Privacy Act, sponsored by Sen. Ernest Hollings (D-SC). See, opening statement of Sen. Hollings. See, also prepared testimony of witnesses: Barbara Lawler (Hewlett Packard), Marc Rotenberg (Electronic Privacy Information Center), Paul Misener (, Frank Torres (Consumers Union), and John Dugan (Financial Services Coordinating Council).
Rep. Barr Introduces Government Agency Privacy Bill
4/24. Rep. Bob Barr (R-GA) and others introduced HR 4561, the Federal Agency Protection of Privacy Act, a bill that would require federal agencies to include a privacy impact analysis with proposed regulations that are circulated for public notice and comment.
The bill was referred to the House Judiciary Committee. The Committee's Subcommittee on Commercial and Administrative Law, which Rep. Barr chairs, may hold a hearing on the bill as early as next week.
The bill would require federal agencies, after notice and public comment, to include a privacy impact analysis that describes the steps that were taken to minimize the significant privacy impact of proposed regulations and that justifies the alternative with respect to privacy that was chosen by the agency. The bill would also provide for judicial review.
Rep. Barr stated in a release that "All Americans deserve to know how new rules or regulations passed by the government will affect their right to privacy. From medical records to surveillance cameras, and from government snooping on the Internet to recent calls for a national ID, we are seeing firsthand, each day, the importance of guarding our right to privacy. This is good government legislation to reform the regulatory process, and make government more accountable to the people."
Jim Harper, Editor of, stated in a release that "Agencies like the IRS, Social Security Administration, Centers for Medicare & Medicaid Services, Department of Education, and Veterans Administration use massive amounts of personal information without permission. When these practices are revealed, Americans will be more able to decide whether they want to pay the cost in lost privacy of government programs." He added, "Expect the federal bureaucracy to howl at this proposal."
The bill's original cosponsors span the political spectrum: Rep. Steve Chabot (R-OH), Rep. Mel Watt (D-NC), Rep. George Gekas (R-PA), Rep. Jerrold Nadler (D-NY), Rep. Mark Green (R-WI), and Rep. Ronnie Shows (D-MS).
Senate Judiciary Committee Holds Hearing on Judicial Nominees
4/25. The Senate Judiciary Committee held a hearing on six judicial nominees: Julia Gibbons (to be a judge of the U.S. Court of Appeals for the Sixth Circuit), Leonard Davis (U.S.D.C., Eastern District of Texas), David Godbey (U.S.D.C., Northern District of Texas), Andrew Hanen (U.S.D.C., Southern District of Texas), Samuel Mays (U.S.D.C., Western District of Tennessee), and Thomas Rose (U.S.D.C., Southern District of Ohio). Sen. John Edwards (D-NC) presided over this noncontroversial hearing.
Gibbons has been a Judge of the U.S. District Court (WDTenn) since 1983. She would fill one of the vacancies on the U.S. Court of Appeals (6thCir), where half of the seats are currently vacant. Among her recent notable cases is In Re SCB Computer Technology Securities Litigation, which arose out of SCB's restatement of its consolidated financial statements for fiscal 1998 and 1999 and the first three quarters of fiscal 2000. Judge Gibbons dismissed several consolidated securities fraud cases, with prejudice, based upon her application of the heightened pleading requirements of the Private Securities Litigation Reform Act (PSLRA). The parties settled while an appeal was pending. See, D.C. No. 00-2343, 2001 WL 648929 (February 15, 2001).
Godbey, who is currently a Texas state trial judge in Dallas, previously was a partner in the law firm of Hughes & Luce. Hanen is the lead partner in the law firm of Hanen Alexander; he was previously a partner in Andrews and Kurth. Davis is currently a state appeals court judge in Texas; he previously had a litigation practice in Tyler, Texas. Mays is currently a partner in the law firm of Baker Donelson in Memphis, Tennessee.
Rose is currently a state trial court judge in Ohio. Before that, he was a partner in the law firm of DeWine and Rose. Sen. Mike DeWine (R-OH), who is now a member of the Senate Judiciary Committee, supports his nomination.
Senate Judiciary Committee Postpones Consideration of Bills
4/25. The Senate Judiciary Committee held an executive business meeting. The agenda had included mark up of several technology, intellectual property and privacy related bills, including S 2031, the Intellectual Property Protection Restoration Act of 2002, S 848, the Social Security Number Misuse Prevention Act of 2001, and S 1742, the Restore Your Identity Act of 2001. However, all three bills were held over.
