| House to Consider Homeland
Security Bill |
7/22. The House will likely take up HR 5005,
the Homeland Security Act of 2002, later this week. The House Select Committee on
Homeland Security amended and approved the bill on Friday,
July 19 by a vote of 5-4 after a day long meeting. See, HR 5005
[232 pages in PDF] as reported by the Select Committee.
The House Rules
Committee has scheduled a meeting for Wednesday at 4:00 PM
to adopt a rule for its consideration. See also, Rules
Committee's notice regarding the amendments
process for HR 5005.
President Bush gave a speech
Monday morning in which he addressed progress on this bill. He
said that "We are making progress in Washington. I
appreciate so very much the House Select Committee getting a
bill out, and it's going to get to the floor. And the Speaker
was telling me today that it looks like they may get a vote
this week. And the Senate is working hard on it, both
Republicans and Democrats are working hard to reconcile any
differences that may be had." |
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| Bush Addresses Technology
and Homeland Security |
7/22. President Bush gave a speech
at the Argonne National
Laboratory in Illinois. He said that "Our scientific
community is serving on the front lines of this war, by
developing new technologies that will make America
safer."
He also stated that "We will harness our science and our
technology in a way to protect the American people. We will
consolidate most federally funded homeland security research
and development, to avoid duplication, and to make sure all
the efforts are focused."
President Bush also used the occasion to promote HR 5005,
his proposed legislation to create a new Department of
Homeland Security (DHS).
The Argonne National Laboratory, which is a part of the Energy
Department, states in its web site that its "scientists
are adapting existing technologies to solve homeland security
challenges. Relying on expertise in nuclear power,
infrastructure technology and ``lab-on-a-chip´´ sensors,
Argonne has developed a neutron detector, an early warning and
crisis management computer simulator for mass transportation
and sensors for detecting biological and chemical
agents."
President Bush stated in his address
to the nation on June 6 that the new DHS "will bring
together our best scientists to develop technologies that
detect biological, chemical, and nuclear weapons, and to
discover the drugs and treatments to best protect our
citizens."
Argonne is not listed as one of the laboratories to be
transferred to the DHS in either in the President's original
bill, or in the version approved by the House Select Committee
on Homeland Security on Friday, July 19. |
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| 7th Circuit Construes ECPA
and 11th Amendment |
7/22. The U.S.
Court of Appeals (7thCir) issued its opinion
[PDF] in Ameritech
v. McCann, a case holding that the 11th
Amendment does not bar an electronics communications provider
from suing a state law enforcement agency in federal court for
prospective injunctive relief for an ongoing violation of the
Electronic Communications Privacy Act (ECPA).
Background. Ameritech (now SBC) is an incumbent local
exchange carrier in the state of Wisconsin. Michael
McCann has been the District
Attorney of Milwaukee County for 33 years. The DA's office
requests and receives electronic data from Ameritech pursuant
to the ECPA, which is codified at 18
U.S.C. § 2510, et seq.
The ECPA provides, among other things, that electronic
communications providers shall provide government entities
certain electronic records pertaining to communications. The
ECPA also provides that such government entities shall
"pay the person or entity assembling or providing such
information a fee for reimbursement for such costs as are
reasonably necessary and which have been directly incurred in
searching for, assembling, reproducing, or otherwise providing
such information." McCann requests data from Ameritech
under the ECPA, but refuses to pay for it.
District Court. Ameritech filed a complaint in U.S. District Court (EDWisc)
against McCann, in his capacity as the DA of Milwaukee County,
seeking a declaratory judgment that McCann must comply with
the ECPA. McCann did not dispute that he requests and
receives, but does not pay for, electronic data. Rather, the
deadbeat DA argued that this is a collection action brought in
federal court against a state, and is hence barred by the 11th
Amendment. The District Court granted McCann's motion to
dismiss, holding that suit is barred by the 11th Amendment.
11th Amendment. "The judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State."
Appeals Court. The Appeals Court reversed. The Court
reasoned that while the state will be financial affected by
the requested declaratory judgment, this is not an action for
payment of a debt incurred in the past, which would be barred
by the 11th Amendment. Rather, it is a suit which seeks
prospective injunctive relief, which is not barred by the 11th
Amendment.
