|DOJ Obtains Indictment
Under Federal Anti-Pretexting Statute
12/30. A grand jury of the U.S.
District Court (NDOhio) returned an indictment that charges Vaden
Anderson with violation of
18 U.S.C. § 1039(a)(3) in connection with his
obtaining confidential telephone records information from Sprint
He is accused of serving upon Sprint Nextel a fictitious U.S. District
Court subpoena for confidential telephone records.
Section 1039(a)(3) pertains to "Fraud and
related activity in connection with obtaining confidential phone records
information of a covered entity".
Subsection (a) provides as follows:
"Whoever, in interstate or foreign commerce, knowingly and
intentionally obtains, or attempts to obtain, confidential phone records
information of a covered entity, by
(1) making false or fraudulent statements or representations to an
employee of a covered entity;
(2) making such false or fraudulent statements or representations
to a customer of a covered entity;
(3) providing a document to a covered entity knowing that such
document is false or fraudulent; or
(4) accessing customer accounts of a covered entity via the
Internet, or by means of conduct that violates section 1030 of this title,
without prior authorization from the customer to whom such confidential
phone records information relates;
shall be fined under this title, imprisoned for not more than 10 years, or
This prohibition was enacted in
HR 4709 (106th Congress), the "Telephone Records and Privacy
Act of 2006". This act was signed into law on January 12,
2007. It is now Public Law No. 109-476.
It was enacted in the wake of Congressional investigations of Hewlett
Packard's pretexting scandal.
The Department of Justice (DOJ)
stated in a
release that this is the "first Indictment" under this
TLJ spoke with the prosecuting attorney, Robert Kern. He added that a
criminal information charging violation of Section 1093 was issued three weeks
ago in the Northern District of Alabama.
While the federal pretexting statute is new, and this is the first indictment
under this statute, it should be noted that various activities in the nature of
pretexting are also subject to criminal prosecution under other federal
statutes, criminal prosecution under state laws, and civil lawsuits.
See, stories titled "Summary of Existing Federal Laws Related to
Pretexting", "Federal Criminal Statutes Related to
Pretexting", "Civil and Administrative Actions by Federal
Agencies Related to Pretexting", "Federal Private Rights of
Action Related to Pretexting", and "FCC License Revocation,
Renewal and Transfer Proceedings" in
E-Mail Alert No. 1,463, October 6, 2006.
See also, stories titled "California Charges Patricia Dunn and
Others With Four Felonies", "Cingular Sues Pretexting Firm
Involved in HP Scandal", and "Verizon Wireless Files John Doe
Complaint Against HP's Pretexters" in
E-Mail Alert No. 1,462, October 5, 2006.
This case is U.S.A. v. Vaden Anderson, U.S. District Court for
the Northern District of Ohio, Eastern Division, D.C. No. 1:08CR528, Judge
Resource Center Releases List of Data Breaches in
1/6. The Identity Theft Resource
Center (ITRC) released a
list [201 pages in PDF] of data breaches reported in 2008. The ITRC list
states that 656 breaches were reported by news media and others in 2008. The
ITRC estimates that the total number of records exposed was 35,691,255.
The ITRC list does not attempt to estimate the number of records that were
used for illegal purposes. The ITRC list also includes short descriptions of
each data breach. Many of these descriptions suggest an intent to make illegal
use of data, such as incidents involving theft of data by employees, hacking of
computer systems, and card skimming.
However, other incidents described in this ITRC list may not have been
associated with illegal use of the data, such as lost or stolen laptops or
storage devices, packages lost in the mail, and failure to shred discarded paper
The ITRC receives grant funding from the Department of Justice (DOJ).
Numerous states already have laws regarding notification of data breaches.
The 111th Congress is likely to consider legislation that might
contain a national data breach notification standard, a preemption of some state
laws, and other provisions related to information privacy and security.
|District Court Issues
Modified Final Judgment in US v. Bell
12/30. The U.S. District Court (DC)
issued a Modified
Final Judgment (MFJ) in U.S. v. Bell Atlantic, D.C. No. l:99CV01119
(EGS). The District Court issued it original judgment in April of 2000. This MFJ is
a result of Verizon's acquisition of Alltel.
Bell Atlantic and GTE announced their merger in 1998. The merged company also
changed its name to Verizon Communications.
