Tech Law Journal Daily E-Mail Alert
March 23, 2004, 9:00 AM ET, Alert No. 861.
Home Page | Calendar | Subscribe | Back Issues | Reference
Supreme Court Returns from Recess

3/22. The Supreme Court returned from recess that it began on March 8. It heard oral argument in Hiibel v. Sixth Judicial District Court of Nevada, denied certiorari in Hogarth v. Burroughs, and issued no new opinions.

Supreme Court Hears Oral Argument in Identification Case

3/22. The Supreme Court heard oral argument in Hiibel v. Sixth Judicial District Court of Nevada, a criminal case regarding whether police may compel a person to identify himself.

Larry Dudley Hiibel was convicted in the state of Nevada of the crime of delaying a police officer, pursuant to Nev. Rev. Stat. 199.280, in connection with his refusing to identify himself when asked by a police officer.

This is a criminal case involving the 4th Amendment of the U.S. Constitution (which protects "against unreasonable searches and seizures") and the 5th Amendment (which provides "nor shall any person be compelled in any criminal case to be a witness against himself").

This case implicates technology to the extent that divulging a name (or a unique identifier) to a police officer can enable that officer to then obtain from various electronic databases other information associated with that name (or identifier) contained in the databases, and to add data to electronic databases.

See, brief [50 pages in PDF] of the state of Nevada, and brief [58 pages in PDF] of Hiibel.

The Department of Justice argued in its amicus brief on the merits that "Requiring the subject of an investigative detention to identify himself infringes neither the Fourth Amendment nor the Fifth Amendment privilege against compelled self-incrimination."

See also, amicus brief [PDF] of the Cato Institute, and amicus brief [PDF] of the Electronic Privacy Information Center (EPIC). The EPIC website includes a page that contains numerous hyperlinks to other pleadings and materials related to this case.

This case is Hiibel v. Sixth Judicial District Court of Nevada, Sup. Ct. No. 03-5554, on writ of certiorari to the Supreme Court of Nevada. The Nevada case is reported at 59 P.3d 1201.

Supreme Court Denies Cert in Copyright Case

3/22. The Supreme Court denied certiorari, without opinion, in Hogarth v. Burroughs, a copyright case. See, Order List [20 pages in PDF] at page 4.

The U.S. Court of Appeals (2ndCir) issued its opinion [37 pages in PDF] on August 29, 2003. It addresses the issues of the work for hire doctrine as applied to an independent contractor, the significance of incorrect information in applications for registration filed with the Register of Copyrights, and the doctrine of laches.

This case is Estate of Burne Hogarth, at al. v. Edgar Rice Burroughs, Inc., Sup. Ct. No. 03-1009, on petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 02-73112.

Senators DeWine and Kohl Urge Solicitor General to Seek Cert in USTA v. FCC

3/22. Sen. Mike DeWine (R-OH) and Sen. Herb Kohl (D-WI) wrote a letter to Attorney General John Ashcroft and others urging the Department of Justice (DOJ) to "support the Federal Communication Commission's motion to stay and to appeal to the U.S. Supreme Court" the Appeals Court's opinion in the triennial review order case. They expressed "no opinion as to the wisdom of the specifics of the FCC rules", but rather argued that the Court should take the case because of its importance.

Ted OlsonSen. DeWine and Sen. Kohl are the Chairman and ranking Democrat on the Senate Judiciary Committee's Antitrust Subcommittee. They sent the letter to AG Ashcroft, Solicitor General Ted Olson (at right), and Assistant Attorney General in charge of the Antitrust Division Hew Pate.

The Supreme Court has the discretion to hear, or refuse to hear, petitions for writ of certiorari, which are also sometimes referred to as appeals. The recommendation of the Solicitor General regarding whether or not to grant certiorari carries considerable weight with the Court.

Other Senators and Representatives, and others, have also written to the DOJ, FCC, and President Bush, to argue in favor of, or against, seeking certiorari.

