| FCC Declines to Commence
NPRM on Location Privacy |
7/24. The Federal
Communications Commission (FCC) released an order
[9 pages in PDF] in which it stated that "we decline to
commence a rulemaking to adopt rules to implement the wireless
location information privacy amendments to Section 222 of the
Communications Act of 1934 ..."
The FCC reasoned that "precisely because of the nascent
state of these services, we do not wish inadvertently to
constrain technology or consumer choices via our rules. At
this point, any commercial location based services being
offered are clearly at an early stage and the full nature and
extent of the commercial services that will be offered is
unknown."
The FCC added that it "will continue to monitor location
privacy issues as these services are deployed and will take
regulatory action if the need is clearly demonstrated."
47
U.S.C. § 222 provides, in part: "Except as required
by law or with the approval of the customer, a
telecommunications carrier that receives or obtains customer
proprietary network information by virtue of its provision of
a telecommunications service shall only use, disclose, or
permit access to individually identifiable customer
proprietary network information in its provision of (A) the
telecommunication service from which such information is
derived, or (B) services necessary to, or used in, the
provision of such telecommunications service, including the
publishing of directories."
The 106th Congress enacted, and President Clinton signed, the
Wireless Communications and Public Safety Act of 1999. This
bill was S
800, sponsored by Sen.
Conrad Burns (R-MT), and HR 438, sponsored by Rep. John Shimkus
(R-IL). It designated 911 as the universal emergency service
number, and promoted wireless 911 service. The bill also
amended § 222 to include cell phone call location information
in the definition of customer proprietary network information
(CPNI).
§ 222 covers only telecommunications carriers. However, with
the development of PDAs, in car map and traffic services,
wireless tollbooth collection systems, Blackberry e-mail
pagers, Bluetooth
enabled devices, and anything else that can be embedded with a
GPS chip, or other technology, location data can be collected
by entities which are not telecommunications carriers.
The Cellular
Telecommunications & Internet Association (CTIA) had
requested a rulemaking proceeding. This is the FCC's
proceeding titled "In the Matter of Request by Cellular
Telecommunications and Internet Association to Commence
Rulemaking to Establish Fair Location Information
Practices", and numbered WT Docket No. 01-72.
CTIA President Tom Wheeler stated in a release
that "This decision can only be characterized as a fumble
... Two years ago CTIA took the lead on this important
consumer issue and proposed to the Commission a uniform
methodology, based on our own voluntary program.
Unfortunately, the FCC has chosen to reject our proposal ...
Congress sent a clear message when it passed the 911
legislation -- that location information was a uniquely
sensitive matter of privacy. The industry responded to
Congress, but it appears as though the FCC has dropped the
ball."
FCC Commissioner Michael Copps
wrote a separate dissent
[PDF]. He stated that "our failure to act will result in
American’s privacy being threatened and adoption of location
enabled devices and E911 phones being slowed." He
reasoned that "Customers will shy away from services if
they think that the privacy of something as sensitive as their
location is up for grabs. And carriers and equipment makers
will avoid being burned by consumer fear and will thus
under-invest in location devices."
"The Commission should issue a Notice of Proposed
Rulemaking that proposes rules to implement Congress's
mandate," wrote Copps. "Instead, the majority
chooses to do nothing -- inaction -- a course that is
antiprivacy, anti consumer, and will slow the growth of the
wireless industry." |
|
|
| FCC Seeks Comment on NTIA
3G Viability Assessment |
7/24. The Federal
Communications Commission (FCC) issued a public
notice [PDF] in which it requests comment on the National Telecommunications
and Information Administration's (NTIA) July 23 document
titled "An Assessment of the Viability of Accommodating
Advanced Mobile Wireless (3G) Systems in the 1710-1770 MHz and
2110-2170 MHz Bands". Comments are due by August 8.
On July 23, officials from the Federal
Communications Commission (FCC), Department of Commerce (DOC),
and Department of Defense (DOD), along with the heads of the
CTIA and TIA, announced a plan for the reallocation of 90 MHz
of spectrum for use by Third Generation (3G) wireless
services. The DOC's NTIA released the Viability Assessment at
this time. The participants also called for legislation
amending the spectrum auction process. In particular, the
administration proposes creating a trust to be funded out of
the proceeds of auctions of the reallocated spectrum; this
trust would then provide payments to federal entities that
must relocate to other spectrum.
The FCC's notice also states that this viability assessment
"has also been incorporated into the record of the
Commission’s Advanced Wireless Services proceeding in
ET Docket No. 00-258". |
|
|
| SEC Files Complaint Against
Adelphia |
7/24. The Securities and
Exchange Commission (SEC) filed a civil complaint
in U.S. District Court
(SDNY) against Adelphia
Communications Corporation, its founder John Rigas, his
three sons, Timothy Rigas, Michael Rigas, and James Rigas, and
two executives at Adelphia, James Brown and Michael Mulcahey,
alleging Section 10b fraud, and other violations of federal
securities laws. See also, SEC release.
