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June 9, 2004, 9:00 AM ET, Alert No. 914.
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Ashcroft Testifies Before Senate Judiciary Committee

6/8. The Senate Judiciary Committee held a hearing titled "DOJ Oversight: Terrorism and Other Topics". Attorney General John Ashcroft spent over three hours testifying, answering questions, and listening to Senators.

All but two of the 19 members of the Committee participated in at least part of the hearing. Senators spent a majority of the time on issues related to custodial interrogation in the war on terrorism, and executive branch memoranda pertaining to interrogation and torture. Republicans generally praised Ashcroft and the Department of Justice (DOJ). Democrats repeatedly asked Ashcroft to provide the Committee with copies of executive branch memoranda, and condemned Ashcroft for not providing such memoranda. Many significant technology related issues at the DOJ either were not discussed, or were little discussed.

There was considerable discussion of some electronic surveillance laws, extension of the provisions of the USA PATRIOT Act that are scheduled to sunset, and the SAFE Act.

Ashcroft addressed, in a prepared statement, peer to peer file sharing systems and pormography. Ashcroft also addressed in a prepared statement the use of information technology at the DOJ.

Issues Not Addressed. There was no discussion of the DOJ's Antitrust Division, the European Commission's recent action against Microsoft, mergers involving tech companies, or any other issues involving competition law.

There was no discussion of the DOJ's Computer Crimes and Intellectual Property Section (CCIPS), cyber security, cyber terrorism, prosecution of cyber crimes, or legislative proposals to expand DOJ authority with respect to cyber crimes.

There was no discussion of the DOJ's enforcement of intellectual property laws, or pending legislation that would expand the authority of the DOJ with respect to enforce intellectual property.

There was no mention of the DOJ's petition [PDF] to the Federal Communications Commission (FCC) regarding expanding the scope of the Communications Assistance for Law Enforcement Act (CALEA) to cover information services, such as VOIP. This is the FCC's RM 10865. See also, story titled "Summary of DOJ Petition for Rulemaking to Expand the CALEA to Cover Information Services" in TLJ Daily E-Mail Alert No. 873, April 9, 2004.

Sen. Orrin HatchSen. Hatch. Sen. Orrin Hatch (R-UT) (at right), the Chairman of the Committee, presided. He addressed the PATRIOT Act in his opening statement, which he largely read at the outset of the hearing. He stated that "This legislation was a measured attempt to help protect Americans from terrorist attacks and is consistent with our traditional civil liberties. Despite the negative predictions of some, the Patriot Act has not eroded the civil liberties that we Americans hold dear."

"As I understand it, the Department's Inspector General has consistently reported in three semi-annual reports that it has received no complaints alleging misconduct by DOJ employees in their use of substantive provisions of the Patriot Act. Let me repeat -- no complaints. Nevertheless, if we can improve and fine tune the Patriot Act, we should do so", said Sen. Hatch.

On January 27, the DOJ's Office of the Inspector General (OIG) submitted a report to Congress titled "Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act". The DOJ/OIG is required to submit this report twice per year regarding "complaints alleging abuses of civil rights and civil liberties" by DOJ employees. There is nothing in the report regarding wiretaps, pen registers and trap and trace devices, surveillance of internet communications, CALEA, or any of the technology related provisions of the PATRIOT Act. See, story titled "DOJ Submits Report on Complaints Regarding Abuses of Civil Rights and Civil Liberties" in TLJ Daily E-Mail Alert No. 827, February 2, 2004.

Sen. Leahy. Sen. Patrick Leahy (D-VT) read a long litany of complaints and criticisms about the DOJ in his opening statement. For example, he complained that "Osama Bin Laden remains at large" and the anthrax case has yet to be solved. He all but ignored technology related issues in both his opening statement, and in his rounds of questions for Ashcroft.

He referenced the PATRIOT Act. He said that "you have spent much of the past two years increasing secrecy, lessening accountability and touting the Government’s intelligence-gathering powers under the PATRIOT Act. I and others here in Congress from both sides of the aisle worked together in unparalleled cooperation to pass the PATRIOT Act shortly after September 11."

"But now I must ask, to what end? The threshold issue really is: What good is having intelligence if we cannot use it intelligently? Identifying suspected terrorists is only a first step. To be safer, we must follow through. Instead of declining tough prosecutions, we need to bring the people seeking to do us harm to justice. That is how our system works. Instead, your practices seem to be built on secret detentions and overblown press releases. Our country is made no safer through self-congratulatory press conferences when we face serious security threats", said Sen. Leahy.

P2P and other Online Pornography. Ashcroft provided the Committee with two written statements. First, there was his formal prepared statement, which he did not read. Second, there was his oral testimony, which he did read to the Committee. Ashcroft used the former to address pornography on P2P systems, and the DOJ's adoption of information technologies.

Ashcroft addressed "child exploitation offenses, including child pornography". He wrote that "At the Department of Justice we understand that effective prevention requires more than the imprisonment of individual child predators. We are finding and destroying the perverse underworld that provides a market for and a prelude to crimes against children."

