|House Science Committee Holds Hearing on
Visa Delays for Alien Scientists
2/25. The House Science
Committee held a hearing titled "The Conflict Between Science and Security
in Visa Policy: Status and Next Steps".
Rep. Sherwood Boehlert (R-NY),
the Chairman of the Committee, wrote in his
opening statement that "Our nation will not be secure, in the long run, if
it does not have a healthy scientific enterprise, and science cannot thrive in
an atmosphere of insecurity. But security and science are also complementary in
more practical ways that must be kept in mind when reviewing visa policy. A visa
regime that casts too wide a net - that holds up just about everybody for
excessive security checks -- that regime is not good for security or for
Rep. Zoe Lofgren
(D-CA), a member of the Committee who represents a Silicon Valley district,
stated in a release that "Americans must keep our doors open to innovation and
new ideas. The work of foreign students and the collaboration with their
American born colleagues has not only created scientific discoveries and
technological advancements for our country, but it has resulted in job creation
that our economy so desperately needs. The visa system should incorporate
enhanced security checks that do not create unnecessary or burdensome
bureaucracies that will only further damage our scientific leadership and image
throughout the world."
The Committee also released its
charter [11 pages in PDF], which contains a detailed summary of the issue.
Jess Ford of the General Accounting Office
(GAO) presented written
testimony [15 pages in PDF] titled "Border Security:
Improvements Needed to Reduce Time Taken to Adjudicate Visas for Science
Students and Scholars".
Ford explained the visa process. "Citizens of other countries
seeking to enter the United States
temporarily for study, exchanges, business, tourism, and other reasons generally
must apply for and obtain a U.S. travel document, called a nonimmigrant visa, at
U.S. embassies or consulates abroad before arriving at U.S. ports of entry.
Since September 11, 2001, visa operations have played an increasingly important
role in ensuring our country’s national security. In deciding who should and
should not receive a visa, consular officers must balance the need to facilitate
legitimate travel with the need to protect the United States against persons
whose entry could be harmful to U.S. national interests."
Ford continued that "As part of the visa application process, many
applicants with a science background, including students and scholars, must undergo
an interagency security check, known as Visas Mantis, before being issued or denied
a visa. A Visas Mantis check is required by the State Department (State), the Federal
Bureau of Investigation (FBI), and other interested Washington agencies when
there are potential concerns that the visa applicant may engage in the illegal
transfer of sensitive technology, which could undermine U. S. national
The GAO found that the State Department "cannot readily identify
the time it takes for a science student or scholar to obtain a visa."
However, the GAO conducted a random sample of Visas Mantis cases
for science students and scholars, and found that "it took an average of 67 days
for the security check to be processed and for State to notify the post". The
GAO also visited posts in China, India, and Russia, and found that "many Visas
Mantis cases had been pending 60 days or more."
The GAO recommended that "the Secretary of State, in
coordination with the Director of the FBI and the Secretary of Homeland
Security, develop and implement a plan to improve the Visas Mantis process in
order to avoid unnecessary delays in visa issuance."
Janice Jacobs, the Assistant Secretary for the Office of Consular Affairs at
the Department of State (DOS), wrote in her
testimony that "One of the highest foreign policy and national security
priorities of the United States is preventing the spread of nuclear, biological,
and chemical weapons, their delivery systems and advanced conventional weapons.
The Visas Mantis program, designed to address technology transfer and
nonproliferation concerns, is an effective tool for U.S. government agencies to
prevent entry into the U.S. of foreign nationals to gain controlled goods,
technology and sensitive information in violation of US export laws."
She acknowledged that "The business, academic, and scientific communities
have expressed concern that delays in Mantis process result in disruptions to
on-going research and commercial activities", but stated that the DOS has made a
number of changes to increase efficiency.
prepared testimony of Asa Hutchinson, the Under
Secretary for Border and Transportation Security, DHS, and
prepared testimony [9 pages in PDF] of Robert Garrity of the FBI.
The Committee did not hear testimony at this hearing from representatives of
industry or universities that are affected by visa delays.
|Senate Commerce Committee Holds Hearing On
2/24. The Senate Commerce
Committee held a hearing on voice over internet protocol (VOIP). FCC
Chairman Powell advocated non-regulation of the internet, with exceptions for
CALEA surveillance, E911, universal service subsidies, and disabled access.
Sen. John McCain (R-AZ), the Chairman
of the Committee, wrote in his
opening statement that "we continue to regulate the telecommunications
industry under the confines of an outdated statutory regime that has been
rendered largely obsolete by technology. VOIP is a case in point: the FCC is
forced to shoehorn a newly emerging technology into Congress's 1996 vision of
communications regulation, and to classify as either fish or fowl that which may
Sen. Lamar Alexander (R-TN) wrote
prepared testimony for the Committee that "Historically, state and local
governments have shared the responsibility in the regulation of the telephone
industry. This shared responsibility has given states a major say in how service
is provided in their states, the provision of emergency services, and the
provision of services to low income and rural customers. As the FCC considers
how this industry is to be regulated – and Chairman Powell has already indicated
that he supports minimal regulation of VOIP technologies – we must recognize
that state and local governments have interests that must be preserved." He went
on to stress the importance of state and local taxation.
Federal Communications Commission (FCC)
Chairman Michael Powell
wrote in his
prepared testimony that "we should begin with the non-regulation of the
Internet as the first article of faith because limiting government intrusions --
both at the federal and state level -- maximizes the potential for innovation
and increases opportunity for the nation as a whole."
