The DVD Copy Control Association (DVD CCA), a nonprofit trade association with its principal place of business in California, filed a complaint in the Superior Court of California for Santa Clara County against Matthew Pavlovich and others alleging misappropriation of trade secrets and other claims.

DVD is sometimes known as Digital Versatile Disc. CSS is a Content Scrambling System for DVD to protect intellectual property rights by means of encryption. DeCSS is a decryption tool that facilitates piracy.

Pavlovich, a resident of Texas, published the DeCSS program in a web site that he owned and operated. He is the President of a technology start up company, and a leader of the open source movement. The Supreme Court noted that "He has never had a place of business, telephone listing, or bank account in California and has never owned property in California. Neither Pavlovich nor his company has solicited any business in California or has any business contacts in California." In contrast, the Court of Appeal emphasized that he had testified that he knew that the movie industry was based in California, and that DeCSS would harm that industry.

Pavlovich sought to quash the summons, arguing that California lacks personal jurisdiction over him. California's long arm jurisdiction statute authorizes California courts to "exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."

The Superior Court denied Pavlovich's motion. On August 7, 2001, the Court of Appeal of California (6th Appellate District) issued its opinion, holding that California's long-arm jurisdiction statute reaches owners, publishers, and operators of web sites when, in violation of California law, they make available for copying or distribution trade secrets or copyrighted material of California companies. See also, story titled "California Has Personal Jurisdiction over Non Resident DeCSS Poster" in TLJ Daily E-Mail Alert No. 244, August 8, 2001.

The Court of Appeal held that the exercise of jurisdiction over Pavlovich is consistent with California's long arm statute. The Court relied heavily on the Supreme Court of the United States' opinion in Calder v. Jones, 465 U.S. 783 (1984), which held that the California courts could exercise jurisdiction in a defamation case over a non resident Floridian who published an article in the National Enquirer, a print publication that circulated in California. The defendant in Calder, like Pavlovich, had sufficient minimum contacts with the California that it would not offend traditional notions of fair play and substantial justice to exercise jurisdiction, notwithstanding non resident status. In both cases the defendant knew that his activities were actionable, and were causing injury in California. The Court stated that Pavlovich's knowledge that the movie industry was based in California was significant.

The Supreme Court reversed. It first reviewed the minimum contacts test announced in International Shoe v. Washington (1945) 326 U.S. 310, and further addressed in Kulko v. California Superior Court (1978) 436 U.S. 84, as well as the purposeful availment test of Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, and the effects test of Calder.

It stated that despite Calder, "most courts agree that merely asserting that a defendant knew or should have known that his intentional acts would cause harm in the forum state is not enough to establish jurisdiction under the effects test. ... Indeed, virtually every jurisdiction has held that the Calder effects test requires intentional conduct expressly aimed at or targeting the forum state in addition to the defendant’s knowledge that his intentional conduct would cause harm in the forum." (Footnote omitted.)

The Supreme Court then concluded that Pavlovich’s contacts with California did not meet the effects test.

"In this case, Pavlovich’s sole contact with California is LiVid’s posting of the DeCSS source code containing DVD CCA’s proprietary information on an Internet Web site accessible to any person with Internet access. Pavlovich never worked in California. He owned no property in California, maintained no bank accounts in California, and had no telephone listings in California. Neither Pavlovich nor his company solicited or transacted any business in California. The record also contains no evidence of any LiVid contacts with California."

The Supreme Court reasoned that Pavlovich's web site "merely posts information and has no interactive features. There is no evidence in the record suggesting that the site targeted California. Indeed, there is no evidence that any California resident ever visited, much less downloaded the DeCSS source code" from his web site. The Court continued that posting a passive web site is not by itself sufficient to subject Pavlovich to jurisdiction in California. Citing other opinions, it stated that "Creating a site, like placing a product into the stream of commerce, may be felt nationwide -- or even worldwide -- but, without more, it is not an act purposefully directed toward the forum state." The Court continued that otherwise, personal jurisdiction would always be found in Internet related cases, and such a result would vitiate long held and inviolable principles of personal jurisdiction.

