|District Court Squeezes Sharman on Internet
Based Personal Jurisdiction
|1/9. The U.S.
District Court (CDCal) issued an order and opinion in MGM
v. Grokster in which it denied Sharman Network's motion to dismiss
for lack of personal jurisdiction.
Sharman, which now owns the key assets of Kazaa,
is organized in the offshore jurisdiction of
apparently for the purpose of evading the reach of U.S. courts. Sharman provides
free software, known as the Kazaa Media Desktop (KMD), that can be downloaded and used
to search for and exchange digital music, movies, and other mostly copyrighted
works, using FastTrack file sharing technology. The Court based its finding of
personal jurisdiction largely on
the fact that Sharman had made the KMD software available to about two million
residents of the state of California.
Introduction. This order and opinion is issued in two related actions,
both pending in the
same court, both alleging copyright infringement, and both against the same entities
involved in facilitating the copying of copyrighted works over the
In one action, Metro Goldwyn Mayer Studios Inc. and other movie and music
recording companies, filed a complaint against Grokster, Ltd and others involved
in the exchange of copyrighted music, movies and other digital works over the
Internet. These plaintiffs alleged copyright infringement in violation of
17 U.S.C. § 501. In
the second action, Jerry Leiber, and other professional songwriters and
music publishers, filed a complaint against Consumer Empowerment BV a/k/a
FastTrack and others. Both suits involve essentially the same claims against the
Kazaa BV was formerly know as Consumer Empowerment BV. Kazaa BV is a
Netherlands Corporation. The Court opinion notes that after these complaints were filed,
Kazaa "transferred ownership of key assets to the newly-formed Sharman
Networks, Ltd. ... Sharman is a company organized under the laws of the
island nation of Vanuatu and doing business principally in Australia. The assets
transferred to Sharman include the Kazaa.com website and domain, and the Kazaa
Media Desktop (``KMD´´) software." The
Court concluded that "Sharman has acquired Kazaa BV's primary assets ...
without having formally acquired the company. Meanwhile, Kazaa BV has apparently
ceased defending this action."
The Court's opinion does not address Kazaa's and Sharman's reasons for
structuring and locating in this manner. However, their actions are not inconsistent with
the hypothesis that the purpose is to evade personal jurisdiction in U.S.
courts, and seizure of assets in the event of an adverse judgment.
Sharman filed a motion to dismiss for lack of personal jurisdiction, and
numerous other reasons. LEF Interactive Pty Ltd, another defendant, moved to
dismiss solely for lack of personal jurisdiction. The Court denied both motions.
Facts. The Court first reviewed relevant facts. It wrote that "Although
novel in important respects, the ``Kazaa system´´ operates in a
manner conceptually analogous to the Napster system described at length by the
district court in A&M Records, Inc. v. Napster, Inc., 114 F.Supp. 2d 896 (N.D.Cal.
"In summary, Sharman provides free proprietary software, the Kazaa media
Desktop, that enables Internet users to search for and exchange digital media
with other users of file-sharing software powered by FastTrack technology.
Sharman also operates the Kazaa.com website, which serves as a central
distribution and customer support hub for the KMD software."
The Court added that "The KMD software can be transferred to the user's computer, or
from servers operated by Sharman (for instance, by visiting Sharman's Kazza.com
website, or third-party CNET's Download.com, and choosing to download the
software). Once installed, each KMD user may elect to ``share´´ certain files
located on the user's computer, including, for instance, music files, video
files, software applications, e-books, and text files. When launched on a user's
computer, KMD automatically connects to the FastTrack peer-to-peer network, and
makes any shared files available for transfer to any other user's computer."
(Parentheses in original.)
The Court wrote that Sharman has had several types of contacts with the state
of California. These include making its KMD software available to California
residents, and the use of California agents (including an advertising firm).
However, Sharman is not licensed or incorporated in California, and its has no
offices, employees or assets there.
The Court also pointed out that "Because the KMD software itself is free,
most of Sharman's revenue comes through its advertising partnerships."
Legal Analysis. The Court first briefly concluded that there is not general jurisdiction,
because of Sharman's lack of presence in the state. The Court then analyzed at
length (pages 11-34) the issue of specific jurisdiction.
