|Bush Issues Executive Order Affecting
Classification of Infrastructure Information
3/35. President Bush issued an
Executive Order that amends Executive Order 12958, pertaining to "Classified
National Security Information".
This order, as amended, "prescribes a uniform system for classifying,
safeguarding, and declassifying national security information, including
information relating to defense against transnational terrorism".
Section 1.4 lists the categories of information that are subject to classification. It
provides, in part, that "Information shall not be considered for classification
unless it concerns: ... (c) ... cryptology; ... (e) scientific,
technological, or economic matters relating to the national security, which
includes defense against transnational terrorism; ... (g) vulnerabilities or
capabilities of systems, installations, infrastructures ..."
The original version
of Executive Order 12958, which was issued by former President Clinton on April
17, 1995, included slightly different language. It referenced "vulnerabilities
or capabilities of systems, installations, projects or plans relating to the
national security". That is, Bush's version adds the term "infrastructures".
Bush's order also adds the reference to "transnational terrorism".
This, then, raises the question of what are "infrastructures". The order
defines forty-two of its terms, but contains no definition of "infrastructures".
The recently enacted Homeland Security Act contains a provision providing a
Freedom of Information Act (FOIA) exemption for "critical infrastructure
(107th Congress), Public Law No. 107-296. This act defines the term as follows:
"The term `critical infrastructure information´
means information not customarily in the public domain and related to the
security of critical infrastructure or protected systems -- (A) actual,
potential, or threatened interference with, attack on, compromise of, or
incapacitation of critical infrastructure or protected systems by either
physical or computer-based attack or other similar conduct (including the misuse
of or unauthorized access to all types of communications and data transmission
systems) that violates Federal, State, or local law, harms interstate commerce
of the United States, or threatens public health or safety; (B) the
ability of any critical infrastructure or protected system to resist such
interference, compromise, or incapacitation, including any planned or past
assessment, projection, or estimate of the vulnerability of critical
infrastructure or a protected system, including security testing, risk
evaluation thereto, risk management planning, or risk audit; or (C) any planned
or past operational problem or solution regarding critical infrastructure or
protected systems, including repair, recovery, reconstruction, insurance, or
continuity, to the extent it is related to such interference, compromise, or
If the term "infrastructures", as used in President Bush's executive
order, is interpreted to have a meaning similar to the term "information
infrastructure", as used in the Homeland Security Act, then cyber security
information could be classified. This would make it more difficult for the
public to obtain information from the government regarding its activities and
operations pertaining to cyber security.
The new order also provides, at Section 4.1(f), that "Consistent with law,
directives, and regulation, an agency head or senior agency official shall
establish uniform procedures to ensure that automated information systems,
including networks and telecommunications systems, that collect, create,
communicate, compute, disseminate, process, or store classified information have
controls that: (1) prevent access by unauthorized persons; and (2) ensure the
integrity of the information."
Section 6.1 defines "Automated information system" as "an assembly of
computer hardware, software, or firmware configured to collect, create,
communicate, compute, disseminate, process, store, or control data or
Section 6.1 defines "Telecommunications" very broadly. It is "the
preparation, transmission, or communication of information by electronic means".
The amended order also contains a preamble. It states, in part, that "Our
democratic principles require that the American people be informed of the
activities of their Government. Also, our Nations progress depends on the free
flow of information. Nevertheless, throughout our history, the national defense
has required that certain information be maintained in confidence in order to
protect our citizens, our democratic institutions, our homeland security, and
our interactions with foreign nations. Protecting information critical to our
Nations security remains a priority."
|DOJ Requires Univision to Divest Interests
in Entravision Before Acquiring Hispanic Broadcasting
3/26. The Department of Justice's (DOJ)
Antitrust Division filed a
U.S. District Court (DC) against
Univision Communications and
Hispanic Broadcasting Corporation (HBC) seeking
injunctive relief to block Univision's proposed acquisition of HBC. The DOJ also
settled the case.
