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August 26, 2005, Alert No. 1,202.
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Suit Challenges Constitutionality of National Security Letters

8/24. A plaintiff filed a complaint [18 page PDF scan] in U.S. District Court (DConn) against Attorney General Alberto Gonzales and others seeking a declaratory judgment that 18 U.S.C. 2709 violates the First, Fourth and Fifth Amendments of the US Constitution, and an injunction barring the FBI from enforcing a National Security Letter.

The plaintiffs also seek preliminary relief. The District Court has scheduled a hearing for Wednesday, August 31, 2005.

2709 is titled "Counterintelligence access to telephone toll and transactional records". It provides that the FBI may "request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities". (Parentheses in original.)

This section further requires service providers to comply with any such request, which is more commonly referred to as a National Security Letter or NSL. It further imposes a gag on communications about such NSLs. It provides that "No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."

505 of the PATRIOT Act amended  2709.

There is no requirement in this section that the FBI first obtain a court order. There is no notice to the affected individuals that their privacy has been compromised. There is no procedure for the recipient, or affected individuals, to contest the validity of the NSL.

However, the Department of Justice (DOJ) has conceded that there are constitutional limitations on the gag order authority. Moreover, two different bills approved by the House and Senate in July to extend the expiring provisions of the PATRIOT Act contain amendments to Section 2709 that would limit gag order authority. See, HR 3199, the "USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005", and S 1389, the "USA PATRIOT Improvement and Reauthorization Act of 2005". See also, story titled "House Approves PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,180, July 22, 2005.

The complaint was filed under seal on August 9, 2005, and released to the public, in substantially redacted form, on April 24, 2005. The lead plaintiff, whose identity is redacted, is represented by the American Civil Liberties Union (ACLU), which is also a named plaintiff.

The complaint states that NSLs issued pursuant to Section 2709 "demand the disclosure of a wide range of sensitive and constitutionally protected information, including the identity of a person who has borrowed particular books from a public library or who has engaged in anonymous speech on the Internet."

The complaint further states that "an agent of defendant FBI served an NSL on plaintiff [redacted text] The NSL directed [redacted text] to disclose certain subscriber records and other sensitive information. [redacted text] strictly guards the confidentiality and privacy of its library and Internet records, and believes it should not be forced to disclose such records without a showing of compelling need and approval by a judge."

The complaint names as defendants the Attorney General, the Director of the FBI, and the FBI official who signed the NSL. The redacted complaint is not clear as to whether the FBI is also a defendant.

The unredacted portions of the complaint suggest that the lead plaintiff is an employee of a library that provides internet access to its users. For example, it states that "The vast majority of libraries around the country are "electronic communication service providers" under Section 2709 because they use online service to track circulation and cataloging of library materials, to track patron borrowing, and to provide Internet access to library patrons. As a result, libraries maintain a wide range of sensitive information about the reading habits and Internet usage of library patrons." It includes other statements regarding library usage, and the activities of the American Library Association (ALA).

The ACLU also stated in a release that "The client is a member of the American Library Association."

The ALA also issued a release. It stated that "This is the further evidence that the FBI is indeed using provisions of the USA PATRIOT Act to obtain library patron reading records".

The complaint adds that the ACLU seeks to "stem the backlash on civil liberties that has taken place in the name of national security", and in particular, under the PATRIOT Act, which amended  2709.

The lead attorney for the plaintiffs is Ann Beeson of the ACLU.

This case is redacted plaintiff, et al. v. Alberto Gonzales, Robert Mueller, and a redacted FBI official, U.S. District Court for the District of Connecticut, Judge Janet Hall presiding.

Senate Judiciary Committee Requests Information From FBI Regarding Data Mining Project

8/25. Sen. Arlen Specter (R-PA), the Chairman of the Senate Judiciary Committee, wrote a letter to Robert Mueller, the Director of the Federal Bureau of Investigation (FBI), asking for information about a data mining project named Able Danger.

