|House Democrats Criticize Bush
Administration on Cyber Security and Use of IT
1/16. The Democrats on the House
Homeland Security Committee released a
[18 pages in PDF] titled "America At Risk: The State of Homeland Security: Initial
Findings". While the report criticizes the Bush administration across all areas
of homeland security, it levels numerous accusations related to information technology
vulnerabilities and problems.
The report asserts that "the United States remains vulnerable to terrorist
attack". It continues that "The men and women who patrol our borders, inspect
cargo at our ports, analyze intelligence, and respond to emergencies, are
setting the standards for excellence, but they are not receiving the leadership
or support they deserve. Although the Department of Homeland Security (DHS) has
been in existence for almost a year, our national homeland security efforts
continue to be woefully inadequate."
The report offers several allegations regarding Bush administration failures
in the area of cyber security. First, it states that "In the December 2003
``Computer Security Report Card´´ issued by the House Committee on Government Reform,
eight of the agencies surveyed, including DHS, received an ``F´´ on the security of
their own computer network systems."
grade card [1 pages in PDF] titled "Federal Computer Security Report Card"
and the House Government Reform Committee's
web page on this issue.
Second, it states that "In February 2002, the Administration released a
``National Strategy to Secure Cyberspace´´, setting forth five cybersecurity
priority areas, including the development of a cybersecurity response team, a
threat and vulnerability reduction program, and awareness and training programs,
as well as plans for securing government computers and developing national security
and international cooperation. Implementation of the plan has been delayed for nearly
a year and two Presidential advisors on cybersecurity have left the government, one
after only two months."
Third, it states that "In addition to losing its top cybersecurity officials,
the Administration has dismantled the Critical Infrastructure Board. The top
cybersecurity position in the government is now the Director of the National Cyber
Security Division, buried deep within DHS. There is no longer a Presidential advisor
or senior official with the authority to direct all the agencies responsible for
cybersecurity should a cyber-crisis occur."
Finally, it states that "To ensure that the United States is better prepared
to prevent and combat
terrorist attacks on private and government computers, Congress enacted the
Cybersecurity Research and Development Act of 2002 which authorized $903 million
in research and development funds over five years to the
Foundation (NSF) and the NIST. For FY04, the Act specified $100.25 million for
NSF. Yet, the President's FY04 budget only requested $35 million for the NSF's
The Democrats' report then addressed, and repeated statements contained
in, a pair of reports prepared by the Markle
Foundation, including a
report [171 pages
in PDF] released last month titled "Creating a Trusted Network for Homeland
The Democrats' report states that "The Markle Foundation reports concluded
that the Administration's failure to formulate a policy framework to assess both the
privacy implications of using new technologies and the value of gathering
information available in the private sector has limited the effective use of
information in the war against terror."
The Democrats' report continues that "Because of this failure, efforts to use
new technologies and collect and analyze information ``have been met with outcries
of invasion of privacy and repeatedly shut down,´´ according to the Markle Foundation.
The Democrats' report cites as examples the Total
Information Awareness (TIA) program of the Defense
Advanced Research Projects Agency (DARPA), and the Computer Assisted Passenger
Prescreening System (CAPPS) II program. See, stories titled "President Signs
Defense Appropriations Bill, With Total Information Awareness Ban" and
"Homeland Security Appropriations Bill Purports to Restrict Use of Funds
for CAPPS II", both published in
TLJ Daily E-Mail
Alert No. 751, October 2, 2003.
The Democrats' report then contains a section that criticizes the Bush
administration's failure to make use of new technologies. It states that "While
Secretary Ridge has claimed that the
administration is using new technologies, a restructured homeland security
organization, and streamlined processes to make the nation significantly more
secure, criticism of the Administration's ineffective use of information
technology to improve homeland security is nearly universal". The Democrats'
report cites two sources for this conclusion -- the Markle Foundation, and the
December 2002 Congressional Joint Inquiry into Intelligence Community Activities
Before and After the Terrorist Attacks of September 11, 2001.
The Democrat's report also contends that "Management
of IT within the DHS is unstable", citing the high rate of turnover for the
Chief Information Officers of its divisions.
