Tech Law Journal Daily E-Mail Alert
June 23, 2008, Alert No. 1,784.
Home Page | Calendar | Subscribe | Back Issues | Reference
9th Circuit Issues Revised Opinion On Informational Privacy and 4th Amendment

6/20. The U.S. Court of Appeals (9thCir) issued a revised opinion [26 pages in PDF] in Nelson v. NASA. This replaces its January 11, 2008, opinion [19 pages in PDF]. The Court of Appeals also denied as moot the petition for panel rehearing and the petition for rehearing en banc.

See also, story titled "9th Circuit Addresses Privacy and Government Background Investigations of Private Sector Scientists" in TLJ Daily E-Mail Alert No. 1,703, January 22, 2008.

Robert Nelson and the other plaintiffs are scientists and engineers at the Jet Propulsion Laboratory (JPL), a joint project of the National Aeronautics and Space Administration (NASA) and the California Institute of Technology (CalTech).

The JPL program is run by CalTech pursuant to something that both opinions of the Court of Appeals opinion characterize as a "contract" with the NASA. This "contract" provides that the NASA can unilaterally amend it. The NASA unilaterally amended the "contract" to require low risk CalTech scientists to submit to in depth background investigations, including questioning of the scientists, questioning of third parties, and accessing government electronic databases of information.

The NASA requires completion of a detailed form, numbered SF 85. It requires, among other things, disclosure of past educational entities, employers, and landlords. The NASA also requires the signing of an "Authorization for Release of Information" that applies to "any information". The NASA then sends a Form 42 to schools, employers, landlords, and others disclosed on SF 85 forms. The NASA asks for, among other things, any adverse information about this person抯 employment, residence, or activities.

CalTech employees filed a complaint in U.S. District Court (CDCal) alleging violation of the Administrative Procedure Act (APA), violation of the Constitutional right to informational privacy, and violation of the 4th Amendment's ban on unreasonable searches.

The District Court denied the plaintiffs' motion for a preliminary injunction, based upon its finding of an unlikelihood of success on the merits. The plaintiffs then brought the present interlocutory appeal.

In its January opinion the Court of Appeals reversed and remanded on the APA and information privacy claims. However, it held that the background investigations are not searches within the meaning of the 4th Amendment.

In the just released opinion, the Court of Appeals switched its view on the APA claim. It now writes that "we agree with the district court that Appellants are unlikely to succeed on the merits of their APA claim".

However, the just released Court of Appeals opinion once again reversed the District Court on the information privacy claim. The Court of Appeals wrote that "We have repeatedly acknowledged that the Constitution protects an ``individual interest in avoiding disclosure of personal matters.创 ... This interest covers a wide range of personal matters, including sexual activity, ... medical information, ... and financial matters".

It continued that "If the government's actions compel disclosure of private information, it ``has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.创 ... We must 揵alance the government抯 interest in having or using the information against the individual抯 interest in denying access,创 ..."

"Both the SF 85 questionnaire and the Form 42 written inquiries require the disclosure of personal information", wrote the Court. It concluded that most of the questions listed on the SF 85 form do not implicate information privacy rights. However, it concluded that "Because SF 85 appears to compel disclosure of personal medical information for which the government has failed to demonstrate a legitimate state interest, Appellants are likely to succeed on this -- albeit narrow -- portion of their informational privacy challenge to SF 85."

It also concluded that the Form 42 questions are not "narrowly tailored". It wrote that "the form invites the recipient to reveal any negative information of which he or she is aware. It is difficult to see how the vague solicitation of derogatory information concerning the applicant's ``general behavior or conduct创 and ``other matters创 could be narrowly tailored to meet any legitimate need".

The Court of Appeals also held, as it did in its January opinion, that the District Court was correct in holding that the plaintiffs are unlikely to succeed on their 4th Amendment claim.

The Court wrote that "the government抯 actions are not likely to be deemed ``searches创 within the meaning of the Amendment. An action to uncover information is generally considered a ``search创 if the target of the search has a ``reasonable expectation of privacy创 in the information being sought, a term of art meaning a ``subjective expectation of privacy ... that society is prepared to recognize as reasonable.创 ... One does not have a ``reasonable expectation of privacy创 in one's information for Fourth Amendment purposes merely because that information is of a 損rivate创 nature".