But, he said that there are exceptions; "we must remain committed to
universal service, law enforcement access, E911 capabilities, and access for
people with disabilities. And, we must effectively manage the transition from
the analog to an all digital world to ensure that Americans relying on
yesterday’s communications tools are not left behind."
He also wrote that "While Internet voice services offer great potential, they
are also extremely easy to establish abroad. If we do not create the proper
regulatory climate in the United States, it is quite possible our local calls
will be routed through Canada and Mexico at cheaper rates, rather than through
Kansas and Montana. We must adopt the right policies to foster investment,
innovation and competition."
Chairman Powell also gave a
speech in Lawrence, Kansas on Februay 23 titled "Rural Lands of Opportunity:
Broadband Deployment in America's Heartland".
prepared testimony of Jeffrey Citron (CH/CEO of
prepared testimony of Glenn Britt (Ch/CEO of Time Warner Cable),
prepared testimony of Glen Post (Ch/CEO of
prepared testimony of Stan Wise (President of the
National Association of Regulatory Utility
prepared testimony of Kevin Werbach
|Copps Wants an Expensive Broadband
2/25. Federal Communications Commission
(FCC) Commissioner Michael Copps gave a
speech [7 pages in PDF] in Washington DC titled "Disruptive Technology ... Disruptive
Regulation". He argued that the U.S. needs broadband deployment, that the market
alone cannot be relied upon to accomplish this, that
a "broadband regulatory regime" will be necessary, that the legislative
authority for this is Section 706, and that it will be expensive.
I'm talking about is expensive," said Copps (at left).
He stated that "the question here is this: how do we get
infrastructure deployment done?" He answered that "given the scale of the
challenge, given the difficult economics of rural areas, and given the rapidity
with which other counties are building out their own broadband networks, we
would be remiss if we didn’t ask whether the market alone can get the whole job
He stated that voice over IP (VOIP) is "another wake-up call
that a national broadband policy is needed".
He then referenced the FCC's decisions of February 12, 2004. He stated
that "Our actions in the Pulver decision and the IP-Enabled Services
rulemaking week before last garnered a lot of
attention. But for Voice Over to be truly transformative and disruptive --
rather than just being a marginal change that doesn't shake the system -- we
need ubiquitous broadband deployment. We shouldn’t be debating this technology
in terms of how it can help us to game the system or to create yet another
generation of arbitrage maneuvering."
On February 12, the FCC adopted a Declaratory Ruling (DR)
on Pulver.com's petition for declaratory ruling
regarding the classification of its Free World
Dialup (FWD) service. The FCC concluded that FWD is not telecommunications
as defined by the Act, that FWD is not telecommunications service as defined by
the Act, and that FWD is an information service as defined by the Act. See,
titled "FCC Rules Pulver's FWD Is Not
Telecommunications, Is Not Telecommunications Service, and Is Information
Service" also published in TLJ Daily E-Mail Alert No. 836, February 13, 2003.
The FCC also adopted a notice of proposed rulemaking (NPRM) regarding
regulation of internet protocol services, including voice over internet protocol
(VOIP). See, story titled "FCC Adopts NPRM Regarding Regulation of Internet
Protocol Services" in TLJ Daily E-Mail Alert No. 837, February 16, 2004.
Copps continued that "Part of this thinking must focus on whether we believe
that market forces alone -- practically and not just theoretically -- will
blanket this land with broadband. And, yes, that means we have to struggle with
universal service rather than say it doesn't matter anymore in our brave new
He then addressed where the FCC might find statutory authority
for a broadband regulatory regime. He said "I believe we have a statutory
obligation here. Section 706 of the Telecommunications Act directs the
Commission to encourage the deployment of advanced telecommunications capability
-- broadband -- to all Americans. If the Commission finds that this is not being
accomplished in a reasonable and timely fashion, Congress directs us to take
action to accelerate such deployment. In fact, Congress directs us to take
Section 706 of the Telecommunications Act of 1996 (which is codified in the
notes to 47
U.S.C. § 157) provides, in part, that "The Commission and each State commission
with regulatory jurisdiction over telecommunications services shall encourage the
deployment on a reasonable and timely basis of advanced telecommunications
capability to all Americans (including, in particular, elementary and secondary
schools and classrooms) by utilizing, in a manner consistent with the public
interest, convenience, and necessity, price cap regulation, regulatory
forbearance, measures that promote competition in the local telecommunications
market, or other regulating methods that remove barriers to infrastructure
investment." (Parentheses in original.)
Section 706 further provides, in part, that "The Commission shall,
within 30 months after the date of
enactment of this Act, and regularly thereafter, initiate a notice of inquiry concerning
the availability of advanced telecommunications capability to all Americans (including, in
particular, elementary and secondary schools and classrooms) and shall complete the
inquiry within 180 days after its initiation. In the inquiry, the Commission shall
determine whether advanced telecommunications capability is being deployed to all
Americans in a reasonable and timely fashion. If the Commission's determination is
negative, it shall take immediate action to accelerate deployment of such capability by
removing barriers to infrastructure investment and by promoting competition in the
telecommunications market." (Parentheses in original.)
