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February 26, 2004, 9:00 AM ET, Alert No. 844.
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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 science."

Rep. Zoe LofgrenRep. 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 hearing 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 security."

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 prepared 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.

See also, 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 VOIP

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 be neither."

Sen. Lamar Alexander (R-TN) wrote is 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".

See also, prepared testimony of Jeffrey Citron (CH/CEO of Vonage), prepared testimony of Glenn Britt (Ch/CEO of Time Warner Cable), prepared testimony of Glen Post (Ch/CEO of CenturyTel), prepared testimony of Stan Wise (President of the National Association of Regulatory Utility Commissioners), and prepared testimony of Kevin Werbach (Supernova Group).

Copps Wants an Expensive Broadband Regulatory Regime

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.

Michael Copps"Sure, what 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 done."

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'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, story 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 world."

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 immediate action."

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 HR 3261, which the House Judiciary Committee amended and approved on January 21, 2004. The Commerce Committee has a sequential referral that expires on March 12, 2004.

Rep. Cliff StearnsRep. Stearns (at right) also stated that "This legislation prohibits the misappropriation of databases while preserving unfettered consumer access to factual information".

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 expense;
  (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 news analysis 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, HR 354, the "Collections of Information Antipiracy Act". The Commerce Committee then passed an illusory database protection bill, HR 1858, 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 cosponsors.

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 No. 108-421.

See also, 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.

Rep. Rick BoucherRep. Boucher. 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 misappropriation.

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 existing remedy.

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 Chamber 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 Chairman".

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 Barton2/25. 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 Building.

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 release.

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 release.

Washington Tech Calendar
New items are highlighted in red.
Thursday, February 26

The House will meet at 10:00 AM. See, Republican Whip Notice.

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, Rayburn Building.

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 Building.

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 Senate Appropriations 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 Charles McQueary will speak at 11:00 AM. 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.

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 or 703 790-4933. See, notice. Location: 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.

1:00 PM. 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 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.

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 Categories". See, Volume I [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 Categories". See, Volume I [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 Notice of 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 Senate Appropriations Committee's Defense Subcommittee will hold a hearing on the proposed budget for the Department of Defense. Location: Room 192, Dirksen Building.

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. See, FCC 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, notice. Location: Room 216, Hart Building.

10:00 AM. The Senate Appropriations 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 Senate Appropriations 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 Tom Ridge 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 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 Notice of 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 The PFF notice also states that "Members of the media should contact David Fish at 202-289-8928 or" 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). Secretary Tom 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) issued its opinion [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 information.

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 E-Mail

2/24. Bill Gates, Chairman and Chief Software Architect of Microsoft, gave a speech 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 for e-mail".

Bill GatesGates (at 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".

More News

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] Marybeth Peters, the Register of Copyrights, prepared testimony 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. Caution: this Initial 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 release regarding negotiations held on February 24-25 in Brussels, Belgium between the US, EU and EU member states, regarding Global Positioning System (GPS) and Galileo cooperation.

2/25. The 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 See, notice.

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 release that "Both Flood and Strohm consented to the entry of final judgments without admitting or denying any of the allegations of the complaint."

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