12/3. President Bush signed S 189, the "21st Century Nanotechnology Research and Development Act". See, White House release and Technology Administration release.

S 189 authorizes appropriations ($3.7 Billion) over four years (FY 2005-2008) for nanotechnology R&D programs at the National Science Foundation (NSF), Department of Energy (DOE), Department of Commerce's (DOC) National Institute of Standards and Technology (NIST), National Aeronautics and Space Administration (NASA), and Environmental Protection Agency (EPA). The NSF would be receive the largest portion of the funding.

President Bush also wrote a signing statement. He stated that "Several provisions of the Act, including sections 2(d)(2), 3(c)(1), 4(d), and 5(d), purport to call for executive branch officials to submit to the Congress proposals for legislation, including funding legislation. The executive branch shall implement these provisions in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President judges necessary and expedient."

He also stated that "The executive branch shall construe section 2(b)(4)(E) of the Act in a manner consistent with the Government's obligation under the Due Process Clause of the Fifth Amendment to the Constitution to ensure equal protection of the laws."

This subsection provides that the "National Nanotechnology Program" created by the statute shall "to the greatest extent possible, be established in geographically diverse locations, encourage the participation of Historically Black Colleges and Universities ... and minority institutions ... and include institutions located in States participating in the Experimental Program to Stimulate Competitive Research (EPSCoR)".

See also, statement by Secretary of Energy Spencer Abraham.

See also, stories titled "House and Senate Pass Nanotech R&D Bill" in TLJ Daily E-Mail Alert No. 784, November 21, 2003; "Senate Commerce Committee Approves Nanotech R&D Bill" in TLJ Daily E-Mail Alert No. 685, June 20, 2003; "Senate Commerce Committee Holds Hearing on Nanotechnology" in TLJ Daily E-Mail Alert No. 654, May 2, 2003; "House Science Committee Holds Hearing on Nanotechnology" in TLJ Daily E-Mail Alert No. 641, April 10, 2003; and "Representatives Introduce Bill To Authorize Nanotech R&D Funding" in TLJ Daily E-Mail Alert No. 606, February 18, 2003.

12/3. Secretary of Homeland Security Tom Ridge gave a speech in Santa Clara, California to the National Cyber Security Summit in which he stated cyber networks present attractive targets for terrorists.

He stated that "A vast electronic nervous system operates much of our nation’s physical infrastructure. Everything from electricity grids to banking transactions to telecommunications depends on secure, reliable cyber networks. These networks and the infrastructures they support present an attractive target for terrorists. They know, as do we, that a few lines of code could ultimately wreak as much havoc as a handful of bombs."

Ridge (at right) continued that "the unfortunate truth is that the number of cyber-security incidents is on the rise. More than 76,000 occurred in just the first six months of this year. Many of these are the work of  ``hackers.´´ Yet we know the enemies of freedom use the same technology that hackers do, that we do. And we know that they are looking to strike in any manner that will cripple our society. So we must be as diligent and determined at finding ways to strengthen our cyberspace, as the terrorists are in trying to find ways to attack it."

He discussed the President's National Strategy to Secure Cyberspace, and the National Cyber Security Division (NCSD). The NCSD, which is headed by Amit Yoran, is a part of Information Analysis and Infrastructure Protection Directorate (IAIP) at the Department of Homeland Security (DHS). Bob Liscouski is the Assistant Secretary for Infrastructure Protection in the IAIP.

Ridge also discussed the NCSD's partnership with Carnegie Mellon University's CERT Coordination Center in creating the U.S. Computer Emergency Response Team (U.S. CERT). He stated that "In October, Homeland Security staged a ``Livewire´´ exercise to simulate a cyber attack on computers, banks, and utilities. While, on the whole, the government response was successful, we found communication was not as smooth as it needs to be between the various sectors."

Ridge added, "That's where the U.S. CERT comes in. Its charge is to ensure that the necessary information to repel an attack is distributed across all critical infrastructure sectors during a time of attack or heightened level of alert. Additionally, the US CERT will work closely with the private sector and technology experts to enhance our warning and response time to a cyber attack -- speed action when action is critical."

