|House Passes Spam Bill
11/22. The House amended and passed
S 877, the
"Controlling the Assault of Non-Solicited Pornography and Marketing Act of
2003", also known as the "CAN-SPAM Act of 2003", by a vote of 392-5,
early on Saturday morning, November 22. See,
Roll Call No.
The Senate passed its version of the bill on October 22, 2003 by a vote of
97-0. The bill, as amended by the House, must be passed by the Senate, and signed by the President,
to become law. However, the language of the bill just passed by the House was
negotiated by both Representatives and Senators who are involved in promoting
anti-spam legislation. Also, the Department of
Justice (DOJ) announced the administration's support for this version of the
Rep. Zoe Lofgren (D-CA) and
Rep. Mike Honda (D-CA), who both
represent Silicon Valley districts, were two of the five to votes against the
The bill, as amended, provides for both criminal and civil penalties, with
enforcement by the Federal Trade Commission
(FTC), state attorneys general, internet service providers, and the
Department of Justice (DOJ).
The bill requires senders of commercial e-mail to give their recipients an
opportunity to opt out of receiving future messages.
The bill would amend the criminal code to prohibit, among other things,
sending multiple commercial e-mails that falsify the identity of the sender, the
return address or routing information of an e-mail, or the subject matter of
The bill also contains language preempting related state statutes.
The bill also gives the FTC authority to establish a do not spam registry similar
to the do not call registry. However, FTC Chairman
Timothy Muris has
already stated that he believes, given the lawless nature of spammers, that a do
not e-mail list would not work. See, August 19, 2003
speech and story
titled "Muris States Spam Debate on Capitol Hill is Veering Off On the Wrong
Track" in TLJ Daily
E-Mail Alert No. 722, August 20, 2003.
The DOJ issued a
House and Senate negotiators reached an agreement. "The
Departments of Justice and Commerce are pleased that Congress is poised to pass
long-awaited anti-spam legislation. The bill proposed for final passage will be
a useful step in helping consumers and businesses to combat unsolicited
commercial e-mail, better known as 'spam.' The Administration believes that
problems with spam cannot be solved by federal legislation alone; the
development and adoption of new technologies will also be necessary. The bill
will help address some of the problems associated with the rapid growth and
abuse of spam by establishing a framework of technological, administrative,
civil, and criminal tools, and by providing consumers with options to reduce the
volume of unwanted e-mail."
Internet service providers praised the bill. America Online issued a
release that states that "This is a critical new law that will help us turn
the tide against spam in the online medium for good. This bill provides
meaningful tools to law enforcement and Internet Service Providers to hold
spammers accountable for their actions. We're very pleased that the tough
enforcement provisions in this new Federal legislation will allow enforcement
efforts to pursue the most egregious spammers who use the worst kind of spamming
techniques to send the most offensive and unwanted email to our members. The
legislation targets the state-of-the-art computer fraud techniques used by
spammers, and provides for strong criminal and financial penalties."
Microsoft Chairman Bill Gates stated in a
release that "passage of the anti-spam bill is a milestone in the battle
against spam, and a major step toward preserving e-mail as a powerful
communication tool." He added that "the spammers who deluge computer users with
billions of unwanted e-mails will face significant penalties for their illegal
actions. Microsoft particularly supports the strong enforcement provisions, and
the ban on falsifying the origin of e-mail solicitations and illegally obtaining
lists of e-mail addresses, both of which will help Internet service providers
See also, stories titled "Senators Burns and Wyden Re-Introduce Can Spam Bill" in
TLJ Daily E-Mail
Alert No. 643, April 14, 2003; "Senate Commerce Committee Passes Spam Bill"
in TLJ Daily E-Mail
Alert No. 685, June 20, 2003; "House Judiciary Committee Holds Hearing on
Spam Bill", "House Commerce Committee Holds Hearing on Spam Bills" and "Spam
Bills Pending in the House and Senate" in
TLJ Daily E-Mail
Alert No. 696, July 11, 2003; and
Passes Burns Wyden Anti-Spam Bill" in TLJ Daily E-Mail Alert No.