The Court first wrote that the analysis must begin with the Due Process
Clause, but that the inquiry is of a "somewhat nebulous nature". Citing
Quill v. North Dakota and
International Shoe v. Washington, it wrote
that "the central due process inquiry remains whether an exercise of
jurisdiction is ``consistent with
traditional notions of fair play and substantial justice.´´"
The Court then reviewed the 9th Circuits two prong test of purposeful availment
and relatedness. "Under prevailing Ninth Circuit doctrine, specific jurisdiction is
presumptively reasonable where: 1) a nonresident defendant purposefully avails
itself of the privilege of conducting activities in the forum state, thereby
invoking the protections of its laws; and 2) the plaintiff's claims arise out of
the defendants' forum-related activities."
The Court elaborated on the relatedness prong: "Contacts with a forum state
are relevant for purposes of specific jurisdiction only if they are sufficiently
related to the cause of action. The Ninth Circuit adopts a broad, ``but for´´ test
of relatedness. ... Thus, if Plaintiffs' claims would have arisen
notwithstanding certain contacts, those contacts are not relevant to the
The Court concluded that "Contacts with U.S. agents such as public
relations representatives and
lawyers, contacts respecting advertising relationships, and the use of a
California company for counting downloads of Sharman's software, are simply not
but for causes of the alleged infringement." However, the Court found that "In
contrast, Sharman's distribution of the KMD software, and licensing of its use,
are ``but for´´ causes of the alleged infringement. But for Sharman's acts in
these regards, Plaintiffs' claims of direct infringement never would have arisen
The Court went on to conclude that Sharman's software distribution contacts
also satisfy the purposeful availment prong of the test. "Here, there is little
question that Sharman has knowingly and purposefully availed itself of the
privilege of doing business in California. First, Sharman essentially does not
dispute that a significant number of its users -- perhaps as many as two million
-- are California residents. ... Second, Sharman does not dispute that the
distribution of its software is an essentially commercial act."
"In sum, Sharman engages in a significant quantum of commercial contact with
California residents constituting a but for cause of Plaintiffs' claims.
Jurisdiction is therefore presumptively reasonable", wrote the Court.
The Court went on to add that there is an alternative basis for finding
purposeful availment -- the effects test. That is, "purposeful availment may be
demonstrated where the effects of a defendant's conduct are felt in the forum
state." The Court citing the Supreme Court opinion in
Calder v. Jones and the 9th Circuit opinion in
Toeppen. "Thus, Plaintiffs have alleged that Sharman intentionally and materially
contributed to the infringement of Plaintiffs' works, and that it did so with
full knowledge that much of the harm from this infringement would be suffered in
California. This is sufficient to establish a prima facie case of purposeful
availment under the effects test of Panavision."
Finally, the Court wrote that even if the two prong test for finding personal
jurisdiction is met, the
exercise of jurisdiction must also be "reasonable". The Court found that it is. One
key factor in this finding was that Sharman acquired the assets of Kazaa after
Kazaa had already been sued for copyright infringement.
Sharman also moved to dismiss on other grounds, including venue, forum non
conveniens, the political question doctrine, and extraterritoriality. The Court
rejected each of these.
Finally, the Court rejected LEF Interactive's motion to dismiss for lack of
personal jurisdiction (at pages 39-45). LEF is a management company that the
Plaintiffs argued is an alter ego of Sharman. Plaintiffs argued that personal
jurisdiction over Sharman may be imputed to LEF. The Court did not rule that the LEF is an
alter ego for liability purposes, but found enough merger between the two to
find personal jurisdiction over LEF based upon its finding of personal
jurisdiction over Sharman.
Comments. Motion Picture Association of
America (MPAA) and Recording Industry Association of
America (RIAA) issued a joint statement in which they said that "We are pleased
that the court denied the efforts of Sharman Networks and LEF to avoid being
subject to the suit. Sharman Networks and LEF should be held accountable by U.S.
laws, which clearly indicate that what they are doing is illegal, and that they
should not profit from it. Their attempts to play an intricate and shameless
shell game designed to evade a U.S. court's jurisdiction and avoid liability
have rightly failed."
Related Cases. This case follows two other recent cases that address
personal jurisdiction in the context of Internet activities. On December 10,
High Court of Australia issued its
Dow Jones v. Gutnick, a case involving three procedural
issues (jurisdiction, choice of law, and convenient forum) in a tort action
brought in Australia for an allegedly defamatory news story published on the
Internet by Dow Jones, a U.S. publisher. The Court held that because of
publication on the Internet, the Australian courts have jurisdiction, that
Australian law applies, and that the case should proceed in the trial court in
the Australian state of Victoria. See, story titled "High Court Rules Australia
Has Jurisdiction Over Dow Jones Based on Web Publication",
TLJ Daily E-Mail
Alert No. 564, December 10, 2002.
