Tech Law Journal Daily E-Mail Alert
October 25, 2002, 9:00 AM ET, Alert No. 535.
TLJ Home Page | Calendar | Subscribe | Back Issues
EPIC Files Complaint Against DOJ Seeking Records Relating to Implementation of USA PATRIOT Act
10/24. The Electronic Privacy Information Center (EPIC) and others filed a complaint [12 pages in PDF] in U.S. District Court (DC) against the Department of Justice (DOJ) alleging violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, in connection with the DOJ's failure to respond to plaintiffs' FOIA request for records pertaining to the DOJ's implementation of the USA PATRIOT Act.

The USA PATRIOT Act was passed late last year in response to the terrorist attacks of September 11. The complaint alleges that "there has been growing public concern about the scope of the Patriot Act and the government’s use of authorities thereunder, particularly in relation to constitutionally protected rights. Plaintiffs seek records that are critical to the public’s ability to evaluate the government’s use of vast new surveillance powers, and whose release can only serve national security, not undermine it."

The EPIC submitted a FOIA request to the DOJ and Federal Bureau of Investigation (FBI) on August 21, 2002. The document requested, among other things, records pertaining to the number of times the government has authorized the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime and the number of times the government has initiated surveillance of Americans under the expanded Foreign Intelligence Surveillance Act (FISA).

The complaint requests that the Court order the DOJ "immediately to state which records it intends to disclose in response to plaintiffs’ FOIA request" and "immediately to process plaintiffs' FOIA request and to disclose the requested records".

The other plaintiffs are the American Booksellers Foundation for Free Expression (ABFFE), the Freedom to Read Foundation (FTRF), and the American Civil Liberties Association (ACLU). David Sobel of the EPIC signed the complaint. See also, ACLU release.

FRB Vice Chairman Addresses Impact of Computer and Software Technology on Productivity Gains
10/24. Federal Reserve Board (FRB) Vice Chairman Roger Ferguson gave a speech at the London Business School titled "Productivity Growth: A Realistic Assessment ". He offered his analysis of why productivity has grown in recent years, and even during the recent economic downturn. His analysis is based in large part on developments in, and adoption of, computer and software technologies.

Ferguson stated that "Productivity is a cyclical variable that typically falls in recessions. However, during the most recent downturn, productivity never declined and instead continued to grow at a fairly strong pace.  ... output per hour in the nonfarm business sector has grown in excess of 5 percent over the last four quarters."

He said that "I believe that trend labor productivity in the United States accelerated in the mid 1990s. That acceleration reflected several factors not tied to the strong business expansion: notably, an apparent pickup in the pace of technological progress -- especially in the so-called high tech sector -- as well as a surge in capital spending by businesses. But other factors were also at work, including well aligned monetary and fiscal policies that created an economic environment conducive to noninflationary economic growth. In addition, our economy continued to benefit from past actions by the government to deregulate industries."

Citing a study by FRB economists Steve Oliner and Dan Sichel, Ferguson (at right) stated that "From 1995 to 2001, labor productivity grew at an annual pace of 2-1/4 percent." He continued that the Oliner Sichel study found "that about half the acceleration in productivity can be attributed to capital deepening. As you know, providing workers with more equipment improves their efficiency. At the aggregate level, the high levels of business investment raised the amount of capital per worker and thereby boosted productivity. Also, most of the faster capital deepening reflected spending by businesses on high-tech equipment, mainly computer hardware and software. The other half of the pickup in productivity growth reflected technological innovations in the actual production of computer hardware and semiconductors as well as better management--perhaps assisted by these high tech investments -- of the nation's capital and labor. Oliner and Sichel estimate that, if one consolidates all the influences of high tech investments, they fully account for the acceleration in productivity over the 1995-2001 period."

Ferguson also used this speech to address recent developments in the high tech sector, and its prospects for recovery.

He said that "In the 1990s, the high tech boom appears to have been sparked by the confluence of three key trends: the rapid growth in computing power generated by explosive advances in semiconductor technology; the advent of new networking technologies that permitted computers to communicate more easily with each other in private networks and through the public Internet; and the development of software programs that facilitated these interactions and greatly expanded the uses of personal computers. During such a period of rapid change, the rate of return to investing in these new technologies and applications seemed to be very high. The spectacular financial returns from investing in leading edge technology companies induced new firms to enter these markets, supported by investors eager for windfall financial gains. As these new firms set up or expanded their operations, capital spending surged. For a time, investors seemed to think that high-tech companies were low risk, high return investments. But, as we all now know, they were wrong."

