7/25. The American Enterprise Institute (AEI) hosted a panel discussion titled "Strengthening the U.S.-Taiwan Relationship: The Prospects for a Free Trade Agreement".

All of the participants advocated a free trade agreement (FTA) between the U.S. and Taiwan. The keynote speaker, Steve Ruey-Long Chen (Deputy Minister of the Ministry of Economic Affairs), stated that a FTA would grow U.S. exports to Taiwan by 16%, according to a U.S. International Trade Commission (USITC) study.

He also said that an FTA would include "enhanced protection of IPR" and "enhanced cooperation on high tech / nanotech R&D".

He said that "Taiwan is ready to enter into FTA negotiations" with the U.S. at any time, and hopefully this year. He also stated that Taiwan seeks a comprehensive FTA, rather than a trade and investment framework agreement (TIFA).

Chun-Der Wu (Taiwan's Institute for Information Industry) outlined opportunities for U.S. companies in Taiwan in telecommunications and technology. He stated that the U.S. excels at innovation, sales, marketing, and system integration, while Taiwan excels at manufacturing. He said that the U.S. and Taiwan tend to engage in complimentary, rather than competitive, activities.

He also discussed Taiwan's foreign investment limitations, and other non-tariff barriers, and recent steps that Taiwan has taken unilaterally to reduce barriers.

Claude Barfield (AEI) made the point that while unilateral reductions are nice, they are informal, and could be reversed. However, if they were incorporated into an FTA or a World Trade Organization (WTO) agreement, then they would be permanent and enforceable.

Webster Wei-Ping Kiang (Chinatrust Commercial Bank) spoke at the AEI event about the financial services sector.

Negotiating a FTA between the U.S. and Taiwan is unlike negotiating other FTAs. For example, Barfield stated that the People's Republic of China (PRC) has successfully exerted pressure on other Asian nations not to negotiate or enter into a FTA with Taiwan, and opposes the U.S. doing so.

Rupert Hammond-Chambers (U.S.-Taiwan Business Council) stated that there are interagency issues in the U.S. For example, the Department of Defense would like to see Taiwan do more to develop its defense capabilities.

Dan Blumenthal (AEI) and Barfield also indicated that the office of the U.S. Trade Representative is dragging its feet on an FTA with Taiwan so as not to offend the PRC. There was no one from the USTR on this panel.

Barfield elaborated that the PRC states that it opposes a U.S. Taiwan FTA because it would be a step towards recognizing the sovereignty of Taiwan. Barfield said that "this is nonsense" because the PRC allowed Taiwan to enter into the WTO as a "customs territory" and could do the same for FTAs.

Barfield also argued that while Taiwan invests in and exports to the PRC, Taiwan should not be bound by a production model that begins and ends with the mainland. He said that it is important that Taiwan be integrated into East Asian production sharing models. Also, he suggested that the U.S. should tell the PRC either to stop bullying other nations not to enter into FTAs with Taiwan, or the U.S. will negotiate an agreement with Taiwan.

Finally, Barfield predicted that it is unlikely that the U.S. Congress will extend trade promotion authority (TPA), which expires next summer. However, he suggested that an FTA with Taiwan might be approved by the Congress absent TPA. Chambers added that "Taiwan is a very unique unifier in Congress."

There has been some activity in Congress on this subject. On February 16, 2006, Rep. Jim Ramstad (R-MN), introduced HConRes 346, a resolution that states "That it is the sense of the Congress that the United States should increase trade opportunities with Taiwan by launching negotiations to enter into a free trade agreement with Taiwan."

This resolution states that one reason for negotiating a FTA is that "Taiwan has become the world's largest producer of information technology hardware, and ranks first in the production of notebook computers, monitors, motherboards, and scanners".

Rep. Ramstad is a member of the House Ways and Means Committee, which has jurisdiction over many trade related issues, including FTAs. The Committee has taken no action on this resolution.

This resolution has 56 cosponsors. While most are Republicans, there are also some Texas Democrats, which is home to Dell, including Charlie Gonzales, E.B. Johnson, Henry Cuellar, and Solomon Ortiz. The sponsors also include some West Coast Democrats, including Henry Waxman, Anna Eshoo, Loretta Sanchez, David Wu, and Pete Stark.

Also, on July 20, 2006, the House International Relations Committee (HIRC) held a hearing titled "Asian Free Trade Agreements: Are They Good for the USA?"

Karan Bhatia, Deputy USTR, wrote in his prepared testimony [7 pages in PDF] that "We also have an active TIFA dialogue with Taiwan. I recently traveled to Taiwan for two days of discussions under the U.S.-Taiwan TIFA, and was able to get a first-hand view of the vibrancy of that economy and of the importance that senior leaders there place on our trade relationship. That relationship is a strong one, with nearly $57 billion in two-way goods trade last year. Taiwan is an important economic partner for the United States and it is one that we are determined not to overlook."

See also, opening statement of Rep. Henry Hyde (R-IL).