765, October 24, 2003.
|Six Senators Ask P2P Companies To Obey Laws
11/21. Sen. Lindsey Graham (R-SC),
Sen. Dianne Feinstein (D-CA),
Sen. Gordon Smith (R-OR),
Sen. Dick Durbin (D-IL),
Sen. John Cornyn (R-TX), and
Sen. Barbara Boxer (D-CA) sent a letter
to executives of peer to peer (P2P) file copying networks, Grokster, Bearshare,
Blubster, eDonkey2000, LimeWire, and Streamcast Networks, stating that
"Purveyors of peer-to-peer technology have legal and moral obligation to conform
to copyright laws, and end the pormographic trade over these networks."
Senators Graham, Feinstein, Durbin and Cornyn
are members of the Senate Judiciary Committee,
which has jurisdiction over intellectual property bills.
The letter states that "recent studies by the General
Accounting Office and Palisades Systems,
a respected technology company, clearly demonstrate that your software currently
is being used almost exclusively as a means of illegally trading copyrighted
material and distributing pormography, including child pormography. For example, the
Palisades report concluded that 97 percent of all the material available on
file-sharing services was either copyrighted or pormography; 99 percent of audio
files requested on file-sharing services were copyrighted; and 42 percent of all
requests on file-sharing services were for adult or child pormography."
The letter asks that the P2P companies provide clear notice to users of the
risks of using P2P software, incorporate effective copyright and pormography
filters, and change the default setting that provides for sharing of files.
The Senate Judiciary Committee held a hearing on this topic on September 9,
2003. Linda Koontz of the GAO wrote in her
prepared testimony that "Child pormography is easily found and downloaded
from peer-to-peer networks." She added that "Juvenile users of peer-to-peer
networks are at significant risk of inadvertent exposure to pormography,
including child pormography. Searches on innocuous keywords likely to be used by
juveniles (such as names of cartoon characters or celebrities) produced a high
proportion of pormographic images ..." See also, story titled "Senate Judiciary
Committee Hears Testimony on Porm on P2P Networks" in
TLJ Daily E-Mail
Alert No. 736, September 10, 2003.
|House Tax Bill Amends Special 301 Provisions
11/20. The House passed
the "Tax Relief Extension Act of 2003" by voice vote. This is a large and wide
ranging bill. However, Section 3751 of this bill would amend Section 304 of the
Trade Act of 1974. This pertains to protection of intellectual property rights.
Section 301, et seq., is a means by which the United States asserts its
international trade rights, including its rights under
World Trade Organization (WTO) agreements. In
particular, under the "Special 301" provisions of the Trade Act of 1974, the
U.S. Trade Representative (USTR) identifies trading partners that deny adequate and
effective protection of intellectual property or deny fair and equitable market
access to U.S. artists and industries that rely upon intellectual property
protection. See, for example, the USTR's
2003 Special 301
The Special 301 provisions are codified at
19 U.S.C. § 2411
The bill contains two changes to Section 304 of the Trade Act of 1974 (19 U.S.C.
First, the bill provides that "Section 304(a)(2)(A) of the Trade Act of
1974 (19 U.S.C. 2414(a)(2)(A)) is amended by inserting after 'agreement,' the
following: 'except an investigation initiated pursuant to section 302(b)(2)(A)
involving rights under the Agreement on Trade-Related Aspects of Intellectual
Property Rights (referred to in section 101(d)(15) of the Uruguay Round
Agreements Act) or the GATT 1994 (as defined in section 2(1)(B) of that Act)
relating to products subject to intellectual property protection,'."
