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June 25, 2004, 9:00 AM ET, Alert No. 926.
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House Commerce Committee Approves Spyware Bill

6/24. The House Commerce Committee amended and approved HR 2929, the "Safeguard Against Privacy Invasions Act" or "SPY Act" on a roll call vote of 45-4.

Rep. Mary Bono (R-CA) and Rep. Edolphus Towns (D-NY) introduced this bill on July 25, 2003. See, story titled "Rep. Bono Introduces Spyware Bill" in TLJ Daily E-Mail Alert No. 706, July 29, 2003.

The Subcommittee on Commerce, Trade, and Consumer Protection approved an amendment in the nature of a substitute [18 pages in PDF] offered by Rep. Clifford Stearns (R-FL), the Chairman of the Subcommittee, by unanimous voice vote, on June 17, 2004. See, story titled "House Subcommittee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 922, June 21, 2004.

On June 24 the full Committee approved an amendment in the nature of a substitute offered by Rep. Stearns. It was approved on a voice vote. The Committee then approved the bill, as amended, on a roll call vote. All members present voted yes, except Rep. Anna Eshoo (D-CA), Rep. Darrell Issa (R-CA), Rep. Ted Strickland (D-OH), and Rep. Bart Stupak (D-MI).

Summary of the Amendment. The bill contains two sets of prohibitions. First, Section 2 prohibits deceptive acts or practices related to spyware. It provides that "It is unlawful for any person, who is not the owner or authorized user of a protected computer, to engage in deceptive acts or practices in connection with any of the following conduct with respect to the protected computer". Section 2 then enumerates nine categories of such deceptive acts or practices, including taking control of a computer, modifying settings related to a computer's access to the internet, and collecting personally identifiable information through keystroke logging.

Second, Section 3 prohibits the collection of certain information without notice and consent. Sections 2 and 3 remain largely unchanged from the Subcommittee's version of the bill, which is summarized in detail in the June 21 TLJ story.

The amendment approved on June 24 made numerous changes to the bill. These changes include, but are not limited to, the following.

It changes the keystroke logging language in Section 2.

It adds a ban of phishing.

It adds a security exemption. This new language, found at Section 5(a), provides that "Nothing in this Act shall apply to any monitoring or, or interaction with, a subscriber's Internet or other network connection or service by a telecommunications carrier, cable operator, or provider of information service or interactive computer service for network security purposes, diagnostics or repair in connection with a network or service, or detection or prevention of fraudulent activities in connection with a service or user agreement."

It adds a limitation on liability for certain providers of software or interactive computer services that attempt to remove programs that violate Sections 2 or 3.

It expands the "Law Enforcement" exception. The bill had provided an exception to only Section 3. The new language provides an exception to both Sections 2 and 3, and broadens the exception. This exception would be more accurately described as a governmental, or state action, exception, rather than a law enforcement exception.

It revises the language pertaining to preemption of state laws.

It changes the effective date of the date from 180 days after enactment to one year after enactment.

It changes the sunset date from December 31, 2008 to December 31, 2009.

It adds a new exception for currently installed software. It provides that Section 3, regarding notice and consent, "shall not apply to an information collection program installed on a protected computer before the effective date ..."

It changes the definition of personally identifying information to reference "living individual".

It authorizes the Federal Trade Commission (FTC) to give advisory opinions.

Committee Debate. On most matters, the House Commerce Committee conducts its public hearings and mark ups with considerable civility. It strives for consensus on its legislative output. It seeks to present a common position on bills reported to the full House. Votes are often unanimous. Dissenters often do not cast votes in opposition.

The final vote was lopsidedly in favor. However, there were nevertheless two major sources of opposition to the bill, or aspects of the bill. First, some members opposed the procedure used to move this bill. Second, some members opposed the bill's failure to protect legitimate uses of software, for purposes such as network security, detecting fraud, and monitoring and updating installed software.

No one expressed opposition to enacting legislation that prohibits harmful uses of technologies for spying on computer users. The debate was over how not to also prohibit legitimate uses of the same underlying technologies.

Several members voted for the bill, but stated that it still needs further amendment. For example, Rep. Rick Boucher (D-VA), who is also a Co-Chair of the Congressional Internet Caucus, stated that some people have expressed concerns that the bill suffers from "overbreadth", and that "these do deserve our continued attention in future steps of the process".

Similarly, Rep. Edolphus Towns (D-NY) stated that "we want to target the bad actors, and not impede network security". He added that "I have some remaining concerns that we have excluded some worthy security concerns from the carve out".

