|Bush Signs Critical Infrastructure
12/17. President Bush signed a
directive titled "Homeland Security Presidential Directive/Hspd-7". It
pertains to "Critical Infrastructure Identification, Prioritization, and
Protection". It replaces former President Clinton's
directive on this
subject, titled "Presidential Decision Directive/NSC-63", and dated May 22,
1998. The Clinton directive is also know as "PDD 63".
Bush's directive states that it "establishes a national policy for Federal
departments and agencies to identify and prioritize United States critical
infrastructure and key resources and to protect them from terrorist attacks."
It comments that "America's open and technologically complex society includes
a wide array of critical infrastructure and key resources that are potential
terrorist targets. The majority of these are owned and operated by the private
sector and State or local governments. These critical infrastructures and key
resources are both physical and cyber-based and span all sectors of the
The new directive provides that "Federal departments and agencies will
identify, prioritize, and coordinate
the protection of critical infrastructure and key resources in order to prevent,
deter, and mitigate the effects of deliberate efforts to destroy, incapacitate,
or exploit them. Federal departments and agencies will work with State and local
governments and the private sector to accomplish this objective."
It makes the Secretary of
Homeland Security, who is currently
(at left), "responsible for coordinating the overall national
effort to enhance the protection of the critical infrastructure".
The new directive provides that "The
Department of Justice, including the Federal
Bureau of Investigation, will reduce domestic terrorist threats, and
investigate and prosecute actual or attempted terrorist attacks on, sabotage of,
or disruptions of critical infrastructure and key resources." (Hyperlinks added
It provides that "The Department of
Commerce, in coordination with the Department, will
work with private sector, research, academic, and government organizations to
improve technology for cyber systems and promote other critical infrastructure
efforts, including using its authority under the Defense Production Act to
assure the timely availability of industrial products, materials, and services
to meet homeland security requirements."
It provides that "A Critical Infrastructure Protection Policy Coordinating
Committee will advise the Homeland Security Council on interagency policy
related to physical and cyber infrastructure protection."
that "The Office of Science and Technology
Policy, in coordination with the Department, will coordinate interagency research
and development to enhance the protection of critical infrastructure and key
resources." The OSTP is currently headed by
Marburger [PDF] (at right).
It provides that "The Office of
Management and Budget (OMB) shall oversee the implementation of
government-wide policies, principles, standards, and guidelines for Federal
government computer security programs. The Director of OMB will ensure the
operation of a central Federal information security incident center consistent
with the requirements of the Federal Information Security Management Act of
And, it provides that "Consistent with the E-Government Act of 2002,
the Chief Information Officers Council shall be the principal interagency forum for
improving agency practices related to the design, acquisition, development, modernization,
use, operation, sharing, and performance of information resources of Federal
departments and agencies."
The new directive requires that "All Federal department and agency
heads are responsible for the
identification, prioritization, assessment, remediation, and protection of their
respective internal critical infrastructure and key resources. Consistent with
the Federal Information Security Management Act of 2002, agencies will identify
and provide information security protections commensurate with the risk and
magnitude of the harm resulting from the unauthorized access, use, disclosure,
disruption, modification, or destruction of information."
It further requires that "By July 2004, the heads of all Federal
departments and agencies shall develop
and submit to the Director of the OMB for approval plans for protecting the
physical and cyber critical infrastructure and key resources that they own or
operate. These plans shall address identification, prioritization, protection,
and contingency planning, including the recovery and reconstitution of essential
Then, "On an annual basis, the Sector-Specific Agencies shall report to the
Secretary on their efforts to identify, prioritize, and coordinate the
protection of critical infrastructure and key resources in their respective
Finally, the directive provides that "The Assistant to the President
for Homeland Security and the Assistant
to the President for National Security Affairs will lead a national security and
emergency preparedness communications policy review, with the heads of the
appropriate Federal departments and agencies, related to convergence and next
generation architecture." Their recommendations are due within six months.
The present directive clarifies that "This directive supersedes Presidential
Decision Directive/NSC-63 of May 22, 1998".
|USTR Announces Central American FTA
12/17. The Office of the U.S. Trade
Representative (USTR) announced, but did not release, a Central American Free Trade
Agreement (CAFTA). The USTR stated in a
release [4 pages in
PDF] that "The draft text of the agreement will be released in January".