The complaint alleges that "This case concerns one of the
most extensive financial frauds ever to take place at a public
company. From at least 1998 through March 2002, Adelphia --
the nation's sixth largest cable television company --
systematically and fraudulently excluded billions of dollars
in liabilities from its consolidated financial statements by
hiding them on the books of off balance sheet affiliates. It
also inflated earnings to meet Wall Street's expectations,
falsified operations statistics, and concealed blatant self
dealing by the family that founded and controlled Adelphia,
the Rigas Family."
The complaint alleges three categories of fraud. First, "Adelphia
fraudulently excluded from the Company's annual and quarterly
consolidated financial statements over $2.3 billion in its
bank debt by systematically recording those liabilities on the
books of unconsolidated affiliates". Second, "Adelphia
and the other Defendants regularly misstated in press
releases, including earnings reports, and Commission filings,
Adelphia's reported performance in three aspects that are
crucial to the ``metrics´´ used by Wall Street to evaluate
cable companies: (i) the number of its ``basic cable
subscribers,´´ (ii) the extent of its cable plant ``rebuild,´´
or upgrade, and (iii) its earnings ...". And third,
"Adelphia used fraudulent misrepresentations and
omissions of material fact to conceal rampant self-dealing by
the Rigas Family ..." |
|
|
| More News |
7/24. The Senate
Commerce Committee's Subcommittee on Science, Technology,
and Space held a hearing on women in science and technology.
See, prepared testimony of witnesses: Kristina
M. Johnson (Pratt School of Engineering, Duke University),
Kay
Koplovitz (Koplovitz and Company), Nancy
Stueber (Oregon Museum of Science and Industry), and Ana
Marie Boitel (Women in Technology).
7/24. The Business Software
Alliance (BSA) released a survey
[PPS] of information technology professionals regarding cyber
security. The BSA reported that 60 percent of those surveyed
who are directly responsible for their company's network
security believe that U.S. businesses are at risk for a major
cyber attack in the next 12 months. See also, BSA
release. |
|
|
|
| Senate Committee Approves
FOIA Exemption Amendment to DHS Bill |
9/24. The Senate
Governmental Affairs Committee held a business meeting to
consider amendments to S 2452
[273 pages in PDF], the National Homeland Security and
Combatting Terrorism Act of 2002. The Committee unanimously
approved an amendment
[PDF] offered by Sen. Bob
Bennett (R-UT) and others regarding public access under
the Freedom
of Information Act (FOIA) to information about critical
infrastructure voluntarily shared with the federal government.
The amendment creates a new Section 195 that provides, in
part, that "Notwithstanding any other provision of law,
information that is furnished voluntarily to the Department
shall not be made available pursuant to section 552 of title
5, United States Code, provided that (1) the provider would
not customarily make the information available to the public;
and (2) the information is designated and certified by the
provider, in a manner specified by the Department, as
information that the provider would not customarily make
available to the public."
The Bennett amendment also provides that "Nothing in this
section shall prohibit any agency from making available,
pursuant to section 552 of title 5, United States Code,
information that it received independently of the Department,
regardless of whether the Department has similar or identical
information."
This amendment further provides that "Nothing in this
section shall be construed as preempting or otherwise
modifying state or local law concerning the disclosure of any
information that a state or local authority received
independently of the Department."
On July 23, the ACLU wrote a letter
to Sen. Joe Lieberman
(D-CT), the Chairman of the Committee, stating that "we
urge you to oppose a misguided proposal to exempt so-called
``critical infrastructure´´ information submitted to the new
Department from the Freedom of Information Act (FOIA). Such
``critical infrastructure´´ legislation, which was attached
to the H.R. 5005 as reported at section
724, could have a devastating effect on the public’s
right to know, muzzle whistleblowers, and undermine national
security."
The ACLU added that "Such legislation is entirely
unnecessary. The FOIA does not require the disclosure of
national security information (exemption 1), sensitive law
enforcement information (exemption 7), or confidential
business information (exemption 4)."
The Committee also approved an amendment
[3 pages in PDF] offered by Sen. Richard Durbin
(D-IL) and Sen. Lieberman pertaining to homeland security
information technology systems interoperability. |
|
|
| FOIA Exemption Debated at
House Subcommittee Hearing |
7/24. The House
Government Reform Committee's Subcommittee Government
Efficiency, Financial Management, and Intergovernmental
Relations hearing on cyber terrorism served as a forum for
debate over the the Freedom
of Information Act (FOIA).