"We recently saw the first results of this strategy in our ongoing investigation and prosecution of peer-to-peer computer file sharing of child pornography. Thanks to coordinated efforts of the Justice Department, the FBI, U.S. Immigration and Customs Enforcement, and 39 local Internet Crimes Against Children Task Forces, we have executed hundreds of searches nationwide", wrote Ashcroft. "At last count, we had identified 3,371 suspect computers distributing child pornography through the use of peer-to-peer software over the Internet."

He also wrote that "Child predators often open websites with a slight misspelling or variation in the spelling of innocent, child-friendly websites in order to expose children to indecent material. We have responded to this repugnant tactic by initiating a false domain-name program. This program locates and shuts down websites that expose children to sexual exploitation and pornographic images by using misleading web names."

DOJ Information Technology. Ashcroft wrote in his prepared testimony that "Effective information technology is critical for both the fight against terrorism and the efficient delivery of services to the public. That is why we have revitalized our Information Technology organization. With the appointment of a new Chief Information Officer, or CIO, the new tech team is leveraging the leadership of experienced executives and managers to implement an Information Technology strategy that is on the cutting edge."

He continued that the DOJ "Published the first Department Information Technology Strategic Plan in 2002. This means we turned fragmented, stand-alone plans into a single, cohesive Department-wide strategy for effective technology deployment in the future."

He also wrote that the DOJ has "Begun designing a single enterprise architecture. This means we will have a technology plan that promotes communication interoperability, and information sharing, with core business functions."

Finally, he wrote that "We have initiated the first ever Law Enforcement Information Sharing (LEIS) strategy to coordinate information sharing across the law enforcement community, from the small-town sheriff to the director of the FBI."

Ashcroft Testifies Regarding PATRIOT Act

6/8. The Senate Judiciary Committee held a hearing titled "DOJ Oversight: Terrorism and Other Topics". Attorney General John Ashcroft was the sole witness. The one technology related subject discussed in detail at this hearing by Senators and Ashcroft was the surveillance related provisions of the USA PATRIOT Act, and proposals to expand the PATRIOT Act.

John Ashcroft

Ashcroft (at right) wrote in his prepared statement that "We will continue to fight terrorism using all the tools at our disposal. As the Committee is aware, however, key provisions of one such critical tool -- the Patriot Act -- are currently scheduled to ``sunset´´ at the end of 2005. In our view, it is imperative that this ``sunset´´ not be allowed to take place. Instead, these provisions need to be renewed."

"The Justice Department and the American people have benefitted tremendously in preventing terrorism, thanks to the Patriot Act. This important bipartisan legislation removed the bureaucratic wall between law enforcement and intelligence."

The hearing included discussions of sunsetting generally, roving wiretaps, delayed notice of search warrants (also known as sneak and peak), and access to business records under the Foreign Intelligence Surveillance Act (FISA).

However, there was no discussion of the PATRIOT Acts's treatment of libraries as electronic communications service providers, or extending the provisions regarding pen register and trap and trace devices to electronic communications, such as e-mail.

The hearing also covered various legislative proposals, including those pertaining to lone wolf FISA orders, terrorism hoaxes, and administrative subpoenas.

Also, while Ashcroft spoke in general terms about terrorists' use of new communications technologies, there was no discussion of specific technologies, such as voice over internet protocol (VOIP) communications, push to talk, or encryption.

Background on the PATRIOT Sunsetting Issue. The full title of the USA PATRIOT Act is the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

Title II of the PATRIOT Act, which addresses electronic surveillance, provides, at § 224, for the sunsetting of many of the provisions of Title II. It provides, in part, that "this title and the amendments made by this title (other than sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 221, and 222, and the amendments made by those sections) shall cease to have effect on December 31, 2005." (Parentheses in original.)

Consequently, the following sections are scheduled to sunset:
  § 201 pertaining to "Authority to intercept wire, oral, and electronic communications relating to terrorism"
  § 202 pertaining to "Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses"
  § 203(b) pertaining to "Authority to share electronic, wire and oral interception information" of criminal investigations
  § 203(d) pertaining to sharing "Foreign intelligence information"
  § 204 pertaining to "Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communication"
  § 206 pertaining to "Roving surveillance authority under the FISA"
  § 207 pertaining to "Duration of FISA surveillance of non-United States persons who are agents of a foreign power"
  § 209 pertaining to "Seizure of voice-mail messages pursuant to warrants"
  § 212 pertaining to "Emergency disclosure of electronic communications to protect life and limb"
  § 214 pertaining to "Pen register and trap and trace authority under FISA"
  § 215 pertaining to "Access to records and other items under the FISA"
  § 217 pertaining to "Interception of computer trespasser communications"
  § 218 pertaining to "Foreign intelligence information"
  § 220 pertaining to "Nationwide service of search warrants for electronic evidence"
  § 223 pertaining to "Civil liability for certain unauthorized disclosures"
  § 225 pertaining to "Immunity for compliance with FISA wiretap".

Several bills have been introduced that would affect the sunsetting of these and other sections. For example, Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, introduced S 1695, the "PATRIOT Oversight Restoration Act" on October 1, 2003. See, story titled "Sen. Leahy Introduces Bill to Expand List of Surveillance Provisions of PATRIOT Act to Be Sunsetted" in TLJ Daily E-Mail Alert 757, October 14, 2003.

