|House Commerce Committee Postpones Markup of
12/15. The House Commerce Committee
(HCC) met to mark up three bills, including
the "Data Accountability and Trust Act (DATA)". It postponed markup
of HR 4127.
Rep. Joe Barton (R-TX), the Chairman
of the HCC, stated that "we had originally planned to markup H.R. 4127 but,
Mr. Dingell and I agreed to put off consideration in order to finalize agreements that
have been reached in negotiations with the majority and minority. It is the intention
of the chair to consider the DATA protection privacy bill as soon as possible. That
could happen as early as tomorrow if we're in session, but it likely won’t happen until
sometime in 2006." See,
Rep. John Dingell (D-MI), the
ranking Democrat on the HCC, stated that "I want to commend you, Mr. Chairman,
along with Subcommittee Chairman Stearns and Ranking Member Schakowsky, for your
hard work since the Subcommittee markup to resolve the many issues that were
highlighted at that markup."
Dingell (at right) explained that "The remaining major issue is a most important
one, and that is the issue of enforcement. We are all in agreement that we need
tough enforcement that will deter violations of the act. This bill is designed
to provide important rights to consumers when their confidential information is
compromised. But rights are meaningless without enforcement."
Rep. Dingell concluded that "I am encouraged that the staff on both sides of
the aisle are engaged in discussions that can lead to a resolution on this
matter, so that we can proceed to report this bill early next year. I want to
personally thank you, Mr. Chairman, for postponing this matter to give us time
to reach that resolution." See,
|Senate Commerce Committee Approves Bill to
Expand FTC Powers to Pursue Online Fraud
12/15. The Senate Commerce Committee (SCC)
approved S 1608,
the "Undertaking Spam, Spyware, and Fraud Enforcement With Enforcers Beyond
Borders Act of of 2005 (U.S. SAFE WEB Act). The SCC approved the bill after
little discussion, with no amendments, and by unanimous consent.
Gordon Smith (R-OR) (at right) introduced this bill on July 29, 2005.
The purpose of this bill is to increase Federal
Trade Commission (FTC) authority to pursue fraud, and especially online
fraud, that crosses national boundaries. It would also assist foreign
governments in pursuing fraud that involves activity in the U.S.
Section 5 of the Federal Trade Commission Act (FTCA), which is codified at
15 U.S.C. § 45, is
the provision that the FTC usually relies upon in actions against perpetrators
of online fraud. It currently provides, in part, that "Unfair methods of
competition in or affecting commerce, and unfair or deceptive acts or practices
in or affecting commerce, are hereby declared unlawful"
The bill would expand the definition of "unfair or deceptive acts or
practices" to include "foreign commerce that -- (i) cause or are likely to cause
reasonably foreseeable injury within the United States; or (ii) involve material
conduct occurring within the United States."
The bill provides that the FTC may obtain ex parte orders from a court for
delayed notice of, and prohibition of disclosure of, compulsory process, such as
subpoenas. The SCC stated in a
summarizing the bill that the purpose of this is to "prevent notifying subjects of
investigations if they may be likely to destroy evidence or move assets offshore".
Perhaps it is noteworthy that the members of the SCC are not concerned with
the consequences of increasing the FTC's ability to provide delayed notice, and
obtain gag orders, but some Senators and Representatives are arguing
emphatically about the PATRIOT Act's, and HR 3199's, provisions regarding
Department of Justice (DOJ) authority to
provide delayed notice, and obtain gag orders.
The bill also provides a broad immunity, not only from suits arising under
law, but also from suits for breach of contract, for disclosure to and
cooperation with the FTC. First, it provides that "the recipient of compulsory
process issued by the Commission under this Act shall not be liable under" any
federal, state, or local constitution, statute or regulation, "or under any
contract or other legally enforceable agreement, for failure to provide notice
to any person that such process has been issued or that the recipient has
provided information in response to such process".
The bill further provides that any "Internet service provider or provider of
telephone services", "financial institution", "operator of a credit
card system", "consumer reporting agency", or other enumerated entity,
"that voluntarily provides material to the Commission that such entity reasonably
believes is relevant to (A) a possible unfair or deceptive act or practice, as
defined in section 5(a) of this Act; or (B) assets subject to recovery by the
Commission, including assets located in foreign jurisdictions; shall not be
liable to any person" for violation of any federal, state, or local law, "for
such provision of material or for any failure to provide notice of such
provision of material or of intention to so provide material."
The SCC release states that these grants of immunity "protect entities from
liability for voluntary disclosures to the FTC relating to suspected fraud and
deception, increasing the likelihood of such disclosures from third parties".
The bill also provides for venue of certain actions in the District of
Columbia. It provides that "All judicial proceedings initiated by the Commission
under the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.), chapter 121
of title 18, United States Code, or this section may be brought in the United
States District Court for the District of Columbia or any other appropriate
United States District Court. All ex parte applications by the Commission under
this section related to a single investigation may be brought in a single
The bill's recitation of findings states that sometimes "wrongdoers, victims,
other witnesses, documents, money and third parties involved in the transaction
are widely dispersed in many different jurisdictions".
The SCC release states that the purpose of this is to "avoid challenges to
FTC jurisdiction issues".
