4/10. The House and Senate both passed the conference report [118 pages PDF] on S 151, the "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003", or "PROTECT Act". The House passed the bill by a vote of 400-25. See, Roll Call No. 127. The Senate passed the bill by a vote of 98-0. See, Roll Call No. 132. The bill contains several tech related items, including a ban on use of certain misleading domain names, provisions pertaining to computer generated images, and an expansion of the list of offenses that may serve as a predicate for the issuance of a wiretap order.

S 151 was originally passed by the Senate on February 24, 2003 by a vote of 84-0. See, Roll Call No. 35. The House passed its version of the bill, HR 1104, on March 27, 2003 by a vote of 410-14. See, Roll Call No. 89. The two versions were different, thus requiring a conference. The conference committee issued its report on April 7. The report, which is numbered H. Rept. 108-66, is also published in the Congressional Record, April 9, 2003, at H2950 et seq. See also, section by section summary of bill provided by House Judiciary Committee.

This is a long and wide ranging bill pertaining to the investigation, prosecution and punishment of offenses relating to children and pormography. It includes, at §§ 301-305, provisions establishing a national Amber Alert communications network to facilitate the recovery of abducted children. It also includes provisions pertaining to detention, sentencing and supervised release of child sez offenders. It also eliminates the statute of limitations for child abduction and child sez crimes. It also provides increased support for the National Center for Missing and Exploited Children, and creates a new cyber tipline. It also contains provisions regarding the registration of child pormographers and sez offenders.

Misleading Domain Names. § 521 of the conference report, which is also known as the "Truth in Domain Names Act", provides that "Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both". It further provides that "Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both."

This provision was originally offered as a stand alone bill, HR 939, sponsored by Rep. Mike Pence (R-IN). Rep. Pence offered his bill an amendment to HR 1104 during House consideration of the bill. The House approved it by a voice vote.

Predicate Offenses for Wiretap Orders. § 201 of the conference report amends 18 U.S.C. § 2516 to expand the list of offenses that may serve as predicates for the issuance of a court order authorizes a wiretap. Currently, the list is short. The USA PATRIOT Act expanded the list to include offenses pertaining to terrorism. The conference report adds offenses pertaining to sez crimes against children, and child obscenity and pormography.

Computer Generated Images. §§ 501-513 of the conference report pertain to child obscenity and pormography prevention. These sections are, in part, a response to the Supreme Court's April 16, 2002, opinion [PDF] in Ashcroft v. Free Speech Coalition, in which the Court held unconstitutional on First Amendment and overbreadth grounds provisions of the Child Pormography Prevention Act of 1996 (CPPA) banning computer generated images depicting minors engaging in sezually explicit conduct. §§ 501-513 reflect a compromise between the House and Senate versions of the bill.

The problem is that the Supreme Court's opinion opened the door for all digital child pormographers to escape conviction by falsely asserting that their images are computer generated. This is an assertion that is difficult for prosecutors to disprove beyond a reasonable doubt.

The House had passed a stand alone bill on this subject in the 107th Congress -- HR 4623, the "Child Obscenity and Pormography Prevention Act of 2002". However, the Senate did not pass this bill. Rep. Lamar Smith (R-TX) reintroduced a similar bill in the current (108th) Congress as HR 1161, the "Child Obscenity and Pormography Prevention Act of 2003". He also offered the language of this bill as an amendment to HR 1104 on March 27, 2003. The House approved it by a vote of 406-15. See, Roll Call No. 88.

The gist of the House approach has been to restate the ban, but provide as an affirmative defense the argument that no children were actually used. That is, it shifts the burden of proof on the issue of virtual pormography from the prosecution to the defense. The language in the conference report maintains the House approach of burden shifting.

The CPPA expanded the federal prohibition on child pormography to encompass new technologies. 18 U.S.C. § 2256, the section containing definitions, was amended to provide that child pormography means "any visual depiction, including any photograph, film, video, picture, or computer or computer- generated image or picture, whether made or produced by electronic, mechanical, or other means, of sezually explicit conduct, where (A) the production of such visual depiction involves the use of a minor engaging in sezually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sezually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sezually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sezually explicit conduct;"

The conference report amends § 2256(8)(B) to read "such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sezually explicit conduct;"

Then, the conference report provides that "It shall be an affirmative defense ... that ... the alleged child pormography was not produced using any actual minor or minors."