Second, the bill provides that Section 304(a)(3)(A) of the Trade Act of 1974
is amended to read as follows: "If an investigation is initiated under this
chapter by reason of section 302(b)(2) and--
(i) the Trade Representative considers that rights under the Agreement
on Trade-Related Aspects of Intellectual Property Rights or the GATT 1994
relating to products subject to intellectual property protection are
involved, the Trade Representative shall make the determination required
under paragraph (1) not later than 30 days after the date on which the
dispute settlement procedure is concluded; or
(ii) the Trade Representative does not consider that a trade
agreement, including the Agreement on Trade-Related Aspects of Intellectual
Property Rights, is involved or does not make a determination described in
subparagraph (B) with respect to such investigation, the Trade Representative
shall make the determinations required under paragraph (1) with respect to such
investigation not later than the date that is 6 months after the date on which
such investigation is initiated."
|House and Senate Pass Conference Report on
Credit Reporting Bill
11/21. The House passed the conference report on
the "National Consumer Credit Reporting System Improvement Act of 2003",
late on Friday night, November 21, by a vote of 379-49. See,
Call No. 667. The Senate agreed to the conference report on Saturday,
November 22. See,
Report 108-396. President Bush will sign the bill.
This is a large bill that includes provisions pertaining to prevention of
identity theft and restoration of identity theft victim credit history, use of and
consumer access to credit information, accuracy of consumer report information, use
and sharing of medical information in the financial system, and financial literacy.
Secretary of the Treasury
John Snow issued a
"I congratulate Chairman Oxley and Chairman Shelby, subcommittee chairman Bachus,
Ranking Members Frank and Sarbanes, and the House and Senate conferees on
completing their excellent work to strengthen the provisions of the Fair Credit
Reporting Act. This legislation embodies the Administration recommendations I
outlined on June 30 to fight identity theft and to make our credit reporting
system, which is the envy of the world, even more effective in extending credit
and financial services to more and more people. Because of the work of the
conferees, American consumers and law enforcers will have important new tools to
fight identity theft, and consumer credit information will be more accurate and
will be handled more safely than ever before. We will all benefit from this
|Appeals Court Sets Expedited Briefing
Schedule in Number Portability Case
11/24. The Federal Communications Commission's
(FCC) number portability rules go into effect on Monday, November 24.
Meanwhile, the Court of Appeals has set an expedited briefing schedule on wireline carriers' motion for stay of the FCC's rules.
The United States Telecom Association
(USTA) and CenturyTel filed with the FCC a
Petition for Stay Pending Judicial Review [17 pages in PDF] on November 18,
2003. The FCC issued its
Order [MS Word] denying this petition on November 20.
The USTA and CenturyTel filed an emergency motion for stay with the
U.S. Court of Appeals (DCCir) on
November 21. See, USTA
The Court of Appeals set an expedited briefing schedule on the motion
for stay. The FCC's response is due by 4:00 PM on Wednesday, November 26. The
USTA's and CenturyTel's reply is due by 4:00 PM on Tuesday, December 2, 2003.
The USTA and CenturyTel seek a stay of the FCC's November 10
Memorandum Opinion and Order and Further Notice of Proposed Rulemaking [35
pages in PDF] regarding number portability. The November 10 order requires that
wireline carriers must port numbers to wireless carriers in certain
circumstances. The November 10 order is FCC 03-284 in CC Docket No. 95-116. See,
story titled "FCC Releases LNP Order That Addresses Wireline to Wireless"
in TLJ Daily E-Mail Alert No. 776, November 11, 2003. See also, story titled
"Powell Addresses Number Portability" in TLJ Daily E-Mail Alert No. 784,
November 20, 2003.
|The TLJ Daily E-Mail Alert will not be published on Thursday,
|Washington Tech Calendar
New items are highlighted in red.
|Monday, November 24
The House will not meet.
The Senate will meet at 9:00 AM to resume
HR 1 the
Medicare Prescription Drug Bill.
The Federal Communications Commission's
(FCC) number portability rules are scheduled to go into effect.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in National Association
of State Utility Consumer Advocates v. FCC, No. 02-1261. Judges Ginsburg,
Edwards and Rogers will preside. Location: 333 Constitution Ave. NW.
10:00 AM. The Senate
Judiciary Committee may hold an executive business meeting. The agenda includes
numerous non technology related bills, and several judicial and Department of Justice
nominations. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle
(Leahy) at 202 224-4242. Location: Room 226, Dirsksen Building.
2:00 -3:30 PM. The Center for Democracy and
Technology (CDT), the Council for Excellence in Government (CEG) and the
American Council for Technology (ACT) will host a public meeting regarding
agency drafting of reports on privacy activities under the E-Government Act.
