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October 15, 2002, 9:00 AM ET, Alert No. 530.
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Juster Addresses Export Controls

10/10. Kenneth Juster, Under Secretary of Commerce for Export Administration, gave a speech in Washington DC regarding export controls. Juster is head of the Commerce Department's (DOC) Bureau of Industry and Security (BIS), which was previously known as the Bureau of Export Administration (BXA).

First, he explained why the BXA changed its name to BIS. He stated that it is because it is now involved in far more than export controls. For example, he said that "We have worked with industry on the national strategies for cyber security and homeland security. And we lead the Federal government's outreach efforts to industry on critical infrastructure protection and cyber security."

Juster stated that there is "a vibrant private sector working in partnership with us to protect our security and promote our economic well being."

Kenneth JusterHe stated both that the BIS is "the representative of industry in the export control process", and that it "is not simply a lobbyist for industry in the interagency process". He elaborated that "We routinely stand up for industry on issues where we believe that other agencies want to impose restrictions on exports without any corresponding national security benefit. A prime example of this is the interagency process for determining controls on the export of high performance computers. ... [and] We have worked together in the same constructive manner on efforts to lift controls on general purpose microprocessors ..."

He also stated that the BIS "played a major role in raising awareness of critical infrastructure protection issues in the private sector and with state and local governments, convening two widely publicized conferences on the subject. And we coordinated the private sector input -- including that from the high tech industry -- for the National Strategy to Secure Cyberspace, which the Administration released for public comment last month."

He also reminded his audience that "our Critical Infrastructure Assurance Office is slated for transfer to the new Department of Homeland Security."

Juster also advocated passage of S 149, the Export Administration Act of 2001, which is sponsored by Sen. Mike Enzi (R-WY).

He stated that "the statutory authority for our dual use export control system -- the Export Administration Act of 1979 -- has not been comprehensively revised or overhauled for 23 years. That is why an important priority remains the passage of a new Export Administration Act."

S 149 would ease restraints on the export of most dual use products, such as computers and software. However, it would raise penalties for violation of remaining prohibitions. It would also repeal provisions of the 1998 National Defense Authorization Act which require the President to use Million Theoretical Operations Per Second (MTOPS) to set restrictions on the export of high performance computers.

It passed the Senate Banking Committee on March 22, 2001 by a vote of 19-1. It passed the full Senate on September 6, 2001, by a vote of 85-14. On August 1, 2001, the House International Relations Committee approved HR 2581, which is also titled the "Export Administration Act of 2001", sponsored by Rep. Benjamin Gilman (R-NY), by a vote of 26-7. However, it is a much different bill.

While S 149 passed the Senate overwhelmingly, it passed before the terrorists attacks of September 11, 2001. It now faces new opposition. No action has been taken in either the House or Senate on this bill since September 11, 2001. On the other hand, Sen. Fred Thompson (R-TN), one of the leading opponents of S 149 in the Senate, is retiring. Rep. Gilman is also retiring.

Juster stated that "The legislation that currently is pending in Congress -- based on Senate bill 149 -- would update and refine the dual use export control system in a way that is good for industry. It would help exporters by providing transparency, predictability, and time limits in the export licensing process. It sets forth procedures for U.S. companies to seek to decontrol mass market items and items that are readily available from foreign sources. It thus enhances the ability of U.S. companies to compete for legitimate international sales on a fair and equal footing with their foreign competitors."

He also addressed end user visits, exports to the PR China, the transshipment countries export control initiative.

FBI Memo Lists Problems with FISA E-Mail and Cell Phone Surveillance
10/10. The Electronic Privacy Information Center (EPIC) published in its web site a copy of a Federal Bureau of Investigation (FBI) memorandum [3 pages in PDF] pertaining to problems with electronic surveillance pursuant to the Foreign Intelligence Surveillance Act (FISA). The EPIC obtained the April 21, 2000 memorandum of the FBI's Counterterrorism Division as a result of a Freedom of Information Act (FOIA) request, and a related lawsuit.

The memorandum states that "different field offices have encountered difficulties in their management of electronic surveillance and physical searches authorized under FISA." It lists as examples unauthorized interception of e-mail messages and cell phone conversations.

For example, the memorandum states that "a target's E-Mail was correctly intercepted under FISA order. When time came to renew the FISA, the field office decided to omit E-Mail coverage since the coverage was not productive. Thus, the FISA renewal order did not cover E-Mail. The field office then continued to cover the target's E-Mail even though there was not authorization for E-Mail coverage in the FISA renewal order."