The two Senators wrote that "This case vacated the FCC's Triennial Review rulemaking setting forth the rules under which the incumbent phone companies must interconnect their networks with competitive local exchange carriers pursuant to the Telecommunications Act of 1996. This decision has vital national public policy implications because the final form taken by the interconnection rules will dictate how the market for local phone service will develop and to what extent businesses and consumers will reap the benefits of competition in that market."

They continued that "While we express no opinion as to the wisdom of the specifics of the FCC rules or the DC Circuit rejection of those rules, we believe that these matters-issues which have been subject to eight years of litigation and dispute among the expert agency, the many industry players, and the appellate court-are of such fundamental importance to national telecommunications competition policy and to consumers that the Department of Justice should seek their final resolution at the Supreme Court."

They added that "The D.C. Circuit's ruling also implicated important administrative law issues related to an administrative agency's power to delegate certain types of decision-making authority to the states as well as the deference that a court should accord a regulatory agency's decisions. These issues deserve Supreme Court consideration as well."

On March 2, 2004. The U.S. Court of Appeals (DCCir) issued its opinion [62 pages in PDF] in USTA v. FCC, overturning key parts of the Federal Communications Commission's (FCC) triennial review order (TRO).

The opinion leaves largely untouched those portions of the TRO in which the FCC refrained from unbundling next generation broadband facilities. The opinion vacates those portions of the TRO in which the FCC delegated decision making authority to the states to make impairment findings. See, story titled "Appeals Court Overturns Key Provisions of FCC Triennial Review Order" in TLJ Daily E-Mail Alert No. 848, March 3, 2004.

Rep. Dreier Addresses Innovation, Offshoring and Isolationism

3/18. Rep. David Dreier (R-CA) spoke in the House regarding "offshoring". He stated that "We can try to isolate ourselves from the rest of the world or we can continue, as has been the case throughout recent history, to innovate and create better and better jobs for Americans right here in the United States." See, Congressional Record, March 18, 2004, at Page H1279.

Rep. David DreierRep. Dreier (at right) is a leading free trader and technophile in the House. He is also the Chairman of the House Rules Committee.

"After decades of American global economic leadership successfully competing in the worldwide marketplace and producing cutting-edge technologies and business practices, the economic isolationism option is clearly no option at all because of the success that we have enjoyed", said Rep. Dreier. "That leaves us with only one choice, Mr. Speaker, and that is to allow Americans to continue to innovate, grow, and create better jobs right here. In fact, innovation has always been the key to our global economic leadership."

He elaborated on the extent of research and development in the U.S., and the resulting discoveries, patenting, and licensing. He further addressed the role of venture capital in the process of innovation in the U.S.

He elaborated that venture capital "gives individuals the freedom to develop new ideas and concepts and encourages creativity and risk-taking. It has unparalleled financial markets and a venture capital system that are constantly helping Americans turn their dreams into reality. It has given American companies and individuals the power to invest, grow and create new jobs in cutting-edge fields, and it is our best answer to those who see offshoring as a reason to retreat behind the walls of economic isolationism."

He concluded that "We should not be trying to isolate ourselves from the worldwide market which would actually stifle our innovative environment and cede our position as the global leader. Instead, we should continue to allow our spirit of innovation and entrepreneurship to empower Americans as we lead the world and create better and better jobs right here in the United States."

People and Appointments

3/22. President Bush formally nominated Jonathan Dudas to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. States Patent and Trademark Office (USPTO). Bush previously announced that he would make this nomination. See, White House release.

More News

3/16. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census held an oversight hearing titled "Information Security in the Federal Government: One Year Into the Federal Information Security Management Act". See, prepared testimony [8 pages in PDF] of Karen Evans, the Administrator for E-Government and IT at the Office of Management and Budget (OMB); prepared testimony [45 pages in PDF] of Robert Dacey of the General Accounting Office (GAO); GAO report [89 pages in PDF] titled "Information Security: Technologies to Secure Federal Systems"; and prepared testimony [13 pages in PDF] of Ben Wu of the Department of Commerce.

