Tech Law Journal Daily E-Mail Alert
December 1, 2008, Alert No. 1,864.
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Obama Picks Holder to Be Attorney General

12/1. President elect Obama announced that he will nominate Eric Holder to be Attorney General. See, release.

Holder is a partner in the Washington DC office of the law firm of Covington & Burling. This firm has represented NFL Enterprises, Association for Maximum Service Television (MSTV), National Association of Broadcasters (NAB), and broadcasters in Federal Communications Commission (FCC) proceedings.

He also joined the WorldCom Board of Directors in 2003 during its reorganization. He remained with the company, renamed MCI, through its merger with Verizon, which was completed in late 2005.

Before joining Covington & Burling he was Deputy Attorney General in the Clinton administration. He has also been the U.S. Attorney for the District of Columbia, and a judge of the District of Columbia.

Sen. Patrick Leahy (D-VT), the Chairman of the Senate Judiciary Committee (SCC), released a statement in which he said that "I plan to consult with our Ranking Republican and then schedule Mr. Holder's confirmation hearing as promptly as possible."

Sen. Leahy praised Holder, and added that "After the scandals that have undermined the public's trust in the Justice Department and that have damaged the morale of its dedicated professionals, it would be especially fitting to bring in a leader who is widely admired by the staff and especially by the professionals of the U.S. Attorneys' Offices across the nation."

More People and Appointments

12/1. President elect Obama announced that he will nominate Janet Napolitano to be Secretary of Homeland Security. See, release.

12/1. President elect Obama announced that he would nominate Sen. Hillary Clinton (D-NY) to be Secretary of State. See, release.

12/1. President elect Obama announced that he would nominate Jim Jones to be National Security Advisor. See, release.

11/25. Federal Communications Commission (FCC) spokesman Robert Kenny stated in a release that "Today's ComDaily story regarding the employment status of FCC Chief of Staff Daniel Gonzalez is not true and is factually wrong. Mr. Gonzalez is a political appointee in a non-career position who has not secured, nor has he attempted to secure, a career position within the Commission."

NAF Paper Advocates Consumer Ownership of Fiber Connections

11/21. The New America Foundation (NAF) released a paper [17 pages in PDF] titled "Homes with Tails: What If You Could Own Your Internet Connection?". The authors are Tim Wu (Columbia University law school) and Derek Slater (Google).

This paper states that "Most proposals have focused on deployment as a problem for firms and for government. For firms, the question is how a company can justify investments in a fiber infrastructure without a ``killer app创 -- a new and proven revenue source that is different from what is available from existing copper wires. For governments, the questions consider how they might build and operate their own networks, convince or pay existing carriers to do so, or encourage market entrants to arrive and save the day."

This paper proposes "household investments in fiber" that would enable them to "connect to a variety of service providers, including today's Internet, television, and telephone services". It proposes that fiber connections to homes be part of the property rights of the homes.

It proposes "A ``condominium创 model for fiber ownership, in which individual strands of fiber are sold to consumers, while maintenance and other collective needs are managed jointly."

The paper elaborates that consumers would not build out these fiber condos. The possible builders would include existing carriers, municipalities, fiber builders specialized for this purpose, and real estate developers. These fiber condos would run to the point of interconnection.

The paper states that consumers' bandwidth has not grown as quickly as microprocessor speeds or data storage. The paper does not present the argument that this is because microprocessors and storage, unlike networks, have never been subjected to actual or threatened common carrier or network neutrality mandates. Nor does it argue that chip makers have a wide range of property rights in their plants, intellectual property and product, while network owners have a narrow range of property rights in their networks. Instead, this paper argues that the difference arises out of the circumstance that consumers end up owning their microprocessors, but not their connections.

This paper advocates build out of connections by companies, who would then sell them to home owners. It is a market based model. However, it is not being pursued by any entrepreneurially businesses. Rather, it is being advocated by an employee of Google, a company that has no plans to build or acquire any networks.

One obstacle to this model might be the lack of rules governing the property rights in these connections.

The paper does not address implementing the legal framework upon which this proposal would rest. The NAF is a Washington DC based interest group that focuses on influencing the federal government, and in the context of technology policy, the Federal Communications Commission (FCC). Yet, implementation of this paper's proposal would entail changes to real property law, which is a matter of state law. Condominiumization is governed by the various states' horizontal property acts. This would be a matter to be addressed by state legislatures.