This case is Robert Nelson, et al. v. NASA, et al., U.S. Court of Appeals for the 9th Circuit, App. Ct. No. 07-56424, an appeal from the U.S. District Court for the Central District of California, D.C. No. CV-07-05669-ODW, Judge Otis Wright presiding. Judge Kim Wardlaw wrote the opinion of the Court of Appeals, in which Judges David Thompson and Edward Reed, sitting by designation, joined.

Lori Drew Pleads Not Guilty in Section 1030 Case

6/16. Lori Drew entered a plea of not guilty in U.S. District Court (CDCal) on June 16, 2008.

On May 15, a grand jury returned a four count indictment [PDF] that charges Drew with violation of the Computer Fraud and Abuse Act (CFAA), which is codified at 18 U.S.C. 1030, as well as conspiracy and aiding and abetting.

This indictment alleges that she violated the terms of service (TOS) of the social networking web site MySpace. It alleges that Drew is an adult woman who created a fake MySpace profile of a teenage boy, and proceeded to cyber bully a teenage girl named Megan Meier who also used MySpace.

The key allegation in the indictment regarding harassment is that Drew, using her MySpace alias, "told M.T.M., in substance, that the world would be a better place without M.T.M in it."

The indictment alleges that Meier killed herself the same day.

The indictment does not charge MySpace or Fox Interactive Media, Inc.

The indictment states that "the MySpace TOS requires prospective members, members and users of the website to ... Provide truthful and accurate registration information" and to "Refrain from using any information obtained from MySpace services to harass, abuse, or harm other people".

It alleges that Drew's registration with MySpace, use of MySpace information, and sending communications to Meier, constituted intentionally accessing "a computer used in interstate and foreign commerce without authorization and in excess of authorized access, and by means of an interstate communication, obtain information from that computer to further a tortious act, namely infliction of emotional distress, in violation of 18 U.S.C. Ё 1030(a)(2)(C), (c)(2)(B)(2).

The U.S. Attorneys Office for the Central District of California stated in a release that "Whether we characterize this tragic case as `cyber-bullying, cyber abuse or illegal computer access, it should serve as a reminder that our children use the internet for social interaction ...".

John Morris, of the Center for Democracy and Technology (CDT), stated in a release that this indictment represents "a gross and inappropriate expansion of federal power to regulate speech and communications over the Internet".

He added that "If this indictment stands, all that ``fine print创 of the user agreement is moved from an annoyance to a significant legal risk; if you violate any term, you are committing a federal crime. This could seriously chill the robust interactivity of the Internet."

The District Court has scheduled a status conference for Thursday, July 26 at 8:00 AM. Trial is scheduled to begin on July 29.

TLJ has made many requests for interviews and information from the CCIPS over many years regarding its understanding of Section 1030's application to various activities. All such requests have been denied or ignored.

Reps. Sanchez and Hulshof Introduce Cyber and Phone Harassment Bill

5/22. On May 22, Rep. Linda Sanchez (D-CA) and Rep. Kenny Hulshof (R-MO) introduced HR 6123 [LOC | WW], the "Megan Meier Cyberbullying Prevention Act".

Rep. Sanchez explained that this follows the tragic suicide of a teenage girl, Megan Meier, who had received messages via the MySpace social networking web site from the mother of a former friend of hers.

The bill as introduced would make it a federal felony to transmit a communication by internet or phone with intent to harass. Also, as introduced, it possess attributes of a hastily and inartfully drafted bill.

It was referred to the House Judiciary Committee (HJC), which has not yet held any hearing, or taken other action, on the bill. In addition to Rep. Sanchez and Rep. Hulfshof, the only other Representatives who have joined in cosponsoring the bill are Rep. Doris Matsui (D-CA) and Rep. Todd Akin (R-MO).

Rep. Sanchez, who is a member of the HJC, stated in a release that "Without a federal law making cyberbullying a crime, cyberbullies are going unpunished ... In the Meier case we saw an adult allegedly engaging in sick, demented behavior with tragic consequences. This bill sends a clear message to anyone who commits cyberbullying: online actions will have severe offline consequences."

She added that "We need to give prosecutors the ability to protect kids by punishing people who abuse the internet to bully."

Rep. Sanchez's release also asserts that "At the time of Megan's death, cyberbullying was not considered a crime."

Rep. Hulshof stated in this release that "It sets needed limits for online conduct while protecting free speech. Megan Meier's story is tragic and heart-breaking. It is my hope that this case can yield common sense reforms that help prevent something like this from ever happening again."