On December 13, 2002, the The
U.S. Court of Appeals (4thCir) issued its
pages in PDF] in
Young v. New Haven Advocate, holding that a court in Virginia
does not have jurisdiction over two small newspapers, and their editors and
reporters, located in Connecticut, who wrote allegedly defamatory stories about
a Virginia prison warden and published them on the Internet. The Court held that
the web publication did not establish minimum contacts because the newspapers
are not directed at a Virginia audience. See, TLJ story titled
Circuit Rules in Internet Jurisdiction Case.
|House Organizational News
|1/13. House Speaker Denny Hastert (R-IL) released a
committee chairmen for the 108th Congress last week. Speaker Hastert also released a tentative
Republican committee members for the 108th Congress.
Judiciary Committee. The House
Judiciary Committee handles many
technology related issues. Its Court, Internet and Intellectual Property (CIIP)
Subcommittee has jurisdiction over patent, copyright, trademark and related issues. Its Crime
Subcommittee has jurisdiction over cyber-crime bills. Its Commercial and Administration Law
(CAL) Subcommittee has jurisdiction over bills to extend or make permanent the
moratorium on new or discriminatory Internet taxes. Its Immigration Subcommittee
has jurisdiction over H1B visas.
There will be Republican turnover on the Judiciary Committee. Former Rep. Lindsay Graham (R-SC)
was elected to the Senate seat previously
held by former Sen. Strom Thurmond (R-SC). He had also been a member of the CIIP
Subcommittee. Former Rep. Bob Barr (R-GA) lost in the Republican primary after
redistricting placed in the same district as another Republican incumbent. He
had been Chairman of the CAL Subcommittee, and worked to secure passage of the
bill extending the Internet Tax Freedom Act.
The tentative list of Republican committee assignments lists
Rep. Darrell Issa (R-CA) as a member of the
House Commerce Committee, but not
the House Judiciary Committee. In the 107th Congress Rep. Issa was a member of
the Judiciary Committee, and its CIIP Subcommittee, as well as the International
Relations Committee. Rep. Issa has issued a
release stating that he has been appointed to the Commerce Committee.
However, it is silent on whether he retains any of his other committee assignments.
This could be a significant
development. Rep. Issa (at right) is one of the few persons to have been elected to
Congress with either a background in patenting, or electronics
technology. He holds 36 consumer electronics patents, and has litigated to
protect his intellectual property rights. He founded a company named
Electronics, which makes automobile convenience, audio and security products. He
is also a former Chairman of the Consumer Electronics
Association (CEA). His web site biography also states that during his army
service "he worked as a bomb disposal technician, tank platoon
commander, and a computer R&D specialist."
Rep. Issa has already introduced one bill in the 108th Congress to amend the
Patent Act. On January 8, he introduced HR 242, the Plant
Breeders Equity Act of 2003, a bill to amend
35 U.S.C. § 162.
See, story below.
However, Rep. Issa's expertise would not go to waste on the Commerce
Committee. The Commerce Committee, which has long been aggressive in asserting
and expanding its jurisdiction, has been active on several intellectual property
issues in recent Congresses. In the 105th Congress the Committee passed a bill
pertaining to the rights of owners of databases. (The Judiciary Committee also
passed a much different database protection bill.) The Commerce Committee is
also increasingly addressing copyright issues involved in the broadcasting of copyrighted
works. It is currently working with interested parties on promoting the
transition to digital TV, which includes several copyright issues. It also
oversees the Federal Communications Commission
(FCC), which is currently
conducting a rulemaking proceeding regarding the "broadcast flag".
The new Republican members of the Judiciary on the tentative list are all
freshman: Rep. John
Carter (R-TX), Rep. Marsha Blackburn (R-TN), Rep. Steven King (R-IA), and Rep.
Tom Feeney (R-FL).
The tentative appointment of
Rep. Carter (at right) may be significant for some technology related issues. He is a
retired state judge, which makes him an obvious candidate for appointment to the
Judiciary Committee. However, his newly created 31st District is in the Austin,
Texas area, and includes
Round Rock and
Williamson county. The Austin area is home to many technology companies. The
largest employer in Round Rock is
Dell Computers. Other leading employers in Round
Rock include Cypress Semiconductor,
Abbot Labs (pharmaceuticals), Sears (which has an Internet sales and customer call
facility), and DuPont Photomasks (which
makes photomasks, an enabling technology used in the manufacture of semiconductor
and other microelectronic devices). See, list
of leading employers in Round Rock, Texas.