The Court also rejected the DVD CCA's position that Pavlovich's knowledge that the movie industry was based in California satisfied the purposeful availment test. It wrote that "Pavlovich’s knowledge that DeCSS could be used to illegally pirate copyrighted motion pictures on DVD’s and that such pirating would harm the motion picture industry in California does not satisfy the express aiming requirement. As an initial matter, we question whether these effects are even relevant to our analysis, because DVD CCA does not assert a cause of action premised on the illegal pirating of copyrighted motion pictures." This is a trade secrets case.

The Court concluded by stating that its opinion is narrow and limited. First, it emphasized "the narrowness of our decision. A defendant’s knowledge that his tortious conduct may harm industries centered in California is undoubtedly relevant to any determination of personal jurisdiction and may support a finding of jurisdiction. We merely hold that this knowledge alone is insufficient to establish express aiming at the forum state as required by the effects test. Because the only evidence in the record even suggesting express aiming is Pavlovich’s knowledge that his conduct may harm industries centered in California, due process requires us to decline jurisdiction over his person."

Second, it wrote that "we are not confronted with a situation where the plaintiff has no other forum to pursue its claims and therefore do not address that situation. DVD CCA has the ability and resources to pursue Pavlovich in another forum such as Indiana or Texas. Our decision today does not foreclose it from doing so. Pavlovich may still face the music -- just not in California."

Three of seven judges dissented. The dissenting opinion states, "That this case involves a powerful new medium of electronic communication, usable for good or ill, should not blind us to the essential facts and principles. The record indicates that, by intentionally posting an unlicensed decryption code for the Content Scrambling System (CSS) on their Internet Web sites, defendant and his network of “open source” associates sought to undermine and defeat the very purposes of the licensed CSS encryption technology, i.e., copyright protection for movies recorded on digital versatile discs (DVD’s) and limitation of playback to operating systems licensed to unscramble the encryption code. The intended targets of this effort were not individual persons or businesses, but entire industries. Defendant knew at least two of the intended targets -- the movie industry and the computer industry involved in producing the licensed playback systems -- either were centered in California or maintained a particularly substantial presence here. Thus, the record amply supports the trial court’s conclusion, for purposes of specific personal jurisdiction, that defendant’s intentional act, even if committed outside California, was “expressly aimed” at California."

The opinion of the majority was written by Brown. Kennard, Werdegar and Moreno joined. Baxter wrote a dissent, in which George and Chin joined. The law firm of Weil Gotshal & Manges represented the DVD CCA in this case. The law firm of Hopkins & Carley represented Pavlovich.

Siebel is a software company based in San Mateo, California. Its CEO spoke at a Goldman Sachs conference in 2001. The complaint alleges what transpired. "On November 5, 2001, the Company's Chief Executive Officer ("CEO") disclosed material, nonpublic information to persons outside the Company at an invitation-only technology conference hosted by Goldman Sachs & Co. ("Goldman Sachs") in California (the "Technology Conference"). In response to questions from the Goldman Sachs analyst who organized the conference, the Company's CEO disclosed that the Company was optimistic because its business was returning to normal. These statements contrasted with negative statements that he had made about the Company's business three weeks earlier, in which he characterized the market for information technology as tough, and indicated that the Company expected business to remain that way for the rest of the year."

The complaint continues that "Immediately following the disclosures, certain attendees at the conference purchased the Company's stock or communicated the disclosures to others who purchased its stock. On the day of the conference, the Company's stock price closed approximately 20% higher than the prior day's close and the trading volume was more than twice the average daily volume. The public did not have equal access to and was unable to benefit from the information that was disclosed to the attendees at the Technology Conference."

The SEC and Siebel also simultaneously settled the lawsuit. Siebel did not admit wrongdoing, but agreed to a cease and desist order, and payment of a $250,000 fine.

The SEC also initiated an administrative proceeding against Siebel. See, order instituting proceedings. See also, Siebel release [PDF], which contains transcribed excerpts from the CEO's presentation.

