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January 24, 2006 Alert No. 1,295.
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Supreme Court Denies Certiorari in Blackberry Patent Case

1/23. The Supreme Court denied certiorari in Research in Motion v. NTP, a patent infringement case involving Research in Motion's (RIM) BlackBerry series of mobile communications and computing devices. See, Order List [9 pages in PDF] at page 8. This lets stand the judgment of the U.S. Court of Appeals (FedCir).

See, August 2, 2005, opinion [75 pages in PDF] of the Court of Appeals, and story titled "Federal Circuit Issues New Opinion in NTP v. RIM" in TLJ Daily E-Mail Alert No. 1,197, August 17, 2005. This affirmed the judgment of the District Court that RIM has infringed some claims of NTP patents.

This case is Research in Motion, Ltd. v. NTP, Inc., a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, Sup. Ct. No. 05-763. The Court of Appeals number is 03-1615. The Court of Appeals heard an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. 3:01CV767.

The Supreme Court also granted the motions of Intel, Canadian Chamber of Commerce, and the Government of Canada to file amicus curiae briefs.

NTP was represented by Bert Rein of the Washington DC law firm of Wiley Rein & Fielding. RIM was represented by Herbert Fenster of the law firm of McKenna Long & Aldridge.

Bush Defends NSA Electronic Surveillance Program

1/23. President Bush gave a speech at Kansas State University in Manhattan, Kansas, in which he discussed, among other topics, the war on terrorism, extending the expiring provisions of the USA PATRIOT Act, and electronic surveillance by the National Security Agency (NSA).

PATRIOT Act Extension. He said that "Interestingly enough, the Patriot Act, some of its provisions are set to expire. I like to remind people the Patriot Act may be set to expire, but the threats to the United States haven't expired. And exactly what has changed, I asked out loud, after the attack of September the 11th and today? Those tools are still needed for our law enforcement officers. I want you to know that this Patriot Act is under constant review, and there has been no documented abuses under the Patriot Act."

The 2001 USA PATRIOT Act provided that 16 of its sections would expire on December 31, 2005. In late December the Congress approved S 2167, a short untitled bill that merely extends the sunset date to February 3, 2006.

The House, but not the Senate, has approved the huge conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005".

See also, stories titled "House and Senate Approve Five Week Extension of Sunsetted Sections of PATRIOT Act" in TLJ Daily E-Mail Alert 1,279, December 23, 2005; "Senate Approves Six Month Extension of Sunsetted Provisions of the PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,278, December 22, 2005, "Cloture Motion on PATRIOT Act Extension Bill Defeated in Senate" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005, and "House Approves Conference Report on PATRIOT Act Extension Bill" in TLJ Daily E-Mail Alert No. 1,273, December 15, 2005.

NSA Domestic Surveillance. Bush said of the NSA surveillance program, "It's what I would call a terrorist surveillance program."

See also, story titled "President Bush Discloses Interception of Communications Without Court Approval" in TLJ Daily E-Mail Alert No. 1,275, December 19, 2005; story titled "Bush, Gonzales & Hayden Discuss Presidential Intercepts and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,276, December 20, 2005; story titled "Law Professors Assert That NSA Electronic Surveillance Program Violates Law" in TLJ Daily E-Mail Alert No. 1,287, January 11, 2006; and story titled "Bush Discusses NSA Surveillance and PATRIOT Act" in TLJ Daily E-Mail Alert No. 1,288, January 12, 2006.

The Senate Judiciary Committee will hold a hearing on Monday, February 6, at 9:30 AM, titled "Wartime Executive Power and the NSA’s Surveillance Authority". The witnesses will include Attorney General Alberto Gonzales.

Bush continued that "I made the decision to do the following things because there's an enemy that still wants to harm the American people. What I'm talking about is the intercept of certain communications emanating between somebody inside the United States and outside the United States; and one of the numbers would be reasonably suspected to be an al Qaeda link or affiliate. In other words, we have ways to determine whether or not someone can be an al Qaeda affiliate or al Qaeda. And if they're making a phone call in the United States, it seems like to me we want to know why."

"This is a -- I repeat to you, even though you hear words, ``domestic spying,´´ these are not phone calls within the United States. It's a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States", said Bush.

"I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress", said Bush. "You know, it's amazing, when people say to me, well, he was just breaking the law -- if I wanted to break the law, why was I briefing Congress?"