Rep. Blackburn was elected from the 7th District in Tennessee, which stretches from the suburbs
of Memphis to the suburbs of Nashville, the center of the country music industry.
The district was previously represented by former Rep. Ed Byrant (R-TN), who made
an unsuccessful run in the Republican Senate primary. Rep. Blackburn is a former state Senator.
Rep. Feeney is a former speaker of the Florida House. He represents the newly created
24th District in the Orlando, Florida area. Rep. King is a former state
legislator elected from the Iowa 5th District.
Commerce Committee. The tentative list of Republican committee
assignments also lists several changes in the membership of the
Committee. The new Republican members of the Committee will tentatively be
Rep. Mike Ferguson
(R-NJ), Rep. Mike Rogers (R-MI),
Darrell Issa (R-CA), and Rep. Butch
The members of the Committee who have left include former Rep. Greg Ganske
(R-IA), who made an unsuccessful run for the Senate, former Rep. Ed Bryant
(R-TN), who ran for Senator from Tennessee, but lost in the primary to now
Sen. Lamar Alexander (R-TN), and
former Rep. Bob Ehrlich (R-MD), who was elected Governor of Maryland. In
addition, Rep. Tom Davis (R-VA), who was a member of the Committee, as well as
its Telecom Subcommittee, in the 107th Congress, is not listed on the
Republican's tentative committee membership
list for the 108th Congress.
|Rep. Issa Introduces Amendment to Plant
|1/8. Rep. Darrell Issa (R-CA)
introduced HR 242, the Plant Breeders Equity Act of 2003, a bill to amend
35 U.S.C. § 162.
Rep. Issa released a statement that elaborated that "Prior to the
USPTO change of policy, a plant variety
could be sold outside the United States for an unlimited number of years without
barring that variety from being patented as long as the variety was not sold,
offered for sale or publicly used in this country for more than one year prior
to its filing. In January 2001, without warning the USPTO examiners began
rejecting US plant patent applications for varieties that had been offered for
sale anywhere in the world more than one year before filing a plant patent
application in the United States. Breeders' applications have been denied for
hundreds of patents introduced abroad but not yet introduced in the U.S. This
situation undermines innovation in the horticultural industries and deprives
American growers and the public of the benefits of these new varieties."
The bill would provide that "No plant patent application shall
be denied, nor shall any issued plant patent be invalidated, on the grounds that
the invention was described in a printed publication to which section
102(b) of this
title applies, unless the invention was described in a printed publication in
this or a foreign country more than ten years prior to the date of the
application for patent in the United States."
Rep. Issa was elected to Congress in 2000. He served on the
House Judiciary Committee, and its
Courts, the Internet, and Intellectual Property Subcommittee in the 107th
Congress. Rep. Issa holds thirty-six patents that pertain to consumer
The bill is cosponsored by Rep. Sam Farr
(D-CA), Rep. George Nethercutt
(R-WA), and Rep. Marty Meehan (D-MA).
|People and Appointments
|1/12. AOL Time Warner announced in a
release that "Steve Case has decided to step down as Chairman
effective at the Annual Shareholders Meeting in May."
1/10. Phil Bond, who is currently both Chief of Staff to Commerce Secretary
Don Evans and Under
Secretary of Commerce for Technology will cease being Chief
of Staff for Evans. He will work full time as head of the
Technology Administration (TA). The
new Chief of Staff to Evans will be Alison Kaufman. She is currently Chief of
Staff to Deputy Commerce Secretary
Sam Bodman. See,
1/10. President Bush announced his intent to
nominate Michael Brown
to be Under Secretary for Emergency Preparedness and Response at the
Department of Homeland Security (DHS). He is currently the Deputy Director of
the Federal Emergency Management Agency (FEMA).
He was previously the Executive Director of the Independent Electrical
1/10. President Bush nominated Clark Ervin to be Inspector General of
the new Department of Homeland
Security (DHS). He also nominated former Rep. Asa Hutchinson (R-AK) to be
Under Secretary for Border and Transportation Security in the new DHS. See,
House release. The President's intent to make these nominations had
previously been announced.