The SEC also instituted an administrative proceeding against Secure Computing Corporation, a Silicon Valley software company, and its CEO, John McNulty, for violation of Regulation FD. See, order.

The SEC also completed its "Report of Investigation in the Matter of Motorola".

The holding stands as authority for the proposition that an insurer who has issued a commercial building insurance policy containing, among other things, personal injury and advertising injury coverage, has no duty to defend claims for violation of the Visual Artists' Rights Act of 1991, 17 U.S.C. § 106A. In addition, the opinion also contains, in dicta, a brief discussion of the nature, history and extent of moral rights of authors under the Copyright Act.

Robert Cort bought a building, remodeled it, and leased it. During repair and remodeling, he had an exterior wall mural painted over. The mural had been painted Jesus "Chuy" Campusano, under commission from the City and County of San Francisco. Campusano is deceased. In a separate action, his heirs filed a complaint against Cort alleging, among other things, violation of Section 106A's provision pertaining to the right of integrity. San Francisco also intervened.

Cort tendered the defense to its insurer, St. Paul, which refused to defend. Cort settled the 106A suit for $200,000, and then filed a complaint in California Superior Court against St. Paul alleging breach of contract and bad faith. St. Paul removed to the U.S. District Court (NDCal). The District Court granted summary judgment to St. Paul. The Appeals Court affirmed. Basically, the courts held that a claim based on Section 106A for destruction of a visual work of art is not a personal injury or advertising injury within the meaning of the insurance policy.

His address was based on a part of a book that he and economist Bill Landes are currently writing that may be titled The Economic Structure of Intellectual Property Law.

Posner (at right) argued that "intellectual property rights have greatly expanded", beginning with passage of Copyright Act of 1976. He further argued that is odd. He asserted that intellectual property rights are a form or government regulation, and that the general trend since 1976 has been towards deregulation. Hence, according to Judge Posner, intellectual property law goes against the trend.

His address focused on his theory as to why this has occurred. He resorted to a body of economic analysis know as public choice theory, with an emphasis on the role of interest groups.

Basically, he suggests that intellectual property rights (IPR) are a form of government regulation, which enables cartelization, and the resultant shoring up of prices. That is, intellectual property laws are a mechanism which enable IPR owners to extract monopoly rents.

He continued that the alternative to a system of IPR is the public domain. In a public domain one can only charge a competitive price. Hence, argues Posner, there is an asymmetry of benefits. Proponents of IPR stand to gain monopoly rents by lobbying for an expansion of IPR, while proponents of the public domain stand to gain only competitive pricing by lobbying in opposition to IPR. This means that there is a greater incentive to form pro IPR interests groups, and consequently, there will be more pro IPR interest groups, and more IPR statutes will get passed.

He concluded that "it looks as though it is much easier to organize a coalition of people who want to expand property rights, than to organize a copiers' interest group. And, on that theory, one might expect continuous inexorable political pressure for expansion of intellectual property rights."

He added that "I think there is a persisting asymmetry in, because intellectual property rights generate rents for the owners, and the public domain does not generate rents for anyone. And we see that in the absence of any serious opposition to the Sony Bono Act."

Posner elaborated this theory in some detail. "And now, economists", said Posner, "have an approach they call public choice, to try to explain the structure of government and political process, and to address specific issues, like ... why does a particular area of law or policy expand. And, the emphasis in the public choice literature has been particularly on the role of interest groups in overcoming free rider problems that bedevil efforts at political organization, just like other types of organizations."

He continued that "a person or a firm can enjoy the full benefit of a statute or regulation without paying anything for the benefits of the statute. It applies to everyone within its scope, even if you didn't contribute to the lobbying activities that brought it about. This is a problem very similar to that that plagues cartels, because a firm that does not join a cartel, remains outside, but sells at a price only slightly below what the cartel price is can actually obtain disproportionate efforts from the cartel price, without having contributed anything to the formation, the maintenance, the legal risks, or cartelization."

