4/12. The Federal Trade Commission (FTC) and the state of California filed a civil complaint [24 pages in PDF] in U.S. District Court (NDCal) against Optin Global, Inc., Vision Media Limited Corp., Rick Yang, and Peonie Pui Ting Chen alleging violation of the FTC Act, the CAN SPAM Act, and various California state statutes in connection with their sending commercial email messages.

The complaint alleges that the defendants sent messages that "contain false header information, fail to notify recipients of their opt-out rights, fail to include functioning opt-out mechanisms, contain deceptive subject headings, fail to identify that they are advertisements, and/or fail to include the sender's valid postal address". The complaint adds that consumers have forwarded "over 1,870,000" such messages to the FTC.

The complaint identifies that one of the purposes of this e-mail was to seek mortgage lending leads to sell to third parties. No mortgage lenders or financial institutions are defendants in this action.

The CAN SPAM Act's full title is "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003". It was enacted by the Congress as S 877 in the 108th Congress. It is now Public Law No. 108-187.

The FTC and California seek preliminary and permanent injunctive relief, civil penalties and damages. See also, FTC release.

4/13. The Federal Communications Commission (FCC) adopted and released an order [11 pages in PDF] in its proceeding titled "In the matter of Counterpoint Communications, Inc. (Transferor) and Tribune Television Company (Transferee): Request for Extension of Waiver of Section 73.3555(d) of the Commission’s Rules for Station WTXX(TV), Waterbury, CT".

This order extends the waiver of the newspaper broadcast cross-ownership rule as applied to the Hartford Courant newspaper and broadcast station WTXX. The FCC denied a permanent waiver. The order applies, and elaborates on, the public interest standard for granting waivers of the newspaper broadcast cross-ownership rule.

The order also states that "We also do not intend to continue the practice of allowing waivers to remain in force through inaction for long periods of time. Rather, we expect to address compliance with the terms of waivers as their expiration dates approach."

Commissioners Jonathan Adelstein and Michael Copps wrote in a concurring statement [PDF] that "Given Tribune’s documented efforts, as well as the significant possibility that either the station might go dark or service to the community would be reduced without additional time for Tribune to divest, we will reluctantly concur."

This order is FCC 05-83.

4/13. The Senate Commerce Committee released its list [3 pages in PDF] of assignments to subcommittees.

There is no longer a Subcommittee on Communications. Sen. Ted Stevens (R-AK), the Chairman of the Committee, stated in January that communications, including internet communications, issues will be addressed by the full Committee.

There is a new Subcommittee on Technology, Innovation, and Competitiveness. It will be chaired by Sen. John Ensign (R-NV). The other Republican members will be Sen. Stevens, Sen. Conrad Burns (R-MT), Sen. Trent Lott (R-MS), Sen. Kay Hutchison (R-TX), Sen. George Allen (R-VA), Sen. John Sununu (R-NH), and Sen. Jim DeMint (R-SC).

Sen. John Kerry (D-MA) will be the ranking Democrat on the Technology Subcommittee. The other Democratic members will be Sen. Daniel Inouye (D-HI), Sen. Jay Rockefeller (D-WV), Sen. Byron Dorgan (D-ND), Sen. Ben Nelson (D-FL), and Sen. Mark Pryor (D-AR).

Sen. Allen will chair the Subcommittee on Consumer Affairs, Product Safety, and Insurance. This Subcommittee may end up with jurisdiction over technology related consumer protection bills, such as those pertaining to spyware. Sen. Pryor will be the ranking Democrat on this Subcommittee.

4/13. The Senate Judiciary Committee held a hearing titled "Securing Electronic Personal Data: Striking a Balance Between Privacy and Commercial and Governmental Use".

Other Congressional Committees have already held related hearings. See, stories titled "House Subcommittee Holds Hearing on Data Aggregators" in TLJ Daily E-Mail Alert No. 1,096, March 16, 2005; "Senate Banking Committee Holds Hearing on Data Security" in TLJ Daily E-Mail Alert No. 1,093, March 11, 2005.