However, the bill which has the most support in the Senate is S 1709, the "Security and Freedom Ensured Act of 2003", or SAFE Act, introduced by Sen. Larry Craig (R-ID) on October 2, 2003. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

The Leahy and Craig bills would not only reaffirm that many of these sections will sunset, they would also add several additional sections for sunsetting:
  § 213 pertaining to "Authority for delaying notice of the execution of a warrant"
  § 216 pertaining to "Modification of authorities relating to use of pen register and trap and trace devices"
  § 219 pertaining to "Single-jurisdiction search warrants for terrorism"

In contrast, there is a bill, S 2476, sponsored by Sen. Jon Kyl (R-AZ) and others, that would extend all of the sunsetting provisions. Sen. Kyl used the hearing to promote his bill. It would provide simply that "Section 224 of the USA PATRIOT Act (18 U.S.C. 2510 note) is repealed." (Parentheses in original.)

Sen. Orrin Hatch (R-UT), the Chairman of the Committee, expressed his support for extending the sunsetting provisions of the PATRIOT Act.

Ashcroft stated during an exchange with Sen. Hatch that "The sunsetting provisions must not expire, unless we want to simply to -- if we want to let down the guard of the United States -- And if we were to expose the United States to -- to in some way reset the balance in favor of terror, we could do so by deciding not to re-enact those provisions of the PATRIOT Act. I think it would be a tragedy."

Sen. Jeff Sessions (R-AL) supports extending the sunsetting provisions, and opposes changes to the PATRIOT Act. He said that "I believe that the proposed changes in the Act that some have offered weaken the Act substantially. I think that we should not do that. I think we ought to take some time and go over every word of the Act. We can do that. But, in the end, I believe we should not make that change."

Sen. Craig and the SAFE Act. Sen. Sessions sat next to Sen. Larry Craig (R-ID) at the hearing. Sen. Craig is the lead sponsor of the leading bill to propose changes to the PATRIOT Act, the SAFE Act. He spoke in broad terms about the SAFE Act, without addressing any of its provisions.

Sen. Larry Craig"I am proposing changes in the PATRIOT's Act", said Sen. Craig (at left). "And we will look at those issues. Sen. Sessions has just said we will look at it in great detail. And we must."

"You see, I trust you. But I don't know about the next Attorney General, or the next Attorney General", he said to Ashcroft. "And therefore, we will not build the law based on trust."

"We gave you extraordinary powers", Sen Craig told Ashcroft. "But I do believe in safeguards. And I do believe there is an importance in asking for the right to proceed at certain times along the way. And that is all that the SAFE Act rightfully does."

He concluded that "Civil liberties in this country are the basis of our great country. And, while I respect you and trust you, I don't trust government. And I don't expect our citizens to, unless the laws are in place to make government to perform in the appropriate fashion."

Roving Wiretaps. Ashcroft brought up roving wiretaps in response to a question from Sen. Hatch. The Attorney General stated that "The tools of the United States PATRIOT Act, which were tools enacted by this Congress, have taken down the wall between the intelligence community and the law enforcement community. And that is an important amalgamation of information. And the best friend of prevention is information. If you have the right information, you can prevent. Without that information, you can't. In addition, the efficiencies provided in the Act, which provides, say, for the use of so called multi-point, or roving wiretaps, in matters relating to terrorism, really a makes a difference in our ability to monitor or surveil terrorists in way that we have long had the authority against drug dealers and organized crime figures."

Sen. Sessions also initiated a discussion of roving wiretaps at this hearing. He said that "I do not believe that the PATRIOT Act represents any major expansion of government power. It simply makes sure  you can utilize that power that has been approved constitutionally, against drug dealers and others, against terrorists."

Ashcroft agreed, and added that "These so called roving wiretaps provisions, where you can tap more than one phone of a single person, or if they threw one phone away, you can tap the next one. That has been in place since 1986 for drug traffickers."

Finally, Ashcroft discussed roving wiretaps during his exchange with Sen. Russ Feingold (D-WI). Ashcroft stated that passing the SAFE Act would impair the DOJ's ability to conduct roving wiretaps. For example, he said that "The SAFE Act would require that we have an identity for a person before we can get a wiretap. Frequently, these terrorists are very good at concealing their identities, and disguising themselves."

§ 206 of the PATRIOT Act, pertaining to "Roving surveillance authority under the FISA", amended 50 U.S.C. § 1805. § 206 provides in full that "Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting `, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,' after `specified person'." § 206 is scheduled to sunset. Both the Craig and Leahy bills would also sunset this section.

Terrorism Hoaxes. Sen. Hatch asked Ashcroft about pending terrorism hoax legislation. See, S 2204, the "Stop Terrorist and Military Hoaxes Act of 2004", sponsored by Sen. Hatch, Sen. Schumer, Sen. Cornyn, and Sen. Feinstein on March 11, 2004. See also, S 1441, the "Protection Against Terrorist Hoaxes Act of 2003", and HR 1678, the "Anti-Hoax Terrorism Act of 2003".

Ashcroft stated that "Every time someone requires the Department to move to respond to a hoax, it takes valuable resources. There have been thousands of hoaxes, for instance, on anthrax alone. And, there should be significant penalties for individuals who divert the resources that can fight terror, away from the fight against terror, and are just responding to hoaxes."