The Democrats' report also claims that "The
Administration is failing to use IT effectively on mission-critical projects,
including information sharing and integrating disparate terrorist watch lists".
It adds that "While the technology to integrate separate terrorist watch lists
is widely available and implementation should take no more than 6-12 months, the
Administration, two-and-a-half years after 9/11, has yet to integrate data from
separate lists into an integrated and robust terrorist watch list and database."
Rep. Chris Cox (R-CA), the Chairman of the
Committee, issued two releases criticizing the Democrats' report. He stated that
"substituting rhetoric for responsible oversight will ultimately harm America's
Rep. Cox asserted that the report is "unacceptable amateurism", and that
"The Minority owes a duty to every American to
recognize that the Administration has a comprehensive and coherent strategy that
addresses each of the homeland security areas mentioned in their memo".
"The Democrats apparently couldn't wait to kick-off the political season with cynical
rhetoric designed to scare people about the security of our nation, and I find
that appalling," said Rep. Cox.
Jim Turner (D-TX) (at left) is the ranking Democrat on the Committee. He has
announced that he will not seek re-election.
He stated in a
[PDF] that "These findings identify the
security gaps our country continues to face and reveals major shortcomings in
the Administration's homeland security efforts ... In conducting oversight for
almost a year now, our Committee members are deeply concerned that our
government is not taking strong and swift enough action to protect the
This release also states that a
final report will be released next month. It will include "specific
proposals outlining recommendations to close these security gaps".
Rep. Zoe Lofgren
(D-CA) is the ranking Democrat on the Subcommittee on Cybersecurity, Science and
Research and Development.
|6th Circuit Rules in Trademark Dispute
Involving Term LawOffice
1/14. The U.S. Court of Appeals
(6thCir) issued its
opinion in DeGidio v. West Group, a trademark case involving
the term lawoffices.
Anthony DeGidio registered the domain name lawoffices.net. He operates a
web site at this domain that
contains some information about law offices, cyber law issues, and other
matters. He did not obtain a trademark registration for the term "lawoffices.net"
from either the U.S. Patent and Trademark Office
(USPTO) or the state of Ohio.
The West Group Corporation, The Thompson Corporation, and West Licensing
Corporation (defendants) use the domain name lawoffice.com to market the West
DeGidio filed a complaint in U.S.
District Court (NDOhio) against the defendants alleging:
1. violations of the Ohio Deceptive Trade Practices Act,
2. unauthorized use of trademark pursuant to Ohio law,
3. common law unfair competition,
4. false designation of origin under
15 U.S.C. § 1125(a),
5. federal trademark dilution,
6. common law dilution, and
7. the tort of misappropriation.
The District Court ruled on cross motions for summary judgment that the term
lawoffices is not a protectible mark because it is descriptive and has not
acquired a secondary meaning. The Court dismissed all
claims. This appeal followed.
The Court of Appeals
affirmed. Like the District Court, it concluded that DeGidio's mark is descriptive and
that it has not acquired secondary meaning.
The Appeals Court reasoned that the Lanham Act offers protection against
infringement of both registered and unregistered marks. But, for unregistered
marks to receive protection, they must be distinctive. However, the Appeals
Court concluded that the term is merely descriptive.
The Appeals Court further wrote that secondary
meaning is used generally to indicate that a mark or dress has come through use
to be uniquely associated with a specific source. The claimant must show that a
mark has acquired secondary meaning, through such evidence as consumer surveys;
exclusivity, length and manner of use; amount and
manner of advertising; amount of sales and number of customers; established
place in the market; and proof of intentional copying. The Appeals Court held
that DeGidio failed to meet this burden.
This case is Anthony DeGidio v. West Group Corporation; The Thomson
Corporatioin; West Licensing Corporation, U.S. Court of Appeals for the 6th
Circuit, No. 02-3739, an appeal from the U.S. District Court for the Northern
District of Ohio at Toledo, D.C. No. 99-07510, Judge David Katz presiding.
|Governments and Microsoft File Joint Status
1/16. The Department of Justice, state plaintiffs, and Microsoft filed with
the U.S. District Court (DC) their "Joint Status Report on
Microsoft's Compliance with the Final Judgments".
