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February 25, 2005, 9:00 AM ET, Alert No. 1,083.
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Sen. Specter Holds News Conference

2/24. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, held a news conference in the Capitol Building on Thursday morning, February 24, 2005, He addressed, and answered questions, on a wide range of issues, including judicial nominations, ChoicePoint, and the security of information in electronic databases.

ChoicePoint. Sen. Specter said that Sen. Patrick Leahy (D-VT), the ranking Democrat on the Committee, wrote a letter to him requesting hearings on ChoicePoint and associated issues. Sen. Specter said that "I immediately said we could hold a hearing."

See, related story in this issue titled "Senate Judiciary Committee Could Hold Hearings on ChoicePoint, Technology, Privacy and Security".

Health. Earlier this month, he announced that he has been diagnosed with Hodgkin’s disease, a cancer of the lymph system. See, release. He discussed the diagnosis, prognosis, and treatment, which began on Friday, February 18. He stated that he expects to be able to carry out his duties as Chairman of the Committee. He stood throughout the 40 minute news conference, and reminded reporters of the beneficial effects of his regular squash routine.

Judicial Nominees. He spoke at length about judicial nominees and the process for confirming judicial nominees.

rightSen. Specter (at right) said that "I have a commitment to the President to give his nominees prompt hearings" and committee votes. He added that what happens on the floor of the Senate is another matter.

In the 108th Congress, Senate Democrats used the filibuster, or threat of the filibuster, to prevent the Senate from voting on many of President Bush's nominees for various U.S. Courts of Appeals. On February 14, President Bush renominated twelve of these.

The twelve are as follows: Terrence Boyle (4th Circuit), William Haynes (4th Circuit), Priscilla Owen (5th Circuit), David McKeague (6th Circuit), Susan Neilson (6th Circuit), Henry Saad (6th Circuit), Richard Griffin (6th Circuit), William Myers (9th Circuit), William Pryor (11th Circuit), Janice Brown (DC Circuit), Brett Kavanaugh (DC Circuit), and Thomas Griffith (DC Circuit). See, White House release. See also, story titled "Bush to Renominate 20 for Federal Judgeships" in TLJ Daily E-Mail Alert No. 1,044, December 27, 2004.

Sen. Specter said that "each side has ratcheted it up", as Democrats employed the filibuster, and Bush started to make recess appointments of judges. "No one wants to back down. No one wants to loose face," said Sen. Specter.

Sen. Specter also pointed out that many Senate Republicans now support a "nuclear option", that would change the Senate's rules, or their interpretation, regarding filibusters, to enable judicial nominees to come up for a simple majority vote. Also, he noted, with reference to Sen. Harry Reid (D-NV), that Democrats have threatened to "screw things up".

The current understanding of Senate Rule 22 is that a cloture motion, to end debate on a matter, requires a three fifths majority, and that this applies to debate on judicial nominees.

Sen. Specter said that he has not yet taken a position on the "nuclear option", and that he hopes that the issue will be resolved without resorting to this option. He added that he does not know if there are 51 votes in the Senate to implement such an option.

He did not comment on any prospective nominees for the Supreme Court. However, he did say that Committee staff has begun work, in anticipation of at least one Supreme Court vacancy. He said that "we are doing as much spade work in advance as we can".

He did, however, comment on some Appeals Court nominees. He focused on William Myers, who has been nominated for the 9th Circuit, which includes California and other Pacific and western states. He said that the 9th Circuit is now a "very liberal circuit", and that "William Myers would give some balance to the 9th Circuit".

Telecommunications Mergers. Sen. Specter fielded one question regarding telecom mergers. He said that he has talked with Sen. Mike DeWine (R-OH), the Chairman of the antitrust subcommittee. However, Sen. Specter made no commitments, and did not discuss any specific transactions, or any legislative proposals.

This is what he said. "I talked to Sen. DeWine about that. We are now in the midst of discussing whether there ought to be a subcommittee or a full committee. And part of that will turn on how busy the full committee is. Sen. DeWine has been Chairman of the antitrust subcommittee. And, he can bring those hearings forward. That is a matter that requires a hearing."

Other Issues. He also discussed, and answered many questions regarding, asbestos related legislation, the bankruptcy reform bill (and its abortion related provision), sentencing guidelines, defense appropriations, and social security reform.

Sen. Specter did not discuss any of the intellectual property issues that have been before the Committee in recent years, such as patent and trademark fees, and legislation regarding inducement of copyright infringement.

Sen. Leahy's Response. Sen. Leahy issued a release in response. He wrote that "Chairman Specter's news conference demonstrated his determination, his statesmanship and his ambitious agenda for the committee, and Democrats and Republicans on the Judiciary Committee are delighted to see him back so soon in such fine form and good humor."

"He outlined the bipartisan progress that we are making together on several efforts, including asbestos legislation and hearings the committee will hold on privacy and identity theft issues", said Sen. Leahy.

He also said that "The conflict between the White House and the Senate over controversial judicial nominees is unnecessary, and it would serve the country far better to have nominees who do not divide the Senate and the American people.  I have been urging the President to work with the Senate for some time. The Chairman was correct to recognize the role the Constitution envisions for the Senate in the lifetime appointment of federal judges."