This provision also has the effect of giving the FTC authority to bring, and
maintain, actions in a forum that is inconvenient to affected parties.
The also provides that whenever the FTC "obtains evidence that any person,
partnership, or corporation, either domestic or foreign, has engaged in conduct
that may constitute a violation of Federal criminal law" it may "transmit such
evidence" to the DOJ, which may then "institute criminal proceedings".
The bill also provides for increased cooperation with, and assistance to,
foreign law enforcement agencies.
This bill does not addresses antitrust investigations or proceedings.
|Washington Tech Calendar
New items are highlighted in red.
|Friday, December 16
The House will meet for legislative business at 9:00 AM. See,
Republican Whip Notice.
The Senate will meet at 9:30 AM for morning
hour. It will then resume consideration of the conference report on
the PATRIOT Act extension bill. See,
full text of
the conference report [219 pages in PDF].
9:00 - 11:00 AM. The Federal Communications
Commission's (FCC) Network Reliability and
Interoperability Council (NRIC) will meet. The agenda includes discussion
of "E911 issues, final recommendations for next generation E911 architectures
and transition issues, new best practices for improving the reliability of E911
networks and services, target network architectures for communications with emergency
services personnel, and best practices for network security". See, FCC
[PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
|Monday, December 19
Deadline to submit initial comments to the
Federal Communications Commission (FCC) in response
to its notice of proposed rulemaking regarding its rules affecting Wireless Radio
Services. This item is FCC 05-144 in WT Docket Nos. 03-264. The FCC adopted this
item on July 22, 2005. It released the
text [67 pages in PDF] on August 9, 2005. See,
notice in the Federal Register, October 19, 2005, Vol. 70, No. 201, at
Pages 60770 - 60781.
Deadline to submit comments to the Securities
and Exchange Commission (SEC) regarding improving the
draft RFP [154 pages in PDF] for remaking the SEC's Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) Platform. See also, SEC
release, draft RFP
cover letter [PDF], and story titled "SEC Seeks Contractor to Remake EDGAR"
in TLJ Daily E-Mail Alert No. 1,259, November 23, 2005.
|Friday, December 23
Informal deadline to submit comments to
Rep. Lee Terry (R-NE) and/or
Rep. Rick Boucher (D-VA) regarding their
discussion draft [31
pages in PDF] of a bill to be titled the "Universal Service Reform Act of
2005". See, story titled "Reps. Terry and Boucher Propose New Internet
Taxes" in TLJ Daily E-Mail Alert No. 1,257, November 21, 2005.
|Sunday, December 25
|People and Appointments
12/15. President Bush nominated Stephen Larson to be a Judge of the
U.S. District Court for the Central District of
California. See, White House
Larson is currently a Magistrate Judge for the Central District, at Riverside.
12/15. Qwest Communications announced the
appointments to its Board of Directors of Caroline Matthews (President of
Blue Cross and Blue Shield of Georgia), and David Hoover (Ch/P/CEO of
Ball Corporation). See, Qwest
12/12. David Drinkwater was named Chief Legal Officer of
Nortel Networks, effective December 19, 2005. See, Nortel
12/15. Microsoft announced the filing a ten
civil complaints in U.S. District Courts against various companies and individuals in
connection with their sale of Microsoft software. Seven of the actions, filed in the
Western District of Washington (Seattle), allege violation of an agreement, rather than
infringement. That is, Microsoft runs a program titled "Microsoft Action Pack
Subscriptions Initiative", or "MAPS", in which it provides discounted
Microsoft software packages for product evaluation and internal use, but not for resale.
Microsoft stated that this is its first round of lawsuits against MAPS Initiative
resellers. Three other complaints contain more conventional allegations of
distribution of counterfeit software. See, Microsoft
12/15. Basit Chaudhary pled guilty in
U.S. District Court (DC) to one count of felony theft of government
property, in connection with his theft 12 laptop computers from the Department
of Labor, where he previously worked. See,
Department of Justice (DOJ)
The DOJ, which prosecuted this case, has its own problems with missing laptops
and computer crime. For example, on August 5, 2002, the DOJ's
Office of the Inspector General (OIG)
released a series of reports on the control of laptop computers and weapons at five
DOJ components. It stated that there were a total of 400 missing laptops, and 775 missing
weapons. For the FBI, it reported 317 missing laptops and 212 missing weapons.
Moreover, the OIG found that the FBI does not know if sensitive data was lost.
See, story titled "FBI Loses 317 Laptops" in
TLJ Daily E-Mail
Alert No. 485, August 6, 2002. See also, story titled "FBI Employee Pleads
Guilty to Computer Crime" in
TLJ Daily E-Mail
Alert No. 791, December 3, 2003.
12/15. A trial jury of the U.S.
District Court (DMaine) returned a verdict of guilty against James Tobin on
one count of conspiracy to commit telephone harassment in violation of
U.S.C. § 371 and
U.S.C. § 223 (a)(1)(D), and one count of aiding and abetting of
telephone harassment in violation of
U.S.C. § 223 (a)(1)(D) and
U.S.C. § 2. Tobin is a former Republican National
Committee employee who schemed to disrupt phone service to five Democratic party offices
election day 2002. See, Department of Justice (DOJ)
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