FISA Lone Wolves. Sen. Hatch asked Ashcroft about pending FISA lone wolf legislation. See, S 113 and S 123.

Ashcroft said this. "Another item which I believe Senator Kyl and Senator Schumer and you have joined to work on is what is called the lone wolf amendment to FISA, which would provide the ability to surveil someone known to be involved in terrorism, but not being involved in terrorism with someone else, but doing it exclusively on his own or her own motion. It seems that our ability to surveil that kind of person should be commensurate" with the DOJ's ability under FISA to surveil terrorist groups.

The FISA currently only applies to foreign powers, and agents of foreign powers, including international terrorists. It also provides for the issuance of an order on a lower standard than is required for a Title III warrant, which is used in ordinary criminal investigations.

Administrative Subpoenas. Ashcroft was not asked about administrative subpoenas. Nevertheless, he advocated allowing them in terrorism investigations. President Bush has also stated as much in recent speeches.

Ashcroft said that "There are about, I think, about 335 different areas of the federal government, in which enforcement officials have the right to request on an official basis documents from businesses -- businesses records. Those are called administrative subpoenas. I believe that if those are requestable on the basis of health care fraud, and other things, that, for terrorism cases we would be well served to have that same kind of authority. This doesn't mean that there is an automatic ability to get them, if a person resists that, then the courts would -- decide whether or not it is merited."

Also, on September 9, 2003, Rep. Tom Feeney (R-FL) introduced HR 3037, the "Antiterrorism Tools Enhancement Act of 2003", for this purpose. See, story titled "Bush Proposes Expanded Administrative Subpoena Power" in TLJ Daily E-Mail Alert No. 738, September 12, 2003.

Section 215 and Library Records. Sen. Russ Feingold (D-WI) and Sen. Arlen Specter (R-PA) both expressed concerns at this hearing about § 215 of the PATRIOT Act. Although, neither asked Ashcroft to address this topic; and, he volunteered no information. The SAFE Act would revise this section to make it more difficult to obtain business records.

This section rewrote § 501 of the FISA, which is codified in Title 50 as § 1861. It pertains to "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations". § 215 (of the PATRIOT Act) replaced §§ 501-503 (of the FISA) with new language designated as §§ 501 and 502.

Currently, § 501 (as amended by § 215) requires that an application to a judge or magistrate "shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." Allowing § 215 to sunset, or passing a bill such as Sen. Craig's, would raise the standards for obtaining a FISA order for business records.

While the statute does not expressly include library records, it is not disputed that library records could be obtained. However, John Ashcroft stated in September 2003 that it has not been used to obtain library records. Nevertheless, the American Library Association (ALA) has been the most vocal opponent of § 215.

Sneak and Peak. Sen. Feingold briefly expressed concerns about Section 213 of the PATRIOT Act. The section pertains to delayed notification of search warrants, which critics, such as Sen. Feingold, refer to as "sneak and peak". This section is not scheduled to sunset. However, there are legislative proposals to modify the procedure for obtaining delayed notification of search warrants, including the Leahy and Craig bills.

Other Issues. Ashcroft also discussed the death penalty. He said that "the seriousness of the threat of terrorism requires that we have available in circumstances were people are killed, and significant killing of individuals in terrorist activity, should result in the death penalty." He also argued for a presumption in favor of detention of terrorists.

Sen. Russ Feingold (D-WI) offered criticisms of the PATRIOT Act, and the Bush administration's characterization of the debate over sunsetting of PATRIOT Act provisions. His comments mirrored his comments of May 20, 2004, when he questioned Robert Mueller, the Director of the Federal Bureau of Investigation, at another hearing of the Senate Judiciary Committee. See, story titled "FBI Director Mueller Appears Before Senate Judiciary Committee" in TLJ Daily E-Mail Alert No. 904, May 24, 2004.

Sen. Feingold also argued that the DOJ is not providing the Senate Judiciary Committee with the records and information that it needs to review the PATRIOT Act.

Sen. Charles Schumer (D-NY) raised the issue of Section 215 and library records. He pointed out that the DOJ was long criticized on this subject, but Ashcroft waited a year before announcing that Section 215 had not been used in connection with library records. Sen. Schumer did not complain about this provision in the PATRIOT Act, and did not oppose its extension. Rather, he said that DOJ "secrecy is the issue here".

Sen. Mike DeWine (R-OH) addressed the Foreign Intelligence Surveillance Act (FISA) process. He said that requests for FISA orders have increased since the terrorist attacks of September 11, 2001, and that the application process is now too long and slow. It argued that the DOJ must devote more resources to this process, and prioritize its requests for FISA orders. Ashcroft responded that the DOJ is prioritizing.

Sen. John Edwards (D-NC) attended part of the hearing, but said nothing. Sen. Ted Kennedy (D-MA) was loud and hostile in his interrogation of Ashcroft. But, he had nothing to say about any technology related issues.

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Wednesday, June 9

The House will meet at 10:00 AM. It will consider a resolution honoring Ronald Reagan. See, Republican Whip Notice.

The Senate will meet at 9:30 AM for morning business, and at 11:30 AM to consider a resolution honoring Ronald Reagan.