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Committee, wrote in his prepared statement that "Increasingly, those who trade in digital dossiers have no direct relationship with the individuals and faces behind the numbers or letters that identify them, so the normal market discipline of disgruntled consumers does not necessarily save the companies from themselves. Even where there is a direct relationship, individuals often have no idea what companies are doing with their personal data or even what kinds of information is being collected about them. What are these companies doing with this information, who do they sell it to, and why?"

Sen. Leahy (at right) stated that "Insecure databases are now low-hanging fruit for hackers looking to steal identities or otherwise misuse data for financial gain. This is especially true as more and more of Americans’ personal information is being processed abroad."

He also discussed possible legislation. "We need to consider rules that will guarantee Americans the right to see what information has been collected about them and to make corrections where necessary. We need to consider rules that will ensure Americans are notified when there has been a security breach involving their digitized personal information. We also need to create baseline expectations for data security programs and practices, and penalize government contractors that don’t comply. We also need to look at how to protect increasingly public, yet vulnerable, sensitive data such as Social Security numbers, which are the keys to unlocking so much of our financial and personal lives."

Sen. Russ Feingold (D-WI) wrote in his prepared statement that "The lack of information about government use of commercial data is even more worrisome in the context of data mining programs. A government law enforcement or intelligence agency searching for patterns of criminal or terrorist activity in vast quantities of public and private information raises serious privacy and civil liberties issues -- not to mention questions about the effectiveness of these types of searches. More than two years after Congress first learned about Total Information Awareness, there is still much we do not know about the federal government’s other work on data mining."

He added that he plans to "reintroduce in the next few days my Data Mining Reporting Act, which would require all federal agencies to report to Congress on data mining programs used to find a pattern indicating terrorist or other criminal activity and how these programs implicate the civil liberties and privacy of all Americans." See, S 1544 from the 108th Congress.

Sen. Feingold added that "The bill does not end funding for any program, does not determine the rules for use of the technology or threaten any ongoing investigation that uses data mining technology. But it would allow Congress to conduct a thorough review of the costs and benefits of the practice of data mining and make considered judgments about which programs should go forward and which should not."

Also, Rep. Howard Berman (D-CA) introduced HR 1502, the "Civil Liberties Restoration Act of 2005", on about April 6, 2005. The bill is not yet in the Thomas web site. It is 36 pages in PDF. Title IV of the bill, beginning at page 28, addresses several privacy related issues. Section 402, which pertains to data mining, is based on the language of S 1544 (108th Congress), and HR 2490 (108th Congress). It would require "The head of each department or agency of the Federal Government that is engaged in any activity to use or develop data-mining technology shall each submit a public report to Congress on all such activities of the department or agency under the jurisdiction of that official." These bills set out in detail the required content of these periodic reports.

HR 1502's definition of the term "data mining" is crucial. It provides that data mining is "a query or search or other analysis of 1 or more electronic databases, where -- (A) at least 1 of the databases was obtained from or remains under the control of a non-Federal entity, or the information was acquired initially by another department or agency of the Federal Government for purposes other than intelligence or law enforcement; (B) the search does not use a specific individual’s personal identifiers to acquire information concerning that individual; and (C) a department or agency of the Federal Government is conducting the query or search or other analysis to find a pattern indicating terrorist or other criminal activity."

There are also legislative proposals to regulate data aggregators. For example, on March 2, 2005, Rep. Ed Markey (D-MA), the ranking Democrat on the House Commerce Committee's Subcommittee on Commerce, Trade and Consumer Protection, introduced HR 1080, the "Information Protection and Security Act". This bill would require information brokers to comply with a set of new fair information practice rules. It would give enforcement authority to the Federal Trade Commission (FTC) and states. It would also allow a private cause of action. See also, S 500, the "Information Protection and Security Act", introduced by Sen. Bill Nelson (D-FL) on March 3, 2005.

Federal Trade Commission (FTC) Chairman Deborah Majoras testified at the hearing. She wrote in her prepared testimony that "Data brokers provide information services to a wide variety of business and government entities. The information they provide may help credit card companies detect fraudulent transactions or assist law enforcement agencies in locating potential witnesses." She also reviewed the existing statutes that regulate disclosures of consumer information, including the Fair Credit Reporting Act (FCRA), Title V of the Gramm Leach Bliley Act (GLBA), and Section 5 of the Federal Trade Commission Act (FTC Act).