Univision is the largest broadcaster of Spanish language television
programming in the U.S. It also has one cable channel, internet web sites, and
music recording, distribution, and publishing operations. HBC operates over 60
mostly Spanish language radio stations. Entravision
Communications, which is not named in the complaint, operates over 50 mostly
Spanish language radio stations. The DOJ alleges that the transaction
would lessen competition in the sale of advertising time on many Spanish
language radio stations.
The DOJ simultaneously filed a proposed consent decree
that would settle the lawsuit. The settlement would require Univision to sell a
significant portion of its partial ownership in Entravision, relinquish its right
to two seats on Entravision's Board of
Directors, and give up give up the right to vote its shares or veto certain
Entravision business decisions.
Pate (at right), the Acting
Assistant Attorney General in charge of the Antitrust Division, stated in a
that "The changes required by the consent decree will enable advertisers that
rely on Spanish-language radio to reach their targeted audience and to continue
to benefit from competitive prices".
|Do Not Call Registry Compliance Required On
3/25. The Federal Trade Commission (FTC)
announced that, pursuant to its amended Telemarketing Sales Rule (TSR), "As of
October, it will be illegal for most telemarketers to call a number listed on
the registry." See, FTC
FTC "Do Not
Call" registry web page.
The FTC released its amended Telemarketing Sales Rule (TSR) on December 18,
2002, which included creation of the do-not-call registry. The Congress passed,
and the President signed, the Do-Not-Call Implementation Act
earlier this year. It is now Public Law No. 108-10.This bill
authorizes the FTC to collect fees for the implementation and enforcement of its
"do-not-call" registry. This allows consumers to opt out of receiving
unwanted telephone solicitations. It also prohibits telemarketers from calling
those telephone numbers listed on the registry.
On March 26, the FTC published a
notice in the Federal
Register announcing that "the Commission has decided to extend the date by which
it will require full compliance with Sec. 310.4(b)(4)(iii) of the Amended
Telemarketing Sales Rule (``TSR´´) until October 1, 2003." See, Federal Register,
March 26, 2003, Vol. 68, No. 58, at Pages 14659 - 14660.
Also, on March 25 the Federal Communications
Commission (FCC) released a
of Proposed Rulemaking (FNPRM) [PDF] in its proceeding titled "In
the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991". This is CG Docket No. 02-278. This FNRPM is
mandated by the Do-Not-Call Implementation Act.
|FCC Announces Appointments to Office of
3/26. The Federal Communications Commission
(FCC) announced several appointments in its Office
of General Counsel (OGC).
Linda Kinney was named
Acting Deputy General Counsel. She
has worked at the FCC since 1994, and is currently Associate General Counsel.
She previously worked as a legal advisor to former FCC Commissioner Susan Ness.
Before working for the FCC, she worked for Whalen & Company, and in the San
Francisco office of the law firm of Graham & James.
John Stanley was named Assistant General Counsel. He will
focus on wireline competition issues. He joined the FCC in May 1999, and is currently
Assistant Chief of the Competition Policy
Division in the Wireline Competition
Bureau (WCB). He previously worked for the Washington DC law firm of
Wiley Rein & Fielding.
Jeff Dygert was named Deputy Associate General Counsel in
the OGC's Administrative Law
Division (ALD). He will have general oversight responsibility for the OGC agenda review process.
He joined the FCC in 1996, and is currently a Deputy Division Chief in the WCB.
Marilyn Sonn was named Assistant General Counsel in the
OGC's ALD. She will have oversight responsibility for agenda items from the FCC's
Media Bureau. She has worked for the FCC
since 1997. She previous worked for the law firm of
Arent Fox Kintner Plotkin & Kahn.
David Horowitz was named Assistant General Counsel in the
OGC's ALD. He will have oversight responsibility for agenda items from the
Telecommunications Bureau and International Bureau.