Bill Summary. This bill would add a new section to the federal criminal code.

The criminal prohibition is stated in one sentence: "Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both."

The bill would define "communication" to mean "the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received".

The bill would define "electronic means" as "any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages".

While the bill's title references "Cyberbulling", the criminal prohibition in the bill also extends to use of telephones and text messages.

The bill provides for felony criminal prosecution. The bill is silent as to whether it creates a private right of action.

The bill contains a recitation of findings that focus on children, children's use of the internet, and the harmful effects of cyber bullying on children. However, the bill would not restrict liability to those whose communications are directed at children.

Also, the bill does not make injury an element of the crime. Most, but not all, criminal prohibitions include as elements an act, a mental state, and a harm or injury. This bill contains an act (transmitting a communication) and a mental state (intent to harass), but not a harm or injury. Someone could be prosecuted for sending a message that had no effect upon the recipient. Indeed, the bill does not even require that the intended recipient read or see the communication.

The bill contains no reference to carrier or ISP liability and immunity. For example, 47 U.S.C. 230 provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Similarly, carriers are not liable for the communications transmitted over their facilities.

This bill imposes liability, not on the speaker, but on "Whoever transmits". Carriers and ISPs transmit. Of course, the bill also makes "intent ... to harass" an element of the crime. Prosecutors and civil plaintiffs would have to prove intent. But, prosecutors and plaintiffs counsel could argue that they had notified the ISP or carrier of the harassing conduct, that it failed to terminate service to that user, and that it therefore intended the consequences of failing to terminate such harassing conduct.

Carriers and internet companies are well organized and participate in the Congressional process. They are unlikely sit by while Rep Sanchez and Rep. Hulshof push a bill that could impose liability upon them for the actions of their customers and users.

The bill, if enacted as introduced, would also likely have First Amendment infirmities. That is, it would enable the government to punish individuals for engaging speech, some of which would be Constitutionally protected.

Finally, this bill would not amend 1030, the section of the criminal code relied upon by the Department of Justice to prosecute Lori Drew.

McDermott Ban on Internet Harassment. HR 6123 would in many respects be redundant of a bill enacted by the Congress in the 109th Congress.

The Congress has already enacted one inartfully drafted, overbroad, and Constitutionally infirm criminal ban on internet based harassment. This was Rep. Jim McDermott (D-WA) ban on internet harassment.

Rep. McDermott succeeded in having his ban on internet harassment inserted late in the legislative process into HR 3402 (109th Congress), a large Department of Justice (DOJ) reauthorization bill. See, 113 of HR 3402. It was signed into law in January of 2006.

Both HR 6123 and HR 3402 are criminal bans. HR 6123 addresses both internet and phone communications, while HR 3402 added an internet provision to a statute, 47 U.S.C. 223, that already addressed phone communications. Both criminalize harassment. Both are Constitutionally infirm.

It should also be noted that federal prosecutors have not rushed to enforce the McDermott ban on internet harassment. Indeed, while Lori Drew's alleged conduct fits squarely within the McDermott prohibition, the indictment of Drew does not contain a count alleging violation of 47 U.S.C. 223.

This may reflect a realization by the DOJ that the McDermott ban is unconstitutional. Were HR 6123 to be enacted into law, as introduced, federal prosecutors might decline to use it for the same reason.

The McDermott ban provides that it is a crime for any person to use internet technologies "without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person". The Drew indictment alleges that Lori Drew did not disclose her identity, and that she harassed Meier.

Congressional committee staff with whom TLJ spoke during the 109th Congress regarding the McDermott amendment disassociated themselves from his amendment. HJC members and staff had drafted a different provision to address cyber stalking. This language, found at 509 of HR 3402 as reported by the HJC and approved by the full House, was titled "Preventing Cyberstalking". It would have amended 18 U.S.C. 2661A, a section of the criminal code which is titled "Interstate stalking". However, the Senate Judiciary Committee, at Rep. McDermott's request, deleted 509 and inserted 113. And, that bill eventually became law.

For a detailed explanation of the McDermott amendment, see story titled "Bush Signs DOJ Reauthorization Bill" in TLJ Daily E-Mail Alert No. 1,284, January 6, 2006. See especially, subsection titled "The Internet as a Telecommunications Device".

