Tech Law Journal Daily E-Mail Alert
August 15, 2003, 9:00 AM ET, Alert No. 719.
Home Page | Calendar | Subscribe | Back Issues | Reference
Poindexter Writes About Uses of Information Technology to Fight Terrorism

8/12. John Poindexter, who recently announced plans to resign as head of the Department of Defense's (DOD) Defense Advanced Research Projects Agency's (DARPA) Information Awareness Office (IAO), wrote a public letter [5 pages in PDF] addressed to Anthony Tether, Director of the DARPA, in which he explained and advocated the activities of his office.

He wrote that "Some of the research and development programs that we have been working on have become controversial and I want to take this opportunity in an open letter to you to put these controversies in perspective." He added that "there is still a great deal of misunderstanding".

One point that he made is that "DARPA is a tool builder and not a tool user. Technology solutions are developed and shown to work. It is then up to user agencies and Congress through the normal authorization and appropriations process to decide whether the technology solutions will be implemented and under what conditions." He concluded that "I regret we have not been able to make our case clear and reassure the public that we do not intend to spy on them."

He elaborated that "More than half of the foreign intelligence activities are in the Department of Defense and report to both the Secretary of Defense for resources and Director of Central Intelligence for tasking. The DOD clearly has a significant foreign intelligence role and it is appropriate that DARPA be involved in looking for technology solutions. DARPA is in a position to take a fresh look at the problem with no vested bureaucratic interests in coming up with an integrated solution. The technology and tools to be developed for the foreign part would be just as applicable to the domestic part; however if and when it comes to implementation the foreign intelligence activities of the DOD, CIA and others would apply the tools against foreign intelligence data and domestic intelligence activities, such as the FBI, would apply them against domestic intelligence in accordance with the laws and polices. In no case would DARPA be applying the tools. There are extensive Congressional oversight provisions for the foreign and domestic intelligence activities to detect any potential abuses."

He went on to discuss the IAO's project named Terrorism Information Awareness (TIA), which was previously named Total Information Awareness, and its project named Futures Markets Applied to Prediction (FutureMap), which would have established a futures market in which traders could trade in contracts to predict the likelihood of various possible terrorist attacks. He recently abandoned the later project. The fate of the former project lies in the defense appropriations process; the Congress has yet to pass is final version of the 2004 bill.

See, HR 2658. The House passed its version of the bill on July 8. The Senate then passed its version on July 17, with numerous amendments. In particular, the Senate version includes a Section 8120 that provides that "Notwithstanding any other provision of law, no funds appropriated or otherwise made available to the Department of Defense, whether to an element of the Defense Advanced Research Projects Agency or any other element, or to any other department, agency, or element of the Federal Government, may be obligated or expended on research and development on the Terrorism Information Awareness program." It further provides that the federal government may not deploy or implement the TIA program until the government notifies the Congress of its development, and the government has received authorization from the Congress.

He first reviewed the context of each project. He wrote that "we have had basically two research paths -- each in the context of a premise. The first premise is that the U.S. government has all of the data it needs to find information that would allow us to detect foreign terrorists and their plans and thus enable the prevention of attacks against U.S. interests. The problems here are a matter of sharing this information amongst the various agencies involved and providing better ways of finding information more rapidly, tools to aid in conducting faster and better analyses and decision support tools to enable better decisions. The massive amounts of data that are presently available under existing laws and policies far exceed the capacity of the humans in the system to analyze these data without tools to aid them."

He elaborated that "On this first research path we created an experimental network called TIA and partnered with nine foreign intelligence, counter-intelligence and military commands for testing experimental tools using foreign intelligence data that is currently available to them."

He then discussed the second line of research, and the IAO's FutureMap project, in theoretical terms. He wrote that "If we are wrong on the first premise and the U.S. government does not have all of the data it needs to find the terrorists and prevent their attacks, we felt it prudent to explore a second research path. This is the controversial one. In terms of the recent flap over FutureMap -- did we want to bet the safety of thousands if not millions of Americans that our first premise was correct? Since we didn’t want to make that bet, we devoted a relatively small portion of the funds that had been made available to us to this second research path. There is another community of people who believe that all the data necessary to effectively counter the terrorism threat is not entirely in government databases. Instead, there may be more information in the greater information space that might prove valuable for the government to exploit in its counterterrorism operations, but currently this data is not used due to legal or policy restrictions. This research path is testing the hypothesis that when terrorist organizations engage in adverse actions against the United States, they make transactions in support of their plans and activities, and those transactions leave a signature in the information space. Those transactions will likely span government, private, and public databases."

He added that "The challenges for the supporting TIA programs in this second research path are twofold: First, is the signature detectable when embedded within a world of information noise? Second, in what part of the information space does that signature manifest itself? Ultimately, our goal within this thread is to understand the level of improvement possible in our counterterrorism capabilities if the government were able to access a greater portion of the information space, while at the same time considering the impact -- if any -- on information policies like the right to privacy, and then mitigate this impact with privacy protection technology. If our research does show an improvement in the government’s ability to predict and preempt terrorism, then it would be up to the policymakers, Congress, and the public at large -- not DARPA -- to decide whether to change law and policy to permit access to such data."

He concluded that "We have made significant progress with the TIA experimental network under the first premise that the government today has access to all the information it needs. The user agencies and commands are finding the tools and concepts valuable. There is a long way to go yet, but progress has been made. The work under the second premise is very much still in the research phase and obviously still controversial. I regret we have not been able to make our case clear and reassure the public that we do not intend to spy on them."

Finally, he commented on the ongoing appropriations process. He wrote that "The Senate version of the Defense Appropriations Bill going into conference with the House on September 2 eliminates funding for most of the counter-terrorism programs of my office -- both the non-controversial as well as the controversial. I hope a compromise can be reached that will permit a continuation of at least the non-controversial parts."

The letter also states that his resignation is effective August 29, 2003.

People and Appointments

8/14. Donald Nicolaisen was named Chief Accountant of the Securities and Exchange Commission (SEC). See, SEC release.

More News

8/4. The U.S. Court of Appeals (5thCir) revised its July 16 opinion [28 pages in PDF] in Bell Atlantic v. AT&T. This opinion pertains to an interlocutory appeal by two plaintiffs, Rochelle Communications and Adroit Medical Systems, of the District Court's denial of class certification. The underlying case alleges that AT&T violated federal antitrust laws by refusing to permit the passage of caller identification data across its long distance telephone network. The Court of Appeals affirmed the District Court's denial of class certification, pursuant to Rule 23(b), because Rochelle and Adroit fail to satisfy the predominance requirement. The Court has not yet decided whether AT&T's conduct amounted to an attempt to monopolize the market for caller ID service. This is Bell Atlantic Corporation, et al. v. AT&T, et al., No. 02-40656, an appeal from the U.S. District Court for the Eastern District of Texas.

8/12. The U.S. Court of Appeals (DCCir) issued its opinion [19 pages in PDF] in Information Handling Services v. Defense Automated Printing Services. Information Handling Services (IHS) is a commercial publisher of government and industrial standards and specifications. Defense Automated Printing Services (DAPS) is the component of the Department of Defense (DOD) that is responsible for managing, maintaining, and distributing documents relating to unclassified military specifications and standards. IHS filed a complaint in the U.S. District Court (DC) in 1998 against DAPS alleging violation of the Administrative Procedure Act and the DOD's procurement regulations by developing and maintaining an internet accessible database for the dissemination of government documents without first determining whether the private sector could do so at lower cost. The District Court dismissed for lack of standing, and in the alternative, granted summary judgment. The Appeals Court reversed and remanded. This is Information Handling Services, Inc. v. Defense Automated Printing Services, et al., No. 02-5192, an appeal from the U.S. District Court for the District of Columbia, D.C. No. 98cv02796.

8/11. Thomas S. Hughes plead guilty in U.S. District Court (CDCal) to securities fraud. He is the former CEO of eConnect. The U.S. Attorneys Office (USAO) stated in a release that he orchestrated "a scheme to distribute false information designed to boost the stock price of the publicly traded company".

FCC Releases Report and Order Re Hearing Aid Compatible Digital Phones

8/14. The Federal Communications Commission (FCC) released its Report and Order [57 pages in PDF] in its proceeding titled "In the Matter of Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones". This is WT Docket No. 01-309. The FCC adopted this Report and Order at its July 10, 2003, but only issued a press release at that time.

The Report and Order states that "we modify the exemption for wireless phones under the Hearing Aid Compatibility Act of 1988 (HAC Act) to require that digital wireless phones be capable of being effectively used with hearing aids. We find that modifying the exemption in the manner described below will extend the benefits of wireless telecommunications to individuals with hearing disabilities -- including emergency, business, and social communications ..."

It continues that "we find that digital wireless phone manufacturers and service providers should be required to take steps to reduce the amount of interference emitted from digital wireless phones and to provide the internal capability for telecoil coupling."

FCC Commissioner Michael Copps wrote in a statement [PDF] that "With this action our Commission adds to a list of actions the past Commission took to promote accessibility. The previous Commission wrote new rules to ensure that communications products and services are accessible to those with disabilities, as Congress directed, in Section 255; overhauled and updated our Telecommunications Relay Services (TRS) rules to provide for faster, more effective relay services; established 711 for relay services so that consumers will no longer need to remember different TRS numbers and TRS users will be able to put one number on their business cards, thereby making it easier for people to call them; and took action on captioning to ensure that everyone has access to televised information, including, most importantly, warnings about emergency situations."

Cyber Security Division Issues Advisory Re Blaster Worm

8/14. The Department of Homeland Security's (DHS) Information Analysis and Infrastructure Protection Directorate's (IAIP) National Cyber Security Division (NCSD) issued an advisory regarding the potential for internet disruptions beginning on Saturday, August 16, 2003.

