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February 23, 2005, Alert No. 1,081.
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ChoicePoint Describes Its Sale of Data to Identity Thieves

2/21. ChoicePoint issued a statement regarding its sale of individuals' personal data to identity thieves. It wrote that "a small number of very organized criminals posing as legitimate companies gained access to personal information about consumers", and that this was "a fraud committed against us".

ChoicePoint stated that "This incident was not a breach of ChoicePoint’s network or a ``hacking´´ incident."

ChoicePoint explained that "In October 2004, we detected possible signs of fraudulent activities in several small business accounts based in the Los Angeles area. We alerted the Los Angeles County Sheriff’s Department and they subsequently confirmed our suspicions and began an investigation. In November, we received a letter from the lead criminal investigator asking us to delay consumer notification until January 2005 as he was concerned that earlier disclosure could compromise the investigation."

ChoicePoint continued that "These criminals were able to pass our customer authentication due diligence processes by using stolen identities to create and produce the documents needed to appear legitimate. As small business customers of ChoicePoint, these fraudsters accessed products that contained basic telephone directory-type data (name and address information) as well as a combination of Social Security numbers and/or driver’s license numbers and, at times, abbreviated credit reports. They were also able to obtain other public record information including, but not limited to bankruptcies, liens, and judgments; professional licenses; and real property data."

ChoicePoint also estimated that it released information to identity thieves on 144,778 individuals.

On February 18, 2005, the Electronic Privacy Information Center (EPIC), a Washington DC based group, wrote a letter to ChoicePoint, with copies for the Federal Trade Commission (FTC), the House Commerce Committee, and the Senate Commerce Committee.

The EPIC stated that "we are writing to urge you to make available to the 145,000 people the information that was sold by your company last fall to the crime ring. It is not only a matter of fairness, but also a critical public safety concern that these individuals have in their possession the same information about them that you gave to criminals."

It continued that "Choicepoint should send letters to all people affected and allow them to obtain copies of their files and find out all of the info Choicepoint has about them. Choicepoint should allow every person to have access to all records and data that you maintain about them and to receive all reports for free by making just one request."

The EPIC also stated that "your recent security breach demonstrates the profound importance of having the Choicepoint AutoTrackXP and Customer Identification Programs databases regulated by the Fair Credit Reporting Act" (FCRA).

The EPIC and ChoicePoint have exchanged frank and spirited correspondence in the past on ChoicePoint's databases, and merits of extending FCRA regulation. See for example, story titled "EPIC Seeks Congressional Hearing and FTC Workshop on Data Products and FCRA" in TLJ Daily E-Mail Alert No. 1,052, January 10, 2005, and "EPIC Urges FTC to Open Investigation on Data Products and FCRA" in TLJ Daily E-Mail Alert No. 1,042, December 22, 2004.

This EPIC letter was signed by Marc Rotenberg (EPIC's President), Chris Hoofnagle (EPIC Senior Counsel), and Dan Solove (EPIC Advisory Board member).

Solove is also professor at the George Washington University Law Center, and the author of the recently published book titled The Digital Person: Technology And Privacy In The Information Age [Amazon]. Derek Smith, ChoicePoint's Chairman and CEO, also recently published a book, titled Risk Revolution: Real Threat Facing America & the Promise of Technology for a Safer Tomorrow [Amazon].

CIIP Subcommittee Holds Hearing On Trademark Dilution Revision Act

2/17. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property (CIIP) held a hearing on HR 683, the "Trademark Dilution Revision Act of 2005".

Rep. Lamar Smith (R-TX), the Chairman of the CIIP Subcommittee, introduced this bill on February 9, 2005. It would amend the Trademark Act of 1946 with respect to dilution by blurring or tarnishment.

The Congress amended the Trademark Act in 1995 with the enactment of the Federal Trademark Dilution Act (FTDA). The FTDA bars uses of another's mark that blur or otherwise interfere with the ability of that mark to identify the source of goods. The FTDA is codified at 15 U.S.C. § 1125(c). It is also known as Section 43(c) of the Lanham Act.