He also argued that "Federal courts have consistently ruled that a President has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority. Recently there was a Supreme Court case called the Hamdi case. It ruled the authorization for the use of military force passed by the Congress in 2001 -- in other words, Congress passed this piece of legislation. And the Court ruled, the Supreme Court ruled that it gave the President additional authority to use what it called "the fundamental incidents of waging war" against al Qaeda."

See, the June 28, 2004, Supreme Court opinion in Hamdi v. Rumsfeld, 542 U.S. 507.

Bush concluded, "I'm not a lawyer, but I can tell you what it means. It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It's an -- you've got the power to protect us, but we're not going to tell you how. And one of the ways to protect the American people is to understand the intentions of the enemy. I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why -- to protect you."

Gen. Hayden Defends NSA E-Surveillance Program

1/23. General Michael Hayden gave a speech [21 pages in PDF] and answered questions in Washington DC, regarding the National Security Agency's (NSA) domestic terrorism related electronic surveillance program that was publicly disclosed by President Bush in December.

He said that "Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such."

 He added that "this program's been successful", and that "this program has given us information that we would not otherwise had been able to get". But, he said, "It's impossible for me to talk about this".

And, he said, "we're not violating the law".

Michael HaydenHayden (at right) is currently the the Principal Deputy Director for National Intelligence. Before that he was Director of the National Security Agency.

He often spoke in vague terms. For example, he was asked "Are you looking at individuals or are you looking at phone numbers, websites, e-mail addresses?" He responded that it is "Hard for me to get into the specifics. I would just say that what it is we do is that we use our art form -- we use our science and our art to -- as best as we can, okay? -- specifically target communications we have reason to believe are associated with al Qaeda, and we use all of the tools ... available to us to do that."

He said that "NSA intercepts communications, and it does so for only one purpose -- to protect the lives, the liberties and the well-being of the citizens of the United States from those who would do us harm. By the late 1990s, that job was becoming increasingly more difficult. The explosion of modern communications in terms of volume, variety, velocity threatened to overwhelm us."

He did not elaborate on what communications and information technologies cause the NSA difficulty.

Nor did he identify any new technologies that present the government with new and increased opportunities for obtaining information.

He also addressed the authority for the NSA's program. He said that "prior to September 11th certain communications weren't considered valuable intelligence, it became immediately clear after September 11th that intercepting and reporting these same communications were in fact critical to defending the homeland. Now let me make this point. These decisions were easily within my authorities as the director of NSA under and executive order; known as Executive Order 12333, that was signed in 1981, an executive order that has governed NSA for nearly a quarter century."

"Now, beyond the authorities that I exercised under the standing executive order, as the war on terror has moved forward, we have aggressively used FISA warrants. The act and the court have provided us with important tools, and we make full use of them. Published numbers show us using the court at record rates, and the results have been outstanding. But the revolution in telecommunications technology has extended the actual impact of the FISA regime far beyond what Congress could ever have anticipated in 1978. And I don't think that anyone can make the claim that the FISA statute is optimized to deal with or prevent a 9/11 or to deal with a lethal enemy who likely already had combatants inside the United States."

Hayden also compared FISA procedure to the quicker procedure of the program that is currently the subject of debate. He said that "The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates. The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks." He added that "These are communications that we have reason to believe are al Qaeda communications, a judgment made by American intelligence professionals, not folks like me or political appointees, a judgment made by the American intelligence professionals most trained to understand al Qaeda tactics, al Qaeda communications and al Qaeda aims."

He also said that "It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about." Moreover, "This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda. We bring to bear all the technology we can to ensure that this is so. And if there were ever an anomaly, and we discovered that there had been an inadvertent intercept of a domestic-to-domestic call, that intercept would be destroyed and not reported. But the incident, what we call inadvertent collection, would be recorded and reported."

He said the it is not accurate to describe this program as "domestic spying", in part, because "One end of any call targeted under this program is always outside the United States". He quipped that "if NSA had intercepted al Qaeda Ops Chief Khalid Shaikh Mohammed in Karachi talking to Mohamed Atta in Laurel, Maryland, in say, July of 2001 -- if NSA had done that, and the results had been made public, I'm convinced that the crawler on all the 7 by 24 news networks would not have been ``NSA domestic spying.´´"

Hayden also said that there have been no whistleblowers at the NSA who have complained about this program. In response to a question about such complaints, he responded that "not a single employee of the National Security Agency has addressed a concern about this program to the NSA IG. I should also add that no member of the NSA workforce who has been asked to be included in this program has responded to that request with anything except enthusiasm. I don't know what you're talking about."