Many members complained about procedure. While Rep. Bono and Rep. Towns introduced the bill in July of 2003, the original bill was essentially a rough draft. The Committee then took no action until April 29, 2004 when the Subcommittee on Commerce, Trade, and Consumer Protection held a hearing. Then, in the course of just over one week, the Committee released an extensive redrafting of the bill, the Subcommittee approved that amendment, the Committee released an further redrafting of the bill, and the Committee approved that amendment.

Members complained that it was not until just before midnight on June 23 that the Committee e-mailed to them the 21 page bill to be approved at 9:30 AM on June 24. For example, Rep. Strickland said that "many of us have not had the opportunity to study the manager's amendment".

Rep. Eshoo complained that while the Committee held a meeting for members and staff on June 23, her office was not invited.

When Rep. Issa attempted to offer amendments to Rep. Stearn's amendment in the nature of a substitute, or to the base bill, Rep. Stearns objected, citing the Committee's procedural rules. The Chairman appropriately ruled the amendments out of order. But, the claims of the bill's proponents that the Committee followed an open process were further undermined.

Rep. Anna EshooRep. Eshoo, who represents a Silicon Valley district, spoke at length about her concerns about the bill. She said that "I just don't think that there has been sufficient opportunity to fully consider the implications of this bill."

She said that "these are not easy issues. The technology is complicated. The privacy issues are difficult. And, the different business models at stake are really varied and complex. And, I don't think that this is something that we should rush through."

"I think that we should take the time to really get this thing right. And with all do respect, I think that this thing has been rushed. There are many legitimate processes that are enabled by monitoring web usage, such as protecting consumers against fraud, providing customer support, permitting personalization of content, and targeting advertising that will be of most interest to the user. There is a very long list of companies and organizations that I would like to mention that have problems with one thing or another with the bill.

She named "Dell, Microsoft, eBay, Yahoo, America Online, Amazon, the Business Software Alliance, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Information Technology Association of America, the Information Technology Industry Council, and the Software and Information Industry Association. That is a handful of problems. I mean, we have got to work some of these things out."

She added, "I may not agree with all of the reasons that all of these organizations and companies have weighed in. But I think that that is a pretty broad group".

She gave examples. "Yahoo might monitor for personalization accuracy"; "eBay, they monitor ... people on their website for fraud"; "Microsoft analyzes users to see what security patches are needed, and to see how the software is functioning."

She then asked rhetorically, "How does this bill affect that? Do it cut it off? Does it damage that? These are very legitimate uses. So what I am suggesting Mr. Chairman, is, I don't know what the rush is. I think that rushed legislation, that is so complex and far reaching, has to be, when in doubt, a bit better."

She concluded, "I don't think that it is ready for prime time."

No amendments to the Rep. Stearn's amendment were considered. Rep. Eshoo pointed out that she couldn't offer amendments, because to do so would first require an understanding to the manager's amendment, which was not sent to her until about midnight the night before the markup. Rep. Eshoo is normally a non-confrontational conciliatory legislator. Yet, on this occasion her exchanges with Rep. Stearns were combative and heated.

Rep. Darrell IssaRep. Issa (at left) did attempt to offer two amendments.

Section 2 prohibits deceptive acts or practices, and begins with the language that "It is unlawful for any person, who is not the owner or authorized user of a protected computer, to engage in deceptive acts or practices in connection with any of the following conduct with respect to the protected computer".

Rep. Issa's first amendment would have replaced this language with the following: "It is unlawful for any person, who is not the owner or authorized user of a protected computer, to engage in any of the following conduct with respect to a protected computer with an intent to deceive:"

That is, the bill prohibits certain conduct, but contains no mental state requirement. Rep. Issa proposed adding an "intent to deceive" element.

His second amendment would have provided that "It is unlawful for any person, who is not the owner or authorized user of a protected computer, to engage in intentionally deceptive acts or practices in connection with  any of the following conduct with respect to a protected computer."

Section 2 of the bill enumerates certain acts, such as taking control of a computer and keystroke logging, and prohibits "deceptive acts or practices in connection with any" of these acts. Rep. Issa's first amendment, but not his second amendment, would have applied the prohibition to the acts themselves, but not to acts "in connection with".

Further Consideration of HR 2929. Several members of the Committee stated that the House Judiciary Committee has also sought a referral of this bill. Any such referral would delay consideration by the full House.