The present bill responds to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret, a case involving whether the plaintiff in a lawsuit for violation of the FTDA must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. Its opinion is also reported at 537 U.S. 418.

The Supreme Court wrote that "The relevant text of the FTDA ... provides that ``the owner of a famous mark´´ is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution."

See also, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

HR 683 would replace the current language of 15 U.S.C. § 1125(c).

Subsection (c)(1) currently provides that "The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection." It then enumerates several factors that the court may consider in determining whether a mark is distinctive and famous.

Under HR 683, subsection (c)(1) would provide that "Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce as a designation of source of the person's goods or services that is likely to cause dilution by blurring or dilution by tarnishment, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury."

The bill also provides that "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:
  (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.
  (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.
  (iii) The extent of actual recognition of the mark."

The bill also defines, and enumerates factors to be considered by the court regarding, dilution by blurring. It also defines dilution by tarnishment.

The bill also contains a list of exemptions. These only slightly modify the exemptions in the current statute. The bill provides that "The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
  (A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
  (B) Noncommercial use of a designation of source.
  (C) All forms of news reporting and news commentary."

William Barber, an attorney with the law firm of Fulbright Jaworski, who testified on behalf of the American Intellectual Property Law Association (AIPLA), wrote in his prepared testimony [17 pages in PDF] that the FTDA "is in need of amendment".

He wrote that the bill would remedy the problem created by the Moseley case. That is "it would amend the statute to provide relief where the trademark owner can show a ``likelihood of dilution´´ of its famous mark, thus relieving trademark owners of the unreasonable burden -- in most cases virtually impossible to satisfy -- of proving ``actual dilution´´ as required by the Supreme Court's interpretation of the current statute in Moseley ..."

He wrote that the AIPLA "strongly supports H.R. 683, with two primary exceptions: first, the proposed restriction in Section 43(c)(1) to limit relief only to situations where a person uses the diluting mark ``as a designation of source of the person's goods or services´´ is both unnecessary and inappropriate, and should be omitted; and second, the definition and factors for determining ``dilution by blurring´´ in Section 43(c)(2)(B) should be modified to properly focus on impairment of consumers' association between the famous mark and a single source, as opposed to the mark's ``distinctiveness.´´"

Anne Gundelfinger, President of the International Trademark Association (INTA), and Associate General Counsel at Intel, wrote in her prepared testimony [PDF] that the INTA supports the bill. She wrote that it would "provide a narrower, clearer, and more focused statute that addresses the specific harm of dilution, while providing owners of famous marks a provable cause of action. At the same time, the legislation protects free speech."

Mark Lemley, a professor at Stanford University Law School, wrote in his prepared testimony [4 pages in PDF] that "H.R. 683 strikes the proper balance, limiting trademark dilution to truly famous marks and to truly diluting uses without setting an impossible burden of proof."

Marvin Johnson, of the ACLU, asserted that "If the proposed bill were to pass as is, the ability to criticize and parody trademarked information would be severely diminished." See, ACLU release and prepared testimony.

HR 683 would maintain the existing exemptions. These exempt "Fair use", "Noncommercial use" and "news reporting and news commentary".

Cato Releases Paper on DRM and P2P

2/17. The Cato Institute released a paper [PDF] titled "Peer-to-Peer Networking and Digital Rights Management: How Market Tools Can Solve Copyright Problems". See also, summary.

The authors are Michael Einhorn and Bill Rosenblatt. Einhorn is also the author of the recently published book titled Media, Technology, and Copyright: Integrating Law and Economics [Amazon]. Rosenblatt publishes a web site titled DRM Watch.

They argue in this paper that the basic functions of digital rights management (DRM) and peer to peer (P2P) technologies "can be quite complementary and that innovative market mechanisms that can help alleviate many copyright concerns are currently blossoming." They assert that "Property rights on P2P networks can be protected through DRM technologies that stop unauthorized reproduction and distribution."