The District Court issued an
Order [PDF] on May 14,
2003 in the governments' antitrust cases against Microsoft requiring the filing
of status reports every six months. This report must include "a general
description of Microsoft's compliance efforts,
keyed to the requirements in the Final Judgment, including the timelines of the
compliance and the extent of compliance", "a general description by each
Plaintiff or Plaintiff group of its efforts to monitor Microsoft’s compliance
with the Final Judgments", and "a description of the type of complaints received
by Microsoft, Plaintiffs, and the Technical Committee or any other enforcement
entities in the prior six months".
At the October 24, 2003 status conference, the District Court directed the
plaintiffs to file the second six month status report on January 16, 2004.
The plaintiffs begin by stating that "At the October 24, 2003 Status
Conference, Plaintiffs informed the Court that they continued to investigate and
evaluate Microsoft's compliance with Section III.E of the Final Judgments. Since
that time, Plaintiffs have gathered information to evaluate whether the current
Microsoft Communications Protocol Program ("MCPP") licensees will further the
remedial goals of Section III.E. This process has included interviewing most of
these licensees and, in some cases, issuing compulsory process for documents and
other information. In addition, Plaintiffs have interviewed a number of
companies that considered the MCPP but have not yet signed a license. The
Technical Committee ("TC") members have participated in and assisted with this
The plaintiffs continue that they "are concerned that the current licensing
program has thus far fallen short of satisfying fully the goals of Section III.E.
Plaintiffs' investigation has revealed that additional work still needs to be
done to develop and improve the MCPP. Plaintiffs have recently communicated to
Microsoft a number of suggested improvements in the Microsoft licensing program
and Plaintiffs understand that Microsoft is in the process of making additional
changes in response to Plaintiffs' comments."
The plaintiffs added that they will update the District Court at the next
status conference on their discussions with Microsoft and Microsoft's recent
activities. The District Court will hold a status conference at 10:00 AM on
Friday, January 23, 2004 in Courtroom 11.
In a section of the status report written by Microsoft, Microsoft states that
it "has made full compliance with its obligations under the final judgments a
top priority of the company, and the company continues to devote substantial
resources to its compliance work. To that end, Microsoft is in constant
communication with the Plaintiffs in an effort to respond to their questions and
address any concerns they may present. With respect to Section III.E in
particular, Microsoft is in the process of making changes to its protocol
licensing program that are responsive to the suggestions Plaintiffs have made."
This pleading was filed in United States v. Microsoft, D.C. No.
98-1232 (CKK) and New York, et. al. v. Microsoft, D.C. No. 98-1232 (CKK),
Judge Colleen Kotelly presiding.
|DC Circuit Vacates Part of FCC Order
Regarding Fees Charges by LEC to Paging Carrier
1/16. The U.S. Court of Appeals (DCCir) issued its
opinion [10 pages in PDF] in Mountain Communications v. FCC, a
case regarding fees charged by a local exchange carrier (LEC) to a paging carrier. The
Court vacated in part and remanded.
Mountain Communications is a paging
carrier that operates in three local calling areas (Colorado Springs, Walsenburg, and
Pueblo) which are all located in one Local Access and Transport Area (LATA) in the
state of Colorado. Qwest is the local exchange carrier
in these calling areas.
Mountain uses a single point of interconnection (POI) with Qwest, in Pueblo.
Qwest sought to collect fees from Mountain for calls that
originated and terminated in one area (such as Colorado Springs), but went
through the POI in Pueblo. The Court also noted that while Qwest considers these
to be toll calls for Mountain, it does not charge its own customer -- the
caller -- for placing such calls.
That is, for example, if some in Colorado Springs pages someone
else in Colorado Springs who is a Mountain customer, the call goes from Colorado
Springs, to Pueblo, and back to Colorado Springs. Then, Qwest wants to charge
Mountain for a toll call.
Mountain filed a complaint with the FCC
challenging this type of fee, and another fee. The FCC dismissed the complaint, and this
petition for review followed.
The Court reasoned that
47 U.S.C. §
251(c)(2)(B) provides that LECs must provide interconnection facilities with
other carriers "at any technically feasible point within the [incumbent local
exchange] carrier's network". In addition, 47 C.F.R. § 51.703(b) provides that
LECs "may not assess charges on any other telecommunications carrier for
telecommunications traffic that originates on the LEC’s network".
Moreover, the Court wrote that the FCC
conclusion in this proceeding was inconsistent with TSR Wireless, LLC
v. US West Communications, Inc., 15 FCCR 11166 (2000).
The Court of Appeals ruled that the
FCC's decision regarding the first issue was arbitrary and capricious, and
therefore vacated in part and remanded.
Judge Silberman, who wrote the opinion, went beyond merely
vacating the order. He wrote that "We are befuddled at the Commission's efforts
to explain away its TSR decision; the facts seem --
and are conceded to be -- identical, but the results are opposite." He added
that the FCC "changed direction without explanation, indeed without even
acknowledging the change." Moreover, the FCC "has not even tried to
explain how its position can be reconciled with the statutory provision, 47
U.S.C. § 251(c)(2)(B)". Hence, he wrote that the Court can "rather easily
conclude" that the FCC was arbitrary and capricious.
This case is Mountain Communications, Inc. v. FCC and USA, respondents,
T-Mobile USA, Inc., et al., No. 02-1255, intervenors, a petition for
review of a final order of the FCC.
|Washington Tech Calendar
New items are highlighted in red.
|Monday, January 19
The House is in adjournment. (It will convene on January 20, 2004.)
The Senate is in adjournment. (It will convene on January 20, 2004.)
Martin Luther King Day. The Federal Communications Commission (FCC) and
other federal agencies will be closed.
Iowa Presidential Caucuses.
|Tuesday, January 20
The House will return from recess. It will meet at 12:00 NOON for
legislative business. See,
Republican Whip Notice.
The Senate will return from recess. It will resume
the omnibus appropriations bill for Fiscal Year 2004.
9:30 AM - 5:00 PM. The
Federal Communications Commission's (FCC)
Federal Advisory Committee on Diversity for Communications in the Digital
Age's Financial Subcommittee will hold a meeting. The meeting will address
"regulatory initiatives and the availability and access to capital for women
and minorities in the telecommunications industry". See, FCC
notice. Location: FCC, Commission Meeting Room, 445 12th St., SW.
9:00 PM. The House and Senate will meet in joint
session for the President's State of the Union address.
|Wednesday, January 21
The House will meet at 10:00 AM for
legislative business. It will consider several non technology related items
under suspension of the rules. See,
12:00 NOON - 1:45 PM. The AEI-Brookings Joint Center
for Regulatory Studies will host a panel discussion titled "What's Right and
What's Wrong with Corporate Finance Governance in the U.S. Today?". The
speakers will be Robert Hahn (AEI-Brookings),
Randall Kroszner (University
of Chicago), Paul
Atkins (SEC Commissioner), and
Steven Kaplan (University
of Chicago). See,
notice. Location: American Enterprise
Institute, Twelfth floor, 1150 17th St., NW.
12:00 NOON. The
Federal Communications Bar Association's (FCBA)
Transactional Practice Committee will host a brown bag lunch. The topic will be
contract enforceability and dispute resolution provisions, including arbitration
versus judicial resolution, choice of law, and choice of forum. For more information,
contact Laurie Sherman at
email@example.com or 703 216-3150. Location: Skadden Arps, 1440
New York Ave., 11th floor.
1:00 - 3:00 PM. The
Federal Communications Commission's (FCC)
Wireless Telecommunications Bureau (WTB)
will hold a seminar on "Filing Spectrum Leasing Applications and
Notifications". Location: FCC, 445 12th Street, SW, Room TW-C305
(Commission Meeting Room).
