News Briefs from August 11-15, 2001

Courts Committee Makes Recommendations on Electronic Case Files
8/15. The Administrative Office of U.S. Courts' Committee on Court Administration and Case Management released a report [PDF] titled "Report on Privacy and Public Access to Electronic Case Files." The report recommends that most civil and bankruptcy cases should be made available in electronic format, with redactions of some personal data identifiers, but that criminal cases should not be made available. See also, release.
The report is dated June 26, 2001; it was publicly released on August 15. The Judicial Conference of the U.S., which makes policy for the federal courts, will meet on September 11 to consider the recommendations contained in the report.
Civil Cases. The report recommends that "documents in civil case files should be made available electronically to the same extent that they are available at the courthouse with one exception (Social Security cases should be excluded from electronic access) and one change in policy (the requirement that certain "personal data identifiers" be modified or partially redacted by the litigants). These identifiers are Social Security numbers, dates of birth, financial account numbers and names of minor children."
Criminal Cases. The report recommends that "public remote electronic access to documents in criminal cases should not be available at this time, with the understanding that the policy will be reexamined within two years of adoption by the Judicial Conference."
Bankruptcy Cases. The report recommends that "documents in bankruptcy case files should be made generally available electronically to the same extent that they are available at the courthouse, with a similar policy change for personal identifiers as in civil cases; that § 107(b)(2) of the Bankruptcy Code should be amended to establish privacy and security concerns as a basis for the sealing of a document; and that the Bankruptcy Code and Rules should be amended as necessary to allow the court to collect a debtor’s full Social Security number but display only the last four digits."
9th Circuit Rules on ADA and Keyboard Related Repetitive Stress Injury
8/15. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Thornton v. McClatchy, in which it held, two to one, that repetitive stress injuries that limit one's ability to use a computer keyboard do not constitute a disability within the meaning of the ADA.
Facts. Thornton worked for the Fresno Bee, a McClatchy newspaper, as a writer. This required her to work with a keyboard. She suffered from work related repetitive stress disorder and could not operate a keyboard or write by hand for more than brief periods. McClatchy concluded that she could not perform her job, and terminated her employment.
District Court. Thornton filed a complaint in the U.S. District Court (EDCal) against McClatchy alleging violation of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act for terminating her on the basis of disability. The District Court granted McClatchy summary judgment on the grounds that she was not disabled.
Court of Appeals. The Appeals Court affirmed the summary judgment on the ADA claim. It wrote that "Thornton was able to perform a wide range of manual tasks, including grocery shopping, driving, making beds, doing laundry, and dressing herself. Her inability to type and write for extended periods of time is not sufficient to outweigh the large number of manual tasks that she can perform. The ADA requires a "substantial limitation" in performing manual tasks ..." However, it reversed on the state law claim. Judge Hawkins wrote the opinion of the Court, in which Judge Kozinski joined.
Dissent. Judge Berzon wrote a lengthy dissent regarding computer use and the ADA. She wrote that "The fact that using a computer is so essential to modern life that teaching that skill universally has become embedded in our national educational policy must inform our understanding of the ADA's disability definition, for two reasons: First, the ADA is a statute addressed generally to the opportunities of the disabled for success in modern society. That a particular manual skill is of such importance to success in life that it is now taught to most children and used pervasively throughout their schooling is surely some indication that, like reading, spelling, and adding, it is a skill essential to such success. Second, and critically, the ADA definition of disability at issue in this case applies not only in the employment context but in educational and testing settings as well, to determine whether reasonable accommodations are required. ... The sum of the matter is that the ability to use one's arms and hands to operate a computer and handwrite is, in the modern world, a skill that is essential both in getting an education and in earning a living, and is useful in carrying out many activities of daily life. The question before us is whether Congress, in enacting the ADA, blinkered this reality and, as the majority holds, determined that individuals who cannot carry out the manual tasks involved in written communication are not substantially impaired in carrying out manual tasks as long as they can carry out a number of other tasks requiring the use of their arms and hands."
Study of Internet Traffic Shows Competition
8/15. Caspian Networks, an Internet infrastructure company, released a study [PowerPoint] of Internet traffic. It found a high level of competition, and a large number of competitors. It found that "19 companies make significant contributions to core traffic, yet the top 4 service providers carry 50% of the Internet’s traffic". This may be relevant to regulators who conduct antitrust merger reviews at the Department of Justice's Antitrust Division, at the Federal Trade Commission's Bureau of Competition, and at the Federal Communications Commission. The study concluded that "The large number of ISPs suggests high potential for consolidation within the industry". See also, CN release [HTML].