Copps next addressed intercarrier compensation. He said that "Our
intercarrier compensation system is Byzantine and broken. We have in place today
a system under which the amounts and direction of payments vary depending on
whether carriers route traffic to an incumbent local provider, a competitive
local provider, a long-distance provider, an Internet provider, a CMRS carrier
or a paging provider. In an era of convergence of markets and technologies, this
patchwork of rates should have been consigned by now to the realm of historical
curiosity. Certainly no one should be surprised that with new technologies in
the mix, carriers are disputing when and where charges apply."
"We have a two-year old proceeding on intercarrier compensation.
We need to act on it", said Copps.
He concluded that "Going forward, then, we need to develop a real national plan for
broadband deployment. Over the long-term, the debate over what is
``telecommunications´´ or ``telecommunications services´´ or ``information services´´ cannot
be the single-minded focus of our broadband dialogue. Think about it: we have all
spent the better part of the last two years classifying, reclassifying and declassifying.
What do we have to show for it? We're all exhausted, that’s for sure. We're in free-fall
when compared with broadband penetration in other nations."
|House Commerce Subcommittee Approves
Alternative Database Bill
2/25. The House Commerce
Committee's Subcommittee on Commerce, Trade, and Consumer Protection approved
HR __, the "Consumer Access to Information Act of 2004".
The Subcommittee approved a "Committee Print". A bill has not yet been
formally introduced. The print has no number or sponsor at this time.
Rep. Cliff Stearns (R-FL), the
Chairman of the Subcommittee, presided at the mark up. He stated that the
passage of this print does not preclude Commerce Committee consideration of
which the House Judiciary Committee amended and approved on January 21, 2004.
The Commerce Committee has a sequential referral that expires on March 12,
Stearns (at right) also stated that "This legislation prohibits the
misappropriation of databases while preserving unfettered consumer access to
The Commerce Committee print is a brief item that would give the
Federal Trade Commission (FTC) a very limited
authority to initiate a civil enforcement action, under the general prohibition of
unfair and deceptive trade practices in interstate commerce, against certain
misappropriators of hot news data.
It is unlikely that there is anyone who actually wants the FTC to
bring this sort of action. Rather, this is part of a legislative strategy to
derail the Judiciary Committee bill, HR 3261. Moreover, a very similar strategy
was employed during the 106th Congress to derail another database bill that had
been approved by the Judiciary Committee. The full
House took no action.
Summary of the Commerce Committee Print. The print is short and
simple. Section 1 provides that the title of the bill is the "Consumer Access to
Information Act of 2004".
Section 2 provides that "The misappropriation of a database is an unfair
method of competition and an unfair or deceptive act or practice in commerce
under section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1))."
It then provides a definitional section that defines the class of
misappropriations that are violations of the Federal Trade Commission Act (FTCA).
It provides that "the term
``misappropriation of a database´´ means that--
(1) a person (referred to in this section as the ``first
person´´) generates or collects the information in the database at some cost or
(2) the value of the information is highly time-sensitive;
(3) another person's (referred to in this section as the ``other
person´´) use of the information constitutes free-riding on the first person’s
costly efforts to generate or collect it;
(4) the other person’s use of the information is in direct
competition with a product or service offered by the first person; and
(5) the ability of other parties to free-ride on the efforts of
the first person would so reduce the incentive to produce the product or service
that its existence or quality would be substantially threatened."
This test is based upon the holding of the
U.S. Court of Appeals (2ndCir) in
National Basketball Association
v. Motorola. The National Basketball Association (NBA) filed suit against
Motorola over its sale of handheld pagers that provided NBA scores while games
were in progress. The District Court entered an injunction that prohibited the
transmission of these scores.
On appeal, Judge Ralph Winter wrote that "The crux of the dispute
concerns the extent to which a state law ``hot-news´´ misappropriation claim
based on International News Service v. Associated Press,
248 U.S. 215 (1918) (``INS´´), survives preemption by the federal
Copyright Act and whether the NBA's claim fits within the surviving INS-type
claims. We hold that a narrow ``hot-news´´ exception does survive preemption.
However, we also hold that appellants' transmission of ``real-time´´ NBA game
scores and information tabulated from television and radio broadcasts of games
in progress does not constitute a misappropriation of ``hot news´´ that is the
property of the NBA."
The Commerce Committee print essentially gives the FTC authority to bring
actions under the FTCA that also constitute misappropriation of hot news within
the holding of NBA v. Motorola.
Section 3 of the Commerce Committee print provides an exemption for ISPs.
It provides that "No provider of an interactive computer service shall be
liable under section 2 for making available information that is provided by another
information content provider."
Finally, Section 4 of the Commerce Committee print provides that the only remedy for
misappropriation, within the meaning of Section 2 of the bill, is a civil action
by the FTC. The bill provides that "A misappropriation of a database under
section 2 shall be treated as a violation of a rule defining an unfair or
deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal
Trade Commission Act (15 U.S.C. 57a(a)(1)(B))."
It adds that the "Federal Trade Commission shall enforce this
Act in the same manner, by the same means, and with the same jurisdiction,
powers, and duties as though all applicable terms and provisions of the Federal
Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a
part of this Act."
Notably, this committee print neither creates a new cause of action for database
developers or owners, nor preempts any existing remedies. The bill simply
provides that the FTC may take action against a database misappropriator, as
defined by the bill.
The bill thus provides minimal protection for developers of one a small
subset of all databases.