The U.S. Department of Justice (DOJ) approved this merger, subject to
divestitures, in 1999. It filed its initial complaint and proposed consent
decree in May of 1999. See, DOJ
It filed a supplemental complaint and revised proposed consent decree in
December of 1999. See, DOJ
The District Court entered its final judgment on April 18, 2000.
(The FCC continued to sit on this matter, while it extracted concessions,
many of which were unrelated to antitrust analysis. It then adopted and released
Memorandum Opinion and Order [226 pages in PDF] approving this merger on
June 16, 2000. That order is FCC 00-221 in CC Docket No. 98-184. The FCC imposed
25 more conditions.)
The occasion for the just issued MFJ is Verizon's acquisition of Alltel. The
DOJ approved this transaction, subject to divestitures, in October of 2008. See,
The MFJ states that "the essence of this Modified Final Judgment is prompt
and certain divestiture of certain wireless businesses".
It adds that the DOJ "requires that defendants make certain divestitures of
such licenses and assets for the purpose of ensuring that competition is not
substantially lessened in any relevant market for mobile wireless
telecommunications services in New Mexico, Ohio and South Carolina".
(The FCC released its
order [129 pages in PDF] on the Alltel acquisition in November of 2008. That
order is FCC 08-258 in WT Docket No. 08-95.)
1/9. President elect Obama announced that he will appoint Admiral
Dennis Blair to be Director of National Intelligence. See, Obama
1/9. President elect Obama announced that he will appoint Leon
Panetta to be Director of the Central Intelligence Agency (CIA). See,
Obama transition office
1/8. President elect Obama announced that he will appoint
Charles Johnson to be General Counsel at the Department of Defense
(DOD). He is a partner in the New York City office of the law firm of
Paul Weiss. See, Obama transition
1/6. President Bush announced his intent to appoint Fred Fielding
and others to be Members of the International Centre for Settlement of
Investment Disputes, for six year terms expiring on June 19, 2014. See,
White House news office
1/8. The National Telecommunications
and Information Administration (NTIA) issued a
release regarding the status of its TV converter box program.
the acting head of the NTIA, stated that "While we have reached a temporary limit
on the number of coupons we can issue, we expect to be able to issue several
million additional coupons during the course of the program, and we are working
with Congress to make that happen."
1/8. The U.S. District Court
(DC) issued an
Memorandum Opinion and Order [PDF] in FTC v. Whole Foods, D.C.
No. 07-1021 (PLF). Whole Foods sells
groceries, not technology. However, this and related proceedings also pertain to
the Federal Trade Commission's (FTC) judicial
and administrative antitrust procedures, and how relevant markets are defined
for the purposes of antitrust analysis. These topics will impact the antitrust
environment in which technology companies operate. See also, stories titled
"DC Circuit Reverses in FTC v. Whole Foods" in
TLJ Daily E-Mail
Alert No. 1,802, July 29, 2008, and "Whole Foods Files Complaint Against
FTC" in TLJ Daily E-Mail Alert No. 1,871, December 11, 2008.
1/6. The U.S. Court of Appeals
(FedCir) issued its divided
opinion [PDF] in
Vehicle IP v. General Motors, a patent infringement case regarding
technology for mobile navigation systems. The Court of
Appeals affirmed the District Court summary judgment of non-infringement. The
Court of Appeals designated this opinion "nonprecedential". This case is
Vehicle IP, LLC v. General Motors Corporation, Onstar Corporation, Cellco
Partnership, and Networks in Motion, Inc., U.S. Court of Appeals for the
Federal Circuit, App. Ct. No. 2008-1259, an appeal from the U.S.
District Court for the Western District of Wisconsin, D.C. No. 07-CV-345, Judge
Barbara Crabb presiding. Judge Prost wrote the opinion of the Court of Appeals,
in which Judge Bryson joined. Judge Mayer wrote a dissent.
|About Tech Law
Tech Law Journal publishes a free access web site and
a subscription e-mail alert. The basic rate for a subscription
to the TLJ Daily E-Mail Alert is $250 per year for a single
recipient. There are discounts for subscribers with multiple
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 two months after writing.
For information about subscriptions, see
subscription information page.
Tech Law Journal now accepts credit card payments. See, TLJ
card payments page.