1/8. James Dempsey, who
is currently Deputy Director of the Center for
Democracy and Technology (CDT), will become its Executive Director, with
responsibility for day to day operations and program implementation. He also focuses
on privacy and electronic surveillance issues, and heads the CDT's international
project, the Global Internet Policy Initiative (GIPI).
Jerry Berman, who
founded the CDT in 1994, will remain as President.
Lara Flint will join the
CDT to work on national security and civil liberties issues. She previously
worked in the Washington DC office of the law firm of
Jenner & Block. The Board of Directors also
announced that the CDT will expand its scope to include digital copyright
|1/10. The Department of Justice (DOJ)
filed with the U.S. District
Court (DC) a memorandum
in opposition to the motion of the Consumers for Computing Choice (CCC) for
leave to intervene to appeal in the government antitrust action against
Microsoft. The DOJ also filed a
memorandum in opposition to
a similar motion filed by Robert Litan, an economist based in Washington DC.
And, last week, the DOJ filed its
opposition to a substantially similar
motion [25 pages
in PDF] filed by the Computer & Communication
Industry Association (CCIA) and the Software
& Information Industry Association
(SIIA). The basis of the opposition is the same for all motions. None of these people or groups
is a party to the case, and therefore, they lack standing to appeal.
1/8. The Internet Corporation for Assigned
Names and Numbers (ICANN) released a
titled "Fifth Status Report to the United States Department of Commerce Re:
Progress Toward Objectives of Memorandum of Understanding – Q4 2002". See also,
1/10. President Bush signed into law HJRes 1, which
provides further continuing appropriations for activities of the federal
government through Friday, January 31, 2003. See,
|11th Circuit En Banc Reverses
Three Judge Panel in
Reciprocal Compensation Case
|1/10. The U.S.
Court of Appeals (11thCir) issued its divided en banc
v. MCIMetro, a case regarding
interconnection agreements, reciprocal compensation for calls to ISPs, state
jurisdiction, and federal jurisdiction. The en banc Court concluded that a state
telecom regulator has authority to construe interconnection agreements to
determine whether calls to ISPs are local calls for the purpose of reciprocal
compensation, that federal courts have jurisdiction to review these
determinations, and that, in the present case, a three judge panel will hear the
merits of an appeal from a District Court determination affirming a state
regulator's orders construing such interconnection agreements. That is, the en
banc panel resolved the jurisdictional questions. The case now goes back to a
new three judge panel for resolution on the merits.
251(b)(5) of the 1996
Act provides that local
phone companies compensate each other for handling each other's local calls. One
telephone company pays another telephone company for each local call the second
company completes to one of its customers.
If one person whose local phone company is the ILEC makes a local phone call
to another person whose local phone company is a competitive local exchange
carrier (CLEC), the CLEC is entitled to compensation from the ILEC for
completing the call. The same is the case if the call originates with the CLEC
and completes with the ILEC. Hence, it is called "reciprocal compensation."
Disputes have arisen in the context of calls made from ILEC customers to
CLECs that provide Internet service. The CLECs request reciprocal compensation
from the ILECs. The ILECs assert that these calls are not "local". ILECs, such as
BellSouth, further argue that there is no reciprocity, because while people
place calls to connect to the Internet, the Internet never calls them back.
This case involves disputes over reciprocal compensation. BellSouth and MCImetro
entered into an interconnection agreement, as required by the Telecom Act of
1996. So did BellSouth and WorldCom. BellSouth then decided not to pay
reciprocal compensation for calls to ISPs. MCImetro and
WorldCom argued that calls made to an
Internet Service Provider (ISP) are local traffic subject to reciprocal
compensation under the interconnection agreements. BellSouth asserted that they
GPSC Proceeding. MCImetro and WorldCom sought relief from the
Public Service Commission (GPSC). The GPSC issued two orders construing
these to interconnection agreements. It decided that the calls were local
District Court. BellSouth then filed a complaint in
U.S. District Court (NDGa) alleging
that the GPSC order was contrary to federal law. BellSouth alleged that subject
matter jurisdiction was based upon both
47 USC §252(e)(6) and
28 USC §1331
(federal question jurisdiction). The District Court affirmed the GPSC.