7:30 - 10:30 AM. Washington Technology will host an event titled "Solutions Series: Building Trust Services (The Department of Homeland Security)". At 9:30 AM Under Secretary of Homeland Security Asa Hutchinson will speak. See, notice and registration page. This event is free. For more information, contact Bridgit Kearns at 202 772-5749 or Location: Sheraton Reston Hotel, 11810 Sunrise Valley Drive, Reston, VA.

9:30 AM. The Senate Commerce Committee will hold a hearing titled "Completing the Digital Television Transition". The witnesses will be Rep. Jane Harman (D-CA), Kenneth Ferree (Chief of the Federal Communications Commission's Media Bureau), John Lawson (Association of Public Television Stations), Michael Calabrese (New America Foundation), Patrick Gelsinger (Intel), and Thomas Hazlett (Manhattan Institute). See, notice. The hearing will be webcast by the Committee. Location: Room 253, Russell Building.

9:30 AM. The Senate Foreign Relations Committee will hold a hearing titled "Evaluating International Intellectual Property Piracy". The witnesses will be Jack Valenti (Motion Picture Association of America), Mitch Bainwol (Recording Industry Association of America), Robert Holleyman (Business Software Alliance), and Douglas Lowenstein (Entertainment Software Association). See, notice. Location: Room 419, Dirksen Building.

CANCELLED. 10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR 4518, the "Satellite Home Viewer Extension and Reauthorization Act 2004", HR 338, the "Federal Agency Protection of Privacy Act of 2004", and HR 3632, the "Anti-Counterfeiting Amendments of 2003".

POSTPONED. 10:00 AM. The House Commerce Committee's Subcommittee on Oversight and Investigations will hold a hearing titled "Problems with the E-rate Program: Waste, Fraud, and Abuse Concerns in the Wiring of Our Nation's Schools to the Internet". The hearing will be webcast. See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing titled "DHS Oversight: Terrorism and Other Topics". Secretary of Homeland Security Tom Ridge will testify. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch. This is an election and organizational meeting. Person interested in running for office should contact either Ryan Wallach at or 202-303-1159, or Pam Slipakoff at or 202-418-7705. Location: Willkie Farr & Gallagher, 1875 K Street, NW, second floor.

CANCELLED. 12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. The speaker will be Ken Ferree, Chief of the Federal Communications Commission's (FCC) Media Bureau. The topic will be "Current Issues at the Media Bureau". Location: National Association of Broadcasters, 1771 N Street, NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a brown bag lunch program titled "The U.S. Science and Technology Enterprise: Are We Making the Right Choices?". The speaker will be John Marburger, Director of the Office of Science and Technology Policy (OSTP) in the Executive Office of the President. RSVP to Jennifer Buntman at 202 986-4901 or to See, notice. Location: NAF, 1630 Connecticut Ave., NW, 7th Floor.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Neomagic v. Trident Microsystems. Location: Courtroom 402, 717 Madison Place, NW.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposed rules changes to adjust certain patent fee amounts to reflect fluctuations in the Consumer Price Index (CPI). See, notice in the Federal Register, May 10, 2004, Vol. 69, No. 90, at Pages 25861 - 25864.

Deadline to submit comments to the Rural Utilities Service (RUS) regarding its proposed rules changes regarding accounting policies and procedures for RUS Telecommunications Borrowers. See, notice in the Federal Register: May 10, 2004, Vol. 69, No. 90, at Pages 25848 - 25856.

Deadline to submit requests for grant applications to the National Telecommunications and Information Administration (NTIA) for grants under the Pan-Pacific Education and Communications Experiments by Satellite (PEACESAT) program. See, notice in the Federal Register, May 10, 2004, Vol. 69, No. 90, at Pages 25883 - 25885.

Thursday, June 10

No votes are expected in the House. See, Republican Whip Notice.

Day one of a two day conference titled " Security Summit". At 8:30 AM, Amit Yoran, the Director of the Department of Homeland Security's (DHS) National Cyber Security Division, will speak. Prices to attend vary. For more information, contact John Weiler at 703 768-0400 or Location: Marriott Metro Center, 775 12th St., NW.

The Department of Commerce (DOC) will host a one day event titled "International Travel to the U.S.: Dialogue on the Current State of Play". See, agenda. Location: DOC, Main Auditorium, 1401 Constitution Ave., NW.

9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [PDF] and story titled "FCC Announces Agenda for June 10 Meeting" in TLJ Daily E-Mail Alert No. 911, June 4, 2004. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

10:00 AM. The House Ways and Means Committee will meet to mark up HR 4520, the "American Jobs Creation Act of 2004". This bill would, among other things, replace the ETI/FSC tax regimes. Press contact: 202-225-8933. Location: Room 1100, Longworth Building.

RESCHEDULED FOR JUNE 15. 10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of Alan Greenspan to be Chairman of the Federal Reserve Board. See, notice. Location: undisclosed.

CANCELLED. 11:30 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing titled "Internet Streaming of Radio Broadcasts: Balancing the Interests of Sound Recording Copyright Owners with Those of Broadcasters".

POSTPONED. 12:00 NOON - 1:30 PM. The Congressional Internet Caucus Advisory Committee will host a luncheon titled "The DMCA Revisited: What's Fair?" RSVP to or 202 638-4370. See, notice. Location: Room HC-5, Capitol Building.