The CAFTA contains provisions pertaining to electronic commerce and protection of
intellectual property rights.
The parties to the FTA are the U.S., El Salvador, Guatemala, Honduras, and
Nicaragua. The USTR stated that Costa Rica "said it needs to undertake further
consultations at home before being able to move forward to finalize its participation
Pursuant to trade promotion authority, the FTA
must be approved by the House and Senate. However, it cannot be amended.
Zoellick (at right) stated that "The United States is committed to opening
markets around the world because American farmers, workers, consumers and
businesses want to sell our world class goods and services. CAFTA will
streamline trade; promote investment; slash tariffs on goods; remove barriers to
trade in services; provide advanced intellectual property protections; promote
regulatory transparency; strengthen labor and environmental conditions; and,
provide an effective system to settle disputes, ... Step by step, country by
country, region by region, the United States is opening markets with top-notch,
comprehensive FTAs that set the standard."
The USTR release states that "State-of-the-art protections and
non-discriminatory treatment are provided for digital products such as U.S. software,
music, text, and videos. Protections for U.S. patents, trademarks and trade secrets
are strengthened." It adds that "The Central American countries will accord
substantial market access across their entire services regime, offering new
access in sectors such as telecommunications, express delivery, computer and
related services, ..."
In addition, the USTR released a
[8 pages in PDF] of the CAFTA.
E-Commerce. The USTR's summary states that "Central America and the
United States agreed to provisions on e-commerce that reflect the issue's
importance in global trade and the importance of supplying services by
electronic means as a key part of a vibrant e-commerce environment."
Also, "All Parties committed to non-discriminatory treatment of digital
products; agreed not to impose customs duties on such products and to cooperate
in numerous policy areas related to e-commerce."
Cybersquatting. The USTR's summary states that the CAFTA
"Requires a system to resolve disputes about trademarks used in
Internet domain names, which is important to prevent ``cyber-squatting´´ with
respect to high-value domain names."
Copyright. The USTR's summary states that "Copyright owners
maintain rights over temporary copies of their
works on computers, which is important in protecting music, videos, software and
text from widespread unauthorized sharing via the Internet."
It also states that the CAFTA "Establishes that only authors, composers and
other copyright owners have the right to make their work available on-line",
"Ensures extended terms of protection for copyrighted works,
including phonograms, consistent with emerging international trends", and
"Establishes strong anti-circumvention provisions to prohibit tampering with
technologies (like embedded codes on discs) that are designed to prevent piracy
and unauthorized distribution over the Internet".
It also states that the CAFTA "Ensures that governments use only legitimate
computer software, thus setting a positive example for private users", "Requires
rules to prohibit the unauthorized receipt or distribution of encrypted satellite
signals, thus preventing piracy of satellite television programming", and
"Provides rules for the liability of Internet Service Providers
(ISPs) for copyright infringement, reflecting the balance struck in the U.S.
Millennium Copyright Act between legitimate ISP activity and the infringement of
Enforcement of IPR. The USTR's summary states that the CAFTA
"Criminalizes end-user piracy, providing strong deterrence against piracy and
It also states that it "Requires all Parties to authorize the seizure,
forfeiture, and destruction of counterfeit and pirated goods and the equipment used to
produce them. Also provides for enforcement against goods-in-transit, to deter violators
from using ports or free trade zones to traffic in pirated products. Ex officio
action may be taken in border and criminal cases, thus providing more effective
Finally, it states that the CAFTA "Mandates both statutory and actual
damages for copyright
infringement and trademark piracy. This serves as a deterrent against piracy,
and ensures that monetary damages can be awarded even when it is difficult to
assign a monetary value to the violation."
Patents. The USTR's summary states that the CAFTA "Provides for
the extension of patent terms to compensate for
delays in granting the original patent, consistent with U.S. practice" and
"Limits the grounds for revoking a patent, thus protecting against arbitrary
Reaction. Sen. Charles Grassley
(R-IA), the Chairman of the Senate
Finance Committee stated in a release that "I'm pleased that the CAFTA
negotiations were concluded successfully" and "I look forward to working with my
colleagues to move the CAFTA through the U.S. Senate."
Robert Holleyman, P/CEO of the Business
Software Alliance (BSA), praised the CAFTA. He stated in a
release that "The BSA applauds Ambassador Zoellick for his continued commitment to
negotiation trade agreements that include strong copyright enforcement.
Ambassador Zoellick and his team recognize how important such protections are to
the continued growth of the high-tech industry and the future growth of global
He continued that "More than 50 percent of our industry's revenues
come from sales abroad. To
continue our positive contributions to the U.S. economy, it is imperative that
we develop new markets for American information technology products and services
and implement free trade agreements that ensure an open and competitive
environment for IT exports".
Mitch Bainwol, Ch/CEO of the Recording
Industry Association of America (RIAA), stated in a release that "This new
agreement is another important milestone in the efforts of Bob Zoellick and his
team to significantly improve protection of the intellectual property rights of
America’s composers, performers and sound recording producers in other
countries. We thank the trade representative's dedicated negotiators for what
they have achieved in this agreement. They have worked tirelessly and with great
skill to enhance our country’s ability to fuel creativity and promote our
|More Trade News
12/16. The European Union (EU) published a
document [10 pages in PDF] titled "Council Regulation (EC) No. 2193/2003",
and dated December 8, 2003. This addresses the U.S. Foreign Sales Corporation (FSC)
and Extraterritorial Income (ETI) tax regimes. The
World Trade Organization (WTO) has found that both
constitute illegal export subsidies, and has authorized the EU to impose retaliatory
tariffs on U.S. exports. The attached annex lists the products on which retaliatory
tariffs apply. See also, story titled "EU Adopts Resolution on FSC/ETI Retaliatory
Tariffs" in TLJ Daily E-Mail Alert No. 796, December 10, 2003.
World Trade Organization (WTO)
Director General Supachai
Panitchpakdi (at right) gave a
regarding the the Doha Development Agenda (DDA). He stated that "I have
continued with my intensive programme of contacts with Ministers in capitals and elsewhere.
... I come away from these contacts with the deep impression that there continues to
be a strong willingness and determination to move the Doha Development Agenda
forward." He continued that "In the last couple of months I have met with
Ministers in Asia, Africa, Central
America, the Caribbean and South America. I have also seen many other Ministers
as they pass through Geneva and I have also spoken to quite a number by
telephone. As I have reported previously, every Minister I have spoken to wants
to see progress. They have also expressed a recognition of the need for
flexibility in order to achieve this progress. The message that I have received
from Ministers has been clear, consistent and encouraging. They are all
committed to the multilateral trading system. They do not want the DDA to be
sidelined or neglected and are willing to resume the negotiations at the
earliest opportunity on the basis of the Derbez text."
12/15. Deputy U.S. Trade Representative (USTR) Linnet Deily gave a
speech [3 pages in PDF] regarding the Doha Development Agenda (DDA) and the
Cancun Ministerial, stating that "The United States remains firmly committed to
the successful conclusion of the DDA.
12/10. The Department of Commerce's (DOC)
Industry and Security (BIS), which is also still known as the Bureau of Export
Administration (BXA), published a
in the Federal Register that summarizes a final rule that amends the Commerce
Control List to implement revisions to the Wassenaar List that were agreed
upon in the December 2002 meeting. The changes pertain to, among other things,
dual use items, including computers, software, telecommunications equipment, and
information security products. See, Federal Register, December 10, 2003, Vol.
68, No. 237, at Pages 68975 - 68996.
12/15. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS) fined
Sun Microsystems and two of its subsidiaries
$291,000. The BIS stated in a
that these payments "settle charges involving illegal exports of computers to
military end-users in China and Egypt, and for failing to comply with conditions
on eight Bureau of Industry and Security (BIS) export licenses". The BIS
release continues that Sun Microsystems exported an Enterprise server to the
Changsha Institute of Science and Technology (CIST) in the People's Republic of
China, which offers courses specializing in missile and rocket research and
12/15. The Department of Commerce's (DOC)
Bureau of Industry and Security (BIS) fined
TLC Precision Wafer Technology $35,000.
The BIS stated in a
release that TLC
"committed five violations of the Export Administration Regulations when it
exported aluminum gallium arsenide/gallium arsenide epitaxial wafers to Israel
and Brazil without the required export licenses and failed to file the necessary
Shippers Export Declarations (SEDs) for the transactions. The company also
provided false information on the SED for a shipment of oscillator chips to
|Court Holds That FOIA Does Not Require FTC
to Produce Unredacted Copies of Consumer Complaints
12/16. The U.S. Court of Appeals
(7thCir) issued its
opinion [PDF] in Lakin Law Firm v. FTC, a Freedom of Information Act (FOIA)
case in which a plaintiffs personal injury law firm sought copies of consumer
complaints about credit card cramming, including the names of the
individual complainants. The FTC produced copies of complaints, with the names
and addresses redacted. The District Court dismissed. The Appeals Court
The FOIA is codified at
5 U.S.C. § 552.
Section 552(b)(6), which the Courts relied upon, provides that "This section
does not apply to matters that are ... personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of
The Lakin Law Firm is a plaintiffs
personal injury law firm based in southern Illinois, outside of St. Louis. The
Appeals Court wrote that when people complain to the FTC "they
probably think their names and addresses will not be released to a firm of
private lawyers seeking fuel to propel a possible class-action lawsuit."
Tom Maag of the Lakin Law Firm told TLJ that it has sought the names of
complainants because it seeks witnesses in lawsuits against credit card companies.
The Appeals Court wrote that "The FOIA has a noble goal: it contemplates a policy of broad
disclosure of government documents to serve the ``basic purpose of ensuring an
informed citizenry, vital to the functioning of a democratic society.´´ ...
Stated another way, the FOIA’s central purpose is to guarantee ``that the
Government’s activities be opened to the sharp eye of public
scrutiny, not that information about private citizens that happens to be
in the warehouse of the Government be so disclosed.´´" (Emphasis in original.
The Court applied FOIA exemption 6. It wrote that "Exemption 6 requires a
balancing of individual privacy interests of consumer complainants against the
public interest in disclosure to determine whether disclosure is ``clearly
unwarranted.´´ The Supreme Court has repeatedly held that the only public
interest that is relevant to this balancing test is the shining of a light on an
agency’s performance of its statutory duties." It added that "Compelling
disclosure of the identity of consumers' complaints
about cramming would not further the core purpose of the FOIA."
Judge Evans wrote the opinion, in which Judges Rovner and Williams joined.
This case is The Lakin Law Firm v. Federal Trade Commission, U.S.
Court of Appeals for the 7th Circuit, No. 03-1689, an appeal from the U.S.
District Court for the Southern District of Illinois, D.C. No. 02-CV-1121-DRH,
Judge David Herndon presiding.
There have also been numerous other FOIA requests for information about
consumer complaints to federal agencies.
For example, in September of 2003, the American
Teleservices Association (ATA), which is also contesting the national do not
call registry, filed a complaint in the U.S.
District Court (DC) against the Federal
Communications Commission (FCC) alleging violation of the FOIA in
connection with the ATA's efforts to obtain from the FCC personally identifying
information about the over 10,000 consumers who have complained to the FCC about
That is, the ATA, which represents telemarketers, wants names and other
personal information about everyone who has complained to the FCC about
telemarketers. That case has been briefed and is pending a decision by the
See also, story titled "Telemarketers Sue FCC To Get Names, Addresses, and Phone
Numbers of Consumers Who Complained to FCC" in
TLJ Daily E-Mail Alert
No. 741, September 17, 2003. That case is American Teleservices
Association v. FCC, D.C. No. 03-CV-1848, Judge Richard Leon presiding.
Also, the Electronic Privacy Information
Center (EPIC) has obtained redacted copies of one hundred
consumer complaints to the FCC regarding telemarketing practices. The EPIC has
not sought personally identifying information. Rather, it sought and obtained
copies of a sample of complaints, with names and contact information blacked
out, which it has published in its web site. Its purpose has been to provide
information to the public regarding the nature of consumer complaints about
telemarketing practices. See, the EPIC's
titled "Telemarketing Complaints".
|The TLJ Daily E-Mail Alert will not be published on Wednesday, December 24,
Thursday, December 25, or Friday, December 26.
|Washington Tech Calendar
New items are highlighted in red.
|Thursday, December 18
The House is in adjournment.
The Senate is in adjournment. (It will convene on January 20, 2004.)
Supreme Court is in recess. (It will return on January
10:30 AM EST.
Eliot Spitzer (Attorney
General of New York),
Brad Smith (SVP/GC of Microsoft), and Tim Cranton (Senior
Corporate Attorney for Microsoft) will hold a press conference
pertaining to a "collaborative effort regarding spam". The event
will take place in New York City, but will be webcast. See,
webcast access page.
