|Senate Committee Holds Hearing on P2P
6/17. The Senate Judiciary
Committee held a hearing titled "The Dark Side of a Bright Idea:
Could Personal and National Security Risks Compromise the Potential of Peer to
Peer File Sharing Networks". Witnesses praised the benefits of P2P
networks, but also cautioned about threats that they pose to the privacy and
security of individuals, and to the security of sensitive government records.
Witnesses also discussed the problem of pormography on P2P networks that is
often disguised a popular music files, thus causing children to unwittingly be
At the conclusion of the hearing, Sen.
Orrin Hatch (R-UT), the Chairman of the Committee, also focused on copyright
infringement on P2P networks, and suggested that if no other way can be found to
protect copyrighted works from piracy, "destroying computers" should be
permitted. See, related story below titled "News Analysis: Hatch Hyperbolizes About
Destroying Computers on P2P Networks".
Sen. Hatch was the only member of the Committee to participate. However,
Sen. Dianne Feinstein (D-CA), a
member of the Committee, appeared at the outset as a witness.
Sen. Hatch stated that "peer-to-peer file-sharing networks are here to stay".
He said that they "permit rapid and broad dissemination of information and
ideas; and they have provided a powerful tool to researchers, hobbyists, and
interested citizens seeking information and ideas on an array of topics. At the
same time, however, they have also opened up our homes, our businesses, and our
government agencies to potentially serious security risks that are neither
widely recognized nor easily remedied."
He also stated that "in government agencies, employee use of P2P networks
could also disclose sensitive government data to the enemies of this country. At
this moment in history, the implications of this risk are troubling, to say the
He also said that "I am also troubled that many P2P networks require their users
to install so-called “spyware” or “adware” -- programs that monitor, collect,
and report information about the Internet “browsing” habits of a particular
Finally, he said that "the users of P2P file-sharing networks may also
encounter malicious programs -- such as viruses, worms and Trojan horses -- that
have been disguised as popular media files." He added that "If the promoters of these
networks acknowledge that their nature increases users' risk of exposure to
malicious programs, then they must also recognize their increased duty to
protect and educate their users." See,
prepared statement, which Sen. Hatch read at the hearing.
Sen. Patrick Leahy (D-VT), the ranking
Democrat on the Committee, did not
attend. However, he submitted a
for the record.
The first panel of witness was made up of Sen. Feinstein,
Rep. Tom Davis (R-VA), and
Rep. Henry Waxman (D-CA).
Feinstein (at right) read a statement, and then departed to attend another
event. She too praised P2P technology. "This technology can be used to help
researchers share information or files seamlessly across borders, or to help
business people share documents -- in other words, there are legitimate uses for
"But", she continued, "there are also risks." She said that
are also facilitating a new era of easily obtainable pormographic material,
including child pormography."
She also cautioned about threats to government records. "Of most concern,
however, is the use of peer-to-peer file sharing by government employees." She
said that "a federal employee intending to simply download and share music
files, therefore, could easily make available every file on his computer,
without intending to do so or even realizing it after the fact."
And, she said, "For normal users, this lack of security presents the real
threat of identity theft."
Rep. Davis and Rep. Waxman are the Chairman and ranking Democrat on the
Government Reform Committee, which has already held hearings on this issue. Like
Senators Hatch and Feinstein, they praised the potential of P2P networks, but
cautioned about the associated risks.
Davis (at right) stated that P2P networks "have become an increasingly popular
mechanism for trafficking in pormography, including child pormography. In fact,
it seems as if many of these programs have become digital pormographic libraries
where all sorts of pormographic materials can be easily accessed for free." He
added that "Innocent searches for files using the names of popular cartoon
characters, singers, and actors produce thousands of graphic pormographic
images, including child pormography."
The second panel of witnesses included
Nathaniel Good (a graduate student at UC Berkeley), Randy Saaf (MediaDefender),
and Alan Morris (Sharman Networks).
Good presented the results of a survey of users of P2P networks that showed that
most users do not know the extent to which files on their hard drives are made
available to anyone else. He testified that, due to the nature of the KaZaA
software and interface, many users designate their C drive as the location of
files which they download, and unwittingly make all of their C drive files
available for search and copying.