12:15 PM. The DC Bar Association and the Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch. The topic will be "The Nuts and Bolts of Transfers of Control at the FCC". The speakers will be Neil Dellar (FCC's Office of the General Counsel), William Dever (Wireline Competition Bureau), William Freedman (Enforcement Bureau), Susan O'Connell (International Bureau), Royce Sherlock (Media Bureau), Jeff Tobias (Wireless Telecommunications Bureau), and Julie Veach (Wireline Competition Bureau). Prices vary. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St.

POSTPONED. 12:15 - 2:00 PM. The Forum on Technology & Innovation will host a luncheon titled "The Policy Implications of Open Source Software". Location: Room 106, Dirksen Building.

1:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Market Shock and Trading Efficiency: A Comparison of Electronic and Non-Electronic Markets". The speakers will be Peter Wallison (AEI), Kenneth Lehn (University of Pittsburgh), Sukesh Patro (UPitt), Kuldeep Shastri (UPitt), Paul Bennett (New York Stock Exchange), Lawrence Harris (Securities and Exchange Commission), Frank Hatheway (Nasdaq), Mike Plunkett (Instinet), Benn Steil (Council on Foreign Relations). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Friday, June 11

The House will not meet. See, Republican Whip Notice.

President Bush issued an Executive Order stating that "All executive departments, independent establishments, and other governmental agencies shall be closed on June 11, 2004, as a mark of respect for Ronald Reagan, the fortieth President of the United States." It adds that "this order shall not apply to those offices and installations, or parts thereof, in the Department of State, the Department of Defense, the Department of Justice, the Department of Homeland Security, or other departments, independent establishments, and governmental agencies that the heads thereof determine should remain open for reasons of national security or defense or other essential public business." See also, memorandum of the Office of Personnel Management (OPM). The Securities and Exchange Commission (SEC) added in a release that its "EDGAR filing system will not accept filings on Friday, June 11".

8:30 AM - 3:00 PM. George Mason University Law School (GMULS) will host a conference titled "The Law and Economics of Cyber Security". The speakers (and their affiliations and topics), include Bruce Kobayashi (GMULS, The Law & Economics of Cybersecurity), Yochai Benkler (Yale LS, Distributed Social Provisioning of Redundant Critical Infrastructures), Randy Picker (University of Chicago LS, Raising Transaction Costs and Network Security: Of Heterogeneity and Autarchy), Jack Goldsmith and Tim Wu (University of Virginia LS, Internet Jurisdiction over Crime and Terrorism). Joel Trachtman (Tufts LS, Global Cybersecurity, Jurisdiction, and International Organization), Amitai Aviram (Florida State University, A Paradox of Spontaneous Formation), Eric Posner and Doug Lichtman (University of Chicago LS, National versus International Regulation), and Neal Katyal (Georgetown LS, The Dark Side of Private Ordering for Cybersecurity). See, conference brochure [PDF]. Location: GMULS, 3301 North Fairfax Drive, Arlington, VA.

POSTPONED. 10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing on HR __, the "Junk Fax Prevention Act of 2004". The hearing will be webcast. See, notice. Location: Room 2123, Rayburn Building.

Day one of a two day conference titled " Security Summit". Prices to attend vary. For more information, contact John Weiler at 703 768-0400 or Location: Marriott Metro Center, 775 12th St., NW.

Monday, June 14

The Supreme Court will return from a recess that it began on Monday, June 7, 2004.

2:00 - 5:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. For more information, contact Jane Mago at 202 418-2030 or Maureen McLaughlin at 202 418-2030. See, FCC notice [PDF] and notice in the Federal Register, May 6, 2004, Vol. 69, No. 88, at Pages 25390 - 25391. Location: FCC, 445 12th Street, SW.

6:30 to 8:30 PM. The National Press Club will host an event titled "Cybersecurity: The Threat and the Response". The speakers will be Wilson Dizard (Senior Editor, Government Computer News), Bob Dix (House Government Reform Committee's Technology and Information Policy Subcommittee), Richard Forno, and Hun Kim (Department of Homeland Security's National Cyber Security Division). Prices vary. For more information, call 202 662-7129. Location: National Press Club, 529 14th St., NW.

6:30 - 8:30 PM. The DC Bar Association's Arts, Entertainment and Sports Law Section will host a panel discussion titled "D.C. Confidential: Does The First Amendment Protect A Journalist's Conversations With A Source? A Roundtable Debate". Prices vary. See, notice. For more information, contact 202 626-3463. Location: National Press Club, Holeman Lounge, 13th Floor, 529 14th Street, NW.

Tuesday, June 15

8:00 AM - 3:00 PM. The Information Technology Association of America (ITAA) will host a conference on radio frequency identification (RFID), titled "ITAA RFID Forum: Business and Policy Considerations". See, notice. Prices vary. For more information, contact Eerik Kreek at 703 284-5316 or Location: J.W. Marriott Hotel.

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board. See, notice in the Federal Register, May 28, 2004 Vol. 69, No. 104, at Page 30621. Location: Hilton Hotel, 620 Perry Parkway, Gaithersburg, MD.

10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of Alan Greenspan to be Chairman of the Federal Reserve Board. Greenspan will be the only witness. See, notice. Location: undisclosed.