Hence, they argue for a limited role for government. They state that "Government should protect the copyrights of content owners but simultaneously allow the free market to determine potential synergies, responses, and outcomes that tap different P2P and DRM business models. In particular, market operations are greatly preferable to government technology controls, on the one hand, or mandatory compulsory licensing schemes, on the other."

People and Appointments

2/22. David Freeland was named Chief Information Office of the U.S. Patent and Trademark Office (USPTO). See, release.

2/22. President Bush announced his intent to nominate John Dugan to be Comptroller of the Currency at the Department of the Treasury for a five year term. He is a partner at the law firm of Covington & Burling who focuses on financial institutions regulation, including privacy issues.. He was Assistant Secretary for Domestic Finance during the administration of the elder President Bush. He was also Republican General Counsel to the Senate Banking Committee. See, White House release.

2/22. Laura Zuckerman joined the Cellular Telecommunications and Internet Association (CTIA) as Director of Government Affairs. She previously worked as Communications Director and Legislative Assistant to Rep. Steve Buyer (R-IN), who is a member of the House Commerce Committee. See, CTIA release.

More News

2/22. The Supreme Court returned from a long recess. It issued two opinions and a long order list [36 pages in PDF]. However, it decided nothing in any major technology related case.

2/22. A publication in France named Le Figaro published articles regarding complaints expressed by Jean-Noel Jeanneney, President of the Bibliothèque Nationale de France (BNF), about Google's plans to put online books that are  in the public domain. The gist of the French worry is that Google's "gigantesque bibliothèque virtuelle" will be "massivement anglophone". On December 14, 2004, Google announced that it "is working with the libraries of Harvard, Stanford, the University of Michigan, and the University of Oxford as well as The New York Public Library to digitally scan books from their collections so that users worldwide can search them in Google." See, Google release. These articles do not address the impact of French judicial attempts to censor and fine web sites, as for example, in the case of LICRA and UEJF against Yahoo. See, story titled "9th Circuit Grants Rehearing En Banc in Yahoo v. LICRA" in TLJ Daily E-Mail Alert No. 1,075, February 11, 2005.

Washington Tech Calendar
New items are highlighted in red.
Wednesday, February 23

TIME? 10:00 AM or 12:00 NOON. The Advisory Committee for the 2007 World Radiocommunication Conference will meet. See, FCC notice [PDF] and notice in the Federal Register, January 3, 2005, Vol. 70, No. 1, at Page 87. Location: Federal Communications Commission (FCC), Commission Meeting Room (TW-C305), 445 12th St., SW. The Federal Register notice puts this meeting at 10:00 AM. The latest FCC calendar [PDF] lists it at 12:00 NOON.

11:30 AM - 1:45 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Wireless Broadband Issues & Hot Topics". The speakers will include Lauren Van Wazer and John Branscome (Co-Chairs of the FCC's Broadband Wireless Access Task Force), Carolyn Brandon (VP Policy, CTIA), Andrew Krieg (President of Wireless Communications Association International), Rebecca Arbogast (Legg Mason), David Furth (Associate Chief of the FCC's Wireless Telecommunications Bureau), Paul Sinderbrand (Wilkinson Barker & Knauer), Donald Evans (Fletcher Heald & Hildreth), Todd Gray (Dow Lohnes & Albertson). Lunch will be served. For more information, contact Adam Krinksy at 202 383-3340. See, registration form [PDF]. Prices to attend range from $65 to $140. Location: Sidley Austin, 1501 K Street, NW, 6th Floor.