As another example, the memorandum states that "a field office secured a FISA order which authorized the coverage of a target's cell phone. Unknown to the field office, some time after the FISA order, the target gave up his cell phone, and the target's cell phone number was assigned by the cell phone carrier to a new person. The new owner of the cell phone spoke a language other than the language spoken by the target of the FISA. When the language specialist listened to the FISA tape, and hear a new language, the specialist reported it to the agent working the case. Nothing was done for a substantial period of time, and timely reportedly was not made to FBIHQ. The new owner of the cell phone number was therefore the target of unauthorized electronic surveillance for a substantial period of time."

The memorandum states that "Other examples include unauthorized searches, incorrect addresses, incorrect interpretation of a FISA order and overruns of ELSUR."

Cox and Wyden Introduce Global Internet Freedom Act
10/10. On October 2, Rep. Chris Cox (R-CA) and Rep. Tom Lantos (D-CA) introduced HR 5524, the Global Internet Freedom Act, in the House. On October 10, Sen. Ron Wyden (D-OR) and Sen. Jon Kyl (R-AZ) introduced S 3093, the companion bill in the Senate. The bill creates, and authorizes funding for, a new Office of Global Internet Freedom to counter Internet jamming and blocking by repressive regimes.

The legislation states that "All people have the right to communicate freely with others, and to have unrestricted access to news and information, on the Internet." However, it continues that "The governments of Burma, Cuba, Laos, North Korea, the People's Republic of China, Saudi Arabia, Syria, and Vietnam, among others, are taking active measures to keep their citizens from freely accessing the Internet and obtaining international political, religious, and economic news and information."

The bill recites that "Intergovernmental, nongovernmental, and media organizations have reported the widespread and increasing pattern by authoritarian governments to block, jam, and monitor Internet access and content, using technologies such as firewalls, filters, and `black boxes´. Such jamming and monitoring of individual activity on the Internet includes surveillance of e-mail messages, message boards, and the use of particular words; `stealth blocking´ individuals from visiting websites; the development of `black lists´ of users that seek to visit these websites; and the denial of access to the Internet."

It further states that "The Voice of America and Radio Free Asia, as well as hundreds of news sources with an Internet presence, are routinely being jammed by repressive governments." See also, story titled "AEI Panel Advocates ``Freeing the Chinese Internet´´" in TLJ Daily E-Mail Alert No. 416, April 23, 2002. A representative of the Voice of America (VOA) spoke about the blocking of the VOA web site by the government of the Peoples Republic of China.

The bill would create a new office within the International Broadcasting Bureau named the Office of Global Internet Freedom. Its task would be to "develop and implement a comprehensive global strategy to combat state sponsored and state directed Internet jamming, and persecution of those who use the Internet." The bill also authorizes the appropriation of $50 Million for fiscal years 2003 and 2004.

The bill also states that it is the sense of the Congress that the U.S. should "deploy, at the earliest practicable date, technologies aimed at defeating state directed Internet censorship and the persecution of those who use the Internet."

Rep. Cox and Sen. Wyden have collaborated many times in the past on Internet related legislation, usually with success. For example, the two led the effort in the 105th Congress to pass the Internet Tax Freedom Act.

Rep. Cox stated in a release that "Today, however, just as past governments have banned pamphlets, jammed radios, and committed their gravest atrocities out of the range of TV cameras, many governments are attempting to restrict an individual’s freedom to receive and exchange information by blocking the Internet. Our legislation will help end that abuse. The success of U.S. policy in support of freedom of speech, press, and association requires new initiatives to defeat totalitarian controls over the Internet."

Sen. Wyden (at right) stated that "Openness, transparency, and the unfettered flow of information have always been the allies of freedom and democracy. Over time, nothing erodes oppression and intolerance like the widespread dissemination of knowledge and ideas. And technology has often played a key role in this process. From the printing press to radio, technological advances have revolutionized the spread information and ideas and opened up new horizons for people everywhere. Not surprisingly, the foes of freedom, understanding the threat these technologies pose, have often responded with such steps as censoring the press, jamming radio broadcasts, and putting media outlets under state control." See, Congressional Record, October 10, 2002, at S10369.

He continued that "governments that fear freedom are trying to rein in the technology's potential. They block access to websites. They censor websites and email. They interrupt Internet search engines when users try explore the ``wrong´´ topics. They closely monitor citizens' Internet usage and make it known that those who visit the ``wrong´´ websites will be punished. Or they prevent Internet access altogether, by prohibiting ownership of personal computers."