Also, the House is about to recess for its Independence Day break. It will meet for several weeks in July. However, little legislative activity will take place after that, because of the political conventions, primaries, and general election campaigns.

Moreover, the Senate must pass a bill. No companion bill has yet been introduced in the Senate.

Given the membership of the Senate Commerce Committee, the other body is more likely to consider in more detail how this legislation would impact legitimate use of technologies. Three of the six west coast Senators hold seats on the Committee. Sen. Maria Cantwell (D-WA) will be concerned with how this bill affects Microsoft and other Washington state tech companies. Washington has not been represented on the House Commerce Committee since former Rep. Rick White lost his bid for re-election in 1998. Sen. Barbara Boxer (D-CA) will be attentive to the interests of her Silicon Valley constituents. Sen. Ron Wyden (D-OR) also sits on the Committee.

In addition, several of the Republican Senators on the Committee, including Sen. George Allen (R-VA) and Sen. John Sununu (R-NH), have a history of opposing regulation that might inhibit innovation and growth in the tech sector.

Hence, the bill faces enormous obstacles to being enacted into law in the little remaining time of the 108th Congress. The efforts by the House Commerce Committee may merely serve as a prelude to the rewriting and enactment of a spyware bill in the 109th Congress.

House and Senate Committees Take Up US Australia FTA Implementation Act

6/24. On June 23, the House Ways and Means Committee approved HR __, the "United States-Australia Free Trade Agreement Implementation Act".

On June 24, the Senate Finance Committee (SFC) voted against favorably reporting its version of the U.S. Australia Free Trade Agreement Implementation Act, by a vote of 7-14.

On June 23 the SFC approved an amendment offered by Sen. Kent Conrad (D-SD) to protect South Dakota and other cattle ranchers from competition from imported Australian beef. The amendment directs the U.S. Trade Representative (USTR) to obtain approvals from the House Ways and Means Committee and the Senate Finance Committee for any waiver of the beef safeguard provisions contained in the FTA.

Sen. Charles GrassleySen. Charles Grassley (R-IA) (at right), the Chairman of the SFC, stated that this amendment is unconstitutional in light of the holding of the Supreme Court opinion in INS v. Chadha, 462 U.S. 919 (1983).

Sen. Grassley voted against favorably reporting the bill (as amended by the Conrad amendment). He expressed his strong support for the FTA. And, he urged the Senate to approve the House version of the bill (which does not contain the Conrad amendment). See also, Sen. Conrad's release,

More Capitol Hill News

6/23. The House Judiciary Committee amended and approved 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.

6/23. The House Judiciary Committee amended and approved HR 3632, the "Anti-Counterfeiting Amendments of 2003".

6/22. Sen. Jeff Bingaman (D-NM) and Sen. Joe Lieberman (D-CT) introduced S 2556, an untitled bill that would "direct the establishment of a technology assessment capability in the General Accounting Office". It was referred to the Senate Governmental Affairs Committee.

6/24. The House Science Committee's Subcommittee on Environment, Technology, and Standards held a hearing titled "Testing and Certification for Voting Equipment: How Can the Process Be Improved?" See, prepared tesimony [PDF] of Hratch Semerjian (acting Director of the National Institute of Standards and Technology), prepared testimony [PDF] of Carolyn Coggins (SysTest Laboratories), and prepared testimony [PDF] of Michael Shamos (Carnegie Mellon University).

6/24. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property held a hearing titled "Patent Quality Improvement: Post-Grant Opposition". See, prepared testimony [6 pages in PDF] of James Toupin (General Counsel of the U.S. Patent and Trademark Office), prepared testimony [PDF] of Jeffrey Kushan (outside counsel for Genentech), prepared testimony of Michael Kirk (Executive Director of the American Intellectual Property Law Association), and prepared testimony [PDF] of Karl Sun (Google).

People and Appointments
6/24. The Senate confirmed Diane Sykes to be a Judge of the U.S. Court of Appeals for the 7th Circuit by a vote of 70-27. See, Roll Call No. 152.