Ridge also stressed the role of the private sector. He said that "Eighty-five percent of our nation’s critical infrastructure, including the cyber network that controls it, is owned and operated by the private sector. As such, we not only need businesses to be active partners with us in securing these vital assets, we need businesses ... we need those of you here today to lead the way."

"So, it should go without saying", said Ridge, that "the continued success of protecting our cyberspace depends on the investment and commitment of each of you and the businesses you represent."

12/3. Michael Dawson, the Deputy Assistant Secretary for Critical Infrastructure Protection and Compliance Policy at the Department of the Treasury, gave a speech at the Fourth E-Gov Homeland Security Conference in Washington DC.

He stated that "we are still exposed to significant risks of economic disruption from terrorist attacks. Four principles guide our efforts to manage these risks."

"The first principle is to remember that the financial system is really about people.  People, not buildings or computers, produce financial services. And it is people who benefit from financial services", said Dawson. "The second principle is the importance of maintaining confidence."

"The third principle is to ensure that the financial system remains accessible and open for business when the safety of the employees permits." And fourth, "we want to promote responsible decision-making and problem-solving within the private sector. Financial institutions should make the appropriate decisions without waiting for guidance from Washington."

Dawson next addressed the development of a next generation Financial Services Information Sharing and Analysis Center (FS/ISAC). He stated that "Since 1999, the FS/ISAC has been a leader in information sharing for the financial sector, allowing members to receive and submit anonymous reports on security threats and solutions. The FS/ISAC, however, has been limited in scope. It focused primarily on cyber threats. And it served only 56 financial institutions, albeit 56 of the biggest ones. In addition, Congress has expressed concern over the technological capabilities of the FS/ISAC."

He continued that "Shortly, Treasury will help launch a new and improved FS/ISAC. This next generation FS/ISAC will include both cyber and physical threat information; serve the entire sector, not just 56 large institutions; and deploy a secure, confidential technology platform where companies can exchange information in real time as they identify vulnerabilities, address the vulnerabilities, and respond to attempts to exploit the vulnerabilities."

He also stated that the Treasury Department has detailed an expert in financial services issues to the Information Analysis and Infrastructure Protection Directorate (IAIP) at the Department of Homeland Security (DHS).

Finally, he addressed the development of procedures for secure communications between federal and state financial regulators.

12/3. The U.S. Court of Appeals (9thCir) issued an order [16 pages in PDF] in Batzel v. Smith, a case involving the application of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv. The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. A divided three judge panel of the Appeals Court, relying upon the federal interactive computer service immunity provision of 47 U.S.C. § 230(c)(1), vacated and remanded. And now, the Court has denied the petition for rehearing, and the petition for rehearing en banc. Three judges dissented from the denial of the petition for rehearing en banc.

Section 230 provides, in part, that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

On June 24, 2003, a three judge panel comprised of Judges Canby, Berzon and Gould issued its opinion [41 pages in PDF]. Judge Gould dissented. See, story titled "9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator" in TLJ Daily E-Mail Alert No. 687, June 25, 2003.

On December 3, 2003, the Court wrote that "The majority of the panel has voted to deny appellee’s petition for rehearing. Judge Berzon has voted to deny the petition for rehearing en banc and Judge Canby so recommends. Judge Gould has voted to grant the petition for rehearing and petition for rehearing en banc."

"The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R. App. P. 35(f)."

"The petition for rehearing and the petition for rehearing en banc are DENIED. Judge Gould’s dissent from denial of en banc rehearing is filed concurrently herewith", wrote the Court.

Judge Gould again wrote a lengthy dissent. Judges Tallman and Callahan joined. Gould wrote that "I remain convinced that the panel majority’s interpretation of the statutory immunity found in 47 U.S.C. § 230(c) is wrong in light of Congress's intent, and will needlessly harm persons defamed on the Internet."

He argued that "Human reputations, built on good conduct over decades, should be not so easily tarnished and lost in a second of global Internet defamation. Under the panel majority’s rule, there might be a remedy against the initial sender, but there is no remedy against the person who willingly chooses, with no exercise of care, to amplify a malicious defamation by lodging it on the Internet for all persons and for all time. Unless this result were commanded by Congress, we should not create such a system."