The bill to create a new Department of Homeland Security, HR 5005,
which will be considered by the full House on starting on July
24, creates a new exemption for critical infrastructure
information voluntarily shared with the federal government.
See, Sections
721-724 of the bill as approved on July 19 by the House Select Committee on
Homeland Security.
Rep. Jan Schakowsky
(D-IL) spoke in opposition to the exemption. She stated that
"the fourth exemption to the Freedom of Information Act
protects information, which is a trade secret, or information,
which is commercial and privileged or confidential. This
information is considered confidential if disclosure of the
information is likely to impair the government's ability to
obtain the necessary information in the future, or to cause
substantial harm to the competitive position of the business
from which the information was obtained."
The FOIA currently contains a list of exemptions, at 5 U.S.C.
§ 552(b). Subsection (b)(4) exempts "trade secrets and
commercial or financial information obtained from a person and
privileged or confidential".
Rep. Schakowsky continued that "the damage this exclusion
could do is legion. The language included in the Homeland
Security Bill would allow businesses and agency officials to
hide lobbying activities under this exclusion. Officials from
energy companies could meet with federal officials to craft
government energy policy, and all of those conversations could
be hidden from public view."
James
Dempsey of the Center for
Democracy and Technology wrote a letter to Rep. Horn and
Rep. Schakowsky arguing against the exemption contained in HR 5005.
He did not testify at the hearing, but Rep. Horn made his
letter a part of the record. He wrote that "some FOIA
disclosures can help improve infrastructure security, by
ensuring governmental accountability and by bringing
public pressure on owners and operators of those facilities to
correct safety defects. Keeping vulnerabilities secret may aid
only the hackers and terrorists."
Dempsey also argued that the Section 721-724 exemption
"is not narrowly focused and may have the unintended
consequence of reducing accountability for critical
infrastructure vulnerabilities."
In contrast, Scott
Charney, Chief Security Strategist for Microsoft, testified that
"Information sharing is indeed a key aspect to public
private partnerships, and progress is being made, but there
remain obstacles to the greater sharing of information
concerning cyber vulnerabilities with the government. We
support legislation to facilitate cyber security information
sharing by granting an exemption from the Freedom of
Information Act (FOIA) for information about cyber
vulnerabilities voluntarily shared with the government. This
legislation will lead many companies to answer the
Government's call that they provide it with more cyber
security data." |
|
|
| GAO Reports on Critical
Infrastructure Protection |
7/24. The General Accounting
Office (GAO) released a report [PDF]
titled "Critical Infrastructure Protection: Significant
Challenges Need to Be Addressed".
This report was written as prepared testimony for the House Government Reform
Committee's Subcommittee Government Efficiency, Financial
Management, and Intergovernmental Relations hearing on cyber
terrorism on July 24. The report's author, Robert Dacey,
Director of Information Security Issues at the GAO, summarized
this report at the hearing.
The report makes several recommendations, including:
"Developing a national CIP strategy. A more complete
strategy is needed that will address specific roles,
responsibilities, and relationships for all CIP entities;
clearly define interim objectives and milestones; set time
frames for achieving objectives; establish performance
measures; and include all relevant sectors."
"Improving analysis and warning capabilities. More robust
analysis and warning capabilities, including an effective
methodology for strategic analysis and framework for
collecting needed threat and vulnerability information, are
still needed to identify threats and provide timely warnings.
Such capabilities need to address both cyber and physical
threats."
"Improving information sharing on threats and
vulnerabilities. Information sharing needs to be enhanced both
within the government and between the federal government and
the private sector and state and local governments."
"Addressing pervasive weaknesses in federal information
security. Because of our government’s and our nation’s
reliance on interconnected computer systems to support
critical operations and infrastructures, poor information
security could have potentially devastating implications for
our country." |
|
|
|
| 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.
Attorney General John Ashcroft is scheduled to testify. See, notice.
Press contact: Mimi Devlin at 202 224-9437. Location: Room
226, Dirksen Building.
TIME? (Following first roll call) The Senate Banking
Committee will meet to vote on the nominations of Paul
Atkins, Harvey Goldschmid, Cynthia Glassman, and Roel Campos
to be a members of the SEC. Press
contact: Jesse Jacobs at 202 224-4524. Location: to be
announced. |
|
|
| 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]. |
|
|
| Monday, July 29 |
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. |
|
|
| Tuesday, July 30 |
8:30 AM - 12:00 NOON. The Information
Technology Association of America (ITAA) and the Center for Strategic and
International Studies (CSIS) will host a conference titled
"Wireless Security: Challenges and Solutions".
Richard Clarke, Special Advisor to the President for
Cyberspace Security, will give the keynote address at 8:50 AM.
See, notice
and agenda. RSVP by July 26, 2002 to kwoolley @itaa.org or 703
284-5323. Location: CSIS, 1800 K Street, NW.