Notice of Change of E-Mail Address

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Next Issue of TLJ
Two U.S. Courts of Appeals handed down major opinions this week that have not yet been reported in the TLJ Daily E-Mail Alert. On June 24, the U.S. Court of Appeals (3rdCir) issued its opinion [213 pages in PDF] in Prometheus Radio Project v. FCC, overturning some of the Federal Communications Commission's (FCC) media ownership rules. On June 21, the U.S. Court of Appeals (4thCir) issued its split opinion [26 pages in PDF] in Costar v. Loopnet, a case involving a claim of copyright infringement by an ISP, Loopnet, arising from the publication of copyrighted photograph by its subscribers. The Appeals Court affirmed the District Court's summary judgment for the ISP, and in so doing, addressed direct infringement, the Netcom case, the DMCA, and the impact of the DMCA on Netcom. These opinions will be covered in the next issue of the TLJ Daily E-Mail Alert.

On June 24, President Bush gave a long speech in which he addressed innovation, information technology, broadband deployment, fiber optic networks, broadband over powerline, taxation of internet access, electronic medical records, Federal Communications Commission regulation, spectrum management, and other tech issues. This speech will be covered in the next issue of the TLJ Daily E-Mail Alert.

On June 24, the House Commerce Committee amended and approved HR 4600, the "Junk Fax Prevention Act of 2004". This markup will be covered in the next issue of the TLJ Daily E-Mail Alert.

4th Circuit Denies Rehearing En Banc in PSINet v. Chapman Following Procedural Flukes

6/24. The U.S. Court of Appeals (4thCir) issued its order [6 pages in PDF] denying Virginia's motion for rehearing en banc in PSINet v. Chapman. This lets stand the three judge panel's split opinion [44 pages in PDF] that affirmed the District Court's opinion that held unconstitutional a statute enacted by Virginia in 1999 that criminalizes the dissemination of material harmful to minors over the internet.

That is, Virginia's attempt to regulate online smut has been struck down.

The Statute. Virginia Code Ann. Stat. § 18.2-391, as amended in 1999, provides, in part, that,

"It shall be unlawful for any person knowingly to sell, rent or loan to a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:
  1. Any picture, photography, drawing, sculpture, motion picture film, electronic file or message containing an image, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
  2. Any book, pamphlet, magazine, printed matter however reproduced, electronic file or message containing words, or sound recording which contains any matter enumerated in subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.
  However, if a person uses services of an Internet service provider or an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider or electronic mail service provider shall not be held responsible for violating this subsection."

This statute was not written from scratch in 1999. Rather, the legislature merely amended it to add reference to electronic media.

The earlier version of the statute was upheld against a constitutional challenge in American Booksellers Ass’n v. Virginia, 882 F.2d 125 (1989).

District Court. Several parties, including PSINet and People for the American Way filed a complaint in U.S. District Court (WDVa) against Warren Chapman, in his capacity as Commonwealth Attorney, alleging that Section 18.2-391 violates the First Amendment and the commerce clause of the U.S. Constitution.

On August 10, 2000, the District Court issued a preliminary injunction. See, order enjoining enforcement of portions of the statute, and memorandum opinion. See also, TLJ story titled "Judge Overturns Virginia Internet Porm Statute", August 12, 2000.

On October 11, 2001, the District Court granted summary judgment to the plaintiffs, and enjoined enforcement of the statute. See, story titled "District Court Grants Summary Judgment in PSINet v. Chapman" in TLJ Daily E-Mail Alert No. 291, October 22, 2001.

Three Judge Panel. On March 25, 2004, a three judge panel of the U.S. Court of Appeals (4thCir) issued its divided opinion [44 pages in PDF] affirming the District Court's opinion that the statute banning the dissemination of material that is harmful to minors over the internet is unconstitutional.

First, the majority rejected the argument that American Booksellers Ass’n v. Virginia is binding on the Court. Second, the majority held that the statute "unconstitutionally chills free speech and therefore violates the First Amendment." And third, the majority upheld the District Court "on the separate ground that the statute violates the Commerce Clause".

See, story titled "Divided 4th Circuit Affirms in Internet Smut Case, PSINet v. Chapman" in TLJ Daily E-Mail Alert No. 864, March 26, 2004.

Petition for Rehearing En Banc. And now the Fourth Circuit, en banc, has denied hearing. The Court's order states, "On the poll requested by a member of the court on the petition for rehearing en banc, Judges Widener, Niemeyer, Luttig, and Duncan voted to grant rehearing en banc, and Judge Michael voted to deny rehearing en banc. Chief Judge Wilkins, and Judges Wilkinson, Williams, Motz, Traxler, King, Gregory, and Shedd disqualified themselves from participating in this case."

The order adds that "The petition for rehearing is denied, and, because the poll on rehearing en banc failed to produce a majority of judges in active service in favor of rehearing en banc, the petition for rehearing en banc is also denied. Judge Niemeyer wrote an opinion dissenting from the denial of rehearing en banc."