12:00 - 1:30 PM. The DC Bar Association will host an event titled "Protecting Consumers in the 21st Century: Law Enforcement at the Federal Trade Commission". The speaker will be Deborah Majoras, Chairman of the Federal Trade Commission (FTC). The price to attends ranges from $10 to $20. For more information, call 202 626-3463. See, notice. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Day one of a two day meeting of the Homeland Security Science and Technology Advisory Committee (HSSTAC). This meeting is closed to the public. See, notice in the Federal Register, January 31, 2005, Vol. 70, No. 19, at Page 4881. Location: Booz Allen Hamilton, Virginia Square Plaza, 3811 Fairfax Drive, Arlington, VA.

Thursday, February 24

10:00 - 11:00 AM. Jeffrey Carlisle, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau will hold a news conference. For more information, contact Mark Wigfield at 202 418-0253 or Mark dot Wigfield at fcc dot gov. Location: FCC, Room TW-C488.

10:30 AM. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, will hold a news conference to discuss the accomplishments and priorities of the Committee. Press contact: Blain Rethmeier at 202 224-5225. Location: Senate Radio/TV Gallery, Capitol Building.

12:15 PM. The Federal Communications Bar Association (FCBA) Young Lawyers Committee will host a brown bag lunch. The topic will be "A Bird's-Eye View of Developments in Satellite Communications". The scheduled speakers include Bill Bailey (XM Radio), Susan Eid (Directv), Jennifer Warren (Lockheed Martin), and a representative of the FCC's International Bureau. For more information, contact Natalie Roisman at or 202 418-1655. Location: Mintz Levin, 701 Pennsylvania Ave., NW.

Day two of a two day meeting of the Homeland Security Science and Technology Advisory Committee (HSSTAC). This meeting is closed to the public. See, notice in the Federal Register, January 31, 2005, Vol. 70, No. 19, at Page 4881. Location: Booz Allen Hamilton, Virginia Square Plaza, 3811 Fairfax Drive, Arlington, VA.

Friday, February 25

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch on the Federal Communications Commission's (FCC) latest order on remand regarding the unbundling requirements of incumbent local exchange carriers. The speakers will be Tom Navin (Chief of the FCC's Wireline Competition Bureau's Competition Policy Division), Jason Oxman (ALTS), Melissa Newman (Qwest Communications), and Paul Feldman (Fletcher Heald & Hildreth). RSVP to Cecilia Burnett at cmburnett at hhlaw dot com or 202 637-8312. Location: Litigation Center, Hogan & Hartson, 555 13th Street NW. (This is beneath the building's main lobby.)

The National Institute of Standards and Technology's (NIST) Computer Security Division is scheduled to issue its FIPS 201. See, public draft [91 pages in PDF] titled "Federal Information Processing Standard 201 (FIPS 201), Personal Identity Verification for Federal Employees and Contractors".

Effective date of most of the provisions of the Federal Communications Commission (FCC) Second Report and Order and Order on Reconsideration regarding reducing barriers to secondary markets for spectrum rights. See, notice in the Federal Register, December 27, 2004, Vol. 69, No. 247, at Pages 77521 - 77559. The FCC adopted this item at its July 8, 2004 meeting, and released the text [PDF] of this item on September 2, 2004. See, stories titled "FCC Adopts Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 934, July 9, 2004, and "FCC Releases Second Secondary Markets Report and Order" in TLJ Daily E-Mail Alert No. 969, September 3, 2004. This second report and order is FCC 04-167 in WT Docket No. 00-230.

Deadline to submit comments, and Notices of Intent to Participate, to the Copyright Office in response to its notice of proposed rulemaking (NPRM) regarding a proposed settlement of royalty rates for analog television broadcast stations retransmitted by satellite carriers under statutory license. See, notice in the Federal Register, January 26, 2005, Vol. 70, No. 16, at Pages 3656 - 3658.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding reserve prices or minimum opening bids and other procedures for Auction 61, the auction of of ten Automated Maritime Telecommunications System (AMTS) licenses scheduled to commence on August 3, 2005. See, notice in the Federal Register, February 11, 2005, Vol. 70, No. 28, at Pages 7270-7274.