See also, prepared testimony of Chris Swecker (FBI), prepared testimony of Larry Johnson (Secret Service), and prepared testimony of William Sorrell (National Association of Attorneys General).

The Committee also heard from representatives of ChoicePoint, LexisNexis, and Acxiom, which have sold, disclosed and/or lost large quantities of personally identifying information to criminals.

Douglas Curling, P/COO of ChoicePoint, wrote in his prepared testimony about the data aggregation activities of his company.

In February, 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.

He also discussed legislative proposals. He advocated "increased resources for law enforcement efforts to combat identity theft and stronger penalties for the theft of personally identifiable data". He also advocated a "preemptive national notification law", which would preempt California's notification law. He also wrote that "we support providing consumers with the right to access and question the accuracy of public record information used to make decisions about them".

Curt Sanford, P/CEO of LexisNexis, wrote in his prepared testimony [14 pages in PDF] about recent disclosures of data by Seisint. Reed Elsevier acquired Seisint last year, and made it a part of its LexisNexis unit. See also, story titled "Reed Elsevier Reveals Fraudulent Access to Databases of Personal Information" in TLJ Daily E-Mail Alert No. 1,093, March 11, 2005.

Sanford wrote that "unauthorized persons, primarily using IDs and passwords of legitimate customers, may have accessed personally-identifying information, such as social security numbers (SSNs) and driver's license numbers (DLNs). In the majority of instances, IDs and passwords were stolen from Seisent customers that had legally permissible access to SSNs and DLNs for legitimate purposes, such as verifying identities and preventing and detecting fraud." He added that "At no time was the LexisNexis or Seisint technology infrastructure hacked into or penetrated ..."

He also wrote that "We recognize that additional legislation may be necessary ... including requiring notification in the event of a security breach where there is a substantial risk of harm to consumers ... [and] that any such legislation contain federal preemption ..." He also advocated "legislation that imposes more stringent penalties for identity theft and other cybercrimes".

Jennifer Barrett of Acxiom wrote in her prepared testimony that Acxiom supports "federal preemptive legislation requiring notice to consumers in the event of a security breach, where such breach places consumers at risk of identity theft or fraud".

The Committee also heard from James Dempsey, the Executive Director of the Center for Democracy & Technology (CDT). He wrote in his prepared testimony that the recent security breaches "have highlighted the need for a more substantial legal framework at the national level for entities collecting, using and selling personal data".

He offered several legislative recommendations. First, "entities, including government entities, holding personal data should be required to notify individuals in the event of a security breach". Second, "Since notice only kicks in after a breach has occurred, Congress should require entities that electronically store personal information to implement security safeguards, similar to those required by California AB 1950 and the regulations under Gramm-Leach-Bliley." Third, "Congress should impose tighter controls on the sale, disclosure and use of Social Security numbers and should seek to break the habit of using the SSN as an authenticator." Fourth, "Congress should address the federal government’s growing use of commercial databases, especially in the law enforcement and national security contexts." Fifth, "Congress should examinee the ``Fair Information Practices´´ that have helped define privacy in the credit and financial sectors and adapt them as appropriate to the data flows of this new technological and economic landscape.

Also, on April 13, the U.S. Court of Appeals (4thCir) issued its opinion [17 [pages in PDF] in U.S. v. Bush, an appeal from a criminal conviction and sentencing of an identity thief. The Appeals Court affirmed the District Court. It announced no new significant interpretation of law. However, the Court's recitation of the underlying facts of the case provides one example of just what it is that an identity thief does with other people's personal information.

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

The Senate will meet at 9:30 AM. It will resume consideration of HR 1268, the Iraq/Afghanistan Supplemental Appropriations bill.

RESCHEDULED FOR APRIL 28. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda includes consideration of several bills, and several judicial nominees, including the nominations of Thomas Griffith (to be a Judge of the U.S. Court of Appeals for the District of Columbia Circuit), Janice Brown (DC Circuit), Terrence Boyle (4th Circuit), Priscilla Owen (5th Circuit), Robert Conrad (Western District of North Carolina), and James Dever (Eastern District of North Carolina). This Committee rarely follows its announced agenda. 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.

10:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "The ORBIT Act: An Examination of Progress Made in Privatizing the Satellite Communications Marketplace". The hearing will be webcast by the Committee. See, notice. Press contact: Larry Neal or Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Commerce Committee will meet to mark up several bills, including S 432, the "Minority Serving Institution Digital & Wireless Technology Opportunity Act of 2005" and S 714, the "Junk Fax Prevention Act of 2005". Press contact: Melanie Alvord or Aaron Saunders (Stevens) at 202 224-8456 or 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. Location: Room 253, Russell Building.

POSTPONED. 10:00 AM. The House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "Oversight Hearing of the Department of Justice to Examine the Use of Section 218 of the USA PATRIOT Act". This is the section that changed the standard for issuance of a FISA order. Location: Room 2141, Rayburn Building.

TIME CHANGE. 11:00 AM. The House Ways and Means Committee will hold a hearing titled "United States-China Economic Relations and China's Role in the World Economy". See, notice. Location: Room 1100, Longworth Building.

12:15 PM. The Federal Communications Bar Association's (FCBA) Cable Practice Committee and Common Carrier Practice Committee will jointly host a brown bag lunch titled "Phone Companies' Entry into Video". The speakers will be Libby Beatty (National Association of Telecommunications Officers & Advisors), Neal Goldberg (National Cable & Telecommunications Association), and Bill Richardson (Wilmer Cutler). RSVP to Quyen Truong at ttruong at dowlohnes dot com or 202 776-2058. Location: Dow Lohnes & Albertson, Suite 800, 1200 New Hampshire Ave., NW.

2:00 PM. The House Appropriation's Committee's Subcommittee on Science, State, Justice, and Commerce, and Related Agencies will hold a hearing on the Federal Communications Commission. See, notice. Location: Room H-309, Capitol Building. (This is a small hearing room with very few public seats.)

2:00 PM. The House Appropriation's Committee's Subcommittee on Homeland Security will hold a hearing titled "Science and Technology". See, notice. Under Secretary of Homeland Security Charles McQueary will testify. Location: Room 2359, Rayburn Building.

4:00 PM. Pamela Samuelson (University of California at Berkeley School of Law) will present a draft paper titled "Why Congress Excluded Processes and Systems from the Scope of Copyright". 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.

6:00 PM. Day one of a two day conference hosted by the American Enterprise Institute (AEI), Münchner Kreis, and Georgetown University titled "The Future of Telecommunications Industries: Transatlantic Symposium". See, notice. Registration required by April 8. See, registration page. Location: Riggs Library, Main Campus, Georgetown University, 37th and O Streets, NW.

8:45 AM - 5:15 PM. Day two of a two day conference hosted by the American Enterprise Institute (AEI), Münchner Kreis, and Georgetown University titled "The Future of Telecommunications Industries: Transatlantic Symposium". See, notice. Registration required by April 8. See, registration page. Location: Riggs Library, Main Campus, Georgetown University, 37th and O Streets, NW.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in U.S. International Trade Commission v. ASAT Inc., No. 05-5009. See, U.S. International Trade Commission's (USITC) proceeding conducted pursuant to Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, titled "In the Matter of Certain Encapsulated Integrated Circuit Devices and Products Containing Same" and numbered 337-TA-501. See also ASAT web site. Judges Ginsburg, Rogers and Tatel will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

10:00 AM - 3:00 PM. The Federal Communications Commission's (FCC) Technological Advisory Council will meet. See, notice in the Federal Register, March 25, 2005, Vol. 70, No. 57, at Page 15316. Location: FCC, 445 12th Street, SW, Commission Meeting Room (TW-C305).

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding TSA Stores, Inc.'s Petition for Declaratory Ruling to preempt a provision of the statutes of the state of Florida as applied to interstate telephone calls. This is CG Docket No. 02-278, which pertains to rules implementing the Telephone Consumer Protection Act of 1991 (TCPA). See, notice in the Federal Register, March 1, 2005, Vol. 70, No. 39, at Pages 9875-9876.

The Supreme Court will return on from the recess that it began on Monday, April 4. See, Order List [12 pages in PDF] at page 12.