"So public choice theorists first identified this regulation as an actual form of cartelization, of shoring up, or enabling private cartels, and then showing, exploring the conditions that enabled this regulatory, regulatory cartelization, explaining that the more concentrated the cartelists market is, the more diffuse the people, the consumers, who are going to be adversely affected by monopoly pricing, are, is, the easier it will be for the cartelist to overcome the free rider problems. And actually, the sort of best position to be in is a, as a cartelist, is to be a member of a very small group, compact, which can obtain significant monopoly rents for -- significant relative to the incomes of the members of the cartel -- but small in the overall economy, and can diffuse these costs, which are not great, over a very large number of consumers, who do not notice that they are being mulcted for monopoly rents", said Posner.

"Well, how do you explain that at the same time that regulation was diminishing that intellectual property rights were blossoming. And it depends partly, the answer depends partly on how we want to classify intellectual property law." Posner continued, "do we want to think of intellectual property law as a form of regulation. If you think of it as a form of regulation, then we have these opposite trends bucking each other. Deregulation in transportation, communications, financial institutions, and so on, and then this opposite trend of increased regulation of the intellectual property sector, drug companies, and movies, and publishers."

"One possibility is that there is inherent asymmetry between the value that the creators of intellectual property place upon having property rights, and the value that would be copiers place on freedom to copy without having to obtain a license." He continued, "if you get an exclusive right to a piece of intellectual property, whether it is an invention or a book, or a movie, or what have. That may shower economic rents on you. But copiers can only hope to obtain a competitive return. It is a feature of intellectual property. It differs from physical property."

"Once intellectual property enters the public domain, with really minute exceptions, it is there forever. Anyone can use it. But, no one can establish rights in it. And that makes it very difficult to make a lot of money from the public domain, the sort of money that would enable the formation of a compact interest group, with a really big stake in knocking out existing copyrights or patents, and contributing to the Congressmen, and so on," said Posner.

Posner also stated that "One implication of this is that the public domain isn't really worth that much. But I don't think that is true. I think the social value of the public domain in intellectual property is great. But the private values are limited because of this impossibility of appropriating it."

Judge Posner also expressed his views on several specific statutes and categories of intellectual property. He called the Copyright Term Extension Act "absurd".

He stated that "These business method patents are kind of clogging retail commerce on the Internet. And software copyrights, in particular, apparently, impediments to software development."

He also said that "trade secrecy ... is terribly important".

Judge Posner is one of the most prominent and prolific of the members of the law and economics movement. He was appointed to the bench by former President Ronald Reagan.

He spoke at an AEI-Brookings Joint Center event. His audience included free market think tank economists, property rights advocates, intellectual property and technology lawyers, and Congressional staff. He was well received.

Judge Posner is a Judge of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago, Illinois. The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over appeals in patent cases. While there is no specialized court of appeal for copyright cases, as a practical matter, most copyright cases are heard in the Second or Ninth Circuits, with the Fourth Circuit also becoming increasingly important. Hence, Judge Posner has little opportunity to inflict his views about intellectual property upon the high tech sector or other intellectual property based industries.

They expressed strong support for the Strategic Plan developed by the USPTO, and advocated its implementation. They went on to state that "The USPTO will need additional resources to implement its Plan. In this regard, we have discussed patent and trademark fee increases with the USPTO that, with projected workload increases, would generate $1.5 billion in FY 2004. With the proposed refinements, including testing and evaluation before deployment where appropriate, we are fully prepared to support a statutory fee increase of this magnitude to implement the Plan. Our support is based upon the assumption that the Bush Administration will effectively address the issue of diversion. Our members will insist that we strongly oppose any proposed fee increase that does not include an appropriate solution to diversion."

They concluded that "We strongly desire to see the Plan implemented as soon as practicable to achieve the goals we share and pledge our commitment to work for the enactment of a fee increase for the USPTO as outlined above."

The letter was signed by Ronald Myrick of the American Intellectual Property Law Association (AIPLA), John Williamson of the Intellectual Property Owners Association, and Nils Montan of the International Trademark Association (INTA).