Sen. Wyden also said that "There are technologies that can help defeat the firewalls and filters that these governments choose to erect. Proxy servers, intermediaries, ``mirrors,´´ and encryption may all have useful applications in this regard. But the U.S. Government has done little to promote technological approaches. This country devotes considerable resources to combat the jamming of Voice of America broadcasting abroad. But to date, it has budgeted only about $1 million for technologies to counter Internet jamming and censorship."

He concluded that "This country can and should do better. The Internet is too important a communications medium, and its potential as a force for freedom and democracy is too great, to make a second rate effort in this area."

ATP Announces Awards for 2002

10/8. The National Institute of Standards and Technology's (NIST) Advanced Technology Program (ATP) announced over $100 Million in awards, many of which pertain to computing and communications. The ATP is funding projects pertaining to photovoltaic silicon wafers, fuel cells on a chip for handheld devices, printed organic transistors on plastic for electronic displays and circuits, optical switches for routing data traffic, image compression, nanophotonic circuits integrated on semiconductor wafers, XML encryption, and other storage and nano technologies. See, ATP release.

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Tuesday, October 15

The House will meet at 12:30 PM for morning hour and at 2:00 PM for legislative business. No votes are expected. The House will consider a number of measures under suspension of the rules. It may take up HJRes __, the Dot Kids Implementation and Efficiency Act of 2002, sponsored by Rep. John Shimkus (R-IL). See, Whip Notice.

The Senate will meet at 10:00 AM for morning business. At 11:00 AM it will begin consideration of the conference report on HR 3295, the Election Reform Act.

9:00 AM - 12:00 NOON. The USPTO's Technology Center 2800 will hold a Semiconductor Customer Partnership Meeting to discuss the quality and timeliness of the examination process. (2800 pertains to semiconductors, electrical and optical systems and components.) See, USPTO notice. Location: Crystal Park 1, Suite 819, 2011 Crystal Drive, Arlington, VA.

12:00 NOON. James Rogan (Under Secretary of Commerce for Intellectual Property and Director of the USPTO) will give an address titled "Reaffirming Intellectual Property Rights in an Information Age". See, notice. Press contact: Brigid Quinn at brigid.quinn or 703 305-8341. Location: Heritage Foundation, 214 Massachusetts Ave., NE.

6:15 PM. The House Rules Committee will meet to adopt a rule for consideration of a resolution for further continuing appropriations for FY 2002.

Day one of a two day conference of the Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI) titled "How to be Successful with Patent and Trademark Litigation: Europe and the Far East". The agenda includes a business meeting (1:00 - 1:30 PM), a CLE seminar (1:30 - 5:00 PM), and a reception (5:00 - 6:30 PM). Location: Faculty Conference Room, Burns Building, 5th Floor, GWU Law School, 716 20th Street, NW.

Deadline to submit comments to the FCC in response to Qwest Communications' Section 271 application to provide in region interLATA service in the states of Colorado, Idaho, Iowa, Montana, Nebraska, North Dakota, Utah, Washington and Wyoming. This is WC Docket No. 02-314. See, FCC release [PDF].

Wednesday, October 16

The House will meet at 10:00 AM for legislative business. See, Whip Notice.

9:00 AM - 4:00 PM. The FCC will host a day long conference on rights of way management issues. See, FCC notice [PDF]. For more information contact Kris Monteith or Gene Fullano at 202 418-1400, kmonteit or gfullano Audio web cast. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

10:00 AM. The Senate Appropriations Committee's Treasury and General Government Subcommittee will hold a hearings on U.S. companies' moving their headquarters offshore. Location: Room 192, Dirksen Building.

11:00 AM - 12:00 NOON. James Rogan (Director of the USPTO) and Richard Russell (Associate Director for Technology of the White House Office of Science and Technology Policy) will lead a roundtable discussion on the future of innovation with 37 leading inventors, including Steve Wozniak (computers), Donald Keck and Peter Schulz (fiber optics), and Doug Englebart (mouse). See, list of participants. Press contact: Brigid Quinn at brigid.quinn or 703 305-8341. Location: Room 4830, Department of Commerce, 14th and Constitution, NW.

12:00 NOON. Treasury Secretary Paul O'Neill will speak to the National Association of Manufacturers (NAM) Board of Directors. Location: International Trade Center, Reagan Building, Amphitheater (Concourse Level).

1:30 - 3:00 PM. Sam Bodman (Deputy Secretary of Commerce), James Rogan (Director of the USPTO), and 37 leading inventors will hold an awards ceremony commemorating the bicentennial of the USPTO. Press contact: Brigid Quinn at brigid.quinn or 703 305-8341. Location: Auditorium, Commerce Dept., 14th & Constitution, NW.

