7/24. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in USA v. Romm, holding that a border or international airport seizure and search of a laptop computer, including search of internet caches, forensic analysis, and recovery of deleted files, is permissible, without consent, a warrant, probable cause, or any reason to believe that contraband is being brought into the U.S.

The Court of Appeals did not address what the consequences of such search authority, and resulting government searches, may have for information security, and preservation of trade secrets and other proprietary and confidential information.

Romm traveled by air from the U.S. to Canada. Canadian customs searched his laptop, and then denied him entry. It sent him back to the U.S. by air. It also seized his laptop and transferred it to U.S. customs, which did further searches and forensic analysis.

Romm was criminally charged in the U.S. on the basis of the government's discovery of, among other things, automatically cached files associated with web browsing. He moved to suppression evidence obtained as a result of the seizure and searches of his laptop. The District Court denied the motion. He was convicted.

The Court of Appeals affirmed the denial of the motion to suppress evidence. The Court first rejected his 4th Amendment argument. It wrote that "Under the border search exception, the government may conduct routine searches of persons entering the United States without probable cause, reasonable suspicion, or a warrant."

The Court of Appeals added that "For Fourth Amendment purposes, an international airport terminal is the ``functional equivalent´´ of a border."

The Court of Appeals concluded that the scope of such searches includes the contents of a computer hard drive. However, it did not explain the basis for this.

Since Romm was denied entry into Canada, and sent back to the U.S., he had "no opportunity to obtain foreign contraband", which is the primary purpose for U.S. border searches. The Court of Appeals wrote that "Even so, the border search doctrine is not limited to those cases where the searching officers have reason to suspect the entrant may be carrying foreign contraband." The Court of Appeals added that border searches "are reasonable simply by virtue of the fact that they occur at the border."

Romm also made a 1st Amendment argument. However, the Court of Appeals declined to address this argument, on the basis that it was raised for the first time on appeal.

The Court of Appeals opinion also addresses other non-technology related appeal issues.

This case is USA v. Stuart Romm, U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 04-10648, an appeal from the U.S. District Court for the District of Nevada, D.C. No. CR-04-00216-PMP(PAL), Judge Pro presiding. Judge Carlos Bea wrote the opinion of the Court of Appeals, in which Judges Betty Fletcher and David  Thompson joined.

7/24. The U.S. Court of Appeals (4thCir) issued its opinion [11 pages in PDF] in Jensen v. IBM, a contract case involving commissions for sales of IBM software. The Court of Appeals affirmed the judgment of the District Court for IBM.

IBM makes, among other things, software. It hired Niels Jensen in 2000 as a software salesman. IBM provided Jensen and other salesmen a copy of its document titled "Welcome to the fabulous world of your 2001 Software Sales Incentive Plan". It explained how the salesmen would be compensated, through base pay, percentages of sales, and attaining quotas.

Jensen quickly turned out to be a phenomenally good salesman. In 2001 he closed a $24 Million sale to a government agency. Jensen sought compensation based upon the formulas provided in the document provided to salesmen. IBM refused. IBM substantially reduced the commission based upon criteria not disclosed to salesmen in the document.

Jensen filed a complaint in U.S. District Court (EDVa) against IBM alleging breach of contract. The District Court held that the document did not constitute, or set the terms of, a contract. It concluded that Jensen was an at will employee who had no employment contract with IBM.

IBM was free to ignore the commission language in the document that it provided to its salesmen.

Jensen appealed. The Court of Appeals affirmed. It held that there was no contract, only a company policy.

Even after IBM's action, Jensen's performance was so exemplary that he still received substantially more compensation from IBM in 2001 than did the three Court of Appeals Judges, and the District Court Judge, combined. They had little sympathy for the salesman.

Persons considering accepting employment from IBM may wish to first employ counsel with expertise in negotiating and drafting employment contracts.

This case is Niels Jensen v. International Business Machines Corporation, U.S. Court of Appeals for the 4th Circuit, App. Court No. 05-1611, an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. CA-04-1316-1, Judge Leonie Brinkema presiding. Judge Niemeyer wrote the opinion of the Court of Appeals, in which Judges Wilkinson and King joined.

7/25. Andrew Noyes joined the National Journal's Technology Daily as a senior writer. His beat will include intellectual property policy, privacy, civil liberties and courts/litigation. He replaces Sarah Stirland. His new e-mail address is anoyes at nationaljournal dot com. He was previously associate managing editor of Washington Internet Daily.

7/23. Greg Piper was promoted to associate managing editor of Warren Publication's Washington Internet Daily. He has worked at Warren since February of 2005. He replaces Andrew Noyes.