Indeed, going back to the majority opinion of the three judge panel, there was skepticism about allowing Section 230 immunity in this case. The majority wrote that "There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech ``providers and users of interactive computer services´´ when the defamatory or obscene material is ``provided´´ by someone else."

This case is Ellen Batzel v. Robert Smith, Netherlands Museum Association, Mosler Inc., and Tom Cremers, U.S. Court of Appeals for the Ninth Circuit, No. 01-56380, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-00-09590-SVW, Judge Stephen Wilson presiding.

12/3. The Federal Communications Commission (FCC) adopted and released its Memorandum Opinion and Order [98 pages in PDF] approving Qwest Communications' application to provide in region interLATA services in the state of Arizona. The FCC concluded that Qwest has "has taken the statutorily required steps to open its local exchange market in Arizona to competition."

This completes the process of authorizing the Bell Operating Companies (BOCs) to provide long distance services, pursuant to 47 U.S.C. § 271. Section 271, which was enacted as part of the Telecommunications Act of 1996, provides that the BOCs may not provide in region, interLATA services until they have demonstrated compliance with certain market-opening requirements enumerated in the statute. The FCC issued its first Section 271 approval on December 22, 1999. That was Bell Atlantic's (now Verizon) application regarding the state of New York.

FCC Chairman Michael Powell wrote in a media statement [PDF] that "The barrier between local and long distance service has finally been removed. The 271 process has contributed to the creation of true facilities-based competition that promises significant longterm benefits for individuals and the economy. Consumers throughout the country will continue to enjoy innovative new choices that make the concept of separate local and long distance markets a thing of the past."

However, he added that "The FCC will be vigilant in ensuring that Bell companies continue to meet the competitive checklist through various enforcement tools at the FCC’s disposal including section 271(d)(6)".

Similarly, Commissioner Kathleen Abernathy wrote in a separate statement [PDF] that "While we have authorized Bell entry into the long distance market in every state, our work is plainly not done. We must intensify our focus on enforcement, pursuant to section 271(d)(6), to ensure that the local markets remain open to competition. The Commission also must complete its examination of the regulatory framework that applies to the Bell companies’ provision of long distance service."

Abernathy (at right) asked, "If a BOC integrates its operations after the sunset of the section 272 requirements, to what extent should dominant carrier regulations be retained? I look forward to working with my colleagues on an answer to that important question. I also hope that the Commission promptly completes the pending rulemaking concerning possible elimination of the ban on sharing operation, installation, and maintenance functions. Dominant carrier regulations, the OI&M rule, and other legacy regulations may not be necessary in today’s increasingly competitive marketplace. I do not know at this point precisely what level of regulatory oversight we do need, but I urge the Commission to complete its review so that we can ensure that our rules are tailored to the current environment."

Commissioners Michael Copps and Jonathan Adelstein jointly wrote a separate statement [PDF]. The stated that "We need to take our enforcement duty more seriously. We have taken a step in the right direction by establishing a formal Section 271 Compliance Review Program. Yet our practice has been little more than requiring Bell Operating Companies to provide the Commission with performance data for the first year following long-distance authorization. This strikes us as a lax way to go about ensuring continued compliance."

They continued that "A more credible process would include this kind of oversight beyond just the first year following approval. Instead, we have stuck our head in the sand, willfully blind to the possibility that problems may arise after the first year of long-distance entry. Competitors always are free to file complaints, but we believe the statute compels us to do more here at the Commission. Without effective monitoring, we may find that the old monopoly forces that led to the breakup of Ma Bell will just piece themselves back together again."

See also, FCC release and Qwest release. This is FCC 03-309 in WC Docket No. 03-194.

Some subscribers' e-mail systems blocked yesterday's issue of the TLJ Daily E-Mail Alert. It is now in the TLJ website. See, TLJ Daily E-Mail Alert No. 791, December 3, 2003.

The House is in adjournment until December 8.

The Senate is in adjournment until December 9.

Day one of a two day event titled "21st Annual Institute on Telecommunications Policy & Regulation". See, notice. The price to attend is $1,295.00. Location: International Trade Center, Washington DC.

