Tech Law Journal Daily E-Mail Alert
April 15, 2003, 9:00 AM ET, Alert No. 644.
Home Page | Calendar | Subscribe | Back Issues | Reference
Panel Addresses PATRIOT Act and Civil Liberties

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 Lynch (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 are not.

Dempsey argued that civil liberties "are not what is wrong with our country", and that respect for civil liberties "help our counter terrorism effort".

James DempseyTLJ 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.

The Act 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 Information

4/14. Tom 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."

Tom RidgeSecretary 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 Application

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, FCC release and SBC release.

Commissioner Michael Copps concurred, but wrote a separate 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."

Michael CoppsCopps (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."

Similarly, Commissioner Jonathan Adelstein wrote a 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."

See also, separate statement [PDF] of Commissioner Kevin Martin.

District Court Issues Opinion On Class Certification in Microsoft Antitrust Proceeding

4/14. The U.S. District Court (DMd) issued an opinion [15 pages in PDF] regarding class certification in the proceeding titled "In Re Microsoft Crop. Antitrust Litigation".

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 bold):

(1) May purchasers of licenses for operating system software be class representatives for purchasers of licenses for applications software? No.

(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 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 Yes.

(6) Should an injunctive relief class be certified? No."

WorldCom Files Plan of Reorganization with Bankruptcy Court

4/14. WorldCom filed a proposed plan of reorganization with the U.S. 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.

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. 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 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.

12:00 NOON - 1:30 PM. Janet Hale, Under Secretary for Management at the Department of Homeland Security (DHS) will give a speech. See, notice. 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, or Gerardo Mejia at 202 418-2895 or

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 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 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 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 Appeals (DCCir) will hear oral argument in Olvie Sisk v. FCC, No. 01-1514. Judges Ginsburg, Edwards and Henderson will preside. Location: 333 Constitution Ave., NW.

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, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

New Bills

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) introduced 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 Committee.

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, MCI release.

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, federal elected officials, and employees of the Congress, courts, and 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 information page.

Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2003 David Carney, dba Tech Law Journal. All rights reserved.