|DDOS Attacks Slow Internet
3/27. Spamhaus, which provides lists
of spammers that enable others to weed out spam e-mail messages, has been the
target of escalating and broadening distributed denial of service (DDOS) attacks
that have slowed internet access service in some regions.
Spamhaus stated in a
release that it "experienced a large-scale DDoS attack
over the past weekend and extending into this week. Although this site and our
mail were knocked down for awhile, our data systems continued to work normally
throughout the attack".
Spamhaus states in its website that its "mission is to
track the Internet's spam operations and sources, to provide dependable realtime
anti-spam protection for Internet networks, to work with Law Enforcement
Agencies to identify and pursue spam gangs worldwide, and to lobby governments
for effective anti-spam legislation".
Spamhaus recently added Cyberbunker, a Dutch company that
provides services to spammers, to its lists. Others use Spamhaus's lists to weed
out spam e-mail messages. As of the writing of this article, TLJ's efforts to
access the URL for Cyberbunker's home page produced only error messages.
The New York Times published an
article on March 26 by John Markoff and Nicole Perlroth titled "Firm Is
Accused of Sending Spam, and Fight Jams Internet". It suggests that the attacks
are retaliation for listing Cyberbunker as a spammer.
company that provides internet security services, including for Spamhaus, wrote
description of the evolution of the tactics used by the attackers, how the
attacks worked, and how various entities mitigated their effects.
The attackers first targeted Spamhaus, then CloudFlare,
then the Tier 2 providers and internet exchanges (IXs) to which CloudFlare
connects, and finally, Tier 1 providers.
CloudFlare wrote that "we have been told by one major Tier
1 provider that they saw more than 300Gbps of attack traffic related to this
attack. That would make this attack one of the largest ever reported."
It also wrote that "Over the last few days, as these
attacks have increased, we've seen congestion across several major Tier 1s,
primarily in Europe where most of the attacks were concentrated, that would have
affected hundreds of millions of people even as they surfed sites unrelated to
Spamhaus or CloudFlare. If the Internet felt a bit more sluggish for you over
the last few days in Europe, this may be part of the reason why."
Adam Benson of the Digital
Citizens Alliance stated in a
release on March 27 that "this is more than just an inconvenience slowing
down your computer. Cyberbunker is showing just how much damage they can do to
the Internet economy by slowing and in some cases disabling businesses with
these attacks on the web. This is an effort to threaten and intimidate creators
and online businesses like we saw from the Mafia when they took control of
neighborhoods in American cities. It's deplorable and as citizens we can't let
them get away with it."
|ACLU Sues San Francisco to Block Warrantless
Searches of Phones of Arrestees
3/21. The American Civil Liberties Union of
Northern California (ACLUNC) and others filed a
complaint [56 pages in PDF] in the Superior Court for the State of
California against the City and County of San Francisco seeking declaratory and
injunctive relief regarding the police practice of conducting warrantless
searches of the cellular telephones of arrestees.
Marley Degner, of the
San Francisco office of the law firm of Pillsbury Winthrop Shaw Pittman, the
plaintiffs' attorney, stated in a
release that "Cell phones today are virtual home offices that contain
personal, professional, and financial information not just about us, but about
anyone we communicate with in any way. Police need a warrant to search our home
office. Our cell phones should be treated the same way".
This is a six count complaint. The first two counts allege violation of the
California Constitution's right to privacy and right to be free from
unreasonable searches and seizures.
The California Supreme Court previously held that warrantless cell phone
searches incidental to arrest do not violate the U.S. Constitution's 4th
Amendment search and seizure clause. See, 2011
People v. Diaz, 51 Cal.4th 84.
The facts of the Diaz case involved a police search incidental to an arrest
in 2007 of a cell phone for text messages. In contrast, people now use smart
phones that contain a vastly greater amount of personal and private information.
The complaint in the present case also pleads violation of
42 U.S.C § 1983,
based upon violation of the U.S. Constitution's 1st Amendment free speech clause. It
also pleads violation of the California Constitution's liberty of speech clause.
