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March 21, 2006, Alert No. 1,333.
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FBI Loses More Computers

3/20. The Government Accountability Office (GAO) released a report [PDF] titled "Federal Bureau of Investigation: Weak Controls over Trilogy Project Led to Payment of Questionable Contractor Costs and Missing Assets".

This is another is a series of studies and testimonies that report that the Department of Justice's (DOJ) Federal Bureau of Investigation (FBI) has outdated information technology (IT), that it is incapable of managing its adoption of new technology, that it is wasting taxpayers' money in its attempts, and that much equipment and any data stored therein is lost or stolen.

This latest report focuses on FBI mismanagement, waste of taxpayer money, and loss of sensitive equipment.

The report finds that the FBI "was unable to locate over 1,200" pieces of IT equipment purchased as part of its Trilogy project. The report states that these lost items are valued at approximately $7.6 Million, and include items such as "computer desktops, laptops, printers, and servers".

One table in the report provides more details. One line item is 35 lost "Data storage equipment" valued at $2,404,853. Another item is 5 lost "Data storage equipment" valued at $1,012,666. While the report states that the GAO identified 1,205 pieces of missing equipment, almost half of the dollar value of the lost equipment is from 40 items categorized as "Data storage equipment". (See, Table 6 at page 39.)

The report does not state what data, if any, has been lost, and if so, to whom. The report states that "According to FBI policy, for items in PMA that cannot be located during the inventory, a ``Report of Lost or Stolen Property´´ must be submitted to FBI headquarters. Due to security concerns, FBI did not provide us copies of these reports for the property items that were not located during the 2003, 2004, and 2005 inventories. Therefore, it is unclear what type of security risk if any these lost/stolen assets represent." (PMA is Property Management Application.)

The report also identifies lost CPUs, servers, desktops, laptops, and encryption equipment. The report also identifies the loss of 272 switches, valued at over $1.5 Million.

The report states that the FBI's IT systems are "archaic and inadequate for efficiently and effectively investigating criminal cases".

It continues that the FBI recognizes this, and is attempting to upgrade through its Trilogy project, which was initiated in mid-2001.

The report faults the FBI's management of this project. It states that the "FBI’s internal controls did not provide reasonable assurance that payments to contractors for unallowable costs would not be made or would be detected in the normal course of business. Our review found that FBI’s review and approval process for Trilogy contractor invoices, which included GSA’s review in its role as contracting agency, did not provide an adequate basis to verify that goods and services billed were actually received by FBI or that the amounts billed were appropriate."

The report further finds that "once FBI took possession of the Trilogy equipment, it did not establish adequate physical control over the assets. FBI failed to record accountable assets -- equipment with a value of $1,000 or more, or deemed by FBI to be susceptible to theft -- into its property system in a timely manner, did not properly use its bar codes to individually track accountable assets, and did not effectively use its inventory process to identify all potentially missing assets. These breakdowns in control over Trilogy assets created an environment in which equipment could be lost or stolen without detection. "

It concludes that "the lack of accountability for Trilogy equipment calls into question FBI’s ability to adequately safeguard its existing assets as well as those it may acquire in the future."

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.

DISA's IPv6 Transition Chief Indicted for P2P Porn on Office Computer

3/9. A grand jury of the U.S. District Court (EDVa) returned an indictment of Charles Lamont Lynch, the Chief of the Internet Protocol Version 6 Transition Office at the Department of Defense's Defense Information Systems Agency (DISA). The indictment charges Lynch with violation of 18 U.S.C. § 2252A(a)(5)(b).

The DISA web site states that the DISA is "the provider of global net-centric solutions for the Nation's warfighters and all those who support them in the defense of the nation".

Internet Protocol Version 6, or IPv6, which is currently replacing IPv4, provides a vastly increased number of internet addresses. It also provides for more efficient and faster routing, enhanced mobility features, and improved security, for example, through authentication. See, story titled "House Government Reform Committee Holds Hearing on IPv6" in TLJ Daily E-Mail Alert No. 1,168, July 6, 2006.

The Office of the U.S. Attorney (EDVa) stated in a release [PDF] that Lynch used "a peer-to-peer file sharing program on a computer in his office at DISA", and that "Child pornography was found in computer file folders".

CIIP Subcommittee to Hold Hearings on Revisions to Patent Law

6/20. Rep. Lamar Smith (R-TX), Chairman of the House Judiciary Committee' (HJC) Subcommittee on Courts, the Internet and Intellectual Property (CIIP) announced that the CIIP Subcommittee will hold another series of hearings on patent law and efforts to revise patent law, beginning on April 5, 2006. See, release.

Rep. Smith is the sponsor of HR 2795, the "Patent Reform Act of 2005". There are several versions of this bill. However, none has obtained broad support among affected groups.

The first hearing is titled "Patent Quality Enhancement in the Information-Based Economy". Rep. Smith's announcement states that this hearing "will address the impact of questionable patents and potential issues at the Patent & Trade Mark Office." It will address patent reexamination and the creation of a post grant opposition process. It will also address expansion of existing provisions regarding third party submission of prior art to patent examiners.

The second hearing is titled "Patent Harmonization". It will address Rep. Smith's proposals to change from a first to invent system to a first inventor to file system, and to expand the requirement that most patents be published after 18 months. No date has been set for this hearing.

The third hearing is titled "Patent Trolls: Fact or Fiction?" Rep. Smith's announcement states that this hearing will address "What is a patent troll? How many unreasonable suits do they initiate? Are they harming the economy or just enforcing their property rights?" No date has been set for this hearing.

The fourth hearing is titled "Review of the Patent Reform Studies Conducted by the National Academies and the Federal Trade Commission". No date has been set for this hearing.

The National Academies' Board on Science, Technology, and Economic Policy (STEP) issued a report in 2003 titled "A Patent System for the 21st Century".

On October 28, 2003, the FTC released a report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy". See, Executive Summary [18 pages in PDF] and Report [2.28 MB in PDF]. See also, story titled "FTC Releases Report on Competition and Patent Law" in TLJ Daily E-Mail Alert No. 768, October 29, 2003.

This fourth hearing will address first to file, patent publication, post grant opposition, willful infringement, inequitable conduct, and pre-grant submission of prior art by third parties.

Senate Commerce Committee Holds Hearing on Innovation and Competitiveness

3/15. The Senate Commerce Committee (SCC) held a hearing titled "Innovation and Competitiveness Legislation".

Sen. John Ensign (R-NV) presided. Sen. George Allen (R-VA), a member of the SCC, participated. Sen. Gordon Smith (R-OR) attended, but did not speak or ask questions. Sen. Max Baucus (D-MT) testified as a witness; see, prepared testimony [PDF]. Sen. Joe Lieberman (D-CT) also testified as a witness; see, prepared testimony [PDF]. Sen. Daniel Inouye (D-HI), the ranking Democrat on the SCC, did not attend, but submitted a statement for the record.

Sen. Ensign, Sen. Allen, Sen. Smith, Sen. Lieberman, and others, introduced S 2109, the "National Innovation Act of 2005", on December 15, 2005. The bill now has 23 cosponsors. See also, S 2309, the "National Innovation Act -- Commerce Provisions".

See also, HR 4654, the "National Innovation Act of 2006", introduced in the House on January 3, 2006, by Rep. Adam Schiff (D-CA) and others.

There is also the "Protecting America's Competitive Edge", or "PACE", legislation introduced by Sen. Pete Domenici (R-NM), Sen. Jeff Bingaman (D-NM), Sen. Lamar Alexander (R-TN), and others, on January 26, 2006. There are three PACE bills, organized by subject matter and committee jurisdiction. See, S 2199, the "PACE-Finance Act", which addresses, among other topics, the research and development (R&D) tax credit, S 2198, the "PACE-Education Act", and S 2198, the PACE-Energy Act".

The March 15 hearing, while titled "Innovation and Competitiveness Legislation", was more precisely a discussion of certain parts of certain bills. For example, except for a few isolated statements, there was no discussion, of how pending legislation regarding the copyright system, or patent system, might affect innovation and competitiveness. The witnesses and Senators spoke mostly about federal taxation and spending, including making permanent the R&D tax credit, and spending more of the federal budget on education and research. Also, there was no debate or disagreement.

The SCC heard from four witnesses. Three witnesses represented large U.S. corporations. The fourth represented a group that represents large corporations and research universities in lobbying the Congress for more federal spending on research, and on math, science and engineering (MSE) education.

The participants did not offer explanations of the concepts of competitiveness or innovation. Some used the two terms interchangeably. The witnesses spoke generally of U.S. competitiveness with other nations as a prospective problem which may arise if the Congress does not take action. They said that the problem will arise as a result of circumstances such as disparities in MSE education. Some witnesses spoke of innovation as a process or "ecosystem" that adds to economic growth and competitiveness.

In summary, they argued that the U.S. government should spend more on research and on MSE education, and encourage companies to conduct more research, that this will increase innovation by companies and universities, which in turn will make the U.S. more competitive.

See, prepared testimony [4 pages in PDF] of Craig Barrett (Chairman of Intel), prepared testimony [16 pages in PDF] of Norman Augustine (Chairman of Lockheed Martin), prepared testimony [10 pages in PDF] of John Kelly (IBM), and prepared testimony [14 pages in PDF] of Deborah Smith (Council on Competitiveness).

The hearing also touched on several other issues.

H1B Visas. Sen. Allen said that we should "staple a green card or visa" to diplomas awarded in certain fields.

Intel's Barrett wrote in his prepared testimony that "We must continue to attract the most talented students from other countries -- and keep them here after they graduate, to work and build new companies and industries in the U.S. Yet our visa policies today work against these goals: H1B visas are limited in number compared to our needs, and the backlog for those seeking permanent resident alien status is becoming a huge obstacle to keeping foreign graduates in the U.S. -- particularly when there are superb opportunities for those graduates in their home countries as well."

IBM's Kelly said that covered degrees should include electrical engineering, and certain areas of programming, for graduates with "high performance grades".

Patent Reform. Intel's Barrett raised patent reform in his written testimony. He wrote that "The patent system is in disrepair. We need ... more and better paid examiners; better search tools including expanded databases in computing technologies, semiconductors, and software".

He continued that "The point of the patent system is to encourage innovation and the use, for the benefit of society, of those innovations. Today, the system is beset by ``patent speculators´´, parties who buy up patent claims in the secondary market for the purpose of pursuing often specious claims of infringement. The hope is to use existing judicial rules on remedies and damages to extract large settlements. We need to rebalance the laws to return to the fundamental premise: the patent system exists for the benefit of society at large, and should not simply become a tool for the game of ``legal jeopardy´´."

Sen. Allen made a reference to the importance of intellectual property, but otherwise, the participants at this hearing did not talk about IP law.

S 2109 addresses patent reform, but only in a "sense of the Congress" section.

Telecom Regulation. Intel's Barrett wrote in his prepared testimony that "Our government should adopt telecom policies that encourage broadband deployment and facilities-based competition and, at the same time, assure consumers full access to Internet content and use of related applications and devices. Also, the radio spectrum needs substantial reform." He added that "we need to give licensees more flexibility and allow more unlicensed use where appropriate."

He elaborated in response to questions from Sen. Allen that one promising way to provide more spectrum for broadband wireless services would be to allow use of unused, or white space in, spectrum allocated for broadcasting. He said that this can be done without interference, and would be especially viable in rural areas.

Innovation Ecosystems. IBM's Kelly and the Council on Competitiveness's Smith both spoke about innovation as a product of an "innovation ecosystem", without defining and explaining this term.

Kelly wrote that "In the Industrial Age, innovation primarily was the result of work by individuals or small groups within an enterprise."

He did not write that people no longer innovate. But he did write that "Companies are innovating", alone, or in collaboration with other companies, universities, and government agencies. The ecosystem innovates.

Moreover, wrote Kelly, the nature of innovation has changed. Innovation is no longer just about new ideas. It is about transforming them into new value.

In contrast, Intel's Barrett said "I think we need to choose to compete in three specific areas. One is with smart people. Second is with smart ideas. And the third is an environment to let smart people with smart ideas to be successful."

TLJ asked Barrett after the hearing if there is any difference of opinion regarding innovation by people versus innovation by ecosystems. He said that there is not, and that the panel of witnesses is in agreement.

In a related matter, IBM's Nicholas Donofrio gave a speech in Singapore regarding the future of innovation. ZDNet Asia published a story in its web site on March 15, 2006, titled "IBM: The 'next big thing' no longer exists". The author is Jeanne Lim. The story states that Donofrio said "The fact is that innovation was a little different in the 20th century [than it is today]. It's [now] not easy to come up with greater and different things", and "If you're looking for the next big thing, stop looking. There's no such thing as the next big thing". [Brackets in ZDNet Asia story.]

IBM did not respond to requests from TLJ for a copy of Donofrio's speech.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, March 21

The House will not meet. It will next meet on Tuesday, March 28. See, Republican Whip Notice.

The Senate will not meet. It will next meet on Monday, March 27 at 1:00 PM.

The Supreme Court will hear oral argument in Laboratory Corp. v. Metabolite Laboratories, Sup. Ct. No. 04-607. See, Supreme Court calendar [PDF], Supreme Court docket, June 8, 2004, opinion [PDF] of the Court of Appeals (FedCir), and story titled "Supreme Court Grants Certiorari in LabCorp v. Metabolite" in TLJ Daily E-Mail Alert No. 1,244, November 1, 2005. Arguments begin at 10:00 AM. This case is second on the schedule.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Complx Covad Comm Co v. FCC, App. Ct. No. 05-1095. Judges Ginsburg, Sentelle and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. District Court (DC) will hold a status conference in Agence France Presse v. Google, D.C. No. 1:2005-cv-00546-GK. The complaint [19 pages in PDF] alleges that Google has infringed AFP's copyrights in photographs and news stories. AFP is represented by Joshua Kaufman of the law firm named Venable, 202 344-8538. Location: Courtroom 19, Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Lobby Reform or Regression". The speakers will be Brad Smith (former Chairman of the Federal Election Commission), Nan Aron (head of the Alliance for Justice), and John Samples (Cato). Lunch will be served. See, notice and registration page. Location: Room B-354, Rayburn Building.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "FISSEA Conference: Training for a Cyber-Secure Future". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Day one of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Wednesday, March 22

12:00 NOON - 2:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FCBA Mentoring Luncheon". The price to attend is $20. See, registration form [PDF]. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "DTV: The Hard Date is Set -- What’s Next?" The speakers will include Eloise Gore (Assistant Chief of the FCC's Media Bureau's Policy Division), David Donovan (MSTV), John Orlando (CBS), and Peter Tannenwald (counsel to the Community Broadcasters Association). See, registration form [PDF]. The price to attend ranges from $75-$150. Reservations and cancellations are due by 5:00 PM on March 20. Location: Dow Lohnes & Albertson, Suite 800, 1200 New Hampshire Ave., NW.

Day two of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Thursday, March 23

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch titled "Network Neutrality". The speakers will be Greg Sidak (Georgetown University Law Center), Randolph May (Progress and Freedom Foundation), and Jason Oxman (CompTel),Jim Kohlenberger (Voice on the Net Coalition), and Harold Feld (Media Access Project). For more information, contact Erick Soriano at 202 939-7921 or esoriano at fw-law dot com. Location: Fleischman and Walsh, Suite 600, 1919 Pennsylvania Ave., NW.

Day three of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Friday, March 24

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Bruce Gilmore v. FCC, App. Ct. No. 05-1413. See, brief [PDF] of FCC. Judges Ginsburg, Sentelle and Brown will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

DATE CHANGE. 12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a program titled "The White Space: What to Do With It". See, notice. This program relates to permit the use of smart technology to allow advance wireless services to operate in the white spaces of the broadcast bands. The FCC has a open rulemaking proceeding. See, story titled "FCC Adopts NPRM Regarding Unlicensed Use of Broadcast TV Spectrum" in TLJ Daily E-Mail Alert No. 898, May 14, 2004. This NPRM is FCC 04-113 in ET Docket Nos. 04-186 and 02-380. Press contact: Patrick Ross at 202 289-8928. Location: Room B-369, Rayburn Building. (This event had previously been scheduled for Friday, April 28, 2006.)

12:00 NOON. Deadline to submit written comments to the Office of the U.S. Trade Representative (USTR) regarding the proposed free trade agreement with the Republic of Korea. The USTR seeks comments on, among other topics, "electronic commerce issues" and "trade-related intellectual property rights issues that should be addressed in the negotiations". See, notice in the Federal Register: February 9, 2006, Vol. 71, No. 27, at Pages 6820-6821.

Day four of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Monday, March 27

The Senate will meet at 1:00 PM. It will resume consideration of of S 2349, the "Legislative Transparency and Accountability Act of 2006".

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels or postpones meetings without 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.

Effective date of the U.S. Patent and Trademark Office's (USPTO) interim rule revising the rules of practice relating to the filing date requirements for ex parte and inter partes reexamination proceedings. See, notice in the Federal Register, February 23, 2006, Vol. 71, No. 36, at Pages 9260-9262.

Tuesday, March 28

The House will return from its St. Patrick's Day District Work Period. It will meet at 2:00 PM. See, Republican Whip Notice.

8:30 AM - 12:30 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Privacy and Data Security for Communications & Media Companies". See, registration form [PDF]. The price to attend ranges from $50 to $200. Location: Covington & Burling, 1201 Pennsylvania Ave., NW.

9:00 AM. The Senate Judiciary Committee (SJC) may hold a partially closed hearing to examine war time executive power and the FISA Court. The SJC frequently cancels or postpones hearings without 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 219, Hart Building.

9:00 AM - 5:15 PM. The Catholic University Law School's Journal of Communications Law and Policy will host its annual communications law symposium. See, agenda. Location: Catholic University of America, Columbus School of Law, 3600 John McCormack Rd., NE.

2:00 PM. The House Appropriations Committee's Subcommittee on Science, the Departments of State, Justice, and Commerce, and Related Agencies will hold a hearing on the Federal Bureau of Investigation (FBI). Location: Room 2359, Rayburn Building.

2:30 PM.  The Senate Judiciary Committee (SJC) may hold a hearing on pending judicial nominations. The SJC frequently cancels or postpones hearings without 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.

Extended deadline to submit reply comments to the Federal Communications Commission's (FCC) Notice of Proposed Rulemaking (NPRM) [26 pages in PDF] regarding Section 621(a)(1)'s directive that local franchising authorities (LFAs) not unreasonably refuse to award competitive franchises. The FCC adopted this NPRM on November 3, 2005, and released it on November 18, 2005. It is FCC 05-189 in MB Docket No. 05-311. See, notice in the Federal Register, December 14, 2005, Vol. 70, No. 239, at Pages 73973 - 73980. See also, story titled "FCC Adopts NPRM Regarding Local Franchising of Video Services" in TLJ Daily E-Mail Alert No. 1,247, November 4, 2005. See, FCC notice [MS Word] of March 7, 2006.

Highlights of the
Catholic University Law School's
Conference on Communications Policy
March 28
9:15 - 10:30 AM. Panel titled "Broadband Deployment: Laying the IP Backbone for 21st Century Commerce". The speakers will be Erin Dozier (Sheppard Mullin), Kathleen Ham (T-Mobile), Julie Kearney (Consumer Electronics Association), Cherie Kiser (Mintz Levin), Harvey Reiter, (Stinson Morrison Hecker), and Robert Rini (Rini Coran).
10:30 - 11:00 AM. Speech by Jerry Ellig (George Mason University) titled "Effective Performance Measures for Universal Service Programs".
11:00 AM - 12:15 PM. Panel titled "The Universal Service Fund: Regulating the Communications Industry's Obligation to Provide Basic Services to All Americans". The speakers will be Gary Epstein (Latham & Watkins), Dave Cosson (Rural Independent Competitive Association), Paul Garnett (CTIA), Kathy Grillo (Verizon), Donna Lampert (Lampert & O'Connor).
12:30 - 1:30 PM. Luncheon debate titled "Rethinking Spectrum Management to Embrace Our Broadband Future? Property Rights vs. The Commons". The speakers will be Michael Calabrese (New America Foundation) and Thomas Hazlett (George Mason University School of Law).
1:45 - 3:00 PM. Panel titled "Localism: Preventing Global Voices from Drowning Out Local Concerns". The speakers will be Richard Wiley (Wiley Rein & Fielding), Rudy Brioché (Legal Advisor to FCC Commissioner Jonathan Adelstein), Jane Mago (National Association of Broadcasters), Andrew Schwartzman (Media Access Project), Peter Tannenwald (Irwin Campbell & Tannenwald), Adam Thierer (Progress & Freedom Foundation).
3:00 - 4:15 PM. Panel titled "Municipal Networks: Local Governments Power to Connect to the Global Marketplace". The speakers will be Bryan Tramont (Wilkinson Barker & Knauer), Jonathan Askin (, Jay John Hellman, William Lehr (Massachusetts Institute of Technology), and Randolph May (Progress & Freedom Foundation).
4:15 - 5:00 PM. Keynote address by John Kneuer (acting head of the National Telecommunications and Information Administration).
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