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 information page.

Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2004 David Carney, dba Tech Law Journal. All rights reserved.
Washington Tech Calendar
New items are highlighted in red.
Tuesday, March 23

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

The Senate will meet at 9:45 AM for morning hour. At 11:00 AM it will resume its consideration of S 1637, the Jumpstart Our Business Strength (JOBS) Act, a bill that would replace the Foreign Sales Corporation (FSC) and Extraterritorial Income (ETI) tax regimes that the World Trade Organization (WTO) has held to constitute illegal export subsidies.

? 10:00 AM. The Senate Commerce Committee (SCC) might hold a hearing to examine use of scientific information in federal policy making. Location: Room 253, Russell Building. (This item is on the Senate calendar, but not the SCC's calendar, which lists instead a hearing on railroad security at 10:00 AM.)

10:00 AM. The Senate Committee on Aging will hold a hearings to examine the impact of internet fraud on seniors. Location: Room 628, Dirksen Building.

10:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on HR 1731, the "Identity Theft Penalty Enhancement Act" and HR 3693, the "Identity Theft Investigation and Prosecution Act of 2003". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:30 AM. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary will hold a hearing on the transformation of the Federal Bureau of Investigation (FBI), focusing on information technology, management and training. Location: Room 116, Dirksen Building.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a brown bag lunch titled "The Minds Race: The Roll of Education and Workforce Skills in the Global Economy". The speakers will be Leon Lederman (Nobel Prize winner in physics), Stephanie Powers (CEO of the National Association of Workforce Boards), Kevin Celata (Communication Workers of America), and former Rep. Dave McCurdy (Electronics Industry Alliance). RSVP to Jennifer Buntman at 202-986-4901 or buntman@newamerica.net. See, notice. Location: NAF, 1630 Connecticut Ave, 7th Floor.

1:30 PM. The House International Relations Committee's (HIRC) Subcommittee on the Middle East and Central Asia will hold a briefing titled "Digital Terrorism 2004: How the Internet Fans the Flame of Hate". Location: Room 2255, Rayburn Building.

2:30 PM. The Senate Commerce Committee's Subcommittee on Communications will hold a hearing spyware and S 2145, the "SPY BLOCK Act". Sen. Conrad Burns (R-MT) will preside. The scheduled witnesses are Avi Naider (P/CEO of WhenU.com Inc.), Robert Holleyman (P/CEO of the Business Software Alliance), Jerry Berman (President of the Center for Democracy and Technology), and John Levine (P/CEO of Taughannock Networks). The hearing will be webcast by the Committee. See, notice. Location: Room 253, Russell Building.

2:30 PM. The Senate Judiciary Committee will hold a hearing titled "Counterfeiting and Theft of Tangible Intellectual Property: Challenges and Solutions". The scheduled witnesses are Jon Dudas (acting Director of the U.S. Patent and Trademark Office), Christopher Wray (Assistant Attorney General in charge of the Criminal Division), James Mendenhall (Assistant U.S. Trade Representative for Intellectual Property), Earl Anthony Wayne (Assistant Secretary of State for Economic and Business Affairs), Thomas Donohue (P/CEO of the U.S. Chamber of Commerce), Richard Willard (SVP of the Gillette Company), Brad Buckles (Recording Industry Association of America), and Vanessa Price (Burton Snowboards, Vermont). See, notice. Location: Room 226, Dirksen Building.

2:30 PM. House Government Reform Committee and the Senate Governmental Affairs Committee will hold a joint hearing on U.S. Postal Service reform issues. The witnesses will be John Snow (Secretary of the Treasury), David Fineman (U.S. Postal Service Board of Governors), and John Potter (Postmaster General of the U.S. Postal Service). See, notice. Location: Room 2154, Rayburn Building.