He testified regarding a study of 12 KaZaA users. "Of the 12 users, only 2
correctly identified that KaZaA intallation had been set to share all files on
the hard drive. In addition, only 2 users correctly indicated that all types of
files could be shared over a P2P network. 9 of 12 users believed that only
multimedia files such as music, video and pictures could be shared."
Saaf used an overhead monitor to present a demonstration of how quickly and
easily he was able to use a laptop computer, and a connection at Kinko's, to
search for, find, and download Microsoft Money files on strangers' computers.
He also testified that he was able to locate over 2,000 government computers sharing
content on P2P networks. For example, there were 236 at the Naval Warfare
Systems Command, 155 at the Los Alamos National Laboratory, and many more at
other government agencies with sensitive information.
Notably, while the hearing examined "national security risks" of P2P
networks, no one from the Department of Defense, FBI, or other defense, national
security, intelligence, or law enforcement agency testified at the hearing.
|News Analysis: Hatch Hyperbolizes About
Destroying Computers on P2P Networks
6/17. Sen. Orrin Hatch (R-UT) stated
in off the cuff remarks at the end of a hearing on the security threats of
P2P networks, that if no other way can be found to protect copyrighted materials
from piracy on P2P networks, "destroying computers" may be appropriate. He added
that this would first require Congressional legislation.
Sen. Hatch (at right)
did not offer a definition of the term "destroying computers". Nor has he
introduced or cosponsored any legislation on this subject. However, after his
first mention of this, witnesses discussed this as though he meant self help
measures by copyright owners or their representatives, of an invasive nature,
such as viruses, that would be intended to disable in some way computers or
files on P2P
networks that are involved in copyright infringement. He did not correct them.
One witness, Randy Saaf of MediaDefender, said that no one wants to use
"invasive procedures". He added that "invasive procedures are not
being pursued" by any legitimate company.
The final time that Sen. Hatch referenced "destroying" computers, he made
these comments. "You know, I, there is no excuse for anybody violating copyright, copyright
laws. ... And if they get a copyright, that ought to be respected. If we can
find some ways to do this without destroying (inaudible word), I'd recommend we
do it. But if that is the only way, then I am all for destroying their
computers. (audience laughter) unless you have a few hundred thousand of those
-- I think people would grow up and realize -- but, we would have to pass
Tech Law Journal transcribed the above statement from its audio tape of the
hearing. Sen. Hatch softly mumbled. He did not read from a prepared text. And,
the audio system in the Senate Judiciary Committee hearing room is of low
quality. Hence, there could be errors in the above transcription.
Sen. Hatch has not introduced, or cosponsored, any bill that would authorize,
or limit liability for, the destruction of computers used to infringe
copyrights, or files on computers used to infringe copyrights. Nor has he previously
made a similar statement. Hence, in this sense, this was a major new policy statement by one of
the key players on intellectual property issues in the Congress.
The closest policy initiative to this is a bill that was introduced last July by
Rep. Howard Berman (D-CA).
(107th) provides that "Notwithstanding any State or Federal statute or other
law, ... a copyright owner shall not be liable in any criminal or civil action
for disabling, interfering with, blocking, diverting, or otherwise impairing the
unauthorized distribution, display, performance, or reproduction of his or her
copyrighted work on a publicly accessible peer-to-peer file trading network, if
such impairment does not, without authorization, alter, delete, or otherwise
impair the integrity of any computer file or data residing on the computer of a
This bill merely refers to disabling files, not "destroying computers". See also, TLJ
text of bill, and Rep. Berman's
section by section summary.
Rep. Howard Coble (R-NC), the
former Chairman of the Subcommittee on Courts, the Internet and Intellectual
Property, Rep. Lamar Smith
(R-TX), the current Chairman, Rep. Robert
Wexler (D-FL), and Rep. Ric Keller
(R-FL) cosponsored the bill. Rep. Berman is the ranking Democrat on the Subcommittee.
