|House Committees Approve
Bill to Create Department of Homeland Security
|7/10. Five House Committees with jurisdiction over HR 5005,
the Homeland Security Act of 2002, marked up the bill on
Wednesday, July 10, making minor changes.
International Relations Committee amended and approved the
bill by voice vote. The House
Armed Services Committee amended and approved the bill by
voice vote. The House
Science Committee amended and approved the bill by voice
vote. The House
Judiciary Committee amended and approved the bill by voice
vote. The House Ways
and Means Committee amended and approved by a vote of 34
The House Science Committee (HSC), which has jurisdiction over
the National Institute of
Standards and Technology (NIST), amended the bill to block
the transfer of NIST's Computer
Security Division (CSD) to the new Department of Homeland
Security (DHS). The Computer
& Communications Industry Association (CCIA) and
Members of Congress who are active on technology issues had
opposed the move. See, related stories, below.
In addition, the House Science Committee voted to create a
separate Undersecretary for Science and Technology in the new
DHS. See, HSC
More Committees are scheduled to mark up the bill on Thursday,
July 11. Also, the Select
Committee on Homeland Security, chaired by House Majority
Leader Dick Armey
(R-TX), is scheduled to hold a hearing on July 11 at 10:00 AM,
with top administration officials testifying. The full House
is scheduled to take up the bill during the week of July 22.
|16 Representatives Oppose
Transfer of NIST Computer Security Division
|7/10. Rep. Bob
Goodlatte (R-VA), Rep.
Rick Boucher (D-VA), and other Members of Congress wrote a
letter to Rep.
Sherwood Boehlert (R-NY), the Chairman of the House Science Committee,
opposing the provision in HR 5005 that would move the
NIST's Computer Security
Division (CSD) to the Department of Homeland Security.
The letter states that "While we support the
Administration's efforts to make our country more secure in
the face of terrorist threats, we are concerned that this
provision, found in Section 202 of the President's proposal,
would unravel years of collaboration between the CSD and the
private sector to enhance the level of confidence in computer
security practices. We are concerned that this reduced
collaboration would be counterproductive to the
Administration's goals by reducing confidence in American made
IT systems thereby making our critical infrastructure more
vulnerable to terrorist attack."
Fourteen other Representatives also signed the letter,
including Rep. Zoe
Lofgren (D-CA), Rep.
Anna Eshoo (D-CA), Rep. Tom Davis
(R-VA), Rep. Jim Moran
(D-VA), Rep. Ileana Ros-Lehtiten (R-FL), Rep. Barney Frank
(D-MA), Rep. Lamar Smith (R-TX), Rep. Steve Horn (R-CA), Rep.
Gerry Weller (R-IL), and Rep. Pete Sessions (R-TX).
|CCIA Opposes Transfer of
CSD to DHS
|7/10. Ed Black, P/CEO of the Computer & Communications
Industry Association (CCIA), wrote a letter
[2 pages in PDF] to Rep.
Sherwood Boehlert (R-NY), the Chairman of the House Science Committee,
and other Members of Congress, in which he stated that the Computer Security Division at
the NIST should not be transferred to the Department of
Homeland Security, pursuant to HR 5005,
the Homeland Security Act of 2002.
He wrote that "fundamental liberties will be at risk if
we are too zealous in our pursuit of wrongdoers. We must avoid
departmental incentives that compromise core agency missions
or, worse, traditional democratic values. We believe the
proposed transfer of the Computer Security Division from the
National Institute of Standards and Technology (NIST) to the
proposed Department of Homeland Security is one such action,
and one we strongly urge you to oppose. Such a transfer would
transform NIST from a civilian agency known for assisting the
private sector into one in which law enforcement and national
security concerns are dominant."
He also wrote that the "NIST has distinguished itself
through its expertise in cryptography: the creation of codes
crucial to safeguarding business, government and personal
assets from unauthorized access." However, he continued
that the National Security
Agency and the FBI have
compromised the work of the NIST in the past through such
initiatives as the Clipper Chip and key recovery.
