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6/21. The Supreme Court issued its opinion [36 pages in PDF] in Intel v. AMD, a case regarding the availability of a discovery order from a U.S. District Court, pursuant to 28 U.S.C. § 1782, for a complainant in an antitrust matter before the European Commission. The Supreme Court held that § 1782 authorizes, but does not require, discovery assistance.

Proceedings Below. Advanced Micro Devices (AMD) is a U.S. company, based in the U.S., that makes microprocessors. Intel is another U.S. company, based in the U.S., that makes microprocessors. They have a history of competing, both in the market place, and in the courts. Consistent with the current trend of international forum shopping in antitrust disputes, AMD filed a complaint with the Directorate General - Competition of the European Commission alleging that Intel violated Article 82 of the EC Treaty. This Article prohibits "abuse by one or more undertakings of a dominant position within the common market."

AMD then returned to a U.S. forum to avail itself of discovery allowed in U.S. courts. It sought discovery from Intel pursuant to 28 U.S.C. § 1782, which provides that "The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal ..."

AMD sought documents pertaining to another the antitrust action between Intel and Intergraph. Intel objected. AMD filed a motion to compel discovery in the U.S. District Court (NDCal). The District Court held that the EC action was not a proceeding within the meaning of Section 1782, and denied AMD's request. AMD appealed.

On June 6, 2003 the U.S. Court of Appeals (9thCir) issued its opinion [10 pages in PDF] holding that discovery is available in the U.S. pursuant to 28 U.S.C. § 1782 for a complainant in an Article 82 antitrust matter before the European Commission. See also, story titled "9th Circuit Rules on Discovery in U.S. for EC Antitrust Proceeding" in TLJ Daily E-Mail Alert No. 446, June 7, 2002.

Supreme Court. Intel petitioned for writ of certiorari. The Supreme Court granted certiorari. See, story titled "Supreme Court Grants Certiorari in Intel v. AMD" in TLJ Daily E-Mail Alert No. 776, November 11, 2003. See also, brief [46 pages in PDF] of Intel, brief [59 pages in PDF] of AMD, and reply brief [35 pages in PDF] of Intel. The Supreme Court heard oral argument on April 20, 2004. See, transcript [57 pages in PDF].

The Supreme Court affirmed the 9th Circuit. Justice Ginsburg wrote for the seven Justice majority. The Court held that "the District Court had authority under §1782(a) to entertain AMD's discovery request. The statute, we rule, does not categorically bar the assistance AMD seeks: (1) A complainant before the European Commission, such as AMD, qualifies as an ``interested person´´ within §1782(a)'s compass; (2) the Commission is a §1782(a) ``tribunal´´ when it acts as a first-instance decisionmaker; (3) the ``proceeding´´ for which discovery is sought under §1782(a) must be in reasonable contemplation, but need not be ``pending´´ or ``imminent´´; and (4) §1782(a) contains no threshold requirement that evidence sought from a federal district court would be discoverable under the law governing the foreign proceeding."

Ginsburg added that, "We caution, however, that §1782(a) authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals or to ``interested person[s]´´ in proceedings abroad. Whether such assistance is appropriate in this case is a question yet unresolved."

Justice Scalia wrote a brief concurring opinion, arguing, as he has so many times before, that legislative history is irrelevant to judicial interpretation of statutes. Justice O'Connor did not participate.

Dissent. Justice Breyer dissented. He wrote that "This case itself suggests that an American firm, hoping to obtain information from a competitor, might file an antitrust complaint with the European antitrust authorities, thereby opening up the possibility of broad American discovery -- contrary to the antitrust authorities' desires."

Breyer also wrote that many foreign nations allow persons to file actions in their courts, for which the courts do not actually function in the nature of judicial tribunals.

He also noted that Section 1782, as interpreted by the majority would allow discovery in situations where the foreign tribunal would not allow the discovery, and where, had the action been brought in the U.S., the District Court would not have allowed the discovery under the Federal Rules of Civil Procedure.

This is all important, Breyer argued, because "discovery and discovery-related judicial proceedings take time, they are expensive, and cost and delay, or threats of cost and delay, can themselves force parties to settle underlying disputes."