The Court relied on the seminal case of Ex Parte Young,
209 U.S. 123 (1908). The Court also relied upon the Supreme
Court's decision in May in Verizon
Maryland v. Public Service Comm. of Maryland [PDF], in
which the Court wrote that "In determining whether the
doctrine of Ex Parte Young avoids an Eleventh Amendment
bar to suit, a court need only conduct a straightforward
inquiry into whether [the] complaint alleges an ongoing
violation of federal law and seeks relief properly
characterized as prospective." |
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| EPIC Files Amicus Brief Re
Tort Liability for Privacy Violations |
7/19. The Electronic Privacy
Information Center (EPIC), a Washington DC based group,
filed an amicus
curiae brief with the Supreme Court
of New Hampshire in Estate
of Remsburg v. Docusearch, arguing that private
investigators and information brokers should be liable in tort
for privacy invasions of third parties about whom they are
collecting and disseminating information.
The case arises out of the stalking and murder of Amy Boyer by
Liam Youens, who located her with information sold by
Docusearch. Amy Boyer's parents were Tim and Helen Remsburg.
The EPIC requests that the court hold that "private
investigators and information brokers have a legal duty to act
with due care toward the subjects of their
investigations". It also requests that the Court hold
that "a private investigator or information broker may be
found liable for intrusion upon seclusion for obtaining and
selling a third party's Social Security Number without the
consent or knowledge of the third party".
The EPIC also requests that Court the hold that
"commercial appropriation is a valid cause of action in
New Hampshire, and a private investigator or information
broker may be held liable under this cause of action for
selling the personal information of a private individual
without her knowledge or consent". Finally, the EPIC
requests that the Court hold that "a private investigator
or information broker may be held liable" either in tort
or under New Hampshire statute for engaging in pretexting to
obtain personal information. |
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| About Tech Law Journal |
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information page.
Contact: 202-364-8882; E-mail.
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Privacy
Policy
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& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
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| Powell Writes WorldCom Re
Bankruptcy and Continuity of Service |
7/22. Federal Communications
Commission (FCC) Chairman Michael Powell
wrote a letter
[PDF] to WorldCom P/CEO
John Sidgmore regarding bankruptcy and continuity of service.
He wrote that "Because of WorldCom's size and scope, it
is particularly important, both to millions of consumers and
to the integrity of the nation's communications network, that
WorldCom integrate its regulatory requirements into its
planning during the bankruptcy process, and that it take these
requirements seriously."
Powell made two main points. First, he asserted that "If
WorldCom's bankruptcy proceeding results in a restructuring or
acquisition of WorldCom or its assets, such a restructuring or
acquisition could only take place after the Commission granted
required approvals to transfers of control over licenses or
authorizations granted by the Commission."
Second, Powell stated that "If WorldCom's bankruptcy
proceeding leads to a discontinuance of services, then, to the
extent WorldCom provides services reached under section
214(a) of the Act, such a discontinuance could only take
place if WorldCom first meets the notice requirements of the
Commission's rules." However, Powell's letter is silent
as to which services he asserts are "reached under
section 214(a)".
Section 214, which applies only to common carrier regulation,
provides, in part, that "No carrier shall discontinue,
reduce, or impair service to a community, or part of a
community, unless and until there shall first have been
obtained from the Commission a certificate that neither the
present nor future public convenience and necessity will be
adversely affected thereby; except that the Commission may,
upon appropriate request being made, authorize temporary or
emergency discontinuance, reduction, or impairment of service,
or partial discontinuance, reduction, or impairment of
service, without regard to the provisions of this section. As
used in this section the term ``line´´ means any channel of
communication established by the use of appropriate equipment,
other than a channel of communication established by the
interconnection of two or more existing channels ..." |
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| Sidgmore Addresses
WorldCom's Bankruptcy Filing |
7/22. John Sidgmore, P/CEO of WorldCom, held a press
conference in New York City in which he discussed WorldCom's
Chapter 11 bankruptcy filing, WorldCom's accounting problems,
debtor in possession financing, new board members, and other
issues.
He stated that a Chapter 11 proceeding is the "only way
to provide for the company's future". He added that he
hopes that WorldCom will "emerge on the other side of the
process as a stronger and much healthier enterprise."
He was asked about an exodus of suppliers and customers. He
responded that "I think the worst possible period ... was
the last three months. ... Now, you know, in a strange way,
under Chapter 11, we will be stabilized." He added that
"we still have not lost any substantial customers".