Three Judge Panel of the 11th Circuit. BellSouth filed an appeal with
the U.S. Court of Appeals (11thCir). A divided three judge panel of the Court of
Appeals issued its
on January 10, 2002, reversing the District Court on jurisdictional grounds,
rather than on the merits. The majority held that the GPSC had no statutory
authority to interpret the interconnection agreements, and the District Court
lacked jurisdiction. Judge Tjoflat wrote the
opinion of the Court, and Judge Barkett dissented. He concluded that the
District Court had jurisdiction under Section 252.
En Banc Opinion. MCImetro and WorldCom then petitioned for rehearing en
banc, which petition
was granted. In the just issued en banc opinion of the Court of Appeals, the Court
concluded that the GPSC has authority under federal law to interpret and enforce
the interconnection agreements at issue and that its determination is subject to
review in the federal courts. The Court also referred "all other issues to a
panel of this Court and instruct the Clerk of the Court to assign this case to
the next available oral argument panel to resolve the merits of this case".
Judge Barkett (who dissented from the opinion of the three judge panel) wrote
the opinion for the en banc panel. Judge Tjoflat (who wrote the opinion of the
three judge panel) wrote an 60 page dissent to the opinion of the en banc panel.
|FCC Seeks Comments on Cable TV Plug and Play
|1/10. The Federal Communications Commission
(FCC) announced, but did not release, a Further Notice of Proposed Rulemaking (FNPRM)
regarding a proposed set of rules pertaining to "plug and play" cable
On December 19, fourteen consumer electronics companies and seven
cable operators announced
that they have entered into a Memorandum of Understanding (MOU) regarding a
national plug and play standard between digital television (DTV) products and
digital cable systems. See, document
[78 pages in PDF] consisting of the MOU, proposed rules to be promulgated by the
FCC, and a letter to FCC Chairman Michael
Powell and others.
The FCC stated in a
release [MS Word] that it adopted this FNPRM on January 7. Comments in response
to this FNPRM are due by March 28,
2003. Reply comments are due by April 28, 2003. This is CS Docket 97-80, and PP
The FCC's release states that
"proceeding seeks comment on proposed rules for ``plug and play´´ cable
compatibility, which is a key piece of the digital television puzzle. In a ``plug
and play´´ world, consumers will be able to plug their cable directly into their
digital TV set without the need of a set-top box. On December 19, 2002, the
cable and consumer electronics industries filed a Memorandum of Understanding (MOU)
which details an agreement on a cable compatibility standard for an integrated,
one-way digital cable television receiver, as well as other unidirectional
digital cable products. The industries assert that unidirectional digital cable
television receivers manufactured pursuant to the MOU would be capable of
receiving analog basic, digital basic and digital premium cable television
programming by direct connection to a cable system providing digital
programming. Due to the unidirectional nature of this receiver specification,
an external navigation device will still be needed to receive advanced features
such as cable operator enhanced electronic programming guides, impulse pay per
view or video on demand. The MOU indicates that the industries continue to work
on a bidirectional receiver specification that would eliminate the need for an
external navigation device to receive advanced services."
For more information, contact Susan Mort in the FCC's Media Bureau at
202 418-7200 or firstname.lastname@example.org.
|Bush To Nominate McQueary for Science and
Technology Position at DHS
|1/10. President Bush announced his intent to nominate Charles McQueary to be
Under Secretary for Science and Technology at the Department of Homeland
Security (DHS). See,
McQueary is a recently retired President of
General Dynamics, a defense
contractor. Before that, he worked for AT&T/Lucent
Technologies from 1987 through 1997, as President and Vice President. And before
that, he worked for AT&T Bell Laboratories from 1971 through 1987. He is also
a former member of the Board of Directors of the
National Defense Industrial Association. He has three degrees, in
engineering, mechanical engineering, and engineering mechanics, all from the
University of Texas.
Rep. Sherwood Boehlert (R-NY),
the Chairman of the House Science
Committee, stated in a release that "I'm extremely pleased with this appointment and
that the President has moved so rapidly. The Science Committee wrote the
portion of the Homeland Security legislation creating the Undersecretary for
Science and Technology and Dr. McQueary is exactly the kind of individual we
hoped would fill this critical position. He has a strong technical background,
broad management experience, familiarity with both academia and industry, and is
highly regarded in the scientific community. I look forward to working with
Dr. McQueary to ensure that the federal government invests in the science and
technology necessary to combat terrorism over the long term."
The Homeland Security Act, which the Congress
passed, and the President signed, late last year, creates two directorates, both
headed by an Under Secretary, that have science and technology responsibilities.
