Tech Law Journal Daily E-Mail Alert
December 1, 2006, Alert No. 1,497.
Home Page | Calendar | Subscribe | Back Issues | Reference
Rep. Markey to Seek Chairmanship of Telecommunications and Internet Subcommittee

12/1. Rep. Ed Markey (D-MA) announced that he will seek the Chairmanship of the House Commerce Committee's Subcommittee on Telecommunications and the Internet. See, release.

Rep. Ed MarkeyMarkey (at left) was the Chairman of the Subcommittee before the Republicans gained a majority in the House in the 1994 elections, and has been the ranking Democrat on the Subcommittee since then.

He has served in the House for 30 years. Rep. John Dingell (D-MI), who has served in the House for over 50 years, is the Democrat on the HCC with the most seniority. He is set to become Chairman of the full Committee. Rep. Henry Waxman (D-CA) also has more seniority than Rep. Markey on the full Committee. Rep. Fred Upton (R-MI) is the outgoing Chairman of the Subcommittee.

Rep. Markey's announcement means that he will not seek the Chairmanship of the House Resources Committee in the 110th Congress.

Markey boasted in his release that he "is the author and co-author of numerous landmark telecommunications laws", including "the Cable Act of 1992", that he "has repeatedly led efforts to protect consumer privacy", and that he is now focused on "the need to keep the Internet an open platform by adopting strong rules for ``net neutrality创 and to promote policies to make broadband services competitive, available and affordable to all Americans."

During the HCC's consideration of its communications reform bill, he advocated a net neutrality mandate, and buildout requirements for broadband service providers.

Gigi Sohn, head of the Public Knowledge, a Washington DC based interest group that favors a network neutrality mandate, stated in a release that she is "delighted". She added that "We look forward to working with him on Net Neutrality, video franchising and a host of other issues as we forge a comprehensive telecommunications policy suitable for the broadband era."

Martin Speaks On Broadband Regulation and Competition

11/30. Federal Communications Commission (FCC) Chairman Kevin Martin gave a speech [7 pages in PDF] in which he discussed broadband regulation and competition.

He said that "high speed Internet access offered by a phone company should be treated the same way as high speed Internet access offered by a cable operator."

"We have removed legacy regulations, like tariffs and price controls, that discourage carriers from investing in their broadband networks", said Martin. "Our ultimate goal however, is for consumers to be able to choose from among a multiplicity of broadband service providers, rather than just one or two. And we are beginning to see this happen. For example, wireless broadband, broadband over powerline, and Fiber-to-the-Home are new technologies that are beginning to be deployed."

He noted that "According to our annual price survey, where there is no competition the average price for cable programming was $43.33. Add in competition from DBS and the average price is the same. In areas where there is competition from a second cable operator however, the average price for cable programming decreased to $35.94."

Bernanke Discusses State of Economy and Computing

11/28. Federal Reserve Board (FRB) Chairman Ben Bernanke gave a speech in New York, New York, in which he discussed the state of the economy, and the role of information technology (IT) in productivity growth.

Citing Department of Commerce (DOC) data, Bernanke said that "real gross domestic product (GDP) increased at an annual rate of 2.6 percent in the second quarter of 2006 and at a rate of only 1.6 percent in the third quarter. These figures are down noticeably from the 3-1/2 percent average pace of growth of the preceding two years."

On November 29, the DOC released its revised third quarter GDP growth estimate -- 2.2 percent. (This is growth from the previous quarter, at a seasonally adjusted annual rate, adjusted for inflation.) See, DOC short release and detailed release [15 pages in PDF].

"In the business sector, capital investment has continued to expand at a healthy pace," said Bernanke. "Overall, the economy is likely to expand at a moderate pace going forward. A reasonable projection is that economic growth will be modestly below trend in the near term but that, over the course of the coming year, it will return to a rate that is roughly in line with the growth rate of the economy's underlying productive capacity."

He also discussed IT and productivity growth. "With regard to productivity, I remain optimistic that the recent favorable trends will continue. The price of computing power continues to fall sharply, having declined by nearly half between 2000 and 2005. Increased computing power has contributed, in turn, to the development and growth of other commercially relevant technologies, such as biotechnology, and has led to improvements in efficiency, through better supply-chain management, for example."

He added that "whatever the pace of future technological progress, further diffusion of already-existing technologies and applications to more firms and industries should continue to increase aggregate productivity for a time."

