|Panel Addresses PATRIOT Act and Civil
4/14. The Cato Institute hosted 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 were Susan Chamberlin (CATO), Tim
(Cato), and Jim Dempsey
(Center for Democracy and Technology).
Lynch praised President Bush's use of troops in the Middle East, but stated
that "the President has been getting a lot of bad advice about how to face the
terrorist threat at home." He argued that Americans should not let terrorists change
the American way of life, especially in the area of civil liberties. "We need to alter
their way of life, not our own".
Lynch also argued that the Federal Bureau of Investigation (FBI) and other
government agencies should make better use of the tools that they already have,
rather than obtain more powers that restrict civil liberties.
He added that if the Congress passes further anti terrorism legislation, it
should not proceed as it did in passing the PATRIOT Act. First, the Congress
should not pass one huge bill; legislation should be broken down into separate
bills by topic. Second, all new provisions should contain sunset provisions;
some provisions of the PATRIOT Act are subject to sunset provisions, and some
Dempsey argued that civil liberties "are not what is wrong with our country",
and that respect for civil liberties "help our counter terrorism effort".
also spoke with Dempsey (at right) afterwards about the provisions of the
PATRIOT Act that extended the pen register and trap and trace order provisions
of Title 18 to include internet communications.
Pen registers and trap and trace (PR&TT) devices are telephone industry
concepts. The former are used to obtain outgoing phone numbers. The latter are
used to obtain incoming numbers. Before passage of the PATRIOT Act in late 2001,
the relevant statute referenced "wire" communications.
The Act provides that the concept of a pen register is expanded from merely
capturing phone numbers, to capturing routing and addressing information in any
electronic communications, including internet communications. It similarly
expands the concept of trap and trace devices. The Act also provides that a
single order shall apply nationwide.
PR&TT orders do not authorize a law
enforcement authority to obtain the content of communications. Court orders authorizing
PR&TT devices do not
require a showing of probable cause, as is the case for wiretaps, which enable
law enforcement authorities to obtain the content of communications.
provides the standard for PR&TT orders: "the court shall enter an ex parte order
authorizing the installation and use of a pen register or trap and trace device
anywhere within the United States, if the court finds that the attorney for the
Government has certified to the court that the information likely to be obtained
by such installation and use is relevant to an ongoing criminal investigation."
Thus, issuance of the order is mandatory, and the standard -- mere relevance --
is low. Dempsey called this a "rubber stamp" standard.
Dempsey stated that "The government already had pen registers to telephones,
and they probably did actually apply to the internet. And the cases that had
come up before the PATRIOT Act, the courts held that they did apply to the
internet. Debate was over how do you translate dialing information into the
context of the internet. Does it include the IP addresses? The URLs? If it
includes the URLs, how much?"
He also spoke about what he has heard from service providers on this issue. He stated
that "they are very very mum. They very mum because they prefer to
negotiate things out, rather than to litigate them. They prefer to cooperate
when they can. And, they prefer that their customers not get the sense that
there is a lot of surveillance going on, or that there is a lot of cooperation
going on, because that may lead to embarrassment, or consumer distrust, user
distrust. So, for all of those reasons -- and they are not necessarily bad
reasons -- but for all of those reasons, they are reticent. And they are also
reticent because, at some level, they can't talk about ongoing investigations. I
mean, they are reluctant to screw things up for the government."
Dempsey also spoke about issues that may arise if Congress considers
further legislation in this area. He said that "the remaining issue of concern
for us is the question of what should the standard be. And if the standard is
now one of these rubber stamp standards that say that the judge shall approve.
And we think that that should be the judge may approve upon a finding of
specifics facts giving reason to believe that the information is relevant to an
ongoing criminal investigation, rather than the current rubber stamp. So, the
standard is the issue."
See also, articles titled "Bush Signs Anti Terrorism Bill", "Pen Registers
and Trap and Trace Devices", and "Key Tech Related Provisions of the Anti
Terrorism Bill", in
TLJ Daily E-Mail Alert No. 296, October 29, 2001.
|Tom Ridge Addresses Privacy and Government
Ridge, Secretary of Homeland Security, gave a speech in Washington DC to the
American Association of Universities, in which he discussed, among other topics,
privacy and government information. He stated that "Fear of government abuse of
information, like fear of terrorism, is understandable, but we cannot let it
stop us from doing what is right and responsible. The antidote to this fear, I
might add, is an open, fair, and transparent process that guarantees the
protection and privacy of that data."