10:00 AM. The House Ways and Means Committee's Subcommittee on Social Security will hold a hearing titled "Enhancing Social Security Number Privacy". See, notice. Location: Room B-318, Rayburn Building.

6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) will host a continuing legal education (CLE) program titled "National Security Review of Telecommunications and Internet Transactions". This program will address both the review processes of the Federal Communications Commission (FCC) and the Committee on Foreign Investment in the U.S. (CFIUS). The speakers will include Patrick Kelly (Deputy General Counsel of the Federal Bureau of Investigation), Gay Sills (Director, Office of International Investment, Department of the Treasury), Jeanne Archibald (Hogan & Hartson), Kristen Verderame (BT Americas Inc.), and Joel Winnik (Hogan and Hartson). To register, contact Wendy Parish at Location: Hogan & Hartson, 555 13th Street, NW.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking regarding the proper disposal of consumer report  information and records. See, notice in the Federal Register, April 20, 2004, Vol. 69, No. 76, at Pages 21387 - 21392.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its notice of proposed rulemaking regarding the identity theft provisions of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act). See, notice in the Federal Register, April 28, 2004, Vol. 69, No. 82, at Pages 23369 - 23378.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding presubscribed interexchange carrier (PIC) change charge policies. This NPRM is FCC 04-96 in CC Docket No. 02-53. See, notice in the Federal Register, May 26, 2004, Vol. 69, No. 102, at Pages 29913 - 29917.

Wednesday, June 16

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board. See, notice in the Federal Register, May 28, 2004 Vol. 69, No. 104, at Page 30621. Location: Hilton Hotel, 620 Perry Parkway, Gaithersburg, MD.

10:30 AM. The House Ways and Means Committee will hold a hearing titled "Implementation of the United States-Australia Free Trade Agreement". See, notice. Press contact: 202 225-1721. Location: Room 1100, Longworth Building.

10:45 AM - 12:15 PM. The Business Software Alliance (BSA) will host an event titled "2004 Business Software Alliance CEO Forum Policy Roundtable". The speakers will be Robert Holleyman (BSA), James Glassman (AEI), Bruce Chizen (Adobe) David Krall (Avid), Greg Bentley (Bentley Systems), Dale Fuller (Borland), Bill Conner (Entrust), Dominique Goupil (Filemaker), Tom Noonan (Internet Security Systems), Steve Ballmer (Microsoft), George Samenuk (McAfee), Art Coviello (RSA Security), John McEleney (SolidWorks), John Thompson (Symantec), and Gary Bloom (Veritas). The BSA's notice states that this event "is open to the media". For more information, contact Jeri Clausing at or 202 530-5127. Location: Room 106, Dirksen Building.

Deadline for the Federal Trade Commission (FTC) to submit its report to the Congress regarding a National Do Not E-mail Registry. Section 9 of S 877, the "Controlling the Assault of Non-Solicited Pormography and Marketing Act of 2003" (CAN-SPAM Act), requires the FTC to write this report. See, story titled "FTC Announces CAN-SPAM Act Rulemaking" in TLJ Daily E-Mail Alert No. 855, March 15, 2004.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rule Making (FNPRM) and Notice of Inquiry (NOI) regarding digital audio broadcasting (DAB). This item is FCC 04-99 in MB Docket No. 99-325. See, story titled "FCC Announces FNPRM and NOI Regarding Digital Audio Broadcasting" in TLJ Daily E-Mail Alert No. 878, April 16, 2004, and notice in the Federal Register, May 17, 2004, Vol. 69, No. 95, at Pages 27874 - 27885.

2nd Circuit Rules Public Has First Amendment Right of Access to Court Dockets

6/8. The U.S. Court of Appeals (2ndCir) issued its opinion [33 pages in PDF] in Hartford Current v. Pelligrino, a case regarding the right of the public and press under the First Amendment to access sealed court docket sheets.

The plaintiffs are newspapers. The defendants are the Chief Court Administrator and Chief Justice of the state of Connecticut's court system. This state court system has a longstanding practice of widespread sealing docket sheets, as well as entire case files. The newspapers seek access. The newspapers filed a complaint in U.S. District Court (DConn) against the two defendants, in their administrative capacities, alleging violation of 42 U.S.C. § 1983. The District Court dismissed the complaint. This appeal followed.

The Court of Appeals vacated the dismissal, and remanded. It held that "the press and public possess a qualified First Amendment right of access to docket sheets". It added that "if the materials at issue were sealed administratively, the named defendants have the authority to grant access. As we are unable to discern, on the face of the minimal record before us, whether the materials were sealed in accordance with judicial orders or statutes, we vacate the judgment dismissing the action and remand the matter to the district court to ascertain, at the very least, an answer to this question."

The Court of Appeals reasoned that this case involves the right of access to the courts, which was addressed by the Supreme Court in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and in the progeny of Richmond Newspapers. The Court of Appeals also reviewed the history of openness of state court records. It concluded that "docket sheets enjoy a presumption of openness and that the public and the media possess a qualified First Amendment right to inspect them".

But, it added that this presumption is rebuttable upon a demonstration that suppression is essential to preserve higher values and is narrowly tailored to serve that interest.