None of the other Justices joined in Breyer's dissent.

Amicus Briefs. This case also attracted amicus briefs. See, amicus brief on the merits submitted by the Department of Justice (DOJ). It argued that "Section 1782 authorizes, but does not require, a federal district court to provide judicial assistance in this case and that the Court should remand the case for the district court to determine whether such assistance is appropriate."

See also, amicus brief [24 pages in PDF] of the U.S. Chamber of Commerce arguing that "Under the Ninth Circuit’s ruling, any company that operates abroad can obtain nearly unlimited access to the business documents and competitive plans of its business rivals by filing a complaint with the European Commission and then seeking discovery under 28 U.S.C. § 1782. Under the Ninth Circuit’s decision, the company is allowed this discovery without taking on any costs or risks of litigation, even though the discovery is not necessary to the decisionmaking of the Commission."

6/21. The Supreme Court issued its opinion [25 pages in PDF] in Hiibel v. Sixth Judicial District of Nevada, upholding the conviction of Larry Dudley Hiibel, over 4th and 5th Amendment challenges, for the crime of delaying a police officer, pursuant to Nev. Rev. Stat. § 199.280, in connection with his refusal to identify himself when asked by a police officer.

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

As Justice Stevens noted in his dissent, "A person's identity obviously bears informational and incriminating worth, ``even if the [name] itself is not inculpatory.´´ ... A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person's identity provides a link in the chain to incriminating evidence ``only in unusual circumstances.´´" (Citations to U.S. v. Hubbell, 530 U.S. 27 (2000) omitted.)

Justice Kennedy, writing for the five Justice majority of the Court, first rejected Hiibel's argument that the Nevada statute violates the 4th Amendment of the U.S. Constitution, which protects "against unreasonable searches and seizures".

"Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment", wrote Kennedy. "Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere."

Second, Kennedy rejected Hiibel's argument that the Nevada statute violates the 5th Amendment, which provides, "nor shall any person be compelled in any criminal case to be a witness against himself". Kennedy, citing Hubbell, wrote that for the 5th Amendment to be implicated, "a communication must be testimonial, incriminating, and compelled".

Kennedy concluded that Hiibel "refused to identify himself only because he thought his name was none of the officer's business. ... the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him."

"The narrow scope of the disclosure requirement is also important. One's identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances", wrote Kennedy.

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

See also, brief [50 pages in PDF] of the state of Nevada, brief [58 pages in PDF] of Hiibel, amicus brief of the Department of Justice, 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.

6/21. The Supreme Court denied certiorari in Avery Dennison Corp. v. 3M Innovative Properties Co., a patent case involving adhering commercial graphics to surfaces. See also, opinion of the U.S. Court of Appeals (FedCir). This case is No. 03-1461. See, Order List [9 pages in PDF], at page 3.

6/21. The Supreme Court denied certiorari Passport Video v. Elvis Presley Enterprises, a copyright infringement case involving application of the four prong fair use test of 17 U.S.C. § 107. See, Order List [9 pages in PDF], at page 3. This order lets stand the split opinion [22 pages in PDF] of the U.S. Court of Appeals (9thCir), which affirmed the U.S. District Court's (CDCal) rejection of the fair use defense. In this case, Passport Video incorporated video clips, photographs, and music into a 16 hour video biography about Elvis Presley without permission from the copyright owners. The clips range in length from a few seconds to over one minute, and in some cases comprise a substantial part of copyrighted appearances on TV shows by Elvis Presley. This case is No. 03-1547.

6/21. The Supreme Court announced that "The Court will take a recess from today until Thursday, June 24, 2004." See, Order List [9 pages in PDF], at page 3.

6/21. The National Cable & Telecommunications Association (NCTA) announced that its P/CEO, Robert Sachs, "has informed the NCTA Board of Directors that he will not seek to renew his current contract with the Association." See, NCTA release.

6/21. Rodger Woock was named Division Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau's (WCB) Industry Analysis and Technology Division.