Wednesday, March 24

The House will meet at 10:00 AM for legislative business. The House will take up several items under suspension of the rules. On Wednesday or Thursday, the House is scheduled to take up HR 1768, the "Multidistrict Litigation Restoration Act of 2004". See, Republican Whip Notice.

9:30 AM. The Senate Foreign Relations Committee will hold a hearing on intellectual property piracy issues. Location: Room 419, Dirksen Building.

10:00 AM. The House Commerce Committee will hold a hearing titled "The State of U.S. Industry". Secretary of Commerce Donald Evans will testify. The hearing will be webcast. Press contact: Larry Neal or Jon Tripp at 202 225-5735. See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Paul Diamond to be Judge of the U.S. District Court for the Eastern District of Pennsylvania. Location: Room 226, Dirksen Building.

2:30 PM. The House Government Reform Committee's Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census will hold a hearing titled "Electronic Government: A Progress Report on the Successes and Challenges of Government-wide Information Technology Solutions". Location: Room 2154, Rayburn Building.

Deadline to submit comments to the Copyright Office (CO) regarding its proposed rules governing the service of complaints, summonses, subpoenas and other legal process on the CO and its employees in their official capacities. See, notice in the Federal Register, February 23, 2004, Vol. 69, No. 35, at Pages 8120 - 8126.

Thursday, March 25

The House will meet at 10:00 AM for legislative business. The House will take up several items under suspension of the rules. On Wednesday or Thursday, the House is scheduled to take up HR 1768, the "Multidistrict Litigation Restoration Act of 2004". See, Republican Whip Notice.

8:00 - 9:30 AM. The Republican Technology Council and the U.S. Chamber of Commerce will host a panel discussion titled "Global Competitiveness: Countering Economic Isolationism". The speakers will include Sen. Bob Bennett (R-UT), Rep. Darrell Issa (R-CA), and Robert Goodman (Kentron Technologies). RSVP by March 23 to 202 467-4424 or info@rtc-online.org. See, notice. Location: American Gas Association, 400 North Capital Street.

9:00 AM - 5:00 PM. The Federal Communications Commission (FCC) will host a meeting title "Emergency Communications and Homeland Security -- Working with the Disability Community". See, notice [PDF]. Location: FCC, 445 12th Street, SW.

9:30 AM. The Senate Commerce Committee will hold a hearing titled "Escalating Cable Rates: Causes and Solutions". The witnesses will be Mark Goldstein (General Accounting Office), James Robbins (P/CEO of Cox Communications), George Bodenheimer (President of ESPN and ABC Sports), Gene Kimmelman (Director of the Consumers Union), and Rodger Johnson (P/CEO of Knology). The hearing will be webcast by the Committee. See, notice. Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on the Constitution will hold a hearing on HRes 568, which expressing the sense of the House that judicial determinations regarding the meaning of the laws of the U.S. should not be based on judgments, laws, or pronouncements of foreign institutions. The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON. The Progress and Freedom Foundation (PFF) will host a debate between Stanford Law School Professor Lawrence Lessig and PFF Fellow James DeLong. Lessig will also release his latest book, titled Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity [Amazon order page]. The PFF notice states that "Those interested in attending should register by contacting Brooke Emmerick at 202-289-8928 or bemmerick@pff.org. Members of the media should contact David Fish at 202 289-8928 or dfish@pff.org. Location: First Amendment Lounge, National Press Club, 529 14th St. NW, 13th Floor.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag luncheon titled "Distribution of Universal Service Support to High Cost Areas: Reflections on the Joint Board 'Portability' Proceeding". The speakers will be Matthew Brill (Senior Legal Advisor to Commissioner Kathleen Abernathy), Karen Brinkmann (Latham & Watkins), Joel Lubin (AT&T), David Sieradzki (Hogan & Hartson). RSVP to Cecelia Burnett at 202-637-8312 or cmburnett@hhlaw.com. Location: Hogan & Hartson, 555 13th St., NW, Lower Level.