Caspian Networks (CN) stated that this is the first scientific study of network traffic since the NSF's 1996 study. It conducted confidential surveys of the 19 largest tier 1 ISPs in the U.S.
The study also found that despite the economic troubles of dot com companies, "the Internet is not shrinking, nor does it appear to be slowing yet in its growth". It asserts that the speculation by some analysts and journalists that the Internet traffic has shrunk are wrong. The study measured "The IP backbone carrying potential, as well as utilization, of the 19 largest tier 1 U.S. Internet service providers". It found that "Trunk ports grew from 800 Gbps in April, 2000 to 3 Tbps in April, 2001" and that "Utilization stayed the same, approximately 40%"
The study also examined what makes up this traffic. It found that very little traffic is accounted for by dot com companies. Rather, "Companies in the U.S. are beginning to realize they must move traffic to the Internet in order to stay competitive." It also found that "Personal broadband doesn’t significantly affect overall IP data rates at the core" and that "Personal traffic represents a small percentage of Internet traffic overall (approx. 20%).
Chapter 11 Bankruptcy Petitions
8/15. DSL service provider Covad filed a Chapter 11 petition for bankruptcy in U.S. Bankruptcy Court (DDel). The petition was filed by Covad Communications Group, Inc., the parent company of Covad Communications Company. Covad also stated in a release that "Covad's operating subsidiaries, which provide DSL services to customers, are not expected to be included in the court supervised proceeding and will continue to operate in the ordinary course of business without any court imposed restrictions."
8/15. filed a Chapter 11 petition for bankruptcy in U.S. Bankruptcy Court. Egghead, based in Menlo Park, California, is an Internet retailer of computer hardware and software, consumer electronics and office products, and other items. Egghead also entered into a definitive agreement for the sale of assets to Fry's Electronics, a chain of electronics stores based in San Jose, California. Egghead also stated in a release that "Subject to approval of the sale by the Bankruptcy Court, it is expected that the transaction will close by the end of September."
EPIC Complains about Microsoft Passport
8/15. The Electronic Privacy Information Center (EPIC) and others submitted an updated complaint (PDF) to the Federal Trade Commission (FTC) regarding Microsoft's Passport and other software and services. EPIC filed its original complaint (PDF] on July 26, 2001. EPIC request that the FTC conduct an investigation of Microsoft, and enjoin a number of software features and services which it alleges violate § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.
Paragraph 1 of the original complaint, which is incorporated by reference in the amended complaint, states that this "concerns the privacy implications of the Microsoft XP operating system that is expected to become the primary means of access for consumers in the United States to the Internet. ... Microsoft has engaged, and is engaging, in unfair and deceptive trade practices intended to profile, track, and monitor millions of Internet users. Central to the scheme is a system of services, known collectively as ".NET," which incorporate "Passport," "Wallet," and "HailStorm" that are designed to obtain personal information from consumers in the United States unfairly and deceptively. The public interest requires the Commission to investigate these practices and to enjoin Microsoft from violating Section 5" of the FTCA.
EPIC requests that the FTC "Initiate an investigation into the information collection practices of Microsoft through Passport and associated services". EPIC also wants the FTC issue a far reaching injunction against Microsoft. EPIC want the FTC to order Microsoft "to revise the XP registration procedures so that purchasers of Microsoft XP are clearly informed that they need not register for Passport to obtain access to the Internet", "to block the sharing of personal information among Microsoft areas provided by a user under the Passport registration procedures absent explicit consent", "to incorporate techniques for anonymity and pseudo- anonymity that would allow users of Windows XP to gain access to Microsoft web sites without disclosing their actual identity", and "to incorporate techniques that would enable users of Windows XP to easily integrate services provided by non-Microsoft companies for online payment, electronic commerce, and other Internet-based commercial activity".
The amended complaint contains new allegations regarding security, and non compliance with the Children's Online Privacy Protection Act (COPPA). It also requests that the FTC begin an investigation to determine whether Passport complies with the requirements of the COPPA.
Marc Rotenberg, Executive Director of EPIC, spoke at a press conference in Washington DC on August 15. He stated that EPIC has not filed, and does not intend to file, a civil action against Microsoft. The complaint requests that the FTC enjoin Microsoft; yet, Rotenberg asserted at the press conference that "it is not our goal here to delay unnecessarily the release of XP ..."