7/25. The House approved HR 5852, the "21st Century Emergency Communications Act of 2006", by a vote of 414-2. See, Roll Call No. 397. The Senate has yet to approve the bill.

This bill creates an "Office of Emergency Communications" (OEC) at the Department of Homeland Security (DHS).

It provides, among other things, that the new OEC shall "promote the development of best practices with respect to use of interoperable emergency communications capabilities for incident response and facilitate the sharing of information on such best practices".

It also provides that the OEC shall "coordinate the establishment of a national response capability with initial and ongoing planning, implementation, and training for the deployment of backup communications services in the event of a catastrophic loss of local and regional emergency communications services".

It also requires that the OEC shall "establish ... requirements for total and nonproprietary interoperable emergency communications capabilities for all public safety radio and data communications systems and equipment purchased using homeland security assistance administered by the Department".

Rep. Dave Reichert (R-WA) introduced this bill on July 20, 2006. See also, Reichert release and House Science Committee release.

7/25. The U.S. Court of Appeals (7thCir) issued an opinion [5 pages in PDF] in International Airport Centers v. Citrin, a post employment dispute between a real estate company chartered in Delaware, International Airport Centers (IAC), and its former Chicago based employee, Jacob Citrin.

IAC sued Citrin in U.S. District Court (NDIll) on various state law claims, and for civil violation of the federal computer hacking statute, 18 U.S.C. § 1030. While in the employ of IAC Citrin used a trace remover tool on the laptop assigned to him by IAC.

In its March 8, 2006, opinion [7 pages in PDF], the Court of Appeals held that an employee of a company who is provided a laptop computer by that company, and who uses a trace remover tool on that laptop, may be sued civilly, or prosecuted criminally, for that act, even if there is no employment contract or company policy that prohibits the use of trace remover programs. That opinion is also reported at 440 F.3d 418.

See also, story titled "7th Circuit Applies Computer Hacking Statute to Use of Trace Removers on Employee Laptops" in TLJ Daily E-Mail Alert No. 1,326, March 9, 2006. That TLJ article contains a detailed analysis of trace remover tools and the Court of Appeals' § 1030 analysis, and implies that the March 8 opinion was unfortunate, and a rare example of flawed reasoning by its author, Judge Richard Posner.

In the previous opinion, the Court of Appeals ruled that Citrin's motion to dismiss the § 1030 claim should be denied. The Court of Appeals remanded the case to the District Court for further proceedings.

The present opinion concerns IAC's appeal of the District Court's denial of an injunction of a related state court proceeding. Citrin filed a complaint in state court in Delaware seeking declaratory and injunctive relief that IAC is obligated to, among other things, pay in advance for his defense in the District Court action, as a consequence of Citrin's employment contract, which requires IAC to defend and indemnify him for any damages he might incur if he is sued based on acts performed in connection with the IAC's business. IAC is a Delaware corporation, and Delaware law controls construction of IAC's employment contracts.

IAC argued in the District Court, and on appeal, that the Delaware action is a collateral attack upon the Court of Appeals prior ruling that IAC's § 1030 claim survives a motion to dismiss. The District Court denied IAC's motion for a preliminary injunction. IAC then brought the present appeal.

The Court of Appeals affirmed the denial of the injunction.

It reasoned that "The Delaware suit is not a collateral attack on our ruling. Citrin is not asking the Delaware court to hold, contrary to our decision, that IAC has failed to state a claim under the federal computer statute. He is not asking to be indemnified on the ground that he is innocent of the charge of breach of fiduciary obligation. That would require a ruling on the merits of IAC’s claim and he is not asking for that. All he is asking is that in advance of the final disposition of the suit in federal district court he receive his litigation expenses in accordance with the terms of his employment contract. And since entitlement to advancement is independent of the merits of the suit for which the money is sought, ... the claim for advancement is not a compulsory counterclaim to that suit. For the claim does not arise out of the litigation; it arises out of the employment contract."

The Court of Appeals also wrote that because of Delaware precedent on attorneys fees advancement, "Delaware judges might be more favorably disposed to claims such as Citrin's than other judges, including federal judges in the Seventh Circuit, would be. And so there is an element of ``forum shopping´´ in Citrin’s decision to seek advancement in Delaware rather than in Chicago, where it could do so without a separate litigation. But more must be shown to justify an injunction against proceeding in what would be after all a perfectly natural and proper forum in which to bring such a suit."

The Court of Appeals did not state, in either this or its previous opinion, that there may also have been forum shopping by IAC. This dispute is essentially a post employment dispute involving state law claims of breach of fiduciary duty, conversion, misappropriation, breach of contract, and theft of trade secrets. See, IAC's amended complaint [30 pages in PDF]. IAC may have added the § 1030 claim (which is federal) to create federal question jurisdiction.

This case is International Airport Centers, LLC, et al. v. Jacob Citrin, U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 06-2073, an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division, D.C. No. 03 C 8104, Judge Wayne Andersen presiding. Judge Posner wrote the opinion of the Court of Appeals, in which Judges Williams and Sykes joined.