Sen. Patrick Leahy (D-VT) stated that the conference report "attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children.  Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography -- i.e. that it was made using computers." See, Leahy statement. Sen. Leahy was a cosponsor of the Senate version of the bill, and a member of the conference committee.

"The final bill includes the House provision on banning virtual and non-obscene child pornography, a provision that I have counseled against in both bills because it renders the bill weaker against constitutional attack", said Sen. Leahy. "At the same time, I was pleased the House agreed to accept provision I authored that protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense."

He added that "This improved affirmative defense measure also provides important support for the constitutionality of much of this bill after the Free Speech decision."

See also, story titled "House Subcommittee Holds Hearing on Computer Generated Porm" in TLJ Daily E-Mail Alert No. 423, May 2, 2002; story titled "House Judiciary Committee Supports Ban on Computer Generated Child Porm" in TLJ Daily E-Mail Alert No. 454, June 19, 2002; story titled "Crime, the Internet and Computer Generated Images", TLJ Daily E-Mail Alert No. 522, October 3, 2002; and story titled "House Subcommittee Holds Hearing on HR 1161", TLJ Daily E-Mail Alert No. 621, March 12, 2003.

Bush Will Sign Bill. President Bush released a statement after passage of the conference report in which he said that "I applaud the House and Senate for passing bipartisan legislation that provides us with additional tools to prevent, investigate, and prosecute violent crimes against our children. This legislation builds upon the steps my Administration took last year to expand, enhance, and coordinate the successful Amber Alert system across the Nation. The bill also strengthens child pormography laws." He added that "I look forward to signing this important legislation into law as soon as possible."

Editor's Note. TLJ deliberately misspells words, such as "pormography" and "sez". These words, when spelled correctly, cause the e-mail filtering systems of some subscribers to block delivery of the TLJ Daily E-Mail Alert.

4/9. Sen. Ernest Hollings (D-SC) and 14 other Senators wrote a letter [2 page PDF scan] to Federal Communications Commission (FCC) Chairman Michael Powell regarding its media ownership proceeding.

They wrote that "We note with disappointment your announcement that the FCC's revised media ownership rules will be released in final form June 2nd without any opportunity for the Congress or the public to review them beforehand. We believe is is virtually impossible to serve the public interest in this extremely important and highly complex proceeding without letting the public know about and comment on the changes you intend to make to these critical rules."

"We again urge the Commission to provide full disclosure of any proposed changes before they are made final", wrote Sen. Hollings and others.

The letter was signed by Senators Hollings, Snowe, Dorgan, Lott, Hutchison, Inouye, Rockefeller, Wyden, Boxer, Nelson, Lautenberg, Cantwell, Collins, Murray, and Allard. Most are members of the Senate Commerce Committee, which oversees the FCC. However, neither Sen. John McCain (R-AZ), the Chairman of the full Committee, nor Sen. Conrad Burns (R-MT), the Chairman of the Communications Subcommittee, signed the letter.

Sen. Hollings also wrote a letter [PDF] to Sen. McCain on April 9. He wrote that "Following our conversation last week, I appreciate your willingness to hold a hearing on media consolidation."

Sen. Hollings continued that "In light of Chairman Powell's recent announcement that the FCC will conclude its review of media ownership rules by June 2, it is critical that the Committee be permitted to discuss these issues with the Commissioners prior to their decision. Given the importance of these proceedings and limited time remaining before the Commission's expected order, I would urge you to schedule a hearing as soon as possible following the Easter recess and invite all five FCC commissioners to testify so that we may discuss matters related to this proceeding in a public forum. Such a hearing will not only afford Members with the opportunity to explore the options under consideration, but, more importantly, will permit frank discussion about the impact of potential rule changes on the core values of competition, diversity, and localism that are fundamental to serving the public interest."

The Senate Commerce Committee has already held one hearing on media ownership this year, on January 30, 2003.