Day two of a three day conference hosted by the National Science Foundation (NSF) titled "Societal Implications of Nanoscience and Nanotechnology". For more information, contact Cate Alexander at 703 292-4399 or calexand@nnco.nano.gov. See, notice. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

9:00 AM - 12:30 PM. The Internal Revenue Service's (IRS) Electronic Tax Administration Advisory Committee (ETAAC) will meet. See, notice in the Federal Register, November 7, 2003, Vol. 68, No. 216, at Pages 63192 - 63193. Location: Ritz-Carlton Hotel, Pentagon City, Diplomat Meeting Room, 1250 South Hayes Street, Arlington, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Vernal Ent Inc v. FCC, No. 02-1297. Judges Sentelle, Tatel and Roberts will preside. Location: 333 Constitution Ave. NW.

The Federal Communications Bar Association (FCBA) will host its annual Chairman's Dinner. Location: The Washington Hilton Hotel.

Deadline to register to attend the December 9-10 meeting of the National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology. Contact Carolyn Peters at 301 975-5607 carolyn.peters@nist.gov. See, notice in the Federal Register,  November 25, 2003, Vol. 68, No. 227, at Pages 66074 - 66075.

Day two of a two day event titled "21st Annual Institute on Telecommunications Policy & Regulation". See, notice. The price to attend is $1,295.00. Location: International Trade Center, Washington DC.

Day three of a three day conference hosted by the National Science Foundation (NSF) titled "Societal Implications of Nanoscience and Nanotechnology". For more information, contact Cate Alexander at 703 292-4399 or calexand@nnco.nano.gov. See, notice. Location: NSF, 4201 Wilson Boulevard, Arlington, VA.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in KERM Inc v. FCC, No. 03-1028. Judges Sentelle, Tatel and Roberts will preside. Location: 333 Constitution Ave. NW.

10:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council (NRIC) will hold a meeting. See, FCC notice. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "Taxes and Regulation: The Effects of Mandates on Wireless Consumers". The speakers will include Anne Boyle (Commissioner of the Nebraska Public Service Commission), Thomas Lenard (PFF), John Muleta (Chief of the FCC's Wireless Telecommunications Bureau), and Paul Rubin (Emory University). Lunch will be served. To register, contact Andrea Knutsen at 202 289-8928 or aknutsen@pff.org. See, notice. Location: Room 1539, Longworth Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Report and Order and Further Notice of Proposed Rulemaking [198 pages in PDF] in it proceeding titled "In the Matter of Promoting Efficient Use of Spectrum Through Elimination of Barriers to the Development of Secondary Markets". The FCC adopted this item on May 15, 2003, but did not release it until October 7, 2003. This is FCC 03-113 in WT Docket No. 00-230. See, TLJ story titled "FCC Adopts Order Allowing Some Secondary Leasing of Spectrum", May 15, 2003, and story titled "FCC Finally Releases R&O and FNPRM in Secondary Spectrum Markets Proceeding" in TLJ Daily E-Mail Alert No. 755, October 8, 2003.

The House will return from a recess at 9:30 AM.

8:45 AM - 5:30 PM. There will be a day long conference titled "Patent and Trademark Office Day". See, agenda [PDF]. Location: the Ronald Reagan Building and International Trade Center.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its notice of proposed rulemaking (NPRM) regarding human exposure to radiofrequency (RF) energy. The FCC adopted this notice of proposed rulemaking on June 12, 2003, and released it on June 26, 2003. This is ET Docket No. 03-137. For more information, contact Robert Cleveland in the FCC's Office of Engineering and Technology at 202 418-2422 or robert.cleveland@fcc.gov. See, notice in the Federal Register, September 8, 2003, Vol. 68, No. 173, at Pages 52879 - 52889.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding implementation of 47 U.S.C. § 272(b)(1). 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. See, notice in the Federal Register, November 21, 2003, Vol. 68, No. 225 at Pages 65665 - 65667.

The Senate will return from recess at 10:00 AM.

Day one of a two day meeting of the Executive Office of the President's (OEP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Models regarding the policies, procedures, and plans relating to the business relationship between federal agencies and research performers. See, notice in the Federal Register, September 16, 2003, Vol. 68, No. 179, at Pages 54225 - 54226. Location: Department of Agriculture, 1400 Independence Ave., SW.

