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February 1, 2008, Alert No. 1,709.
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NTIA Report Praises Progress on Broadband Deployment

1/31. The Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) released a report [60 pages in PDF] titled "Networked Nation: Broadband in America: 2007". The report praises broadband services in the U.S. and the Bush administration's policies. Others criticized the report.

The NTIA report states that "four years ago President Bush articulated a national vision: universal, affordable access to broadband technology. From its first days, the Administration has implemented a comprehensive and integrated package of technology, regulatory, and fiscal policies designed to lower barriers and create an environment in which broadband innovation and competition can flourish."

President Bush gave a speech that focused on broadband policy in Albuquerque, New Mexico on March 26, 2004. He said that "We ought to have a universal, affordable access for broadband technology by the year 2007, and then we ought to make sure as soon as possible thereafter, consumers have got plenty of choices when it comes to purchasing the broadband carrier." See also, story titled "Bush Calls for Universal Broadband Access by 2007" in TLJ Daily E-Mail Alert No. 865, March 29, 2004.

Bush stated in a speech on April 21, 2004, that "I believe there ought to be broadband in every community, and available to every house by the year 2007, in order to make sure America has lasting prosperity. And that's just the beginning. I think not only should broadband be accessible, but there ought to be ample providers available to every house and every community in America." See also, story titled "Bush Addresses Broadband Policy, Free Trade and the PATRIOT Act" in TLJ Daily E-Mail Alert No. 882, April 22, 2004.

The report concludes that "Americans today enjoy an increasing array of broadband services, available from a growing number of service providers, using a variety of technologies. Penetration continues to grow, and prices continue to fall."

It states that various government agencies "executed a combination of initiatives to develop and rapidly deploy new technologies, eliminate regulatory underbrush, and remove economic disincentives for investment".

Carlos Gutierrez, Secretary of Commerce, stated in a release that this report "shows the nation's broadband success story. The Presidentís policies have made a significant impact on the availability and affordability of broadband in the United States ... The broadband policies put in place by the President have created a competitive environment to foster innovation and provide effective technologies, services and cost-effective solutions to revolutionize health care delivery, education, society and the economy.  We look forward to continuing our progress on this issue."

The report elaborates that these policies include making more spectrum available for advanced wireless services, promoting "technology neutrality", supporting for the "FCC's efforts to modify legacy regulation in order to expand incentives for local telephone companies to invest in network upgrades and to stimulate facilities-based investments by other providers", and various tax policies.

It states that FCC data shows that "DSL was available as of year end 2006 to 79 percent of households in areas where companies also offered local telephone". It states that cable industry data "suggests that high-speed cable service is now available to some 92 percent of all U.S. households by the end of 2007."

It also states that the "wireless industry is currently the fastest growing segment of Americaís broadband economy. The FCCís most recent data reveal that the number of broadband lines provided by wireless operators increased from approximately 380,000 in June 2005 to almost 22 million at year end 2006 -- a growth rate that dwarfs that of other broadband platforms."

Finally, the report covers progress in fiber optic cable, fixed wireless, satellite, and broadband over powerline.

Steve Largent, head of the CTIA stated in a release that "This report is yet further evidence that more and more Americans are choosing mobile wireless as their high-speed on-ramp to the internet. Thanks to a light-touch regulatory approach in an intensely competitive marketplace, rapid deployment of wireless broadband services has become an affordable reality for millions of consumers across the nation."

Largent added that "The statistics speak for themselves. According to the latest FCC broadband data, mobile wireless high-speed subscribership increased more than 600% from 2005 to 2006 alone."

However, others criticized the report. FCC Commissioner Michael Copps released a statement.

"Networked Nation? If the United States were a networked nation consumers would be paying half as much for broadband connections 20 times as fast", wrote Copps.

He said the the report "slices and dices bad data (full disclosure: much of it from the FCC) in ever more outlandish ways to reach the conclusion that all is well". (Parentheses in original.)

Copps argued that the "NTIA is swimming upstream against the tide of independent reports that seem to come out daily finding that when it comes to broadband, we are falling further and further behind. Whether it is the OECD ranking of 15th in the world or the countless other rankings showing even worse results, this is not where the United States needs to be."

FCC Commissioner Jonathan Adelstein also released a statement in which he joked that "this report appears to be missing some key chapters".