First, there is the Title II Directorate for Information Analysis and
Infrastructure Protection, which has primary responsibility for information
sharing and cyber security matters. Second, there is the Title III Directorate
for Science and Technology, which has primarily responsibility for chemical,
biological, radiological, and nuclear threats. However, the responsibilities of
the Title III Directorate include supporting the Title II Directorate "by
assessing and testing homeland security vulnerabilities and possible threats". McQueary
has been nominated to head this Title III position.
The new position of Under Secretary for Science and Technology was created by
the Homeland Security Act. See,
of the 107th Congress, at Title III, §§ 301-313. Title III pertains to "science
and technology in support of homeland security". The Under Secretary's
responsibilities include "advising the Secretary regarding research and
development efforts and priorities in support of the Department's missions" and
"developing, in consultation with other appropriate executive agencies, a
national policy and strategic plan for, identifying priorities, goals,
objectives and policies for, and coordinating the Federal Government's civilian
efforts to identify and develop countermeasures to chemical, biological,
radiological, nuclear, and other emerging terrorist threats ..." (See, § 302.)
Title III does not encompass cyber security, computer crimes,
information analysis, or information sharing. Title II of the Act, which
pertains to "information analysis and infrastructure protection", does cover
these subjects. It creates the new position of Under Secretary for Information
Analysis and Infrastructure Protection, the responsibilities of which include
developing "a comprehensive national plan for securing the key resources and
critical infrastructure of the United States, including power production,
generation, and distribution systems, information technology and
telecommunications systems (including satellites), electronic financial and
property record storage and transmission systems, emergency preparedness
communications systems, and the physical and technological assets that support
such systems." (Parentheses in original.)
The Homeland Security Act also provides (in Title II, at § 231) that "There
is hereby established within the Department of Justice an Office of Science and
Technology". This office will handle "law enforcement technology".
The Homeland Security Act also provides (in Title III, at § 302) that the
Under Secretary for Science and Technology's (i.e., McQueary's) responsibilities
include "supporting the Under Secretary for Information Analysis and
Infrastructure Protection, by assessing and testing homeland security
vulnerabilities and possible threats".
House summary of Title II and
House summary of Title III.
|Tech Crime Report
|1/10. Michael Kimble was sentenced in
U.S. District Court (EDVa) to 12 months imprisonment for identity theft. The
U.S. Attorneys office stated in a release
that Kimble "used
the names, birth dates and Social Security numbers of six other people to open
credit card and bank accounts in their names over the Internet. To maintain
control over the accounts, the defendant used a commercial maildrop in
Woodbridge as the address for the accounts. Kimble then transferred his own
personal debts to the credit cards he had illegally obtained. ... he had transferred nearly $50,000 of his own debts
and expenses to credit cards in the names of his victims." The USAO further stated that Kimble, a recruiting captain in the U.S. Army, opened
accounts in the names of a subordinate at work, and a prospective recruit. He
obtained personal information at work.
1/10. The U.S. Attorneys Office (USAO) filed a criminal complaint in the
U.S. District Court (NDCal) charging Qing Chang Jiang
with illegally exporting dual use (i.e., both commercial and military)
technology to the People's Republic of China in violation of
§ 1705(b). The complaint was filed under seal on January 8. Jiang was arrested,
and the complaint was unsealed, on January 10. The USAO stated in a
that Jiang is charged with exporting microwave amplifiers to The 54th Research
Institute in the PRC.
|Tech Law Journal is instituting several new practices and procedures with the
New Year. All of these changes have one central purpose -- protecting the rights
of the author, David Carney.
The Tech Law Journal web site and the Tech Law Journal Daily E-Mail Alert
(TLJ Alert) are both authored and published by David Carney. This is a business.
The sole source of revenue for this business is subscription payments for the
TLJ Alert. Yet, it is currently being widely infringed.
This is undermining the financial viability of the business.
from the Publisher, which summarizes the new practices and procedures.
Subscription Information page for price schedule, methods of payment, and
regarding "E-Mail Monitoring".
regarding "Disclosure of Information to Third Parties".
to law students explaining why free subscriptions for law students will end
after the January 17 issue.
of state officials' subscriptions" explaining why free subscriptions for
state government officials will end after the January 17 issue.
Form and Contract (for
firms, companies, groups, and other entities), or the shorter
Form and Contract (for
persons subscribing individually). These contracts are for new paying
subscribers, and paying subscribers renewing their
subscriptions. Persons receiving free subscriptions (journalists
and government officials) should not sign a contract. Paying
subscribers whose subscription term has not expired should not
sign a contract, until their existing subscription term expires
and they resubscribe.