Senate Judiciary Committee Could Hold Hearings on ChoicePoint, Technology, Privacy and Security

2/24. Sen. Patrick Leahy (D-VT) wrote a letter on February 22 to Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee (SJC), in which he referenced ChoicePoint's sale of personal information of 145,000 individuals to identity thieves. He urged Sen. Specter to schedule hearings on this matter, and "and other important issues relating to technology, privacy and security protections", which he outlined in his letter. Then, Sen. Specter stated at a news conference on February 24 that, in response to Sen. Leahy's request, the SJC "could" hold a hearing.

Sen. Specter said that "I got a letter from Sen. Leahy yesterday on the identity theft issue. And, I immediately said we could hold a hearing. I don't have to preside on all of these hearings. We have subcommittees and subcommittee chairmen."

Sen. Leahy, who is the ranking Democrat on the SJC, began his letter by stating that "In recent days, we have learned that the personal information of 145,000 Americans was sold by a private corporation, ChoicePoint Inc., to criminals posing as legitimate businesses."

ChoicePoint wrote in its web site 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 also estimated that it released information to identity thieves on 144,778 individuals. See, story titled "ChoicePoint Describes Its Sale of Data to Identity Thieves" in TLJ Daily E-Mail Alert No. 1,081, February 23, 2005.

Sen. Leahy continued that "We are in an era in which advanced technologies have opened up new possibilities that even a few years ago seemed out of reach. Among those advances is the rapid collection, sharing and analyzing of large amounts of data previously unavailable without great effort, if at all. These powerful tools have enhanced our law enforcement and homeland security efforts, as well as made our lives more convenient and enjoyable."

He added that "These advances also present new challenges that require vigilant congressional scrutiny. The American people have the right and the need to know and understand how their personal information is being used.  It is time for the sunshine of congressional oversight to begin clarifying some of these issues."

Sen. Leahy then enumerated five issues that he urged the Committee to examine -- data brokering, government access to commercial data, government data mining, the impact of new technologies on surveillance law, and data outsourcing.

"The rapid rise of database giants such as ChoicePoint, Acxiom, and LexisNexis has created new challenges for privacy and security.  These information brokers have amassed billions of private and public records on individuals that include sensitive information such as financial, travel, medical and insurance data", wrote Sen. Leahy. "Very little is known about the integrity and handling of this information, and there are insufficient rules and oversight to protect public privacy."

Sen. Leahy next addressed government use of commercial databases. "Increasingly, the FBI, DHS and many other agencies turn to information brokers to gather and analyze individuals’ personal data on their behalf for a variety of purposes -- e.g., to screen airline travelers or identify possible terrorists. ... The Committee should look at how to maximize the benefits of this capability for legitimate purposes, while ensuring that our legal protections on accessing and using such data keep pace."

He also wrote about data mining. "New technologies have allowed computers to rapidly sort and process information for a myriad of purposes, including identifying how people are related, recognizing patterns in human behavior and attempting to predict future actions." He asserted that data mining can present significant privacy issues that should be examined by the Committee.

Sen. Leahy also wrote that "Radio Frequency Identification (RFID) Technology, GPS, keystroke logging, spyware, and enhanced data storage are all developments that increase our ability to know and track individuals. These changes have created new opportunities, as well as challenges for law enforcement.  An important question for the Committee is whether our wiretapping and other applicable laws have kept pace as technology has broadened the type and nature of information collection."

The Senate Judiciary Committee (SJC) may hold hearings on this subject, but the Senate Commerce Committee (SCC) has jurisdiction over many of the legislative proposals that are likely to be advanced, and oversight authority with respect to the agency that would likely oversee any expanded or new regulatory regime for data aggregators, the Federal Trade Commission (FTC).

Also, the Senate Homeland Security and Government Affairs Committee has jurisdiction over the Department of Homeland Security's (DHS) data practices. The SJC does has limited jurisdiction in this area -- over legislation regarding crimes, criminal procedure, and surveillance by law enforcement entities. It also oversees the Department of Justice, which includes the FBI.

Nevertheless, any SJC hearings would serve the purpose of gathering and publicizing information related to this issue.

Also, Sen. Specter and Sen. Leahy are likely to be more favorably disposed to advancing this issue than their counterparts on the SCC, Sen. Ted Stevens (R-AK) and Sen. Patrick Inouye (D-HI).

DHS Appoints Data Privacy and Integrity Advisory Committee

2/24. The Department of Homeland Security (DHS) announced the appointment of twenty people to its Data Privacy and Integrity Advisory Committee.

