3/3. Rep. Frank Wolf (R-VA) introduced HR 3889, a bill to transfer certain functions from the U.S. Trade Representative (USTR) to the Secretary of Commerce, including the writing of reports pertaining to other nations' failure to protect intellectual property rights, and enforcement against certain violators. One of his goals is to obtain more aggressive enforcement of violations of the rights of intellectual property holders in and by the People's Republic of China.

Rep. Wolf is the Chairman of the House Appropriations Committee's Subcommittee on Commerce, Justice, State and the Judiciary. It writes the appropriations bill that include funding for both the USTR and the Department of Commerce. The bill was referred to the House Ways and Means Committee.

Currently, the USTR is responsible for negotiating trade agreements with other countries. It is also responsible for writing reports about other countries' barriers to U.S. goods and services, and failures to protect intellectual property. It has has enforcement responsibilities.

The bill provides, in part, that "Section 182 of the Trade Act of 1974 (19 U.S.C. 2242) is amended -- (1) in subsection (a) -- (A) by striking `United States Trade Representative´ and inserting `Secretary of Commerce´".

19 U.S.C. § 2242(a) provides, in part, that "the United States Trade Representative ... shall identify --
  (1) those foreign countries that -- (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable market access to United States persons that rely upon intellectual property protection, and
  (2) those foreign countries identified under paragraph (1) that are determined by the Trade Representative to be priority foreign countries."

That is, the bill would transfer the writing of Special 301 reports from the USTR to the Commerce Department.

The bill also transfers certain enforcement responsibilities enumerated in 19 U.S.C. § 2411 from the USTR to the Secretary of Commerce.

Rep. Wolf stated that "I believe this change is necessary because of the entry of the People's Republic of China into the WTO in December 2001 and the growing allegations from U.S. businesses that China, now our fourth largest trading partner, is not living up to its trade agreements." See, transcript.

"China has broken its promise", said Rep. Wolf, "To stop using its tax policies on U.S. imports into China therefore discriminating against the import of our goods. For example, our semiconductor companies and our fertilizer producers state that China's practice of rebating more than 80 percent of its value-added tax (VAT) to domestic firms puts foreign suppliers, our companies, at a huge disadvantage in the Chinese market."

He continued that "China also has a complete disregard for U.S. intellectual property rights. The Chinese market also continues to be dominated by piracy of copyrighted material. Some U.S. sources charge that American businesses have lost billions in revenue due to China's copyright piracy and other intellectual property rights violations."

"But the United States has not brought an intellectual property rights case against China since Beijing's entry into the WTO. Not one case."

Rep. Wolf elaborated that "I know the Office of the USTR has hard-working people whose goal is to give U.S. businesses the opportunity to flourish in the global economy. But I believe it is being stretched too thin under its current operation of having the same people who negotiate trade agreements be the same people who determine whether or not countries are living up to their obligations."

He concluded that "Enforcement is being shortchanged and U.S. companies are not being well served. I believe our nation's business community and our trade policy would be better served by having the Department of Commerce as the trade law enforcer."

3/3. Sen. Ron Wyden (D-OR), Sen. Ted Stevens (R-AK), and Sen. Lisa Murkowski (R-AK) introduced S 2160, the "Children's Listbroker Privacy Act'', a bill to prohibit the sale of databases containing personal information of children, with exceptions.

The bill provides that "It is unlawful (1) to sell personal information about an individual the seller knows to be a child; (2) to purchase personal information about an individual identified by the seller as a child, for the purpose of marketing to that child; ..."

The bill provides an exception to the general prohibition where a parent of the child has granted express consent.

The bill also provides an exception where "the purchaser certifies to the seller, electronically or in writing, before the sale is completed (A) the purpose for which the information will be used by the purchaser; and (B) that the purchaser will neither (i) use the information for marketing that child; nor (ii) permit the information to be used by others for the purpose of marketing to that child."

The bill also provides that it is unlawful "for a person who has provided a certification ... in connection with the purchase of personal information about an individual identified by the seller as a child, to engage in any practice that violates the terms of the certification."

The bill defines "child" as "an individual under the age of 16".

The bill gives civil enforcement authority to the federal government -- primarily the Federal Trade Commission (FTC) -- and to state attorneys general. The bill does not create a private right of action. The bill contains no preemption clause.