He wrote that "Noticeably absent is any coherent strategy going forward. This report relies on widely-discredited data in a strained effort that only distracts us from the real work ahead. Rather than bragging about dubious accomplishments, we need to quickly implement a new agenda for expanding our broadband capabilities."

Gigi Sohn, head of the Public Knowledge, stated in a release that "The NTIA report presents a distorted view of the state of broadband in the U.S. The Administration should not be boasting about our success at a time when consumers here pay more money for slower service with have fewer choices than do consumers in other parts of the world."

She added that "Almost 97 percent of U.S. consumers have a choice only between their cable company and their telephone company. The Administration wiped out the policies that once upon a time allowed competition to flourish here and which now sustain the competition in other countries that consumers enjoy."

Bush Advocates FISA Reform, Signs 15 Day Extension Bill

1/31. President Bush gave a long speech in Las Vegas, Nevada, regarding the war on terror. He discussed reform of the Foreign Intelligence Surveillance Act (FISA).

He said that "I hope you take heart in knowing there are a lot of really fine people working long, long hours to get the best information possible to protect the homeland." He said that they are "unbelievably dedicated folks" and "professionals" who should be given "the tools necessary to protect the American people".

He elaborated that "one such tool in this different kind of war is to fully understand the intentions, the motives, the plans of people who use suicide and bombs to kill the innocent. If these terrorists and extremists are making phone calls into our country, we need to know why they're calling, what they're thinking, and what they're planning. In order to protect the American people, our professionals need to have the tools necessary to do their job you expect them to do. And one such tool is a surveillance program that guarantees the rights of our citizens, but doesn't extend those same guarantees to those who would do us harm."

Bush said that "Congress passed such a bill last year."

The Congress enacted a FISA reform bill in August that contains a six month sunset. This bill is S 1927 [LOC | WW], the "Protect America Act 0f 2007" or "PAA". It is now Public Law No. 110-55. See also, story titled "Summary of Protect America Act" in TLJ Daily E-Mail Alert No. 1,638, September 11, 2007.

Bush continued that the Congress "recognized that this tool was important to protect America. And yet, unfortunately, the bill they passed is set to expire tomorrow -- or was set to expire tomorrow."

He added that "I will sign today, here in Las Vegas, an extension, 15-day extension to the Protect America Act."

Later in the day, Bush signed HR 5104 [LOC | WW], a bill to extend the effective term of the Protect America Act of 2007 (PAA) for 15 days, through February 16, 2008. See, White House release. That is, the PAA as enacted in August of 2007, was effective for 180 days. HR 5104 replaces "180 days" with "195 days".

Bush said that "This will give people and Congress time to pass a good piece of legislation that makes sure that our professionals have the tools necessary to do their job, and provides liability protection to carriers who it is assumed helped us in protecting the American people. This Protect America Act and its strengthening is essential to the security of the United States of America."

Paper Argues PAA Presents Threat to Network Security

1/31. A group of academic and corporation persons who work in computer security fields published a paper [10 pages in PDF] titled "Risking Communications Security: Potential Hazards of the Protect America Act".

They argue that the powers given to the government by the Protect America Act may lead to "serious security risks: danger of exploitation of the system by unauthorized users, danger of criminal misuse by trusted insiders, and danger of misuse by government agents."

They distinguish the concern of privacy and civil liberties advocates, whose concern is invasive surveillance by the government, from their security concern, which is "whether the new law puts Americans at risk of illegitimate surveillance by others".

The authors are Steven Bellovin (Columbia University), Matt Blaze (University of Pennsylvania), Whitfield Diffie (VP, Sun Microsystems), Susan Landau (Sun Microsystems), Peter Neumann (SRI International), and Jennifer Rexford (Princeton University).

This is a technical paper about communications architectures, and how surveillance capabilities are build into communications networks. The gist of the paper is that these capabilities can be used, not only by the U.S. government under legal authority, but by third parties without authority.

The paper cites two recent examples, in Greece and Italy, where this occurred.

The paper argues that the PAA authorizes surveillance when just one party is believed to be located outside the U.S. This means collection of information inside the U.S., and inserting surveillance capabilities inside the U.S. And this puts all communications by Americans at risk.