Black concluded that "law enforcement and national
security sectors have a checkered past with regard to NIST and
computer security. Their interference in NIST's mission has
repeatedly compromised the private sector's confidence in the
Institute and seems certain to do so in the future if
repeated. We believe the last thing our nation needs now is a
reprise of debates that were long ago settled."
|Rep. Barcia Introduces NIST
|7/9. By Rep. James
Barcia (D-MI) and 13 other Democrats introduced HR 5074, a
bill to authorize appropriations for the National Institute of Standards
and Technology (NIST) for FY 2003, 2004, and 2005. The
bill was referred to the House Science Committee.
Rep. Barcia wrote in extended remarks submitted for the
Congressional Record that this bill, among other things,
"provides funding for the Advanced Technology Program
and addresses Administration concerns about the program. First
this bill provides a stable funding base for the ATP by
providing sufficient funds to allow for $60.7 million in new
awards to be made in each fiscal year. In addition, the bill
authorizes four policy changes to the ATP that were proposed
by Secretary Evans. The bill makes Secretary's proposed
changes to (1) allow universities to lead joint ventures, (2)
allow universities and non-profit laboratories to be invested
with intellectual property, (3) stress that ATP does not
support product development, and (4) allows for private-sector
experts to participate in the ATP project review
process." See, Cong. Rec., June 9, 2002, at Page E1222.
|ACLU Says Cable Companies
Will Control Access to Content on Internet
|7/10. The American Civil
Liberties Union (ACLU) released a report
[12 pages in PDF] regarding cable modem service providers. The
ACLU report argues that "the existence of the Internet as
a free and neutral civic space could come to an end",
unless the government mandates open access to cable Internet
This ACLU report, in turn, references a much longer report
[2.4 MB in PDF] titled "Technological Analysis of Open
Access and Cable Television Systems", that was
commissioned by the ACLU, and written by the Columbia Telecommunications
The ACLU argues that while most people access the Internet
today with phone modems, most people will soon use cable
modems. The report dismisses DSL service as not being a viable
competitive alternative to cable modem service. It does not
address other prospective broadband technologies. Hence, the
ACLU argues that cable companies will have dominance and
The ACLU further argues that cable companies will use this
power to control access to content. This, in turn, will
restrict free speech. Citing the CTC report, the ACLU argues
that cable "providers can ``slow or block access to
certain sites on the Internet, such as those without financial
arrangements with the cable company’s ISP, or those with
content considered objectionable for political or competitive
reasons,´´ even while they ``speed transmission to an
affiliated site (or a site that has paid the operator for the
privilege of special treatment).´´"
The ACLU adds that "At a time when many cable providers
have assembled far flung business empires on the premise that
cross promotion and other ``synergies´´ will yield big
profits, they will come under strong pressure to do the
equivalent. And what can be done in the commercial context
could be done just as easily to political content."
The National Cable
Telecommunications Association (NCTA) issued a release
in which it stated that "The ACLU offers no evidence
whatsoever to show that the provision by cable operators of
high speed access to the Internet is somehow stifling
development of, or access to, any content on the Internet. All
of the Internet's content is a simple mouse click away for
cable modem users. Moreover, cable modem service has enriched
the Internet experience for millions of households and its
high speed capability has stimulated the development of new,
innovative Internet content that never before existed. The FCC
is currently considering the regulatory status of cable modem
service, and NCTA has filed comments -- and will file reply
comments -- showing at length why regulation of the sort
proposed by the ACLU is inappropriate."
|Federal Circuit Rules on
Public Use and On Sales Bars to Patentability
|7/9. The U.S.
Court of Appeals (FedCir) issued its opinion
[MS Word] in Netscape
v. Konrad, a patent case involving what
constitutes a "public use" and "on sale"
for the purposes of the Section 102 conditions for
patentability. In this case, the holder of patents for systems
that allow a computer user to access and search a database
residing on a remote computer had demonstrated his claimed
invention more than one year before the key patent filing
Background. Allan Konrad is the holder of U.S. Patent
each of which is titled "Remote information service
access system based on a client server service model".