DOJ Recommends Approval of Verizon's Maine Long Distance Request
4/25. The Department of Justice's (DOJ) Antitrust Division released its evaluation recommending that the Federal Communications Commission (FCC) approve Verizon's Section 271 application to provide in region interLATA service in the state of Maine.
Charles James, Assistant Attorney General in charge of the Antitrust Division, stated in a release that "Conditions in Maine local telecommunications markets now appear favorable to fostering competition, ... Competitors have made progress in penetrating the business market in Maine, and the Department believes there are no material obstacles to residential competition in Maine created by Verizon." Verizon's Associate General Counsel Sarah Deutsch stated in a release that "We are confident that the FCC will also grant approval of our long-distance application for Maine."
Commerce Department Official Addresses Cyber Security
4/23. Under Secretary of Commerce Kenneth Juster gave a speech at a conference at Princeton University that was held to share information and identify best practices for critical infrastructure assurance and homeland security at the community level. Juster addressed cyber security.
"Critical infrastructure assurance is an essential element of our overall approach to homeland security." Juster said that "critical infrastructures refer to those industries, institutions, and distribution networks that provide a continual flow of goods and services essential to the nation’s defense and economic security, the functioning of its government, and the welfare of its citizens."
He stated that "as a result of advances in information and communications technology, there is a threat to critical infrastructures that goes beyond that of physical attacks. Each of the infrastructure sectors increasingly relies on shared information systems and networks for its operations. The very information systems and networks that facilitate commerce also leave us increasingly vulnerable to a new type of threat -- that of cyber attacks. And the interconnected nature of our infrastructure sectors significantly magnifies the consequences of service disruptions. Disturbances originating locally or in one sector are more likely than ever before to cascade regionally or nationally and affect multiple sectors of the economy."
Juster addressed what the government role should be. He said that "Our preferred approach is to promote market rather than regulatory solutions in managing the risks posed to critical infrastructures."
He elaborated that "Securing critical infrastructure must therefore become as integral a part of a company's strategic planning and operations as is marketing or product development. Companies must institutionalize the process of identifying critical assets, assessing their vulnerabilities, and managing the risks associated with these vulnerabilities. Security -- including cyber security -- is now essential to business assurance and continuity. Corporate America cannot outsource this function to federal, state, or local government. And regulation cannot ensure proper implementation of cyber security within complex organizations. In the final analysis, only with the major contribution coming from the private sector can we secure the national economy from the threat of massive cyber based attacks."
Finally, he stated that "One of the biggest challenges facing government and industry is not only securing our critical assets, but working together to manage public and market expectations so that terrorist attacks that may temporarily damage our infrastructures do not result in widespread disengagement from economic activity. In my view, it is this disengagement, as much as – or perhaps more than – the actual destruction of economic assets, that poses the greatest risk to our national economic security. Economic security, ultimately, is not about eliminating the risk of terrorism, but about maintaining an orderly functioning national economy notwithstanding terrorist attacks."
Juster is Under Secretary of Commerce for the Bureau of Industry and Security (BIAS), which until recently was named the Bureau of Export Administration (BXA). His speech was titled "Economic Security and Community Leadership". The conference was titled "Critical Infrastructures: Working Together in a New World". It was hosted by Princeton University and the National Institute of Justice.
Senate Subcommittee Holds Hearing on Cyber Security Bills
4/24. The Senate Commerce Committee's Subcommittee on Science, Technology, and Space held a hearing on S 2037, a bill providing for the establishment of a national emergency technology guard, and S 2182, the Cyber Security Research and Development Act, a bill to authorize funding for computer and network security research and development and research fellowship programs.
Both bills are sponsored by Sen. Ron Wyden (D-OR) and supported by Sen. George Allen (R-VA), another member of the Subcommittee. S 2182 is the Senate version of HR 3394, sponsored by Rep. Sherwood Boehlert (R-NY), which passed the House by a vote of 400 to 12 on February 7.
Rep. Boehlert testified at the hearing that the Bush Administration has already announced its support for HR 3394 and S 2182. Sen. Wyden stated at the hearing that he spoke with Office of Management and Budget (OMB) Director Mitch Daniels on the morning of the hearing, and looked forward to working with the Administration on S 2037. Sen. Wyden also said that he hopes that both bills will be marked up by the Senate Commerce Committee on May 16.