Nevertheless, it should be noted that the FCC has recently written rules that modify state property rights in its multiple dwelling unit (MDU) proceedings. See, stories titled "FCC Adopts R&O Abrogating Contracts Between MDU Owners and Cable Companies" and "Commentary on FCC's R&O Regarding MDU Owners and Cable Companies" in TLJ Daily E-Mail Alert No. 1,669, November 5, 2007.

Perhaps, the authors of this paper mean to imply that the FCC should create by rulemaking a federal horizontal property regime for fiber connections.

Eric Schmidt is the Chairman of the Board of both the NAF and Google. This paper asserts that "this paper was not commissioned or paid for in any form by Google".

Google Data Collection on Flu Trends Concerns Privacy Advocates

11/26. Google announced in early November a web tool named "Google Flu Trends". Its web page states that "We've found that certain search terms are good indicators of flu activity. Google Flu Trends (GFT) uses aggregated Google search data to estimate flu activity in your state up to two weeks faster than traditional systems."

Google continued that it has "found that some search queries tend to be popular exactly when flu season is happening. By counting how often we see these search queries, we can estimate how much flu is circulating in various regions of the United States."

Google added that "Across each of the nine surveillance regions of the United States, we were able to accurately estimate current flu levels one to two weeks faster than published CDC reports."

On November 12, 2008, the Electronic Privacy Information Center (EPIC) and Patient Privacy Rights sent a letter [PDF] to Google in which they wrote that "there is an obvious privacy concern. Search histories reveal personal information, and medical inquiries are particularly sensitive. A search for ``flu symptoms创 could as easily be a search for ``AIDS symptoms创 or ``Ritalin创 or ``Paxil.创"

The EPIC letter states that "In the aggregate, the data reveals useful trends and should be available for appropriate uses. But if disclosed and linked to a particular user, there could be adverse consequences for education, employment, insurance, and even travel. The disclosure of such information could also have a chilling effect on Internet users who may be reluctant to seek out important medical information online if they are concerned that their search histories will be revealed to others."

The EPIC letter adds that "Census data, the quintessential form of aggregate data, was used during the Second World War to identity and then displace Japanese Americans."

The EPIC wants Google to disclose how it proposes to protect its search data from being used to identify individuals. Specifically, it asks Google "to publish the technique that Google has adopted to protect the privacy of search queries" for GFT.

Google wrote a letter [PDF] in response on November 17, 2008. It wrote that "Flu Trends uses aggregated data from hundreds of millions of searches over time. Flu Trends uses aggregations of search query data which contain no information that can identify users personally."

It also stated that "The aggregate data come from our standard search logs, and we anonymize IP addresses after 9 months and cookies after 18 months."

Jim Harper, Director of Information Policy Studies at the Cato Institute, wrote a short essay on November 26, 2008, in which he stated that "The heart of the problem lies not with the current leader in search, or any other Internet innovator. The problem lies with our unconstrained government."

That is, the government, acting pursuant to court order or Presidential authority, might "strip away Google's control of the information it collects about its users".

Harper added that Google's GFT "has nonchalantly beaten the CDC at its own game, and one can't predict how the agency will respond. CDC may seek to deputize Google as its public health agent."

He concludes that "Any agency could do this to any Internet service provider while our law about privacy/search and seizure is in such a shambles."

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In This Issue

This issue contains the following items:
  Obama Picks Holder to Be Attorney General
  Google Data Collection on Flu Trends Concerns Privacy Advocates
  NAF Paper Advocates Consumer Ownership of Fiber Connections

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

The Senate will not meet.

The House will not meet. It may meet the week of December 8.

9:30 AM - 5:00 PM. The Economic Policy Institute (EPI), Information Technology and Innovation Foundation (ITIF), University of California, and other entities will host a one day conference titled "How Will a New Administration and Congress Support Innovation In An Economic Crisis?" At 9:30 AM - 12:00 NOON there will be a panel titled "Rebuilding the U.S. Innovation System"; the speakers will be Robert Atkinson (ITIF), Nicole Biggart (UC Davis business school), Fred Block (UC Davis Department of Sociology), David Douglas (Sun Microsystems), and Victor Hwang (T2 Venture Capital). At 12:00 NOON the lunch speaker will be Michael Piore (MIT), co-author of the book [Amazon] titled "Innovation -- The Mission Dimension". At 1:00 - 2:45 PM there will be a panel titled "The Green Challenge". At 3:00 - 5:00 PM there will be a panel titled "Overcoming Political and Economic Obstacles: Can the U.S. Create a World Class Innovation System?" The speakers will be Robert Berdahl (American Association of Universities), Ron Hira (Rochester Institute of Technology and co-author of book [Amazon] titled "Outsourcing America"), Richard Nelson (Columbia University economics department), Sean O'Riain, (sociology student at the National University of Ireland), and Marc Stanley (Department of Commerce). See, notice and registration page. For more information, contact Staci Gorden at 301-652-1558. Location: University of  California, Washington Center, 1608 Rhode Island Ave., NW.

