Tech Law Journal Daily E-Mail Alert
February 6, 2003, 9:00 AM ET, Alert No. 599.
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U.S. and India Sign Statement of Principles for Tech Commerce
2/5. Representatives of the U.S. and India signed a document titled "Statement of Principles for U.S. India High Technology Commerce". The statement follows President Bush's meeting with Indian Prime Minister Vajpayee in November of 2002.

The statement provides that "The two Governments note that there is immense untapped potential for India-U.S. high technology commerce and recognise the importance of taking steps to remove systemic tariff and non-tariff barriers, identify and generate awareness of market opportunities, and build additional confidence in the two countries for such trade, in a way that reflects their new relationship and common strategic interests."

The statement further provides that "The Government of India appreciates the importance that the Government of the United States attaches to a supportive regulatory and institutional environment in India for robust bilateral high technology commerce, including easing barriers to such commerce. The Government of India intends to do its utmost in this regard."

Back on October 29, 2002, U.S. Ambassador to India Robert Blackwill gave a speech to the Federation of Indian Chambers of Commerce and Industry in New Delhi. He stated "Virtually every major American IT firm has a presence in southern India". But, they tend not to sell in the domestic market. Also, there could be much more foreign investment. He said that "Americans hesitate to invest in India because of the uncertainty over India's economic reforms." He cited several problems, including that "taxes and tariffs here are still too high, and there remains too much government interference over business decisions". He also stated that "within the US business community there is an erosion of confidence about whether the sanctity of contracts will be honored in India". See, story titled "US Ambassador Addresses IT in India" in TLJ Daily E-Mail Alert No. 539, October 31, 2002.

The statement also provides that "The two Governments understand the importance of enhancing trade between India and the United States in “dual-use” items, including controlled “dual use” goods and technologies, while protecting the national security and foreign policy interests of both countries, and intend to take steps to facilitate such trade, which is a component of high technology commerce."

The statement was signed by Kenneth Juster, who is the Under Secretary of Commerce in charge of the Bureau of Industry and Security (BIS), and by Indian Foreign Secretary Kanwal Sibal.

California Court Rules on Electronic Discovery
2/5. The California Court of Appeal issued its opinion [MS Word] in Dodge Warren & Peters v. Riley, a case regarding pre-trial discovery of electronic evidence.

Plaintiff is Dodge Warren & Peters Insurance Services (Dodge), an insurance brokerage. Defendants, James Riley and others (Riley), are former Dodge employees who set up their own insurance brokerage. Before leaving, they copied certain of Dodge's electronic files. Dodge filed a complaint in California Superior Court against Riley alleging misappropriation of trade secrets, unfair business practices, breach of fiduciary duty and breach of contract.

Dodge requested, and the Superior Court granted, a preliminary injunction that requires the preservation of electronic evidence by prohibiting the defendants from destroying, deleting or secreting from discovery any of their electronic storage media. It also requires them to allow a court appointed expert to copy all of it, including computer hard drives and discs, to recover lost or deleted files and to perform automated searches of that evidence under guidelines agreed to by the parties or established by the court.

The Court of Appeal affirmed the grant of the preliminary injunction.

EPIC Argues Black Marker Redaction Inappropriate under FOIA for Electronic Records
2/5. The Electronic Privacy Information Center (EPIC) filed an amicus curiae brief [PDF] with the Supreme Court in BATF v. City of Chicago, a Freedom of Information Act (FOIA) case. The EPIC argues that "black marker redaction is inappropriate in an age of electronic record keeping".

On November 12, 1998 the City of Chicago filed a complaint in Illinois state court against firearms makers and distributors. It also sought records from the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF) under the FOIA regarding multiple sales of handguns and the tracing of firearms involved in crimes. The BATF withheld certain records asserting that they were exempt. Chicago then filed a complaint in U.S. District Court (NDIll). Both parties moved for summary judgment on the issue of whether certain FOIA exemptions protected some of the requested data from disclosure. The District Court granted summary judgment to Chicago, holding that none of the FOIA exemptions permit ATF to withhold any of the requested records. On April 25, 2002, the U.S. Court of Appeals (7thCir) issued its opinion affirming the District Court. The Supreme Court granted certiorari. The EPIC has submitted an amicus brief to the Supreme Court.