Sen. Arlen SpecterSen. Specter (at right) wrote that "It has been reported in the news media and directly to my staff that Army Lt. Colonel Anthony Shaffer was the operations officer for a secret military program referred to as Able Danger. The mission of Able Danger was to use a sophisticated data mining program in conjunction with more traditional military intelligence methods to identify and track al Qaida terrorists oversees."

"This is an official request that your office provide to the Judiciary Committee all information and documents it has in connection with Able Danger," the letter states.

Trade Secrets Case To Proceed Against Corporation Owned by PRC

8/25. The U.S. Court of Appeals (8thCir) issued another opinion [PDF] in BP Chemicals v. Jiangsu SOPO, a trade secrets case involving a process used to manufacture acetic acid, a chemical component used in inks, plastics, resins, and fabrics. However, this opinion only addresses the jurisdictional issues of sovereign immunity and minimum contacts for the exercise of personal jurisdiction.

The first opinion, which was reported at 285 F.3d 677, held that BP's action survives a facial jurisdictional challenge under the Foreign Sovereign Immunities Act (FSIA). SOPO is wholly owned by the PR Chinese government.

The present opinion holds that BP's action survives a factual jurisdictional challenge under the FSIA, and a challenge to the court's personal jurisdiction over SOPO. The Court of Appeals held that SOPO meets the "commercial activity carried on in the United States" exception to immunity under the FSIA. The Court of Appeals also held that SOPO has sufficient contacts with the forum for the court to exercise personal jurisdiction over it.

This case may yet be back before the Court of Appeals on substantive issues pertaining to trade secrets law.

This case is BP Chemicals Ltd. v. Jiangsu SOPO Corporation, App. Ct. No. 04-1814, an appeal from the U.S. District Court for the Eastern District of Missouri, Judge Catherine Perry presiding.

People and Appointments

8/25. President Bush announced his intent to nominate James Andrew to be Administrator of the Department of Agriculture's Rural Utilities Service (RUS). He is a consultant for BAS, Inc., in Waynesboro, Georgia, which designs and services agricultural irrigation systems. He previously owned and operated BAS. See, White House release.

8/25. President Bush announced his intent to nominate Dale Meyerrose to be Chief Information Officer (CIO) at the Office of the Director of National Intelligence. He is Director of Command Control Systems and CIO for Headquarters North American Aerospace Defense Command. The White House press office also stated in a release that "He also assumes the positions of Director of Architectures and Integration as well as Chief Information Officer for Headquarters United States Northern Command." He was commissioned in the Air Force in 1975.

More News

8/26. The National Institute of Standards and Technology (NIST) published a notice in the Federal Register announcing that the NIST's National Center for Standards and Certification Information (NCSCI) provides a web based e-mail service, named Notify U.S., that "offers U.S. citizens, industries, and organizations an opportunity to review and comment on proposed foreign technical regulations that can affect their businesses and their access to international markets". See, Federal Register, August 26, 2005, Vol. 70, No. 165, at Page 50302.

8/25. The Department of Justice (DOJ) stated that a grand jury of the U.S. District Court (DAriz) returned a criminal indictment that charges Jennifer R. Clason, Jeffrey A. Kilbride, and James R. Schaffer with violation of the CAN-SPAM Act of 2003, as well as federal obscenity, money laundering and conspiracy statutes, in connection with their sending bulk unsolicited commercial e-mail that advertised pormographic web sites. The DOJ stated in a release that "The indictment charges all three defendants with two counts of fraud and related activity in connection with electronic mail under the CAN-SPAM Act and one count of criminal conspiracy. The indictment also charges Kilbride and Schaffer with two counts of interstate transportation of obscene material using an interactive computer service, two counts of interstate transportation of obscene material for the purpose of sale or distribution, and one count of money laundering. Schaffer is also charged with one count of operating three pormographic Internet websites without including required statements describing the location of identification and other records for the performers portrayed in the websites, as is required by federal law."

8/22. Edgar Bronfman, Ch/CEO of Warner Music Group (WMG), gave a speech [7 pages in PDF] in Aspen, Colorado, in which he discussed the Supreme Court's June 27, 2005, opinion [55 pages in PDF] in MGM v. Grokster. He also opposed compulsory licensing of music, and government mandated interoperability and standards for device makers. He also announced that Warner will offer a "digital only label", or "e-label". He spoke at a conference hosted by the Progress and Freedom Foundation (PFF). See, WMG release and PFF release.