10:00 - 11:30 AM. The New America Foundation (NAF) will host an event titled "Public Diplomacy 2.0". The speakers will be James Glassman (Under Secretary of State for Public Diplomacy and Public Affairs) and Steve Clemons (NAF). The NAF's notice states that this event will address "How the State Department, with partners like YouTube, Google and Facebook, is taking advantage of social networking technology to tell America's story and to encourage young people with political grievances to find outlets for their protests other than violent extremism". The NAF will web cast this event. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

Deadline to submit nominations to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) for six different positions on the Board of Directors of the Universal Service Administrative Company (USAC). See, FCC notice [PDF]. This item is DA 08-2487 in CC Docket Nos. 96-45 and 97-21.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) regarding the process by which it awards the National Medal of Technology and Innovation. See, notice in the Federal Register, October 2, 2008, Vol. 73, No. 192, at Pages 57337-57338.

Deadline to submit comments to the Department of Commerce's (DOC) Bureau of Industry and Security (BIS) regarding its new rules pertaining to foreign made items that incorporate controlled U.S. origin items. See, notice in the Federal Register, October 1, 2008, Vol. 73, No. 191, at Pages 56964-56970.

Deadline to submit comments to the Department of Homeland Security (DHS) regarding revising the National Infrastructure Protection Plan (NIPP). See, notice in the Federal Register, November 14, 2008, Vol. 73, No. 221, at Pages 67532-67534. The DHS seeks comments on, among other things, "Publishing the Sector Specific Plans (SSPs)". There are SSPs titled Communications [132 pages and 3MB in PDF] and Information Technology [11 MB in PDF].

Tuesday, December 2

The Senate will meet in pro forma session at 10:30 AM.

10:00 - 11:30 AM. The New America Foundation (NAF) will host an event titled "A National Broadband Strategy Call to Action". The speakers will be Jim Baller (Baller Herbst Law Group), Jim Cicconi (AT&T), Larry Cohen (Communications Workers of America), Rick Whitt (Google), Ben Scott (Free Press), Kenneth Peres (Communications Workers of America), Grant Seiffert (Telecommunications Industry Association), Charles Benton (Benton Foundation), Mark Luker (Educause), Robert Atkinson (Information Technology and Innovation Foundation), Libby Beaty (National Association of Telecommunications Officers and Advisors), and Diane Duffy (Telcordia Technologies). See, notice. Location: Room 253, Russell Building, Capitol Hill.

10:00 AM. The U.S. Court of Appeals (FedCir) will consider on the briefs Cygnus Telecommunications Technology v. Worldport Communications, App. Ct. No. 2008-1351, a appeal from the U.S. District Court (NDCal) in a patent case involving personal jurisdiction and availability of injunctive relief. See, District Court opinion [PDF].

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Cordis v. Boston Scientific, App. Ct. No. 2008-1003. Location: Courtroom 402, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in O2 Micro International v. Taiwan Sumida, App. Ct. No. 2008-1411, a appeal from the U.S. District Court (EDTex) in a patent case involving inverter controllers for LCD applications. Location: Courtroom 203, 717 Madison Place, NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Monolithic Power v. O2 Micro International, App. Ct. No. 2008-1128. Location: Courtroom 203, 717 Madison Place, NW.

12:30 - 1:45 PM. The New America Foundation (NAF) will host a lunch titled "The Impact of Media on Child and Adolescent Health". The speakers will be Zeke Emanuel (National Institute of Health), Cary Gross (Yale University School of Medicine), Marcella Nunez-Smith (Yale University School of Medicine), Jim Steyer (Common Sense Media), and Michael Calabrese (NAF). See, notice and registration page. Location: Room 253 Russell Building, Capitol Hill.

2:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tokyo Keiso v. SMC, App. Ct. No. 2008-1045, a patent case regarding ultrasonic flow meters. Location: Courtroom 201, 717 Madison Place, NW.