6/21. The Center for Democracy and Technology (CDT) and the Heritage Foundation released a paper [11 pages in PDF] titled "Biometric Technologies: Security, Legal, and Policy Implications", and written by Paul Rosenzweig, Alane Kochems, and Ari Schwartz. This paper concludes that "Rather biometrics (in one layer, or many) are simply another tool in a layered approach to security. They are not a panacea -- but they can play an important role in protecting America and should not be demonized as unacceptable technology."

6/21. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that further explains the USPTO's interpretation of one of the patent term adjustment provisions of its rules of practice. See, Federal Register, June 21, 2004, Vol. 69, No. 118, at Pages 34283 - 34284.

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The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. The House will consider several non-technology related items under suspension of the rules. It will then consider HR 4613, the Department of Defense Appropriations Act for Fiscal Year 2005. See, Republican Whip Notice.

10:00 AM. The House Judiciary Committee will hold an oversight hearing titled "Safeguarding Americans from a Legal Culture of Fear: Approaches to Limiting Lawsuit Abuse". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

12:00 NOON. The Congressional Internet Caucus Advisory Committee will host a luncheon. The speaker will be Kazuo Hirai, P/CEO of Sony Computer Entertainment America. He will speak on the "Potential and Opportunity Facing the Internet". See, notice. Lunch will be served. RSVP to rsvp@netcaucus.org or 202 638-4370. Location: Room 325, Russell Building.

2:30 PM. The Senate Energy and Natural Resources Committee's Energy Subcommittee will hold a hearing on the Department of Energy's (DOE) high performance computing research and development activities, and S 2176, a bill to require the Secretary of Energy to carry out a program of research and development to advance high-end computing through the Office of Science. Location: Room 366, Dirksen Building.

3:00 PM. The Personal Technology Freedom Coalition (PTFC) will hold a press conference to announce its support for HR 107, the "Digital Media Consumers' Rights Act of 2003", a bill to undermine the effectiveness of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). The speakers will include Rep. Joe Barton (R-TX), Rep. Rick Boucher (D-VA), Rep. John Doolittle (R-CA), Herschel Abbott (BellSouth), and Mark Cooper (Consumer Federation of America) The PTFC is a just formed group. Location: Room 2218, Rayburn Building.

5:45 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) program titled "Migration Trends in Spectrum Use and Regulation" The speakers are all Federal Communications Commission (FCC) officials: Julius Knapp (FCC Office of Engineering and Technology), Kenneth Carter (FCC Office of Strategic Plans and Policy Analysis), and Peter Tenhula (FCC Wireless Telecommunications Bureau). To register, contact Wendy Parish at wendy@fcba.org. The FCBA states that "After 6:00 p.m. the doors will be locked." Location: FCC, Commission Meeting Room, 445 12th Street, SW.

CANCELLED. The Federal Communications Commission's (FCC) Network Reliability and Interoperability Council VII will meet. See, notice of cancellation [PDF].

Extended deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding broadband over powerline systems. The FCC adopted this NPRM on February 12, 2004. See, story titled "FCC Adopts Broadband Over Powerline NPRM" in TLJ Daily E-Mail Alert No. 836, February 13, 2004. The FCC released the text of this NPRM on February 23, 2004. This NPRM is FCC 04-29 in ET Docket Nos. 03-104 and 04-37. See, notice in the Federal Register, March 17, 2004, Vol. 69, No. 52, at Pages 12612-12618. See also, Order Granting Extension of Time [3 pages in PDF].

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

9:30 AM. The Senate Commerce Committee will hold a hearing on the Department of Homeland Security's (DHS) FY 2005 budget request, the enhanced Computer Assisted Passenger Pre-screening System (CAPPS), and other issues. This witnesses will include Asa Hutchinson (Under Secretary, Border and Transportation Security, DHS), Thomas Kinton (Massachusetts Port Authority), James May (Air Transport Association America), Patricia Friend (Association of Flight Attendants-CWA). Location: Room 253, Russell Building.

