Tech Law Journal Daily E-Mail Alert
March 19, 2009, Alert No. 1,915.
Home Page | Calendar | Subscribe | Back Issues | Reference
6th Circuit Delays Decision in Constitutional Challenge to Ohio Indecency Statute

6/18. The U.S. Court of Appeals (6thCir) issued an order and opinion [PDF] in American Booksellers Foundation for Free Expression v. Strickland certifying a question of law to the Supreme Court of the state of Ohio.

The plaintiffs have challenged the constitutionality, under the 1st Amendment and commerce clause, of a state indecency statute as it applies to internet communications. The District Court issued an injunction.

The Ohio legislature wrote a hideously vague statute. It regulates an "electronic method of remotely transmitting information", but provides no clarification. Faced with a District Court injunction, the state's attorney general argues to the Court of Appeals that the statute reaches such things e-mail and instant messaging, but not the web generally.

The Court of Appeals has yet to decide this case. It has merely certified questions of state law to the state supreme court.

The state of Ohio has a statute that bans dissemination to juveniles of material that is obscene or harmful to juveniles. It reaches electronic communications.

It provides, in part, that "No person, with knowledge of its character or content, shall recklessly ... Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, ... any material or performance that is obscene or harmful to juveniles".

It further provides, at Ohio Revised Code 2907.31(D)(1), that "A person directly sells, delivers ... to a juvenile ... in violation of this section by means of an electronic method of remotely transmitting information if the person knows or has reason to believe that the person receiving the information is a juvenile".

The American Booksellers Foundation for Free Expression and other publishers, retailers, and web site operators filed a complaint in the U.S. District Court (SDOhio) against the Governor and Attorney General of Ohio alleging that Ohio's statute, as applied to internet communications, violates the 1st Amendment and the commerce clause.

The District Court enjoined enforcement of the statute as applied to internet communications. It held that the statute, as applied to internet communications, is unconstitutionally overbroad and fails the strict scrutiny test. However, it rejected the commerce clause challenge. See, opinion published at 512 F. Supp. 2d 1082.

Both sides appealed.

Ohio argues to the Court of Appeals that the statute does not reach web communications. Rather, it only goes to e-mail, instant messaging, and directed communications.

The questions certified are these:

    "(1) Is the Attorney General correct in construing O.R.C. 2907.31(D) to limit the scope of 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?

    (2) Is the Attorney General correct in construing O.R.C. 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?"

This case is American Booksellers Foundation for Free Expression, et al. v. Ted Strickland, et al., U.S. Court of Appeals for the 6th Circuit, App. Ct. Nos. 07-4375 and 07-4376, appeals from the U.S. District Court for the Southern District of Ohio at Dayton, D.C. No. 02-00210, Judge Walter Rice presiding.

Senate Judiciary Committee Delays Consideration of Patent Reform Act

3/19. The Senate Judiciary Committee's (SJC) agenda for its business meeting scheduled for Thursday, March 26, 2009, lists consideration of S 515 [LOC | WW], the "Patent Reform Act of 2009". Its agenda for its meeting Thursday, March 19, 2009, also listed this bill. It was not considered.

The SJC rarely takes up all of the items on its published agendas. SJC rules enable members to delay consideration of bills.

Sen. Patrick Leahy (D-VT), the Chairman of the SJC, and sponsor of S 515, wrote in his statement that "The way to a resolution is not to stall this process now, but to amplify our efforts. I appreciate those who are working cooperatively and collaboratively as we devise language that will allow us to respond to the growing consensus that we must modernize our patent laws."

"The most difficult issue remains the calculation of damages." Sen. Leahy added that juries "would benefit from more guidance" on damages than the current 15 factors.

Free Press Paper Attacks Use of Deep Packet Inspection

3/19. The Free Press released a paper [18 pages in PDF] titled "Deep Packet Inspection: The End of the Internet As We Know It?". The authors are Chris Riley and Ben Scott of the Free Press.

It states that "electronics manufacturers have developed so-called Deep Packet Inspection (DPI) technology capable of tracking Internet communications in real time, monitoring the content, and deciding which messages or applications will get through the fastest".

It explains that internet content is transmitted by breaking it down into packets, which contain header information (source and destination information for routing purposes), and data. The paper states that previously internet communications were processed using only header information. But now, "DPI technology opens and reads the data field in real time".