He also addressed his hope that WorldCom will emerge from
bankruptcy intact. He stated that "I think, if our plan
is successful, I think our plan is essential going to be,
essentially to keep the company intact. That doesn't mean that
we won't have some assets that are restructured."
Sidgmore continued that "It doesn't mean that we won't
get out of some businesses. We have already announced that we
are going to get out of the wireless resale business. We
announced that we have got some other assets for sale. But,
these are all pieces that are on the fringe of the core of
WorldCom."
He stated that "I suspect that our plan will include
keeping the core, the center pieces, of WorldCom intact. And,
that would include the UUNet business, the Internet business,
the long distance business in the United States, both for
consumers, and for corporations, the data business around the
world, the provision of service to global accounts, the major
attention we pay to the European account. All of those things
are clearly going to be a piece of our future. And so, I guess
what I am saying is, the reorganization here is not going to
be a reorganization ... where you jump in and you sell off all
of the assets. It is not going to be a liquidation, in my
opinion. And the courts and the creditors may decide
differently.
He also stated that "The value in WorldCom is not in the
switches and the pipes that we have underground and the hard
assets. The value in WorldCom is the twenty million customers,
the brands, you know, like WorldCom, MCI, UUNet, et cetera.
The customer relationships ... that is what creates the value
here. Breaking it apart, I think, is not going to help."
In response to a question about the status of UUNet, he said
this: "But, I think the more important thing, which has
been discussed several times, is, you know, what is the
separability of those organizations. And, frankly, the UUNet
organization is pretty well integrated, particularly on the
sales and marketing side, and customer service as well, for
that matter, into the rest of WorldCom. So these are not
separate business units in the traditional sense
anymore."
Sidgmore has been CEO of WorldCom since April. Before that, he
was Vice Chairman. He also served as an advisor on Internet
and technology matters. He came to WorldCom in 1996, when it
purchased UUNet.
WorldCom filed a Chapter 11 petition
[PDF] in the U.S.
Bankruptcy Court (SDNY) on Sunday, July 21. WorldCom is
represented in the proceeding by the law firm of Weil Gotshal. |
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| USTA Seeks Protections for
LECs |
7/22. Walter McCormick, P/CEO of the U.S. Telecom Association (USTA),
wrote a letter
[PDF] to Federal Communications
Commission (FCC) Chairman Michael Powell,
and the other FCC Commissioners, regarding the WorldCom
bankruptcy proceeding.
The USTA is a group that represents incumbent local exchange
carriers (ILECs). McCormick wants the FCC to take steps to
minimize service disruptions and financial loss to the ILECs
resulting from WorldCom's bankruptcy proceeding. He also wants
the FCC to continue to move ahead with various of its
deregulatory proceedings, notwithstanding WorldCom's
bankruptcy.
McCormick argued that "it is imperative for the FCC to
resist suggestions ... that it set aside proceedings that are
equally important to the continued health and stability of the
telecommunications industry, including the UNE Triennial
Review, its Broadband dockets, and pending and future section
271 applications. The FCC must bring such proceedings to a
close as quickly as possible."
He also stated that "any actions by the FCC should be
designed to serve two equally important goals. First, any
customer disruptions as a result of this or other bankruptcy
filings should be kept to a minimum. Second, and equally
important, the FCC should take affirmative steps to ensure
that WorldCom’s impending bankruptcy does not undermine the
financial stability of other carriers that provide services to
it, and that such supplying carriers have adequate assurances
that they will be paid for those services."
He elaborated that the "ILECs intend to fulfill their
obligations to continue providing services under the
bankruptcy laws. They should not, however, collectively be
forced to absorb hundreds of millions of dollars of costs each
month for interstate access, intrastate access, and the
provision of UNEs, in order for WorldCom to continue to
provide service, without adequate assurance of payment."
McCormick also said that "the FCC will need to find a
mechanism to address the impact of WorldCom's potential unpaid
contribution to Universal Service."
McCormick asked the FCC to do several things. He wrote that
the FCC should advocate "payment to carriers that provide
service to a carrier debtor in bankruptcy." He wrote that
the FCC should allow WorldCom's suppliers to pass on to their
customers a portion of the costs of unpaid WorldCom debts. He
wrote that "the FCC should provide a clear mechanism for
the recovery of non-collectible charges as a result of the
bankruptcy. For example, the FCC could allow recovery through
the exogenous cost mechanism in its price cap rules or through
a limited waiver of those rules."