Sen. John Edwards (D-NC), another member of the Subcommittee, also participated in the hearing. He is the sponsor of his own cyber security bills: S 1900, the Cyberterrorism Preparedness Act of 2002, and S 1901, the Cybersecurity Research and Education Act of 2002. S 1900 would authorize the appropriation of $70 Million in FY 2003 for grants to be administered by the National Institute of Standards and Technology (NIST) "to support the development of appropriate cyber security best practices, support long term cyber security research and development, and perform functions relating to such activities." S 1901 would authorize appropriations for a cyber security graduate fellowship program, and other educational programs.
Sen. Wyden suggested that there is much common ground and that he will work with Sen. Edwards prior to the planned May 16 mark up.
Hearing Addresses Cyber Security Research and Education
4/24. The Senate Commerce Committee's Subcommittee on Science, Technology, and Space discussed and heard testimony on S 2182 and HR 3394, the Cyber Security Research and Development Act, at its April 24 hearing.
Sen. Ron Wyden (D-OR) stated that the bill "seeks to build a foundation of basic cyber security research and grow the ranks of scholars who can devise innovative security defenses in years to come. Since basic research is the soil out of which future cyber security advances will grow, I believe the government should support it. This legislation does so with a series of grants through the [NIST and NSF]. The awards are designed to encourage cutting edge research today, and to call more of this nation's brightest scientific minds to study this problem for the future."
Sen. John Edwards (D-NC) stated that there are three principles that should guide the Congress. First, it should promote cyber security best practices, and require government agencies and government contractors to adopt these. Second, grant making authority should be moved outside of the government to a non profit consortium. Third, the government should support academic expertise in cyber security.
Rep. Sherwood Boehlert (R-NY) testified that "the nation invests a pitifully small amount in cyber security research, and that's true of both government and industry funding. Government underinvests, in part, because no single agency has responsibility for the problem, and industry underinvests because the market has generally not put a high value on security, compared with speed, price and other attributes of software."
He also said the "as a result of the minimal investment, few top researchers are engaged in cyber security research and few students are attracted to the field. Third, as a result of that minimal focus, our basic approach to cyber security hasn't changed in decades, even though it is known to be riddled with holes." See, prepared testimony.
Industry, academic, and government witnesses who testified offered their support for the proposal. See, prepared statements of George Strawn (National Science Foundation), Ronil Hira (Institute of Electrical and Electronics Engineers), Lance Hoffman (George Washington University), Jeffrey Logan (M/A-COM), and Wyatt Starnes (Tripwire).
George Strawn of the NSF stated that there is a "need for cyber security R&D". He added that "Early research and development work on the Internet, as with many IT developments of the past, focused on ``making it work´´, not necessarily on making it secure. And because cyber security is a systems property, trying to add it on as an afterthought is very problematic. It would be much better to recreate IT systems with cyber security as a major design criteria than to attempt to patch it in after the fact."
Strawn continued that "A major problem in developing a robust cyber security research and development program is that the number of faculty members doing research in cyber security has been quite small. This is perhaps the most important problem to be solved as we seek to increase the amount of long term fundamental research in cyber security."
Summary of HR 3394 and S 2182. These companion bills would authorize appropriations for a variety of research and education projects. The bills contain new or additional funding for five National Science Foundation (NSF) programs. They would authorize appropriations of $233 Million over 5 years to the NSF to make "network security research grants". They would authorize $144 Million over 5 years to the NSF to award to universities "to establish multi disciplinary Centers for Computer and Network Security Research." These programs would fund research regarding "authentication and cryptography; ... computer forensics and intrusion detection; ... reliability of computer and network applications, middleware, operating systems, and communications infrastructure; and ...privacy and confidentiality."
The bills would also authorize funding to be administered by the NSF for training undergraduate university students ($95 Million), community college students ($6 Million), and doctoral students ($90 Million) in cyber security fields.
The bills also authorize funding for programs at the National Institute of Standards and Technology (NIST). One item authorizes $275 Million for NIST to assist universities that partner with for profit entities in long term, high risk, cyber security research. Another item authorizes $32 Million for in house research at NIST.
DMCA. Lance Hoffman, a professor in the Computer Science Department at The George Washington University, added that "I encourage you to re-examine laws that prohibit or restrict computing technology instead of undesirable behavior. DMCA like restrictions have the potential to cripple the very security advancements that S 2037 and S 2182 are intended to advance." Sen. Wyden responded, "I believe the DMCA proposals may be a little bit too much."