Deadline to submit comments to the Commerce Department's Bureau of Industry and Security (BIS), formerly known as the Bureau of Export Administration (BXA), in response to its request for comments on its foreign policy based export controls set forth in the Export Administration Regulations (EAR). This pertains to, among other things, high performance computers and encryption products. See, notice in the Federal Register, September 27, 2002, Vol. 67, No. 188, at Pages 61047 - 61049.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Altiris v. Symantec, No. 02-1137. This is an appeal from the U.S. District Court (CDUtah) in a patent infringement case involving Altiris' U.S. Patent No. 5,764,593, which describes a technology for remotely controlling the boot process of a computer to permit network administrators to automatically gain control. The District Court granted summary judgment to Symantec. This is D.C. No. 2:99CV-1007ST. Symantec's counsel is Robert Fram at Heller Ehrman. Location: Courtroom 203, 717 Madison Place, NW.

6:30 - 8:00 PM. The FCBA's International Practice Committee will host a reception to meet Southeast Europe telecom regulators. RSVP to laurabsherman@hotmail.com. Location: Hilton Hotel Embassy Row, 2015 Massachusetts Ave., NW.

7:00 - 8:00 PM. There will be a panel discussion titled "The State of Electronic Government: Surveillance, Security and Civil Rights". The speakers will be Wilson Dizard (Government Computer News), Jim Davidson (lobbyist), Marc Rotenberg (Electronic Privacy Information Center), Mike Stock (3rd Millennium Technologies), Gary Strong (National Science Foundation). See, notice. The price to attend is $10. For reservations, call 202 662-7501. Location: National Press Club, Holleman Lounge, 529 14th St. NW, 13th Floor.

Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its request for comment on the domestic and family law documents exception to the E-SIGN Act. See, notice in the Federal Register.

DEADLINE EXTENDED. Deadline to submit comments to the Federal Communications Commission (FCC) in its third biennial review of its broadcast ownership rules pursuant to § 202 of the Telecommunications Act of 1996. The FCC seeks comments on the national television multiple ownership rule, the local television multiple ownership rule, the radio television cross ownership rule, and the dual network rule. The FCC announced this Notice of Proposed Rulemaking (NPRM) at its meeting on September 12. See, story titled "FCC Announces Broad Review of Media Ownership Rules" in TLJ Daily E-Mail Alert No. 509, September 16, 2002. The FCC released the text of this NPRM on September 23. See, notice in the Federal Register, October 28, 2002, Vol. 67, No. 208, at Pages 65751 - 65776. This is MB Docket No. 02-277.

Deadline to submit comments to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) regarding AT&T's October 15 Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services [118 pages in PDF]. This is RM No. 10593.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its draft publication [16 pages in PDF] titled "Recommendation for Block Cipher Modes of Operation: the RMAC Authentication Mode". This is NIST Special Publication 800-38B (draft). It was written by Morris Dworkin in the NIST's Information Technology Laboratory's Computer Security Division. Send comments to EncryptionModes@nist.gov.

Deadline to submit comments and proposals for the scheduling of the CARP proceedings to the Copyright Office regarding its request for "written comments and proposals for the scheduling of Copyright Arbitration Royalty Panel (CARP) proceedings to adjust royalty rates and terms under provisions of the Copyright Act governing ephemeral recordings and digital transmissions of performances of sound recordings, as well as notices of intent to participate in the CARP to set rates and terms under the statutory license for eligible nonsubscription services to make certain digital audio transmissions of sound recordings for the 2003-2004 period." See, notice in the Federal Register.

9:00 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Computer System Security and Privacy Advisory Board (CCSPAB). The CCSPAB advises the Secretary of Commerce and the Director of NIST on security and privacy issues pertaining to federal computer systems. The agenda includes (1) GSA update on e-authentication, (2) updates on recent computer security legislation, (3) update by OMB on privacy and security issues, (4) briefing on OMB enterprise architecture effort, (5) briefing on NIST certification and authentication effort. See, notice in Federal Register. Location: North Gaithersburg Hilton Hotel, 620 Perry Parkway, Gaithersburg, MD.