He explained that "Ultimately, more businesses entered the high tech field than could be supported by the substantial growth in demand in this sector. Businesses overinvested in high tech equipment, and when profits failed to materialize, many of these firms went bankrupt. In the end, the economy was left with an overhang of high tech capital, which is exerting a drag on economic activity to this day."

He then turned to the future of the high tech sector. He asked rhetorically, "Does this experience call into question the economic potential of these new information technologies?" He responded, "I don't think so. In the exigencies of the moment, one can easily lose sight of how much progress has been made over the past decade as a result of these new technologies. It is true that rates of return to high tech investments were not as high as the most optimistic once thought. However, these technologies have truly changed the way businesses operate, and I believe that they will continue to do so in the future."

He continued that "I will assert that its economic prospects still seem positive over the long run. The capital overhang -- especially in the telecommunications industry -- obviously must be eliminated before any meaningful expansion can occur, and some additional consolidation may be necessary if businesses are to be profitable in the long run. But I, like many other observers, think such change is occurring and is likely to bear fruit in the years to come."

FRB Chairman Alan Greenspan gave a speech on productivity gains on October 23. See also, story in TLJ Daily E-Mail Alert No. 534, October 24, 2002.

Colin Powell Addresses Digital Divide
10/24. Secretary of State Colin Powell gave a speech at the Asia Pacific Economic Cooperation (APEC) Plenary in Los Cabos, Mexico. He made a vaguely worded proposal to "close the digital divide". However, he did not identify what he meant by the phrase "digital divide", and just how he proposes to close it.

Powell stated that "On education, we are taking better advantage of the opportunities created by the information technology revolution to reach out to the peoples of APEC and bridge the digital divide among us. We are developing ``the Asia Pacific Network for Education´´ with the APEC cyber education cooperation consortium. This web portal provides a single entry point for policymakers and teachers to learn about best practices in education throughout the APEC region."

He continued that "U.S. companies are providing computer training to information technology professionals and others from all around the APEC region as part of China's human capacity building promotion program. And the United States has entered into a project with the People's Republic of China to teach English and Chinese using web based technology. Indeed, APEC is increasingly active in connecting our worlds and improving our schools. And by better coordinating our activities, we could realize many more concrete results."

He stated that "I propose that we take our efforts a step further, and ask our officials in APEC to develop a long range strategy on e-learning. The goal would be to help close the digital divide by increasing the number of high quality, low cost educational resources available to the peoples of APEC. The United States will devote time and resources to help the education network develop and implement this strategy. And we would welcome partners in this effort, such as the APEC education foundation."

He concluded that "Teaching people new skills only empowers them, however, if they have the opportunity to use those skills to better their lives. Improved access to financing leads to greater economic well being. In turn, greater economic security allows people to invest in healthcare and to invest in education, and ultimately, in themselves."

House Committee Releases DOJ Responses to Questions About USA PATRIOT Act
10.17. The House Judiciary Committee (HJC) published in its web site answers from the Department of Justice (DOJ) to its questions regarding how the DOJ is implementing the USA PATRIOT Act, which was passed late last year in the wake of the terrorists attacks of September 11, 2001. In the area of new and expanded electronic surveillance powers, the DOJ's responses provided little information in response to key questions.

On June 13, 2002, Rep. James Sensenbrenner (R-WI) and Rep. John Conyers (D-MI), the Chairman and ranking Democrat on the HJC, wrote a letter to Attorney General John Ashcroft which propounded numerous questions regarding the implementation of the USA PATRIOT Act. On July 26, 2002, Assistant Attorney General Daniel Bryant wrote a letter [PDF] which constitutes the response of the DOJ. On October 17, 2002, the HJC published this letter in its web site.

Question No. 13 asked "How many roving pen register and trap and trace orders have been issued under section 216 of the Act? How many ``Armey´´ notices, reporting on the details of the installation of roving pen registers or trap and trace devices, have been filed with U.S. courts pursuant section 216 of the Act? How many ``Armey´´ notices were related to a terrorism investigation?"

There is no answer to this question in the copy of the DOJ letter published in the HJC web site.