Legislative Strategy. Heretofore the FTC's role in intellectual
property has been very limited, and
almost entirely restricted to enforcement of antitrust laws, as for example, in
its recent administrative action against Rambus. It has not enforced property
rights in intellectual, or quasi intellectual, property. Civil enforcement has
been a matter for private lawsuits. Criminal enforcement has been given to the
Department of Justice (DOJ) and state prosecutorial entities. Moreover, the FTC
has no criminal enforcement authority.
But then, this committee print likely has been passed, not because any database owners
want to see it become law, or even because any database consumers or copiers
want to see it enacted. Rather, it has likely been offered and passed as part of
a legislative strategy to prevent another database protection bill, HR 3261,
from becoming law.
There are Commerce Committee members, and constituent groups of the Commerce
Committee, who have long sought to prevent a meaningful database protection bill
from becoming law. In contrast, many Judiciary Committee members, and
constituent groups of the Judiciary Committee, have long sought a database
protection bill. See, TLJ
titled "House Commerce and Judiciary Committees Vie for High Tech Leadership",
June 15, 1999.
The Judiciary Committee activity has been, in part, a reaction to the 1991
opinion of the Supreme Court in Feist Publications, Inc. v. Rural
Telephone Service Co. and its progeny, including Warren Publishing, Inc.
v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997), Mid America Title
Co. v. Kirk, 59 F.3d 719 (7th Cir. 1995), and Skinder-Strauss Assocs. v.
Massachusetts Continuing Legal Edu., Inc., 914 F. Supp. 665 (D. Mass. 1995).
The Feist opinion , which is also reported at 499 U.S. 340, rejected
the "sweat of the brow" basis for protecting compilations of data under
copyright law, and held that some compilations of data are not protected under
copyright law. Feist involved telephone directories that collected and
arranged names and phone numbers. The Court reasoned that facts, such as phone
numbers, are not copyrightable, and that the compilation of names and numbers
lacked sufficient creativity to merit copyright protection.
One reason that the Commerce committee print gives authority to the FTC under
the FTCA is that the Commerce Committee has jurisdiction over the FTC and FTCA,
but not the intellectual property law, or the DOJ. It is a bill that has been
drafted to give the Commerce Committee sole jurisdiction.
The Commerce Committee did obtain a sequential referral of HR 3261 on
February 11; but, this is only a 30 day referral that expires on March 12. It
enables the Commerce Committee to delay the full House from considering the bill
for 30 days.
However, if the full Commerce Committee promptly were to pass the committee
print, then the House Rules Committee would be faced with requests from two
Committees for consideration of competing bills on the same subject. This is not
an enviable position for the Rules Committee, or the House leadership. They
would prefer to see the two Committees produce a joint product.
During the 106th Congress members of the Commerce Committee employed this
strategy. The Judiciary Committee passed a meaningful database protection bill,
the "Collections of Information Antipiracy Act". The Commerce Committee then
passed an illusory database protection bill,
the "Consumer and Investor Access to Information Act of 1999". It too gave token
authority to the FTC. The full House then took no further action.
At the beginning of the 107th Congress
Rep. Billy Tauzin (R-LA) and
Rep. James Sensenbrenner (R-WI), who had just become Chairmen of the
Commerce and Judiciary Committees, collaborated to reach a compromise bill. HR
3261 is the product of this process, and Rep. Tauzin and Rep. Sensenbrenner are
Now, at the very moment that Rep. Tauzin steps down as Chairman, the Commerce
Committee resumes the legislative strategy that it employed during the 106th
Congress, before Rep. Tauzin became Chairman.
Judiciary Committee Bill, HR 3261. On January 21, 2004, the House
Judiciary Committee amended and approved
HR 3261, the
"Database and Collections of Information Misappropriation Act" by a roll call
vote of 16-7. This bill codifies a cause of action for misappropriation of
certain databases. The Committee reported the bill on February 11. See, Report
story titled "House Judiciary Committee Approves Database Protection Bill",
also published in TLJ Daily E-Mail Alert No. 822, January 23, 2004.
The basic prohibition provides recourse in a wider range of
misappropriations. The key language, which is found in Section 3, provides that "Any person
who makes available in commerce to others a quantitatively substantial part of
the information in a database generated, gathered, or maintained by another
person, knowing that such making available in commerce is without the
authorization of that other person (including a successor in interest) or that
other person's licensee, when acting within the scope of its license, shall be
liable for the remedies set for in section 7 if (1) the database was generated,
gathered, or maintained through a substantial expenditure of financial resources
or time; (2) the unauthorized making available in commerce occurs in a time
sensitive manner and inflicts injury on the database or a product or service
offering access to multiple databases; and (3) the ability of other parties to
free ride on the efforts of the plaintiff would so reduce the incentive to
produce or make available the database or the product or service that its
existence or quality would be substantially threatened."
HR 3261 also provides a private right of action.
TLJ spoke with Rep. Rick Boucher
(D-VA). Rep. Boucher (at right) is a member of both the
Commerce Committee and the Judiciary Committee (as well as its Subcommittee on
Courts, the Internet and Intellectual Property). He has been a leading
opponent of database protection proposals coming from the Judiciary Committee.
He stated that while there may have been more support for stronger database
protection legislation in previous Congresses, there is only one active
proponent today -- Reed Elsevier. He
stated that many database
developers have realized that "more traditional remedies have proven successful",
such as remedies in copyright, contract, trespass to chattels, and the tort of
Rep. Boucher stated that there is not a single example of a database that
this "deserving of protection" that is not already adequately protected by an
In contrast, he stated that the Judiciary Committee bill is "broadly opposed"
by companies such as Yahoo and Bloomberg, by business groups such as the
of Commerce, and by library groups and universities.
