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January 8, 2009, Alert No. 1,880.
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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 Nextel.

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 both".

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 statute.

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 TLJ Daily 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 TLJ Daily 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 Boyko presiding.

Identity Theft Resource Center Releases List of Data Breaches in 2008

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 records.

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 Atlantic

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 release. It filed a supplemental complaint and revised proposed consent decree in December of 1999. See, DOJ release. 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 its 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, DOJ release.

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.)

People and Appointments

1/9. President elect Obama announced that he will appoint Admiral Dennis Blair to be Director of National Intelligence. See, Obama transition office release.

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 release.

1/8. President elect Obama announced that he will appoint Jeh 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 office release.

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 release.

More News

1/8. The National Telecommunications and Information Administration (NTIA) issued a release regarding the status of its TV converter box program. Meredith Baker, 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.

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In This Issue

This issue contains the following items:
  DOJ Obtains Indictment Under Federal Anti-Pretexting Statute
  Identity Theft Resource Center Releases List of Data Breaches in 2008
  District Court Issues Modified Final Judgment in US v. Bell Atlantic

Washington Tech Calendar
New items are highlighted in red.
Friday, January 9

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 Place, NW.

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 notice for this event that it is full. Location: Google, 1101 New York Ave., NW.

Monday, January 12

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 66754-66759.

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 61-67.

Tuesday, January 13

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 Conference". Location?

Wednesday, January 14

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 Security's (DHS) 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.

Thursday, January 15

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, Russell Building.

10:00 AM. The Senate Banking Committee will hold a hearing on several likely nominees of President elect Obama: Mary Schapiro (CEO of the Financial Industry Regulatory Authority) to be Chairman of the Securities and Exchange Commission (SEC), Christina Romer (UC Berkeley) to be Chairman of the Council of Economic Advisors (CEA), Austan Goolsbee (University of Chicago) to be a member of the CEA, Cecilia 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 (FRB). See, 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 [LOC | 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 Pages 74146-74148.

Friday, January 16

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) regarding its 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.