Sen. Wyden (at right) stated in the Senate that "The bill's premise is simple: Trafficking in data on very young children for the purpose of commercial marketing should not be permitted in our country. Specifically, the bill bans the selling or purchasing of personal information about people that the seller and purchaser know to be very young. There would be an exception for cases where the parent is given express consent, provided that the parent had notice of what he or she was consenting to and was not required to grant consent as a condition of obtaining a desired product or service." See, Congressional Record, March 3, 2004, at pages S2106-7.

He continued that "There would also be an exception for the sale of information for nonmarketing purposes as long as the purchaser certifies it will neither use the information for marketing nor allow others to do so. This exception would allow, for example, health care officials to still use available data to track the spread of a disease or for students, of course, to get information about various academic activities. The list buyers would have to certify that lists are not being purchased or resold for marketing; otherwise they will be in violation of the law.

He added that "The bill's enforcement provisions track those of the Children's Online Privacy Protection Act."

Sen. Stevens stated that "I was shocked to learn that presently there is no law that restricts companies from purchasing databases which contain information about children. In fact, websites have been brought to my attention that actually sell lists of children as young as pre-school. The thought of companies acquiring lists of information about kids that are barely past the toddler stage is appalling." See, Congressional Record, March 3, 2004, at page S2106-8.

The bill was referred to the Senate Commerce Committee. Both Sen. Wyden and Sen. Stevens are members.

In the past, Sen. Wyden and Sen. Stevens have differed on a number of issues, including on the necessity of online privacy legislation.

3/3. The House Commerce Committee approved HR 3872, the "Consumer Access to Information Act of 2004". It ordered the bill reported, without amendment, by voice vote. Rep. James Greenwood (R-PA) voted against this bill.

The Committee also voted against HR 3261, the "Database and Collections of Information Misappropriation Act". It ordered that the bill be reported unfavorably, without amendment, by voice vote. Again, Rep. Greenwood voted against this action.

HR 3872, which is sponsored by Rep. Cliff Stearns (R-FL), 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.

HR 3261, which the House Judiciary Committee amended and approved on January 21, 2004, provides some protections for some developers and owners of collections of data. The Commerce Committee has a sequential referral which expires on March 12, 2004.

It is unlikely that there is anyone who actually wants HR 3872 to become law -- even its sponsors. Rather, it has been introduced, and moved by the Committee, as part of a legislative strategy to defeat HR 3261.

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, story titled "House Commerce Subcommittee Approves Alternative Database Bill" also published in TLJ Daily E-Mail Alert No. 844, February 26, 2004, and TLJ news analysis titled "House Commerce and Judiciary Committees Vie for High Tech Leadership", June 15, 1999.

The strategy is to present the House Rules Committee, and the House Republican leadership, with two competing database related bills. The hope is that with only about fifty legislative days left in the 108th Congress, and many other pressing issues to address, the Rules Committee and leadership will not schedule floor time for debate on either of these bills in the present Congress.

Commerce Committee members successfully employed this strategy successfully late in the 106th Congress also.

At the beginning of the 107th Congress Rep. James Sensenbrenner (R-WI), the Chairman of the Judiciary Committee, and Rep. Bill Tauzin (R-LA), the then Chairman of the Commerce Committee, began a process to develop a compromise bill. HR 3261 is the product of that process. Rep. Tauzin, Rep. Greenwood and many members of the Judiciary Committee are sponsors of that bill. However, most members of the Commerce Committee are not.

Rep. Joe Barton (R-TX), the new Chairman of the Commerce Committee, spoke about database bills at a press conference on March 4. He said that the Commerce Committee's passage of its own bill reflects the change in the Chairmanship.

See also, story titled "House Judiciary Committee Approves Database Protection Bill", also published in TLJ Daily E-Mail Alert No. 822, January 23, 2004.

Rep. Rick Boucher (D-VA) argued in favor of the Commerce Committee bill, and against the Judiciary Committee bill. He argued that HR 3261 is "a solution in search of a problem". He argued that database owners already have adequate remedies. He also argued that Europe's experience with its database directive should serve as a warning to the U.S.

Rep. Janice Schakowsky (D-IL) asserted that HR 3261 "would turn facts into property".

Rep. John Dingell (D-MI) read a prepared statement. He said that "I am pleased that we have developed a bipartisan product. Like H.R. 3261, which was reported by the Committee on the Judiciary, the Print gives the proponents of database legislation what they have been calling for, a federal misappropriation bill. Unlike H.R. 3261, the Print is narrowly tailored to provide protection to databases only in circumstances that would substantially reduce the incentive to produce the original database."