In Richmond Newspapers, the Court held that the holder of the right under the First Amendment is "the public". In the present case, the Court held that the holder of the right is "the public" or "the public and press". Implicit in these holdings is the notion that the First Amendment's clause, "Congress shall make no law ... abridging the freedom of speech, or of the press", creates no rights for an institutional press that are not also guaranteed for any person. Federal administrative law, particularly Federal Communications Commission (FCC) and Federal Election Commission (FEC) law, diverges from this notion.

This case is Hartford Current Company, et al. v. Pelligrino, et al., U.S. Court of Appeals for the 2nd Circuit, No. 03-9141, an appeal from the U.S. District Court for the District of Connecticut, Judge Gerard Goettel presiding.

3rd Circuit Rules in CWA Union Dues Case

6/4. The U.S. Court of Appeals (3rdCir) issued its opinion [PDF] in White v. CWA, a case regarding the agency shop and union dues provisions in a Communications Workers of America (CWA) collective bargaining agreement (CBA).

Corey White is a Verizon subsidiary employee who does not like CWA. Unfortunately for White, Verizon negotiated a CBA with the CWA that provides that the CWA is the exclusive representative of the employees in White's workplace in negotiations with Verizon, and that all employees, regardless of whether or not they are members of the CWA, must pay union dues to the CWA, or loose their jobs.

Under the National Labor Relations Act (NLRA), a worker in such a workplace can only be compelled to to pay those fees that are necessary to perform the duties of an exclusive representative of the employees in dealing with the employer on labor management issues. See, 29 U.S.C. § 158(a)(3) and CWA v. Beck, 487 U.S. 735 (1988).

The CWA adopted an opt out procedure under which employees could exercise their right to limit the amount of union dues that they pay. The CWA gave notice to workers of this opt out procedure in its publication titled CWA News. White stated that this publication is "union propoganda" and that did not read it. Moreover, for most of the years in question, the CWA did not send White a copy. Verizon gave the CWA an incorrect address for White.

White filed a pro se complaint in U.S. District Court (EDPenn) against the CWA alleging a NLRA breach of duty of fair representation claim, and a First Amendment. He sought a refund of the non-bargaining related portion of the fees that he had paid. The District Court granted summary judgment to the CWA.

The Court of Appeals affirmed. First, the National Labor Relations Board has sole jurisdiction over the breach of duty of fair representation claim. Second, there is no state action that would give rise to a First Amendment claim.

People and Appointments

6/8. Julie Kearney was named Senior Director of Regulatory Affairs at the Consumer Electronics Association (CEA). She will represent the CEA before the Federal Communications Commission (FCC) and other government entities. She previously worked as Associate Counsel in MCI's International Affairs group. Before that, she was an associate at Haley Bader & Potts (now Garvey Schubert Barer). See, CEA release.

More News

6/8. The Senate Appropriations Committee's Subcommittee on Commerce, Justice, State, and the Judiciary cancelled its hearing on intellectual property rights, which had been scheduled for June 8 at 10:00 AM.

6/8. The U.S. Court of Appeals (DCCir) issued its opinion [11 pages in PDF] in PanAmSat v. FCC, a case involving PanAmSat's requests to the Federal Communications Commission (FCC) for partial refunds of the satellite regulatory fees that it paid for FY 1995, 1997, and 1999. The FCC exempted COMSAT from satellite regulatory fees during these years. The Court of Appeals previously held that this was impermissible. In the present matter, the Appeals Court held that "the FCC violated no law and engaged in no arbitrary or capricious action in denying PanAmSat’s refund requests for fiscal years 1995, 1997, and 1999", and denied the petition for review. This case is PanAmSat Corporation v. FCC, respondent, and Lockheed Martin Corporation and COMSAT Corporation, intervenors, U.S. Court of Appeals for the District of Columbia, Nos. 03-1133 and 03-1134, a petition for review and appeal of a final order of the FCC.

6/7. Federal Communications Commission (FCC) Commissioner Kathleen Abernathy gave a speech titled "Overview of FCC Initiatives to Protect Critical Infrastructure and Homeland Security" in which she provided a brief overview of the FCC's efforts to promote network reliability and security. She said that "We used to worry about things like earthquakes and ice storms, and perhaps teenage computer hackers, but terrorism was not a major concern. Of course, 9-11 changed all of that".

6/8. Alan Greenspan, Chairman of the Federal Reserve Board, gave a speech via satellite to the International Monetary Conference in London, England. He said that the economy has been growing, but companies have not, until recently, been hiring many workers, because they have instead been getting more productivity out of their existing workers, by learning how to use the software and IT equipment that they purchased in the boom of the late 90s. Specifically, in Greenspan-speak, he said that "One of the defining characteristics of the recent business expansion in the United States has been the evident reluctance of corporate managers to expand spending and hiring aggressively in response to and in anticipation of continued cyclical growth. ... The exceptional reluctance to expand payrolls also appears to have waned this year, and businesses are once again hiring with some vigor. But for nearly three years prior, managers sought every avenue to forestall new hiring despite rising business sales. Their ability to boost output without adding appreciably to their workforces, appears to have reflected a backlog of unexploited capabilities to enhance productivity with minimal capital investment, a delayed effect of the capital goods boom of the 1990s."