Judge Niemeyer, who dissented on the three judge panel, and was one of the four judges voting for en banc review, wrote a livid opinion, dissenting from the denial of en banc review. He wrote that the two judges sitting by designation incorrectly ignored, and effectively reversed, the 4th Circuit's precedent in American Booksellers. He wrote that the two judges incorrectly applied Supreme Court precedent. He wrote that the two judges relied "on propositions that are unsupported by the record or that are irrelevant to a determination of the scope of the statute".

He lamented that "the law of the Fourth Circuit is now written solely by two district judges who were designated to sit on the three-judge panel, and not by any circuit judge". He concluded that what has transpired is "a procedural injustice worked by the rules of judicial assignments", and "a substantive injustice for the people of Virginia, who have carefully crafted legislation to regulate commercial pormography on the Internet for the safety and well being of the juveniles in the Commonwealth without denying such material to adults."

Judicial Politics and Judicial Assignments. How the court got to this point warrants review. The 4th Circuit includes many judges who are, relative to judges on other circuits, more deferential to legislative bodies, more supportive of states rights, and more reluctant to overturn criminal statutes on constitutional grounds. The makeup of this court was long influenced by former Sen. Strom Thurmond (R-SC), a former member and Chairman of the Senate Judiciary Committee, and other Republicans, such as former Sen. Jesse Helms (R-NC).

In contrast, the makeup of the 3rd Circuit has been influenced more by Democratic Senators, and Sen. Arlen Specter (R-PA). The U.S. District Court (EDPa) and the 3rd Circuit are forums of choice for those bringing First Amendment challenges to federal statutes, where venue is not restricted to any locality. However, since the present case involves a Virginia state statute, the plaintiffs could not file this case in the 3rd Circuit.

This case received an unusual assignment of judges to the three judge panel assigned to hear the appeal. It was comprised of only one member of the 4th Circuit (Niemeyer). The two other members of the panel were District Court Judges sitting by designation (James Spencer and Andre Davis). Spencer and Davis joined together to form a two judge majority to overturn the Virginia statute. Niemeyer wrote a vigorous dissent.

Then, Virginia petitioned for rehearing en banc. Then, an unusual number of judges -- eight -- disqualified themselves from participating. The remaining five members of the 4th Circuit voted 4-1 to rehear the case. However, because the 4th Circuit's Local Rule 35(b) provides that an en banc rehearing requires a vote of a majority of the judges who are in regular active service, the four judges did not constitute a majority.

A review of the opinion of the three judge panel, and the names of the eight judges who disqualified themselves, would lead a casual observer of the 4th Circuit to conclude that, but for the disqualifications, there would have been enough votes for en banc review.

Unless the Supreme Court overturns the 4th Circuit, PSINet v. Chapman will remain the law of the 4th Circuit. The Supreme Court has not identified anomalies in judicial assignments, disqualifications or recusals as criteria for granting certiorari.

Finally, if Virginia were to tweak and re-enact its statute once again, for example, by adding a clause regarding peer to peer networks, this statute would likely be challenged. Appellate review would then test Judge Niemeyer's commitment to the doctrine of stare decisis.

Washington Tech Calendar
New items are highlighted in red.
Friday, June 25

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 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.

Monday, June 28

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.

Tuesday, June 29

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.

Wednesday, June 30

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.

The research and development tax credit provision of the Internal Revenue Code expires. Both the House and Senate bills to repeal the ETI tax regime would extend the R&D credit through December 31, 2005. The House has passed its bill, HR 4520, the "American Jobs Creation Act of 2004". The Senate has passed its bill, S 1637, the "Jumpstart Our Business Strength (JOBS) Act". However, the two bills have not been reconciled.

Thursday, July 1

Deadline to submit to the Copyright Office (CO) updated notices of intent to use the statutory licenses under 17 U.S.C. §§ 112 and 114. On March 11, 2004, the CO published a notice in the Federal Register regarding its "interim regulations specifying notice and recordkeeping requirements for use of sound recordings under two statutory licenses under the Copyright Act." The CO further announced that "Electronic data format and delivery requirements for records of use as well as regulations governing prior records of use shall be announced in future Federal Register documents." The interim notice and recordkeeping regulations took effect on April 12, 2004. See, Federal Register, March 11, 2004, Vol. 69, No. 48, at Page 11515-11531.

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