CANCELLED? 10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Bell Communications Research v. Fore Systems, No. 02-1083. This is appeal from the U.S. District Court (DDel) in a patent infringement case involving ATM/SONET technology. Bell Communications Research (aka Bellcore) filed a complaint against Fore Systems (aka Marconi Systems). Fore's counsel is Fish & Richardson. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Storage Technology v. Cisco, No. 02-1232. This is a patent infringement case involving communication networks. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 3:00 PM. The FCC's Technological Advisory Council will meet. See, notice in the Federal Register. For more information, contact Jeffery Goldthorp at 202 418-1096 or jgoldtho@fcc.gov. Location: FCC, Room TW-C305, 445 12th St. SW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Victor/Victoria: The ``Secret´´ to Proving Dilution". The panel will discuss the case Moseley v. V Secret Catalogue (which is pending before the Supreme Court) and the Federal Trademark Dilution Act. The speakers will be John Whealan (amicus USPTO), Jonathan Hudis (Oblon Spivak, for amicus AIPLA), and Jeremy Maltby (O’Melveny & Myers, for Victoria's Secret). The price to attend is $30 for IP Section members, $35 for other DC Bar members, $40 for the public, and free for people with a GWU law school ID. For more information, contact Maureen Britti at mbritti@dcbar.org or 202-626-3463, or Robert Brauneis at rbraun@main.nlc.gwu.edu. Location: George Washington University Law School, Moot Court Room, 2000 H Street, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Sprint v. FCC, No. 01-1266. Judges Ginsburg, Rogers and Tatel will preside. Location: 333 Constitution Ave., NW.

9:30 - 11:30 AM. The FCC's WRC-03 Advisory Committee's Informal Working Group 7: Regulatory Issues and Future Agendas will meet. Location: Boeing Company, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Resonate v. Alteon Websytems, No. 02-1201. Resonate filed its complaint in U.S. District Court (NDCal) against Alteon Websystems, which has since been acquired by Nortel Networks, alleging infringement of U.S. Patent No. 5,774,660, titled "World Wide Web Server With Delayed Resource Binding For Resource Based Load Balancing On A Distributed Resource Multi Node Network". The District Court issued a a claim construction ruling adverse to Resonate. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intel v. Via Technologies, No. 02-1212. Location: Courtroom 201, 717 Madison Place, NW.

10:15 AM - 3:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Use of Safeguards as Trade Policy Instruments: Where Have We Been, Where Are We Going?". See, notice and registration page. Location: AEI, 12th floor, 1150 17th St., NW.

2:30 - 5:15 PM. The Department of Commerce's (DOC) Central & East European Business Information Center (CEEBIC) will host a briefing and reception. The speakers will be visiting regulators and officials. For more information, contact Jennifer Gothard (CEEBIC) at 202 482-2645 or jennifer_gothard@ita.doc.gov.

10:00 AM - 1:00 PM. The FCC's Network Reliability and Interoperability Council will hold a meeting. For more information, contact Jeffery Goldthorp at 202 418-1096 or jgoldtho@fcc.gov. See, notice in the Federal Register. Location: FCC, Room TW-C305, 445 12th St. SW.

12:15 - 1:30 PM. The FCBA's Wireless Telecommunications Practice Committee will host a luncheon titled "WiFi -- What's all the Buzz About?" The speakers will be Julie Knapp (Deputy Chief of the FCC's Office of Engineering & Technology), Peter Pitsch (Intel), and Rebecca Arbogast (Legg Mason). The price to attends is $15. RSVP to wendy@fcba.org. Location: Sidley Austin Brown & Wood, 1501 K St. NW, 6th Floor, Conference Room 6E.

12:30 PM. Rep. Richard Armey (R-TX), the outgoing House Majority Leader, will speak at a luncheon. Location: National Press Club, 529 14th St. NW, 13th Floor.