This is a key question. Section 216 of the Act expanded pen register and trap and trace authority from telephone calls to Internet communications. Previously, pen register authority applied to recording the numbers that are dialed or punched into a telephone, while a trap and trace applied to incoming numbers. The Act expanded these concepts to include addressing and routing information. It also provided that a single order shall apply nationwide. This Section 216 serves as the legal authority for technologies that monitor e-mail systems, such as the FBI's Carnivore.

Question No. 5 of the HJC letter asked as follows: "Section 203(b) authorizes disclosure of Title III electronic, wire, and oral intercept information consisting of certain foreign intelligence or counterintelligence information to (1) Federal law enforcement; (2) intelligence officials; (3) protective officials; (4) immigration officials; (5) national defense officials; or (6) national security officials. How many times has the Department of Justice made such disclosures under this authority?"

The DOJ did not provide a responsive answer. It wrote, in full, that "The Department has made disclosure to the intelligence community under this authority on two occasions."

Question No. 9 asked as follows: "Section 212 of the Act authorizes any electronic communications service provider to disclose communications if it reasonably believes that an emergency involving immediate danger of death or physical injury to any person requires disclosure. How many times has the Department of Justice received information under this authority? In how many of those cases did the government, not a private person, submit the information suggesting immediate danger of death or physical injury?"

The DOJ response does not state how many times. The DOJ responded as follows: "This important provision of the USA PATRIOT Act has given Internet service providers (ISPs) the legal authority that they need to disclose information in order to save lives. Although we have received anecdotal accounts of its use, there are no statistics detailing the number of times that disclosures have occurred or the basis for such disclosures. However, it has been used on several occasions, including to permit ISPs to disclose records that assisted law enforcement in tracing the source of a kidnapper's communications."

Question No. 14 asked "Since enactment of the Act, how many FISA surveillance order applications certifying under section 218 of the Act that ``a significant purpose´´ of the surveillance was the collection of foreign intelligence information could not have certified, pursuant to prior law, that ``the purpose´´ was the collection of foreign intelligence information?"

The DOJ's response did not state how many. Rather, the response pertains to why it does not state how many. The DOJ wrote: "Because we immediately began using the new ``significant purpose´´ standard after passage of the PATRIOT Act, we had no occasion to make contemporaneous assessments on whether our FISAs would also satisfy a ``primary purpose´´ standard. Therefore, we cannot respond to the question with specificity. The ``primary purpose´´ standard, however, has had its principal impact not with respect to the government's certification of purpose concerning the use of FISA itself, but rather in the FISC's tolerance of increased law enforcement investigations and activity connected to, and coordinated with, related intelligence investigations in which FISA is being used. Given the courts' approach in this area, the "significant purpose" amendment has the potential for helping the government to coordinate its intelligence and law enforcement efforts to protect the United States from foreign spies and terrorists.

Question No. 17 asked "How many search warrants for electronic evidence have been served under section 220 of the Act in a jurisdiction other than the jurisdiction of the court issuing the warrant?"

The DOJ responded that "the exact number of search warrants for electronic evidence that have been executed outside the issuing district is unknown".

However, it went on to state that "the impact of Section 220 has plainly been significant. In the aftermath of September 11th, districts in which large Internet service providers reside (most notably the Eastern District of Virginia and the Northern District of California) were inundated with search warrant applications, placing a tremendous burden on federal agents and prosecutors and federal magistrates in those districts. The sheer volume of applications relevant to important investigations made it difficult to process them in a deliberate, timely fashion."

The DOJ added that "the improvement in efficiency has proved invaluable in several time sensitive investigations, including one involving tracking a fugitive and another involving a hacker who used stolen trade secrets to extort a company."

Question No. 22 asked as follows: "Section 211 of the Act was intended to clarify what information cable companies could disclose to law enforcement authorities. How has this provision operated in practice?"

The DOJ responded that "Before the enactment of Section 211, when law enforcement sought to compel production of information relevant to a criminal investigation from cable companies that provided telephone or Internet service, the companies confronted a difficult dilemma: comply with the Cable Act and risk liability for violating the Electronic Communications Privacy Act (ECPA), or comply with ECPA and risk liability for violating the Cable Act. Important investigations were brought to a standstill while this conflict was debated by the providers’ legal counsel or litigated in court. One particularly unfortunate case involved investigation of a suspected pedophile who distributed images of child pormography using a cable Internet connection and bragged that he was sexually molesting a minor girl. Law enforcement agents obtained a court order pursuant to ECPA that commanded the suspect’s provider to disclose the suspect’s name and address, but the provider refused to comply with the order, citing the pre-amendment Cable Act. The young girl was left at risk of sexual molestation for more than two weeks before investigators following other leads were able to identify and arrest the suspect. Only after the arrest did the cable company finally turn over the records."