Hayden also said that reports back in 2000 that the the Echelon program was used to advance American corporate interests were false and a "great urban legend".

EPIC Files FOIA Complaint Against DOJ for Records Related to NSA Domestic Terrorist E-Surveillance

1/19. The Electronic Privacy Information Center (EPIC) filed a complaint [7 pages in PDF] in U.S. District Court (DC) against the Department of Justice (DOJ) alleging violation of the Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552, in connection with its alleged wrongful withholding of records and information regarding the National Security Agency's (NSA) warrantless surveillance of communications where one party is located in the U.S.

The EPIC also filed a motion for a preliminary injunction and memorandum in support [21 pages in PDF].

The EPIC's FOIA request sought records "concerning a presidential order or directive authorizing the National Security Agency (‘NSA’), or any other component of the intelligence community, to conduct domestic surveillance without the prior authorization of the Foreign Intelligence Surveillance Court (`FISC´)."

The EPIC's FOIA request elaborated that it sought the following:
  "a. an audit of NSA domestic surveillance activities;
  b. guidance or a ``checklist´´ to help decide whether probable cause exists to monitor an individual’s communications;
  c. communications concerning the use of information obtained through NSA domestic surveillance as the basis for DOJ surveillance applications to the FISC; and
  d. legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques."

The EPIC's attorneys are David Sobel, Marcia Hoffman and Marc Rotenberg.

ACLU Sues NSA to Enjoin Domestic Terrorist E-Surveillance

1/17. The American Civil Liberties Union (ACLU) and others filed a complaint [60 pages in PDF] in U.S. District Court (EDMich) against the National Security Agency (NSA) and others alleging that "a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval" violates freedom of speech and privacy rights under the First and Fourth Amendments of the Constitution.

The plaintiffs include, in a addition to the ACLU and other interest groups, several individuals who communicate with persons in the Middle East as a part of their writing and/or advocacy. The complaint alleges that the NSA program is "disrupting the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy".

The complaint asks the Court to declare the NSA program unconstitutional under the First and Fourth Amendments, in violation of the principle of separation of powers, and in violation of the Administrative Procedure Act.

President Bush, other administration officials, and their supporters have often portrayed opposition to the NSA electronic surveillance program and opposition to extension of the expiring provisions of the USA PATRIOT Act as Democrats and political opportunists. See, for example, January 22, 2006, White House press office release titled "Setting the Record Straight: Democrats Continue to Attack Terrorist Surveillance Program".

Some of the plaintiffs in, and supporters of, this complaint do not fit this characterization. For example, one of the named plaintiffs is Christopher Hitchens. He is a professional opinion writer from Great Britain. He is a former left wing radical who has defended the wars in Iraq and Afghanistan. See also, statement by Hitchins.

Bob BarrAlso, former Rep. Bob Barr (R-GA) (at right), who is not a named plaintiff, wrote in an article in his web site that "This lawsuit sends a clear message to the administration that American people from across the political spectrum will not stand by while the federal government violates its own laws in ways that severely undermine civil liberties."

He elaborated that "Federal law clearly requires judicial oversight of all electronic surveillance of Americans living in the United States, including anti-terrorism investigations, under both the letter and spirit of the law. Allowing the government to continue to monitor the private phone calls and emails of ordinary Americans without so much as a warrant would set a disturbing precedent for administrations to come. Personal records of individuals not even suspected of wrongdoing could be swept into extensive federal databases for the government to use at will. This is certainly not what our forefathers intended when they guaranteed all Americans freedom from `unreasonable searches and seizures.´"

He added that "as Congress works to reauthorize the Patriot Act, the NSA surveillance case should serve as a reminder of the serious privacy concerns raised by overreaching federal power, underscoring the need for reforming the Patriot Act's controversial secret record search provisions."

The ACLU's attorney of record is Ann Beeson of the ACLU Foundation's New York, New York, office.

GAO Releases Report on Impact of Internet Tax Moratorium

1/23. The Government Accountability Office (GAO) released a report [55 pages in PDF] titled "Internet Access Tax Moratorium: Revenue Impacts Will Vary by State".

The Congress enacted the original moratorium in late 1998. It extended the moratorium in 2001. In late 2004 the Congress again extended the moratorium, to November 1, 2007. On December 3, 2004, President Bush signed S 150 (108th Congress), the "Internet Tax Nondiscrimination Act". See, White House release. It is now Public Law No. 108-435. This bill created many new exceptions to the moratorium, and required this GAO report. See, story titled "Bush Signs Internet Tax Nondiscrimination Act" in TLJ Daily E-Mail Alert No. 1,031, December 6, 2004.