2:00 - 3:00 PM. Bill Whyman, President of the Precursor Group, will speak at an Information Technology Association of America (ITAA) event. The title of his presentation is "Precursor Group's Tech Demand Model: IT Spending Set to Improve in '03". See, ITAA notice. For more information, contact Madeleine Wickwire at mwickwire@itaa.org.

Extended 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] and Order [PDF] of October 11, 2002 extending deadlines.

The notice also sets multiple deadlines -- inconsistent and contradictory deadlines. At one point, the notice states that comments are due by January 9, 2003. At another point, the notice states that comments are due by December 17, 2002. At one point the notice states that reply comments are due by February 10, 2003. At another point, the notice states that reply comments are due by January 16, 2003. For more information, contact the Director of the SPTF, Paul Kolodzy, at 202 418-2470, or the Co-Director, Peter Tenhula, at 202 418-2229. The notice also provides the following email address: SPTFINFO@fcc.gov.

FCC Commission Michael Copps (at right) released a statement regarding the notice. He wrote that "There may be vigorous debate ahead on some of the ideas in the report. For example, I am concerned about the legalization of spectrum swaps and spectrum trading without strong protections, oversight and planning. As we consider these ``secondary markets´´ we should ensure that the Commission does not abdicate its congressionally mandated responsibility to manage the spectrum."

The report is wide ranging, and contains numerous findings and recommendations. One of its key recommendations is that "spectrum policy must evolve towards more flexible and market oriented regulatory models." However, it recommends moving towards a market system, rather than transforming into a market system. Nevertheless, this report evidences a quantum leap away from the way the FCC viewed spectrum management just a few years ago.

The notice does not state that the FCC has adopted a Notice of Proposed Rulemaking (NPRM), or even a Notice of Inquiry (NOI). Nor has the Commission approved the report.

The FCC has also released an Office of Plans and Policy (OPP) paper titled OPP Working Paper No. 38 [62 pages in PDF] and "A Proposal for a Rapid Transition to Market Allocation of Spectrum." It was written by Evan Kwerel and John Williams of the OPP. The FCC has not sought public comment on this paper.

The notice states that this is ET Docket No. 02-135.

The report states that the DOJ spends "about $2 billion annually in information technology (IT)" and that the INS spent "about $459 million in IT in fiscal year 2002".

The report finds that the DOJ "has not established an effective process for overseeing its component agency IT investments, and for the four key INS system investments that we reviewed, it has not ensured that INS satisfied approved cost, schedule, and performance investment commitments. According to Justice officials, doing so has not been a high enough priority to warrant allocation of the necessary oversight resources. Further, Justice officials stated that INS has not consistently been able to provide the project data necessary to effectively measure investments’ progress. Unless it can measure its component agencies’ progress against project commitments and take appropriate actions to address significant deviations, Justice increases the risk of investing millions of dollars in IT projects that do not perform as intended, improve mission performance, or meet cost and schedule goals."

The report was prepared for senior members of the House Judiciary Committee.

11/25. President Bush announced his intent to nominate Gordon England to be Deputy Secretary of the Department of Homeland Security. He is currently Secretary of the Navy. See, White House release.

11/25. President Bush announced his intent to nominate Asa Hutchinson to be Undersecretary for Border and Transportation Security of the Homeland Security Department. He is currently the Administrator of the Drug Enforcement Administration (DEA). Before that, he was a Congressman from Arkansas. See, White House release and DOJ release.

11/25. President Bush today announced his intent to designate Michael Garcia to be Acting Commissioner of the Immigration and Naturalization Service (INS) following the departure of INS Commissioner James Ziglar on November 30, 2002. See, White House release and DOJ release.

11/25. The Information Technology Association of America (ITAA) Board of Directors elected Roy Haggerty to be Chairman and David Sanders to be Vice Chairman. Haggerty is President and CEO of Ajilon Consulting and Communications. Sanders is Senior Vice President of BearingPoint (formerly KPMG Consulting). See, ITAA release.