He added that "Electronic commerce has prospered in the United States in part because of our basic information policy -- that facts, the building blocks of all information products, cannot be owned. They do not owe their origin to an act of authorship, and it is important that we do not legislate in a way that would restrict the public’s access to facts."

Rep. Greenwood was the sole proponent of the Judiciary Committee bill. He argued that "the Stearns bill does not support the hard work of database compilers."

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.

3/3. The House Commerce Committee approved HR 3717, the "Broadcast Decency Enforcement Act of 2004", and ordered reported, as amended, by a roll call vote of 49-1. See, amendment in the nature of a substitute [PDF] offered by Rep. Fred Upton (R-MI), the sponsor of the bill, and the Chairman of the Subcommittee on Telecommunications and the Internet.

The House Republican leadership announced that HR 3717 has been scheduled for consideration by the full House on Wednesday, March 10, or Thursday, March 11. See, Republican Whip Notice.

The bill would increase the financial penalties that the Federal Communications Commission (FCC) can impose on broadcasters who air obscenity, indecency and profanity on television and radio.

3/5. President Bush announced his intent to appoint Dennis Carlton, Deborah Garza, Sanford Litvack, and Deborah Majoras to be Members of the Antitrust Modernization Commission for the life of the commission. See, White House release.

3/4. The Department of Justice (DOJ) announced that Attorney General John Ashcroft is "suffering from a severe case of Gallstone Pancreatitis. He was admitted to intensive care for careful monitoring and is being treated with antibiotics." See, DOJ release.

3/4. The Walt Disney Corporation announced in a release that "it is separating the positions of CEO and Chairman. Effective immediately, the Board created the position of Chairman of the Board. The Board has unanimously elected former Sen. George Mitchell to serve in that non-executive position. While making this change in governance, the Board remains unanimous in its support of the Company's management team and of Michael Eisner, who will continue to serve as chief executive officer." (Emphasis added.)

3/4. Rep. Candice Miller (R-MI) and Rep. Joseph Knollenberg (R-MI)  introduced HR 3906, a bill to extend normal trade relations treatment to the products of Ukraine. The bill was referred to the House Ways and Means Committee. The U.S. Trade Representative's (USTR) 2003 Special 301 Report lists Ukraine as a "Priority Foreign Country". The USTR found that "there is still substantial traffic in illegal optical disc media, both in street sales to consumers as well as larger distribution to Western Europe, the Baltics, and elsewhere."

3/3. Rep. Tom Davis (R-VA) and Rep. Henry Waxman (D-CA) introduced HR 3880, the "Internet Pharmacy Consumer Protection Act". The bill would amend the Federal Food, Drug, and Cosmetic Act to establish requirements for the sale of prescription drugs over the internet. The bill was referred to the House Commerce Committee.

3/5. The House Republican leadership announced that the House is scheduled to take up HR 2391, the "Cooperative Research and Technology Enhancement (CREATE) Act", under suspension of the rules, on Wednesday, March 10. See, Republican Whip Notice.

The bill would amend Section 103(c) of the Patent Act, which is codified at 35 U.S.C. § 103, to address the August 8, 1997 opinion of the U.S. Court of Appeals for the Federal Circuit in OddzOn Products, Inc. v. Just Toys, Inc., which ruled that derived prior art may serve as evidence of obviousness.

Rep. Lamar Smith (R-TX), the Chairman of the House Judiciary Committee's Subcommittee on Courts, Internet and Intellectual Property (CIIP), introduced HR 2391 on June 9, 2003.

The CIIP Subcommittee held a hearing on the bill on June 10, 2003. See, story titled "Representatives Introduce Patent Bill to Encourage Collaborative Research" in TLJ Daily E-Mail Alert No. 680, June 13, 2003.

The CIIP Subcommittee amended and approved the bill on July 22, 2003. The full Committee amended and approved the bill on January 21, 2004. See, story titled "House Judiciary Committee Approves CREATE Act to Promote Collaborative Research" also published in TLJ Daily E-Mail Alert No. 821, January 22, 2004.

The House will meet at 12:00 NOON in pro forma session only. See, Republican Whip Notice.

The Senate will meet at 12:00 NOON to begin consideration of the FY 2005 budget resolution.

The Supreme Court will begin a recess. (It will return on March 22, 2004.)