Senate Hearing Addresses Net Guard Bill
4/24. The Senate Commerce Committee's Subcommittee on Science, Technology, and Space discussed and heard testimony on S 2037, the Science and Technology Emergency Mobilization Act.
Sen. Wyden stated that the bill "seeks to provide an organizational structure to quickly locate and mobilize private sector science and technology expertise in times of crisis." Sen. George Allen (R-VA) stated that the NET Guard "can play a major role in preventing many of the problems that occurred during the September 11 attacks." He added that the NET Guard would tap into "a great depth and reservoir of good will."
Rep. Sherwood Boehlert (R-NY) stated that he supports this bill and "We're working on introducing it in the House."
Industry and academic witnesses testified in support of the bill, but also offered suggestions for changes.
Wyden stated that "Technology companies and individual experts can become NET Guard volunteers simply by agreeing to become part of a national database." Lance Hoffman of George Washington University testified that there should also be "background checks". Wyatt Starnes of Tripwire stated that without checks, persons with malicious intent could become a part of program, thus introducing new vulnerabilities.
Ronil Hira of the Institute of Electrical and Electronics Engineers offered some skepticism about the use of volunteers. He testified that "communication and other technological systems can be extremely complicated, requiring not only general knowledge of the technical factors but also specific knowledge of the system under stress. This may only be available in the company and its vendors that installed the system originally. Furthermore, if a local government has a sound disaster recovery program, it may not be feasible, and may be counter productive, to attempt to bring in teams that have not been integrated into the established order."
George Strawn of the NSF said that the administration has no position on this bill.
Friday, April 26
The House will not be in session.
9:00 AM - 5:30 PM. Day two of a two day 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 closes on April 19. Location: The Academy for Educational Development Conference Center, 1825 Connecticut Ave., NW, 8th Floor.
10:00 AM. The FCC's Technology Advisory Council will hold a meeting. See, FCC notice and notice in Federal Register. Location: Commission Meeting Room, FCC, 445 12th St., SW.
10:00 AM. FTC Chairman Timothy Muris will participate in a roundtable discussion at the ABA 2002 Annual Antitrust Spring Meeting. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW.
12:00 NOON. The Cato Institute will host a briefing titled Financial Privacy and the War on Terrorism. The speakers will be David Burton (Prosperity Institute), Bradley Jansen (Free Congress Foundation), and Veronique de Rugy (Cato). Lunch will follow. See, agenda and online registration page. Location: Room B-369, Rayburn Building.
12:00 NOON - 2:00 PM. FCC Commissioner Kathleen Abernathy will address the American Woman in Radio & Television Awards Luncheon. For more information, contact Sallie Gitlitz at 202 337-4684. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor.
3:00 - 5:00 PM. FCC Commissioner Kathleen Abernathy will address a Women's Bar Association Tea. Location: Mayflower Hotel.
Extended deadline to submit reply comments to the Copyright Office in response to its Notice of Proposed Rulemaking on "the requirements for giving copyright owners reasonable notice of the use of their works for sound recordings under statutory license and for how records of such use shall be kept and made available to copyright owners." See, original notice in Federal Register, and extension notice in Federal Register. 
Monday, April 29
The Supreme Court will go on recess until May 13.
10:00 - 11:30 AM. The FCC's Office of Engineering and Technology (OET) will hold a tutorial titled Security of Wireless Networks. David Wagner, Assistant Professor in the Computer Science Division at the University of California at Berkeley, will discuss security issues associated with 802.11 wireless networks. See, FCC release.
12:15 PM. The FCBA's Cable Practice Committee will host a luncheon. Rick Chessen, head of FCC's DTV Transition Task Force, will discuss Chairman Powell's proposal for accelerating the transition to digital television. The price to attend is $15. RSVP to wendy Location: Mintz Levin, 9th Floor, 701 Pennsylvania Avenue, NW.
Tuesday, April 30
The U.S. Chamber of Commerce will host an event titled Beyond Broadband: Policy and Business Strategies for Next Generation Applications and Services. FCC Chairman Michael Powell will give the keynote luncheon address. The price to attend ranges from $275 to $500. For more information, contact Liza Ratana at 202 463-5500.
Deadline to submit reply comments to the FCC in response to its notice of proposed rulemaking regarding its unbundling analysis under § 251 of the Communications Act and the identification of specific unbundling requirements for incumbent local exchange carriers. See, notice in the Federal Register.