He stated that "the vast majority of the Commerce Committee members do not
support" the Judiciary Committee bill. He added that he believes that "the
Subcommittee would have done exactly the same thing ... if Billy had remained as
Rep. Boucher stated that he would not be surprised to see the full Commerce
Committee approve the Commerce print unanimously, as early as next week. Then,
there would be two bills before the Rules Committee. Hypothetically, the Rules
Committee could send one bill to the floor, but not the other, or allow one bill
to be offered as an amendment to the other. However, he predicted that "given
the dramatically different approach of the two bills", the House leadership will
decide not to let either come to the House floor.
He elaborated that "my sense is that the leadership will take a look at this
and decide that this is not an issue that is worthy of floor time". He added
that "the leadership of the House does not like to bring bills to the floor
where the legislation is likely to fail".
Disclosure. TLJ develops and maintains, but does not publish or sell,
various collections of data. Readers may wish to consider this in assessing the
objectivity of any TLJ stories about database protection legislation.
|People and Appointments
Rep. Joe Barton (R-TX), has been
designated the new Chairman of the
House Commerce Committee, replacing
Rep. Billy Tauzin (R-LA). Rep. Barton
(at right) and the Subcommittee Chairmen will announce a new Committee structure on
Thursday, February 26 at 1:00 PM in the Committee hearing room, Room 2123, Rayburn
2/25. President Bush announced his intent to nominate
Ted Kassinger to
be Deputy Secretary of Commerce. He is currently General Counsel for the
Department of Commerce (DOC). He was
previously a member of the law firm of Vinson
& Elkins. He has also worked for the
Senate Finance Committee as International
Trade Counsel. See, White House
2/17. Andrew Levin was named Executive
Vice President for Law and Government Affairs and Chief Legal Officer at
Clear Channel Communications, Inc. He
has worked for Clear Channel since late 2002. Before that he was Democratic
Counsel to the House Commerce
Committee where he worked on matters before the Subcommittee on
Telecommunications and the Internet. See, Clear Channel
release [PDF]. Clear Channel operates about 1,200 radio stations in the U.S.
2/25. Clear Channel Communications, Inc.
announced that it has adopted a "Responsible Broadcasting Initiative" to
deal with broadcast indecency. See, Clear Channel
release [PDF]. Pursuant to this initiative, it suspended its broadcast of
Howard Stern's radio program. Back on September 9, 2003, the
Federal Communications Commission's (FCC)
Media Bureau issued a
Declaratory Ruling [PDF] that the Howard Stern Show constitutes a "bona fide
news interview program". See, story titled "FCC Rules that Howard Stern Has a
Bona Fide News Interview Program" in
TLJ Daily E-Mail
Alert No. 736, September 10, 2003.
2/25. Gavin Harvey was named President of the
Outdoor Life Network (OLN), a Comcast owned television network devoted to
outdoor adventure and action sports, including the
Tour de France. He replaces
Roger Williams. See, Comcast
|Washington Tech Calendar
New items are highlighted in red.
|Thursday, February 26
The House will meet at 10:00 AM. See,
9:30 AM. The
House Commerce Committee's
Subcommittee on Telecommunications and the Internet will hold another hearing
on HR 3717,
the "Broadcast Decency Enforcement Act of 2004". The witnesses
at this hearing will all be from the broadcasters: Alex Wallau (President, ABC
Television Network), Gail Berman (President of Entertainment, Fox Broadcasting
Company), Alan Wurtzel (National Broadcasting Company), Bud Paxson (Ch/CEO of
Paxson Communications Corporation), John Hogan (P/CEO of Clear Channel Radio), and
Harry Pappas (Ch/CEO of Pappas Telecasting Companies). The hearing will be webcast. See,
notice. Press contact: Jon Tripp at 202 225-5735. Location: Room 2123,
9:30 AM. The Senate Foreign
Relations Committee will hold a hearings to examine public diplomacy and
international free press. The witnesses will be Margaret Tutwiler (Under
Secretary for Public Diplomacy & Public Affairs), Gene Mater
(The Freedom Forum), Adam Powell
(Annenberg School of Communications),
and Kurt Wimmer
(Covington & Burling). Location:
Room 419, Dirksen Building.
9:30 AM. The
Senate Judiciary Committee
will hold a business meeting. The agenda includes consideration of numerous
pending judicial nominations, including Henry Saad
(to be a Judge of the U.S. Court of Appeals for the 6th Circuit), William
James Haynes (4th Circuit), Raymond Gruender (8th Circuit), Franklin Van
Antwerpen (3rd Circuit), Judith Herrera (District of New Mexico), Dennis
Saylor (District of Massachusetts), Sandra Townes (Eastern District of New
York), Louis Guirola (Southern District of Mississippi), Virginia Hopkins
(Northern District of Alabama), Kenneth Karas (Southern District of New York),
Ricardo Martinez (Western District of Washington), Gene Pratter (Eastern
District of Pennsylvania), and Neil Vincent Wake (District of Arizona). The Judiciary
Committee agendas frequently include items that are not considered.
Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy)
at 202 224-4242. See,
notice. Location: Room 226, Dirksen
10:00 AM. The House
Appropriations Committee's Subcommittee on Commerce, Justice, and State, the
Judiciary, and Related Agencies will hold a hearing on the proposed budget for the
Department of Commerce. Secretary of Commerce
Donald Evans is scheduled to testify. Location: Room 2359, Rayburn Building.
10:00 AM. The
House Government Reform Committee
will hold a hearing on the Government Services
Administration's (GSA) Networx
program, the proposed acquisition strategy for a government-wide voice and
data telecommunications program. The witnesses will be Stephen Perry (GSA),
Linda Koontz (GAO), Drew Ladner (Department of the Treasury), Mel Bryson
(Administrative Office of the U.S. Courts), Anthony D'Agata (Sprint), Doug
Dangremond (SBC), Kevin O'Hara (Level 3), Jerry Hogge (Winstar), David Page
(BellSouth), Louis Addeo (AT&T), Shelly Murphy (Verizon), and Jerry Edgerton
(MCI WorldCom). Location: Room 2154, Rayburn Building.
10:00 AM. The
Committee's Subcommittee on VA, HUD, and Independent Agencies will hold a
hearing to examine the proposed budget for the Office
of Science and Technology Policy (OSTP) and the
National Science Foundation (NSF). Location:
Room 192, Dirsksen Building.
11:00 AM - 2:00 PM. Department
of Homeland Security's (DHS) Homeland Security Science and Technology
Advisory Committee (HSSTAC) will meet in open session. Under Secretary for
Science and Technology
McQueary will speak at 11:00 AM. See,
in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location:
The Bolger Center, 9600 Newbridge Drive, Potomac, MD.
12:00 NOON -1:30 PM. The Steering Committee on
Telehealth and Healthcare Informatics will host a luncheon. The speaker will be
Phil Bond, the Under Secretary
of Commerce for Technology. He will release a report titled "Innovation,
Demand, and Investment in Telehealth". RSVP to Neal Neuberger at
Nealn@hlthtech.com or 703 790-4933. See,
Room 402, Dirksen Building.
12:30 PM. Supachai Panitchpakdi, Director General of the
World Trade Organization (WTO), will speak at
a luncheon hosted by the National Press Club
(NPC). Location: NPC, 529 14th St. NW, 13th Floor.
Rep. Joe Barton (D-TX), the
Chairman-designee of the House
Commerce Committee, and Subcommittee Chairmen, will announce a new
Committee structure. For more information, contact Samantha Jordan at (202)
225-2002. Location: Room 2123, Rayburn Building.
2:30 - 5:30 PM. The Department
of Homeland Security's (DHS) Homeland Security
Science and Technology Advisory Committee (HSSTAC) will meet in closed
notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at
Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.
The National Institute of Standards and
Technology's (NIST) Computer Security
Division (CSD) will hold a workshop on DRAFT Special Publication 800-60, titled
"Guide for Mapping Types of Information and Information Systems to Security
[PDF] and Volume II
[PDF]. The workshop is open to government workers only. For more
information, contact Elaine Frye at
|Friday, February 27
8:25 AM - 3:00 PM. The Department of
Homeland Security's (DHS) Homeland Security Science and Technology
Advisory Committee (HSSTAC) will meet in closed session. See,
notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at
Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.
9:00 AM - 4:00 PM. The National Institute
of Standards and Technology's (NIST) will host an event titled "Spam
Technology Workshop". The price to attend is $70. See,
notice in the Federal Register, November 25, 2003, Vol. 68, No. 227, at
Pages 66075 - 66076. Location: NIST, Administration Building (Building 101),
Green Auditorium, Gaithersburg, MD.
The National Institute of Standards and
Technology's (NIST) Computer Security
Division (CSD) will hold a workshop on DRAFT Special Publication 800-60,
titled "Guide for Mapping Types of Information and Information Systems to Security
[PDF] and Volume II
[PDF]. This is a repeat of the February 26 workshop. The workshop is
open to government workers only. For more information, contact Elaine Frye at
Deadline to submit comments to the
National Telecommunications and
Information Administration (NTIA) in response to its
notice in the Federal Register requesting comments to assist it in developing
recommendations to the Federal Communications
Commission (FCC) on the use of the 3650-3700 MHz band for unlicensed devices,
such as 802.11 (WiFi) and BlueTooth. The FCC released its
Inquiry [MS Word] on December 20, 2002. This is ET Docket No. 02-380. See, Federal
Register, January 28, 2004, Vol. 69, No. 18, at Pages 4118 - 4120. See also, story
titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in
TLJ Daily E-Mail
Alert No. 566, December 12, 2002, and story titled "NTIA Seeks Comments on Use
of 3650-3700 MHz Band By Unlicensed Devices" in TLJ Daily E-Mail Alert No. 832,
February 9, 2004.
|Monday, March 1
10:30 AM. The
Committee's Defense Subcommittee will hold a hearing on the proposed
budget for the Department of Defense. Location: Room 192, Dirksen
Deadline to submit comments to
the Federal Communications Commission (FCC)
regarding Level 3 Communications' petition
for forbearance requesting the FCC to forbear from application of
47 U.S.C. § 251(g), the
exception clause of § 51.701(b)(1) of the FCC's rules, and § 69.5(b) of the
FCC's rules to the extent those provisions could be interpreted to permit local exchange
carrier (LECs) to impose interstate or intrastate access charges on internet protocol
(IP) traffic that originates or terminates on the public switched telephone network
(PSTN), or on PSTN-PSTN traffic that is incidental thereto. This is WC Docket No. 03-266.
notice [3 pages in PDF].
