He was received warmly. Robert Litan introduced him. Litan prosecuted Microsoft before joining Brookings, and advocated its breakup thereafter. Reporters and others in the audience tossed him softball questions.

	Ballmer

Settlement of Antitrust Case. Ballmer stated that "The settlement with the Department of Justice and the states upheld two weeks ago is a fundamental part of what's different and new at Microsoft. This is a fair settlement, achieved through professional mediation with the Department of Justice and the state attorneys general. It was given the full scrutiny of a fair and impartial trial, based on a trial on remedies as well."

He continued that "The settlement contains new obligations, responsibilities, and regulations on our company. We fully accept them and we're fully committed to complying with them. We've already made many of the necessary changes, and we are dedicated, from the top down, to really living those obligations. We've taken a number of steps to disclose additional technical details about Windows, and to make the design and contractual changes required by the decree."

He next addressed Microsoft's antitrust compliance committee. He said that it "will be chaired by Dr. James Cash of the Harvard Business School. The Committee also has two others members Ann Korologos, a former Secretary of Labor who lives here in Washington, and is seated up here in the front, and Ray Gilmartin, the CEO of Merck Company."

He added that "As CEO of Microsoft, I can personally assure you that we will commit all the time, all the energy, and all the resources to follow through on our responsibilities under the decree."

He also commented on how Microsoft has changed during the course of the antitrust lawsuit. He said that "There's no question that when the lawsuit started, most of our industry did not race to support us. We went out and tried to listen, both to our supports and to our critics. We learned that we needed to take a different perspective on being a good industry leader."

"Even five years ago, I think we still tended to think of ourselves as kind of a small company that was just getting started. If you think about where we came from, that makes some sense. Today, though, we clearly recognize we are an important industry leader, whose decisions have an impact on other companies, large and small. We have an important leadership role to play, and there are new rules that apply, both legally and in terms of the needs and dictates that come from our industry," said Ballmer.

Ballmer also stated that Microsoft would be working more closely with other companies and with governments. He said, "Working better with our industry is one change. Working more closely with governments is yet another. We're working hard to reach out to cooperate with local, national, and global governments. In fact, I think we're really on the verge of a new era of partnership for our industry with government."

Settlement of FTC Privacy Complaint. He cited as an example Microsoft's quick settlement of the administrative complaint [6 pages in PDF] brought by the Federal Trade Commission (FTC) on August 8, 2002. It alleged violation of Section 5(a) of the Federal Trade Commission Act (FTCA) in connection with Microsoft's privacy and security practices. It focused on Microsoft's sign-on and online wallet services named Passport and Passport Express Purchase. See also, story titled "FTC Files and Settles Complaint Against Microsoft Regarding Privacy and Security" in TLJ Daily E-Mail Alert No. 488, August 9, 2002.

Ballmer said that "we reached an agreement with the FTC on security and privacy issues an agreement under which the federal government sets certain standards but permits us to continue to develop new and better technologies and operating approaches to meet these obligations. What could have been years of wrangling, frankly, became an agreement that I think will help create a more secure computing environment. Technology brings a host of wonders and conveniences, but it also brings with it new problems and challenges."

Security. He concluded that "Our industry can't solve all these problems alone, and we don't think governments often cannot solve them alone, either. We need to work together, on a global basis."

He also went into detail on computer and network security. He said that "Security is fundamentally an issue about a community of criminals looking to steal people's identities, break into banks, even terrorize the Internet. Last month we saw a concerted attack on the DNS servers designed to bring down the entire Internet. It failed, thank goodness, but people will try again and again."

"Identity theft alone last year cost consumers over $1 billion, and it's one of the fastest-growing crimes in the world. Too often when we all hear the word ``hackers´´ we think of teenagers trying to do something cute. In fact, with more and more critical business transactions done on the Internet, hacking is a big-time crime. And so we are stepping up our cooperation with law enforcement at all levels, helping to track down and identify thieves, and working with the Office of Cyber Terrorism", said Ballmer.