2:00 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 U.S. Trade Representative (USTR). USTR Robert Zoellick is scheduled to testify. Location: Room H-309, Capitol Building.

2:00 PM. The House Armed Services Committee's Subcommittee on Terrorism, Unconventional Threats and Capabilities will hold a hearing on the President's FY 2005 budget request for Department of Defense science and technology policy programs. The witnesses will be Ronald Sega (Director, Defense Research and Engineering), Anthony Tether (Defense Advanced Research Projects Agency), Thomas Killion (Deputy Assistant Secretary of the Army for Research and Technology), Rear Admiral Jay Cohen (Chief of Naval Research), and James Engle (Deputy Assistant Secretary of the Air Force for Science, Technology and Engineering). Location: Room 2212, Rayburn Building.

2:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security, and the House Homeland Security Committee's Subcommittee on Intelligence and Counterterrorism, will hold a joint hearing titled "Progress in Consolidating Terrorist Watchlists -- The Terrorist Screening Center (TSC)". The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

4:00 PM. Joseph Scott Miller (Lewis and Clark Law School) will present a paper titled "Roles and Rules for Dictionaries in the Patent Office and the Courts". For more information, contact Robert Brauneis at 202 994-6138 or rbraun@law.gwu.edu. Location: George Washington University Law School, Faculty Conference Center, Burns Building, 5th Floor, 716 20th Street, NW.

Friday, March 26

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will hold a meeting. See, agenda [PDF]. Location: FCC, Room TW-C305, 445 12th Street, SW.

9:30 AM. The Consumer Federation of America (DFA) will host an event titled "Network Neutrality for the Broadband Internet". The speakers will include Federal Communications Commission (FCC) Commissioner Michael Copps, Lawrence Lessig (Stanford University), and Vinton Cerf (MCI WorldCom). To attend, contact Mark Cooper (CA) at mcooper@consumerfed.org or 301 384-2204. Location: an undisclosed room on Capitol Hill.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch regarding emerging technologies. The speakers will be Jeff Campbell (Cisco), Mark Murphy (Ericsson), Bill Lane (FCC Office of Strategic Planning), Kenneth Carter (FCC Office of Strategic Planning). For more information, contact Ken Carter at Kenneth.Carter@fcc.gov or Pam Slipakoff at Pam.Slipakoff@fcc.gov. Location: Willkie Farr & Gallagher, 1875 K Street, NW.

Monday, March 29

8:30 AM - 4:15 PM. The Consumer Electronics Association (CEA) will host its event titled "HDTV Summit: Partnership, Policy and Profits". Rep. Fred Upton (R-MI), the Chairman of the House Commerce Committee's Subcommittee on Telecommunications and the Internet, will be the keynote speaker at 9:40 AM. Prices vary. See, CEA notice. Location: Washington DC Convention Center, 801 Mount Vernon Place, NW.

9:30 AM. The U.S. Court Appeals (DCCir) will hear oral argument in SBC Communications v. FCC, No. 03-1118. Judges Sentelle, Rogers and Tatel will preside. Location: 333 Constitution Ave.

Deadline to submit comments to various federal agencies regarding whether these agencies agencies should consider amending existing regulations that implement sections 502 and 503 of the Gramm Leach Bliley Act (GLB) to allow or require financial institutions to provide alternative types of privacy notices. The agencies are the Board of Governors of the Federal Reserve System, Commodity Futures Trading Commission (CFTC), Federal Deposit Insurance Corporation (FDIC), Federal Trade Commission (FTC), National Credit Union Administration, Office of the Comptroller of the Currency, Office of Thrift Supervision, and the Securities and Exchange Commission (SEC). See, notice in the Federal Register, December 30, 2003, Vol. 68, No. 249, at Pages 75164 - 75174.