Deadline to submit reply comments to the
Federal Communications Commission (FCC) to update
the record concerning petitions for reconsideration of rules that the FCC adopted in
the 1997 access charge reform docket. See,
notice in the Federal Register, January 16, 2004, Vol. 69, No. 11, at
Pages 2560 - 2561.
|Tuesday, March 2
9:30 AM. The
Senate Armed Services Committee
will hold a hearing on President Bush's defense authorization request for FY 2005
and the future years defense program. See,
Location: Room 216, Hart Building.
10:00 AM. The
Committee's Subcommittee on Commerce, Justice, State, and the Judiciary
will hold a hearing on the proposed budget for the
Department of Commerce (DOC). Location:
Room S-146, Capitol Building.
10:00 AM. The
Committee's Subcommittee on Homeland Security will hold a hearing on the
proposed budget for science and technology programs, information analysis, and
infrastructure protection. Location: Room 124, Dirksen Building.
10:00 - 11:30 AM. The Federal Communications
Commission's (FCC) Media Security and Reliability Council will meet.
Secretary of Homeland Security
will participate. See,
notice in the Federal Register, October 21, 2003, Vol. 68, No. 203, at
Page 60104. For more information, contact Barbara Kreisman at 202 418-1600 or
Susan Mort 202 418-1043. Location: FCC, Commission Meeting Room, TW-C305, 445
12th Street, SW.
4:00 PM. Gretchen Ann Bender
(University of Dayton School of Law) will
present a paper titled "The Return to Core Values: Intellectual Property as
a Commercialization Tool" in which she argues that intellectual property
is simply a tool by which the U.S. distributes, spreads, and commercializes
human creativity. For more information,
contact Robert Brauneis
at 202 994-6138 or email@example.com. Location:
George Washington University Law School, Faculty
Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.
|Wednesday, March 3
Deadline to submit comments to the
Federal Communications Commission (FCC) in
response to its
Proposed Rulemaking (NPRM) regarding modifying it frequency coordination
rules to promote sharing between non-geostationary satellite orbit (NGSO) and
geostationary satellite orbit (GSO) fixed-satellite service (FSS) operations
and various terrestrial services operating in several frequency bands. This NPRM considers a joint proposal submitted by SkyBridge and the Fixed Wireless
Communications Coalition (Growth Zone Proposal). This is ET Docket No. 03-254.
|Thursday, March 4
12:00 NOON - 2:00 PM. The
Progress and Freedom Foundation (PFF) will
host a luncheon. The speakers will include Charlie Ergen, Ch/CEO of EchoStar
Communications. RSVP to Brooke Emmerick at 202 289-8928 or
firstname.lastname@example.org. The PFF
also states that "Members of the media should contact David Fish at
202-289-8928 or email@example.com." Location:
Rotunda Room, Ronald Reagan Building and International Trade Center, 1300
Pennsylvania Ave., NW.
10:00 AM. The
House Appropriations Committee's
Subcommittee on Homeland Security will hold a hearing on the proposed budget for
the Department of Homeland Security (DHS).
Ridge is scheduled to testify. Location: Room 2359, Rayburn Building.
1:00 PM. The
House Appropriations Committee's
Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies will
hold a hearing on the proposed budget for the
Department of Justice (DOJ). Location:
Room H-309, Capitol Building.
|District Court Upholds TSR Against Challenge
by Non-Profits That Hire Telemarkers
2/25. The U.S. District Court (DMd)
[28 pages in PDF] in National Federation of the Blind v. FTC, upholding
the provisions of the Federal Trade Commission's
(FTC) Telemarketing Sales Rule (TSR)
that apply to non-profit organizations that hire telemarketers.
The National Federation of the Blind and Special Olympics Maryland are
nonprofit organizations with tax-exempt status under § 501(c)(3) of the Internal
Revenue Code. They both hire telemarketing firms to solicit charitable contributions.
They filed a complaint in the District Court alleging that the FTC did not have the
statutory authority to issue the TSR, that the TSR violates the First Amendment, and
that TSR violates the Equal Protection Clause.
The plaintiffs challenged several of the limited
restrictions imposed by the TSR upon the activities of telemarketers who solicit
charitable contributions on behalf of non-profit organizations, including (1)
the company specific prohibition on calling any consumer who has indicated that
he wants no more calls from that particular entity, (2) the requirement that the
telemarketer connect calls to a representative within two seconds of the
person's completed greeting, (3) the prohibition on calls before 8:00 AM or
after 9:00 PM, and (4) the requirement that telemarketers transmit caller ID
The District Court granted summary judgment to the FTC.
This case is National Federation of the Blind and Special Olympics
Maryland, Inc. v. Federal Trade Commission, D.C. No. JFM-03-963, Judge
Frederick Motz presiding.
|Gates Announces Plans for Caller ID for
2/24. Bill Gates,
Chairman and Chief Software Architect of
Microsoft, gave a
at the RSA Conference in San Francisco, California. He talked about security
threats, and what Microsoft is doing to address these threats. One threat that he
covered is spam. He announced a Microsoft proposal that he called "caller ID
left) first described current
techniques for filtering spam, which attempt to examine e-mail, and identify it
as spam, such as by its origin or content. He then discussed how spammers evade
these filters by spoofing the domain of origin, and by disguising the content.