8:25 AM - 5:15 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology will meet. Some of the meeting will be closed to the public. The agenda includes a NIST update on current NIST programs; strategic plan and program priorities; human resources, safety, and diversity; and program implementation and evaluation. The deadline to register is December 4. Contact Carolyn Peters at 301 975-5607 carolyn.peters@nist.gov. See, notice in the Federal Register,  November 25, 2003, Vol. 68, No. 227, at Pages 66074 - 66075. Location: NIST, Employees Lounge, Administration Building, Gaithersburg, MD.

8:30 AM - 3:15 PM. The American Enterprise Institute (AEI) will host a conference titled "Competition versus Cooperation in Global Tax Policy" See, notice. Location: AEI, 12th Floor, 1150 17th Street, NW.

9:00 AM - 4:30 PM. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) will hold the first in a series of public meetings on government management of spectrum. See agenda. See also, notice in the Federal Register, November 24, 2003, Vol. 68, No. 226, at Page 65893. For more information, contact Joe Gattuso at 202 482-1880 or jgattuso@ntia.doc.gov. Location: Room 4830, Hoover Building, 1401 Constitution Avenue, NW.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown rag lunch. The topic will be the MFJ decree, the Section 271 process, and the effectiveness of the 20-year experiment with line of business restrictions, and pending FCC proceedings regarding structural and non-structural safeguards. The speakers will be Bernard Wunder, James Harralson, and Richard Metzger. RSVP to Cecelia Burnett at 202 637-8312 or cmburnett@hhlaw.com. Location: Hogan & Hartson LLP, 555 13th St., NW. lower level.

8:15 - 11:30 AM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology will meet. Some of the meeting will be closed to the public. The agenda includes a NIST update on current NIST programs; strategic plan and program priorities; human resources, safety, and diversity; and program implementation and evaluation. The deadline to register is December 4. Contact Carolyn Peters at 301 975-5607 carolyn.peters@nist.gov. See, notice in the Federal Register, November 25, 2003, Vol. 68, No. 227, at Pages 66074 - 66075. Location: NIST, Employees Lounge, Administration Building, Gaithersburg, MD.

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Standards's (BIS) Regulations and Procedures Technical Advisory Committee will hold a public meeting. The agenda includes, among other topics, "Discussion on technology controls, including proposed rule on computer and microprocessor technology", and "Discussion on deemed export licensing". See, notice in the Federal Register, November 20, 2003, Vol. 68, No. 224, at Page 65437. Location: Room 3884, Hoover Building, 14th Street between Constitution and Pennsylvania Avenues, NW.

Day one of a two day symposium hosted by the National Institute of Standards and Technology (NIST) titled "Building Trust and Confidence in Voting Systems". The topics to be addressed include computer security. See, notice and symposium web site. The registration deadline is December 2. Location: NIST, Red Auditorium, Building 101.

Day two of a two day meeting of the Executive Office of the President's (OEP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Models regarding the policies, procedures, and plans relating to the business relationship between federal agencies and research performers. See, notice in the Federal Register, September 16, 2003, Vol. 68, No. 179, at Pages 54225 - 54226. Location: Department of Agriculture, 1400 Independence Ave., SW.

12/3. The U.S. District Court (DC) issued a Memorandum Opinion and Order [PDF] in Bethea v. Comcast regarding pre-trial discovery of electronic records. The plaintiff in this employment discrimination lawsuit moved for a court order compelling the defendants to allow her to enter upon their premises, inspect their computer systems and related programs, and copy any information relevant to her claims. The Court denied the motion. It wrote that "In the context of computer systems and computer records, inspection or seizure is not permitted unless the moving party can ``demonstrate that the documents they seek to compel do, in fact, exist and are being unlawfully withheld´´", citing Alexander v. FBI, 194 F.R.D. 305 (D.D.C. 2000).

12/3. President Bush signed S 1720, which establishes Plano, Texas, as an additional place for holding federal court in the Sherman Division of the Eastern District of Texas. See, White House release.