It should also be noted the at least one District Court has held that 230 immunity applies to actions alleging violation of the 223 internet harassment provision, and that 223 internet harassment does not give rise to a private cause of action. The U.S. Court of Appeals (1stCir) affirmed the U.S. District Court (DMass) in its February 23, 2007, opinion and story titled "1st Circuit Rules in Section 230 Case" in TLJ Daily E-Mail Alert No. 1,543, February 26, 2008.

Although, the plaintiff did not raise these issues on appeal. The Court of Appeals wrote, "On the federal cyberstalking claim under 47 U.S.C. 223, in addition to finding the claim barred by Section 230, the district court also found that the cyberstalking statute does not provide a private right of action. UCS does not challenge this dispositive ruling on appeal, so we affirm the dismissal of the claim on that basis, expressing no view on the appropriateness of applying Section 230 immunity to a putative civil claim under 47 U.S.C. 223."

This case is Universal Communication Systems, Inc. and Michael Zwebner v. Lycos, Inc., et al., U.S. Court of Appeals for the 1st Circuit, App. Ct. No. 06-1826, an appeal from the U.S. District Court for the District of Massachusetts, Judge Robert Keeton presiding.

Tech Crime Report

6/18. Howe Electric Inc. pled guilty in U.S. District Court (NDCal) to conspiracy to rig bids for contracts with the Federal Communications Commission's (FCC) Universal Service Corporation. This is another in a long series of criminal prosecutions arising out of the FCC's waste, fraud and abuse plagued e-rate tax and subsidy program. The Department of Justice (DOJ) also announced in a release that Howe Electric agreed to pay $300,000 in criminal fines and $3,000,000 in restitution and civil settlement.

6/16. The U.S. District Court (DC) sentenced Parthasarathy Sudarshan to serve 35 months in prison following his plea of guilty to violating export control regulations. The Department of Justice (DOJ) stated in a release that he exported microprocessors to "an enterprise within the Department of Space of the Government of India" and "an enterprise within the Ministry of Defence of the Government of India", and that these enterprises participate in India's "space launch vehicle program" and "development and production of ballistic missiles".

6/13. The U.S. District Court (WDWa) sentenced Asdrubel Sampayo to five years probation following his plea of guilty to mail fraud in connection with a scheme to steal and sell toner cartridges over eBay. Sampayo worked for Xerox as a customer service engineer. He serviced copiers at a Boeing facility in the state of Washington. He placed fraudulent orders for cartridges with a total value of $490,000 for the purpose of reselling them over eBay. He received a light sentence because of his current service with the U.S. Navy in the Persian Gulf, and "support shown by the Navy command staff". However, the sentence does require restitution. See, release of the U.S. Attorneys Office for the Western District of Washington.

6/12. The U.S. District Court (EDVa) sentenced Ingrid Dina Levy to serve 46 months in prison, and to pay restitution of $168,300.07, following her conviction in February of 2008 on three counts of mail fraud and four counts of wire fraud, in connection with her sale of merchandise over the internet which she did not deliver to the purchasers. The U.S. Attorneys Office for the Eastern District of Virginia stated in a release that Levy, "through an array of online fashion clothing businesses, defrauded more than 80 customers of more than $160,000 from 2004 through 2006". It added that "used fictitious names and business addresses to make it appear she was a large, legitimate, and authorized retailer".

6/10. Lester Weber pled guilty in U.S. District Court (EDVa) to one count of mail fraud, one count of making and subscribing a false tax return and one count of theft from an organization receiving federal funds, in connection with his theft and subsequent sale of property from The Mariners Museum in Newport News, Virginia. The U.S. Attorneys Office for the Eastern District of Virginia stated in a release that he worked as an archivist at the museum, stole items from the museum, and then auctioned stolen items on eBay. Regarding the tax charge, the release states that he "failed to list any of the receipts earned through the sale of items on the eBay website".

6/9. The U.S. District Court (SDCal) sentenced Jon Paul Oson to serve 63 months in prison, and to pay over $400,000 in restitution, following his conviction in August of 2007 of violation of 18 U.S.C. 1030(a)(5)(A)(i), the federal computer hacking statute. The U.S. Attorneys Office for the Southern District of California (USAO) stated in a release [PDF] that Oson after leaving his employment as a network engineer and as technical services manager for the Council of Community Health Clinics (CCHC), he accessed its servers without authorization and deleted patient data and software, and disabled automatic backup, thereby causing financial harm and affecting patient care. The District Court ordered him to pay $144,358.83 in restitution to the CCHC, and $264,979.00 in restitution to another clinic whose data was deleted. The USAO added that this is "one of the longest sentences imposed for computer hacking in the United States".