The original moratorium provided that "(a) Moratorium.--No State or political subdivision thereof shall impose any of the following taxes during the period beginning on October 1, 1998, and ending 3 years after the date of the enactment of this Act -- (1) taxes on Internet access, unless such tax was generally imposed and actually enforced prior to October 1, 1998; and (2) multiple or discriminatory taxes on electronic commerce."

S 150 added the following: "The term `Internet access service´ does not include telecommunications services, except to the extent such services are purchased, used, or sold by a provider of Internet access to provide Internet access." That is, the 1998 act imposed a moratorium on taxes on internet access, but, the act's definition of "internet access" excluded "telecommunications services". This change clarifies that services, such as broadband DSL and wireless internet access services, are covered by the moratorium.

S 150 also created numerous exceptions to this moratorium. For example, it creates exemptions for state and federal universal service programs, 911 and E911 programs, and VOIP services. It expands the grandfather provisions. It also carves out a special exemption for the state of Texas' municipal access line fee.

The GAO's just released report states that "The Internet tax moratorium bars taxes on Internet access, meaning taxes on the service of providing Internet access. In this way, it prevents services that are reasonably bundled as part of an Internet access package, such as electronic mail and instant messaging, from being subject to taxes when sold to end users. These tax-exempt services also include DSL services bundled as part of an Internet access package."

It continues that "Some states and providers have construed the moratorium as also barring taxation of what we call acquired services, such as high-speed communications capacity over fiber, acquired by Internet service providers and used by them to deliver access to the Internet to their customers. Because they believed that taxes on acquired services are prohibited by the 2004 amendments, some state officials told us their states would stop collecting them as early as November 1, 2005, the date they assumed that taxes on acquired services would lose their grandfathered protection. However, according to our reading of the law, the moratorium does not apply to acquired services since, among other things, a tax on acquired services is not a tax on ``Internet access.´´ Nontaxable ``Internet access´´ is defined in the law as the service of providing Internet access to an end user; it does not extend to a provider's acquisition of capacity to provide such service. Purchases of acquired services are subject to taxation, depending on state law."

This GAO report concludes that "the moratorium's total revenue impact has been unclear and any future impact would vary by state."

It elaborates that the Congressional Budget Office (CBO) reported in 2003 "that states and localities would lose from more than $160 million to more than $200 million annually by 2008 if all grandfathered taxes on dial-up and DSL services were eliminated, although part of this loss reflected acquired services. It also identified other potential revenue losses, although unquantified, that could have grown in the future but that now seem to pose less of a threat."

See, November 5, 2003 letter from the CBO to Sen. Lamar Alexander (R-TN).

The GAO report continues that "CBO's estimated annual losses by 2007 for states that had grandfathered taxes in 1998 were about 0.1 percent of the total 2004 tax revenues for those states. Because it is difficult to know what states would have done to tax Internet access services if no moratorium had existed, the total revenue implications of the moratorium are unclear. The 1998 moratorium was considered before connections to the Internet were as widespread as they later became, limiting the window of opportunity for states to adopt new taxes on access services. Although some states had already chosen not to tax access services and others stopped taxing them, other states might have been inclined to tax access services if no moratorium were in place."

It concludes that "In general, any future impact related to the moratorium will differ from state to state. The details of state tax law as well as applicable tax rates varied from one state to another. For instance, North Dakota taxed access service delivered to retail consumers. Kansas taxed communications services acquired by Internet service providers to support their customers. Rhode Island taxed both access service offerings and the acquisition of communications services. California officials said their state did not tax these areas at all."

See also, CBO report titled "Economic Issues in Taxing Internet and Mail-Order Sales".

People and Appointments

1/23. The National Music Publishers' Association (NMPA) and its subsidiary, The Harry Fox Agency (HFA), announced a reorganization of their legal departments. David Israelite remains P/CEO of the the NMPA, and Gary Churgin remains P/CEO of HFA. The two announced in a release that "Jacqueline Charlesworth, who had been Senior Vice President and General Counsel of HFA, will become Senior Vice President and General Counsel of the NMPA. Charlesworth will remain based in HFA's New York offices and will report to David Israelite. Michael Simon, currently HFA Senior Vice President of Licensing and Chief of Strategic Development and Marketing, will assume HFA's General Counsel position in addition to his other responsibilities. His title will be Senior Vice President Business Affairs, General Counsel and Chief Strategic Officer. HFA's Legal Department will now report to him, in addition to the Business Development, Communications, and Licensing Departments. He will continue to report to Gary Churgin." (Emphasis added.)