The paper states that "building surveillance technology into a communications infrastructure creates risk of penetration by trusted insiders, foreign powers, and non-state actors (with trusted insiders being the greatest threat)." (Parentheses in original.)

It adds that "Disrupting attacks by non-state actors could be a short-term gain, but surveillance architectures rarely go away. The dangers created by the Protect America Act present a long-term risk."

It argues that "It is critical that the new surveillance system neither enable exploitation of US communications by unauthorized parties nor permit abuse by authorized ones." It then offers some suggestions for minimizing risks.

First, it suggests that "Traffic should be collected at international cable heads rather than at tandem switches or backbone routers, which also carry purely domestic traffic."

Second, "Robust auditing and logging systems must be part of the system design." Also, "communications providers ... should have an active role in both design and operation."

Third, "There should be appropriate oversight by publicly accountable bodies", and "the overseeing authority should be as far removed from the intercepting authority as practical" and in "a branch of government different from the one conducting the surveillance".

SEC Commissioner Condemns SEC and DOJ Efforts to Weaken Attorney Client Privilege

1/18. Paul Atkins, one of four Commissioners of the Securities and Exchange Commission (SEC), gave a speech in Dallas, Texas, in which he condemned the activities of the Department of Justice (DOJ) and SEC that weaken the attorney client privilege.

Paul AtkinsAtkins (at right) said that "The two Federal agencies that have been most vigorous in seeking waiver of the attorney-client privilege have been" the DOJ and SEC. He reviewed in some detail the memoranda and practices of the two agencies.

He argued that long standing legal privileges should be respected. He also argued that weakening privileges has adverse consequences.

For example, he said that "As the SEC and other Federal agencies press to have the attorney-client privilege waived, the entire privilege is weakened. As knowledge of its weakening spreads, corporate employees will be less candid and forthcoming, corporate internal investigations will be less trustworthy, and shareholders and government investigators will be frustrated in their efforts to prevent misdeeds."

Atkins said that this weakening creates another problem for companies. It exposes them to the risk of having to disclose attorney client communications and work product privilege items to third party requestors on the theory that the privileges have been waived as to all the world.

He cited the June 19, 2006 opinion [50 pages in PDF] of the U.S. Court of Appeals (10thCir) in In re Qwest Communications International, which is reported at 450 F.3d 1179. This case is App. Ct. No. 06-1070, a petition for writ of mandamus to the U.S. District Court for the District of Colorado, D.C. No. 01-CV-1451-REB-CBS. The Supreme Court then denied Qwest's petition for writ of certiorari.

Atkins also said that "Not only does the SEC and Department of Justice policy of pressing corporations to waive the common law attorney-client privilege open them to disclosure to the world, but it also can have the effect of individuals' waiving the Fifth Amendment Constitutional right against self-incrimination by pressuring the business organization to do what the SEC or the Department of Justice could not do directly."

There have been Congressional hearings on this subject, and there are pending bills. The House has passed HR 3013 [LOC | WW], the "Attorney-Client Privilege Protection Act of 2007" on November 13, 2007.

This bill, as passed, provides, in part, that "In any Federal investigation or criminal or civil enforcement matter, an agent or attorney of the United States shall not ... demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product" or "condition a civil or criminal charging decision relating to a organization, or person affiliated with that organization, on, or use as a factor in determining whether an organization, or person affiliated with that organization, is cooperating with the Government ... any valid assertion of the attorney-client privilege or privilege for attorney work product ..."

See also, stories titled "Rep. Scott and Rep. Forbes Introduce Bill to Protect Attorney Client Privilege" in TLJ Daily E-Mail Alert No. 1,609, July 16, 2007, and "House Passes Bill Regarding Attorney Client and Work Product Privileges" in TLJ Daily E-Mail Alert No. 1,676, November 14, 2007.

The companion bill in the Senate, S 186 [LOC | WW], has yet to be approved by the Senate Judiciary Committee (SJC).

Atkins also used this speech to praise the Supreme Court's January 15, 2008, opinion [33 pages in PDF] in Stoneridge v. Scientific Atlanta. See, story titled "Supreme Court Rules in Stoneridge v. Scientific Atlanta" in TLJ Daily E-Mail Alert No. 1,701, January 16, 2008.

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

The House will not meet. Day three of the three day House Democratic Retreat. See, Rep. Hoyers' schedule for the week of January 28.