10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR 338, the "Defense of Privacy Act", a bill to require that when agencies write rules, they take into consideration the impact of these rules on the privacy of individuals, and HR 3632, the "Anti-Counterfeiting Amendments of 2003". The meeting will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Finance Committee will hold a meeting regarding the U.S.-Australia Free Trade Agreement. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Judiciary Committee will hold a hearing on pending judicial nominees. See, notice. Press contact: Margarita Tapia (Hatch) at 202 224-5225 or David Carle (Leahy) at 202 224-4242. Location: Room 226, Dirksen Building.

11:30 AM. The Senate Governmental Affairs Committee will hold a hearing on the nomination of David Stone to be Assistant Secretary of Homeland Security, for the Transportation Security Administration (TSA). See, notice. Location: Room 342, Dirksen Building.

1:30 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Protecting Homeland Security: A Status Report on Interoperability Between Public Safety Communications Systems". The hearing will be webcast by the Committee. See, notice. Press contacts: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2322, Rayburn Building.

2:30 PM. The Senate Commerce Committee's Subcommittee on Competition, Foreign Commerce, and Infrastructure will hold a hearing titled "The Future of Peer to Peer (P2P) Technology". Howard Beales (Director of the Federal Trade Commission's Bureau of Consumer Protection), John Rose (The EMI Group), Michael Weiss (StreamCast Networks -- Morpheus), and Les Ottolenghi (Intent MediaWorks). Curt Pederson (Oregon State University). See, notice. Location: Room 253, Russell Building.

3:00 PM. The House Ways and Means Committee will meet to mark up several bills, including a draft of HR __, the "United States-Australia Free Trade Agreement Implementation Act". See, notice. Location: Room 1100, Longworth Building.

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

POSTPONED. 9:00 AM. The Senate Governmental Affairs Committee will hold the second part of its hearing titled "Buyer Beware: The Danger of Purchasing Pharmaceuticals Over The Internet". See, notice. Location: Room 342, Dirksen Building.

9:30 AM. The House Commerce Committee will meet to mark up several bills, including HR 2929, the "Safeguard Against Privacy Invasions Act" or "SPY Act". This is Rep. Mary Bono's (R-CA) spyware bill. The meeting will be webcast by the Committee. See, notice. The Subcommittee on Commerce, Trade, and Consumer Protection approved an amendment in the nature of a substitute [18 pages in PDF] on June 17, 2004. See, story titled "House Subcommittee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 922, June 21, 2004. The meeting will be webcast by the Committee. Press contact: Larry Neal or Samantha Jordan at 202 225-5735. Location: Room 2123, Rayburn Building.

9:30 AM. The Senate Judiciary Committee will hold a business meeting. 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 - 2:00 PM. The DC Bar Association's Arts, Entertainment and Sports Law Section will host a lunch titled "Indecent Exposure: Broadcast Standards and the First Amendment". The speakers will be Lee Carosi (Majority Counsel, Senate Commerce Committee) Thomas Carpenter (American Federation of Television and Radio Artists), Robert Corn-Revere (Davis Wright & Tremaine), Kelly Zerzan (Majority Counsel, House Commerce Committee), and John Davis Malloy. Prices vary. See, notice. For more information, call 202-626-3463. Location: Jenner & Block, 601 13th Street, NW, Concourse Level.

12:30 PM. The Federal Communications Bar Association (FCBA) will hold its Annual Meeting and Luncheon. The speaker will be Federal Communications Commission (FCC) Commissioner Kathleen Abernathy. Location: J.W. Marriott, 1331 Pennsylvania Ave., NW.

2:00 - 4:00 PM. The House Science Committee's Subcommittee on Environment, Technology, and Standards will hold a hearing titled "Testing and Certification for Voting Equipment: How Can the Process Be Improved?" Location: Room 2318, Rayburn Building.

4:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Patent Quality Improvement: Post-Grant Opposition". The hearing will be webcast by the Committee. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the Federal Trade Commission (FTC) to assist it in preparing its report (which is required by the Fairness to Contact Lens Consumers Act, 15 U.S.C. § 7601 et seq.) on the strength of competition in the sale of prescription contact lenses. See, notice in the Federal Register, April 22, 2004, Vol. 69, No. 78, at Pages 21833 - 21836.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rule making (NPRM) regarding expanding the disruption reporting requirements beyond wireline carriers. See, notice in the March 26, 2004, Vol. 69, No. 59, at Pages 15761 - 15774.

