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December 18, 2003, 9:00 AM ET, Alert No. 802.
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Bush Signs Critical Infrastructure Protection Directive

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 economy."

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."

Tom RidgeIt makes the Secretary of Homeland Security, who is currently Tom Ridge (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 to quotes.)

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."

John MarburgerIt provides 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 John 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 2002."

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 capabilities."

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 sectors."

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 in CAFTA".

Pursuant to trade promotion authority, the FTA must be approved by the House and Senate. However, it cannot be amended.

Robert ZoellickUSTR Robert 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 summary [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 copyrights".

Enforcement of IPR. The USTR's summary states that the CAFTA "Criminalizes end-user piracy, providing strong deterrence against piracy and counterfeiting".

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 enforcement."

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 revocation".

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 electronic commerce".

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 economic competitiveness."

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.

Supachai Panitchpakdi12/15. World Trade Organization (WTO) Director General Supachai Panitchpakdi (at right) gave a speech 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) Bureau of Industry and Security (BIS), which is also still known as the Bureau of Export Administration (BXA), published a notice 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 release 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 development technology.

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 Israel."

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 affirmed.

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 personal privacy".

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. Citations omitted.)

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 telemarketing practices.

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 District Court.

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 web page titled "Telemarketing Complaints".

Publication Schedule
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.)

The Supreme Court is in recess. (It will return on January 12, 2004.)

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 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 Location: 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 notice [PDF].

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 Vitter12/17. 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, Roll Call No. 321. See also, story titled "House Rejects Coble Amendment on USPTO Funding", June 25, 2000, and story titled "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 release.

12/17. The Direct Marketing Association (DMA) announced that Robert Wientzen, its P/CEO since 1996, will retire on July 1, 2004. The DMA is searching for a successor.

More News

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". See, DOJ 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 release 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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