The paper acknowledges that DPI is useful in dealing with viruses, worms, and denial of service attacks.

However, the paper states that DPI also now enables "revenue-generating capabilities through discrimination". It adds that while "early uses of real-time DPI by ISPs have been geared toward targeted advertising and reducing congestion", but that it also threatens "Net Neutrality" and privacy.

The paper then reviews four examples of what it argues is abuse of DPI.

The first is the network management practices of Comcast to which the Federal Communications Commission (FCC) directed its August 2008 order [67 pages in PDF]. That order is FCC 08-183 in Docket No. 07-52. See also, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

The others three involve NebuAd, Cox Communications, and ZillionTV.

The paper argues that the real purpose of DPI and network management is " real-time monitoring and control of Internet traffic". DPI enables network owners to "monetize the Internet" and create "new revenue streams". This, the paper argues, is bad for consumers, and "might mean the end of the Internet as we know it".

See also, June 2008 Free Press paper [18 pages in PDF] titled "NebuAd and Partner ISPs: Wiretapping, Forgery and Browser Hijacking", and story titled "Free Press and Public Knowledge Allege More ISP Bad Behavior" in TLJ Daily E-Mail Alert No. 1,782, June 18, 2008.

Obama Picks Cam Kerry for General Counsel at Department of Commerce

3/19. President Obama announced his intent to nominate Cameron Kerry to be General Counsel at the Department of Commerce. See, White House new office release.

He is a partner in the Boston, Massachusetts office of the law firm of Mintz Levin. His law firm bio states that he "has represented cable industry and other communications clients before federal and state courts, the Federal Communications Commission, state regulatory bodies, and municipalities in litigation under the Federal Communications Act and other laws, rate regulation proceedings, franchising and renewal proceedings, FCC rulemakings and licensing; regulatory aspects of mergers and acquisitions, and state common carrier proceedings." Mintz Levin represents Cablevision Systems Corporation.

Sen. John Kerry (D-MA), a member of the Senate Commerce Committee (SCC), is his brother.

The CampaignMoney.com web site calculates that his total federal campaign contributions in the 2008 election cycle were $43,100. The main recipients of his support were the Obama campaign, the Democratic National Committee, and the Democratic Senatorial Campaign Committee.

The DOC includes many technology related components, including the National Telecommunications and Information Administration (NTIA), National Institute of Standards and Technology (NIST), and U.S. Patent and Trademark Office (USPTO).

People and Appointments

3/19. The Senate confirmed Elena Kagan to be Solicitor General at the Department of Justice (DOJ) by a vote of 61-31. See, Roll Call No. 107.

3/19. The Senate Judiciary Committee (SJC) approved the nomination of Dawn Johnsen to be Assistant Attorney General in charge of the Department of Justice's (DOJ) Office of Legal Counsel (OLC).

3/19. President Obama nominated April Boyd to be an Assistant Secretary of Commerce for legislative affairs. See, White House new office release.

More News

3/19. Ron Kirk, the head of the Office of the U.S. Trade Representative (OUSTR), met with Catherine Ashton, the EU Trade Commissioner. The OUSTR released a statement that says that the two agreed on the importance of reaching a "balanced outcome" to Doha negotiations, among other things.

3/19. The Federal Communications Commission (FCC) released a tentative agenda [PDF] for its meeting scheduled for April 8, 2009.

3/18. The Department of Justice's (DOJ) Antitrust Division filed a motion in limine and memorandum in support [39 pages in PDF] with the U.S. District Court (DSC) in US v. CMLS. This is an antitrust action involving real estate brokers, in which one allegation is that restrictions on out of area brokers blocks internet and technology based competition. A motion in limine seeks to limit the introduction of evidence at trial. See also, story titled "Antitrust Division Files Brief in US v. CMLS", TLJ Daily E-Mail Alert No. 1,902, February 23, 2009. This case is USA v. Consolidated Multiple Listing Services, Inc., U.S. District Court for the District of South Carolina, Columbia Division, D.C. No. 3:08-CV-01786-SB, Judge Sol Blatt presiding.

About Tech Law Journal

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 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 two months after writing.

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

Solution Graphics

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2009 David Carney. All rights reserved.