EXTENDED FOR 15 DAYS. Expiration of the temporary amendments to the Foreign Intelligence Surveillance Act (FISA) enacted by S 1927 [LOC | WW], the "Protect America Act".

Deadline to submit written comments to the U.S. International Trade Commission (USITC) to assist the USITC in preparing a report for the House Ways and Means Committee regarding government policies affecting trade with the People's Republic of China (PRC). See, notice in the Federal Register, July 31, 2007, Vol. 72, No. 146, at Pages 41773-41774.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its Federal Information Processing Standards (FIPS) Publication 186-3 [122 pages in PDF] titled "Digital Signature Standard" or DSS.

Starting date for eligible low power television broadcast stations, Class A television stations, television translator stations, and television booster stations to submit to the National Telecommunications and Information Administration (NTIA) non-priority applications for the Low-Power Digital Conversion Program. See, notice in the Federal Register: October 29, 2007, Vol. 72, No. 208, at Pages 61109-61114.

Effective date of the Department of State's (DOS) final rule regarding the use of radio frequency identification (RFID) technology in passport cards. See, notice in the Federal Register, December 31, 2007, Vol. 72, No. 249, at Pages 74169-74173. See also, story titled "Department of State Adopts Rules for Vicinity RFID Passport Cards" in TLJ Daily E-Mail Alert No. 1,695, January 4, 2008

Monday, February 4

The Senate will meet at 2:00 PM. It will resume consideration of S 2248 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007".

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Poweroasis v. T-Mobile, a patent infringement case, App. Ct. No. 2007-1265, an appeal from the U.S. District Court (DNH), D.C. No. 1:2005cv00042. The Court of Appeals will also hear oral argument in and Poweroasis v. Wayport, App. Ct. No. 2007-1369. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Symantec v. Computer Associates, a patent infringement case, App. Ct. No. 2007-1201. Location: Courtroom 203, 717 Madison Place, NW.

10:30 AM - 12:00 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "The Battle for Cyberspace: Blogging and Dissidence in the Middle East". The speakers will be Mohammed Ali (Iraq the Model), Tony Badran (Foundation for the Defense of Democracies), Arash Sigarchi (Panjereh Eltehab), Hassan Mneimneh (Iraq Memory Foundation), and Michael Rubin (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline for the National Telecommunications and Information Administration's (NTIA) and the Federal Communications Commission's (FCC) advisory committee titled "Joint Advisory Committee on Communications Capabilities of Emergency Medical and Public Health Care Facilities" to submit their report to the Congress "on the communications capabilities and needs of emergency medical and public health care facilities and the options to accommodate growth of communications services and to improve integration of communications systems used by such facilities". See, notice in the Federal Register, September 7, 2007, Vol. 72, No. 173, at Page 51418.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding allowing AM stations to use FM translator stations to rebroadcast the AM signal locally. This NPRM is FCC 07-144 in MB Docket No. 07-172. See, notice in the Federal Register, November 6, 2007, Vol. 72, No. 214, at Pages 62616-62622.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking regarding the establishment of a Commercial Mobile Alert System (CMAS). This NPRM, which was adopted and released on December 14, 2007, is FCC 07-214 in PSHSB Docket No. 07-287. See, notice in the Federal Register, January 3, 2008, Vol. 73, No. 2, at Pages 545-607. The relevant FCC proceeding is numbered CG Docket No. 03-123.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Hawk Relay's petition for clarification regarding the Deaf Blind Relay Service (DBRS). See, notice in the Federal Register, January 4, 2008, Vol. 73, No. 3, at Pages 863-864. The relevant FCC proceeding is numbered CG Docket No. 03-123.

Tuesday, February 5

8:30 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will meet. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Page 2458-2459. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Golden Bridge Tech v. Nokia, a patent infringement case, App. Ct. No. 2007-1215, an appeal from the U.S. District Court (EDTex), D.C. No. 2:05-cv-151. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Prism Technologies v. Verisign, a patent infringement case involving hardware keys for authentication over networks, App. Ct. No. 2007-1315. This is an appeal from the U.S. District Court (DDel), D.C. No. CA 05-214-JJF. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Nazomi Communications v. ARM, a patent infringement case, App. Ct. No. 2007-1190. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee will meet to prepare advice on U.S. positions for the April 2008 meeting of the Organization of American States (OAS) Inter-American Telecommunication Commission (CITEL) Permanent Consultative Committee II (Radiocommunication including broadcasting) (PCC.II) and on various matters associated with the Asia-Pacific Economic Cooperation (APEC). See, notice in the Federal Register, January 16, 2008, Vol. 73, No. 11, at Page 2978. Location: Room 6B516, Federal Communications Commission (FCC), 445 12th St., SW.