The complaint states that "The California Constitution provides
greater privacy protections than the federal constitution Cell phones today are
essentially compact home offices that can be carried on the person or in
briefcase and searching them poses special privacy concerns beyond what is
typical in the search and seizure context The California Constitution and First
Amendment of the United States Constitution also safeguard the rights of free
speech and free association against governmental interference in particular
against the compelled disclosure of speech and associational information."
The complaint states that one of the individual plaintiffs, in an act of
"peaceful civil disobedience", camped in a public plaza to protest a
proposed ordinance regarding camping and sleeping in public. Police arrested him,
and then searched his cell phone without a warrant.
The complaint states that the other individual plaintiff is an attorney, and
member of the ACLUNC Board of Directors, who uses her Apple iPhone in the course
of legal representation, and that it contains matters covered by the attorney
client and work product privileges.
The complaint does not allege that she has been arrested, or that she has been
subjected to a warrantless search of her smartphone. Rather, she is "concerned"
about the loss of confidential communications, "in the event she were arrested
in San Francisco".
|FCC Releases 16th Wireless Competition
3/21. The Federal Communications Commission (FCC) released a
report [339 pages in PDF] titled "Sixteenth Report" that partially
complies with the statutory requirement that the FCC write annual reports on the
state of wireless competition. The evidence collected for this report documents
competition. The report, however, declines to makes this conclusion.
The relevant statute, codified at
47 U.S.C. § 332(c)(1)(C),
requires the FCC to write annual reports on competition in "commercial mobile
services" or CMS, which is defined in Section 332 and
Section 153. While the
statute requires that these reports be annual, the FCC during Chairman Genachowski's
tenure has treated this annual requirement as optional.
The statute also requires that the FCC determine "whether or not there is
effective competition". The FCC stopped making this required determination
in its 14th, 15th and 16th reports. A conclusion that there is effective
competition would undermine the FCC's claims that regulation of wireless is required.
The policy goals of the FCC are driving its factual conclusions.
The report states that it "makes no formal finding as to whether there is,
or is not, effective competition in the industry. Rather, given the complexity of
the various inter-related segments and services within the mobile wireless
ecosystem, the Report focuses on presenting the best data available on
competition throughout this sector of the economy and highlighting several key
trends in the mobile wireless industry."
FCC Chairman Julius Genachowski wrote in his statement that "America’s
mobile marketplace has strengthened, with increased private investment and
innovation, and revitalized competitors, though competition challenges remain.
This 16th Report’s analytical framework reflects the Commission’s commitment to
fact-based, data-driven analyses. We will continue that focus as we tackle the
challenges of promoting competition, protecting consumers, and unleashing
spectrum, all to drive U.S. leadership in mobile."
FCC Commissioner Robert McDowell wrote in his statement that this report
"does not conclude, despite the wealth of evidence before us, ``whether or not
there is effective competition,´´ as the statute requires. Instead, the report
``focuses on presenting the best data available on competition throughout this
sector of the economy and highlighting several key trends in the mobile wireless
industry.´´ Congress, however, tasked us with making a finding as to whether
this sector is competitive. Clearly, it is. For this reason, I vote to concur to
the Sixteenth Mobile Wireless Competition Report, as I have for the last two
reports." (Footnote omitted.)
FCC Commissioner Ajit Pai wrote in his statement that "I cannot approve
today’s report in every respect because it does not carry out all the tasks that
Congress has assigned us. Specifically, Congress has directed us to include in
our annual wireless competition report ``an analysis of whether or not there is
effective competition.´´ The report simply does not do this. To be sure, some
might not like answering this question. But the Communications Act does not give
us the discretion to dodge. The binary choice of yes or no doesn’t countenance a
hedge based on ``the complexity of the various inter-related segments and
services within the mobile wireless ecosystem.´´" (Footnotes omitted.)