7/24. The Federal Communications Commission (FCC) released the text [36 pages in PDF] of its Further Notice of Proposed Rulemaking (FNPRM) related to its various media ownership rules. The FCC adopted, but did not release, this FNPRM at its June 21, 2006 meeting. Initial comments are due by September 22, 2006. Reply comments are due by November 21, 2006. See also, story titled "FCC Adopts FNPRM on Rules Regulating Ownership of Media" in TLJ Daily E-Mail Alert No. 1,397, June 22, 2006. This FNPRM is FCC 06-93 in MB Docket No. 02-277, MM Docket No. 01-235, MM Docket No. 01-317, MM Docket No. 00-244, and MB Docket Nos. 06-121.

7/24. Advanced Micro Devices, Inc. (AMD) will acquire ATI Technologies, Inc. AMD makes microprocessors. ATI makes 3D graphics and PC platform technologies. AMD stated in a release that "AMD will acquire all of the outstanding common shares of ATI for a combination of $4.2 billion in cash and 57 million shares of AMD common stock, based on the number of shares of ATI common stock outstanding on July 21, 2006. All outstanding options and RSUs of ATI will be assumed. Based upon the closing price of AMD common stock on July 21, 2006 of $18.26 a share, the consideration for each outstanding share of ATI common stock would be $20.47, comprised of $16.40 of cash and 0.2229 shares of AMD common stock." The transaction is subject to regulatory approval. See also, ATI release [PDF].

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The House will meet at 9:00 AM for morning hour, and at 10:00 AM for legislative business. The House will consider HR 5852, the "21st Century Emergency Communications Act of 2006", and HR 1956, the "Business Activity Tax Simplification Act of 2006". See, Republican Whip Notice.

The Senate will meet at 9:45 AM. It will resume consideration of Jerome Holmes to be Judge of the U.S. Court of Appeals for the 10th Circuit.

9:30 AM - 12:00 NOON. The American Enterprise Institute (AEI) will host a program titled "Strengthening the U.S.-Taiwan Relationship: The Prospects for a Free Trade Agreement". Steve Ruey-Long Chen (Ministry of Economic Affairs of Taiwan) will give the keynote address at 9:30 AM. There will be a panel discussion at 10:00 AM. The speakers will be Claude Barfield (AEI), Rupert Hammond-Chambers (U.S.-Taiwan Business Council), Webster Wei-Ping Kiang (Chinatrust Commercial Bank), and Chun-Der Wu (Institute for Information Industry). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will hold a meeting to deliberate on possible recommendations regarding the antitrust laws to Congress and the President. The meeting is open to the public, but registration is required. See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 36059-36060.

10:30 AM. The Senate Finance Committee will hold a hearing titled "How Much Should Borders Matter?: Tax Jurisdiction in the New Economy". The witnesses will be Sen. Michael Enzi (R-WY), Sen. Byron Dorgan (D-ND), Daniel Noble (Wyoming Department of Revenue), George Isaacson (Brann & Isaacson, Lewiston), Christopher Rants (Speaker of the Iowa House of Representatives), Robert Benham (Balliet's, LLC), Gary Imig (Sierra Trading Post), Douglas Lindholm (Council on State Taxation), Dan Bucks (Montana Department of Revenue), and Michael Mundaca (Ernst & Young). See, notice. Location: Room 215, Dirksen Building.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold an oversight hearing titled "The 60th Anniversary of the Administrative Procedure Act: Where Do We Go From Here?" See, notice. The hearing will be webcast by the HJC. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM - 4:00 PM. Day one of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, agenda [PDF] and notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

TIME CHANGE. 9:00 AM. The Senate Judiciary Committee (SJC) may hold a hearing titled "FISA for the 21st Century". See, notice. The SJC frequently cancels or postpones hearings without notice. Press contact: Courtney Boone at 202-224-5225. Location: Room 226, Dirksen Building.

9:30 AM - 5:30 PM. The Antitrust Modernization Commission (AMC) will hold a meeting to deliberate on possible recommendations regarding the antitrust laws to Congress and the President. The meeting is open to the public, but registration is required. See, notice in the Federal Register, June 23, 2006, Vol. 71, No. 121, at Pages 36059-36060.

12:00 NOON - 2:00 PM. The DC Bar Association's Intellectual Property Law Section will host a panel discussion titled "Introduction To Patent Law and Trade Secret Law". The speakers will include Steven Warner (Fitzpatrick Cella Harper & Scinto) and Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $15-$30. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

12:15 - 1:15 PM. Federal Trade Commission (FTC) Commissioner Thomas Rosch will speak at a brown bag lunch regarding "(1) the Closing of the Investigation for Transactions Involving Comcast, Time Warner Cable, and Adelphia Communications; (2) In re Valassis Communications, Inc.; and (3) Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co." See, ABA notice. RSVP to Laverne Mimms at LMimms at OMM dot com. Location: O'Melveny & Myers, 1625 Eye Street, NW, Conference Room 10K/L.