The House will meet at 9:00 AM. See, Republican Whip Notice.

5:45 - 8:00 PM. The Federal Communications Bar Association (FCBA) Cable Committee and Legislation Committee will hold a joint brown bag lunch. The speakers will be majority and minority counsel for the House Commerce Committee. RSVP to Wendy Parish at wendy@fcba.org. Location: Willkie Farr & Gallagher, 1875 K Street, NW.

Deadline to submit reply 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.

The House and Senate will not meet on June 28 through July 5.

The Supreme Court will return from the recess that it began on June 21.

1:00 PM. The Center for Democracy and Technology (CDT) will host a telephone press conference to discuss the Supreme Court's opinion in Ashcroft v. ACLU, a challenge to the constitutionality of the Child Online Protection Act (COPA). If the Supreme Court does not issue the opinion on this date, then the CDT will reschedule this conference for the next likely date for the issuance of the opinion -- June 28. To participate, call 334 260-2557 and provide security code 36991.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) [97 pages in PDF] regarding issues relating to services and applications utilizing internet protocol (IP). This NPRM is FCC 04-28 in WC Docket No. 04-36. See, notice in the Federal Register, March 29, 2004, Vol. 69, No. 60, at Pages 16193 - 16202. See also, story titled "FCC Adopts NPRM Regarding Regulation of Internet Protocol Services" in TLJ Daily E-Mail Alert No. 837, February 16, 2004.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding changes to the FCC Form 477 local competition and broadband data gathering program. This NPRM is FCC 04-81 in WC Docket No. 04-141. See, notice in the Federal Register, May 27, 2004, Vol. 69, No. 103, at Pages 30252 - 30277.

2:00 - 4:00 PM. There will be a meeting of the WRC-07 Advisory Committee, Informal Working Group 5: Regulatory Issues. See, FCC notice [PDF]. Location: The Boeing Company, 1200 Wilson Blvd., Arlington, VA.

3:00 - 5:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Terror, Torts, and Teleco: The Supreme Court's 2003-2004 Term". The speakers will be Viet Dinh (Georgetown University Law Center), Richard Garnett (Notre Dame Law School), Edward Warren (Kirkland & Ellis), and Michael Greve (AEI). See, notice and registration page. Location: AEI, Twelfth floor, 1150 17th St., NW.

The Defense Science Board Task Force on Global Positioning System will hold a closed meeting to discuss Galileo and other future radio navigation satellite systems. See, notice in the Federal Register, May 18, 2004, Vol. 69, No. 96, at Pages 28125 - 28126. Location: Strategic Analysis Inc., 3601 Wilson Boulevard, Arlington, VA.

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. Location: 8th Floor Conference Room, Dow Lohnes & Albertson, 1200 New Hampshire Ave., NW.

2:00 PM. The Japan International Transport Institute and the Ministry of Land, Infrastructure and Transport will host a conference titled "Aviation Security of Tomorrow". There will be a technology demonstration from 1:00 - 7:00 PM that will feature an IPv6-based secure peer-to-peer communication service platform, information secrecy management solutions using a multi-purpose smartcard, and radio frequency tags. The speakers will include Asa Hutchinson, Under Secretary for Border and Transportation Security at the U.S. Department of Homeland Security. Masayuki Nomura (NTT Communications Corporation) will give a technology demonstration. There will be a reception from 5:30 - 7:00 PM. See, notice and registration page. Registration is required by June 25. Location: Grand Hyatt Washington, 1000 H Street, NW.

Deadline to submit comments to the Financial Accounting Standards Board (FASB) regarding its document titled "Exposure Draft, Share-Based Payment, an Amendment of FASB Statements No. 123 and 95", in which it proposes to that companies must expense employee stock option plans.

Deadline to submit applications to the Department of Homeland Security (DHS) for grants for homeland security related information technology demonstration projects. See, DHS release.