The participants will be Eva Kleederman (Office of Management and Budget),
Dan Costello (OMB), Frank Reeder (Center for Excellence), Ari Schwartz (CDT),
Charlene Thomas (IRS). RSVP to Danielle Wiblemo at
email@example.com. Location: Willard Hotel,
1401 Pennsylvania Ave NW, Washington, DC 20004, Pierce Room.
Deadline to submit initial comments to the
Copyright Office (CO) in response
to its Notice of Inquiry (NOI) regarding notice and recordkeeping for use of
sound recordings under statutory license. The CO published a
notice in the Federal Register stating that it "is requesting public
comment on the adoption of regulations for records of use of sound recordings
performed pursuant to the statutory license for public performances of sound
recordings by means of digital audio transmissions between October 28, 1998,
and the effective date of soon-to-be-announced interim regulations." See,
Federal Register: October 8, 2003, Vol. 68, No. 195, at Page 58054.
Deadline to submit comments to the Department of Commerce's (DOC)
Bureau of Industry and Standards (BIS),
which is also known as the Bureau of Export Administration (BXA) regarding its
proposal to amend its rules to "expand the availability of license exceptions
for exports and reexports of computer technology and software, and
microprocessor technology on the Commerce Control List (CCL) of the Export
Administration Regulations (EAR) under Export Classification Control Numbers (ECCNs)
3E002, 4D001 and 4E001. These ECCNs control technology and software that can
be used for the development, production, or use of computers, and development
and production of microprocessors." Comments are due by November 24, 2003.
notice in the Federal Register, October 24, 2003, Vol. 68, No. 206, at
Deadline to submit comments to the Department of Commerce's
National Telecommunications and Information
Administration (NTIA) regarding the adequacy of its preparation process for the
International Telecommunications Union's (ITU)
World Radiocommunication Conferences (WRC). The next WRC is in 2007. See,
in the Federal Register, October 23, 2003, Vol. 68, No. 205, at Pages 60646-60648.
|Tuesday, November 25
The House is scheduled to meet at 12:00 NOON.
Deadline to submit comments to the Federal
Communications Commission (FCC) in response to its notice of proposed
rulemaking (NPRM) regarding digital low power television and television
translator stations. This is FCC 03-198, in MB Docket No. 03-185. See,
notice in the Federal Register, September 26, 2003, Vol. 68, No. 187, at
Pages 55566 - 55573.
|Wednesday, November 26
4:00 PM. Deadline for the
Federal Communications Commission's
(FCC) to file with the U.S. Court of
Appeals (DCCir) its response to the U.S.
Telecom Association's (USTA) and CenturyTel's emergency motion for stay of
the FCC's number portability rules.
Deadline to submit nominations to the
Department of Commerce's (DOC)
Technology Administration (TA) of
individuals for appointment to the National Medal of Technology Nomination
Evaluation Committee (NMTNEC). The TA states that "Typically, Committee
members are present or former Chief Executive Officers, former winners of the
National Medal of Technology; presidents or distinguished faculty of universities;
or senior executives of non-profit organizations." See,
notice in the Federal Register, October 27, 2003, Vol. 68, No. 207, at
Deadline for the Federal
Communications Commission's (FCC) Media
Security and Reliability Council (MRSC) to complete voting on recommendations
regarding prevention and restoration measures to ensure the continued operation and
security of media facilities in the face of a national emergency. These recommendations
were presented at the biannual meeting of the MRSC on November 6, 2003. See, FCC
|Thursday, November 27
Thanksgiving Day. The Federal Communications Commission (FCC) and other government offices will be closed. The
National Press Club will be closed. There
will be no issue of the TLJ Daily E-Mail Alert.
|Friday, November 28
National Press Club will be closed.
Deadline to submit comments to the National
Intellectual Property Law Enforcement Coordination Council (NIPLECC) regarding
the agenda and mission of the NIPLECC. See,
notice in the Federal Register, October 28, 2003, Vol. 68, No. 208, at
|Monday, December 1
10:00 AM. The U.S. Court of Appeals
(FedCir) will hear oral argument in Intergraph v. Intel, No.