Deadline to submit comments to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) proposed rules implementing the E-911 grant program authorized under the Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911) Act of 2004. This bill was Title I of HR 5419 (108th Congress), a large bill that also addressed spectrum relocation and universal service. It was signed into law on December 23, 2004. It is now Public Law No. 108-494. See, notice in the Federal Register, October 3, 2008, Vol. 73, No. 193, at Pages 57567-57580.

Deadline to submit comments to the Copyright Office (CO) in response to its notice of inquiry in its fourth triennial review of exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). See, notice in the Federal Register, October 6, 2008, Vol. 73, No. 194, at Pages 58073-58079, and story titled "Copyright Office Announces 4th Triennial Review of DMCA Exemptions" in TLJ Daily E-Mail Alert No. 1,839, October 7, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Rural Cellular Association's (RCA) May 20, 2008, petition for rulemaking [25 pages in PDF] regarding "the widespread use and anticompetitive effects of exclusivity arrangements between commercial wireless carriers and handset manufacturers" and "rules that prohibit such arrangements". See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63127-63128. This proceeding is RM No. 11497.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the Rural Telecommunications Group's (RTG) July 16, 2008, petition for rulemaking [22 pages in PDF] regarding imposing a spectrum cap for commercial terrestrial spectrum. The RTG requests that the FCC write rules that provide that no licensee of commercial terrestrial wireless spectrum below 2.3 GHz, including all parties under common control, should be permitted to have an attributable interest in more than 110 megahertz of licensed spectrum with any significant overlap in any county. See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63128-63129. This proceeding is RM No. 11498.

Wednesday, December 3

8:30 AM - 5:00 PM. Day one of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66844. Location: George Washington University, Cafritz Conference Center, 800 21st St., NW.

9:00 AM - 4:00 PM. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee will meet. The speakers will include Hugo Teufel (Chief Privacy Officer), Catherine Papoi (Deputy Chief Freedom of Information Act Officer), and Michael Smith (acting Director of Federal Network Security). See, notice in the Federal Register, November 19, 2008, Vol. 73, No. 224, at Page 69668. Location: Galleries I and II, Hilton Arlington Hotel, 950 North Stafford St., Arlington, VA.

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

12:00 NOON - 1:30 PM. The DC Bar Association (DCBA) will host a closed event titled "Wiring Buildings: Next Steps For The Communications And Real Estate Industries". The speakers will be Steven Morris (NCTA), Yaron Dori (Covington & Burling), Natalie Roisman (Wilkinson Barker Knauer), Gerard Lederer (Miller & Van Eaton), Michael Schooler (NCTA), and Hank Hultquist (AT&T). The price to attend ranges from $10 to $15. For more information, contact 202-626-3463. See, notice. The DCBA has a record of excluding persons from its events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

2:00 - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Information Network Advisory Committee will meet by teleconference. The listen only call in number is 1-866-222-9044; the PIN is 78982. The agenda includes a discussion of the "Next Generation of the Homeland Security Information Network". See, notice in the Federal Register, November 19, 2008, Vol. 73, No. 224, Pages 69668-69669.

Day one of a three day event hosted by the U.S. Chamber of Commerce titled "One Voice for Trade; International Trade Leadership Program". The price to attend ranges from $175-$225. See, notice. Location: U.S. Chamber, 1650 H St., NW.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the FNPRM portion of its November 5, 2008, Order on Remand regarding universal service, IP enabled services, intercarrier compensation, and other topics. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66821-66830. The FCC adopted and released this Order on Remand and Report and Order and Further Notice of Proposed Rulemaking [430 pages in PDF] on November 5. FCC Chairman Kevin Martin offered this explanation in his statement associated with this item: "Today we tell the U.S. Court of Appeals for the D.C. Circuit and the Federal-State Joint Board on Universal Service that, after years of deliberation, we are still unready to move forward with comprehensive reform of intercarrier compensation and universal service. Instead, we issue another open-ended Further Notice of Proposed Rulemaking on a variety of approaches for comprehensive reform, and my colleagues promise to act on it by December 18." This item is FCC 08-262 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109, WC Docket No. 06-122, and CC Docket No. 99-200, CC Docket No. 96-98, and CC Docket No. 01-92, CC Docket No. 99-68, and WC Docket No. 04-36.

Thursday, December 4

8:30 AM - 5:00 PM. Day two of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66844. Location: George Washington University, Cafritz Conference Center, 800 21st St., NW.

9:30 AM - 12:30 PM. The National Telecommunications and Information Administration's (NTIA) Spectrum Management Advisory Committee (SMAC) will meet. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66845. This notice states that the SMAC "will consider a transition report and any remaining reports of its Technical Sharing Efficiencies and Operational Sharing Efficiencies subcommittees", and receive public comments. Location: Room 5855 (Secretary's Conference Room), 1401 Constitution Ave.,  NW.