Washington Tech Calendar
New items are highlighted in red.
Monday, June 23

The House will meet at 12:30 PM for morning hour debate, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider numerous non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of June 23.

The Senate will meet at 3:00 PM. It will resume consideration of the House message to accompany HR 3221 [LOC | WW], the "American Housing Rescue and Foreclosure Prevention Act of 2008".

12:00 NOON - 1:15 PM. The New America Foundation (NAF) will host an event titled "Confronting Foreign Intelligence and Information Gaps: A Discussion with Senator Russ Feingold (D-WI)". See, notice and registration page. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Developing a National Broadband Strategy to Keep the U.S. Prosperous in the 21st Century". The speakers will be FCC Commissioner Michael Copps, FCC Commissioner Jonathan Adelstein, Jane Patterson (e-NC Authority), Jim Baller (Baller Herbst Law Group), Diana Oblinger (Educause), Stan Fendley (Fiber to the Home Council), Michael Calabrese (NAF). Lunch will be served. See, notice and registration page. Location: Room 902, Hart Building, Capitol Hill.

Tuesday, June 24

The House will meet at 9:00 AM for morning hour debate, and at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "The Future of Universal Service: To Whom, By Whom, For What, and How Much?" This hearing will be webcast by the HCC. Location: Room 2123, Rayburn Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Oversight of Trade Functions: Customs and Other Trade Agencies". The witnesses will be Tim Skud (Deputy Assistant Secretary for Tax, Trade, and Tariff at the Department of the Treasury), Ralph Basham (Commissioner of Customs), Julie  Myers (Immigration and Customs Enforcement), Daniel Pearson (Vice Chairman, U.S. International Trade Commission), Warren Maruyama (General Counsel, Office of the U.S. Trade Representative). See, notice. Location: Room 215, Dirksen Building.

10:00 AM. The House Appropriations Committee (HAC) will meet to mark up several items, including the homeland security appropriations bill. The HAC will webcast this meeting. Location: Room 2359, Rayburn Building.

11:30 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime will hold a hearing titled "Online Pharmacies and the Problem of Internet Drug Abuse". See, notice. This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Administrative Law will hold a hearing on HR 5267 [ LOC | WW], the "Business Activity Tax Simplification Act of 2008". See, notice and story titled "Boucher and Goodlatte Again Introduce BAT Bill" in TLJ Daily E-Mail Alert No. 1,715, February 11, 2008. Location: Room 2237, Rayburn Building.

1:00 - 4:00 PM. The House Science Committee's (HSC) Subcommittee on Investigations and Oversight will hold a hearing titled "American Decline or Renewal? Part 2 -- The Past and Future of Skilled Work". The witnesses will be John Russo (Youngstown State University), Frank Morgan (White & Case), Howard Rosen (Peterson Institute for International Economics), Jeanie Moore (Rowan-Cabarrus Community College), and Thomas Palley (Economics for Democratic & Open Societies Project). The HSC will webcast this hearing. Location: Room 2318, Rayburn Building.

TIME? The U.S. District Court (DC) will hold a status hearing in U.S. v. Microsoft. See, June 17, 2008, pleading [17 pages in PDF] titled "Joint Status Report on Microsoft's Compliance with the Final Judgments". This case is D.C. No. 98-1232 (CKK) and D.C. No. 98-1233, consolidated.

Wednesday, June 25

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23.

TIME CHANGE. 9:00 AM. The Senate Judiciary Committee's (SJC) Subcommittee on the Constitution will hold a hearing titled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel". Sen. Russ Feingold (D-WI) will preside. The witnesses will be Larry Cunningham (Assistant District Attorney, Bronx County), Susan Gurley (Association of Corporate Travel Executives), Farhana Khera (Muslim Advocates), Nathan Sales (George Mason University School of Law), Peter Swire (Ohio State University law school), and Lee Tien (Electronic Frontier Foundation). See, notice. Location: Room 226, Dirksen Building.

10:00 AM. The House Small Business Committee's (HSBC) Subcommittee on Regulations, Healthcare and Trade will hold a hearing titled "The Impact of Online Advertising on Small Firms". Location: Room 1539, Longworth Building.

10:00 AM. The House Appropriations Committee (HAC) will meet to mark up three items, including the commerce, justice, and science appropriations bill. The HAC will webcast this meeting. This mark up has been rescheduled from June 19. Location: Room 2359, Rayburn Building.