McCormick also wrote that "the FCC should make clear that
its pricing rules require that carriers providing unbundled
elements be allowed to include a compensatory factor to
recover non-collectible UNE charges."
Finally, he wrote that "the FCC should make clear that
that the Communications Act of 1934, as amended (Act), does
not preempt the Bankruptcy Code, and that carrier suppliers
have the same rights as all other service providers to a
``cure´´ of outstanding indebtedness on existing service
arrangements that are assumed (and assigned) during the course
of the bankruptcy." (Parentheses in original.) |
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| Tuesday, July 23 |
The House will meet at 9:00 AM for morning hour and at 10:00
AM for legislative business.
10:00 AM. The Senate
Banking Committee will hold a hearing on the nominations
of Cynthia Glassman and Roel Campos to be
members of the SEC. Press
contact: Jesse Jacobs at 202 224-4524. Location: Room 538,
Dirksen Building.
TIME CHANGE AND ROOM CHANGE.
10:00 AM. The Senate
Judiciary Committee will hold a hearing on pending
judicial nominations, including Priscilla Owen (U.S. Court
of Appeals for the Fifth Circuit), Timothy Corrigan (U.S.
District Court for the Middle District of Florida), and Jose
Martinez (U.S. District Court for the Southern District of
Florida). See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
325, Russell Building.
10:00 - 10:45 AM. Secretary of Commerce Don
Evans, and officials from the Defense Department and FCC will hold a
press conference to announce the Department
of Commerce's (DOC) "plan for allocating additional
spectrum for third generation (or 3G) mobile
telecommunications services". See, DOC
notice. Press contact: Clyde Ensslin or Ranjit de Silva at 202
482-7002. Location: Room 4830, DOC, 14th & Constitution
Avenue NW.
10:45 AM. The Senate
Commerce Committee will hold an executive session. The
agenda includes voting on the nominations of Jonathan
Adelstein to be a Commissioner of the FCC, and Kathie
Olsen and Richard Russell to be Associate Directors
of the Office of Science and
Technology Policy. Press contact: Andy Davis at 202
224-6654. Location: Room S-216, Capitol Building.
11:00 AM. The Cato Institute
will host a panel discussion titled "Who Rules the
Root? ICANN, Domain Names, and the Battle over Internet
Governance". The scheduled speakers are Milton
Mueller (author of Ruling
the Root: Internet Governance and the Taming of Cyberspace),
Ira Magaziner (SJS Advisors), Michael Roberts (The Darwin
Group), and Harold Feld (Media
Access Project). Lunch will follow. See, Cato notice.
Location: 1000 Massachusetts Avenue, NW.
1:30 PM. Boyden
Gray, who participated in the selection of judges for
former President Bush, will hold a press conference on judicial
nominations. For more information, contact Phil Smith at
202 661-6350. Location: Murrow Room, National Press Club, 529 14th
St. NW, 13th Floor.
RESCHEDULED FOR 10:00 AM. 2:00
PM. The Senate
Judiciary Committee will hold a hearing on pending
nominations.
3:00 PM. The House
Judiciary Committee's Subcommittee on Court, Intellectual
Property and the Internet will hold a hearing on HR
1203, the Ninth Circuit Court of Appeals Reorganization
Act of 2001. This bill would create a new 12th Circuit,
thereby relieving Alaska, Hawaii, Idaho, Montana, Oregon, and
Washington from being included in the 9th Circuit. Location:
Room 2141, Rayburn Building.
Deadline to file reply comments with the FCC's Spectrum Policy Task Force
in response to its request for comments on spectrum policy,
including taking steps toward market oriented allocation and
assignment policies, interference, efficient use of spectrum,
public safety communications, and international issues. See, Public
Notice [PDF].
Day two of a two day seminar hosted by the American Intellectual Property
Law Association (AIPLA) on the Patent Cooperation Treaty.
See, online
brochure [PDF]. Location: Crystal Gateway Marriott,
Arlington, VA. |
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| Wednesday, July 24 |
The House will meet at 10:00 AM for legislative business.
9:00 AM. Day one of a two day meeting of the Bureau of Industry and Security's
(BIS) Information Systems Technical Advisory Committee. The
meeting will be partially open, and partially closed to the
public. The agenda of the open portion of the meeting includes
(1) a presentation on encryption in network management
software, (2) a presentation on changes to the mass market
encryption regulation, and (3) a discussion of the GAO report
on advances in China's semiconductor industry. The BIS was
formerly known as the Bureau of Export Administration (BXA).