Day two of a three day event hosted by the U.S. Chamber of Commerce titled "One Voice for Trade; International Trade Leadership Program". The price to attend ranges from $175-$225. See, notice. Location: U.S. Chamber, 1650 H St., NW.

Friday, December 5

8:00 AM - 5:15 PM. Day three of a three day meeting of the National Institute of Standards and Technology's (NIST) Information Security and Privacy Advisory Board (ISPAB). See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Page 66844. Location: George Washington University, Cafritz Conference Center, 800 21st St., NW.

9:30 AM. The House Financial Services Committee (HFSC) will hold a hearing regarding government protection of U.S. auto companies. See, notice. Location: Room 2128, Rayburn Building.

9:30 AM - 4:45 PM. The Federal Trade Commission (FTC) will hold a hearing titled "The Evolving IP Marketplace". See, FTC notice and notice in the Federal Register, November 21, 2008, Vol. 73, No. 226, at Pages 70645-70648. See also, story titled "FTC to Hold Hearings on IP Law" in TLJ Daily E-Mail Alert No. 1,853, November 5, 2008. Location: FTC, 601 New Jersey Ave., NW.

10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Tafas v. Dudas, App. Ct. No. 2008-1352, an appeal from the U.S. District Court (EDVa) in a case regarding the rulemaking authority of the U.S. Patent and Trademark Office (USPTO). The District Court wrote in its opinion that "Because the USPTO's rulemaking authority under 35 U.S.C. 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as ``otherwise not in accordance with law创 and ``in excess of statutory jurisdiction [and] authority.创 5 U.S.C. 706(2)." (Brackets in original. Hyperlinks added.) Location: Courtroom 203, 717 Madison Place, NW.

Day three of a three day event hosted by the U.S. Chamber of Commerce titled "One Voice for Trade; International Trade Leadership Program". The price to attend ranges from $175-$225. See, notice. Location: U.S. Chamber, 1650 H St., NW.

Monday, December 8

The House may meet. It may take of legislation to protect GM, Ford and Chrysler from competition and failure.

9:00 AM - 3:00 PM. The Office of the U.S. Trade Representative's (OUSTR) Industry Trade Advisory Committee on Small and Minority Business (ITAC-11) will meet. The meeting will be closed to the public from 9:00 AM through 12:30 PM. It will be open from 1:00 through 3:00 PM. See, notice in the Federal Register, November 20, 2008, Vol. 73, No. 225, at Page 70388. Location: Department of Commerce, 14th Street and Constitution Ave., NW.

11:00 AM. The Supreme Court will hear oral argument in Pacific Bell Telephone v. Linkline Communications, Sup. Ct. No. 07-512. This is a petition for writ of certiorari to the U.S. Court of Appeals (9thCir) in a case involving application of Section 2 of the Sherman Act to telecommunications. See, September 11, 2007, divided opinion [22 pages in PDF] of the Court of Appeals, and story titled "Supreme Court Grants Certiorari in Pacific Bell v. Linkline" in TLJ Daily E-Mail Alert No. 1,786, June 25, 2008.

12:00 NOON - 1:00 PM. The Heritage Foundation will host a panel discussion titled "Under Attack: Today's Cyber Threat". The speakers will be Heli Tiirmaa-Klaar (Estonian Ministry of Defense), John Tkacik (Heritage), Frank Garcia (House Intelligence Committee staff), Steve Bucci (IBM), and Peter Brookes (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Homeland Security and Emergency Communications Committee will host a brown bag lunch titled "Meet the FCC's Homeland Security & Public Safety Bureau". The speakers will be Derek Poarch (Chief of the FCC's Homeland Security & Public Safety Bureau) and others. Location: Holland & Knight, 2099 Pennsylvania Ave., NW.

Effective date of the Copyright Office's (CO) interim regulation to clarify the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries (DPDs). See, notice in the Federal Register, November 7, 2008, Vol. 73, No. 217, at Pages 66173-66182. See also, story titled "Copyright Office Releases Interim Section 115 Digital Phonorecord Delivery Regulation" in TLJ Daily E-Mail Alert No. 1,854, November 10, 2008.

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding its collection of information in statutory invention registrations. See, notice in the Federal Register, October 7, 2008, Vol. 73, No. 195, at Pages 58572-58573.