Supreme Court Rules in State Sovereign Immunity Case

1/23. The Supreme Court issued its 5-4 opinion [60 pages in PDF] in Central Virginia Community College v. Katz, a bankruptcy case regarding state sovereign immunity. The Supreme Court affirmed the judgment of the U.S. Court of Appeals (6thCir). That Supreme Court upheld a Congressional abrogation of state sovereign immunity. Previously, the Supreme Court has overturned Congress attempts to abrogate state sovereign immunity in the context of intellectual property law.

Introduction. The facts giving rise to this case, preferential transfers by a debtor to state entities, do not involve technology. The statute being construed, the Bankruptcy Code, is not technology related. At issue is whether the Congress, in writing the Bankruptcy Code, can abrogate state immunity. Yet this case is important for technology, because the Supreme Court's interpretation of the nature of state sovereign immunity may affect other Congressional statutes that now, or in the future, may purport to abrogate state sovereign immunity. Notably, these include the Patent Act, Copyright Act, Lanham Act, and the Communications Act, which more directly impact technology.

Previously, the Supreme Court issued a series of 5-4 opinions that overturned Congressional abrogations of state sovereign immunity. TLJ offers no explanation of why the present majority opinion might be consistent with these prior majority opinions. However, one member of the previous five member majorities flipped slides. Justice Sandra O'Connor previously joined in opinions that overturned Congressional statutes, but in the just released opinion she joined in the majority that upheld the statute.

Also, in the interim, former Chief Justice William Rehnquist died. He wrote two earlier states rights opinions. He has been replaced by the new Chief Justice John Roberts. In the just released opinion he joined the states rights minority.

Justice O'Connor will soon leave the Court, and will likely be replaced by Sam Alito. The Court hangs in the balance. Whichever camp he joins will form the majority on the issue of abrogation of state sovereign immunity.

Proceedings Below. Wallace's Bookstores operated bookstores on the campuses of Central Virginia Community College, and three other state colleges. It declared bankruptcy in U.S. Bankruptcy Court (E.D.Kent). Bernard Katz is the liquidating supervisor of the bankrupt estate. He commenced an adversary proceeding, under the federal Bankruptcy Code, to recover preferential transfers made by Wallace's Bookstores to the four state colleges, and to collect accounts receivable owed by the four state colleges.

The Bankruptcy Code, at 11 U.S.C. § 106(a), provides that "Notwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section with respect to the following: ..." It then lists numerous sections of the bankruptcy code, including 11 U.S.C. § 547, which pertains to preferential transfers.

The four state colleges filed motions to dismiss the complaint, based upon state sovereign immunity. They asserted that § 106(a) is unconstitutional. The Bankruptcy Court denied these motions.

The four colleges appealed. The Court of Appeals (6thCir) affirmed. The four colleges sought rehearing en banc. Not one judge voted to rehear the case. The four colleges petitioned the Supreme Court for writ of certiorari.

The Supreme Court granted certiorari on April 4, 2005. See, story titled "Supreme Court Grants Certiorari in State Sovereign Immunity Case" in TLJ Daily E-Mail Alert No. 1,109, April 5, 2005.

See also, the states' brief [69 pages in PDF], Katz's brief [PDF], and the states' reply brief [28 pages in PDF].

Supreme Court Opinion. The four colleges relied heavily in their petition and briefs on the Supreme Court's opinions in Seminole Tribe v. Florida, 517 U.S. 44 (1996), which held that the Congress lacks authority under Article I of the Constitution to abrogate the States' 11th Amendment immunity from suit in federal courts, and in Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999), which extended the Seminole Tribe holding to intellectual property suits.

Justice Stevens wrote the opinion of the Court. He was joined by Justices O'Connor, Breyer, Souter, and Ginsburg. In affirming the Court of Appeals, he suggested that federal bankruptcy authority is different from other topics delegated to the Congress in Article 1, Section 8, of the Congress.

Justice Thomas wrote a long dissent (beginning at PDF page 26) that was joined by Justices Roberts, Scalia and Kennedy. He wrote that the majority opinion is "impossible to square with this Court's settled state sovereign immunity jurisprudence". Moreover, he cited both Seminole Tribe and Florida Prepaid as authority for the proposition that the majority opinion is incorrect.