Deadline to submit requests to the USPTO's to speak at its May 16 public hearing on its proposed plan to eliminate the paper patent and trademark registration collections from its public search facilities, and to transition to electronic patent and trademark information collections. The USPTO is seeking public comment on issues related to this proposed plan. The USPTO is also seeking input on whether any governmental entity or non-profit organization is interested in acquiring the paper patent and trademark registration collections to be removed from the USPTO's public search facilities. See, notice in Federal Register.
Wednesday, May 1
10:00 AM. The House Commerce Committee's Subcommittee on Oversight and Investigations will hold a hearing on titled "Oversight and Management of the Government Purchase Card Program". Location: Room 2322, Rayburn Building.
11:00 AM. The Cato Institute will host a panel discussion titled A Progress Report on the HDTV Transition. The scheduled speakers are Mark Cuban (HDNet), Thomas Hazlett (Manhattan Institute), Rick Chessen (FCC), David Donovan (Association for Maximum Service Television), Michael Calabrese (New America Foundation), and Richard Wiley (Wiley Rein and Fielding). See, agenda and online registration page. Location: 1000 Massachusetts Avenue, NW.
12:00 PM. The FCBA will host a luncheon. The speaker will be Charlie Ergen, Ch/CEO of Echostar. The price is $45 for FCBA members, $35 for government and student members, and $55 for non-members. There will be a reception at 12:00 NOON. The luncheon will begin at 12:30 PM. RSVP to Wendy Parish at wendy by Friday, April 26. Location: Capital Hilton, 16th & K Streets.
Deadline to submit comments to the USTR regarding U.S. negotiating objectives and the work program launched at the Fourth Ministerial Conference of the WTO in November at Doha. See, USTR release and notice in the Federal Register.
Extended deadline for submitting comments to the Treasury Department regarding its study of information sharing practices among financial institutions and their affiliates. See, notice in Federal Register.
Thursday, May 2
8:30 - 10:00 AM. The American Enterprise Institute (AEI) will host a press breakfast titled "Telecommunications and Media Issues" with former FCC Commissioner Harold Furchtgott- Roth and other AEI scholars. RSVP to Veronique Rodman at 202 862-4871 or vrodman Location: AEI, 1150 17th Street, NW, 11th Floor Conference Room.
9:00 AM - 12:00 NOON. The Antitrust Division of the Department of Justice and the FTC will hold another in their series of hearings on antitrust and intellectual property. This hearing is titled "Patent Settlements: Efficiencies and Competitive Concerns". See, agenda. Location: Room 432, FTC, 600 Pennsylvania Ave., NW.
9:30 AM - 12:30 PM. The NIST will hold a proposers' conference for its Advanced Technology Program (ATP). See, notice in Federal Register. Location: Gaithersburg Hilton, 620 Perry Parkway, Gaithersburg, MD.
People and Appointments
4/25. President Bush announced his intent to nominate Roel Campos and Harvey Goldschmid to be Commissioners of the Securities and Exchange Commission (SEC). Campos is currently the SVP and General Counsel of El Dorado Communications in Houston, Texas. From 1989 to 1995, he practiced law with the law firms of Richman Lawrence and Rudin Appel & Rosenfeld. Goldschmid has been a law professor at Columbia University since 1970. He is a joint author of the law school text titled Trade Regulation: Case and Materials. In 1998 and 1999 he was General Counsel of the SEC. Both would fill Democratic positions on the SEC. See, White House release.
4/25. President Bush nominated Richard Russell to be an Associate Director of the Office of Science and Technology Policy. See, White House release.
More News
4/25. The Securities and Exchange Commission (SEC) announced that it "has commenced a formal inquiry into market practices concerning research analysts and the potential conflicts that can arise from the relationship between research and investment banking." See, SEC release.
4/25. The U.S. Patent and Trademark Office (USPTO) held the first day of a two day Copyright Conference. See, opening remarks of USPTO Director James Rogan.
4/25. A group of competitive telecom and broadband service providers wrote a letter [PDF] to President Bush regarding broadband policy and the Federal Communications Commission (FCC). They wrote that the FCC "is now considering adopting one sided policies that could squelch competition among local broadband providers and recreate a monopoly for broadband services. The proposals could deny competitors the opportunity to interconnect with the Bell Company networks." They urged the President "to refrain from picking broadband winners and losers and changing the framework for broadband competition in the middle of the game. Instead, we encourage you to focus on the demand side of the equation while letting us compete fairly in the broadband marketplace under the existing policies."
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