8/17. The U.S. Attorneys Office for the Northern District of California announced the indictment, arrest, and arraignment of Behzad Mofrad on criminal charges of mail fraud and conspiracy to commit mail fraud. The indictment alleges that Mofrad engaged in a scheme to defraud Cisco Systems of internet networking equipment in 2002. See, USAO release.

FCC Delays Its VOIP Customer Lockout Mandate for 30 Days

8/26. The Federal Communications Commission (FCC) released an order [4 pages in PDF] that extends for thirty days (from August 30 to September 28) the FCC mandated deadline for interconnected voice over internet protocol (VOIP) service providers to lock out certain of their customers. This order does not cover all service providers. It also imposes new reporting mandates.

The just released order, which the FCC identifies as "further guidance", further amends the order portion of the FCC's First Report and Order and Notice of Proposed Rulemaking [90 pages in PDF], numbered FCC 05-116, adopted on May 19, 2005, and released on June 3, 2005. The FCC amended its May 19 order with an order [PDF], titled "Public Notice", dated July 26, that established the August 30 deadline to shut off service to certain VOIP customers.

The July 26, order, which is numbered DA 05-2085, requires, among other things, that every interconnected VOIP service provider must send every one of its subscribers an FCC mandated statement regarding E911, and that every interconnected VOIP service provider must send to every one of its customers the FCC mandated VOIP warning stickers. This order further requires that every interconnected VOIP service provider obtain acknowledgement from every one of its subscribers, and that it "disconnect, no later than August 30, 2005, all subscribers from whom it has not received such acknowledgements".

The just released order, which is numbered DA 05-2358, provides, in part, that the FCC "will continue to refrain, for an additional 30 days -- until September 28, 2005 -- from enforcing the requirement that VoIP providers obtain affirmative acknowledgements ..."

However, the just released order also provides that this extension only applies to interconnected VOIP service providers who "filed reports on or before August 10, 2005 in accordance with the July 26" order.

The just released order also requires interconnected VOIP service providers to file with the FCC two additional reports, by September 1, 2005 and September 22, 2005.

For more information on the July 26 order, see story titled "FCC Amends E911 VOIP Order's Subscriber Notice, Reporting and Cancellation Requirements" in TLJ Daily E-Mail Alert No. 1,184, July 28, 2005.

For more information on the May 19 order, see, story titled "FCC Releases VOIP E911 Order" in TLJ Daily E-Mail Alert No. 1,148, June 6, 2005. See also, stories titled "FCC Adopts Order Expanding E911 Regulation to Include Some VOIP Service Providers", "Summary of the FCC's 911 VOIP Order", "Opponents of FCC 911 VOIP Order State that the FCC Exceeded Its Statutory Authority", and "More Reaction to the FCC's 911 VOIP Order", in TLJ Daily E-Mail Alert No. 1,139, May 20, 2005.

These orders are part of the FCC's proceedings titled "In the Matter of IP-Enabled Services" and numbered WC Docket No. 04-36, and "E911 Requirements for IP-Enabled Service Providers" and numbered WC Docket No. 05-196.

Washington Tech Calendar
New items are highlighted in red.
Friday, August 26

The House will not meet on Monday, August 1 through Monday, September 5. See, House calendar and Republican Whip Notice.

The Senate will not meet on Monday, August 1 through Monday, September 5. See, Senate calendar.

The Supreme Court is between terms. The opening conference of its October 2005 Term will be held on September 26, 2005.

Deadline to submit initial comments to the Interim Chief Copyright Royalty Judge in response to the request for further comments regarding rules for the delivery and format of records of use of sound recordings for statutory licenses under 17 U.S.C. 112 and 17 U.S.C. 114. The Interim Chief Copyright Royalty Judge, on behalf of the Copyright Royalty Board, issued the notice of proposed rulemaking (NPRM) on April 27, 2005. The Board has received comments, which reflected sharp divisions among the parties. It now poses further questions. See, notice in the Federal Register, Vol. 70, No. 143, at Pages 43364 - 43368.

