Tech Law Journal Daily E-Mail Alert
November 24, 2003, 9:00 AM ET, Alert No. 785.
Home Page | Calendar | Subscribe | Back Issues | Reference
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. 671.

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 bill.

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 bill.

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 messages.

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 release after 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 prosecute spammers."

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 "Senate 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 HR 3521, 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 Report.

The Special 301 provisions are codified at 19 U.S.C. 2411 et seq. The bill contains two changes to Section 304 of the Trade Act of 1974 (19 U.S.C. 2414).

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 HR 2622, the "National Consumer Credit Reporting System Improvement Act of 2003", late on Friday night, November 21, by a vote of 379-49. See, Roll Call No. 667. The Senate agreed to the conference report on Saturday, November 22. See, House 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 statement: "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 major legislation."

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 Joint 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 release.

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.

Notice
The TLJ Daily E-Mail Alert will not be published on Thursday, November 27.
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 consideration of 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 dani@cdt.org. 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. See, notice in the Federal Register, October 24, 2003, Vol. 68, No. 206, at Pages 60891-60895.

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, notice 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 Page 61190.

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 release [PDF].

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

The 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 Pages 61398-61399.

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 release 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 services. See, 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 No. 02-8.

FCC Sets Comment Deadlines in 271(b)(2) Rulemaking

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, 2003.

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 christi.shewman@fcc.gov.

More News

11/22. President Bush signed HJRes 79, a resolution that provides continuing appropriations for the activities of the federal government through January 31, 2004. See, White House release.

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. 021208 and 021269, 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.

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.