The relevant portion of the statute provides that "The
Commission shall review competitive market conditions with respect to commercial
mobile services and shall include in its annual report an analysis of those
conditions. Such analysis shall include an identification of the number of
competitors in various commercial mobile services, an analysis of whether or not
there is effective competition, an analysis of whether any of such competitors
have a dominant share of the market for such services, and a statement of
whether additional providers or classes of providers in those services would be
likely to enhance competition. As a part of making a determination with respect
to the public interest under subparagraph (A)(iii), the Commission shall
consider whether the proposed regulation (or amendment thereof) will promote
competitive market conditions, including the extent to which such regulation (or
amendment) will enhance competition among providers of commercial mobile
services. If the Commission determines that such regulation (or amendment) will
promote competition among providers of commercial mobile services, such
determination may be the basis for a Commission finding that such regulation (or
amendment) is in the public interest." (Parentheses in original.)
Steve Largent, head of the CTIA, stated in a
the report "reveals a wealth of data that clearly highlights the innovation,
investment and competition that epitomizes the U.S. mobile wireless ecosystem.
We believe that a clear-eyed assessment of the level of investment, network
deployment, world-leading operating systems, devices, applications and services
conclusively demonstrates the value and benefits that consumers and businesses
receive from the U.S. wireless industry. In this respect, we regret that the
Commission again misses an opportunity to make a finding about the robust level
of competition that consumers enjoy in the U.S."
statement by Verizon
arguing that there is plenty of evidence of strong competition.
This report is FCC 13-34 in WT Docket No. 11-186.
3/27. The U.S. Patent and Trademark Office
(USPTO) announced in a
release the 2013 inductees to the National
Inventors Hall of Fame. The inductees, and the subjects of their inventions,
- Don Bitzer and Gene Slottow -- plasma display technology
- Irwin Jacobs and Andrew Viterbi -- code division multiple
- Joseph Lechleider -- digital subscriber line (DSL)
3/26. Sen. Tim Johnson (D-SD)
announced in a
release that he will not run for re-election to the Senate in 2014. See
statement by President Obama.
3/26. President Obama nominated Julia Pierson to be Director of the Department
of Homeland Security's (DHS) Secret
Service. See, White House news office
release, and DHS
release. She is a career Secret Service employee.
3/27. The Office of Management and
Budget (OMB) released a
memorandum [11 pages in PDF] for the heads of executive departments and
agencies titled "Fiscal Year 2013 PortfolioStat Guidance: Strengthening
Federal IT Portfolio Management".
3/26. The Department of Justice's (DOJ)
Antitrust Division filed with the U.S.
District Court (DC) its
Motion and Supporting Memorandum to Entry of Final Judgment [4 pages in PDF]
in US v. Verizon Communications. This is the action that the US and the
state of New York brought on August 16, 2012, in conjunction with the approval
of the Verizon cable deals. See,
pages in PDF] and story titled "DOJ Approves Verizon Cable Deals" in
TLJ Daily E-Mail
Alert No. 2,429, August 15, 2012. This case is USA and State of New York
v. Verizon Communications, Inc., et al., U.S. District Court for the
District of Columbia, D.C. No. Case 1:12-cv-01354 (RMC).
3/25. The Federal Trade Commission (FTC)
released a short
report regarding adherence of video game retailers and movie theaters
to age based restrictions. This report finds that "video game retailers continue
to enforce age-based ratings, while movie theaters have made marked improvement
in box office enforcement." The FTC, which conducted an undercover survey,
stated that "Only 13 percent of underage shoppers were able to purchase M-rated
video games, while a historic low of 24 percent were able to purchase tickets to
3/25. The Government Accountability Office
(GAO) released a report
[56 pages in PDF] titled "Critical Infrastructure Protection: DHS List of
Priority Assets Needs to Be Validated and Reported to Congress".
3/22. Microsoft released a report titled "2012 Law Enforcement
Requests Report". It contains summary data, by nation, on law
enforcement requests and court orders received by Microsoft and its Skype
data tables [PDF].