After EPIC submitted its original complaint, Microsoft announced that it is reducing the amount of information necessary to establish a Passport account. Rotenberg stated that while he is pleased with these steps, "more needs to be done." He sited the remaining Passport requirement of providing an e-mail address. He stated that this is personally identifying, and unnecessary to provide Passport services.
The FTC has consumer protection authority under the FTCA, which states that "unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." However, it has no privacy specific statutory authority. Moreover, while EPIC's complaint is structured like a legal pleading, the FTCA creates no administrative cause of action for private parties. Parties, such as EPIC, and ordinary consumers, may submit complaints to the FTC. In fact, the FTC encourages the submission of public complaints. However, it is within the sole discretion of the FTC to determine whether to conduct any investigation, or take any action.
The complainants are EPIC, Center for Digital Democracy, Center for Media Education, Computer Professionals for Social Responsibility, Consumer Action, Consumer Federation of America, Consumer Task Force for Automotive Issues, Electronic Frontier Foundation, Junkbusters, Media Access Project, Net Action, Privacy Rights Clearinghouse, U.S. Public Interest Research Group, Consumer Project on Technology. Other groups involved in advocating for personal privacy on the Internet, such as the Center for Democracy and Technology, are not parties to this complaint. Complains to FCC about AOL Time Warner
8/15. Texas Networking, Inc. ( filed a complaint and petition with the FCC seeking a declaratory ruling that AOL Time Warner (AOLTW) has not complied with the FCC's Memorandum Opinion and Order released January 22, 2001 in its AOL Time Warner merger proceeding. Specifically, alleges that AOLTW has not complied with the provision regarding allowing access by unaffiliated ISPs to AOLTW's cable system. On August 15 the FCC issued a notice requesting public comments on the complaint. The deadline to file is 20 after the release of this notice. provides residential dialup Internet access, and broadband Internet access and other services to businesses in Austin, Dallas, Houston, and San Antonio. See FCC notice.
RUS Announces Grants for Providing Internet Access in Rural Areas
8/15. The Rural Utilities Service (RUS) published a notice in the Federal Register announcing a grant program to finance the acquisition, construction and installation of equipment, facilities and systems to provide dial-up Internet access services in rural areas. This is a $2 Million pilot program to encourage entities to provide Internet service in areas where it is unavailable. The deadline for submitting grant applications is November 13, 2001. See, Federal Register, August 15, 2001, Vol. 66, No. 158, at Pages 42836 - 42838.
FCC Grants CALEA Extension
8/15. The FCC released an order [PDF] that grants wireline carriers' petition for an extension under CALEA, Section 107(c). This proceeding is "In the Matter of The Communications Assistance For Law Enforcement Act (CALEA), Section 107(c) Extension of Capability Requirements", CC Docket No. 97-213.
Wireline telecommunications carriers filed petitions with the FCC seeking extensions of the deadline for complying with the capability requirements of Section 103 of the CALEA. The FCC ordered that "pursuant to sections 4(i) and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i) and 154(j), and sections 107(c) of the Communications Assistance for Law Enforcement Act, 47 U.S.C. § 1006(c), the carriers listed in the Appendix attached to this Order are HEREBY GRANTED AN EXTENSION of the compliance date of the assistance capability requirements of section 103 of CALEA, 47 U.S.C. §1002(a)(1)-(4), until the dates agreed to by the FBI as set forth in each carrier's individual FBI support letter."
More News
8/15. The U.S. Court of Appeals (FedCir) issued its opinion in Generation II Orthotics v. Medical Technology Inc., a patent infringement case involving post operative knee braces. Generation II appealed the District Court’s claim construction and resulting judgment of noninfringement of U.S. Patent Nos. 5,302,169 and 5,400,806. The Appeals Court affirmed in part, and vacated in part.
7th Circuit Reverses Class Certification Order in Sprint Right of Way Case
8/14. The U.S. Court of Appeals (7thCir) issued its opinion in Isaacs v. Sprint, a case regarding procedure for certification of classes under FRCP 23. Sprint purchased from railroads operating in every state of the continental United States the right to install fiber optic cables on the railroads' rights of way. Plaintiffs filed a complaint in the U.S. District Court (SDIll), seeking class action status on behalf of owners of the land adjacent to railroad rights of way, asserting that the right belongs to them, not to the railroads. Plaintiffs requested damages for alleged conversion. The District Court certified two plaintiff classes, one consisting of landowners adjacent to rights of way obtained by condemnation, the other of landowners adjacent to rights of way obtained by grants of public land to the railroads. Sprint filed this appeal of the order of certification. Judge Posner, writing for a three judge panel, reversed the District Court.