Rebecca Eisenberg (University of Michigan Law School) will present a paper
at an event sponsored by the Dean Dinwoodey Center for Intellectual Property
Studies. For more information, contact
Robert Brauneis at
202 994-6138 or firstname.lastname@example.org. Location:
George Washington University Law School, Faculty
Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.
|Friday, January 23
10:00 AM - 3:00 PM. The
Federal Communications Commission's (FCC)
Technological Advisory Council will meet. See,
notice in the Federal Register, December 19, 2003, Vol. 68, No. 244, at
Pages 70796 - 70797. Location: FCC, 445 12th St., SW, Room TW-C305.
10:00 AM. The
U.S. District Court (DC)
will hold a status conference in United States v. Microsoft,
D.C. No. 98-1232 (CKK) and New York, et. al. v. Microsoft,
D.C. No. 98-1232 (CKK), Judge Colleen Kotelly presiding.
Location: Courtroom 11.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown
bag lunch. The topic will be "Hot Communications Issues on the Hill". The
speakers will be Neil Fried (Republican Counsel,
House Commerce Committee), Gregg Rothschild (Democratic Counsel, House Commerce Committee),
Carosi (Republican Counsel,
Senate Commerce Committee), and Paul Nagle (Attorney-Advisor, FCC Office
of Legislative Affairs). For more information, contact Jason Friedrich at 202
354-1340 or email@example.com
or Pam Slipakoff at 202 418-7705 or
firstname.lastname@example.org. Location: Drinker Biddle & Reath,
1500 K Street, 11th Floor.
Deadline to submit reply comments to the
Office of the U.S. Trade Representative (USTR)
regarding the operation and effectiveness of, and the implementation of and compliance
with, the World Trade Organization (WTO) Basic Telecommunications Agreement, other WTO
agreements affecting market opportunities for U.S. telecommunications products and
services, the telecommunications provisions of the North American Free Trade
Agreement (NAFTA), Chile FTA and Singapore FTA, and other telecommunications
trade agreements. See,
notice in the Federal Register, December 8, 2003, Vol. 68, No. 235, at Pages
68444 - 68445.
Extended deadline to submit comments to the
Federal Communications Commission (FCC) in response to
of Proposed Rulemaking [35 pages in PDF] regarding unlicensed devices. See,
in the Federal Register, December 10, 2003, Vol. 68, No. 237, at Pages 68823 -
68831. The FCC adopted this NPRM on September 10, 2003. See, FCC
release [PDF]. The FCC released the
[35 pages in PDF] on September 17, 2003. This NPRM is FCC 03-223 in ET Docket No. 03-201.
See also, stories titled "FCC Announces NPRM Regarding Unlicensed Devices" in
TLJ Daily E-Mail Alert No.
739, September 15, 2003, and "FCC Announces Deadlines for Comments on Unlicensed
Devices NPRM" in TLJ Daily E-Mail Alert No. 800, December 16, 2003. See also, FCC
[PDF] extending the deadline from January 9 to January 23.
|Bush Gives Judge Pickering a Recess
1/16. President Bush made a recess appointment of Judge Charles Pickering
to the U.S. Court of Appeals for the 5th
Circuit. He is currently a U.S. District Court Judge in Mississippi. He is one of several
nominees being filibustered by Senate Democrats.
President Bush argued in a
statement that "For the past two and a half years, Judge Pickering has
been waiting for an up-or-down vote in the Senate. A bipartisan majority of
Senators supports his confirmation, and if he were given a vote, he would be
confirmed. But a minority
of Democratic Senators has been using unprecedented obstructionist tactics to
prevent him and other qualified individuals from receiving up-or-down votes.
Their tactics are inconsistent with the Senate's constitutional responsibility
and are hurting our judicial system."
The Constitution gives the President the authority to make recess
appointments. It provides that "The President shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session." The first
session of the 108th Congress ended in December. The second session of the 108th
Congress begins on January 20.
Recess appointments of federal judges are rare. However, former President
Clinton gave a recess appointment in December of 2000 to Roger Gregory to
serve on the U.S. Court of Appeals for
the 4th Circuit. President Bush later nominated Gregory, and the Senate
confirmed him in 2001. Clinton also gave a recess appointment to former
Federal Communications Commission (FCC)
Susan Ness in December of 2000.
|More People and Appointments
1/16. Leon Jackler was named Legal Advisor to the Chief of the
Federal Communications Commission's (FCC)
Consumer & Governmental Affairs Bureau (CGB).