TLJ is published by
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.
Copyright 1998-2008 David Carney. All rights reserved.
This issue contains the following items:
• DOJ Obtains Indictment Under Federal Anti-Pretexting Statute
• Identity Theft Resource Center Releases List of Data Breaches in
• District Court Issues Modified Final Judgment in US v. Bell
|Washington Tech Calendar
New items are highlighted in red.
The House will meet at 9:00 AM. See, Rep. Hoyer's
schedule for January 9.
The Senate will meet at 10:00 AM.
10:00 AM. The U.S. Court of
Appeals (FedCir) will hear oral argument in RFID Tracker v. Wal-Mart
Stores, App. Ct. No. 2008-1412. Location: Courtroom 402, 717 Madison
12:00 - 1:30 PM. Google and the
New America Foundation (NAF) will
host a panel discussion titled "Wiki White House: Can Obama Use Technology
to Transform Government?". The speakers will be Craig Newmark (Craigslist),
Mindy Finn (former Director of E-Strategy for Mitt Romney for President),
Ellen Miller (Sunlight Foundation), Sascha Meinrath (NAF), and Nicholas
Thompson (NAF). The NAF states in its
for this event that it is full. Location: Google, 1101 New York Ave., NW.
12:30 - 2:30 PM. The Department of Homeland Security's (DHS) Homeland
Security Advisory Council (HSAC) will hold a closed meeting. See,
notice in the
December 30, 2008, Vol. 73, No. 250, at Pages 79894-79895. Location: DHS,
Nebraska Avenue Complex.
Effective date of the
U.S. Patent and Trademark Office's (USPTO)
rules of practice amendments that adjust the transmittal and search fees for
international applications filed under the Patent Cooperation Treaty (PCT).
See, notice in
the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its Second Further Notice of Proposed Rule
Making (2ndFNPRM) regarding rules to protect AM stations from the potential
effects of nearby tower construction. The FCC adopted this 2ndFNPRM on
September 24, 2008, and released the
text [28 pages in PDF] on September 26, 2008. It is FCC 08-228 in MM
Docket No. 93-177. See,
notice in the
Federal Register, December 11, 2008, Vol. 73, No. 239, at Pages 75376-75381.
Deadline to submit initial comments to the Federal Communications
Commission (FCC) in response to its notice of proposed rulemaking (NPRM)
regarding creating a new replacement digital television translator service
that will permit full service television stations to continue to provide
service to viewers within their coverage area who have lost service as a
result of those stations' digital transition. The FCC adopted this item on
December 22, 2008, and released the
text [14 pages in PDF] on December 23, 2009. It is FCC 08-278 in MB Docket
No. 08-253. See,
notice in the Federal Register, January 2, 2009, Vol. 74, No. 1, at Pages
8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash
broadbandcensus dot com] will host a breakfast event titled "What Will
Broadband Do to the Universal Service Fund?" The speakers will include
Greg Rhode (E-Copernicus/E9-1-1 Institute). For more information, contact Drew
Clark at drew at broadbandcensus dot com or 202-580-8196. Breakfast begins at
8:00 AM. The program begins at 8:40 AM. The price to attend these monthly
events is $45. These events are open to the public. Location:
Old Ebbitt Grill, 675 15th St., NW.
9:00 - 10:30 AM. The
Information Technology and Innovation Foundation (ITIF) will host panel
discussion titled "Globalization and Technology Standards: The Case for
Expanded U.S. Leadership". The speakers will be Rob Atkinson (ITIF),
Donald Purcell (Center for Global Standard Analysis), Jeff Weiss (Office of
the U.S. Trade Representative), and Mary Saunders (Department of Commerce). A
light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.
11:00 AM - 12:00 PM. The Federal Communications Commission's (FCC)
Advisory Committee for the 2011 World Radiocommunication Conference will
meet. See, notice
in the Federal Register: December 22, 2008, Vol. 73, No. 246, at Page 78358.
Location: FCC, Commission Meeting Room, 445 12th St., SW.