The advisory states that "An Internet worm dubbed ``msblast´´, ``lovesan´´, or ``blaster´´ began spreading on August 11th that takes advantage of a recently announced vulnerability in computers running some versions of the Microsoft Windows operating system. ... NCSD would like to highlight that this worm contains additional code which may cause infected computers to attempt repetitive connections to a popular Microsoft web site, beginning just after midnight on the morning of August 16th."

It continues that "Because of the significant percentage of infected computers using high speed connections to the Internet (DSL or cable for example) the conditions exist for a phenomena known as a distributed denial of service (DDoS) attack against the Microsoft web site beginning on August 16th. ... Owners of computers infected by the worm may experience a general slowness of their computer along with difficulty in connecting to Internet sites or local network resources. Systems that are still infected on August 16th may stop spreading the worm and may begin flooding the Microsoft Update site with repeated connection requests. Other customers who attempt to use the site to update their Microsoft Windows operating systems on or after August 16th might experience slowness in response or inability to connect to the update site."

Defendant Pleads Guilty to Aiding and Abetting the Publication of a Conference Call

8/12. Gary Russell Thomson plead guilty in U.S. District Court (EDVa) to one misdemeanor charge of aiding and abetting the unauthorized publication of a wire communication. The District Court sentenced him to two years of supervised probation and a $2000 fine. See, release [PDF] of the U.S. Attorneys Office (EDVa) and substantially identical release of the Department of Justice's (DOJ) Computer Crimes and Intellectual Property Section (CCIPS).

Edmund Matricardi, a former Executive Director of the Republican Party of Virginia (RPV), obtained the call in number and access code for a Democratic Party conference call, used his phone at the RPV to listen in without disclosing his presence, and then disclosed the contents of the conference calls to others. The Democratic Party sent out an e-mail and a fax notice of the conference calls, but invited only members of the Joint Democratic Caucus.

Gary Thomson was the Chairman of the RPV. Matricardi was his subordinate. The USAO stated in its release that Thomson "aided and abetted" Matricardi in disclosing the contents of the call to a third party.

See also, story titled "Grand Jury Returns Wire Act Indictment for Listening in on Conference Calls" in TLJ Daily E-Mail Alert No. 591, January 27, 2003.

Friday, August 15

The House is in recess until September 3. Senate is in recess until September 2. The Supreme Court is in recess.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to a Petition for Rulemaking on compliance by carriers with relevant statutory provisions on disclosure of customer information in 911 emergencies. The petition was submitted by the National Emergency Number Association (NENA), the Association of Public Safety Communications Officials International (APCO), and the National Association of State Nine One One Administrators (NASNA). See, FCC notice [3 pages in PDF]. For more information, contact Barbara Reideler or Jared Carlson at 202 418-1310.

Monday, August 18

10:15 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a panel discussion titled "Trade in Services: Is More Liberalization Possible in the Doha Round?". The speakers will be Stephen Canner (U.S. Council for International Business), James Mendenhall (Office of the U.S. Trade Representative), and Robert Vastine (U.S. Coalition of Services Industries). See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) pertaining to the possibility of incorporating receiver performance specifications into the FCC's spectrum policy. This NOI follows the recommendations of the FCC's Spectrum Policy Task Force (SPTF) report [PDF] of November 15, 2002. See, story titled "FCC Announces NOI Re Receiver Performance Standards" in TLJ Daily E-Mail Alert No. 624, March 17, 2003. See also, notice in the Federal Register, May 5, 2003, Vol. 68, No. 86, at Pages 23677 - 23686. This is ET Docket No. 03-65, FCC 03-54. For more information, contact Hugh Van Tuyl at the FCC's Office of Engineering and Technology (OET) at 202 418-7506 or

Tuesday, August 19

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking, released on April 30, 2003, regarding changes to its rules implementing the FCCs policy to carry forward unused funds from the schools and libraries universal support mechanism (aka e-rate subsidies) in subsequent funding years. See, notice in the Federal Register, June 20, 2003, Vol. 68, No. 119, at Pages 36961 - 36967.

Wednesday, August 20

12:00 NOON. Gordon England, Deputy Secretary of the Department of Homeland Security (DHS), will give a speech titled "Leading the Department of Homeland Security: Progress and Challenges of Transition during the War on Terrorism". See, notice. Location: Lehrman Auditorium: Heritage Foundation, 214 Massachusetts Ave NE.

Friday, August 22

Deadline to submit comments to the Department of Homeland Security's (DHS) Bureau of Customs and Border Protection (CBP) regarding its proposed rule to require that CBP must receive, by electronic data interchange system, information pertaining to cargo before the cargo is either brought into or sent from the U.S. by any mode of commercial transportation. See, notice in the Federal Register, July 23, 2003, Vol. 68, No. 141, at Pages 43573 - 43606.

Monday, August 25

10:00 AM - 4:00 PM. The Commerce Department's National Medal of Technology Nomination Evaluation Committee will hold a closed meeting to discuss the relative merits of persons and companies nominated for the medal. See, notice in the Federal Register, July 24, 2003, Vol. 68, No. 142, at Page 43716. Location: Room 4813, U.S. Department of Commerce, 1401 Constitution Ave., NW.

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.