He stated that Microsoft's "caller ID for e-mail" would not try to identify
spam. Rather, it would try to identify legitimate e-mail via authentication.
He stated, "So authenticating e-mail, that it really came from who it appears
to come from, avoiding this domain spoofing is a very key initiative for us.
Now, our goal here is to get rid of spam, and we believe that over the next
several years, with these various proof techniques, the filtering, that we can
reduce spam to not being a huge problem."
He elaborated. "There's another piece that's part of our overall coordinated
spam reduction initiative, which is seeing exactly who the mail comes from. The
picture in the future is that you need to know that it's authentic, and then
you'll have a so-called white list, a safe list, that shows mail that should
come into your Inbox automatically. Mail that doesn't fit that profile will be
judged by a variety of factors, what the content looks like, and by whatever
proof is being offered along with that e-mail. So if it looks like it's spam,
and there's no proof, an attempt to prove that it's not being offered, it's not
on your safe list, then, depending on how you set your e-mail client, that mail
will just go into a Junk folder."
Gates continued that "we're putting out, as an industry proposal this week
what we call caller ID for e-mail. And it's a very specific technical proposal
about how you can make sure that the domain is authentic. We've actually taken
our we have some patents around this, we're saying are royalty free, available
for everyone to use, the ones that relate to the fundamentals of this, and so
we're talking with other ISPs and mail providers, and we believe that by this
summer, with the right agreements, we can put this in place. So all the mail
that's coming in and out, Hotmail or Exchange, systems like that, now can be
authenticated in this way. It uses the DNS to do this, so it's piggybacking an
infrastructure that's there. So we've come up with a way that we think will be
very easy for people to apply."
Microsoft also issued two releases pertaining to Microsoft's spam related
projects. See, releases titled "Q&A:
Microsoft's Anti-Spam Technology Roadmap" and "Bill
Gates Outlines Technology Vision to Help Stop Spam".
Gates also addressed other security issues, and Microsoft's research and
development efforts. He said that Microsoft spends $6 Billion per year on R&D,
that "the biggest part of that R&D" is spent on security.
Gates also reviewed the many types of spam during his presentation. At one
point he stated, "This is one that must have been targeted towards me, it offers
a university diploma".
2/24. The House Judiciary Committee's
Subcommittee on Courts, the Internet, and Intellectual Property held a
hearing titled "Reauthorization of the Satellite Home Viewer Improvement
Act". See, prepared
testimony [9 pages in PDF]
the Register of Copyrights,
of Fritz Attaway of the Motion Picture Association of
America (MPAA), prepared testimony
of David Moskowitz on behalf of the Satellite Broadcasting & Communications
Association (SBCA), and
prepared testimony [PDF]
Robert Lee on behalf of the National Association
of Broadcastsers (NAB).
2/24. The Federal Trade Commission's (FTC)
Chief Administrative Law Judge Stephen McGuire released a redacted version of
his initial decision in the Rambus matter.
Decision [PDF] is a 19MB download. See also, FTC release. See also, stories
titled "ALJ Dismisses FTC Complaint Against Rambus" in TLJ Daily E-Mail Alert
No. 839, February 18, 2004; and "FTC Files Administrative Complaint Against Rambus" in
TLJ Daily E-Mail
Alert No. 455, June 20, 2002.
2/25. The EU issued a
regarding negotiations held on February 24-25 in Brussels, Belgium between the
US, EU and EU member states, regarding Global Positioning System (GPS) and
U.S. Patent and Trademark Office (USPTO)
that its Nanotechnology Customer Partnership will meet on April 20 from
1:00 - 5:00 PM. RSVP to Jill Warden
at 571 272-1267 or Jill.Warden@uspto.gov.
2/25. The U.S. Court of Appeals
(1stCir) issued its
opinion in Zyla v. Wadsworth, a copyright case. Zyla,
the co-author of an academic textbook, withdrew during the writing of a 4th
edition of the book. After its completion she filed a complaint in the U.S.
District Court (DMass) against the other author, and the publisher, alleging
copyright infringement, violation of the Lanham Act, breach of contract and
other claims. The defendants prevailed on summary judgment. The Appeals Court
affirmed. This case is Gail Zyla v. Wadsworth, a Division of the Thomson
Corporation, the Thomson Corporation, and Marie Boyle Struble, No. 03-1801,
an appeal from the U.S. District Court for the District of Massachusetts, Judge
Rya Zobel presiding.
2/20. The U.S. District Court (DUtah) ordered permanent injunctions from
future violations of the antifraud, reporting and issuer books and records
requirements of the federal securities laws against Frances M. Flood (former
Chairman, CEO and President of ClearOne
Communications, Inc) and Susie Strohm (former CFO of ClearOne). The
Securities and Exchange Commission (SEC) filed
its civil complaint on January 15, 2003. The SEC stated in a
"Both Flood and Strohm consented to the entry of final judgments without
admitting or denying any of the allegations of the complaint."
|About Tech Law Journal
|Tech Law Journal publishes a free access web site and
subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year. However, there
are discounts for subscribers with multiple recipients. Free one
month trial subscriptions are available. Also, free
subscriptions are available for journalists,
federal elected officials, and employees of the Congress, courts, and
executive branch. The TLJ web site is
free access. However, copies of the TLJ Daily E-Mail Alert are not
published in the web site until one month after writing. See, subscription
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All