Meanwhile, on April 10, Rep. Fred Upton (R-MI), the Chairman of the House Commerce Committee's Subcommittee on Telecommunications and the Internet, wrote a letter to FCC Chairman Michael Powell on media ownership. He wrote, "Respectfully, I expect that, by June 2nd, you and your colleagues will complete the Commission's work in this proceeding."

Rep. Upton continued, "Given the extensive public record which the Commission has developed, the level of public participation, and the lengths to which the Commission has gone to examine the current media landscape, I believe that any delay beyond June 2nd in completing this proceeding would be inexcusable. Such delay would reflect extremely poorly on the Commission's ability to adhere to congressionally mandated reviews of matter within the Commission's purview."

Rep. Upton noted that the FCC has already conducted and released 12 studies, received over 15,000 public comments, and conducted two field hearings.

4/10. Wayne Abernathy, Assistant Secretary of the Treasury for Financial Institutions, gave a speech titled "The Many Ugly Faces of Identity Theft". He said that identity thieves use individuals' personal information to commit financial fraud. However, he argued that in an information based economy the solution is not to restrict the use of information. Rather, he argued that law enforcement authorities and financial institutions should have more information, to fight identity theft.

He said that "We live in a country that offers to consumers the widest variety of financial services anywhere on earth, at the lowest cost anywhere on earth, to the broadest range of the population anywhere on earth. That is a marvelous achievement that we must not surrender."

He elaborated that "This achievement is made possible by information, broad information, instantaneous information. Today, you can walk into practically any bank anywhere in America and obtain that very day a financial product suited to the needs of you and your family. And that is not just because the banker can look at your credit history and learn who you are, confident that he is getting the full story, but also because that banker can draw upon the information of a million people like you, and can define your risk and price it."

He detailed the widespread practice of identity theft, the methods used by thieves, and the harm that it causes to individuals. He then noted that "Some would say, ``stop that information flow, that information is what feeds the identity thieves.´´ But what would we give up? Who would we cut off from access to the home loan, the business loan, the college loan?"

Abernathy argued that "Instead, we can use information to fight the crime. The banker stops the identity thief when the banker knows more about his customer than the thief does. The police can catch the crook if information can jump state lines faster than the crook can. The victim's records can be restored if information on his clean record can be sent quickly to all parts of the nation."

He said that people need to "recognize the danger to our modern, information based economy. And rather than back away from the crime, we need to take it head on. To do that we need to recognize that it is not information that makes the crime possible. It is lack of information. The identity thief wears a mask. When the merchant or the banker can look behind the mask, and he knows what he sees, then we will strike a major blow at the crime.

Abernathy spoke to the 2003 Banking Institute of University of North Carolina School of Law's Center for Banking and Finance in Charlotte, North Carolina.

4/10. The U.S. Court of Appeals (6thCir) issued its opinion in Interactive Products Corporation v. a2z, a trademark case involving placement of trademarked terms in the post domain portion of URLs. The Appeals Court held that there is no infringement because there is no likelihood of confusion.

The Congress and courts have already addressed the topic of the use of trademarked terms in domain names. This case deals with the use of trademarked terms, not in the domain, but in the post domain path of uniform resource locators (URLs). For example, www.techlawjournal.com is a domain name. But, http://www.techlawjournal.com/ courts2002/riaa_verizon/ 20030121.asp is the complete URL of a file in the Tech Law Journal web site. "Verizon" is a trademarked term that appears in the post domain portion of this URL.

In the present case, both Interactive Products Corporation (IPC) and a2z Mobile Office Solutions make portable computer stands for holding laptop computers in cars. IPC makes a product named "Lap Traveller". It holds a trademark for this term. a2z makes a product named "Mobile Desk". a2z maintains a website the uses the string "laptraveller" in post domain URLs. IPC filed a complaint in U.S. District Court (SDOhio) against a2z and others alleging trademark infringement for placing IPC trademarks in the post domain portion of URLs of files in the a2z website.

More specifically, the complaint alleges federal trademark infringement (15 U.S.C. § 1114), state trademark infringement (Ohio Deceptive Trade Practices Act, Ohio Revised Code § 4165.02, and Ohio common law), false designation of origin and false advertising (5 U.S.C. § 1125), trademark dilution, breach of agreement, and tortious interference with business relationships.