12:15 - 1:30 PM. The
Federal Communications Bar Association's (FCBA)
Mass Media Practice Committee will host a brown bag lunch titled "Understanding
BIA/Arbitron Reports and the Local Radio Ownership Rule". The speakers
will be Mark Fratrik (BIA Financial Network), John Pelkey (Garvey Schubert
Barer), and Bill Getz (Carl T. Jones Corp.). See,
notice and registration page. Location: National Association of
Broadcasters, 1771 N St., NW.
5:00 - 7:00 PM. The Center for Democracy and
Technology's (CDT) Internet Caucus will host a reception and technology
demonstration associated with its January 14 event titled "State of the Net
8:30 AM. The Center for Democracy and
Technology's (CDT) Internet Caucus will host an event titled "State of
the Net Conference". See,
notice. Location: Hyatt
Regency Capitol Hill.
10:00 - 11:00 AM. Chris Essid, Director of the Department of Homeland
Office of Emergency Communications will give a speech on "latest news and
developments on public safety communications and related initiatives". See,
notice. Location: FCC, Commission Meeting Room, TW-C305.
RESCHEDULED FROM JANUARY 8. 9:30 AM. The
Senate Judiciary Committee
(SJC) may hold a hearing on the likely nomination of Eric Holder
to be Attorney General in the Obama administration. See,
notice. The SJC will webcast this hearing. Location: Room 325,
10:00 AM. The
Senate Banking Committee will hold a hearing on several likely
nominees of President elect Obama:
Schapiro (CEO of the Financial
Industry Regulatory Authority) to be Chairman of the
Securities and Exchange Commission
Romer (UC Berkeley) to be Chairman of the Council of Economic
Austan Goolsbee (University of Chicago) to be a member of the
Rouse (Princeton) to be a member of the CEA, and
Daniel Tarullo (Georgetown University law school) to be a member
of the Federal Reserve Board
notice. Location: Room 538, Dirksen Building.
10:00 AM. The Senate
Homeland Security and Government Affairs Committee will hold
hearing on President elect Obama's likely nomination of Janet
Napolitano to be Secretary of Homeland Security. See,
notice. Location: Room 342, Dirksen Building.
10:00 AM. The Federal Communications Commission (FCC)
might hold an event titled "Open Meeting". The agenda includes
adoption of rules to implement S 3663
WW], "Short-term Analog Flash and Emergency Readiness Act",
and annual performance awards for career Senior Executive Service personnel. The event
will also include reports from FCC Bureau chiefs. Location: FCC,
Commission Meeting Room, 445 12th St., SW.
5:00 PM. Deadline to submit applications to the
National Telecommunications and Information
Administration (NTIA) for a grant for the Pan-Pacific Education and
Communications Experiments by Satellite (PEACESAT) Program. See,
notice in the Federal Register, December 5, 2008, Vol. 73, No. 235, at
12:15 - 1:30 PM. The
Federal Communications Bar Association's (FCBA)
Engineering and Technical Practice and International Telecommunications
Practice Committee will host a brown bag lunch titled "Satellite 201: So
You Want to Launch a Satellite? Understanding the International and Domestic
Regulatory Considerations". The speakers will be Tom Tycz (Goldberg Godles
Wiener & Wright) and others. For more information, contact Christy Hammond
chammond at wileyrein dot com or 202-719-7365. Location: Wiley Rein, 10th
floor, 1750 K St., NW.
Deadline to submit comments to the
National Institute of Standards and Technology's
(NIST) Computer Security Division (CSD)
SP 800-57 Part 3 [103 pages in PDF] titled "Recommendation for Key
Management, Part 3 Application-Specific Key Management Guidance".
Deadline to submit reply comments to the
Office of the U.S. Trade Representative (OUSTR)
regarding the operation, effectiveness, and implementation of and compliance
with trade agreements regarding telecommunications products and services,
including the World Trade Organization (WTO) General Agreement on Trade in
Services, the North American Free Trade Agreement (NAFTA), free trade
agreements (FTAs) with Australia, Bahrain, Chile, Morocco, and Singapore, the
Dominican Republic-Central America-United States FTAs. See,
notice in the
Federal Register, November 25, 2008, Vol. 73, No. 228, at Page 71707-71708.
Effective date of the U.S. Patent and
Trademark Office's (USPTO) changes to its Trademark Rules of Practice.
These changes pertain to applications, intent to use documents, amendments to
classification, requests to divide, and post registration practice. See,
notice in the
Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67759-67776.