1:00 - 4:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) will meet by conference call. See, notice in the Federal Register, January 24, 2008, Vol. 73, No. 16, at Page 4132.

Wednesday, February 6

8:00 AM - 12:00 NOON. The National Institute of Standards and Technology's (NIST) Visiting Committee on Advanced Technology (VCAT) will meet. See, notice in the Federal Register, January 15, 2008, Vol. 73, No. 10, at Page 2458-2459. Location: Employees Lounge, Administration Building, NIST, Gaithersburg, MD.

8:30 AM - 5:30 PM. The Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) will jointly host a public workshop titled "2008 International Technical Assistance Workshop: Charting the Future Course of International Technical Assistance at the U.S. Department of Justice and the Federal Trade Commission". See, notice. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 1:30 PM. The Federal Communications Commission's (FCC) Public Safety and Homeland Security Bureau (PSHSB) will host a "summit on issues relating to the deployment and use of Next Generation 911 technology and the coordination of those efforts among Public Safety Answering Points, the telecommunications industry and manufacturers". See, notice [PDF] and registration page. Location: Commission Meeting Room, FCC,  445 12th St., SW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in LSI Industries v. Imagepoint, a patent infringement case, App. Ct. No. 2007-1292. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in O2 Micro International v. Beyond Innovation Technologies, a patent infringement case, App. Ct. No. 2007-1302. This is an appeal from the U.S. District Court (EDTex), D.C. No. 2-04-CV-32 (TJW). See, District Court's March 21, 2007, Memorandum Opinion and Order [PDF]. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Ampex v. Eastman Kodak, a patent infringement case, App. Ct. No. 2007-1089. This is an appeal from the U.S. District Court (DDel), D.C. No. 04-1373-KAJ. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Metropolitan Life v. Bancorp, App. Ct. No. 2007-1312. Location: Courtroom 203, 717 Madison Place, NW.

12:00 NOON - 1:30 PM. The Federal Bar Association (FBA) will host an event titled "The 9/11 Act -- Overview and Authorities". The price to attend ranges from $10-$15. See, registration page. Location: Transportation Security Administration (TSA), Town Hall, 601 S. 12th St., Arlington, VA.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Cyberspace and International Practice Committees will host an event titled "Broadband Deployment and Take-up: What Are the Experiences of Various Countries?" This event offers continuing legal education (CLE) credits. See, notice and registration page. The price to attend ranges from $25 to $135. Registrations are due by 5:00 PM on February 4. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

TIME? Day one of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, VA.

Thursday, February 7

8:30 AM - 5:00 PM. The U.S.-China Economic and Security Review Commission will hold a public meeting titled "The Implications of Sovereign Wealth Fund Investment on National Security". See, notice in the Federal Register, January 22, 2008, Vol. 73, No. 14, at Pages 3804-3805. Location: Room 562, Dirksen Building, Capitol Hill.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Gammino v. Southwestern Bell, one of several related patent infringement cases involving an algorithm for blocking international telephone calls. This appeal, App. Ct. No. 2007-1201, is from the U.S. District Court (NDTex), D.C. No. 3:2005cv00850, which entered summary judgment for Southwestern Bell (AT&T). See, 512 F.Supp.2d 626. Location: Courtroom 201, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Avocent Huntsville v. Aten International, a patent infringement case, App. Ct. No. 2007-1553. This is an appeal from the U.S. District Court (NDAlab). Location: Courtroom 203, 717 Madison Place, NW.

TIME? Day two of a two day closed meeting of the Department of Defense's (DOD) Defense Science Board. The DOD has not disclosed the agenda. See, notice in the Federal Register, January 2, 2008, Vol. 73, No. 1, at Pages 173-174. Location: Pentagon, Arlington, Virginia.

Friday, February 8
No events.
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