10:00 AM. The Senate Homeland Security and Government Affairs Committee will hold a business meeting. The agenda includes consideration of Elaine Duke to be Under Secretary for Management at the Department of Homeland Security (DHS). See, agenda [PDF]. Location: Room 342, Dirksen Building.

10:00 AM. The Securities and Exchange Commission (SEC) will hold an event titled "Open Meeting". See, agenda. Location: SEC, Auditorium, Room L-002, 100 F St., NE.

10:00 AM. The Department of Homeland Security's (DHS) Homeland Security Advisory Council will hold a partially closed meeting to review recommendations of the Essential Technology Task Force (ETTF) and to receive briefings from Secretary Michael Chertoff and others. See, notice in the Federal Register, June 19, 2008, Vol. 73, No. 119, at Page 34945. Location: Ritz-Carlton Hotel, Salon II, 1150 22nd St., NW.

2:00 PM. David McCormick (Under Secretary for International Affairs at the Department of the Treasury) will give a speech titled "Remarks on International Economic Policy in a Globalized World". For more information, contact Savina Rupani at 202-457-8719 or srupani at csis dot org. Location: Center for Strategic and International Studies, 1800 K St., NW.

Thursday, June 26

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of four judicial nominees: Paul Gardephe (to be a Judge of the U.S. District Court for the Southern District of New York), Kiyo Matsumoto (E.D.N.Y.), Cathy Seibel (S.D.N.Y.), and Glenn Suddaby (N.D.N.Y.). The SJC rarely follows its published agenda. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "The Foundation of International Tax Reform: Worldwide, Territorial, and Something in Between". The witnesses will be James Hines (University of Michigan Law School), Stephen Shay (Ropes & Gray), Roseanne Altshuler (Rutgers University), and Robert Dilworth (McDermott Will & Emery). See, notice. Location: Room 215, Dirksen Building.

11:00 AM - 12:30 PM. The Heritage Foundation will host a panel discussion titled "Homeland Security, Privacy and Civil Liberties: A Five Year Review". The speakers will be Michael Chertoff (Secretary of Homeland Security), Daniel Sutherland (Officer for Civil Rights and Civil Liberties, DHS), Hugo Teufel (Chief Privacy Officer, DHS), Peter Swire (Ohio State University law school), Kevin Lanigan (Human Rights First), and James Carifano (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON. The Cato Institute will host a panel discussion titled "Trade Facilitation: The New Wave of International Trade Liberalization?". The speakers will be Steven Creskoff (Creskoff & Doram), Michael Finger, Bill Lane (Caterpillar, Inc.), John Wilson (World Bank), and Dan Ikenson (Cato). Cato will webcast this event. Lunch will be served after the program. See, notice and registration page. Location: Cato, 1000 Massachusetts Ave., NW.

4:00 - 5:45 PM. The American Enterprise Institute (AEI) will host a discussion of the book [Amazon] titled "Termites in the Trading System: How Preferential Agreements Undermine Free Trade", by Jagdish Bhagwati. The speakers will be Bhagwati, Brian Hindley (European Centre for International Political Economy), Philip Levy (AEI), and Claude Barfield (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding Verizon's and Qwest's request that the FCC grant them the same forbearance that it granted to AT&T in its April 24, 2008, Memorandum Opinion and Order [31 pages in PDF]. That MOO is FCC 08-120 in WC Docket No. 07-21 and WC Docket No. 05-342. See, notice in the Federal Register, June 12, 2008, Vol. 73, No. 114, at Pages 33430-33431.

Friday, June 27

The House will meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for week of June 23.

9:00 AM - 4:00 PM. The Federal Communications Commission's (FCC) Consumer Advisory Committee will meet. See, FCC notice [PDF] and notice in the Federal Register, June 11, 2008, Vol. 73, No. 113, at Page 33090. Location: FCC, Commission Meeting Room, 445 12th St., SW.