9:00 AM - 5:00 PM. Day two 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.
9:30 AM. The Senate
Commerce Committee will hold a hearing "to examine
finances in the telecommunications marketplace, focusing on
maintaining the operations of essential communications
facilities". Press contact: Andy Davis at 202 224-6654.
Location: Room 253, Russell Building.
10:00 AM - 12:00 NOON. The State Department's International
Telecommunication Advisory Committee (ITAC) will meet. See, notice
in Federal Register. Location: Room 5533, State Department. |
|
|
| Wednesday, July 31 |
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine class
action litigation issues. Press contact: Mimi Devlin at 202
224-9437. Location: Room 226, Dirksen Building.
11:30 AM - 12:30 PM. The U.S.
Chamber of Commerce will host a luncheon titled "The
President's Homeland Security Strategy: Implications for
Business". The speaker will be Tom Ridge. The price
to attend is $55 for members and $95 for non-members. See, notice.
Location: 1615 H Street, NW.
Second of three deadlines to submit proposals to the NIST
for FY 2002 Advanced
Technology Program (ATP) funds. See, notice
in Federal Register. |
|
|
| 9th Circuit Addresses
Trademarks and Parody |
7/24. The U.S.
Court of Appeals (9thCir) issued its opinion
[PDF] in Mattel
v. MCA, a trademark and defamation case
involving Mattel's Barbie doll. Judge Alex Kozinski, who wrote
the opinion, described this case as "Speech-Zilla meets
Trademark Kong". In the end, speech won.
Background. Aqua, a Danish techno pop band, wrote a
song titled "Barbie Doll" for its 1997 album titled
"Aquarium". MCA Records, and other companies,
produced, marketed and sold the music. Mattel makes and sells Barbie dolls for girls.
In April, Judge Margaret McKeown of the 9th Circuit wrote that
Barbie is "so perfect in her sculpture and presentation,
and so comfortable in every setting, from ``California girl´´
to ``Chief Executive Officer Barbie,´´". See, opinion
[PDF] in Christian
v. Mattel. In the present case, Judge Kozinski
noted that Barbie began her career in the 1950s as a
"German street walker"; she was an "adult
collectors item". Aqua's comic lyrics
present her in this light. The song became a top 40 hit.
However, Mattel was not amused.
District Court. Mattel filed a complaint in U.S. District Court (CDCal)
against MCA Records and others alleging, among other things,
violation of the Lanham Act. MCA, in turn, counterclaimed
against Mattel alleging defamation for accusing MCA of piracy.
The District Court granted MCA's motion for summary judgment
on Mattel's claims for trademark infringement and dilution on
the grounds that the use was a parody and nominative fair use.
The District Court also granted Mattel's motion for summary
judgment on MCA's defamation claim.
Appeals Court. The Court of Appeals, in a lengthy
analysis of freedom of speech, trademark infringement, and
trademark dilution, affirmed the grant of MCA's motion for
summary judgment. The Court ruled on the infringement issue on
First Amendment grounds. The Court did not address nominative
fair use. The Court affirmed the dilution ruling on the
grounds that the song falls within the noncommercial use
exemption to the Federal Trademark Dilution Act (FTDA). The
Court also affirmed the summary judgment on the defamation
claim.
Judge Kozinski also concluded that "The parties are
advised to chill." |
|
|
| Third Circuit Interprets
Dormant Commerce Clause |
7/24. The U.S.
Court of Appeals (3rdCir) issued its opinion
[PDF] in Cloverland
v. Pennsylvania. This is not a technology case.
It involves Pennsylvania's milk price supports. However, the
Appeals Court opinion includes a lengthy analysis of the
dormant commerce clause.
Article I, Section 8, of the Constitution provides that
"The Congress shall have Power ... to regulate Commerce
with foreign Nations, and among the several States ..."
The dormant commerce clause is the judicial concept that the
Constitution, by delegating certain authority to the Congress
to regulate commerce, thereby bars the states from legislating
on certain matters that affect interstate commerce, even in
the absence of Congressional legislation. It is applied to
block states from regulating in a way that materially burdens
or discriminates against interstate commerce. The analysis in
Cloverland v. Pennsylvania may be pertinent to some challenges
to state e-commerce restraints. |
|
|
| About Tech Law Journal |
Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for entities with multiple subscribers. Free one
month trial subscriptions are available. Also, free
subscriptions are available for law students, journalists,
elected officials, and employees of the Congress, courts, and
executive branch, and state officials. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert and
news items are not published in the web site until one month
after writing. See, subscription
information page.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy
Policy
Notices
& Disclaimers
Copyright 1998 - 2002 David Carney, dba Tech Law Journal. All
rights reserved. |
|
|