2:00 - 5:00 PM. The National Telecommunications and Information Administration (NTIA) will hold a meeting regarding management of the internet domain name and addressing system. See, NTIA notice and notice in the Federal Register, Federal Register, May 26, 2006, Vol. 71, No. 102, at Pages 30388-30389. Location: auditorium of the Department of Commerce's main building at 1401 Constitution Ave., NW.

The House will meet at 10:00 AM for legislative business. See, Republican Whip Notice.

9:00 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will hold a hearing on HR 5055, an untitled bill to amend the Copyright Act to provide to protection for fashion design. See, notice. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn Building.

9:00 AM - 4:00 PM. Day one of a two day public meeting of the Federal Accounting Standards Advisory Board (FASAB). See, agenda [PDF] and notice in the Federal Register, July 12, 2006, Vol. 71, No. 133, at Pages 39318. Location: Room 7C13, GAO Building, 441 G St., NW.

TIME? The Senate Judiciary Committee (SJC) may hold an executive business meeting. See, notice. The SJC frequently cancels or postpones meetings without notice. The SJC rarely follows its published agenda. Press contact: Courtney Boone at 202-224-5225. Location: Room 226, Dirksen Building.

11:00 AM. The Senate Commerce Committee will to consider several nominations, including Nathaniel Wienecke to be the Department of Commerce's Assistant Secretary for Legislative and Intergovernmental Affairs, and Jay Cohen to be the Department of Homeland Security's Under Secretary for Science and Technology. See, notice. Press contact: Joe Brenckle (Stevens) at 202-224-3991, Brian Eaton (Stevens) at 202-224-0445, or Andy Davis (Inouye) at 202-224-4546. Location: Room 253, Russell Building.

11:45 AM - 1:15 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch titled "The Role of Communications Trade Association Counsel and Policymakers". The speakers will be Dan Brenner (National Cable & Telecommunications Association), Carolyn Brandon (Cellular Telecommunications & Internet Association), Ann Bobeck (National Association of Broadcasters), Colin Sandy (National Exchange Carriers Association), and David Cavossa (Satellite Industry Association). Location: Willkie Farr & Gallagher, 1875 K Street, NW.

3:00 PM. The House Rules Committee will meet to adopt a rule for consideration of HR 4157, the "Health Information Technology Promotion Act of 2005". Location: Room H-313, Capitol Building.

6:00 - 8:00 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets: Case Law Update 2006". The speakers will include Milton Babirak (Babirak Vangellow & Carr). 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.

The House may meet at 9:00 AM for legislative business. See, Republican Whip Notice.

9:30 AM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Federal Financial Management, Government Information, and International Security will hold a hearing titled "Cyber Security: Recovery and Reconstitution of Critical Networks". The witnesses will be George Foresman (Virginia's Under Secretary for Preparedness), Richard Schaeffer (NSA's Director of Information Assurance), Karen Evans (OMB), David Powner (GAO), Tom Noonan (ISS), Roberta Bienfait (AT&T), Michael Aisenberg (Verisign), Karl Brondell (State Farm, for the Business Roundtable). See, notice. Location: Room 342, Dirksen Building.

Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding NIST Special Publication 800-53A [305 pages in PDF], titled "Guide for Assessing the Security Controls in Federal Information Systems".

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding on whether and how an open global database of proxy numbers of Video Relay Service (VRS) users may be created so that a hearing person may call a VRS user through any VRS provider without having to ascertain the first VRS user's current internet protocol address. See, notice in the Federal Register, May 31, 2006, Vol. 71, No. 104, at Pages 30848-30856. This FNPRM is FCC 06-57 in CG Docket No. 03-123.

Extended deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its notice in the Federal Register regarding revisions to guidelines used by USPTO personnel in their review of patent applications to determine whether the claims in a patent application are directed to patent eligible subject matter. The USPTO seeks comments on, among other topics, "claims that perform data transformation" and "claims directed to a signal per se". With respect to the later, the USPTO asks "If claims directed to a signal per se are determined to be statutory subject matter, what is the potential impact on internet service providers, satellites, wireless fidelity (WiFi [reg]), and other carriers of signals?" See, Federal Register, December 20, 2005, Vol. 70, No. 243, at Pages 75451 - 75452. See also, story titled "USPTO Seeks Comments on Subject Matter Eligible for Patents" in TLJ Daily E-Mail Alert No. 1,278, December 22, 2005. See also, notice in the Federal Register (June 14, 2006, Vol. 71, No. 114, at Pages 34307-34308) extending deadline, and story titled "USPTO Seeks Further Comments on Patentable Subject Matter" in TLJ Daily E-Mail Alert No. 1,391, June 14, 2006.

9:00 AM. The Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Investigations will hold a hearing titled "Offshore Abuses: The Enablers, The Tools & Offshore Secrecy". This hearing will focus on the use of foreign financial services companies by U.S. citizens, but not the use of U.S. financial services companies by foreign citizens. See, notice. Location: Room 342, Dirksen Building.