The FCC stated in a
release [PDF] that he will "provide legal and policy counsel to the Bureau
Chief and senior staff on wireless, technology, and international matters." He
was previously a staff attorney in the
Wireless Telecommunications Bureau (WTB).
1/16. Andrew Bailey was name Deputy Chief Accountant for the
Securities and Exchange Commission (SEC). The
SEC stated in a release
that he "will share with Scott A. Taub, current Deputy Chief Accountant,
responsibilities for the day-to-day operations of the Office of the Chief
Accountant, including resolution of accounting and auditing issues, rulemaking
projects, and oversight of private sector standard-setting efforts and
regulation of auditors. Bailey will work closely with the Public Company
Accounting Oversight Board on all auditing-related matters." The SEC's Chief
Accountant remains Donald Nicolaisen. Bailey was previously a professor
of accounting at the University of Illinois at Urbana-Champaign.
1/15. Texas Instrument's (TI) Board of
Directors selected Richard Templeton to be P/CEO of TI, effective May 1.
Tom Engibous, the current P/CEO, will remain as Chairman. Templeton
currently is TI's chief operating officer. See, TI
1/16. Cristin Flynn was named BellSouth's director national security
emergency preparedness, effective January 20. She replaces Shawn Cochran
who has been activated for military service in the Middle East.
1/16. The General Accounting Office (GAO)
released a report [55 pages
in PDF] titled "World Trade Organization: Cancun Ministerial Fails to Move
Global Trade Negotiations Forward; Next Steps Uncertain". The report was
prepared for Sen. Charles Grassley (R-IA),
the Chairman of the Senate Finance Committee, and
Rep. Bill Thomas (R-CA), the Chairman
of the House Ways and Means Committee.
1/16. The Federal Communications Commission
(FCC) published a
notice in the Federal Register stating that it has renewed the
charter for the
Network Reliability and Interoperability Council
through December 29, 2005. See, Federal Register, January 16, 2004, Vol. 69, No.
11, at Page 2597.
Rep. Bob Goodlatte (R-VA) (at
right), who is a
member of the House Judiciary Committee
and a Co-Chair of the Congressional Internet Caucus, issued a statement regarding the
Supreme Court's January 13
[22 pages in PDF] in Verizon v. Trinko. The Supreme
Court held that a claim alleging a breach of an ILEC's duty under the 1996
Telecom Act to share its network with competitors does not state a violation of
Section 2 of the Sherman Act. See,
titled "Supreme Court Holds That There is No Sherman Act Claim in Verizon v.
Trinko", also published in TLJ Daily E-Mail Alert No. 815, January 14, 2003.
Rep. Goodlatte stated that "The recent Supreme Court ruling in the Trinko case
protects the integrity of both the nation's antitrust laws and the Telecommunications
Act of 1996. It will likely prevent frivolous
lawsuits in this industry and thus free up resources that can be used by both
incumbent and local exchange carriers to invest in new technologies and reduce
costs for their customers."
1/16. The National Institute of Standards and
Technology's (NIST) Computer Security
Division released its final version of its
document [148 pages in PDF] numbered Special Publication (SP) 800-61, and
titled "Computer Security Incident Handling Guide". It states that
"Computer security incident response has become an important component of
information technology (IT) programs. Security-related threats have become not
only more numerous and diverse but also more damaging and disruptive. New types
of security-related incidents emerge frequently. Preventative activities based
on the results of risk assessments can lower the number of incidents, but not
all incidents can be prevented. An incident response capability is therefore
necessary for rapidly detecting incidents, minimizing loss and destruction,
mitigating the weaknesses that were exploited, and restoring computing services.
To that end, this publication provides guidelines for incident handling,
particularly for analyzing incident-related data and determining the appropriate
response to each incident. The guidelines can be followed independently of
particular hardware platforms, operating systems, protocols, or applications."
It was written by Tim Grance, Karen Kent, and Brian Kim.
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