And finally, see revised
|Monday, January 13
|The Senate will meet at 12:00 NOON.
The House is in adjournment until January 27. (See, House Concurrent Resolution 8.)
The Supreme Court will return from the recess that it began on December 16.
11:00 AM - 1:00 PM. The Heritage
Foundation will host a panel discussion
titled "Harnessing Information Technology to Improve Homeland Security".
The speakers include James Gilmore (Chairman,
Advisory Panel to Assess
Domestic Response Capabilities for Terrorism Involving Weapons of Mass
Destruction), Lee Holcomb (Office of Homeland Security), Tom Richey (Director
of Homeland Security, Microsoft), Tom Gann (VP & GM,
Siebel Systems), and
Peter Brookes (Heritage). See,
Heritage, 214 Massachusetts Ave., NE.
12:00 PM. The Cato Institute will host
a panel discussion titled "Free Trade with Chile: Understanding What's at
Stake". The speakers will include Regina Vargo, the Assistant
U.S. Trade Representative (USTR) for the
Americas, and Hernán Büchi, a Former Minister of Finance of Chile. Lunch will
follow the program. Location: Cato, 1000 Massachusetts Avenue, NW.
|Tuesday, January 14
|9:30 AM. The Senate Commerce
Committee will hold a hearing titled the "State of the Competition in
the Telecom Industry". Media contact: Andy Davis (Hollings) at 202
224-6654. Location: Room 253, Russell Building.
9:30 AM. The
Senate Governmental Affairs
Committee will hold a hearings on the nomination of Tom Ridge to be
Secretary of Homeland Security. Location: Room 342, Dirksen Building.
The U.S. Court of Appeals (DCCir)
will hear oral argument in Peninsula Communications v. FCC, No.
01-1273. Petitioner is a radio broadcaster operating on the Kenai Peninsula in
south central Alaska. Judges Henderson, Randolph and Garland will preside.
Location: 333 Constitution Ave., NW.
Deadline to submit comments to the USPTO
to assist it in writing a report to the Congress regarding technological
protection systems for digitized copyrighted works and to prevent
infringement. This report is required by the Technology, Education and
Copyright Harmonization Act of 2002 (TEACH). See,
notice in the Federal Register, December 9, 2002, Vol. 67, No. 236, at
Pages 72920 - 72921. For more information, contact Michael Shapiro at 703
305-9300 or email@example.com.
|Wednesday, January 15
|9:30 AM. The Federal Communications
Commission (FCC) will hold a meeting. See,
agenda. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
Deadline to submit comments to the NIST
regarding it plans to disseminate new data regarding condensed phase infrared
spectra through the Internet. See,
notice in the Federal Register, December 16, 2002, Vol. 67, No. 241, at Page 77053.
|Thursday, January 16
|12:15 PM. The FCBA's
Cable Practice Committee will host a brown bag lunch. The topic will be "Engineering
Issues". The speakers will be John Wong and Michael Lance of FCC's Media
Bureau. For more information, contact Lisa Cordell at 202 939-7900. RSVP to
Wendy Parish at firstname.lastname@example.org. Location:
NCTA, 1724 Massachusetts Ave., NW.
12:15 PM. The FCBA's
Young Lawyers Committee will host a brown bag lunch. The topic will be
planning for the new year. For more information, contact Yaron Dori at
email@example.com or Ryan Wallach at
Hogan & Hartson, 555 13th St., NW, Confr. Rm. 9E-407.
The FCBA's Diversity Committee
and Young Lawyers Committee will
host a series of Law School Outreach Programs for law students interested in
practicing communications law at Washington DC area law schools.
The event at American University will be held at 4:30 PM. The event at Catholic
University will be a 6:00 PM. The event at
George Mason University will be at 4:45 PM. The event at Georgetown University
Law Center will be at 5:30 PM. The event at Howard University will be at 4:30 PM.
|Friday, January 17
|EXTENDED AGAIN, TO FEBRUARY 18.
|Extended deadline to submit reply comments to the
Federal Communications Commission (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,
FCC release [PDF] and
Order [PDF] of October 11, 2002 extending deadlines. See also,
Order [PDF] of January 3, 2003.
|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 subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
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executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
Contact: 202-364-8882; E-mail.
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