The ’320 patent, Konrad’s first issued patent, is a
continuation of an application filed on January 8, 1993. The
’901 patent is a continuation of the ’444 patent
application, which is a continuation of the ’320 patent
application. Hence, the earliest filing date that Konrad is
entitled to is January 8, 1993. This, in turn, makes January
8, 1992, the critical date for Section 102 analysis.
Konrad's problem is that he engaged in several activities
prior to this date. First, he demonstrated the claimed
invention to two University of California computing personnel,
without imposing any obligation of confidentiality. Second, he
demonstrated the high energy physics remote database object to
the Stanford Linear Accelerator Center, again, without a
confidentiality condition. Third, he offered to create the
high energy physics remote database object system for the
University Research Association Superconducting Super Collider
Laboratory in exchange for four months full time employment or
no more than $48,000.
Statute. 35 U.S.C.
§ 102 provides, in part, that "A person shall be
entitled to a patent unless ... (b) the invention was patented
or described in a printed publication in this or a foreign
country or in public use or on sale in this country, more than
one year prior to the date of the application for patent in
the United States".
District Court. Netscape filed a complaint in U.S. District Court (NDCal)
against Konrad seeking judgment of invalidity, noninfringement,
and unenforceability. The District Court held that the three
patents are invalid under the public use and on-sale bars of
35 U.S.C. § 102(b).
Appeals Court. The Appeals Court affirmed. It first
noted that "Public use includes ``any use of [the
claimed] invention by a person other than the inventor who is
under no limitation, restriction or obligation of secrecy to
the inventor.´´". However, it also noted that "The
law recognizes that an inventor may test his invention in
public without incurring the public use bar. ``Experimental
use negates public use; when proved, it may show that
particular acts, even if apparently public in a colloquial
sense, do not constitute a public use within the meaning of
section 102.´´" (Citations omitted.)
The Court elaborated that the circumstances that the Court
should consider in determining whether there was a public use
include "the nature of the activity that occurred in
public; the public access to and knowledge of the public use;
whether there was any confidentiality obligation imposed on
persons who observed the use; whether persons other than the
inventor performed the testing; the number of tests; the
length of the test period in relation to tests of similar
devices; and whether the inventor received payment for the
The Court held that since Konrad did not make the two
university employees to whom he demonstrated the invention
aware of any confidentiality requirement, this demonstration
constituted a public use. Similarly, the Court held that his
failure to make the demonstration attendees at the Stanford
Linear Accelerator Center aware of any confidentiality
requirement made this event a public use.
Finally, the Court held that his offer to make the high energy
physics remote database object for four months full time
employment or no more than $48,000 constituted a commercial
offer for sale.
|FCC to Hold Spectrum Policy
|7/10. The Federal
Communications Commission's (FCC) Spectrum Policy Task Force
announced that it will hold a series of four public workshop
in August. See, FCC
notice [PDF]. On August 1 it will hold a workshop titled
"Experimental Licenses and Unlicensed Spectrum". On
August 2 , it will hold a workshop titled "Interference
Protection". On August 5, it will hold a workshop titled
"Spectrum Efficiency". On August 9, it will hold a
workshop titled "Spectrum Rights and
Responsibilities". All workshops will be held from 9:00
AM to 3:00 PM in the FCC's Commission Meeting Room, 445 12th
|People and Appointments
|7/10. David Sutphen was named VP and Legislative
Counsel for Governmental Relations at the Recording Industry Association of
America (RIAA). He was previously counsel to Sen. Ted Kennedy (D-MA),
handling intellectual property, antitrust and privacy issues
before the Senate Judiciary Committee. Before that, he was
Chief of Staff for Rep.
Harold Ford (D-TN).
|7/10. President Bush sent a brief memorandum
to the heads of executive departments and agencies that urges
"cross agency teamwork, using E-Government to create more
cost effective and efficient ways to serve citizens."
7/10. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet held a hearing titled "Corporation for
Public Broadcasting Oversight and a Look Into Public
Broadcasting in the Digital Era". See, prepared testimony
of witnesses: Robert
Coonrod (Corporation for Public Broadcasting), Pat
Mitchell (Public Broadcasting Service), Kevin Klose
(National Public Radio), Andrea
Lafferty (Traditional Values Coalition), John
Lawson (Association for Public Television Stations), Michael
Willner (Insight Communications), and Laura
7/10. Qwest Communications
stated in a release
that "it was informed by the U. S. Attorney's office in
Denver yesterday afternoon that it had begun a criminal
investigation of Qwest. The U.S. Attorney’s office did not
disclose the subject matter of the investigation. Qwest plans
to fully cooperate with the U.S. Attorney's office."