DHS Discloses Some Details of Electronic Database

12/1. The Department of Homeland Security (DHS) disclosed details in a November 2 notice in the Federal Register (FR) of a program that involves using a computer database to aggregate and analyze data on individuals. The DHS states that the primary purpose of this the database program is to use data analysis techniques to generate risk assessment scores for all persons who travel into or out of the US, and certain other persons and cargo, for the purpose of improving the operations of the DHS's Customs and Border Protection (CBP).

Also, on November 22, 2006, the DHS completed a Privacy Impact Assessment [30 pages in PDF]. It states that under this program personally identifiable information (PII) "is collected to ensure that people and cargo entering or exiting the United States comply with all applicable U.S. laws."

Several groups have filed comments with the DHS complaining primarily about the privacy implications of creating unchallengeable risk assessment scores. However, the DHS's explanations of the program also reveal that the DHS will store PII on individuals, and will give data to a wide range of requestors other than the CBP or DHS.

While the DHS database may assist in generating, maintaining, and disseminating in real time risk assessment scores to assist air and border security operations, this database, as described in the FR notice, also creates a general purpose database of PII available to a wide range of governmental and non-governmental requestors for purposes unrelated to air or border security.

Nothing in the FR notice or Privacy Impact Assessment (PIA) indicate that this program is not distinct from the DHS's CAPPS -- CAPPS II -- Secure Flight program.

The program is titled "Automated Targeting System" or ATS. It also covers cargo. However, this article focuses on individuals' PII and risk assessment scores.

DHS Notice in the Federal Register. The November 2 FR notice begins with a convoluted discussion. It describes either a new system of records, or a previously existing system of records. This notice lacks clarity as to whether it discloses a new system of records, as required by the Privacy Act of 1974, pertaining to the rating of individuals' security risks, or whether it merely discusses a previously existing system of records already in use.

The FR notice states that "The new system of records will be effective December 4, 2006, unless comments are received that result in a contrary determination." See, Federal Register, November 2, 2006, Vol. 71, No. 212, at Pages 64543-64546. (TLJ failed to report this notice at the appropriate time.)

This FR notice also states that this ATS program "is the enforcement screening module associated with the Treasury Enforcement Communications System and was previously covered by the Treasury Enforcement Communications System ``System of Records Notice.创"

The FR notice reveals that the DHS is using computer database technology to aggregate and analyze personally identifying information from a wide range of sources for the purpose of generating risk assessment scores of international air or auto travellers, transportation crews, persons involved in international trade, persons involved in transport, and cargo.

The DHS asserts that these records are not subject to certain Privacy Act requirements, such as the right of individuals to access and contest information about them.

The FR notice states that the "computer database" will be located in Washington DC, but can be accessed from numerous "computer terminals".

The FR notice also states that this Treasury Enforcement Communications System (TECS) "is established as an overarching law enforcement information collection, targeting, and sharing environment. This environment is comprised of several modules designed to collect, maintain, and screen data, conduct targeting, and share information. Among these modules, the Automated Targeting System performs screening of both inbound and outbound cargo, travelers, and conveyances. As part of this screening function, the Automated Targeting System compares information obtained from the public with a set series of queries designed to permit targeting of conveyances, goods, cargo, or persons to facilitate DHS's border enforcement mission."

The FR notice then states that a "risk assessment" is "created" and "stored" in this "Automated Targeting System".

The data collected in this program includes names, telephone numbers, e-mail addresses, payment information, address, billing address, travel itinerary, and other data.

The Privacy Impact Assessment (PIA) also lacks clarity in many sections. It begins with the statement that this is "an Intranet-based enforcement and decision support tool that is the cornerstone for all CBP targeting efforts. CBP uses ATS to improve the collection, use, analysis, and dissemination of information that is gathered for the primary purpose of targeting, identifying, and preventing potential terrorists and terrorist weapons from entering the United States. Additionally, ATS is utilized by CBP to identify other violations of U.S. laws that are enforced by CBP."

What DHS Will Do With the Data. The PIA states that "It assists the CBP officer抯 decision-making process about whether a passenger or crewmember should receive additional screening prior to entry into or departure from the country because the traveler may pose a greater risk for violation of U.S. law."

The purpose of the program goes beyond fighting terrorism. For example, the PIA adds one purpose of the program is identifying "travelers at high risk for involvement in ... intellectual property rights infringement".

Who Else Can Access or Obtain ATS Data. The FR notice asserts that "the system may not be accessed under the Privacy Act for the purpose of contesting the content of the record". However, the FR notice adds that "all or a portion of the records or information contained in this system may be disclosed outside DHS" to a wide range of other parties.

The PIA states that most of the parties with direct terminal access will be in the DHS. Most parties outside will request data from the DHS.