The DOJ continued that "Section 211 clarifies that ECPA, not the Cable Act, governs the disclosure of information regarding communication services provided by cable companies. This amendment ended all litigation on this question, and cable providers now routinely comply with legal process pursuant to ECPA without fear of liability under the Cable Act. Moreover, important investigations, such as that described above, are no longer hampered by this apparent conflict in the law."

More News
10/23. The Federal Trade Commission (FTC) announced that it settled two actions pending U.S. District Courts against deceptive spammers for violating of Section 5 of the Federal Trade Commission Act. See, FTC release. See also, Stipulated Judgment and Order for Permanent Injunction [PDF] in FTC v. Sonya Lockery (U.S.D.C, DConn), and Stipulated Judgment and Order for Permanent Injunction [PDF] in FTC v. Richard Scott (U.S.D.C., EDCal). Both documents were filed in early October. The FTC made its announcement on October 23.

10/24. The Office of the U.S. Trade Representative (USTR) announced that USTR Robert Zoellick and Thai Minister of Commerce Adisai Bodharamik "signed a bilateral agreement today to promote the liberalization of trade and investment between the two countries. The Trade and Investment Framework Agreement (TIFA) creates a Joint Council to further facilitate and liberalize trade and investment, including such areas as intellectual property, information technology, biotechnology policy, and capacity building, as well as coordination in the APEC and the WTO." See, USTR release [PDF]. The USTR has not yet published the agreement in its web site.

Friday, October 25
8:00 AM - 3:15 PM. The National Science Foundation's Advisory Committee for Computer and Information Science and Engineering will hold a meeting. For more information, contact Gwen Blount at 703 292-8900. See, notice in Federal Register, October 8, 2002, Vol. 67, No. 195, at Page 62834. Location: Hilton Arlington and Towers, Master Ballroom, 950 N. Stafford Street, Arlington, VA.

10:00 AM - 12:30 PM and 2:00 - 4:00 PM. The FTC and the DOJ's Antitrust Division will hold the final workshops in their joint series titled "Competition and Intellectual Property Law and Policy in the Knowledge Based Economy" on October 25 and 30 and November 6. The October 25 event is titled "Competition, Economic, and Business Perspectives on Patent Quality and Institutional Issues: Competitive Concerns, Prior Art, Post Grant Review, and Litigation". Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

Deadline for the DOJ's Antitrust Division to release its evaluation of BellSouth's Section 271 application with the FCC to provide in region interLATA service in the states of Florida and Tennessee. This is WC Docket No. 02-307.

Monday, October 28
The Senate will meet at 10:30 AM in pro forma session only.
Tuesday, October 29.
TIME? The Securities and Exchange Commission (SEC) will hold a full day hearing on issues relating to the structure of the U.S. equity securities markets. The SEC stated in a release that the topics will include "the collection, consolidation and dissemination of market data through intermarket plans; broker dealers' duty of best execution and corresponding marketplace rules relating to intermarket access, trade throughs, and price protection; the role of national securities exchanges, electronic communications networks (ECNs), and alternative trading systems; and the self regulatory system". Location: SEC.

8:45 AM - 3:45 PM. The National Institute of Standards and Technology's (NIST) Advanced Technology Program (ATP) Advisory Committee will hold a partially closed meeting. The agenda includes a review of ATP policy, organization, and budget, and an update from an international community panel on technology programs. Pre-registration is required to attend; contact Carolyn Peters by Thursday, October 24, at carolyn.peters or 301 975-5607. See, notice in Federal Register. Location: NIST, Administration Building, Lecture Room B, Gaithersburg, MD.

12:15 PM. The FCBA's Common Carrier Committee will host a brown bag lunch. The speaker will be Bill Maher, Chief of the FCC's Wireline Competition Bureau. Location: Willkie Farr & Gallagher, 1875 K Street, 2nd Floor, NY conference Room.