03-1153. Location: Courtroom 203, 717 Madison Place, NW.
TIME? The Federal
Communications Commission (FCC) will hold a forum on Voice over Internet
Protocol (VOIP) issues. Subsequently, it will issue a Notice of Public Rule
Making (NPRM) "to inquire about the migration of voice services to IP-based
networks and gather public comment on the appropriate regulatory environment for
these services". See, FCC
of November 6, 2003.
Deadline to submit reply comments to the Federal
Communications Commission (FCC) regarding its
Fourth Notice of Proposed Rulemaking [49 pages in PDF] in which it
proposes to make spectrum available to federal users that will be displaced
from the 1710-1850 MHz band to make it available for advanced wireless
notice in the Federal Register September 2, 2003, Vol. 68, No. 169, at
Pages 52156 - 52168. See, also stories titled "FCC Releases NPRM Regarding
Allocating Spectrum to DOD to Replace Spectrum Allocated for 3G Services" in
TLJ Daily E-Mail
Alert No. 694, July 9, 2003, and "FCC Sets Deadlines for Comments
Regarding Spectrum Reallocations Relating to 3G Services" in TLJ Daily E-Mail
Alert No. 731, September 3, 2003. This is ET Docket No. 00-258 and WT Docket
|FCC Sets Comment Deadlines in § 271(b)(2)
11/21. The Federal Communications Commission
(FCC) published a
notice in the Federal Register that summarizes, and sets deadlines for
comments on, the FCC's Notice of Proposed Rulemaking (NPRM) regarding
implementation of 47
U.S.C. § 272(b)(1).
The notice states that the FCC "seeks comment on whether the operating,
installation, and maintenance (OI&M) sharing prohibition is an overbroad means
of preventing cost misallocation or discrimination by Bell operating companies (BOCs)
against unaffiliated rivals. It also seeks comment on whether the prohibition
against joint ownership by BOCs and their section 272 affiliates of switching
and transmission facilities, or the land and buildings on which such facilities
are located, should be modified or eliminated." See, Federal Register, November
21, 2003, Vol. 68, No. 225 at Pages 65665 - 65667.
Comments are due by December 8, 2003. Reply Comments are due by December 16,
This NPRM is FCC 03-272 in WC Docket No. 03-228. The FCC adopted this NPRM on
November 3, 2003, and released it on November 4, 2003. For more information,
contact Christi Shewman at 202 418-1686 or
11/22. President Bush signed
a resolution that provides continuing appropriations for the activities of
the federal government through January 31, 2004. See, White House
11/22. Federal Reserve Board
(FRB) Governor Mark Olson gave a
speech titled "Functional Regulation and Financial Modernization" to the
National Conference of Insurance Legislators in Santa Fe, New Mexico in which he
discussed the effect of technology on financial services. He stated
that "While we as regulators and legislators have the responsibility for setting
and maintaining standards of safety and soundness for the benefit of consumers,
we cannot ignore the power of market forces to cause the continual development
of consumer financial products. Improvements in technology and consumer
techno-literacy have prompted dramatic changes in all financial industries. Yet
with all the changes we have seen, we are likely still in the early stages of
realizing the full benefit of technological innovation. Our efforts as
regulators and legislators will continue to be relevant only when they are
consistent with these changing market forces."
11/21. The U.S.
Court of Appeals (DCCir) issued its
opinion [20 pages in PDF] in Sioux Valley v. FCC, in which the
Appeals Court denied petitions for review of an order of the Federal Communications
Commission (FCC) regarding the auction of the Interactive Video and Data Services
(IVDS) spectrum band (Auction No. 2). This case is Sioux Valley Rural Television
Inc. v. FCC and USA, Nos. 02–1208 and 02–1269, petitions for review of a final
order of the FCC.
11/19. The Progress and Freedom Foundation
(PFF) published a
paper [22 pages in PDF] titled "Pennsylvania at Another Crossroads: Will it
Opt for Less Regulation and Real Competition to Achieve Digital Age Progress?"
The paper was written by Randolph May and Adam Peters of the PFF.
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