IAC is represented by Jeffrey Fowler of the law firm of Laner Muchin and Don Reuben of the law firm of Kane Carbonara. Citrin is presented by Ronald Marmer of the law firm of Jenner & Block.

7/25. The U.S. Court of Appeals (DCCir) issued its opinion [19 pages in PDF] in Echostar v. FCC, denying Echostar's petition for review of the Federal Communications Commission's (FCC) orders that adopted an improved version of its Individual Location Longley-Rice (ILLR) model for predicting the strength of broadcast television signals.

§ 1008 of the Satellite Home Viewer Improvement Act of 1999 (SHVIA), which is codified at 47 U.S.C. § 339(c)(3), directed the FCC to adopt "a point-to-point predictive model for reliably and presumptively determining the ability of individual locations to receive signals in accordance with the signal intensity standard in effect under section 119(d)(10)(A) of title 17. In prescribing such model, the Commission shall rely on the Individual Location Longley-Rice model set forth by the Federal Communications Commission in Docket No. 98–201 and ensure that such model takes into account terrain, building structures, and other land cover variations. The Commission shall establish procedures for the continued refinement in the application of the model by the use of additional data as it becomes available."

Pursuant to this direction, the FCC conducted a rulemaking proceeding, and issued the two orders that are the subject of this proceeding. Echostar filed a petition for review of these orders, which the Court of Appeals denied.

This case is Echostar Satellite, LLC v. FCC and USA, respondents, and National Association of Broadcasters, et al, intervenors, U.S. Court of Appeals for the District of Columbia, App. Ct. No. 04-1304, a petition for review of final orders of the FCC.

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

The Senate will meet at 9:00 AM. It will resume consideration of the motion to proceed to the consideration of S 3711, the Gulf of Mexico energy Security bill.

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) will hold a hearing titled "FISA for the 21st Century". The witnesses will be General Michael Hayden (Director of Central Intelligence Agency), Lt. General Keith Alexander (Director of the National Security Agency), Steven Bradbury (acting Assistant Attorney General in charge of the DOJ's Office of Legal Counsel), Bryan Cunningham (Morgan & Cunningham), Jim Dempsey (Center for Democracy & Technology), John Schmidt (Mayer Brown Rowe & Maw), and Mary DeRosa (Johns Hopkins Center for Strategic and International Studies). See, 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.

10:00 AM. The House Commerce Committee will meet to mark up several bills, including HR 1078, the "Social Security Number Protection Act of 2005". Press contact: 202-225-5735. Location: Room 2123, Rayburn Building.

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. John Kneuer (acting head of the NTIA) will moderate a panel titled "DNS Privatization: Are the MOU principles relevant and the tasks completed?". Meredith Atwell (NTIA) will moderate a panel titled "Measuring Success: Do stakeholders believe ICANN is fully sustainable?". 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.

10:00 AM. The Senate Finance Committee will meet to review and make recommendations on proposed legislation implementing the U.S.-Peru Trade Promotion Agreement, and to consider favorably reporting S 3495, a bill to authorize the extension of nondiscriminatory treatment (normal trade relations treatment) to the products of Vietnam. Location: Room 215, Dirksen Building.

10:00 AM. The Senate Commerce Committee will host a brief by Jack Valenti (former head of the MPAA) regarding an industry initiative to inform and educate consumers on television blocking technology through public service announcements (PSAs). Location: Room 253, Russell Building.

10:30 AM. The House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property will meet to mark up HR 5418, an untitled bill "To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges." See, notice. Press contact: Jeff Lungren or Terry Shawn at 202-225-2492. Location: Room 2141, Rayburn 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 (DHS'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.

The House will not meet from Monday, July 31 (tentative), through Monday, September 4. See, Majority Whip's calendar.

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.

10:00 AM. The National Association of Manufacturers (NAM) will host an event to release a report on supply chain security. The speakers will include Jerry Jasinowski (NAM), Theo Fletcher (IBM), Lesley Sept (Stanford University), and Arnold Allemang (Dow Chemical Company). For more information, contact Laura Narvaiz at 202-637-3104 or lnarvaiz at nam dot org. Coffee and doughnuts will be served. Location: NAM, 1331 Pennsylvania Ave., NW, Suite 600.

9:45 AM - 12:00 NOON and 2:00 - 3:30 PM. The DC Bar Association will host two events titled "Visits to the U.S. Copyright Office". The price to attend ranges from $15-$25. For more information, call 202-626-3463. See, notice and notice. Location: Copyright Office, Room 401, James Madison Memorial Building, 1st Street & Independence Ave., SE.

7/25. President Bush announced his intent to designate Stephen Larson to be acting General Counsel for the Department of the Treasury. See, White House release.

7/25. President Bush nominated Margrethe Lundsager to be the U.S. Executive Director of the International Monetary Fund (IMF) for a term of two years. See, White House release and release.

7/25. President Bush nominated Dianne Moss to be a Member of the Board of Directors of the Overseas Private Investment Corporation (OPIC) for a term expiring on December 17, 2007. See, White House release and release.

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