3/21. The Securities and Exchange Commission
(SEC) filed a
civil complaint in the U.S. District Court
(SDNY) that charges Rajarengan Rajaratnam with violation of federal
securities law (Section 10b and Rule 10b5 thereunder) in connection with his
alleged insider trading involving stock in several companies, including
Clearwire, Akamai Technologies, and Advanced Micro Devices.
This is another in the series of Galleon related cases. This case is
SEC v. Rajarengan Rajaratnam, U.S. District
Court for the Southern District of New York, D.C. No. 13 CV 1894. In
addition, the same District Court unsealed a parallel indictment that charges
Rajarengan Rajaratnam with criminal securities fraud
and conspiracy. See, USAO
3/19. Rep. Howard Coble (R-NC) and
Rep. Judy Chu (D-CA) announced the formation of
a Congressional Creative Rights Caucus. The 36 members include Rep. John
Conyers (D-MI), Rep. Mel Watt (D-NC), and Rep. Henry Waxman (D-CA). It is a largely
Democratic group. However, the members also include Rep. Louie Gohmert (R-TX) and
Rep. Marsha Blackburn (R-TN). See,
release. See also, ACT
3/11. The American Antitrust
Institute (AAI) released a
paper [56 pages in PDF] titled "Coordinating Extensive Trademark Rights
and Competition Policy". The author is the AAI's Kexin Li. This paper states
that "federal trademark law should work coherently with competition laws and
policies to facilitate interstate commerce and competition. However, as the scope of
trademarkable subject matter is expanding, as well as the current efforts by
corporations to seek trademark protection instead of or in addition to patents and/or
copyrights, trademarks start to raise competition concerns as well."
|This issue contains the following items:
• DDOS Attacks Slow Internet Service
• ACLU Sues San Francisco to Block Warrantless Searches of Phones of Arrestees
• FCC Releases 16th Wireless Competition Report
• People and Appointments
• More News
New items are highlighted in
|Thursday, March 28
The House will meet at 11:00 AM in pro forma session only.
The Senate will not meet.
8:00 AM - 4:00 PM. Day two of a two day meeting of the Department
of Transportation's (DOT) Intelligent
Transportation Systems Program Advisory Committee (ITSPAC). The agenda
includes "Shared Use Frequency Spectrum Issues Update". See,
notice in the Federal Register, Vol. 78, No. 49, March 13, 2013, at Page
16030. Location: Courtyard Marriott Capitol Hill/Navy Yard Hotel, 140 L
9:30 AM. The Internet
Innovation Alliance (IIA) will host an event titled "Where Are We Going,
Where Have We Been?". The speakers will be former Rep.
Rick Boucher (D-VA)
and former Rep. Mike Oxley (R-OH). Breakfast will be served. RSVP to info at internetinnovation dot org. Location: Room 2322, Rayburn Building.
1:00 PM. The US Telecom will
host a webcast seminar titled "The Future of 10G Ethernet Service Aggregation
& Transport". Free. See,
2:30 PM. The Federal Trade
Commission's (FTC) Bureau of Economics will host a presentation titled
"Monopoly Differential Pricing and Welfare". See,
[30 pages in PDF] with the same title by
Yongmin Chen (University of
Colorado at Boulder) and
Schwartz. The speaker will be Chen. Differential pricing is employed, for
example, when producers of intellectual property based products such as books sell
at different prices in different countries or to different classes of consumers.
It is the practice that the Supreme Court undermined in its March 19, 2013
[74 pages in PDF] in John Wiley & Sons v. Supap Kirtsaeng. See,
titled "Supreme Court Holds First Sale Doctrine Applies Regardless of
Location" in TLJ Daily E-Mail Alert No. 2,536, March 19, 2013. Also,
geographically based differential pricing in telecommunications is barred by
regulation. For more information, contact Christopher Metcalf at cmetcalf at ftc
dot gov or Tammy John at tjohn at ftc dot gov. Location: Room 8089, 1800 M
5:30 - 7:30 PM. Deborah Cohn, Commissioner for Trademarks
at the U.S. Patent and Trademark Office
(USPTO) and Gerard Rogers, Chief Administrative Trademark Judge of
the Trademark Trial and Appeal Board, will speak at an event titled "The
Trademark Office Speaks". The USPTO states that this is a
DC Bar Association event. The DC Bar bars
reporters from this event. No webcast. Prices vary. No CLE credits. See,
notice. Location: Hotel Monaco, 700 F. St., NW.