6:00 - 8:00 PM. The FCBA's Transactional Practice Committee will host a CLE seminar titled "Bankruptcy Issues in FCC Practice". For more information contact Brian Weimer at 202 371-7604 or Laura Phillips at 202 842-8891. Registrations and cancellations due by 5:00 PM on October 14. Location: Skadden Arps, Conf. Rm. 11 A, 1440 New York Ave., NW.

Day two of a two day conference of the Association Internationale pour la Protection de la Propriété Intellectuelle (AIPPI) titled "How to be Successful with Patent and Trademark Litigation: Europe and the Far East". The agenda includes a CLE seminar (9:30 AM - 1:00 PM). Location: Faculty Conference Room, Burns Building, 5th Floor, GWU Law School, 716 20th Street, NW.

Thursday, October 17

The House will meet at 10:00 AM for legislative business. See, Whip Notice.

Day one of a three day annual meeting of the American Intellectual Property Law Association (AIPLA). See, brochure [38 pages in PDF]. Location: Grand Hyatt Washington, 1000 H Street, NW.

10:30 AM. The House Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "ECNs and Market Structure: Ensuring Best Prices for Consumers". Electronic Communications Networks (ECN) are electronic trading systems that automatically match buy and sell orders at specified prices. Webcast. Location: Room 2123, Rayburn Building.

3:00 PM. David Post (Temple University School of Law), will present a draft of a paper titled "Against Against Cyberanarchy". The lecture is sponsored by the George Washington University (GWU) Law School's Dean Dinwooodey Center for Intellectual Property Studies. For more information, contact Prof. Robert Brauneis at 202 994-6138. Location: GWU Law School, Burns Building, 5th Floor, Faculty Conference Center, 720 20th St., NW.

Day one of a two day conference titled "Open Source: A Case for e-Government". The event is hosted by infoDev, the Cyberspace Policy Institute of The George Washington University, and the UNDP. See, notice. Location: The World Bank, IFC Auditorium, 2121 Pennsylvania Ave.

Friday, October 18

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Office of Communications of the United Church of Christ v. FCC, No. 01-1374. This is a petition for review of a final order [30 pages in PDF] of the FCC approving the assignment of certain licenses from Chris Craft Industries to Fox Television Stations. The Church of Christ and others had opposed the transfer before the FCC, and now appeal the FCC's approval of the transfer. Location: Courtroom 20, 333 Constitution Ave., NW.

12:15 PM. The FCBA's Mass Media Practice Committee will host a brown bag lunch to conduct an organizational meeting. RSVP to Barry Umansky at 202 263-4128. Location: NAB, 1771 N St., NW.

Day two of a three day annual meeting of the American Intellectual Property Law Association (AIPLA). See, brochure [38 pages in PDF].

Day one of a two day conference titled "Open Source: A Case for e-Government". The event is hosted by infoDev, the Cyberspace Policy Institute of The George Washington University, and the UNDP. See, notice. Location: The World Bank, IFC Auditorium, 2121 Pennsylvania Ave.

Deadline to submit comments to the FCC regarding the petition for declaratory ruling in CC Docket No. 01-92 requesting that the FCC determine that wireless termination tariffs are not a proper mechanism for establishing reciprocal compensation arrangements between local exchange carriers (LECs) and commercial mobile radio service (CMRS) providers. See, FCC notice [PDF].

Saturday, October 19

Day three of a three day annual meeting of the American Intellectual Property Law Association (AIPLA). See, brochure [38 pages in PDF].

Monday, October 21

Deadline to submit comments to the FCC regarding its request to refresh its record regarding customer proprietary network information (CPNI) implications when a carrier goes out of business, sells all or part of its customer base, or seeks bankruptcy protection. This is the FCC's Third Further Notice of Proposed Rulemaking in CC Docket Nos. 96-115, 96-149 and 00-257. See, Notice in the Federal Register, September 20, 2002, Vol. 67, No. 183, at Pages 59236 - 59239.

Deadline to submit reply comments to the FCC in response to it Public Notice [7 pages in PDF] regarding relief for the Auction No. 35 winners. The FCC asks for public comments regarding two possible scenarios for providing relief to the winning bidders in the January 2001 re-auction of spectrum previously auctioned to NextWave: full refund and option to dismiss all pending applications, and selective opt out for pending applications. See also, Notice in the Federal Register, October 7, 2002, Vol. 67, No. 194, at Pages 62470 - 62472.