Monday, August 29

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice [PDF] requesting comments on Continental Airlines' Petition for a Declaratory Ruling regarding the state Massachusetts' attempt to regulate Wi-Fi hotspots. Continental has installed a Wi-Fi hotspot for internet access and telecommunications at its frequent flyer lounge at Boston Logan Airport (Logan). An issue is whether the demands of the Massachusetts Port Authority for removal of the antenna are prohibited under the FCC's Over the Air Reception Devices (OTARD) rules. This public notice is DA 05-2213 in ET Docket No. 05-247.

Tuesday, August 30

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for the ITU-D's meetings of Study Group 1 and Study Group 2, which will take place in September, Geneva, on September 6-9 and 12-15, 2005. See, notice in the Federal Register, July 8, 2005, Vol. 70, No. 130, at Pages 39544 - 39545. Location: Room 2533A, State Department.

1:30 - 3:00 PM. The Federal Communications Commission's (FCC) Informal Working Group 2: Satellite Services and HAPS will meet. See, FCC notice [PDF]. Location: Leventhal Senter & Lerman, 7th Floor Conference Room, 2000 K Street, NW.

EXTENDED TO SEPTEMBER 28. Effective date of the Federal Communications Commission's (FCC) VOIP customer lockout order. See, the order contained in the FCC's document titled "Public Notice' [PDF], numbered DA 05-2085, and released on July 26, 2005. It requires, among other things, that every interconnected voice over internet protocol (VOIP) service provider must send every one of its subscribers an FCC mandated statement regarding E911, and that every interconnected VOIP service provider must send to every one of its customers the FCC mandated VOIP warning stickers. This order further requires that every interconnected VOIP service provider obtain acknowledgement from every one of its subscribers, and that it "disconnect, no later than August 30, 2005, all subscribers from whom it has not received such acknowledgements".

Wednesday, August 31

Deadline for the public to submit written comments to the House Ways and Means Committee regarding HR 3376, the "Tax Technical Corrections Act of 2005". See, notice.

Thursday, September 1

Compliance date of the Federal Communications Commission (FCC) final rule that extends and modifies the FCC Form 477 local competition and broadband data gathering program. See, notice in the Federal Register, December 29, 2004, Vol. 69, No. 249, at Pages 77912 - 77938. The FCC's report and order is FCC 04-266 in WC Docket No. 04-141.

The mandatory electronic filing via the Cable Operations and Licensing System (COALS) for FCC Forms 321, Aeronautical Frequency Notification, will commence. See, FCC Public Notice DA 05-270, and notice in the Federal Register, February 23, 2005, Vol. 70, No. 35, at Page 8811.

Deadline to submit comments to the Federal Communications Commission (FCC) in response to its public notice [37 pages in PDF] regarding its plan to review rules adopted by the FCC in 1993, 1994 and 1995, pursuant to the Regulatory Flexibility Act of 1980, which is codified at 5 U.S.C. 610. This public notice lists the rules to be reviewed. This public notice, which is dated May 31, 2005, is numbered DA-05-1524. See also, notice in the Federal Register, June 8, 2005, Vol. 70, No. 109, at Pages 33416 - 33426.

Deadline to submit to the U.S. Trade Representative (USTR) requests to testify at the USTR's September 14, 2005 public hearing on the People's Republic of China's compliance with its World Trade Organization (WTO) commitments. See, notice in the Federal Register, August 3, 2005, Vol. 70, No. 148, at Pages 44714 - 44715.

EXTENDED FROM AUGUST 22. Extended deadline to submit initial comments to the Copyright Office regarding its first report to the Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004. See, original notice in the Federal Register, July 7, 2005, Vol. 70, No. 129, at Pages 39343 - 39345. See also, notice extending deadlines in the Federal Register, August 15, 2005, Vol. 70, No. 156, at Page 47857.

Friday, September 2

Deadline for the public to submit written comments to the House Ways and Means Committee's Subcommittee on Trade regarding technical corrections to U.S. trade laws and miscellaneous duty suspension bills. See, notice.

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