The EPIC wrote in its brief that "Even if portions of the City of Chicago's request are properly exempt from disclosure under the FOIA, ATF can provide the City with the requested information by encoding the exempt portions while retaining the integrity of the remainder of the requested information. In interpreting the FOIA in this way so as to encourage access to information while preserving privacy, the Court would be faithful to the language of the Act and the intent of Congress in the new context of pervasively used electronic databases. The definition of redaction propounded by petitioner ATF is outdated in the modern day world of computer technology and is inconsistent with ATF's own system of information distribution and management."

People and Appointments
2/4. President Bush announced his intent to nominate Janice Obuchowski to be Ambassador to the World Radiocommunication Conference 2003 (WRC 2003). See, White House release. See also, FCC WRC 2003 page. She is currently the President of Freedom Technologies, Inc. Previously, she cofounded, with Al Salmasi, NextWave, which last month won its battle to retain its spectrum licenses. See, opinion [34 pages in PDF] of the Supreme Court. She was also EVP of NextWave from 1995 through 1998. Before that, she was head of the National Telecommunications and Information Administration (NTIA) during the first Bush administration. Before that, she was Executive Director of International Affairs at NYNEX. And before that, she held various positions at the FCC, including Senior Advisor to former FCC Chairman Mark Fowler. The web site of Orbital Space Systems Group lists her as a member of its Board of Directors. Finally, see 1995 testimony (at Paragraph 9) of former Rep. Susan Molinari (R-NY) before the House Judiciary Committee's Subcommittee on the Constitution regarding Obuchowski. [Sources: (1) January 3, 1997 MO&O [WP] of the FCC regarding NextWave's spectrum licenses, which discusses Obuchowski's involvement with NextWave and Qualcomm; (2) Orbital Science Corporation's Proxy Statement [PDF], April 16, 2001; (3) Yahoo Insider & Form 144 Filings; and (4) Annenberg Institute bio.]

2/4. The Senate confirmed Paul McHale to be an Assistant Secretary of Defense, and Christopher Henry to be Deputy Under Secretary of Defense for Policy.

2/5. President Bush announced his intent to appoint Richard Parsons to be a Member of the President’s Council on Service and Civic Participation. He is CEO of AOL Time Warner Inc. See, White House release.

2/5. The Senate began its debate on the nomination of Miquel Estrada to be a Judge of the U.S. Court of Appeals (DCCir). The Senate Judiciary Committee approved the nomination last week.

More News
2/5. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "Health of the Telecommunications Sector: A Perspective from Investors and Economists". See, prepared testimony of witnesses: Robert Atkinson (Columbia University), Blake Bath (Lehman Brothers Equity Research), Steve Brouder (Cambridge Strategic Management Group), Robert Crandall (Brookings Institute), and Eric Strumingher (Cobalt Capital). See also, prepared statement for Rep. Billy Tauzin (R-LA), Chairman of the full Committee.

2/5. The Senate Banking Committee held a hearing on the nomination of William Donaldson to be a member of the Securities and Exchange Commission (SEC). See, prepared testimony of Donaldson. See also, opening statement of Sen. Richard Shelby (R-AL), Chairman of the Committee, and opening statement of Sen. Paul Sarbanes (D-MD), the ranking Democrat. See also, page with links to opening statements of other Committee members.

2/5. The Department of Commerce (DOC) requested nominations for the 2003 National Medal of Technology awards. Secretary of Commerce Donald Evans stated in a release that the winners "are the pioneers, explorers and risk-takers who have pushed the boundaries of science and technology - improving all areas of our lives ... Their groundbreaking contributions have helped bring useful technologies to market, create jobs, increase U.S. productivity, stimulate our nation’s economic development and maintain America’s technological leadership.” The deadline for submitting 2003 nominations will be May 23, 2003. See, nomination guidelines.

2/5. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published in its web site a document titled "Annual Report -- Fiscal Year 2002". Chapters 1, 2 and 3 [PDF] cover the export controls, licensing and enforcemetn. Chapter 7 [5 pages in PDF] of the report addresses "Critical Infrastructure Protection". This chapter reviews the activities of the BIS's Critical Infrastructure Assurance Office (CIAO).