See also, stories titled "Rep. Berman Introduces Bill to Legalize Self Help
Technologies to Disable P2P Piracy" and "News Analysis: The Berman Bill" in
TLJ Daily E-Mail
Alert No. 478, July 26, 2003.
Sen. Hatch did not reference the HR 5211 (107th), or limitation
of liability, at the June 17 hearing.
While Sen. Hatch's statement may be interpreted as a significant new policy
statement, it may also be interpreted as an off the cuff exercise in hyperbole,
directed at a witness from Sharman Networks who had presented contradicted and
incredible testimony regarding the threats that P2P networks pose, in the form of
identity theft, theft of personal financial information, threats to the security
of sensitive government records, threats of children being exposed to pormography,
and threats of widespread copyright piracy.
Had Sen. Hatch intended to make a major policy statement regarding P2P
infringement, he would have done so more effectively had he ahead of time that the hearing would
cover copyright issues. (The notice of the hearing did not reference copyright.).
He might also also have made his statement at the outset of the hearing, rather
than at the tail end. He made his remarks at the end of an afternoon hearing,
of the reporters who were present at the outset had left the room to write their
stories in time to meet filing deadlines. He also might have put this item in
his prepared statement, so that persons not present at the hearing could obtain
Some witnesses had testified at the hearing about how the interface for KaZaA
makes it difficult
for many users to avoid making all of the files on their hard drives subject to
searches and copying. One witness gave a demonstration of the interface. Another
presented the results of a survey showing user confusion.
Then, Alan Morris, EVP of Sharman Networks, the owner and operator of the
KaZaA Media Desktop, asserted that it is now "very very hard" for users to
unintentionally share files.
Morris also testified that what is needed is "basic education on security risks
for all computer users".
Several witnesses described the volume of pormography available on P2P
networks, including child pormography, and testified that some of it is
disguised. Rep. Henry Waxman (D-CA)
testified that children searching for Britney Spears or Pokeman files could end
up getting illegal child pormography. Sen. Patrick Leahy submitted a
which he said that P2P networks "may allow sezual predators a way to lure their
victims into an instant messaging conversation".
Morris said that "we cannot control what is on the network". He advocated
"active and involved parenting" and the use of "filters". Morris also invoked
the notion of "democracy" of the internet.
Sen. Hatch pointed out that P2P networks enable the piracy of copyrighted
works. Morris said that KaZaA posts notices that say that users should not
Sen. Hatch asked Morris, "does Sharman share any responsibility" for what is
shared inadvertently or illegally?
"No", said Morris.
It was in the context of these exchanges that Sen. Hatch then made his
comments regarding "destroying computers".
|OECD Releases Cross Border Fraud Guidelines
6/17. The Federal Trade Commission (FTC),
consumer protection agencies of other nations, and the
Organisation for Economic
Cooperation and Development (OECD), released a
document [33 pages in PDF] titled "OECD Guidelines for Protecting Consumers
from Fraudulent and Deceptive Commercial Practices Across Borders".
FTC Commissioner Mozelle Thompson stated that "Cross-border fraud,
perpetrated through telemarketing, Web sites, and spam, harms consumers and
consumer confidence in the global marketplace ... The OECD guidelines announced
today reflect an international commitment by consumer protection law enforcement
agencies to work together to combat these schemes." See also,
These guidelines recommend that the consumer protection agencies of the
nations that are members of the OECD cooperate in preventing
fraudulent and deceptive commercial
practices against consumers. Many of the specific recommendations pertain to
These guidelines provide that "Member countries should provide
an appropriate mechanism to permit consumer protection enforcement agencies, in
conjunction with judicial or administrative authorities and subject to
appropriate safeguards, to seek to preserve such evidence, particularly that of
a transient nature, in particular investigations until it can be examined. Such
a mechanism should also be available in appropriate cases where consumer
protection enforcement agencies are assisting agencies in other countries."
Evidence of a transient nature would such things as stored
electronic communications held by internet service providers, that is, e-mail. This
might implicate the Electronic Communications Privacy Act (ECPA), and similar
statutes in other nations.
These guidelines also provide that "To
address the need to locate and identify those engaged in fraudulent and
deceptive commercial practices, Member countries and their consumer protection
enforcement agencies and other competent authorities should, in co-operation
with one another and with domain name registrars and other relevant
stakeholders, work together to develop options for reducing the incidence of
false header and routing information and inaccurate information about holders of
They also provide that "Member countries should work towards
enabling their consumer protection enforcement agencies to share the following
information with consumer protection enforcement agencies in other Member
countries in appropriate instances: ... Information about addresses, telephones,
Internet domain registrations, basic corporate data, and other information
permitting the quick location and identification of those engaged in fraudulent
and deceptive commercial practices."
Some copies of yesterday's edition of the TLJ Daily E-Mail
Alert were blocked by subscribers' e-mail filtering systems. This edition,
Alert No. 682,
is now available in the TLJ website.
TLJ received e-mail messages stating that this issue constituted "spam",
"offensive content" or "sezual discrimination". The offending item was
the article titled "Sen. Schumer Introduces Spam Bill".
|Wednesday, June 18
The House will meet at 10:00 AM legislative business. It will consider
several non tech related items. See,
Republican Whip Notice.
12:00 NOON - 2:00 PM. George Mason University will host a lunch and
titled "Protecting America's Critical Infrastructure". The topics
addressed will include cyber security. The speakers will include Asa
Hutchinson (Under Secretary of the Department of Homeland Security for Border
and Transportation Security), Rep. Chris
Cox (R-CA) (Chairman of the House Committee on Homeland Security),
Rep. Jane Harman (D-CA) (ranking
Democrat on the House Intelligence Committee), Rep. John Hager (assistant to
the Governor of Virginia for Commonwealth Preparedness), John Derrick (Pepco
Holdings), and Catherine Allen (CEO of the Technology Group for The Financial
Services Roundtable). See,
For more information, contact Kelly Keane at 410 321-0137. Location:
Club, 529 14th Street, NW.
1:30 PM. Secretary of Homeland Security Tom Ridge will address the National
Federation of Independent Business. Location: St. Regis Hotel, 923 16th Street, NW.
2:30 PM. The Senate Judiciary
Committee's Antitrust, Competition Policy and Consumer Rights Subcommittee will
hold a hearing on the proposed NewsCorp DirecTV transaction, focusing on global
distribution. The witnesses will include Rupert Murdoch (Ch/CEO of News
Corporation), Eddy Hartenstein (Ch/CEO DIRECTV), Gene Kimmelman (Consumers
Union), Robert Miron (Ch/CEO of Advance Newhouse Communications), and Scott
Cleland (Precursor Group). See,
notice. Press contact:
Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.
Scheduled completion of voting by the Media
Security and Reliability Council's (MSRC) Advisory Committe on the MSRC's
Best Practices Recommendations [5 pages in MS Word] to ensure effective
delivery of emergency information to the public during terrorist attacks,
natural disasters, and other emergencies. The MSRC provides recommendations to the
Federal Communications Commission (FCC) and
industry. See, story titled "Media Security and Reliability Council
Considers Recommendations" in TLJ Daily E-Mail Alert No. 669, May 29, 2003.
The Federal Trade Commission (FTC) will host
a workshop titled "Information Flows: The Costs and Benefits to Consumers and
Businesses of the Collection and Use of Consumer Information". It will
address the issue of the costs and benefits to consumers and businesses of
consumer information collection and use. It will explore how consumer
information is collected and used by businesses to facilitate commercial
transactions, as well as how it can be used to fight fraud. See,
agenda. The FTC states that "preregistration will be required for the
press". Location: FTC Conference Center, 601 New Jersey Ave., NW.
|Thursday, June 19
The House will meet at 10:00 AM legislative business. It will consider
several non tech related items. See,
Republican Whip Notice.