He also added that "Internally, we've adopted trustworthy computing standards that put security, privacy, and reliability really in at the ground floor, at the forefront of everything that we build. We're sending out security updates to make our products safer from those criminals. But no matter how high we all in our industry build the walls, we also have to work with government on an effective program to deter cyber-crime at its source and make sure that those who commit it are caught and convicted. Working together, industry and government can and will build a secure digital future."

Questions and Answer Session. Ballmer asked himself, rhetorically, "But what did you learn from all of this?" He responded that "I think we've learned a great deal from our experience in the last few years about our own responsibility in this context, as an industry leader." During the question and answer session a reporter asked Ballmer, what did you teach them? Ballmer was taken aback, but responded that "we haven't taught anything to anybody".

Ballmer was asked about whether Microsoft is working with or against the entertainment industry on copyright issues. He responded that "we are both producers of intellectual property" and that their "disagreements are about the hows, not the whethers".

He was also asked why Microsoft does not sell a stripped down version of Windows. He offered several reasons, including that a "junior product" does not sell, that "customers get confused by the distinction", and that "it is not what the real consumer wants".

He was also asked about Microsoft's views on proposed privacy legislation. He did not offer any expressions of support or opposition to any specific bills. However, he stated that "there does need to be a level of government involvement".

Ferguson stated that "Like its predecessor in 1990-91, the most recent recession was relatively mild; and the current recovery, compared with previous recoveries, has similarly been restrained." He added that "the 2001 downturn was led by a collapse in business spending, especially for equipment and software."

	Ferguson

He explained that "In retrospect, this downturn in investment seems to have been caused by an overbuilding of capital stocks in the late 1990s, especially in high-tech equipment. The boom in high-tech spending appears to have been sparked by the confluence of three key trends: the rapid growth in computing power generated by dramatic 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 use of personal computers. During this period of rapid change, the rate of return to investing in these new technologies and applications looked to be very high. These perceived high rates of return encouraged new firms, supported by investors eager for windfall financial gains, to enter these markets, and induced a record setting expansion of capital spending."

"As it turned out, however, some of these investments were overly optimistic and capital markets were not sufficiently discriminating. The expected returns to the new equipment did not materialize, and many of the new high-tech start-ups went bankrupt. As a result, the economy was left with a bulge in corporate defaults for investors to absorb, and an overhang of high tech capital, which has subsequently exerted a substantial drag on business spending and economic activity", said Ferguson.

Olson stated that the prosperity of the last decade "was fueled significantly by capital investment in information technology and in telecommunications capabilities. Ongoing advances in technology, related in part to this investment, further supported the level of economic activity. The resulting structural improvements in productivity allowed for significant growth both in output and in compensation to workers, who in turn could acquire consumer goods and make financial investments in debt and equity markets."

On May 31, 2002, a A three judge panel of the U.S. District Court (EDPenn) issued its opinion in American Library Association v. U.S., finding unconstitutional the library related provisions of the Children's Internet Protection Act (CIPA).

This matter is before the Supreme Court as an appeal, rather than on writ of certiorari, because the CIPA provides for this procedure. Section 1741 of the CIPA provides that any challenge to the statute be heard on an expedited basis by a three judge panel of the U.S. District Court. The plaintiffs filed a complaint in the U.S. District Court for the Eastern District of Pennsylvania, a venue disposed to finding Congressional statutes unconstitutional on First Amendment grounds.

The CIPA also provides that a holding by the three judge panel that any part of the CIPA is unconstitutional "shall be reviewable as a matter of right by direct appeal to the Supreme Court". So, the US skipped an appeal to the U.S. Court of Appeals, and appealed directly to the Supreme Court.

The CIPA requires, among other things, that schools and libraries receiving e-rate subsidies certify that they are using a "technology protection measure" that prevents library users from accessing "visual depictions" that are "obscene," "child pormography," and in the case of minors, "harmful to minors." The Court, applying strict scrutiny First Amendment free speech analysis, held that the portion of the statute affecting libraries receiving e-rate subsidies is unconstitutional. However, the CIPA, as it applies to schools, remains unaffected by this opinion.