See, notice
in the Federal Register. Location: Hoover Building, Room 3884,
14th Street between Pennsylvania Ave. and Constitution Ave.
NW.
9:30 AM. The Senate
Governmental Affairs Committee will hold a business
meeting to consider withdrawals of amendments to S
2452 [273 pages in PDF], the National Homeland Security
and Combatting Terrorism Act of 2002. Location: Room 342,
Dirksen Building.
CANCELLED. 10:00
AM. The Senate
Commerce Committee's Subcommittee on Communications will
hold a hearing titled "Competition and the Cable
Industry". Sen.
Daniel Inouye (D-HI) will preside. The scheduled witnesses
include Robert Sachs (National
Cable & Telecommunications Association), Rodger
Johnson (Knology), David Baker (Earthlink), Gene
Kimmelman (Consumers Union),
and James Gleason (American
Cable Association).
10:00 AM. The House Government Reform
Committee's Subcommittee Government
Efficiency, Financial Management, and Intergovernmental
Relations will hold a hearing titled "Cyber
Tterrorism: Is the Nation's Critical Infrastructure Adequately
Protected?" Location: Room 2154, Rayburn Building.
12:00 NOON. The Congressional
Internet Caucus Advisory Committee will host a panel
discussion on the future of Internet technologies. The
speakers will be Nicholas
Negroponte, Walter
Bender and Andrew
Lippman, all of the MIT
Media Laboratory. Sen.
Conrad Burns (R-MT) and Rep. Michael Capuano
(D-MA) will make introductions. RSVP to rsvp@netcaucus.org or
Danielle at 202 638-4370. Lunch will be served. Location:
Reserve Officers Association, First and Constitution Ave., NE.
2:30 PM. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space will hold a hearing to examine women in science
and technology. Location: Room 253, Russell Building.
3:00 PM. Rep. Billy
Tauzin (R-LA), the Chairman of the House Commerce
Committee, Rep. Fred
Upton (R-MI), the Chairman of the Subcommittee on
Telecommunications and the Internet, and others, will hold a
press conference on a cyber security report prepared by
the Business Software Alliance
(BSA). Press contact: Ken Johnson or Peter Sheffield at 202
225-5735. Location: Room 2218, Rayburn Building.
4:00 PM. The House Rules
Committee will meet to adopt a rule for consideration of HR 5005,
the Homeland Security Act of 2002. See also, HR 5005
[232 pages in PDF] as reported by the House Select Committee
on Homeland Security. amendments
process for HR 5005. Location: Room H-312, Capitol
Building. |
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| Thursday, July 25 |
The House will meet at 10:00 AM for legislative business.
The House may begin consideration of HR
5005, the Homeland Security Act of 2002.
9:00 AM. Day two of a two day meeting of the Bureau of Industry and Security's
(BIS) Information Systems Technical Advisory Committee. The
meeting will be partially open, and partially closed to the
public. The agenda of the open portion of the meeting includes
(1) a presentation on encryption in network management
software, (2) a presentation on changes to the mass market
encryption regulation, and (3) a discussion of the GAO report
on advances in China's semiconductor industry. The BIS was
formerly known as the Bureau of Export Administration (BXA).
See, notice
in the Federal Register. Location: Hoover Building, Room 3884,
14th Street between Pennsylvania Ave. and Constitution Ave.
NW.
10:00 AM. The Senate
Judiciary Committee will hold an oversight hearing on the Department of Justice. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building. |
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| Friday, July 26 |
The House will meet at 10:00 AM for legislative business.
The House may consider HR
5005, the Homeland Security Act of 2002.
Deadline to submit reply 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
notice [PDF]. |
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| Monday, July 29 |
The House is scheduled to begin its Summer District Work
Period.
9:00 AM - 5:00 PM. Day one of a two day meeting of the Federal Accounting Standards
Advisory Board (FASAB). RSVP by July 22 by calling 202
512-7350. See, notice
in Federal Register. Location: Room 5N30, GAO Building.
1:30 - 3:30 PM. The FCC's WRC-03
Advisory Committee, Informal Working Group 7: Regulatory
Issues and Future Agendas, will hold a meeting. See, notice
[PDF]. Location: The Boeing Company, 1200 Wilson Blvd.,
Arlington, VA.
Deadline to submit comments to the FCC's regarding
its Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming. See, notice
in Federal Register. |
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