10:00 AM. The House Judiciary Committee's (HJC) Antitrust Task Force will hold a hearing titled "Competition on the Internet". See, notice. The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding its proposal to amend the Rules of Practice in Trademark Cases to require a fee of $50 for filing a request for reconsideration on paper of an examining attorney's final refusal, whereas no fee would be required for a request for reconsideration filed through the Trademark Electronic Application System (TEAS). See, notice in the Federal Register, April 28, 2008, Vol. 73, No. 82, at Pages 22894-22895.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding whether the eligible telecommunications carrier (ETC) obligation to provide monthly digital television (DTV) transition notices to low income subscribers should be expanded to require the provision of such notices to all subscribers, and whether multichannel video programming distributors (MVPDs) should be required to provide on air DTV transition education on their systems. This FNPRM [30 pages in PDF] is FCC 08-119 in MB Docket No. 07-148. See also, correction [PDF]. See, notice in the Federal Register, May 28, 2008, Vol. 73, No. 103, at Pages 30591-30596.

Saturday, June 28

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-108 [20 pages in PDF] titled "Recommendation for Key Derivation Using Pseudorandom Functions".

Monday, June 30

The House will begin its July 4th recess. See, Rep. Hoyer's 2008 calendar [4.25 MB PDF].

The Senate will begin its July 4th recess. See, Senate 2008 calendar.

Accelerated deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding small, minority owned and women owned businesses in broadcasting. See, original notice in the Federal Register, May 16, 2008, Vol. 73, No. 96, at Page 28400-28407, and notice accelerating comment deadlines in the Federal Register, May 29, 2008, Vol. 73, No. 104, at Page 30875. The FCC adopted this NPRM on December 18, 2007, and released the text on March 5, 2008. See, NPRM [70 pages in PDF], first corrections [2 pages in PDF] and second correction [2 pages in PDF]. This NPRM is FCC 07-217 in MB Docket Nos. 07-294, 06-121, 02-277, and 04-228, and MM Docket Nos. 01-235, 01-317, and 00-244.

More News

6/20. The Department of Homeland Security (DHS) announced in a release that its has awarded REAL ID Demonstration Grants totaling about $80 Million. The REAL ID Act federalized state identification systems, and and thereby imposed mandates upon the states, the cost of which is borne by the states. The National Conference of State Legislatures (NCSL) and the National Governor's Association (NGA) have estimated that the program will cost over $11 Billion in the first five years. See, September 2006 NCSL/NGA report [60 pages in PDF] titled "The Real ID Act: National Impact Analysis".

6/20. The Department of Justice's (DOJ) Antitrust Division issued a release regarding an order and opinion of the U.S. District Court (SDWV) in U.S.A. v. Daily Gazette Company and MediaNews Group, Inc. Thomas Barnett, Assistant Attorney General in charge of the Antitrust Division, stated in this release that "We are pleased that the court has allowed the lawsuit to proceed and we look forward to presenting our case in court." On May 22, 2007, the Antitrust Division filed a complaint [19 pages in PDF] against the Daily Gazette Company and MediaNews Group, Inc. alleging violation of Section 7 of the Clayton Act and Sections 1 and 2 of the Sherman Act in connection with the ownership and operation of newspapers. See also, story titled "DOJ Antitrust Action Takes Segmented View of Media" in TLJ Daily E-Mail Alert No. 1,586, May 23, 2007.

6/17. The Office of the United States Trade Representative (OUSTR) published a notice in the Federal Register that announces, describes, and sets the comment deadline (July 11, 2008) for, its request for comments regarding the OUSTR's complaint filed with the World Trade Organization (WTO) on May 28, 2008, regarding European tariff treatment accorded to set-top boxes with a communication function, flat panel displays, input or output units, and facsimile machines. See, Federal Register, June 17, 2008, Vol. 73, No. 117, at Pages 34350-34351. See also, story titled "US and Japan File Complaints with WTO Regarding EU Duties on Tech Products" in TLJ Daily E-Mail Alert No. 1,776, June 4, 2008.

6/13. The Bureau of Industry and Security (BIS), which regulates exports, announced that it has adopted a rule that "revises a license exception in the Export Administration Regulations to allow the export of mobile phones as gifts sent by individuals to eligible recipients in Cuba." The BIS added that "is taking this action to provide support for individuals to support democracy-building efforts for Cuba by enabling the free exchange of information among Cuban citizens and with persons in other countries." This exception applies to "mobile phones and software, batteries, chargers, memory cards and other accessories" as well as to "receive-only radio equipment for reception of commercial/civil AM/FM and short wave publicly available frequency bands". See, notice in the Federal Register, June 13, 2008, Vol. 73, No. 115, at Pages 33671-33673.

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 1998-2008 David Carney, dba Tech Law Journal. All rights reserved.