The e-rate is a two and a half billion dollar per year program controlled by the Federal Communications Commission (FCC) under its universal service mandate. See, 47 U.S.C. § 254, and the FCC's schools and libraries web page. As implemented by the FCC, the e-rate program provides subsidies to schools, libraries and rural health clinics for telecommunications services, Internet access, and internal connections. The CIPA conditions receipt of e-rate subsidies on efforts to restrict access to Internet porm.

See also, story titled "District Court Holds Part of Children's Internet Protection Act Unconstitutional", TLJ Daily E-Mail Alert No. 442, June 3, 2002.

The U.S. Court of Appeals (FedCir) issued its opinion on December 17, 2001, three weeks before the Supreme Court heard oral argument in the Festo case. The Supreme Court issued its opinion [21 pages in PDF] in Festo on May 28, 2002. See, story titled "Supreme Court Vacates in Festo", TLJ Daily E-Mail Alert No. 439, May 29, 2002.

Intermatic holds U.S. Patent No. 5,280,135, titled "Outdoor Electrical Outlet Cover". It filed a complaint in U.S. District Court (NDIll) against Lamson & Sessions alleging patent infringement. The jury returned a verdict in favor of Intermatic. The Appeals Court addressed the issues of claim construction, literal infringement, the doctrine of equivalents, and invalidity. The Appeals Court affirmed in part and reversed in part. Judge Pauline Newman dissented in part, regarding the doctrine of equivalents.

The DOT stated in a release that this NPRM "would, if made final, eliminate several provisions of the existing rules. One of these is the requirement that each airline with an ownership interest in a CRS participate in competing systems at the same level at which it participates in its own, if the terms are commercially reasonable. Another is the rule prohibiting discriminatory booking fees. The department has tentatively concluded that these two rules may unduly limit the ability of airlines to bargain for better terms with the systems, and that ending them could allow market forces to provide better terms for carriers than they now have."

The DOT continued that "The NPRM would maintain the existing requirement that information in the systems be organized in an objective and unbiased manner. There may be a risk that systems, whether or not owned by airlines, would engage in display bias if not prohibited from doing so, the proposal said. In addition, DOT proposes to continue the equal-functionality requirement."

The DOT also stated that it "is not proposing to regulate the sale of airline tickets over the Internet, similar to its past decision that the CRS rules should not cover ``brick and mortar´´ travel agencies. The department will continue to address on a case by case basis any competition concerns raised by Internet travel services, such as in its ongoing informal investigation of Orbitz, the on-line agency created by the five largest airlines."

He stated, "On networked economy, a considerable number of issues remain under consideration. This year, cyber security has become the newest issue that we added. This is of considerable interest to both governments and industry, and close co-operation is foreseen on it. It will be of particular importance to balance the requirements imposed by cyber security with issues such as civil rights, data privacy, and proportionate data retention costs. We also agreed that there is a need for broad awareness of security issues in all sectors of the economy, and the TABD could usefully help by asking its members in all the sectors to report on what is undertaken and what the issues are faced."

He also stated, "On Mergers & Acquisitions, the Guidelines for coordinating future merger reviews between U.S. and EU antitrust agencies have just been finalised. The Guidelines reflect best practices, and the objectives are to enhance cooperation, minimize the risk of divergent outcomes, and reduce the burdens on parties involved in merger investigations. These are of course objectives that correspond well to the TABD's recommendations in this area."

See also, guidelines titled "US-EU Merger Working Group: Best Practices on Cooperation in Merger Investigations".

11/12. Jackson Day was named Acting Chief Accountant of the Securities and Exchange Commission (SEC). Day has been Deputy Chief Accountant since September 2000. Prior to that, he was a partner in Ernst & Young's National Office of Professional Practice in New York. He replaces Robert Herdman, who just resigned. See, SEC release.

11/12. The Business Software Alliance (BSA) presented its Cyber Champion Award to Prime Minister Costas Simitis of Greece, Vice President Carlos Quintanilla Schmidt of El Salvador, and Henry Tang, Secretary for Commerce, Industry and Technology of Hong Kong. See, BSA release.

The bill authorizes the appropriation of $903 Million over five years for cyber security related research and education programs to be run by the National Science Foundation (NSF) and the National Institute of Standards and Technology (NIST). The bill is sponsored by Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, and others. See, Science Committee summary of the bill, and funding table.

Rep. Boehlert stated in the House that "We received yet another reminder of that monumental fact last month when the servers that run the Internet in the U.S. were subject to a concerted attack from overseas. H.R. 3394 is designed quite simply, to usher in a new era in cybersecurity research. Cybersecurity research will no longer be a backwater, but rather will become a priority at two of our premier research agencies". See, floor statement.

9:00 AM - 5:30 PM. Day two of a two day conference titled "W3C Workshop on the Future of P3P". The topic is the the World Wide Web Consortium's (W3C) Platform for Privacy Preferences Project (P3P). See, agenda. See also, links to copies of submitted papers. Location: Dulles, Virginia campus of America Online, Seriff Auditorium, Creative Center 2, America Online Dulles campus; enter the campus at Creative Center 3 (CC3), 22110 Pacific Blvd, Dulles, VA.

9:00 AM. Day one of a two day meeting of Information Systems Technical Advisory Committee (ISTAC) of the Commerce Department's Bureau of Industry and Security (formerly known as the Bureau of Export Administration). The ISTAC advises the BIS on technical questions that affect the level of export controls applicable to information systems equipment and technology. The meeting will be partly open, and partly closed. The agenda for the open portion of the meeting includes a presentation on China's high performance computing market and a presentation on semiconductor manufacturing trends. The agenda for the closed portion of the meeting is secret. See, notice in the Federal Register, October 22, 2002, Vol. 67, No. 204, at Page 64868. Location:  Room 3884, Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW.

12:00 NOON - 1:30 PM. The National Telecommunications Cooperative Association (NTCA) will host a press luncheon to unveil the NTCA's legislative initiatives for 2003. Contact Donna Taylor at 703 351-2086 or dtaylor@ntca.org no later than Tuesday, November 12. Location: National Press Club, 529 14th Street, NW.

12:15 PM. The FCBA's Mass Media Practice Committee will host a brown bag lunch. The topic will be radio issues. The speakers will be Peter Doyle (Chief of the FCC's Audio Division) and other FCC staff. RSVP to Barry Umansky at 202 263-4128 or barry.umansky @thompsonhine.com. Location: National Association of Broadcasters, 1771 N St., NW, 1st floor conference room.

6:00 PM. The Center for Democracy and Technology (CDT), Truste, and Privastaff will host a book signing and wine and cheese reception for Ann Cavoukian, Information and Privacy Commissioner of Ontario and co-author of The Privacy Payoff: How Successful Business Build Customer Trust. For more information, contact LuJuan Brooks at 202 637-9800 or lbrooks@cdt.org. Location: National Press Club, 529 14th St. NW, 13th Floor.

Day one of a three day conference of the Federalist Society. At 1:45 - 3:15 PM there will be a panel titled "Privacy in the Post-September 11 World". The speakers will be Viet Dinh (DOJ), Lino Graglia (University of Texas School of Law), Robert Levy (Cato), Barry Steinhardt (ACLU), George Terwilliger (White & Case), and Judge Edith Clement (Court of Appeals, 5th Circuit). At 3:50 - 5:20 PM there will be a panel titled "Telecommunications Group: Privacy, Telecommunications, and Technology: Does Emerging Technology Force New Privacy Considerations?" The speakers will be Kathleen Abernathy (FCC Commissioner), Stewart Baker (Steptoe & Johnson), Jerry Berman (CDT), Reid Cox (Center for Individual Freedom), James Harper (privacilla.org), and Judge Stephen Williams (Court of Appeals, D.C. Circuit). See, schedule and online registration page. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

The Cato Institute will host a day long conference titled "Telecom and Broadband Policy After the Market Meltdown". See, notice. Webcast. Location: Cato, 1000 Massachusetts Ave., NW.