The members, in alphabetical order, are Joseph Alhadeff (Chief Privacy Officer of Oracle, a database software maker), Ramon Barquin (President of Barquin International, a data management company), Howard Beales (George Washington University, and former Director of the Federal Trade Commission's Bureau of Consumer Protection), Reed Freeman (CPO of Claria Corporation), James Harper (Editor of and Director of Information Policy Studies at the Cato Institute), Kirk Herath (CPO of Nationwide, an insurance and financial services company), David Hoffman (Director of Privacy at Intel), Lance Hoffman (George Washington University, School of Engineering and Applied Science), Tara Lemmey (CEO of Lens Ventures), Joseph Leo (VP of SAIC), John Marsh (George Mason University School of Law), Joanne McNabb (California Department of Consumer Affairs), Charles Palmer (IBM), Richard Purcell (Corporate Privacy Group), Paul Rosenzweig (Heritage Foundation), John Sabo (Computer Associates), James Sheehan (Milton Hershey School), Lisa Sotto (law firm of Hunton & Williams), Michael Turner (Information Policy Institute), Samuel Wright (Cendant Corporation).

In addition, the DHS announced that Nuala Kelly, the Chief Privacy Officer of the DHS, will be the sponsor of this advisory committee, and Rebecca Richards, the Director of Privacy Compliance in the DHS Privacy Office, will be the Executive Director of this advisory committee.

The advisory committee will hold its first meeting on April 6, 2005 in Washington DC.

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

The House will not meet. It will return from its Presidents Day recess on Tuesday, March 1, at 2:00 PM.

The Senate will not meet. It will return from its Presidents Day recess on Monday, February 28, at 2:00 PM.

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. Sen. Arlen Specter (R-PA) will preside. 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, a copyright case regarding P2P systems. The Supreme Court will hear oral argument on March 29. The speakers will be Fred von Lohmann (counsel for Streamcast), Mike Weiss (CEO of Streamcast), Michael Page (attorney for Grokster), Gigi Sohn (Public Knowledge), Mark Cooper (Consumer Federation of America), Gary Shapiro (Consumer Electronics Association), Ed Black (Computer and Communications Industry Association), and Deirdre Mulligan (UC Berkley Law School). 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.

Thursday, March 3

8:30 AM - 4:00 PM. The Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Manufacturing Research and Development Interagency Working Group (IWG) will hold a one day public forum on manufacturing research and development in nanomanufacturing, manufacturing for the hydrogen economy, and intelligent and integrated manufacturing systems. See, notice in the Federal Register, February 1, 2005, Vol. 70, No. 20, at Page 5181. Location: auditorium, Department of Commerce, 1401 Constitution Ave., NW.

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

3:00 PM. The House Armed Services Committee's Subcommittee on Terrorism, Unconventional Threats and Capabilities will hold a hearing the Fiscal Year 2006 national defense authorization budget request on tactical command, control, communications, and computer (C-4) systems. The hearing is titled "Why Does the DoD Have So Many Different Systems Performing the Same Functionally?". The witnesses will be Linton Wells (Acting Assistant Secretary of Defense for Networks and Information Integration), Vice Admiral R.F. Willard (U.S. Navy, Director for Force Structure, Resources and Assessment), Lt. Gen. Robert Shea (U.S. Marine Corps, Director for Command, Control, Communications and Computer Systems), and Lt. Gen. Robert Wagner (U.S. Army, Deputy Commander, United States Forces Command). Location: Room 2212, Rayburn Building.

2:30 PM. The Senate Judiciary Committee will hold a hearing on judicial nominees. Sen. Arlen Specter (R-PA) will preside. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

4:00 PM. David Nimmer (Irell & Manella) will present a draft paper titled "Codifying Copyright Comprehensively". See, notice of event. This event is part of the Spring 2005 Intellectual Property Workshop Series sponsored by the Dean Dinwoodey Center for Intellectual Property Studies at the George Washington University Law School (GWULS). For more information, contact Robert Brauneis at 202 994-6138 or rbraun at law dot gwu dot edu. The event is free and open to the public. Location: GWULS, Faculty Conference Center, Burns Building, 5th Floor, 716 20th St., NW.

TIME? There will be a meeting of the Executive Office of the President's (EOP) Office of Science and Technology Policy's (OSTP) National Science and Technology Council's (NSTC) Committee on Science's Subcommittee on Research Business Methods. The meeting is closed to the public. For more information, contact Megan Columbus at 301 435-0937. Location: undisclosed.

6:00 - 8:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FCBA Biennial Congressional Reception". The price to attend ranges from $25 to $75. See, registration form [PDF]. Location: Room HC-5, Capitol Building.

Day two 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.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding BellSouth's and Sprint's petition for reconsideration of the FCC's schools and libraries Fifth Report and Order. The FCC adopted this 5th R&O at its August 4, 2004 meeting, and released it on August 13, 2004. See, FCC Public Notice (DA 05-103). This 5th R&O is FCC 04-190 in CC Docket No. 02-6.

Friday, March 4

Day three 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.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding Qualcomm's Petition for Declaratory Ruling seeking clarification of rules and the establishment of a streamlined review process to accelerate the deployment of new services in the 700 MHz band. See, FCC Public Notice (DA 05-87). This proceeding is WT Docket No. 05-7.

Deadline to submit comments to Institute for Defense Analyses (IDA) in response to the Department of Defense's (DOC) and Department of Homeland Security's (DHS) National Cyber Security Division's (NCSD) request for public comments regarding the National Information Assurance Partnership (NIAP) and security flaws in commercial software products. See, notice in the Federal Register, February 2, 2005, Vol. 70, No. 21, at Page 5420.