9:00 AM - 5:00 PM. The Department of
Defense's (DOD) Technology and Privacy Advisory Committee (TAPAC) will
hold a public meeting. The TAPAC is a Total
Information Awareness Project oversight board. The notice states that "The
purpose of the meeting is for presentations of interest and discussion
concerning the legal and policy considerations implicated by the application
of advanced information technologies to counter-terrorism and
counter-intelligence missions." For more information, contact Lisa Davis,
TAPAC Executive Driector, at 703 695-0903. See,
notice in the Federal Register, June 11, 2003, Vol. 68, No. 112, at Page
34909. Location: Hyatt Arlington,
1325 Wilson Blvd., Arlington, VA.
9:30 AM. The Senate Judiciary
Committee will hold an executive business meeting. The agenda includes
consideration of several non technology related bills, and consideration of
the nomination of William Pryor to be a Judge
of the U.S. Court of Appeals for the
Eleventh Circuit. See,
Press contact: Margarita Tapia at 202 224-5225. Location: Room 216, Hart
9:30 AM. The Senate
will meet in executive session to mark 14 bills and consider several pending
nominations. See, agenda, at right. Location: Room 253, Russell Building.
10:00 PM. The Senate Banking
Committee will hold a hearing titled "The Growing Problem of Identity
Theft and Its Relationship to the Fair Credit Reporting Act". See,
Location: Room 538, Dirksen Building.
12:15 - 2:00 PM. The Forum on
Technology and Innovation will host a panel discussion on intellectual
property protections and their impact on innovation. The speakers will be
Assistant Secretary of Commerce for Technology Policy, Gigi Sohn,
President of Public Knowledge,
and James DeLong, of the Progress and Freedom
Register by Tuesday, June 17 at 5:00 PM. A
box lunch will be served. Location: Room 106, Dirksen Building.
Deadline to submit comments to the
Copyright Office (CO) in response to its
notice in the Federal Register "requesting comment on proposed regulations
that set rates and terms for the use of sound recordings in eligible
nonsubscription transmissions and new subscription services, other than
transmissions made by certain noncommercial entities, together with related
ephemeral recordings. The rates and terms are for the 2003 and 2004 statutory
licensing period, except in the case of new subscription services in which
case the license period runs from 1998 through 2004." This notice also states
that "The agreement published herein supersedes the agreement published in the
Federal Register on May 1, 2003, and parties should only comment on the
proposed rates and terms set forth in this notice." See, Federal Register, May
20, 2003, Vol. 68, No. 97, at Pages 27506 - 27513. See also,
superseded notice in the Federal Register, May 1, 2003, Vol. 68, No. 84,
at Pages 23241 - 23249. For more information, contact David Carson (CO General
Counsel) or Tanya Sandros (Senior Attorney, CARP) at 202 707-8380.
|Monday, June 23
|The Supreme Court will return from a one week recess.
|Tuesday, June 24
8:45 AM - 2:35 PM. The American
Antitrust Institute will host a Fourth Annual Conference
titled "Antitrust and Access". See, agenda at right. The price to
attend is $400. Location: National Press Club.
10:00 AM. The Senate Judiciary
Committee will hold a hearing on several pending judicial and other
nominations, including Allyson Duncan (to be a Judge of the U.S. Court of
Appeals for the 4th Circuit), Samuel Der-Yeghiayan (Northern District of
Illinois), Louise Flanagan (Eastern District of North Carolina), Lonny Suko
(Eastern District of Washington), Earl Yeakel (Western District of Texas), and
Christopher Wray (Assistant Attorney General). Press contact: Margarita Tapia
at 202 224-5225. Location: Room 226, Dirksen Building.
12:15 PM. The Federal Communications Bar
Association's (FCBA) Cable Practice Committee will host a brown bag lunch.
The speaker will be Kyle Dixon, Deputy Bureau Chief of the Federal
Communications Commission's (FCC) Media
Bureau, and Special Counsel to the Chairman for Broadband. RSVP to Wendy
Parish at email@example.com. Location:
National Cable & Telecommunications Association
(NCTA), 1724 Massachusetts Ave., NW, 2nd Floor Conference Room.
2:30 PM. The Senate Judiciary
Committee's Antitrust, Competition Policy and Consumer Rights Subcommittee
will hold a hearings to examine how to preserve and protect media
competition in the marketplace. Press contact: Margarita Tapia at 202
224-5225. Location: Room 226, Dirksen Building.
2:30 PM. The Senate Foreign Relations Committee's European Affairs
Subcommittee will hold a hearing to examine "U.S. relations with
respect to a changing Europe, focusing on differing views on technology
issues". Location: Room 419, Dirksen Building.