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to petitions to deny Nextel's and Sprint's joint applications for FCC approval of the transfer of control to Sprint of the licenses and authorizations held both by Nextel. That is, this is a merger review proceeding. See, FCC Public Notice [7 pages in PDF], No. DA 05-502, in WT Docket No. 05-63. On December 15, 2004, the two companies announced a "definitive agreement for a merger of equals". See, Nextel release and release.

10:00 AM - 2:00 PM. The American Enterprise Institute (AEI) will host an event titled "Managing Spectrum: Why Economics Matters". The speakers will include William Baumol (New York University), Gerald Faulhaber (University of Pennsylvania), and Robert Hahn (AEI-Brookings Joint Center for Regulatory Studies). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

11:00 AM. The House Homeland Security Committee's Subcommittee on Economic Security, Infrastructure Protection, and Cybersecurity will meet. The agenda contains one item, HR 285,  the "Department of Homeland Security Cybersecurity Enhancement Act of 2005". Location: Room 210, Cannon Building.

2:30 PM. The Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing to examine the SBC/ATT and Verizon/MCI mergers, focusing on remaking the telecommunication industry. 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.

6:00 - 815 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Telecom Act Re-write". Location: Wiley Rein & Fielding Conference Center, 1776 K St., NW.

Day one of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institute of Health (NIH), and Internet2 titled "4th Annual PKI R&D Workshop: Multiple Paths to Trust". See, NIST notice, registration page, and conference website. Location: NIST, Gaithersburg, MD.

9:30 AM - 12:00 NOON. The House Science Committee's Subcommittee on Space and Aeronautics will hold a hearing titled "Future Market for Commercial Space". The witnesses will be Burt Rutan (Scaled Composites), Will Whitehorn (Virgin Galactic), Elon Musk (Space Exploration Technologies), John Vinter (International Space Brokers Group), Molly Macauley (Resources for the Future), and Wolfgang Demisch (Demisch Associates). Press contact: Joe Pouliot at 202 225-0581 or joe.pouliot at mail dot house dot gov. Location: Room 2318 Rayburn Building.

Day two of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institute of Health (NIH), and Internet2 titled "4th Annual PKI R&D Workshop: Multiple Paths to Trust". See, NIST notice, registration page, and conference website. Location: NIST, Gaithersburg, MD.

9:30 AM - 3:30 PM. The Federal Communications Commission (FCC) will hold an orientation session for the new Integrated Spectrum Auction System (ISAS). See, FCC notice [PDF]. Preregistration is requested; call 888 225-5322. Location: FCC, 445 12th Street, SW.

10:00 AM. The House Ways and Means Committee will hold a hearing titled "Hearing on Implementation of the Dominican Republic-Central America Free Trade Agreement (DR-CAFTA)". See, notice. Location: Room 1100, Longworth Building.

12:00 NOON - 1:30 PM. The DC Bar Association will host a panel discussion titled "Wireless Mobile Content: A Snapshot of Content Issues in a Wireless World". The scheduled speakers are Mark Desautels (CTIA), Adam Zawel (Yankee Group), Fabrice Grinda (Zingy Inc.), Scott Delacourt (Deputy Bureau Chief, Wireless Telecommunications Bureau, Federal Communications Commission). See, notice. Prices vary from $15 to $25. For more information, call 202-626-3463. Location: D.C. Bar Conference Center, B-1 Level, 1250 H St., NW.

RESCHEDULED FROM APRIL 7. 2:30 PM. The Senate Judiciary Committee's Subcommittee on Intellectual Property will hold a hearing titled "The Patent System Today and Tomorrow". Sen. Orrin Hatch (R-UT) will preside. See, notice. 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.

Day three of a three day conference hosted by the National Institute of Standards and Technology (NIST), National Institute of Health (NIH), and Internet2 titled "4th Annual PKI R&D Workshop: Multiple Paths to Trust". See, NIST notice, registration page, and conference website. Location: NIST, Gaithersburg, MD.

Tech Law Journal publishes a free access web site and subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year. However, there are discounts for subscribers with multiple recipients. Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until one month after writing. See, subscription information page.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2005 David Carney, dba Tech Law Journal. All rights reserved.