7/10. California Governor Gray Davis signed AB
2033, sponsored by Assemblyman Robert Pacheco (R -
Walnut). This bill amends the Evidence Code to allow admission
of certain "nonerasable optical image reproduction or any
other reproduction of a public record by a trusted system, as
defined in Section 12168.7 of the Government Code, if
additions, deletions, or changes to the original document are
not permitted by the technology". The bill further
provides that "This act shall become operative on the
date the Secretary of State adopts uniform standards for
storing and recording permanent and nonpermanent documents in
electronic media, as required by Section 12168.7 of the
7/10. California Governor Gray Davis signed AB
2831, sponsored by Assemblyman Joseph Simitian (D - Palo
Alto), which pertains to the communication of clinical
laboratory test results via the Internet or e-mail.
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|Thursday, July 11
|The House will meet at 10:00 AM for legislative business.
AM. The Senate
Judiciary Committee will hold a hearings to examine
oversight of the Department of Justice and the impact of a new
Department of Homeland Security.
9:30 AM. The House
Commerce Committee will mark up HR 5005,
the Homeland Security Act. Location: Room 2123, Rayburn
10:00 AM. The House Select
Committee on Homeland Security will hold a hearing on HR 5005,
the Homeland Security Act. Secretary of State Colin
Powell, Secretary of Defense Donald Rumsfeld, Secretary of
Treasury Paul O'Neill, and Attorney General John Ashcroft are
scheduled to testify. See, notice.
Location: Room 345 (Cannon Caucus Room), Cannon Building.
10:00 AM. The House
Government Reform Committee will meet to mark up HR 5005,
the Homeland Security Act of 2002. See, release.
Location: Room 2154, Rayburn Building.
10:00 AM. The Senate
Judiciary Committee will hold an executive business
meeting. The agenda includes mark up of S
2395, the Anticounterfeiting Amendments of 2002,
and consideration of the nomination of John Rogers to
be a judge of the U.S. Court of Appeals (6thCir). See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building.
10:00 AM - 4:00 PM. The FTC and DOJ
will continue their series of events titled Competition and
Intellectual Property Law and Policy in the Knowledge Based
Economy. This event will be a panel of speakers addressing
"Federal Circuit Jurisprudence: Jurisdiction, Choice of
Law, and Competition Policy Perspectives". The first
session will run from 10:00 AM to 12:30 PM. The second session
will run from 2:00 PM to 4:00 PM. For more information, call
Gina Talamona at 202 514-2007. See, FTC
notice. Location: Room 432, FTC Main, 600 Pennsylvania
12:00 NOON. USPTO Director
will hold an online dialogue with the public. The USPTO notice
states that "Members of the press are invited to
participate as observers".
12:00 NOON. Sen. John
McCain (R-AZ), the ranking Republican on the Senate Commerce
Committee, will hold a press conference regarding "corporate
governance reform". Location: First Amendment Room, National Press Club, 529 14th
St. NW, 13th Floor.
2:00 PM. The Senate
Finance Committee will hold a hearing on S 848,
the Social Security Number Misuse Prevention Act.
Location: Room 215, Dirksen Building.
Deadline to submit comments to the FCC regarding
its Declaratory Ruling and Second Further Notice of Proposed
Rulemaking clarifying that providers of Internet protocol
telecommunications relay services are eligible for
reimbursement from the Interstate TRS Fund. See, FCC
|Friday, July 12
|The House will meet at 9:00 AM for legislative business. No
votes are expected after 6:00 PM.
10:00 AM. Hearing before the U.S.