Deadline for the DOJ's Antitrust Division to release its evaluation of SBC's Section 271 application with the FCC to provide in region interLATA service in the state of California. This is WC Docket No. 02-306.

Wednesday, October 30
POSTPONED TO APRIL 30, 2003. The FCC will hold Auction No. 46. This is the 1670-1675 MHz band auction. See, notice of postponement in Federal Register, October 10, 2002, Vol. 67, No. 197, at Pages 63095 - 63096.

9:00 AM - 12:00 NOON. The Telecommunications Service Priority (TSP) System Oversight Committee will hold a meeting. The agenda includes TSP/WPS program update, TSP sponsorship policies, and OSS concept. For more information, contact Deborah Bea at 703 607-4933. See, notice in the Federal Register. October 11, 2002, Vol. 67, No. 198, at Page 63452. Location: National Communications System (NCS), second floor conference room, 701 South Court House Road, Arlington, VA.

10:00 AM - 12:00 NOON and 2:00 - 4:00 PM. The FTC and the DOJ's Antitrust Division will hold the final workshops in their joint series titled "Competition and Intellectual Property Law and Policy in the Knowledge Based Economy" on October 25 and 30 and November 6. The October 30 event is titled "Competition, Economic, and Business Perspectives on Substantive Patent Law Issues: Non-Obviousness and Other Patentability Criteria". Location: FTC, Room 432, 600 Pennsylvania Ave., NW.

12:00 NOON. Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding the acts, policies, and practices of trading partners of the U.S. that are relevant to the decision as to whether they should be identified under Section 182 of the Trade Act of 1974 (19 U.S.C. § 2242). Section 182, which is commonly referred to as the "Special 301" provisions in the Trade Act, requires the USTR to identify countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The USTR also requests comments on the U.S. Government's 1998 Memorandum of Understanding with Paraguay on intellectual property matters, including enforcement. See, notice in the Federal Register

12:30 PM. The FCBA's Online Communications Committee will hold a brown bag lunch. The topic will be the role of ISPs in security and law enforcement compliance. The speakers will be Christopher Bubb (AOL Time Warner) and Betty Ellen Shave (Associate Chief for International Matters, Computer Crime and Intellectual Property Section, Department of Justice. Location: Cole Raywid & Braverman, 1919 Pennsylvania Ave., NW, No. 200.

EXTENDED TO DECEMBER 6. Deadline to submit comments to the FCC in response to its Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Copy Protection". This NPRM proposes that the FCC promulgate a broadcast flag rule, and seeks comment on this, and related questions. This is MB Docket No. 02-230. See also, FCC release [PDF]. See also, Order [PDF] of October 11, 2002 extending deadlines.

Thursday, October 31
The Senate will meet at 10:30 AM in pro forma session only.

8:30 AM- 4:15 PM. Day one of a two day CLE seminar hosted by the FCBA titled "Communications Law 101: A Practitioner's Primer". The price to attend is $250 for lawyers and paralegals in private practice or corporate positions, and $125 for those in government service, non-profit positions or in law school. Location: Georgetown Univ. Law Center, 600 New Jersey Ave., NW.

12:00 NOON - 1:00 PM. The National Telecommunications Cooperative Association (NTCA) will host a luncheon to release the results of its 2002 Wireless Survey. RSVP to Donna Taylor at 703 351-2086 or by October 28. Location: NTCA Headquarters, 4121 Wilson Blvd., 10th floor, Arlington, VA. If traveling by Metro, go to the Ballston/MU on the orange line.

2:30 - 4:30 PM. The FCC's WRC-03 Advisory Committee will meet. See, notice in the Federal Register. Location: FCC, 445 12th Street, SW, Room TW-C305.

Friday, November 1
8:30 AM - 1:00 PM. Day two of a two day CLE seminar hosted by the FCBA titled "Communications Law 101: A Practitioner's Primer". The price to attend is $250 for lawyers and paralegals in private practice or corporate positions, and $125 for those in government service, non-profit positions or in law school. Location: Georgetown University Law Center, 600 New Jersey Ave., NW.

Deadline to submit reply comments to the FCC regarding BellSouth's Section 271 application with the FCC to provide in region interLATA service in the states of Florida and Tennessee. This is WC Docket No. 02-307. See, FCC notice [PDF].

Deadline to submit reply 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].

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.