Commentary. Article 1, Section 8, Clause 4, of the Constitution provides that "The Congress shall have the Power ... To establish ... uniform Laws on the subject of Bankruptcies throughout the United States". The Supreme Court has just held, by a 5-4 vote, that this clause gives the Congress authority to abrogate state sovereign immunity from suits to set aside preferential transfers.

However, it is also Article 1, Section 8, that provides that "The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes" and "To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

Yet, the Supreme Court has also held, in a series of 5-4 opinions, that these clauses do not give the Congress authority to abrogate state sovereign immunity in the areas of trademark and patent law.

Something is out of joint.

State Immunity in IPR Cases. Former Chief Justice Rehnquist wrote the opinion of the Court in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). This case involved the Indian Gaming Regulatory Act and the Indian Commerce clause of the constitution. He wrote that the Congress lacks authority under the commerce clause of Article I, Section 8, to abrogate the states' 11th Amendment immunity from suit in federal courts. This was a 5-4 opinion.

Then, Rehnquist wrote the opinion for the Court in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), invalidating the Patent and Plant Variety Protection Remedy Clarification Act for the same reason. This too was a 5-4 opinion.

At the same time, the Court issued its opinion in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999), invalidating the Trademark Remedy Clarification Act, again on the basis of state sovereign immunity. Scalia wrote this 5-4 opinion. Rehnquist joined.

As a result of these cases, states can hold intellectual property, and enforce their intellectual property rights in federal court. At the same same, states are in effect free to steal the intellectual property of others, without fear of money judgments against them. Some states infringe intellectual property rights, hide behind 11th Amendment immunity, and then lobby their Senators to block legislation that would remedy this situation.

For more on legislative efforts to address this situation, see stories titled "Legislators Introduce Bills to Address Infringement by States" in TLJ Daily E-Mail Alert No. 302, November 6, 2001; "Sen. Leahy Reintroduces Bill to Close 11th Amendment Loophole to IPR" in TLJ Daily E-Mail Alert No. 394, March 22, 2002; "Senate Judiciary Committee Considers Federalism and Intellectual Property" in TLJ Daily E-Mail Alert No. 522, October 3, 2002; and "Legislators Re-Introduce Bills to Address State IPR Sovereign Immunity" in TLJ Daily E-Mail Alert No. 680, June 13, 2003.

The present case is Central Virginia Community College, et al. v. Bernard Katz, Sup. Ct. No. 04-885, a petition for writ of certiorari to the U.S. Court of Appeals for the 6th Circuit. The U.S. Bankruptcy Court's case number is 01-50545. The Appeals Court's case number is 03-6054.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, January 24

The House will not meet. It will convene for the 2nd Session of the 109th Congress on Tuesday, January 31, 2006. See, Majority Whip's calendar.

The Senate will meet at 10:00 AM in pro forma session only.

9:30 AM. The Senate Judiciary Committee (SJC) has scheduled an executive business meeting. The sole item on the agenda is consideration of the nomination of Judge Sam Alito to be a Justice of the Supreme Court. See, notice. Location: Room 226, Dirksen Building.

9:30 AM -5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will hold a meeting. See, FCC notice [PDF] notice in the Federal Register, December 29, 2005, Vol. 70, No. 249, at Pages 77156 - 77157. Location: FCC, 445 12th St., SW., Suite 5-A420.

RESCHEDULED FROM JANUARY 31. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Broadcast and Audio Flag". There will be two panels of witnesses. The broadcast panel will include Andy Setos (Fox Entertainment Group), Jonathan Band (American Library Association), Thomas Patton (Philips Electronics North America Corporation), and Leslie Harris (Center for Democracy and Technology). The audio panel will include Mitch Bainwol (Recording Industry Association of America), Gary Shapiro (Consumer Electronics Association), and Dan Halyburton (Susquehanna Radio). See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

RESCHEDULED FOR JANUARY 31. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Franchising". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

10:00 - 11:30 M. The American Enterprise Institute (AEI) will host a panel discussion titled "What Will Greenspan's Departure Mean?". The speakers will be Charles Calomiris (AEI and Columbia University), Kevin Hassett (AEI), Lawrence Lindsey (AEI and the Lindsey Group), and Gregory Ip (Wall Street Journal). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

10:30 AM. Attorney General Alberto Gonzales will give a speech at Georgetown University Law Center titled "Intercepting al Qaeda: A Lawful and Necessary Tool for Protecting America". This will be followed at 11:00 AM by a panel discussion featuring GULC professors David Cole (GULC), Viet Dinh (GULC, and former DOJ official), and Martin Lederman (GILC). The Department of Justice (DOJ) states in its notice that "All press inquiries regarding logistics should be directed to Theresa Pagliocca at 202-532-3486." GULC states in its notice that "Media interested in attending must contact Elissa Free at". Location: GULC, Room 202, McDonough Hall, 600 New Jersey Ave., NW.

12:00 NOON. The High Tech DTV Coalition will host an event titled "Informal Press Lunch". Janice Obuchowski will speak. The Coalition's notice states that this event is for "beat reporters who have been covering DTV legislation", and that persons planning to attend should RSVP by 4:00 PM on Monday, January 23, to Mary Greczyn at 202 371-2997 or mg at ftidc dot com, or John Alden at 202 371-6793 or ja at ftidc dot com. Location: Freedom Technologies, 1317 F St., NW, Fourth Floor.

12:15 PM. The Federal Communications Bar Association's (FCBA) Common Carrier Practice Committee will host a brown bag lunch titled "Meet the Wireline Competition Bureau". The speakers will include Tom Navin, Chief of the Federal Communications Commission's (FCC) Wireline Competition Bureau. RSVP to Wendy Parish wendy at fcba dot org. Location: Hogan & Hartson, 555 13th St., NW.

RESCHEDULED FOR JANUARY 31. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Content". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Room 562, Dirksen Building.

4:00 - 5:34 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The WTO Hong Kong Ministerial Meeting: A Postmortem". The speakers will be Simon Evenett (University of St. Gallen), James Glassman (AEI), Gawain Kripke (Oxfam America), Thea Lee (AFL-CIO), Phillip Swagel (AEI), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rules for expanding the scope of the Emergency Alert System (EAS) to cover certain digital services. The FCC adopted a report and order (R&O) and further NPRM on November 3, 2005. The R&O expanded the categories of service providers that are subject to the FCC's EAS mandates to include providers of digital broadcast and cable TV, digital audio broadcasting, satellite radio, and direct broadcast satellite (DBS) services. The NPRM asks for comments how the FCC should plan this "next-generation alert and warning system". See, story titled "FCC Requires DBS, Satellite Radio, Digital Broadcasters, and Others to Carry AES Communications" in TLJ Daily E-Mail Alert No. 1,247, November 4, 2005. The R&O and NPRM is FCC 05-191 in EB Docket No. 04-296. It was released on November 10, 2005. See, notice in the November 25, 2005, Vol. 70, No. 226, at Pages 71072 - 71077.

Wednesday, January 25

The Senate may begin its debate on the nomination of Judge Sam Alito to be a Justice of the Supreme Court.

? 10:00 AM. The Senate Appropriations Committee's Subcommittee on Homeland Security will hold a hearing. US-VISIT Director Jim Williams will testify. Location: Room 138, Dirksen Building.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07 Advisory Committee) will meet. See, notice in the Federal Register, December 14, 2005, Vol. 70, No. 239, at Page 74016. Location: Room TW-C305, FCC, 445 12th St., SW.

2:00 - 4:00 PM. The Department of State's International Telecommunication Advisory Committee (ITAC) will hold the third in a series of weekly meetings to prepare for the International Telecommunications Union's (ITU) 2006 ITU Plenipotentiary Conference, to be held November 6-24, 2006, in Antalya, Turkey. See, notice in the Federal Register, December 21, 2005, Vol. 70, No. 244, at Page 75854. This notice incorrectly states that these meetings will be held on Tuesdays; they are on Wednesdays. For more information, contact Julian Minard at 202 647-2593 or minardje at state dot gov. Location: AT&T, 1120 20th St., NW.

Thursday, January 26

POSTPONED. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Competition and Convergence". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

12:00 NOON. The Federal Communications Bar Association's (FCBA) Young Lawyers' Committee will host a brown bag lunch. This will be planning and informational meeting. For more information, contact Jason Friedrich at jason dot friedrich at dbr dot com or 202 354-1340 or Natalie Roisman at natalie dot roisman at fcc dot gov or 202 418-1655. Location: Drinker Biddle & Reath, 1500 K Street, NW, 11th Floor.

1:00 - 4:00 PM. The National Archives and Records Administration's (NARA) Advisory Committee on Presidential Libraries will meet. See, notice in the Federal Register, January 9, 2006, Vol. 71, No. 5, at Page 1455. Location: Archivist's Board Room, National Archives Building, 700 Pennsylvania Ave., NW.