District Court (EDVa) in Washington Post v. Gator
on the Washington
Post's motion for preliminary injunction. Plaintiffs
allege web based copyright infringement in their complaint
[99 pages in PDF] and Memorandum
in Support of Plaintiffs' Motion for Preliminary Injunction
[35 pages in PDF]. Tape recorders and cameras are prohibited
in the courtroom. Location: Room 800, 8th Floor, Albert Bryan
Courthouse, 401 Courthouse Square, Alexandria, VA.
12:00 NOON. The Cato Institute
will host a briefing titled Profiling and National IDs:
Security and Freedom in a Free Society. The speakers will
be Charlotte Twight (author of Dependent on D.C.: The Rise of
Federal Control over the Lives of Ordinary Americans), Robert
Levy (Cato), and Timothy Lynch (Cato). See, registration
page. Lunch will follow. Location: Room B-354, Rayburn
12:00 NOON - 2:00 PM. The Progress
and Freedom Foundation (PFF) will host a panel discussion
titled When Wireless Grows Up: Mandates vs. Markets for a
‘Mature’ Industry. The scheduled speakers include Rudy
Baca (Precursor Group), Steven Berry (CTIA)
and Kevin Krufky (office of Sen. Sam Brownback).
notice. To register, contact Rebecca Fuller at 202
289-8928 or email@example.com.
Location: Room B340, Rayburn Building.
TIME? Commerce Secretary Donald
Evans will hold an online chat on AOL with small
|Monday, July 15
|12:30 PM. Larry Mefford (Assistant Director, FBI Cyber
Division) will give a speech. Pre-registration is required to
attend; contact Kristin Woolley at 703 284-5323 or kwoolley @itaa.org.
Location: Oracle Corporation, 1910 Oracle Way, Reston, VA.
Day three of four of the National
Association of Patent Practitioners' (NAPP) annual
meeting. See, registration
and information page. At 9:00 AM, Steve Kunin (Deputy
Commissioner for Patent Examination Policy) will speak. At
10:00 AM, Robert Clarke (Office of Patent Legal
Administration) will speak on Section
102(e). At 12:15 PM, Nicholas Godici (Commissioner of
Patents) will give the luncheon address. Location: Wyndam
Washington DC, 1400 M Street, NW.
|Tuesday, July 16
|9:30 AM. The FCC will hold a
meeting. Location: FCC, 445 12th Street, SW, Room TW-C05
(Commission Meeting Room).
LOCATION CHANGE. 10:00 AM.
The Senate Banking
Committee will hold a hearing. Federal Reserve Board
Greenspan will deliver his semi annual report on monetary
policy. See also, media
advisory regarding procedures for covering this hearing.
Press contact: Jesse Jacobs at 202 224-1654. Location: Room
216, Hart Building.
10:00 AM. The Senate
Finance Committee will hold a hearing to examine homeland
security and international trade issues. Location: Room 215,
2:00 PM. The Senate
Judiciary Committee's Subcommittee on Administrative
Oversight and the Courts will hold a hearing to examine the FBI's computer
hardware problems. Press contact: Mimi Devlin at 202
224-9437. Location: Room 226, Dirksen Building.
Deadline to submit reply comments to the FCC regarding
its Notice of Proposed Rulemaking (NPRM) regarding the
consequences of the FCC's classification of cable modem
service as an information service. This is CS Docket No.
02-52. See, FCC
release [PDF] and notice
in Federal Register.
|Wednesday, July 17
|10:00 AM. Federal
Reserve Board Chairman Alan
Greenspan will testify before the House Financial
Services Committee. He will deliver his semi annual report
on monetary policy. See, notice.
Location: Room 2128, Rayburn Building.
1:00 - 4:00 PM. The Department of Commerce's (DOC) Technology Administration
will host a workshop on digital entertainment and its
availability to consumers. Phil Bond (Under Secretary of
Commerce for Technology) and James Rogan (Director of the
USPTO) will co-host the event. For more information, contact
Chris Israel, Deputy Assistant Secretary for Technology
Policy, at 202 482-5687. See, notice
in the Federal Register. Location: Room 4830, Hoover Building,
1401 Constitution Ave., NW.
Extended 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, May 29 order
[PDF] extending deadline from June 5 to July 17. See also, notice
in the Federal Register. This is CC Docket No. 01-338.