Ridge (at right) continued that "In addition to
the federal privacy safeguards already on the books, the
Department of Homeland
Security will have its own privacy officer, whom we expect to name shortly. This
individual will be involved from the very beginning with every policy initiative
and every program initiative that we consider, to ensure that our strategy and
our actions are consistent with the individual rights and civil liberties
protected by the Constitution."
He concluded that "We'll work
together to ensure that our new programs appropriately use information, protect
it from misuse, and discard it when it is of no further use. It is, however,
critical that information be accurate, comprehensive, and up-to-date."
|FCC Approves SBC's Nevada Long Distance
4/14. The Federal Communications Commission
(FCC) approved SBC's
Section 271 application
to provide in region interLATA services in the state of Nevada. See,
Commissioner Michael Copps
concurred, but wrote a
statement in which he argued that "There appears to
be little, if any, facilities-based wireline competition for residential
subscribers in Nevada. Nonetheless, the majority finds that SBC meets Track A's
presence of a facilities-based competitor requirement on the basis of wireless
competition. The majority goes even further when they suggest that a particular
wireless carrier’s service is a substitute for local wireline service. I am
troubled by this aspect of the decision."
(at right) added that "A determination that the services should be treated as
commercial alternatives has large implications for both the wireless and
wireline industries, and I am not yet ready to make the judgment that the
majority makes herein."
separate statement [PDF] in which he argued that
"Track A requires that one or more competing providers collectively serve
business and residential subscribers using their own telephone exchange service
facilities. I am somewhat concerned about relying on the existence of broadband
PCS competition in demonstrating the presence of competition under Track A."
separate statement [PDF] of Commissioner
|District Court Issues Opinion On Class
Certification in Microsoft Antitrust Proceeding
4/14. The U.S. District Court (DMd) issued an
[15 pages in PDF] regarding class certification in the proceeding titled "In Re Microsoft Crop. Antitrust
Judge Frederick Motz wrote the opinion of the Court, which he summarized as
follows (parentheses and emphasis in original):
"Presently pending is a motion for class certification filed by plaintiffs.
The motion presents the following six questions (with my short answers stated in
(1) May purchasers of licenses for operating system software be
class representatives for purchasers of licenses for applications software?
(2) If not, is a newly added plaintiff (a sister-in-law of one
of the plaintiffs' attorneys who purchased software at a deeply discounted
price) an adequate class representative for purchasers of licenses for
applications software? No.
(3) Are ``Select´´ and ``Enterprise´´ customers who purchased
software licenses through ``Large Account Resellers´´ proper members of the
requested class? No.
(4) Are Enterprise customers who purchased licenses for a large
volume of software products directly from Microsoft proper members of a class
represented by individuals who purchased single licenses for operating system
software through a program known as shop.microsoft.com? No.
(5) Are the requirements of Rules 23(a) and (b)(3) met as to a
monetary damages class composed of purchasers of licenses for operating system
software through shop.microsoft.com? Yes.
(6) Should an injunctive relief class be certified? No."
|WorldCom Files Plan of Reorganization with
4/14. WorldCom filed a proposed plan of reorganization with the
Bankruptcy Court (SDNY). See, WorldCom's
summary. WorldCom also announced that it is changing its brand name to MCI.
MCI P/CEO Michael Capellas stated in a
release that "Our company has demonstrated a new fast and focused attitude
and a commitment to emerge from Chapter 11 later this year as a leaner, stronger
competitor ... From this day forward, our focus will be on serving
our customers, strengthening our core assets, executing on our three-year
business plan, and solidifying our position as the industry's leading Internet
Protocol communications provider."
Walter McCormick, P/CEO of the U.S. Telecom
Association (USTA) stated in a release
that "This is not a decision that sends the right message to
corporate America, nor will it contribute to renewed stability in the telecom
sector. After mismanaging their company and misleading investors, the path is
now cleared for MCI/WorldCom to pass its bad debt off to companies that played
no part in MCI/WorldCom’s self-inflicted implosion. Our member companies
alone -- the companies that ensured service continued for MCI/WorldCom's
customers -- must now absorb hundreds of millions of dollars in unpaid bills, all
so MCI/WorldCom can emerge from its own misdeeds virtually debt-free."
|The TLJ Daily E-Mail Alert will not be published on
Thursday, April 17, or Friday, April 18.
|Tuesday, April 15
The House and Senate will be in recess from April 14 through
April 25 for the Spring
District Work Period. The House and Senate will next meet on Monday, April 28.