Location: Office of the Attorney General, Media Room, 25th
Floor, 120 Broadway, New York City.
|Friday, December 19
9:00 - 11:30 AM. The
Executive Office of the President's (EOP)
Office of Science and Technology Policy's (OSTP)
National Science and
Technology Council's (NSTC) Committee on Technology and Physical
Infrastructure Working Group (formerly named the Subcommittee on Construction
and Building) will hold a meeting that is closed to the public. For more
information, contact Paul Domich at
firstname.lastname@example.org or 301 975-5624. Location: White House Conference Center,
Jackson Room, 726 Jackson Place, NW.
12:00 NOON. The Federal
Communications Bar Association's (FCBA) International Telecommunications
Committee will host a brown bag lunch titled "The United Nations World Summit
on Information Society (WSIS): Geneva 2003 and the Road to Tunisia 2005".
The speaker will be David Gross, Deputy Assistant Secretary for International
Communications and Information Policy, Department of State. RSVP to
Wiley Rein & Fielding, 1750 K Street, NW.
Deadline to submit reply comments to the
Federal Communications Commission (FCC) regarding
Northland Networks' petition
pursuant to 47 U.S.C. §
252(e)(5) requesting that the FCC preempt the jurisdiction of the
New York Public Service Commission to resolve
a dispute between Northland and Verizon regarding
reciprocal compensation and change of law provisions of their interconnection agreements.
This is WC Docket No. 03-242. See, FCC
|Saturday, December 20
|Monday, December 22
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.
|Thursday, December 25
Christmas. Executive branch agencies will be closed.
|People and Appointments
Rep. David Vitter (R-LA) (at
right) announced that he will run for the Senate seat of retiring
Sen. John Breaux (D-LA). He was
first elected to the Congress in a special election in 1999 to replace former Rep.
Robert Livingston (R-LA). He first was assigned to the
House Judiciary Committee, but latter
moved to the House Appropriations
Committee. He also sits on the Commerce, Justice, State and the Judiciary
Subcommittee (CJS). The Appropriations Committee and its CJS Subcommittee have long
diverted U.S. Patent and Trademark Office (USPTO)
fees to subsidize other government programs. However, on the one roll call vote
on the House floor on this issue, Rep. Vitter voted for more funding for the
USPTO (while he was still a Judiciary Committee member). On June 23, 2000, the
House voted on an amendment to a CJS appropriations bill offered by
Rep. Howard Coble (R-NC) to increase the
FY 2001 funding for the USPTO by $134 Million. It failed on a roll call vote of 145-223.
This would have reduced the size of the diversion. See,
Call No. 321. See also,
"House Rejects Coble Amendment on USPTO Funding", June 25, 2000, and
"Analysis of House Vote on Coble Amendment", June 25, 2000.
12/17. Jon Cody was named legal advisor for media and
broadband issues for Federal Communications Commission
(FCC) Chairman Michael
Powell. He has worked at the FCC since 2001 as an Attorney-Advisor in the Office
of Strategic Planning. Before that,
he worked for the law firm of Mintz Levin. See, FCC
12/17. The Direct Marketing Association
(DMA) announced that
Wientzen, its P/CEO since 1996, will retire on July 1, 2004. The DMA is
searching for a successor.
12/17. The Department of Justice (DOJ)
announced that it charged Alfred P. Censullo, a former employee of
Micron Technology Inc., with violation of
18 U.S.C. § 1503
in connection with his "altering and concealing documents containing competitor
pricing information, which were requested in a federal grand jury subpoena".
release. The DOJ also stated that he "has agreed to plead guilty to
obstructing the grand jury investigation of a suspected conspiracy to fix the
price of dynamic random access memory (DRAM) products sold in the United
States". Micron Ch/CEO Steve Appleton stated in a
that "The charges against Mr. Censullo relate to his personal actions in the
course of the Department of Justice investigation and do not pertain to Micron.
Micron takes compliance with the law very seriously and requires all employees
to follow instructions with respect to legal proceedings. Mr. Censullo's actions
were contrary to the company's instructions. We have fully and actively
cooperated with the Department of Justice since the inception of their
investigation and will continue to do so." The grand jury investigation, and the
charge against Censullo, are pending in the
U.S. District Court (NDCal).
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