He has worked for the FCC since 1988, and is currently an attorney advisor in
John Rogovin remains
For more information, contact Audrey Spivack at
email@example.com or 202 418-0512. See,
|More People and Appointments
3/26. President Bush nominated Michael Garcia to be an Assistant Secretary of Homeland
Security for the Bureau of Immigration and Customs Enforcement (BICE). See,
House release and
3/24. The Senate confirmed Gregory White to be the U.S. Attorney for
the Northern District of Ohio.
3/25. The Coordination Committee of the World
Intellectual Property Organization (WIPO) recommended that Kamil Idris
be reappointed as Director General of the WIPO for a second six year term. See,
3/26. Federal Communications Commission
(FCC) Commissioner Michael Copps
announced that he will hold another field
hearing on media concentration. This one will take place in Durham, North
Carolina. He has recently conducted hearings in Richmond, Virginia, and in
Seattle, Washington. See,
3/25. Assistant Secretary of the Treasury
gave a speech to the
Conference on US German Economic Relations regarding the significance of globalization for the
U.S. tax system. She stated that "From the vantage point of an increasingly
global marketplace, our tax rules appear outmoded, at best, and punitive of U.S.
economic interests, at worst. Most other developed countries of the world are
concerned with setting a competitiveness policy that permits their workers to
benefit from globalization." She also said that "The U.S. tax system should not
distort trade or investment relative to what would occur in a world without
taxes. Every country makes sovereign decisions about its own tax system, so it
is impossible for the U.S. to level all playing fields simultaneously. But we
can ensure that our own rules minimize the barriers to the free flows of capital
that globalization necessitates." She speaks on this topic regularly.
|There will not be an issue of the TLJ Daily E-Mail Alert on
Friday, March 28.
|Thursday, March 27
The House will meet at 10:00 AM. It may consider
the Child Abduction Prevention Act; see,
copy of bill
[25 pages in PDF] as amended and approved by the House Judiciary Committee on
Day four of a convention of the National
Telecommunications Cooperative Association (NTCA) titled "NTCA 2003
Legislative and Policy Conference". At 8:15 AM
Rep. Bob Goodlatte (R-VA) will
conference agenda [PDF]. Press contact: Donna Taylor at 703 351-2086 or
firstname.lastname@example.org, or Aaryn Slafky at 703
351-2087 or email@example.com.
8:00 AM - 2:30 PM. The Information
Technology Association of America (ITAA) will host a conference titled "Securing
Cyberspace: A Government Industry Partnership for the Future". At 8:30 AM,
Rep. Tom Davis (R-VA), Chairman
of the House Government Reform
Committee, will speak. At 8:55 AM,
Rep. Sherwood Boehlert (R-NY),
Chairman of the House Science
Committee, will speak. At 9:55 AM,
Sen. Robert Bennett (R-UT), will speak. At 1:30 PM,
Sen. Ron Wyden (D-OR) will speak. The
ITAA states that the event is "By invitation only" and "Expected Attendees:
Hill Members and Staff, Public Media, Industry Reps. & other Public/Private
Sector partners". See,
Location: Room G-50, Dirksen Building.
9:00 AM. The Global Business Dialogue will hold a press conference on
World Trade Organization (WTO)
rules. For more information, contact Judge Morris at 202 463-5074. Location:
First Amendment Lounge, National Press Club,
529 14th St. NW, 13th Floor.
9:30 AM. The Senate Judiciary
Committee will hold an executive business meeting. The agenda includes
S 274, the
Class Action Fairness Act of 2003, and judicial
Location: Room 226, Dirksen Building.
10:00 AM. The House Judiciary
Committee's Subcommittee on Courts, the Internet, and Intellectual
Property will hold a hearing on HR 1417, the Copyright Royalty and
Distribution Act. The hearing will be webcast. Location: Room 2141,
10:00 AM. The
House Government Reform Committee
will hold a business meeting, and then a hearing on internet pharmacies.