The FR notice states that all or any data in the system may be disclosed to "Federal, state, local, tribal, or foreign governmental agencies ... where CBP believes the information would assist enforcement of civil or criminal laws". Thus, the purposes of the program go beyond homeland security to enforcement of any local, state, federal, or foreign civil or criminal laws.

The FR notice also states that data may be disclosed to "Federal, state, local, tribal, or foreign governmental agencies" for the purpose of "hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit".

The FR notice also states that data may be disclosed to litigants in civil or criminal litigation. Specifically, it provides that "To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement
negotiations, or in response to a subpoena, or in connection with criminal law proceedings".

The FR notice also states that data may be disclosed to "third parties during the course of a law enforcement
investigation to the extent necessary to obtain information pertinent to the investigation".

The FR notice also enumerates many other circumstances under which data may be disclosed to other parties.

The PIA provides less detail on disclosure of data outside of the DHS.

Individuals' Access to Their Own Information. The FR notice asserts that individuals cannot obtain their data by a direct request to the DHS.

However, it provides that they can obtain their data indirectly by obtaining it through the office of a Senator or Representative. The FR notice states that data may be disclosed "To a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains".

The PIA states that while individuals do not have access to their ATS data, including their risk assessment score, they may have access to, and an opportunity to contest, some of the systems of records from which the DHS acquires data for the ATS program, such as state Department of Motor Vehicle data.

EFF Comment. On November 30, 2006, the Electronic Frontier Foundation (EFF) filed a comment [9 pages in PDF] with the DHS regarding this ATS. It is signed by David Sobel and Marcia Hofmann, attorneys in the EFF's Washington DC office. The EFF has also submitted a request for records from the DHS regarding this program pursuant to the federal Freedom of Information Act (FOIA).

Sobel and Hoffman wrote that there are "substantial privacy issues raised by the newly disclosed system of records".

They wrote that the ATS "is a data-mining system that the agency will use to create ``risk assessments创 for tens of millions of travelers. It will include information that is not ``relevant and necessary创 to accomplish its stated purpose of improving security. Individuals will have no right to access information about themselves contained in the system, nor to request correction of information that is inaccurate, irrelevant, untimely or incomplete. While personal information contained in the ATS will not be accessible to the affected individuals, it will be made readily available to an untold numbers of federal, state, local and foreign agencies, as well as a wide variety of ``third parties,创 including 揷ontractors, grantees, experts, consultants, students, and others.创 The ``risk assessments创 created by the system and assigned to tens of millions of law-abiding individuals will be retained by the government for 40 years."

Sobel stated in an EFF release that "The government is preparing to give millions of law-abiding citizens 'risk assessment' scores that will follow them throughout their lives ... If that wasn't frightening enough, none of us will have the ability to know our own score, or to challenge it. Homeland Security needs to delay the deployment of this system and allow for an informed public debate on this dangerous proposal."

Neither the EFF's David Sobel nor the DHS immediately returned phone calls from TLJ.

The ACLU also submitted a comment to the DHS. The ACLU issued a release that states that "Innocent people are going to get caught up in this program, and they will have precious little recourse under it ... When some unknown government computer, using unknown sources of information, tags you as a `security risk and begins circulating that label around the government, you will have no meaningful way of finding out why you were given that label, let alone challenging its validity."

Public Hearing. The DHS's Homeland Security Advisory Council's Secure Borders and Open Doors Advisory Committee will hold a partially open meeting on Wednesday, December 6, 2006. The open portion of the meeting will be from 1:00 to 2:30 PM at the Hilton Washington, Washington Room, 1919 Connecticut Avenue, NW. See, notice in the Federal Register, November 29, 2006, Vol. 71, No. 229, at Page 69139.

Washington Tech Calendar
New items are highlighted in red.
Friday, December 1

The House will next meet on Tuesday, December 5, 2006, at 10:00 AM. See, Republican Whip Notice. See also, HConRes 496.

The Senate will next meet on Monday, December 4, 2006. See also, HConRes 496.

9:30 AM - 12:00 NOON. The Department of State's International Telecommunication Advisory Committee will meet to discuss the US position on the International Telecommunications Union's (ITU) budget shortfalls and related matters. See, notice in the Federal Register, November 14, 2006, Vol. 71, No. 219, at Page 66362. Location: undisclosed.

Monday, December 4

The Senate will return from its Thanksgiving recess. See, HConRes 496.

8:30 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for International Science and Engineering will meet. See, notice in the Federal Register, November 13, 2006, Vol. 71, No. 218, at Page 66201. Location: 4201 Wilson Boulevard, Room 1235, Arlington, VA.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in E-PASS Tech v. 3Com, App. Ct. No. 2006-1356. Location: Courtroom 203, 717 Madison Place, NW.