Monday, February 28

The Senate will return from its Presidents Day recess at 2:00 PM. It will take up S 256, the "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005". See, Senate calendar.

2:00 - 3:00 PM. The National Science Foundation (NDF) will host a lecture titled "What's New in Nanoscale Structures: Fluctuations and Entropy". The speaker will be Ellen Williams (Professor of Physics at the University of Maryland). See, NSF schedule of public events. Location: NSF, 4201 Wilson Blvd., Room 375, Arlington, VA.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "What You Need to Know About the Digital Millennium Copyright Act and Its Application". The speakers will be Peter Jaszi (American University Washington College of Law), Robert Kasunic (U.S. Copyright Office, invited), Stacey King (Howrey Simon), and Alan Lewine (Litman Law Office, invited). See, notice. Prices vary from $70 to $115. For more information, call 202 626-3488. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

Extended deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its three year Strategic Plan [73 pages in PDF]. See, ICANN's November 16, 2004 notice setting January 15 deadline. See also, ICANN's web page with information about the Strategic Plan.

Deadline for the submission of DART claims for 2004 DART royalty funds to the Copyright Office. See, notice in the Federal Register, November 29, 2004, Vol. 69, No. 228, at Pages 69288 - 69290.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the progress made by the states in implementing E911 solutions for multi-line telephone systems (MLTSs). See, notice in the Federal Register, January 13, 2005, Vol. 70, No. 9, at Pages 2405 - 2406.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding new or revised requirements for Federal Information Processing Standard (FIPS) 140-3, which pertains to security for cryptographic modules that are utilized by federal agencies. See, notice in the Federal Register, January 12, 2005, Vol. 70, No. 8, at Pages 2122 - 2123.

Tuesday, March 1

The House will return from its Presidents Day recess at 2:00 PM.

9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Press contact: Blain Rethmeier (Specter) at 202 224-5225, or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

2:00 PM. Public Knowledge will hold a news conference regarding the filing of briefs in MGM v. Grokster. The Supreme Court will hear oral argument on March 29. For more information, contact Art Brodsky at 202 518-0020 ext 103. Location: 1875 Connecticut Ave., NW, Suite 650.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its Report and Order and Further Notice of Proposed Rulemaking (FNPRM) [54 pages in PDF] regarding the children's programming obligations of digital television broadcasters. This item is FCC 04-221 in MM Docket 00-167. See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

Deadline to submit initial comments to the Federal Communications Commission (FCC) to assist it in preparing the report required by Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). The SHVERA requires the FCC to "complete an inquiry regarding the impact on competition in the multichannel video programming distribution market of the current retransmission consent, network nonduplication, syndicated exclusivity, and sports blackout rules, including the impact of those rules on the ability of rural cable operators to compete with direct broadcast satellite industry in the provision of digital broadcast television signals to consumers. Such report shall include such recommendations for changes in any statutory provisions relating to such rules as the Commission deems appropriate." See, FCC notice [4 pages in PDF]. This Public Notice is DA 05-169. See also, notice in the Federal Register, February 8, 2005, Vol. 70, No. 25, at Pages 6593-6595.

Wednesday, March 2

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Competition in the Communications Marketplace: How Technology Is Changing the Structure of the Industry". See, notice. The hearing will be webcast by the Committee. Press contact: Jon Tripp (Barton) at 202 225-5735 or Sean Bonyun (Upton) at 202 225-3761. Location: Room 2123, Rayburn Building.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will meet to prepare for the International Telecommunications Union's (ITU) Telecommunication Standardization Advisory Group (TSAG) meeting. See, the ITU's calendar of meetings. See, notice in the Federal Register, December 20, 2004, Vol. 69, No. 243, at Page 76027. For more information, including the location, contact Julian Minard at Location: undisclosed.

Day one of a three convention hosted by the Center for Homeland and Global Security titled "4th Annual Homeland and Global Security Summit". See, notice. Location: Washington Convention Center.

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