The Supreme Court is in recess until Monday, April 21.
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.
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,
brief of the USA/FCC. Location: 333 Constitution Ave., NW.
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
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.
12:00 NOON - 1:30 PM.
Under Secretary for Management at the Department
of Homeland Security (DHS) will give a speech. See,
Location: U.S. Chamber of Commerce,
1615 H Street, NW.
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
firstname.lastname@example.org, or Gerardo Mejia at 202
418-2895 or email@example.com.
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].
|Wednesday, April 16
12:00 NOON - 2:00 PM. The DC Bar Association's Computer and
Telecommunications Law Section will host a brown bag lunch titled "The
Internet, E-mail and Workplace Misconduct: Preventing and Litigating
Harassment, Discrimination and Discipline Claims". The speakers will be
Richard Vernon (Lerch Early & Brewer), and Diane Seltzer (Cashdan Kane &
Seltzer). The price to attend ranges from $15 to $30. Location: DC Bar
Conference Center, 1250 H Street NW, B-1 level.
|Thursday, April 17
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
firstname.lastname@example.org 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
RSVP to Wendy Parish at email@example.com.
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 Lauren Van Wazer (Special Counsel to the Chief of FCC's OET), 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
firstname.lastname@example.org or 202 418-7506. This
is OET Docket No. 02-380. See,
notice of extension [PDF].
|Friday, April 18
Deadline to submit reply 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.
|Monday, April 21
The Supreme Court will return from recess.
9:30 AM. The U.S. Court of
will hear oral argument in Olvie Sisk v. FCC, No. 01-1514. Judges
Ginsburg, Edwards and Henderson will preside. Location: 333 Constitution Ave.,
Day one of a two day conference hosted by the American
Enterprise Institute (AEI) titled "The New Antitrust Paradox: Policy
Proliferation in the Global Economy". The speakers will include William
Kovacic (Federal Trade Commission) and Judge Richard Posner (U.S. Court of Appeals
for the 7th Circuit). See,
Location: AEI, 12th Floor, 1150 17th Street, NW.
4/10. Rep. Anthony Weiner (D-NY)
introduced HR 1763. The Congressional Records describes this as "a bill
to amend the Communications Act
of 1934 to facilitate an increase in programming and content on radio that is
locally and independently produced, to facilitate competition in radio
programming, radio advertising, and concerts, and for other purposes". Rep.
Weiner stated in a
release that "The songs that make it onto radio play lists should be
determined by traditional market forces, like the quality of the product and
consumer tastes. But pay for play and other payola schemes substitute cash
payments for market forces, lining the pockets of some promoters, at the expense
of everybody else. ... It's about time Clear Channel lived up to its
responsibility as the largest radio owner in the nation, and cut its ties with
independent promoters." The bill was referred to the
House Commerce Committee.
4/11. Rep. Patrick Tiberi (R-OH)
and Rep. Ken Lucas (D-KY)
HR 1766, a bill to make permanent the provisions of the Fair Credit Reporting
Act (FCRA) and amend the Gramm Leach Bliley Act to establish a national uniform privacy
standard for financial institutions. It was referred to the
House Financial Services
4/11. Rep. Thaddeus McCotter
(R-MI) introduced HR 1771, a bill to amend the Communications
Act of 1934 to prohibit knowingly misinforming the relative of a member of the
U.S. armed forces that such member is deceased, injured, or
missing due to an event associated with their military service. It was referred
to the House Commerce Committee.
|People and Appointments
4/14. WorldCom, which is changing its name to MCI, announced Robert Blakely
is its new Executive Vice
President and Chief Financial Officer, as of April 14, 2003. Blakely has
previously been VP and CFO of Tenneco, a Managing Director of Morgan Stanley,
and a member of the Financial Accounting Standards Advisory Council, which
advises the Financial Accounting Standards Board (FASB). See,
|About Tech Law Journal
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