Extended deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its proposed changes to its Export Administration Regulations (EAR) pertaining to exports and reexports of dual-use items to the People's Republic of China (PRC). Dual use items include certain encryption products, information security products, fiber optic products, computers, and software. See, original notice in the Federal Register, July 6, 2006, Vol. 71, No. 129, at Pages 38313-38321, and notice of extension in the Federal Register, October 19, 2006, Vol. 71, No. 202, at Page 61692.

Tuesday, December 5

The House will return from its Thanksgiving recess at 10:00 AM. See, Republican Whip Notice. See also, HConRes 496.

9:00 AM - 1:30 PM. The U.S. Chamber of Commerce will host an event titled "Minding Your Business: The Future of Privacy". The speakers will include Federal Trade Commission (FTC) Chairman Deborah Majoras. See, notice. The price to attend ranges from free to $249. There will also be a webcast. The Chamber adds that "CREDENTIALED MEMBERS OF THE MEDIA ARE INVITED TO ATTEND. For an Agenda and Full List of Speakers or to Register to Attend Please Call Chamber Media Relations at 202-463-5682 or" press at uschamber dot com. A continental breakfast will be served at 8:30 AM. Location: U.S. Chamber of Commerce, 1615 H Street, NW.

9:00 - 10:15 AM. The Washington Legal Foundation (WLF) will host a panel discussion titled "Self-Regulation of Advertising: Promoting Responsibility and Maintaining Commercial Speech". The speakers will be Jodie Bernstein (Bryan Cave), Lynne Omlie (Distilled Spirits Council of the United States), and Diane Bieri (Pharmaceutical Research and Manufacturers of America). See, notice [PDF]. Breakfast will be served. Location: WLF, 2009 Massachusetts Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in IPVenture v. Prostar Computer, App. Ct. No. 2006-1012, a patent infringement case involving thermal management for computers. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Quickview System v. Belo Interactive, App. Ct. No. 2006-1091. This is an appeal from the U.S. District Court (NDTex), D.C. No. 3:04-CV-1254-B. The District Court construed the term "computer" in the patent claim not to include a networked systems of two or more computers. Location: Courtroom 201, 717 Madison Place, NW.

2:00 - 5:00 PM. The Privacy and Civil Liberties Oversight Board (PCLOB) will hold its first public meeting. The PCLOB notice states that "Members of the public interested in attending this meeting as audience members should contact the Board at (202) 456-1240. Space is limited. Credentialed representatives of the media wishing to attend should contact Andy Pino, Georgetown University Office of Public Affairs at (202) 687-4328 or" pinoa at georgetown dot edu. Location: Gaston Hall at Healy Hall, Georgetown University.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in Monster Cable Products, Inc. v. The Quest Group d/b/a AudioQuest, App. Ct. No. 2006-1111, a patent case involving audio cables. Location: Courtroom 203, 717 Madison Place, NW.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a continuing legal education (CLE) seminar titled "Equity Investments and Lending to FCC-Regulated Communications Companies: Legal Issues and Business Considerations". See, notice and registration form [PDF]. Registrations and cancellations are due by 5:00 PM on December 1. The price to attend ranges from $50 to $125. Location: Sidley Austin, 6th floor, 1501 K St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Autotel's petition for preemption of the jurisdiction of the Arizona Corporation Commission with respect to its decisions to dismiss Autotel抯 request for arbitration of an interconnection agreement with Citizens Utilities Rural Company, Inc. and Autotel抯 request for termination of the rural exemption under section 251(f) of the Act. See, FCC Public Notice [PDF] (DA 06-2083). This proceeding is WT Docket No. 06-194.

Wednesday, December 6

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in New Generation v. Slocum Enterprises, App. Ct. No. 2006-1137. Location: Courtroom 203, 717 Madison Place, NW.

12:30 - 2:00 PM. The DC Bar Association will host a panel discussion titled "Identity Theft, Internet Privacy and Cell Phone Privacy -- What are the Rules of the Road?". The speakers will include Marc Groman (Federal Trade Commission), Al Gidari (Perkins Coie), Eric Wenger (DOJ's Computer Crimes and Intellectual Property Section), and Heidi Salow (Sprint Nextel). The price to attend ranges from $15 to $20. For more information, call 202-626-3463. See, notice. Location: D.C. Bar Conference Center, 1250 H Street NW, B-1 Level.