In This Issue

This issue contains the following items:
  6th Circuit Delays Decision in Constitutional Challenge to Ohio Indecency Statute
  Senate Judiciary Committee Delays Consideration of Patent Reform Act
  Free Press Paper Attacks Use of Deep Packet Inspection
  Obama Picks Cam Kerry for General Counsel at Department of Commerce

Correction

The story titled "9th Circuit Addresses Trademark Infringement in Domain Names" in TLJ Daily E-Mail Alert No. 1,914, March 18, 2009, incorrectly stated in the final paragraph that "Judge Johnnie Rawlinson wrote the opinion of the Court of Appeals, in which Judge Betty Fletcher joined." In fact, Judge Betty Fletcher wrote the opinion of the Court of Appeals, in which Judge Johnnie Rawlinson joined.

Washington Tech Calendar
New items are highlighted in red.
Friday, March 20

The House will not meet.

The Senate will not meet.

12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will hold a brown bag lunch titled "Roundtable discussion with FCC and NTIA Technical Offices". The speakers will be Edward Davison (Deputy Chief of the NTIA's Office of Spectrum Management), Julius Knapp (Chief of the FCC's Office of Engineering and Technology), Karl Nebbia (Chief of the NTIA's OSM), and Ronald Repasi (Deputy Chief of the FCC's OET). For more information, contact Christy Hammond at 202-719-7365 or chammond at wileyrein dot com. Location: Wiley Rein, 10th floor, 1750 K St., NW.

1:00 - 2:30 PM. The Center for American Progress (CAP) will host a panel discussion titled "Opening Doors: Finding the Keys to Open Government". The speakers will be Ari Schwartz (Center for Democracy and Technology), Patrice McDermott, Dan Chenok, Katherine McFate, and Beth Noveck (New York law school). See, notice. Location: CAP, 10th floor, 1333 H St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 79. This is proceeding is AU Docket No. 09-21 (122 FM broadcast construction permits). See, February 27, 2009, Public Notice (DA 09-422), and notice in the Federal Register, March 11, 2009, Vol. 74, No. 46, at Pages 10578-10581.

Monday, March 23

The House will meet at 12:30 PM.

The Senate will meet at 2:00 PM.

9:30 - 11:00 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Do or Die for the Doha Trade Talks". The speakers will be Claude Barfield (AEI), Aaditya Mattoo (World Bank), Christopher Padilla (C&M International), Robert Vastine (Coalition of Service Industries), and Philip Levy (AEI). See, notice. Location: AEI, 1150 17th St., NW.

9:30 AM - 1:30 PM. The New America Foundation (NAF) and the CTIA will host an event titled "The Wireless Future of Health IT". The speakers may include Craig Barrett (Intel), Thomas Kalil (Associate Director for Policy, White House Officer for Science and Technology Policy), Vince Kuraitis (Better Health Technologies), Max Stachura (Medical College of Georgia), Paul Meyer (Voxiva, Inc.), Douglas McClure (Center for Connected Health Care), Carolyn Brandon (CTIA), Julie Barnes (NAF), and Michael Calabrese (NAF). Lunch will be served. See, NAF notice. Location: Room G-106 Dirksen Building, Capitol Hill.

10:00 AM. The National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) will hold the third in a series of four meetings regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721. Location: Department of Commerce, 1401 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host an event titled "Tax Havens Should be Celebrated, Not Persecuted". The speakers will be Daniel Mitchell, author of book [Amazon] titled "Global Tax Revolution: The Rise of Tax Competition and the Battle to Defend It", and Richard Rahn, a former member of the Cayman Islands Monetary Authority. See, notice. Location: Room B-340, Rayburn Building, Capitol Hill.

Tuesday, March 24

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Morris Communications, Inc v. FCC, App. Ct. No. 08-1080. Judges Ginsburg, Henderson and Kavanaugh will preside. See, FCC's brief [158 pages in PDF] states that the issue is whether the FCC "reasonably denied Morris's request to waive the agency's installment payment rules and reinstate Morris's radio licenses after those licenses canceled automatically upon Morris's failure to make full and timely installment payments ..." Location: 333 Constitution Ave., NW.