Deadline to submit initial comments to the Federal Communications
Commission's (FCC) Wireline
Competition Bureau (WCB) in response to its
Public Notice (PN) regarding implementation of Connect America Phase II
subsidy program. This PN is DA 13-284 in WC Docket No. 10-90. The WCB
released it on February 26, 2013. See also,
notice in the Federal Register, Vol. 78, No. 51, March 15, 2013, at Pages
|Friday, March 29
The House will not meet.
The Senate will meet at 10:30 AM in pro
forma session only.
Supreme Court conference day. See, Supreme Court
Deadline to submit reply comments to the Federal Communications
Commission (FCC) regarding state applications for renewal of the certification of
their state TRS programs pursuant to Title IV of the Americans with Disabilities
Act (ADA). See, DA 13-275 in CG Docket No. 03-123, and
notice in the Federal Register, Vol. 78, No. 48, March 12, 2013, at Pages
|Saturday, March 30
Deadline to submit to the Federal Communications Commission's
(FCC) comments and oppositions to petitions for exemption from the FCC's
requirements to closed caption television programming. See,
Public Notice [3 pages in PDF], DA 13-312 in CG Docket No. 06-181,
released on February 28, 2013.
|Sunday, March 31
? 5:00 PM. Deadline to submit nominations to the
U.S. Patent and Trademark Office (USPTO)
for the National Medals of Technology and Innovation. See, USPTO
notice The USPTO
subsequently published a
notice in the Federal Register that sets the deadline at April 1.
See, FR, Vol. 78, No. 1, January 2, 2013, at Page 90.
|Monday, April 1
The House will not meet the week of April 1 through
April 5, except for pro forma sessions. The House will return on Tuesday,
April 9. See, House
for 113th Congress, 1st Session.
The Senate will not meet the week of April 1 through
April 5, except for pro forma sessions. The Senate will return on Monday,
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Chrimar Systems v.
Foundry Networks, App. Ct. No. 2012-1641, an appeal from the
Court (EDMich) in a patent case. Panel A. Location: Courtroom 201, 717 Madison
Deadline to submit nominations to the
U.S. Patent and Trademark Office (USPTO)
for the National Medal of Technology and Innovation. See,
notice in the Federal Register, Vol. 78, No. 1, January 2, 2013, at Page
90. See also, "National Medal of Technology and Innovation Recipients
TLJ Daily E-Mail Alert No. 2,498, December 26, 2012. (The USPTO announced
in an earlier notice
that the deadline is 5:00 PM on March 31.)
Tentative date for the Federal
Trade Commission (FTC) to announce the winners of its competition regarding
developing a solution for blocking illegal robocalls on landlines and mobile phones.
notice in the Federal Register, Vol. 77, No. 205, October 23, 2012, at
Deadline to submit comments to the Federal Communications Commission's
(FCC) Wireline Competition Bureau (WCB) in response to its
Public Notice (PN) regarding "Rate of Return for Connect America Cost
Model". The FCC released this PN on February 28, 2013. It is DA 13-311 in WC
Docket No. 10-90. See also,
in the Federal Register, Vol. 78, No. 56, March 22, 2013, at Pages 17624-17625.
Deadline to submit to the Federal Communications Commission (FCC) replies
to oppositions to the petitions for reconsideration filed in the FCC's low power
radio service proceeding, MB Docket No. 99-25. See, FCC
notice in the Federal Register, Vol. 78, No. 44, March 6, 2013, at Page
14490. See for example,
filed by the Prometheus Radio Project.
|Tuesday, April 2
The Senate will meet at 10:45 AM in pro forma session only.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Cisco Systems v.
