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January 19, 2004, 9:00 AM ET, Alert No. 818.
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House Democrats Criticize Bush Administration on Cyber Security and Use of IT

1/16. The Democrats on the House Homeland Security Committee released a report [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."

See, 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 National Science 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 cybersecurity efforts.

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 Security".

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 CoxRep. 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 security."

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.

Rep. Jim TurnerRep. 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 release [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 homeland."

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 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 "" 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 to market the West Legal Directory.

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 Report

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 activity."

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 consideration of HR 2673, 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, Republican Whip Notice.

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 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).

4:00 PM. 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 Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

Thursday, Jan. 22
8:30 AM - 6:00 PM. The Catholic University School of Law and the Federal Communications Commission (FCC) will host a one day conference titled "The Journey to Convergence". Advance registration is required. See, conference web site. Location: Columbus School of Law, The Catholic University of America, 3600 John McCormack Rd., NE.

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), Lee 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 or Pam Slipakoff at 202 418-7705 or 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 its Notice of Proposed Rulemaking [35 pages in PDF] regarding unlicensed devices. See, notice 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 NPRM [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 order [PDF] extending the deadline from January 9 to January 23.

Bush Gives Judge Pickering a Recess Appointment

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 release.

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.

More News

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 Goodlatte1/16. 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 opinion [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, story 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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