The witnesses will be William Hubbard (Food and
Drug Administration), Howard Beales (Bureau of Consumer Protection,
Federal Trade Commission), James Thompson
(Federation of State Medical Boards), Carmen Catizone (National Association
of Boards of Pharmacy), and Richard Blumenthal (Connecticut Attorney General).
Press contact: David Marin or Scott Kopple at 202 225-5074. Location: Room
2154, Rayburn Building.
11:00 AM. The Cato Institute will host
a book forum on the book
The Half-Life of Policy Rationales: How New Technology Affects Old Policy
Issues [Amazon sales rank on March 23: 1,844,100]. The speakers will be
Daniel Klein (co-editor), Jerry Ellig (Acting Director, Office of Policy
Planning at the Federal Trade Commission),
Donald Boudreaux (George Mason
University), and Robert Atkinson (Progressive
Policy Institute). Lunch will follow. See,
notice and registration
page. Location: Cato, 1000 Massachusetts Avenue, NW.
4:00 PM. The House Armed Services
Committee's (HASC) Subcommittee on Terrorism, Unconventional Threats and
Capabilities will hold a hearing on on
Department of Defense (DOD) science and technology policy and programs for
fiscal year 2004. The scheduled witnesses include
Director of the Defense Advanced Research
Project Agency (DARPA). The Total
Information Awareness (TIA) office is a part of the DARPA. The other
scheduled witnesses are Ronald Sega, Director of Defense Research and
Engineering at the DOD, Michael Andrews, Deputy Assistant Secretary of the
Army for Research and Technology, and James Engle, Deputy Assistant Secretary
of the Air Force for Science, Technology & Engineering. Location: Rayburn
6:00 - 8:00 PM. The Federal Communications
Bar Association (FCBA) will host a CLE seminar titled "What Every
Practitioner Needs to Know about Telecommunications Access -- Policy and
Practice Related to Persons with Disabilities". The speakers will be
Bryan Tramont (FCC), Tom Chandler (FCC), Richard Ellis (Sprint), Mike Fingerhut
(Sprint), Pam Gregory (FCC), Karen Strauss (Gallaudet University), Paul
Schroeder (American Foundation for the Blind), and Claude Stout
(Telecommunications for the Deaf). The prices to attend range from $50 to $80.
RSVP to Wendy Parish at firstname.lastname@example.org.
Location: Wiley Rein & Fielding, 1750 K St.,
NW, 10th Floor.
|Friday, March 28
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its Further Notice of Proposed
Rulemaking (FNPRM) regarding a proposed set of rules pertaining to "plug and
play" cable compatibility. On December 19, 2002, 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,
[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. See also, FCC
release [MS Word] of January 7 announcing the FNPRM, and
notice in the Federal Register, January 16, 2003, Vol. 68, No. 11, at
Pages 2278 - 2283. This is CS Docket
97-80, and PP Docket 00-67. For more information, contact Susan Mort in the
FCC's Media Bureau at 202 418-7200 or
12:15 PM. The Federal
Communications Bar Association's (FCBA) Cable Practice and Legislation
Committees will host a brown bag lunch. The speakers will be Bill Baily
(Majority Counsel, Senate Commerce
Committee) and James Assey (Minority
Counsel, Senate Commerce Committee). RSVP to Wendy Parish at
email@example.com. Location: NCTA, 1724
Massachusetts Ave., NW, 2nd floor conference room.
|Monday, March 31
The Federal Trade Commission's (FTC)
amended final Telemarketing Sales Rule (TSR) takes effect. See,
notice in the Federal Register containing the final amended TSR, and the
Statement of Basis and Purpose. However, full compliance with the caller
identification transmission provision is required by January 29, 2004. Also, the
FTC will announce later the date by which full compliance with the
``do-not-call´´ registry provision, will be required. See, Federal Register,
January 29, 2003, Vol. 68, No. 19, at Pages 4579-4679. See also,
Day one of a two day event hosted by the
Association for Competitive Technology
(ACT) titled "Member Fly-In". For more information, contact Catherine Parsons
at 202 331-2130 x106.