The District Court, finding no likelihood of confusion, granted summary judgment to IPC on all claims. This appeal followed.

The Court of Appeals affirmed. The Court wrote that for federal and state trademark infringement, as well as false designation of origin, the "touchstone of liability" is "likelihood of confusion". Thus, "to succeed on any of its trademark claims at issue in this appeal, IPC must show that the presence of its trademark in the post-domain path of a2z's portable computer stand web page is likely to cause confusion among consumers regarding the origin of the goods offered by the parties."

The Appeals Court concluded that "Because post-domain paths do not typically signify source, it is unlikely that the presence of another's trademark in a post-domain path of a URL would ever violate trademark law. For purposes of the present case, however, it is enough to find that IPC has not presented any evidence that the presence of ``laptraveler´´ in the post-domain path of a2z's portable computer stand web page is likely to cause consumer confusion regarding the source of the web page or the source of the Mobile Desk product, which is offered for sale on the web page."

The House will meet at 10:00 AM.

9:30 AM. The Copyright Office (CO) will hold the first of several hearings regarding the exemption of certain classes of works from the Digital Millennium Copyright Act's (DMCA) prohibition against circumvention of technological measures that control access to copyrighted works. At 9:30 AM, there will be a panel on compilations of lists of websites blocked by filtering software; the witnesses will be Seth Finkelstein (supporting the exemption), and David Burt (N2H2, opposing the exemption). At 1:30 PM, there will be a panel copy protected red book audio format compact discs; the panelists will be Steve Englund (RIAA), Seth Greenstein / Jonathan Potter (Digital Media Association), and Thomas Leavens (Full Audio Corporation). See, notice in the Federal Register, March 20, 2003, Vol. 68, No. 54, at Pages 13652 - 13653. (The CO has since changed the dates, times and locations listed in this notice.) See also, CO web page on rulemakings on anticircumvention, the relevant statutory sections at 17 U.S.C. §§ 2101-2105, and story titled "Copyright Office to Hold Hearings on DMCA Anti Circumvention Exemptions", TLJ Daily E-Mail Alert No. 628, March 21, 2003. Location: Mumford Room, LM-649, James Madison Building, Library of Congress, 101 Independence Ave, SE

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Unity Broadcasting v. FCC, No. 02-1101. Judges Edwards, Randolph and Tatel will preside. Location: 333 Constitution Ave., NW.

Day long meeting of the Federal Communications Commission's (FCC) Consumer Advisory Committee.

Day two of a two day conference hosted by the American Association for the Advancement of Science (AAAS) titled "Colloquium on Science and Technology Policy". See, notice and agenda [PDF]. Location: Washington Plaza Hotel, 10 Thomas Circle, 14th and M Streets, NW.

The House will be in recess from April 14 through April 25 for the Spring District Work Period.

12:00 NOON. The Cato Institute will host a panel discussion titled "What's Up with the PATRIOT Act? Concerns about the Legislative Response to 9/11 and the Prospect of a PATRIOT II". The speakers will be Tim Lynch (Cato), and Jim Dempsey (Center for Democracy and Technology). See, notice and registration page. Lunch will be served. Location: Room B-338, Rayburn Building.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) [MS Word] titled "In the Matter of Second Periodic Review of the Commission's Rules and Policies Affecting the Conversion To Digital Television". This is MB Docket No. 03-15, RM 9832, and MM Docket Nos. 99-360, 00-167, and 00-168. See, FCC release and notice in the Federal Register, February 18, 2003, Vol. 68, No. 32, at Pages 7737-7747.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding on how to use the reallocated Mobile Satellite Service (MSS) spectrum as well as other bands previously proposed for Advanced Wireless Service (AWS) use, the relocation of the Multipoint Distribution Service (MDS), and additional flexibility for the Unlicensed Personal Communications Service (UPCS) band spectrum. This is ET Docket 00-258 and IB Docket No. 99-81. See, notice in the Federal Register, March 13, 2003, Vol. 68, No. 49, at Pages 12015 - 12020.