9th Circuit Decides Wiretap Act Case
8/14. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Price v. Turner, a civil suit alleging violation of the Wiretap Act in connection with the monitoring of cordless wireless phone conversations. However, since the events giving rise to this case occurred ten years ago, this appeal was decided according to state of federal law prior to the 1994 amendments to the Wiretap Act.
Frank Turner used a radio scanner to listen to and record conversations of his neighbors who used cordless telephones. These phones used analog radio signals at fixed frequencies, and hence, were easy to monitor. He heard discussions of criminal activities. Turner also informed the El Dorado County Sheriff's Department, which told him to continue, and provided him assistance. All of the intercepted phone communications at issue in this case took place prior to the 1994 amendments to the Wiretap Act. One person whose conversations he monitored was Leora Price.
Price filed a civil complaint against Frank Turner and El Dorado County alleging, among other things, violation of the Wiretap Act, invasion of privacy, and a civil rights claim under 42 U.S.C. § 1983. The District Court granted summary judgment to defendants on all of Price's federal claims. Price appealed.
The Appeals Court wrote that "At the time of its original enactment in 1968, the Wiretap Act did not expressly refer to the monitoring of radio transmissions. When Congress enlarged the Act's coverage in 1986, Congress explicitly excepted protection for the 'radio portion of a cordless telephone communication.' ... It was not until 1994 that Congress amended the Act to prohibit the interception of cordless telephone communications." The Appeals Court affirmed.
Computer and Internet Crime
8/14. The FBI's National Infrastructure Protection Center (NIPC) announced that on July 23, 2001, British law enforcement authorities arrested an unnamed person for violation of the United Kingdom's Computer Misuse Act 1990 in connection with designing and propagating malicious code, known as the Leaves worm, into Windows based computer systems. See, NIPC release.
Securities Fraud
8/14. The U.S. District Court (NDCal) appointed a receiver for The SEC filed a civil complaint on July 9, 2001, against and its founder and former CEO, Steven Ristau, alleging fraud by claiming that the company had a proprietary technology for broadcasting movies wirelessly over the Internet. See, SEC release.
More News
8/14. Afilias, the ICANN designated operator of the .info TLD registry, announced plans to challenge unqualified sunrise registrations. To qualify for a sunrise registration, the applicant for a domain name must have a registered trademark of national effect that was issued before October 2, 2000, and the trademarked word must exactly match the domain name. See, ICANN release.
8/14. The U.S. Court of Appeals (FedCir) issued its opinion in Mycogen Plant Science v. Agrigenetics, a petition for rehearing of the Court's initial opinion, in which it held that Mycogen is not entitled to invoke the doctrine of equivalents with respect to claims 13 and 14 of Mycogen's U.S. Patent No. 5,380,831 titled "Synthetic insecticidal crystal protein gene". The Appeals Court denied the petition for rehearing.
8/14. Microsoft filed a reply brief [PDF] with the U.S. Court of Appeals (DCCir) in support of its motion for stay of mandate pending the Supreme Court's final disposition of Microsoft's petition for a writ of certiorari.
Ninth Circuit Rules Seven Dirty Words Case Is Moot
8/13. The U.S. Court of Appeals (9thCir) issued its opinion in Seven Words v. Network Solutions a case regarding the principle of mootness. This appeal arose out of the incessant attempts by Seven Words LLC to compel Network Solutions, on freedom of speech grounds, to register to it as domain names various "dirty words" once used by comedian George Carlin.
NSI's Refusal to Register. Seven Words LLC initially sought to register ten second level domain names through Network Solutions (NSI). The names included seven words that were the subject of a comic monologue titled "Seven Words You Can Never Say on Television" from the recording "Class Clown" by George Carlin (Little David Records, 1972). Seven Words sought to register each word with each of the top level domains (TLDs) of .com, .org, and .net. NSI, which at the time had the exclusive authority to register domain names with these TLDs, refused to register domains containing all but one of the dirty words, on the grounds that it violated its policy against registering domains it deemed inappropriate.
Seven Words I. