6/1. The U.S. Court of Appeals (11thCir) issued its opinion [17 pages in PDF] in Snow v. Directv, a civil case alleging violation of the Stored Communications Act (SCA), at 18 U.S.C. § 2701, and password protected online discussion groups. The Court of Appeals affirmed the judgment of the District Court, which dismissed the complaint for failure to state a claim.

The Court of Appeals largely ignored the phrases "intentionally accesses without authorization" and "intentionally exceeds an authorization" in Section 2701, and focused on the phrase "readily accessible to the general public" in 18 U.S.C. § 2511. This opinion is barely distinguishable from that of the 9th Circuit in Konop v. Hawaiin Airlines, which held that accessing a password protected web based discussion group does violate Section 2701.

The plaintiff, Michael Snow operated a web site, with an electronic bulletin board. The web site stated that it was for use by "individuals who have been, are being, or will be sued by any Corporate entity." Access to the bulletin board required entry of a password. Passwords were obtained by registering online. This required agreement to certain terms, including that the user was not "DIRECTV or its agents".

In the present case Directv is alleged to have accessed the web site without authorization. If it did so, it would have been as part of its effort to stop the theft of its encrypted satellite transmissions.

Snow filed a complaint in U.S. District Court (MDFl) against Directv, and two of its law firms, alleging that they accessed the bulletin board in violation of the SCA, at 18 U.S.C. § 2701.

The District Court dismissed the complaint for failure to state a claim upon which relief can be granted. It reasoned that electronic bulletin boards are not "in electronic storage" within the meaning of the SCA, and therefore not protected by the SCA.

The Court of Appeals affirmed the judgment of the District Court, although with different reasoning.

The SCA was included as Title II of the Electronic Communications Privacy Act of 1986 (ECPA). Title I amended the Wiretap Act to, among other things, add interception of electronic communications.

18 U.S.C. § 2701, at subsection (a), provides, in part, that

"... whoever --
  (1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
  (2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section."

However, the Court of Appeals devoted little analysis to this prohibition. Rather, it focused on 18 U.S.C. § 2511. Subsection (2)(g) provides in part that

"It shall not be unlawful under this chapter or chapter 121 of this title for any person -- (i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public".

Section 2511 is a part of Chapter 119, which pertains to interception of communications. Chapter 121 pertains to access to stored communications.

The Court of Appeals reasoned that any member of the general public could register to access the web site. Hence, it was "readily accessible to the general public", notwithstanding the fact that some members of the public could only obtain access to web site by engaging in fraud and dishonesty. The unstated implication of the Court of Appeals' reasoning is that one has ready access to anything that one can obtain through fraud and dishonesty.

The Court of Appeals suggested that a contrary conclusion might cause the "floodgates of litigation" to open.

It is difficult to reconcile the holding in this case with the opinion of the U.S. Court of Appeals (9thCir) in Konop v. Hawaiian Airlines, another case involving application of the SCA to password protected discussion web sites. The Court of Appeals issued two opinions in that case. See, August 23, 2002, opinion [39 pages in PDF], and January 8, 2001, opinion [PDF].

See also, story titled "9th Circuit Rules on Application of Wiretap Act and Stored Communications Act to Secure Web Sites" in TLJ Daily E-Mail Alert No. 498, August 26, 2002.

That case is Robert Konop v. Hawaiian Airlines, Inc., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 99-55106, an appeal from the U.S. District Court for the District of Hawaii, Judge Spencer Letts presiding, D.C. No. CV-96-04898-SJL (JGx)."

In both cases the communications were stored in web based discussion fora. In both cases the web sites required registration, a password, and agreeing to certain terms. In both cases the terms provided that certain classes of persons were not eligible to access the fora. In both cases the defendants were alleged to have accessed the stored communications in violation of those terms. Yet, the 9th Circuit held that the defendants violated the SCA, while the 11th Circuit held that the defendants' alleged actions could not constitute a violation of the SCA.

The 11th Circuit attempted to distinguish the two cases. It identified a single difference in the registration process. The registration process in Konop required the entry of an "eligible employee's name".

The 11th Circuit concluded that the web site in Konop, but not in the present case, was configured "so as to limit ready access by the general public".

In Konop, the web site was set up for discussion by members of a labor union. Unauthorized representatives of of their employer accessed the web site. They would have had no difficult obtaining the names of the union members. However, the facts of the case were that the company representatives obtained passwords from two union members.

The present case is Michael Snow v. Directv, Inc., et al., U.S. Court of Appeals for the 11th Circuit, App. Ct. No. 05-13687, an appeal from the U.S. District Court for the Middle District of Florida, D.C. No. 04-00515-CV-FTM-33-SPC. Judge Wilson wrote the opinion of the Court of Appeals, in which Judges Carnes and Pryor joined.

6/1. The Copyright Office (CO) published a notice in the Federal Register that recites, explains, comments on, and sets the effective date (July 1, 2006) for, its final rule regarding fee increases. The rule raises the basic registration fee from $30 to $45 per work.

The CO's current fee schedule has precluded many individual creators, and small businesses, from availing themselves of the protections afforded by the Copyright Act and Article I, Section 8, Clause 8 of the U.S. Constitution. These fee increases will exclude more.

The rule also raises the fee for group registration of photographs from $30 to $45. A CO attorney told TLJ that while the CO received many comments from photographers objecting to this increase, it received no comments from bloggers.

The final rule also eliminates the proposed fee increase for preregistration.

The CO wrote that "The basic registration fee of $45 is less than the actual cost of providing the service. The Copyright Office is currently collecting 56.7% of its total expenditures from fees. This shortfall is largely due to the reality that the current $30 fee does not come close to recovering costs of current operations."

While the CO has updated it rules regarding fees for registration of works, it has not updated its rules regarding how to register works. In particular, Chapter 4 [PDF] of the Copyright Act and 37 CFR § 202.3 remain obsolete for registering works created for, and published in, new media. The statute and regulations continue to reference print newspapers, textbooks, and other old media, but not the internet, web sites, e-mail, blogs, and other new media.

However, there is some non-authoritative guidance in the CO's Circular 66 [PDF] titled "Copyright Registration for Online Works".

6/1. Brett Kavanaugh took the oath of office to be a Judge of the U.S. Court of Appeals (DCCir) at a ceremony at the White House. The event was attended by, among others, President Bush, Vice President Cheney, Attorney General Gonzales, former Attorney General Ashcroft, and Justice Anthony Kennedy. See, transcript.

6/1. Robert McDowell took the oath of office to be a member of the Federal Communications Commission (FCC). See, FCC release [PDF].

5/24. Barbara Kelly was named Vice President and Executive Director of Development at the Progress and Freedom Foundation (PFF). She was previously Director of Development of the National Center for State Courts (NCSC). See, PFF release.

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

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Notices & Disclaimers
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The House will not meet on Monday, May 29, through Monday, June 5. The House will next meet on Tuesday, June 6, at 2:00 PM. See, Republican Whip Notice.

The Senate will not meet on Monday, May 29, through Friday, June 2. See, 2006 Senate calendar.

12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a panel discussion titled "The Role of Music Licensing in the Digital Age". The speakers will be Michael Petricone (Consumer Electronics Association), Mitch Glazier (Recording Industry Association of America), Christian Castle, and Lee Knife (Digital Media Association). Patrick Ross (PFF) will moderate. See, notice. Lunch will be served. Location: Room B-354, Rayburn Building.

The House will return from its Memorial Day recess. See, Majority Whip's calendar.

The Senate will return from its Memorial Day recess. See, 2006 Senate calendar.

9:00 - 11:00 AM. The Office of the Deputy Director of National Intelligence for Collection will hold a meeting. See, notice in the Federal Register, May 12, 2006, Vol. 71, No. 92, at Page 27745. Location: Heritage Conference Center, TASC Northrop Grumman, 4803 Stonecroft Boulevard, Chantilly, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Wireless Agents v. Sony Ericsson. This case is App. Ct. No. 2006-1054. Location: Courtroom 203, 717 Madison Place, NW.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Integra LifeSciences v. Merck. This case is App. Ct. No. 2002-1052. Location: Courtroom 203, 717 Madison Place, NW.

The filing window opens for the Federal Communications Commission's (FCC) Auction 66. This is the auction of Advance Wireless Services (AWS) licenses in the 1710-1755 MHz and 2110-2155 MHz (AWS-1) bands. See also, notice in the Federal Register, June 2, 2006, Vol. 71, No. 106, at Pages 32089-32091.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the petition of the Georgia Public Service Commission (GPSC) for a declaratory ruling that the GPSC is not preempted by federal law from regulating rates under 47 U.S.C. § 271 for local switching, high capacity loops and transport, and line sharing. See, FCC notice [PDF]. This is WC Docket No. 06-90.

Deadline to submit initial comments to theFederal Communications Commission (FCC) regarding the transfer of licenses associated with the AT&T, BellSouth, and Cingular transaction. This is nominally a license transfer proceeding, but is also in the nature of an antitrust merger review. This proceeding will be governed by "permit but disclose" ex parte communications procedures under Section 1.1206 of the FCC's rules. See, FCC notice [10 pages in PDF] and FCC web page for its AT&T/SBC/Cingular merger review. This proceeding is WC Docket No. 06-74.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding Draft Special Publication 800-38D [23 pages in PDF], titled "Recommendation for Block Cipher Modes of Operation: Galois/Counter Mode (GCM) for Confidentiality and Authentication".

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

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Motionless Keyboard v. Microsoft. This case is App. Ct. No. 2005-1574. Location: Courtroom 201, 717 Madison Place, NW.

CANCELLED. 12:00 NOON - 2:00 PM. The Progress and Freedom Foundation (PFF) will host a lunch. The featured speaker will be Brian Roberts, Ch/CEO of Comcast Corporation. The other speakers will be Aryeh Bourkoff (UBS Investment Research), Blair Levin (Legg Mason), and Craig Moffett (Sanford Bernstein & Co.) See, notice. Location: South American Room, Capitol Hilton, 1001 16th Street, NW.

1:00 - 3:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare for ITU Radiocommunication Sector's Special Committee on Regulatory/Procedural Matters that will take place on December 4-8, 2006, in Geneva, Switzerland. See, notice in the Federal Register, May 4, 2006, Vol. 71, No. 86, at Pages 26397-26398. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

2:00 PM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels or postpones meetings without notice. See, notice. Location: Room 226, Dirksen Building.

6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "How to Conduct Business in the Current Chinese Legal Environment: Myths and Facts". The seminar will address, among other topics, "technology transfer issues, including the Chinese government policy on intellectual property, licensing of intellectual property, structuring of technology transfers and some of the legal and practical measures to help protect licensed intellectual property". The speakers will include Paul Manca (Hogan & Hartson), Grace Fremlin (Foley & Lardner), and Steve Robinson (Hogan & Hartson). 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.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding creation of broadband channels in the 700 MHz public safety band. The FCC adopted this NPRM on March 17, 2006. See, story titled "FCC Adopts NPRM Re Public Safety Communications in the 700 MHz Band" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006. The FCC released the text [30 pages in PDF] of this NPRM on March 21, 2006. This NPRM is FCC 06-34 in WT Docket No. 96-86. See, notice in the Federal Register, April 7, 2006, Vol. 71, No. 67, at Pages 17786-17790.

8:30 AM - 3:00 PM. The National Institute of Standards and Technology (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, May 3, 2006, Vol. 71, No. 85, at Page 26052. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission will meet to deliberate regarding its report and/or recommendations to the Congress. See, notice in the Federal Register, 24, 2006, Vol. 71, No. 100, Page 29915. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Intel v. Commonwealth Scientific, App. Ct. No. 2006-1032, and Microsoft v. Commonwealth Scientific, App. Ct. No. 2006-1040. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Microsoft v. Amado. This case is App. Ct. No. 2005-1531. Location: Courtroom 203, 717 Madison Place, NW.

11:00 AM - 2:00 PM. The New America Foundation (NAF) will host an event titled "Beyond Censorship: Technologies and Policies to Give Parents Control Over Children’s Media Content". The scheduled speakers include Sen. Hillary Clinton (D-NY), Sen. Mary Landrieu (D-LA), Sen. Rick Santorum (R-PA), FCC Commissioner Michael Copps, and FCC Commissioner Deborah Tate. See, notice. Location: Kaiser Family Foundation, 1330 G Street, NW.

12:00 NOON - 1:30 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Structuring Your License Agreements So You Get Paid And What To Do If You Think You Are Not Receiving The Royalties You Bargained For". The speakers will include Michael Dansky and Barry Sussman (both of the Huron Consulting Group). The price to attend ranges from $15-$25. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:30 - 2:00 PM. The U.S. Chamber of Commerce will host a lunch. The speaker will be Steve Ballmer, CEO of Microsoft. See, notice and registration page. Prices vary. For more information, contact Natalie Masri at 202 463-5500 or ncfevents at uschamber dot com.notice. The Chamber also states that "Credentialed members of the media are invited to attend." Register by e-mailing press at uschamber dot com. For more information, call 202 463-5682. Ballmer will not take questions from reporters during the program. Location: Chamber, 1615 H St., NW.

2:00 PM. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade, and Consumer Protection will hold a hearing titled "Violent and Explicit Video Games: Informing Parents and Protecting Children". See, notice. The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

RESCHEDULED FROM MAY 25. 2:00 PM. The House Science Committee HSC) will meet to mark up several bills, including HR 5356, the "Early Career Research Act of 2006", HR 5357, the "Research for Competitiveness Act of 2006", and HR 5358, the "Science and Mathematics Education for Competitiveness Act of 2006". The hearing will be webcast by the HSC. Location: Room 2318, Rayburn Building.

TIME? The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a continuing legal education (CLE) seminar. Location?

8:30 AM - 5:00 PM. Day one of a two day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30876-30877. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

10:00 AM. The Senate Banking Committee will hold a hearing on several pending nominations, including those of Donald Kohn (to be Vice Chairman of the Federal Reserve Board) and Kathleen Casey to be a member of the Securities and Exchange Commission). See, notice. Location: Room 538, Dirsksen Building.

POSTPONED. 10:00 AM. The Senate Commerce Committee (SCC) will meet to mark up S 2686 [135 pages in PDF], the "Communications, Consumer's Choice, and Broadband Deployment Act of 2006". Press contact: Aaron Saunders (Stevens) at 202-224-3991 or Andy Davis (Inouye) at 202-224-4546. The meeting will be webcast by the SCC. Location: Room 216, Hart Building.

TIME? Day one of a two day hearing held by the U.S.-China Economic and Security Review Commission titled "China's Enforcement of IPR; Movement of Pirated Goods into U.S. and their Dangers". Location: __.

MOVED TO JUNE 15. 9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. The event will be webcast by the FCC. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).

8:30 AM - 5:00 PM. Day two of a two day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30876-30877. Location: Doubletree Hotel and Executive Meeting Center, 1750 Rockville Pike, Rockville, MD.

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Cyber Security Challenges at the Department of Energy". See, notice. The hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

TIME? Day two of a two day hearing held by the U.S.-China Economic and Security Review Commission titled "China's Enforcement of IPR; Movement of Pirated Goods into U.S. and their Dangers". Location: __.