TIME? Day one of a two day conference hosted by Cellular Telecommunications and Internet Association (CTIA) titled "Homeland Security Critical Issues Forum". Its subject matter will include network security and reliability, physical and cyber security, network vulnerabilities, and how other critical infrastructures may impact CMRS networks. The event is closed to the public. At 12:30 PM Dick Clarke, Special Advisor to the President for Cyberspace Security and Chairman of the President’s Critical Infrastructure Protection Board, will speak. A CTIA release states that "Only lunch sessions are open to the media. Credentials required for admittance." For more information, contact Kimberly Kuo at 202 736-3202 or Kkuo@ctia.org. Location: Omni Shoreham Hotel, Empire Ball Room, 2500 Calvert Street, NW.

8:30 - 9:30 AM. The High Tech Broadband Coalition (HTBC) will host a press briefing breakfast regarding its participation in the FCC's proceedings pertaining to regulatory treatment of high speed Internet access. The HTBC wants the FCC to relax regulatory restraints imposed on incumbent local exchange carriers (ILECs) in the roll out of high speed Internet access. The participants will include E. Van Cullens (Westell), Jim Hjartarson (Catena Networks), Michael Norris (NextLevel Communications), Gregory Jones (Texas Instruments), Jerry Fiddler (Wind River Systems), George Nolan (Siemens), George Brunt (Alcatel), Doug Clark (ADC), Matt Flanigan (TIA), and Gary Shapiro (Consumer Electronics Association). Press contact: Jeri Clausing (BSA) at (202 530-5127 or jeric@bsa.org. Location: National Association of Manufacturers, 1331 Pennsylvania Ave., Suite 600, NW. Enter off F St. between 13th & 14th Streets.

9:00 AM. Day two of a two day meeting of Information Systems Technical Advisory Committee (ISTAC) of the Commerce Department's Bureau of Industry and Security (formerly known as the Bureau of Export Administration). The ISTAC advises the BIS on technical questions that affect the level of export controls applicable to information systems equipment and technology. The meeting will be partly open, and partly closed. The agenda for the open portion of the meeting includes a presentation on China's high performance computing market and a presentation on semiconductor manufacturing trends. The agenda for the closed portion of the meeting is secret. See, notice in the Federal Register, October 22, 2002, Vol. 67, No. 204, at Page 64868. Location: Room 3884, Hoover Building, 14th Street between Pennsylvania and Constitution Ave., NW.

10:00 AM. The Senate Judiciary Committee will hold a business meeting. Location: Room 226, Dirksen Building.

12:00 NOON. Deputy Treasury Secretary Kenneth Dam will give a speech to the Tax Foundation 65th National Conference. Location: Four Seasons Hotel, 2800 Pennsylvania, Ave., NW.

2:00 PM. The Senate Judiciary Committee's Subcommittee on on Technology, Terrorism, and Government Information will hold a hearing titled "America Still Unprepared -- America Still in Danger: The October 2002 Hart -- Rudman Terrorism Task Force Report". Sen. Dianne Feinstein (D-CA) will preside. Location: Room 226, Dirksen Building.

9:00 AM - 3:30 PM. EntrepreneurPR will host an event titled "Small Business Intellectual Property Conference". The scheduled speakers include Sharon Marsh (Administrator for Trademark Policy and Procedure, USPTO) and Michael See (Small Business Administration). The price to attend is $125. The notice states that there are "no fees for members of the media or government staff". Location: Room 311, Cannon House Office Building.

TIME? Day two of a two day conference hosted by Cellular Telecommunications and Internet Association (CTIA) titled "Homeland Security Critical Issues Forum". Its subject matter will include network security and reliability, physical and cyber security, network vulnerabilities, and how other critical infrastructures may impact CMRS networks. The event is closed to the public. At 12:30 PM, Nancy Wong, Deputy Director, National Outreach and Awareness, Critical Infrastructure Assurance Office (CIAO), will speak. A CTIA release states that "Only lunch sessions are open to the media. Credentials required for admittance." For more information, contact Kimberly Kuo at 202 736-3202 or Kkuo@ctia.org. Location: Omni Shoreham Hotel, Empire Ball Room, 2500 Calvert Street, NW.