RESCHEDULED. 9:30 AM. The Copyright Office (CO) will hold the second of four hearings in Washington DC regarding the exemption of certain classes of works from the Digital Millennium Copyright Act's (DMCA) prohibition against circumvention of technological measures that control access to copyrighted works. See, notice in the Federal Register, March 20, 2003, Vol. 68, No. 54, at Pages 13652 - 13653. See also, CO web page on rulemakings on anticircumvention, the relevant statutory sections at 17 U.S.C. §§ 2101-2105, and story titled "Copyright Office to Hold Hearings on DMCA Anti Circumvention Exemptions", TLJ Daily E-Mail Alert No. 628, March 21, 2003.

POSTPONED. 9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Covad v. Bell Atlantic, No. 02-7057. This case pertains to the applicability of the Telecommunications Act of 1996 and Section 2 of the Sherman Act, 15 U.S.C. § 2, to allegations that an incumbent local exchange carrier (ILEC) has monopolized or attempted to monopolize a market for local telecommunications services. See, amicus curiae brief of the USA/FCC.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Cell Telecom v. FCC, No. 02-1264. Judges Edwards, Randolph and Tatel will preside. Location: 333 Constitution Ave., NW.

12:00 NOON - 1:45 PM. The Legislation Committee of the DC Bar Association's Intellectual Property Law Section will host a luncheon program titled "Patent Legislative Agenda". The speakers will be Hayden Gregory (American Bar Association), Chris Katopis (Deputy Administrator for External Affairs, United States Patent and Trademark Office), and Michael Kirk (American Intellectual Property Law Association). The price to attend ranges from $25 to $35. For more information, call 202 626-3463. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) pertaining to the service rules for the Dedicated Short Range Communications Systems in the 5.850-5.925 GHz band (5.9 GHz band). See, notice in the Federal Register, January 15, 2003, Vol. 68, No. 10, at Pages 1999-2002. For more information, contact Nancy Zaczek at 202 418-7590 or nzaczek@fcc.gov, or Gerardo Mejia at 202 418-2895 or gmejia@fcc.gov.

Deadline to submit to the National Institute of Standards and Technology (NIST) the 2003 Eligibility Certification Package for the Malcolm Baldrige awards. See, Eligibility Forms [MS Word].

Passover.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will hold a meeting. The topic of this meeting will be broadband access technologies. See, notice in the Federal Register, March 28, 2003, Vol. 68, No. 60, at Page 15188. For more information, contact Jeffery Goldthorp at jgoldtho@fcc.gov or 202 418-1096. Location: FCC, 445 12th St. SW, Room TW-C305 (Commission Meeting Room).

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The speaker will be Sarah Whitesell, Legal Advisor to FCC Commissioner Jonathan Adelstein. RSVP to Wendy Parish at wendy@fcba.org. Location: NCTA, 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. The speakers will be Peter Tenhula (Director of the FCC's Spectrum Policy Task Force), Paula Ford (Regulatory Counsel for Microsoft), Ashim Roy (ComBasis). For more information, contact Greg Haledjian at 202 777-3972 or Jennifer Cetta at 202 887-1597. RSVP to btoliver@mofocom. Location: Morrison & Foerster, 2000 Pennsylvania Ave., NW, Suite 5500.

Extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) [MS Word] regarding "Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band". Unlicensed devices would include, among other things, 802.11. See, notice in Federal Register, January 21, 2003, Vol. 68, No. 13, at Pages 2730-2733. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002. For more information, contact Hugh Van Tuyl in the FCC's Office of Engineering & Technology at hvantuyl@fcc.gov or 202 418-7506. This is OET Docket No. 02-380. See, notice of extension [PDF].

4/9. Sprint announced that President and Chief Operating Officer Ronald LeMay is leaving the company, effective April 9. He will provide consulting services for one year. See, Sprint release.

4/9. Microsoft published in its web site a transcript of the April 3 oral argument before the U.S. Court of Appeals (4thCir) in Sun Microsystems v. Microsoft, No. 03-1116. Previously, the U.S. District Court (Maryland) issued a preliminary injunction against Microsoft in this antitrust action. The District Court held in its December 23, 2002 opinion [42 pages in PDF] that Microsoft must carry the latest Java runtime environment on any product carrying Microsoft's .NET, including Windows XP. Microsoft appealed.