2:00 PM. The U.S. Court of Appeals (FedCir) will hear oral argument in MyMail v. America Online, App. Ct. No. 2006-1147. Location: Courtroom 203, 717 Madison Place, NW.

2:00 - 4:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to discuss the upcoming meeting of the ITU Radiocommunication Sector's Conference Preparatory Meeting (CPM) for the 2007 World Radiocommunication Conference, to be held on February 19 through March 2, 2007 in Geneva, Switzerland. See, notice in the Federal Register, October 10, 2006, Vol. 71, No. 195, at Page 59580. Location: Boeing Company, 1200 Wilson Blvd., Arlington, VA.

2:30 PM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Paul Schneider to be Under Secretary for Management, Department of Homeland Security. See, notice. Location: Room 342, Dirksen Building.

Thursday, December 7

8:00 - 10:30 AM. The DC Bar Association will host an event titled "Trademark Office Speaks". The speakers will include Lynne Beresford (Commissioner for Trademarks), Sharon Marsh (Deputy Commissioner for Trademark Examination Policy), and David Sams (Chief Administrative Trademark Judge, Trademark Trial and Appeal Board). The price to attend ranges from $25 to $45. For more information, call 202-626-3463. See, notice. Location: Cosmos Club, 2121 Massachusetts Ave., NW.

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. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Page 66504. Location: George Washington University, Cafritz Conference Center, Rooms 101 and 308, 800 21st Street, NW.

Day one of a two day closed meeting of the Library of Congress's (LOC) Section 108 Study Group. This meeting will address "Review of public roundtables", "Clarifications and conclusions", and "Report drafting". This meeting is closed to the public. See also, 17 U.S.C. 108. Location: undisclosed.

Deadline to submit initial comments to the Federal Communications Commission (FCC) on the Supporters of the Missoula Plan's proposed interim process to address phantom traffic issues. See, FCC Public Notice [PDF] (DA 06-2294).

Friday, December 8

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. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Page 66504. Location: George Washington University, Cafritz Conference Center, Rooms 101 and 308, 800 21st Street, NW.

Day two of a two day closed meeting of the Library of Congress's (LOC) Section 108 Study Group. This meeting will address "Review of public roundtables", "Clarifications and conclusions", and "Report drafting". This meeting is closed to the public. See also, 17 U.S.C. 108. Location: undisclosed.

People and Appointments

11/24. The US Patent and Trademark Office (USPTO) announced the appointment of members of its Performance Review Board: Stephen Pinkos (Deputy Director of the USPTO), Vickers Meadows (Chief Administrative Officer), John Doll (Commissioner for Patents), Lynne Beresford (Commissioner for Trademarks), David Freeland (Chief Information Officer), James Toupin (General Counsel), Lois Boland (Director of International Relations), Barry Hudson (Chief Financial Officer), and Griffin Macy (Deputy Chief Information Officer). See, notice in the Federal Register, November 24, 2006, Vol. 71, No. 226, at Page 67857-67858.

More News

12/1. The Copyright Royalty Board published a notice in the Federal Register that announces, explains, recites, and sets the effective date (January 1, 2007) of, rules changes that provide for a cost of living
adjustment of 1.3% in the royalty rates paid by colleges, universities, or other nonprofit educational institutions that are not affiliated with National Public Radio for the use of copyrighted published nondramatic musical compositions in the ASCAP, BMI and SESAC repertoires. See, Federal Register, December 1, 2006, Vol. 71, No. 231, at Page 69486.

11/21. Federal Reserve Board (FRB) Governor Kevin Warsh gave a speech to the New York Stock Exchange. He said nothing about communications services or information technology. Rather, he spoke about FRB communications and the flow of information related to policy making at the FRB. The speech might be of interest to those who think about the role of information flows in government processes. He explained that market entities provide information to the FRB and to markets. Markets, in turn, generate information, such as asset prices, that the FRB uses to make monetary policy. The FRB then communicates information regarding its polices that entities use to make business decisions. The FRB also has regulatory and supervisory powers to affect the flow of information provided by entities. What underlies this speech, and related speeches by FRB officials in prior years, is that the FRB is concerned about information flows. Warsh stated that he wants to prevent "the signals from getting crossed", and that the FRB should "make our communications and intentions as clear as possible". In contrast, officials at some federal agencies that regulate communications services and information technology, such as the FCC, speak little about information flows, and arguably, make less effort to make their communications and intentions as clear as possible, to the detriment of the efficient operation of markets.

About Tech Law Journal

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.

Contact: 202-364-8882.
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998 - 2006 David Carney, dba Tech Law Journal. All rights reserved.