The 21st Century Intellectual Property Coalition will meet. For information,
contact Dana Colarulli at firstname.lastname@example.org.
|BIS Amends EAR Regarding Encryption Products
6/17. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS),
which is also still known as the Bureau of Export Administration (BXA),
notice in the Federal Register regarding adoption of amendments to the
Export Administration Regulations (EAR). The notice states that these amendments
take effect on June 17, 2003, and "clarify when encryption commodities and
software may be given de minimis treatment, when short-range wireless devices
incorporating encryption may be given mass market or retail treatment, and to
guidance on when exporters are required to submit encryption review requests."
The notice also states that this set of amendments "also expands the
authorizations according to which travelers departing the United States may take
encryption for their personal use, and clarifies that specially designed medical
equipment and software are not controlled as encryption or ``information
security´´ items under the EAR. Finally this rule implements changes to the
Wassenaar Arrangement List of dual-use items (agreed upon in the September 2002
meeting and finalized in December 2002) that eliminate from Export Control
Classification Number (ECCN) 5A002 certain types of ``Personalized smart cards´´
and equipment specially designed and limited to controlling access to copyright
protected data." (Parentheses in original.)
For more information, contact Norman LaCroix at 202 482-4439. See, Federal
Register, June 17, 2003, Vol. 68, No. 116, at Pages 35783 - 35787.
6/17. The Internal Revenue Service (IRS)
notice in the Federal Register stating that it will hold a hearing on
proposed regulations relating to the definition of toll telephone service for
purposes of the communications excise tax. The hearing will be held at 10:00 AM
on September 10, 2003 in room 4718, Internal Revenue Building, 1111 Constitution
Avenue, NW. The deadline to submit outlines of topics to be discussed is July
15, 2003. See, Federal Register, June 17, 2003, Vol. 68, No. 116, at Pages 35828
6/16. Rep. Bob Filner (D-CA) spoke in
the House regarding the
Federal Communications Commission's (FCC)
triennial review order, which the FCC announced in February, but has yet to
release. Rep. Filner said that "I think that the initial stands for ``Forget
Consensus in Congress.´´" He said that "the FCC missed the opportunity to bring
clarity to the rules that promote facilities-based competition and would spur
investment and create jobs. Instead, it has punted the decision to the States,
all 50 of them. This move will force more State proceedings, more regulatory
uncertainly, and without a doubt, more delay. See, Congressional Record,
June 16, 2003, at page H5370.
6/17. Microsoft announced that it has filed 15 lawsuits in the U.S. and U.K.
pertaining to spam. Microsoft stated in a
release that it "filed the legal actions under Washington state's strong
antispam law, which provides Internet service providers (ISPs) with the tools to
take action against spammers to protect consumers". See,
Section 19.190.010, et seq. Microsoft also stated that "two additional civil
lawsuits were filed in the United Kingdom, alleging the unlawful harvesting of
e-mail account names and other illegal spamming practices under the U.K. Misuse
of Computers Act of 1990."
6/17. The Consumer Federation of
America (CFA) wrote a letter to member of the
Senate Commerce Committee urging
them to "to rollback the Federal Communications
Commission's (FCC) radical deregulation of the nation's media. The
Commission's order is a clear ends-oriented decision directed at helping the
largest media companies at the expense of the public and democracy. This
decision will diminish the diversity of voices heard over the public airwaves
and the coverage of local voices and local issues as media giants buy up local
outlets and nationalize the stories they broadcast." The Committee is scheduled
to mark up S 1046,
the "Preservation of Localism, Program Diversity, and Competition in
Television Broadcast Service Act of 2003" on June 19. It was introduced on May 13,
2003, by Sen. Ted Stevens (R-AK) (at
right), Sen. Ernest Hollings (D-SC) and
others. It would establish by statute a national broadcast television multiple
ownership cap of 35%. The FCC has long had a rule providing for a 35% cap. However, on June 2,
2003, the FCC announced that it would raise this cap to 45%. See, FCC
release [10 pages in PDF].
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