CANCELLED: TO BE DECIDED WITHOUT ORAL ARGUMENT. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Aerco Broadcast Corp v. FCC, No. 01-1466. Judges Sentelle, Henderson and Silberman will preside. Location: Courtroom 20, 333 Constitution Ave., NW.

8:00 - 11:00 AM. There will be an event titled "Homeland Security Financing Briefing". It is organized by Equity International. For more information, contact Bill Loiry or Carrie Brown at 202 756 2244. Location: Holeman Lounge, National Press Club, 529 14th St., NW.

Deadline to submit comments to the President's Critical Infrastructure Protection Board regarding the document titled "National Strategy to Secure Cyberspace", which was released on September 18. For more information, contact Tommy Cabe at 202 456-5420. See, notice in the Federal Register.

12:15 PM. The FCBA's Common Carrier Committee will host a brown bag lunch. The speakers will be the FCC Commissioners' wireline competition advisors. Location: Willkie Farr & Gallagher, 1875 K Street, 2nd Floor, NY Conference Room.

5:30 - 6:45 PM. Richard Posner, Judge of the U.S. Court of Appeals (7thCir), will give a lecture titled "The Political Economy of Intellectual Property Law" at an AEI-Brookings Joint Center event. A wine and cheese reception will follow at 6:45 PM. See, online registration page. Location: AEI, Wohlstetter Conference Center, 12th Floor, 1150 17th Street, NW.

6:00 - 8:00 PM. The FCBA will host a CLE seminar titled "The FCC’s Triennial Review of Unbundled Network Elements: How Significant are UNE-P and other UNEs to Local Competition?" Registrations and cancellations due by 5:00 PM on November 15. Location: Dow Lohnes & Albertson, Suite 800, 1200 New Hampshire Avenue, NW.

Deadline to submit reply 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.

Deadline to submit applications for planning and construction grants to the NTIA for public television facilities under the Public Telecommunications Facilities Program (PTFP). See, notice in the Federal Register.

Vertical restraints was one of the many issues that he addressed in this text . For example, he stated that "The Internet has made it possible for producers to communicate directly with ultimate consumers more efficiently than ever before, and this potential presents an obvious threat to intermediaries in the distribution chain. Predictably, these middlemen have responded both with private arrangements and with successful appeals for state legislation, designed to preserve the status quo. Some of the issues raised by these defensive measures relate directly to efficiencies." (Footnote omitted.)

He continued that "Those who seek to preserve the viability of existing middlemen may argue, for example, that the potential efficiencies of Internet sales need to be adjusted downward to account for potential adverse effects in quality and services delivered. (They also may raise health and safety concerns which are difficult to weigh in an efficiencies calculus, but somehow the serious concerns have to be distinguished from the trivial.)" (Parentheses in original.)

11/12. The Supreme Court heard oral argument in Moseley v. V. Secret Catalogue, No. 01-1015. This is a trademark case in which the issue is whether the plaintiff in a lawsuit for violation of the Federal Trademark Dilution Act (FTDA) must show actual economic loss. See, story titled "Supreme Court Grants Certiorari in Trademark Case" in TLJ Daily E-Mail Alert No. 416, April 16, 2002, and story titled "INTA Files Amicus Brief in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 501, September 4, 2002. See, also International Trademark Association's (INTA) amicus curiae brief [39 pages in PDF], and Intellectual Property Owners Association (IPO) amicus curiae brief [18 pages in PDF].

11/12. The Federal Communications Commission (FCC) published a notice in the Federal Register announcing the release of FCC Forms 470 and 471 and accompanying instructions, to be used by applicants seeking e-rate subsidies under the schools and libraries universal service support mechanism. For more information, contact Narda Jones in the FCC's Wireline Competition Bureau at 202 418-7400.

11/8. The U.S. Court of Appeals (DCCir) issued its "unpublished" disposition [PDF] in Church of Christ v. FCC, a petition for review of the Federal Communications Commission's (FCC) order approving Fox Television Stations' acquisition of the licenses and assets of ten television stations owned by Chris Craft Industries. It upheld the FCC order.