9:30 - 11:00 AM. The American Enterprise Institute (AEI) will host a panel discussion titled "Trade Versus Security". The speakers will be Christine McDaniel (USITC), Stewart Baker (Center for Strategic and International Studies), David Hummels (Purdue University), and Philip Levy (AEI). See, notice. Location: AEI, 1150 17th St., NW.

10:00 AM. The National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) will hold the fourth in a series of four meetings regarding the broadband grant programs created by HR 1 [LOC | WW], the huge spending bill enacted in February, which programs are also known as the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 12, 2009, Vol. 74, No. 47, at Pages 10716-10721. Location: Department of Commerce, 1401 Constitution Ave., NW.

2:00 PM. The House Ways and Means Committee's (HWMC) Subcommittee on Trade will hold a hearing titled "Hearing on Trade Aspects of Climate Change Legislation". See, notice. Location: Room 1100, Longworth Building.

8:15 AM -5:00 PM. The U.S.-China Economic and Security Review Commission will hold a meeting titled "China's Industrial Policy and its Impact on U.S. Companies, Workers and the American Economy". At 2:00 - 3:30 PM there will be a panel titled "China's Telecommunications and Information Technology (IT) Industries". At 3:45 - 5:15 PM there will be a panel titled "China's Nanotechnology and Optoelectronics Industries". See, agenda. Location: Room 236, Russell Building, Capitol Hill.

Deadline to submit reply comments to the Federal Communications Commission's (FCC) Media Bureau in response to the petitions for declaratory rulings of the Alliance for Community Media (ACM) and others regarding carriage of public, educational and governmental (PEG) channels. See, order [PDF] setting deadlines.

Wednesday, March 25

9:00 AM - 5:00 PM. The National Institute of Standards and Technology's (NIST) Office of Law Enforcement Standards' (OLES) will hold a meeting to bring Project 25 Compliance Assessment Program stakeholders together to discuss what the process will be to assess software based test tools for the Project 25 Compliance Assessment Program. See, notice in the Federal Register, February 17, 2009, Vol. 74, No. 30, at Pages 7397-7398. This meeting will occur via teleconference and at the National Telecommunications and Information Administration's (NTIA) Institute for Telecommunication Sciences (ITS) in Boulder, Colorado.

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Federal Bureau of Investigation". The witness will be FBI Director Robert Mueller. See, notice. The SJC will webcast this event. Location: Room 216, Hart Building.

10:00 AM. The House Science Committee (HSC) will meet to mark up two bills, including HR 1850 [LOC | WW], the "Electronic Waste Research and Development Act". Location: Room 2318, Rayburn Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee (SHSGAC) will hold a hearing on the nomination of Jane Lute to be Deputy Secretary of the Department of Homeland Security (DHS). See, notice. Location: Room 342, Dirksen Building.

Deadline to submit comments to the Federal Communications Commission (FCC) regarding the development of a rural broadband strategy, as required by the 2008 farm bill. This proceeding is GN Docket No. 09-29. See, FCC public notice, DA 09-561.

Thursday, March 26

10:00 AM. The House Education and Labor Committee (HELC) will hold a hearing titled "The Economic and Employment Impact of the Arts and Music Industry". Location: Room 2175, Rayburn Building.

6:00 - 8:15 PM. The Federal Communications Bar Association's (FCBA) Wireline Practice Committee will host an event titled "CLE Seminar on Dial N for Numbering: Understanding the Role of Numbers and Numbering Policy in Modern Communications". See, notice and agenda. Location: Sidley Austin, 1501 K St., NW.

Friday, March 27

Deadline to submit reply comments to the Federal Communications Commission (FCC) to assist it in preparing a report to the Congress on the status of competition in markets for the delivery of video programming. The FCC engaged in the legal fiction of adopting a Notice of Inquiry (NOI) on November 27, 2007. It did not release the text [41 pages in PDF] of a NOI until January 16, 2009. It is FCC 07-207 in MB Docket 07-269. This NOI requests comments regarding "changes in the marketplace between 2006 and 2007". See, notice in the Federal Register, February 11, 2009, Volume 74, No. 27, at Pages 6875-6882.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division regarding its draft [209 pages in PDF] of Special Publication 800-53, Revision 3, titled "Recommended Security Controls for Federal Information Systems and Organizations".