Friday, January 27

9:30 AM - 1:00 PM The DC Bar Association will host a continuing legal education (CLE) seminar titled "Essential Checklist for Electronic Discovery". The speakers will include Kenneth Withers (The Sedona Conference), Judith Kinney (Legal Technologies Consulting, Kroll Ontrack), Robert Eisenberg (DOAR Litigation Consulting), Magistrate Judge John Facciola (U.S. District Court, DC), and Jonathan Redgrave (Redgrave Daley Ragan & Wagner). The price to attend ranges from $70-$125. For more information, call 202 626-3488. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:00 NOON - 1:30 PM. The Progress and Freedom Foundation (PFF) will host its "Second Annual Media Luncheon". RSVP to Amy Smorodin at 202-969-2957 or asmorodin at pff dot org.

Sunday, January 29

Deadline to submit replies to oppositions to the U.S. Telecom Association's petition [PDF] seeking reconsideration and clarification of the Federal Communications Commission's (FCC) CALEA order. This is the FCC's order that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 Communications Assistance for Law Enforcement Act (CALEA). See, notice in the Federal Register, January 4, 2006, Vol. 71, No. 2, at Pages 345 - 346.

Monday, January 30

10:00 AM - 5:00 PM. The Federal Communications Commission's (FCC) advisory committee named "Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks" will meet. See, FCC release [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.

4:00 - 5:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The WTO Dispute Settlement System and Developing Countries". Marc Busch (Georgetown University) and Eric Reinhardt (Emory University) will present a paper. The other speakers will be Timothy Reif (House Ways and Means Committee staff), Jay Smith (Georgetown University law school), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Tuesday, January 31

Alan Greenspan's last day as Chairman of the Federal Reserve Board (FRB).

The House will convene for the 2nd Session of the 109th Congress. See, Majority Whip's calendar.

RESCHEDULED FOR JANUARY 24. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Broadcast and Audio Flag". Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: __.

RESCHEDULED FROM JANUARY 24. 10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Franchising". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

RESCHEDULED FROM JANUARY 24. 2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Video Content". See, notice. Press contact: Melanie Alvord (Stevens) at 202 224-8456, Aaron Saunders (Stevens) at 202 224-3991, or Andy Davis (Inouye) at 202 224-4546. The hearing will be webcast by the SCC. Location: Room 562, Dirksen Building.

Extended deadline to submit comments to the Internet Corporation for Assigned Names and Numbers (ICANN) regarding its Policy Development Process on new gTLDs. See, ICANN notice.

Extended deadline to submit nominations for members of the Spectrum Management Advisory Committee to the Department of Commerce's National Telecommunications and Information Administration (NTIA). See, original NTIA release and notice of extension.

More News

1/23. The U.S. Court of Appeals (9thCir) issue an order [PDF] in NCTA v. Brand X. The entire substantive language of the order is as follows: "In accordance with the Supreme Court’s decision in National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688 (2005), the Federal Communications Commission’s declaratory ruling is AFFIRMED." On June 27, 2005, the Supreme Court issued its opinion [59 pages in PDF] upholding the Federal Communications Commission's (FCC) determination that cable broadband internet access service is an information service, and reversing the judgment of the U.S. Court of Appeals (9thCir). The Supreme Court overturned the 2003 opinion [39 pages in PDF] of the 9th Circuit, which vacated the FCC's 2002 Declaratory Ruling (DR) that cable modem service is an information service, and that there is no separate offering as a telecommunications service. See, stories titled "Supreme Court Rules in Brand X Case" and "Reaction to the Supreme Court's Opinion in the Brand X Case" in TLJ Daily E-Mail Alert No. 1,163, June 28, 2005.

1/23. The Center for Democracy and Technology (CDT) filed a complaint [huge PDF file] with the Federal Trade Commission (FTC) requesting that it investigate 180solutions Inc. for violation of the the Federal Trade Commission Act in connection with its alleged deceptive installation of spyware on consumers' computers. Ari Schwartz of the CDT stated in a release [PDF] that "180solutions and its affiliates have caused immeasurable harm, not just to individual Internet users, but to the Internet itself ... This company’s brazen distribution practices saddle innocent Internet users with intrusive software that they neither want nor need and contribute to a general sense of wariness and distrust that threatens to stifle the growth of the medium. We are urging the FTC to use all the tools at its disposal to bring these practices to a halt, since 180solutions has repeatedly failed to adequately police its own distribution network."

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