Alberta Telecommunications Research Center, App. Ct. No. 2012-1687, an
appeal from the U.S. District Court (NDCal) in a patent case involving technology
for telecommunications networks. Panel D. Location: Courtroom 402, 717 Madison
1:00 - 2:00 PM. The law firm of
Fulbright & Jaworski will host a
webcast seminar titled "International Brand Management -- How to Protect
Your Company's Most Important Asset Worldwide". The speakers will be
Travis Bachman (Carlson Companies),
Drummond (Norton Rose Australia),
Patrick Gallagher (Fulbright
& Jaworski), Paul Mussell (NCS Pearson, Inc.), and Ann Wessberg (Target
6:00 - 9:00 PM. The
DC Bar Association will host a reception
and panel discussion titled "Defending Against Cyber-Intrusions from
Both State-Sponsored and Civilian Hackers". The speakers will be
Lee (Arnold & Porter),
Suzanne Spaulding (DHS
National Protection and Programs Directorate), and
Steven Cash (Deck Prism).
The price to attend ranges from free to $20. No CLE credits. The reception will be
from 6:00 - 7:00 PM. See,
notice. For more information, call 202-626-3463. The DC Bar has a history
of barring reporters from its events. Location: Arnold & Porter, 555 12th
|Wednesday, April 3
9:00 - 10:30 AM. The Information
Technology and Innovation Foundation (ITIF) will host a discussion of the
book titled "The Need for Speed: A New Framework for
Telecommunications Policy for the 21st Century". The speakers
will be the co-authors, Robert Litan and Hal Singer, and
Robert Atkinson (ITIF).
Location: ITIF/ITIC, Suite 610A, 1101 K St., NW.
6:00 - 8:15 PM. The Federal
Communications Bar Association (FCBA) will host an event titled
"Production and Distribution of Video Programming: Basics and Advanced
Issues". Prices vary. CLE credits. See,
notice. The first panel is titled "Basic Rights and
Clearance Issues for Video Programming and Distribution". The speakers will be
Ben Golant (USPTO), Mike Beller (PBS),
(Wiley Rein), Michael Turner (Discovery Communications), and Ben Ivins
(National Association of Broadcasters). The second
panel is titled "Advanced Issues in Video Programming and Distribution".
The speakers will be
Nilsson (Wiltshire Grannis),
(Arnold & Porter), John Hane
Davidson (Edwards Wildman), and Jeff Blum (DISH Network). Location:
Drinker Biddle & Reath, 1500 K
|Thursday, April 4
9:00 AM - 3:00 PM. The U.S. China
Economic and Security Review Commission will host a hearing titled
"China’s Maritime Disputes in the East and South China Seas".
notice. Free. Open to the public. Location: Room G-50, Dirksen Building.
10:00 AM. The U.S.
Court of Appeals (FedCir) will hear oral argument in Interdigital
Communications v. ITC, App. Ct. No. 2012-1628. LG Electronics is the
intervenor. This is an appeal from the U.S.
International Trade Commission (USITC)
in No. 337-TA-800. Panel H. Location: Courtroom 402, 717 Madison
1:00 PM. The US Telecom will
host a webcast seminar titled "Monitoring & Optimizing Real Time IP
Networks". Free. See,
1:00 - 5:00 PM. The National
Telecommunications and Information Administration (NTIA) will hold another
in its series of meetings regarding mobile application transparency. See,
notice. This event will also be teleconferenced. Location: American
Institute of Architects, 1735 New York Ave., NW.
Deadline to submit to the Federal Communications Commission (FCC)
petitions to deny AT&T's acquisition of Atlantic Tele-Network's U.S. retail
wireless operations. See, AT&T
release of January 22, 2013, and FCC
Public Notice [5 pages in PDF], DA 13-352 in WT Docket No. 13-54.
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