2/3. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein gave a speech [5 pages in PDF] titled "Rural America and the Promise of Tomorrow". He spoke at the National Telecommunications Cooperative Association (NTCA) Annual Meeting and Expo in Phoenix, Arizona. He discussed broadband deployment in rural areas, universal service, and the impact of regulatory classifications on contributions to the universal service fund. For example, he stated that "Another issue that’s occupied much of our time lately is whether the FCC should treat broadband offered by incumbent local exchange carriers -- usually DSL -- as a telecommunications service regulated under Title II of the Communications Act -- which is the Common Carrier portion of the Act -- or as an information service under Title I -- the general provisions of the Act. This seemingly simple difference can have huge ramifications for universal service. If these broadband services are classified as information services, the FCC loses much of the oversight that comes with Title II. And information service providers don’t now contribute to universal service. This raises a lot of questions. Does it mean, for example, that revenues from these services can’t contribute toward universal service? We’ve got to think hard about this at a time when the demands on the fund are increasing and contributions are decreasing."

2/5. Federal Communications Commission (FCC) Chairman Michael Powell released a statement regarding broadcast media ownership. He said that "I am enormously pleased so many citizens have chosen to participate in the broadcast ownership proceeding. The number of comments is staggering -- 13,000 from the general public alone. It is gratifying to witness first hand the unparalleled opportunities technology now provides the American public to participate in the democratic process. This record clearly demonstrates that in the digital age, you don't need a 19th century whistle stop tour to hear from America. In addition to poring through this exhaustive record, I will attend the FCC's hearing in Richmond, Virginia on February 27. I commend others for their interest in attending additional forums."

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The TLJ Daily E-Mail Alert will not be published on Friday, February 7, 2003.
Thursday, February 6
The House will not be in session, due to a memorial service for the crew of the Columbia, and a Republican retreat. The Senate will meet at 9:30 AM, and continue debate on the nomination of Miquel Estrada. The Supreme Court is in recess.

TIME CHANGE. 11:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of several judicial nominees: John Roberts (to be a Judge of the U.S. Court of Appeals for the DC Circuit), Deborah Cook (6th Circuit), Jeffrey Sutton (6th Circuit), John Adams (U.S.D.C., N.D. Ohio), Robert Junell (U.S.D.C., W.D. Texas), James Otero (U.S.D.C., C.D. California). The agenda also includes consideration of several bills, including S 113, a bill to exclude United States persons from the definition of "foreign power" under the Foreign Intelligence Surveillance Act (FISA) of 1978. See, notice. Location: Room 226, Dirksen Building.

10:00 AM. Ed Thomas, Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will hold a press briefing "to provide an update on policy issues related to emerging technologies and implementation of recent recommendations for spectrum reform". Press contact: Lauren Van Wazer at 202 418-0030. Location: FCC, 8th Floor, South Conference Room (8B-516), 445 12th Street, SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Festo v. SMC Corp., No. 95-1066. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The Internet Security Alliance (ISA) will hold a press conference to announce the release of new information security consumer guidelines. The scheduled speakers will include Orson Swindle (Commissioner, Federal Trade Commission), Dave McCurdy (ISA), Susan Grant (National Consumers League), and Mark MacCarthy (Visa). For more information, contact Michelle McWhinney at 703 465-0276. See, FTC release. Location: Lisagore Room, National Press Club, 529 14th Street, NW.

10:00 AM. There will be a panel discussion titled "Civil Liberties in the Information Age" sponsored by The Potomac Institute for Policy Studies. The scheduled speakers are Amitai Etzioni (George Washington University), Rep. Curt Weldon (R-PA), Marc Rotenberg (Electronic Privacy Information Center), Eleanor Hill (King & Spaulding), and Jamie Gorelick (Fannie Mae). Location: National Press Club, 529 14th Street, NW, 13th Floor.

11:00 AM. The House International Relations Committee will hold its organizational meeting for the 108th Congress. Location: Room 2172, Rayburn Building.

3:30 PM. Madhavi Sunder (Professor of Law, University of California at Davis Law School) will give a lecture titled "IP3: Intellectual Property, Identity Politics, and the Internet Protocol". For more information, contact Julie Cohen at Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. § 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.

Friday, February 7
There will be no votes in the House.

12:00 NOON. The Cato Institute will host a panel discussion titled "Technology Policy in the 108th Congress". The speakers will be Steve Delbianco (Association for Competitive Technology), Clyde Crews (Cato), and Adam Thierer (Cato). See, notice and registration page. Location: Room B-369, Rayburn Building.