9:00 AM - 4:00 PM. The National Institute of Standards and Technology's (NIST) Computer Security Division will host a conference titled "Recommended Security Controls for Federal Information Systems". The price to attend is $75. See, notice. Location: NIST, Gaithersburg, MD.

12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media and Legislation Committees will host a brown bag lunch. The topic will be "What's Going on for Broadcasters on the Hill?" For more information, contact John Logan at 202 776-2640 or jlogan@dowlohnes.com, or Michale Nilsson at 202 730-1334 or mnilsson@harriswiltshire.com. Location: Wiley Rein & Fielding, 1750 K Street, NW, 10th Floor.

Day two of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding its proposed rules regarding use of satellite earth stations on board vessels in the 5925-6425 MHz, 3700-4200 MHz, 14.0-14.5 GHz and 11.7-12.2 GHz bands. The NPRM is FCC 03-286 in IB Docket No. 02-10. See, notice in the Federal Register, January 22, 2004, Vol. 69, No. 14, at Pages 3056 - 3064.

Deadline to submit reply comments to the Federal Communications Commission (FCC) its request that parties refresh the record regarding reconsideration of rules adopted in the 1999 access reform docket. This is CC Docket Nos. 96-262, 94-1, 98-157, and CCB/CPD File No. 98-63, adopted August 5, 1999, and released August 27, 1999. See, notice in the Federal Register, January 21, 2004, Vol. 69, No. 13, at Pages 2862 - 2863.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) and National Telecommunications and Information Administration (NTIA) regarding Internet Protocol version 6 (IPv6). See, notice in the Federal Register, January 21, 2004, Vol. 69, No. 13, at Pages 2890 - 2899. See also, story titled "NTIA and NIST Request Comments on IPv6", TLJ Daily E-Mail Alert No. 819, January 20, 2004.

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House will consider several non technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.

10:00 AM. The Senate Finance Committee will hold a hearing titled "The Administration's International Trade Agenda". U.S. Trade Representative (USTR) Robert Zoellick will testify. Location: Room 215, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee will host a brown bag lunch. The topic will be the Federal Communications Commission's (FCC) plug & play and broadcast flag rules. The speakers will be Susan Mort (FCC), John Wong (Division Chief of the FCC's Media Bureau's Engineering Division) and Michael Lance (Deputy Division Chief of the ED). For more info contact Frank Buono at fbuono@willkie.com. RSVP to Wendy Parish at wendy@fcba.org. Location: Willkie Farr & Gallagher, 1875 K St., NW, 2nd Floor.

1:30 - 3:00 PM. The WRC-07 Advisory Committee's Informal Working Group 1: Terrestrial and Space Science Services will meet. See, notice [PDF]. Location: Federal Communications Commission (FCC), 445 12th Street, SW, Conference Room #5 (8th Floor, Room 8-B411).

Day one of a three day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "Awareness, Training and Education: The Driving Force Behind Information Security". The price to attend is $365. See, notice. Location: Inn and Conference Center, University of Maryland University College (UMUC), 3501 University Boulevard East, Adelphi, MD.

Day three of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

The House will meet at 10:00 AM for legislative business. The House is scheduled to take up HR 2391, the "Cooperative Research and Technology Enhancement (CREATE) Act", under suspension of the rules. The House may take up HR 3717, the "Broadcast Decency Enforcement Act of 2004", subject to a rule, on Wednesday or Thursday. See, Republican Whip Notice.

9:30 - 11:00 AM. The AEI-Brookings Joint Center will host a panel discussion titled "The Internet Telephony Revolution: Reality or Hype?". The speakers will be Robert Crandall, Harold Furchtgott-Roth, Reed Hundt and Robert Litan. RSVP to Shannon Leahy at sleahy@brookings.edu or 202 797-6274. Location: National Press Club, 529 14th St. NW, 13th Floor.

9:30 AM. The Senate Finance Committee will hold a hearing titled "United States Economic and Trade Policy in the Middle East". Location: Room 215, Dirksen Building.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Oversight of the Satellite Home Viewer Improvement Act". See, notice. The hearing will be webcast. Press contact: Larry Neal at 202 225-5735. Location: Room 2123, Rayburn Building.

10:00 AM. The House Ways and Means Committee will hold a hear titled "President Bush's Trade Agenda". The sole witness will be U.S. Trade Representative Robert Zoellick. See notice. Location: Room 1100, Longworth Building.

10:30 AM. The House Homeland Security Committee's Subcommittee on Intelligence and Counterterrorism will hold a hearing titled "The Department of Homeland Security Proposed Information Analysis Budget for Fiscal Year 2005". The witness will be Gen. Patrick Hughes, Assistant Secretary for Information Analysis. See, notice. Press contact: Liz Tobias at 202 226-9600. Location: undisclosed.

2:00 - 4:30 PM. The American Enterprise Institute (AEI) will host a pair of panel discussions titled "Three Cheers for Globalization". See, notice. Location: 12th floor, 1150 17th St., NW.

Day two of a three day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "Awareness, Training and Education: The Driving Force Behind Information Security". The price to attend is $365. See, notice. Location: Inn and Conference Center, University of Maryland University College (UMUC), 3501 University Boulevard East, Adelphi, MD.

Day four of a four day meeting of the National Association of Regulatory Utility Commissioners (NARUC). For more information, contact Michelle Malloy at 202 898-2214 or Wendy Harris at 202 898-2209. See, notice. Location: Renaissance Washington Hotel.

Deadline to submit requests to the U.S. Trade Representative's (USTR) Trade Policy Staff Committee (TPSC) to testify orally at the TPSC hearing on March 17, 2004 regarding negotiating objectives for the proposed free trade agreement (FTA) between the U.S. and four Andean countries (Colombia, Peru, Ecuador, and Bolivia). See, notice in the Federal Register, February 17, 2004, Vol. 69, No. 31, at Pages 7532 - 7534.

The House will meet at 10:00 AM for legislative business. The House may take up HR 3717, the "Broadcast Decency Enforcement Act of 2004", subject to a rule, on Wednesday or Thursday. See, Republican Whip Notice.

7:45 AM. The Federal Communications Bar Association (FCBA) will host a breakfast. The speaker will be Steve Largent, P/CEO of the Cellular Telecommunications and Internet Association (CTIA). Prices range for $30 to $55. See, registration form. Location: J.W. Marriott Hotel, 1331 Pennsylvania Ave. NW.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in City and County of San Francisco v. FCC, No. 03-1186. See, FCC brief [31 pages in PDF]. Judges Ginsburg, Randolph and Roberts will preside. Location: 333 Constitution Ave.

10:00 AM. The House Education and Workforce Committee will hold a hearing titled "The Changing Nature of the Economy:  The Critical Roles of Education and Innovation in Creating Jobs & Opportunity in a Knowledge Economy". The witnesses will include Alan Greenspan (Chairman of the Federal Reserve Board) and John Castellani (Business Roundtable), and Robert Grady (Carlyle Group and National Venture Capital Association). The hearing will be webcast by the Committee. Location: Room 2175, Rayburn Building.

10:00 AM. The House Appropriations Committee's Subcommittee on Homeland Security will hold a hearing on the proposed budget for the Transportation Security Administration (TSA). The Homeland Security Act transferred the TSA from the Department of Transportation to the Department of Homeland Security (DHS). The Computer Assisted Passenger Prescreening System (CAPPS) II program is run by the TSA. Under Secretary for Border and Transportation Security Asa Hutchinson is scheduled to testify. Location: Room 2359, Rayburn Building.

12:00 NOON. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Section 115 of the Copyright Act: In Need of Update?". 17 U.S.C. § 115 pertains to compulsory licensing. The hearing will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "Awareness, Training and Education: The Driving Force Behind Information Security". The price to attend is $365. See, notice. Location: Inn and Conference Center, University of Maryland University College (UMUC), 3501 University Boulevard East, Adelphi, MD.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding its Third Report and Order and Second Further Notice of Proposed Rulemaking pertaining to the administration of the FCC's e-rate subsidy program for schools and libraries. See, notice in the Federal Register, February 10, 2004, Vol. 69, No. 27, at Pages 6229 - 6238. This item is FCC 03-323 in Docket No. 02-6. The FCC adopted this item at its December 17, 2003 meeting. See, FCC release [PDF] describing this item. The FCC released the text of this item on December 23, 2003.

12:15 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee will host a brown bag lunch. The topic will be "Balancing Work Life & Family Life". The speakers will be FCC Commissioner Kathleen Abernathy, Debra Lee (BET), and Michele Farquhar (Hogan & Hartson). RSVP to Monica Desai at 202 418-7419 or mdesai@fcc.gov by Wednesday, March 10. Location: FCC, 445 12th St., SW, 8th Floor, Conference Room 1.