Deadline to submit comments to the The
National Telecommunications and Information
Administration (NTIA) regarding the utility service cancellation notice
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 "any notice of
... the cancellation or termination of utility services (including water, heat, and
power)". (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.
notice in the Federal Register, January 28, 2003, Vol. 68, No. 18, at
Deadline to submit comments to the Federal
Communications Commission (FCC) regarding its staff study relating to
alternative methodologies for calculating contributions to the federal
universal service support mechanisms. See,
notice in the Federal Register, March 6, 2003, Vol. 68, No. 44, at Pages
10724 - 10725.
|Tuesday, April 1
9:00 AM. The Senate Judiciary
Committee will hold a hearing on several judicial nominations: Carolyn
Kuhl (to be a Judge of the U.S.
Court of Appeals for the 9th Circuit), Cecilia
Altonaga (Southern District of Florida), and Patricia Minaldi (Western
District of Louisiana). Location: Room 226, Dirksen Building.
10:00 AM. The Senate
Appropriations Committee's Subcommittee on
Commerce, Justice, State, and the Judiciary will hold a hearing on the FY 2004
budget for the Department of Justice.
Location: Room 192, Dirksen Building.
Day two of a two day event hosted by the
Association for Competitive Technology
(ACT) titled "Member Fly-In". For more information, contact Catherine Parsons
at 202 331-2130 x106.
Deadline to file
Form 499A [34
pages in PDF], the Annual Telecommunications Reporting Worksheet, with the
Universal Service Administrative Company's (USAC).
|Wednesday, April 2
1:00 - 3:00 PM. The President's
Telecommunications Advisory Committee (NSTAC) will hold a meeting via
conference call. The meeting is closed to the public. See,
notice in the Federal Register, March 21, 2003, Vol. 68, No. 55, at Page
11:30 AM - 2:00 PM.
Anne Mulcahy, Ch/CEO of Xerox,
will speak at the U.S. Chamber of Commerce
program titled "From Survival to Success: Leading in Turbulent Times".
Location: U.S. Chamber of Commerce, 1615 H Street, NW.
The Supreme Court will hear oral argument in Dastar Corporation v.
Twentieth Century Fox Film, a case involving whether Section 43(a) of the
Lanham Act, codified at 15
U.S.C. § 1125(a), requires an independent showing that consumers will likely be
confused by a defendant's false designation of origin or false or misleading
description or representation of fact. Dastar made a video that copied
extensively from a TV program (that had entered the public domain) without
crediting the source. Twentieth Century Fox prevailed in the courts below on a
Lanham Act claim.
|Thursday, April 3
11:00 AM- 12:00 NOON.
McQueary, Under Secretary for Science and Technology, at the
Department of Homeland Security (DHS), will
speak at a program titled "Homeland Security Business Forum: Science and
Technology Under DHS". See,
pages. The price to attend is $35 for members and $100 for non members.
Location: U.S. Chamber of Commerce,
1615 H Street, NW.
12:00 NOON. John Muleta, Chief of the
Federal Communications Commission's (FCC)
Wireless Telecommunications Bureau will speak at the Land Mobile
Communications Council's annual meeting. Location: Loews L'Enfant Plaza Hotel.
3:30 PM. Pamela Samuelson
(Professor, UC Berkeley) will give a lecture titled "Freedom to Tinker,
Freedom to Learn: A Constitutional Interest in Reverse Engineering".
For more information, contact Julie Cohen at
Georgetown University Law Center,
Faculty Lounge, 600 New Jersey Ave., NW.
Day one of a two day conference hosted by the University of Maryland's
Center for Intellectual Property titled "Copyright in the Digital Age:
Challenges Facing the Academy". The
includes sessions on the TEACH Act, peer to peer file copying, and the DMCA.
Location: Greenbelt Marriott, Maryland.
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