12:00 NOON - 1:30 PM. The Bureau of Industry and Security's National Infrastructure Advisory Council (NIAC) will meet. Richard Clarke (Special Advisor to the President for Cyberspace Security) and Richard Davidson, (Chairman of NIAC) will speak. The agenda also includes a discussion of Internet Protocol Version 6.0 and responsible disclosure of cyber attacks or incidents. The public can attend only via teleconference. Call 1-888-899-7785 (toll free) or 1-913-312-4169 (toll), and when prompted, enter pass code 1468517. See, notice in the Federal Register, January 28, 2003, Vol. 68, No.18, at Page 4167.

12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The speakers will be wireless and spectrum Legal Advisors to FCC Commissioners. The price is $15. RSVP to Wendy Parish at Location: Sidley Austin, 1501 K St., NW, Conference Room 6E.

Monday, February 10
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Primosphere Ltd v. FCC, Nos. 01-1526 and 1527. Judges Henderson, Rogers and Silberman will preside. Location: 333 Constitution Ave., NW.

3:00 - 5:00 PM. The State Department's International Telecommunication Advisory Committee (ITAC) will meet regarding the World Summit on the Information Society (WSIS), scheduled to take place in December of 2003. See, notice in the Federal Register, February 4, 2003, Vol. 68, No. 23, at Pages 5689-5690. Location: National Academy of Sciences, 2100 C St. NW.

POSTPONED TO FEBRUARY 28. Deadline to submit reply comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Tier III Coalition's petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy and reliability standards set forth in § 20.18(h) of the FCC’s Rules with respect to Commercial Mobile Radio Service (CMRS) provided by Tier III wireless carriers. See, FCC notice [PDF]. This is WT Docket No. 02-377.

Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the health and life insurance cancellation notices exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at §101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. §103 of the Act provides that the provisions of section 101 shall not apply to "the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities)". (Parentheses in original.) The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. § 7001, et seq. The exceptions are codified at 15 U.S.C. § 7003. See, NTIA notice.

Extended deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809 The deadline had been January 31. On January 31 the FCC extended the deadline.

Tuesday, February 11
9:30 AM. The Commerce Department's Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will meet. Part of the meeting will be closed to the public. See, notice in the Federal Register, January 17, 2003, Vol. 68, No.12, at Page 2499. Location: Herbert Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.

5:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at George Washington University for law students interested in practicing communications law.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

Wednesday, February 12
Lincoln's Birthday.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Location: Room 226, Dirksen Building.

10:00 AM to 12:00 NOON. The Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will host a tutorial titled "Feature Detection and Listen Before Talk Systems", which have possible applications for unlicensed systems. John Betz of the Mitre Corporation will speak. See, notice. Location: FCC, Commission Meeting Room (TW-C305), 445 12th Street SW.

1:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will host an event titled "Voice Over Internet Protocol (VoIP) Roundtable". The NTIA stated in a notice that the event will address VoIP "and the convergence of the Internet and the public switched telephone network. The roundtable will include an overview of VoIP technology, including a brief demonstration of the Commerce Department's new VoIP telephone system." There will also be two panel discussions. See, agenda. The event will be webcast. Location: Department of Commerce, 1401 Constitution Avenue, NW, Room 4830.

5:00 - 7:00 PM. The Congressional Internet Caucus will hold its "6th Annual Kickoff Reception & Technology Fair". The schedule includes brief statements by the Internet Caucus Chairmen, Sen. Conrad Burns (R-MT), Sen. Patrick Leahy (D-VT), Rep. Bob Goodlatte (R-VA), and Rep. Rick Boucher (D-VA), and by Timothy Muris, Chairman of the Federal Trade Commission (FTC) and Howard Schmidt, Acting Chairman of the President’s Critical Infrastructure Security Board. There will also be technology demonstrations by Advanced Biometric Systems, E-Gov OS, Full Audio (music downloads), MovieLink, NTT DoCoMo (3G), Proxim (WiFi), University of Virginia (telemedicine), and Xybernaut. Location: Room 902, Hart Senate Office Building.

Thursday, February 13
9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

3:00 PM. The House Ways and Means Committee's Subcommittee on Oversight will hold a hearing titled "Free Electronic Filing and National Taxpayer Advocate Annual Report". Location: Room 1100, Longworth Building.

6:00-8:00 PM. The FCBA will host a reception for Federal Communications Commission (FCC) Commissioner Jonathan Adelstein. Tickets to attend must be purchased by February 10. See, purchase form. Location: Mayflower Hotel, Grand Ballroom, 1127 Connecticut Ave., NW.


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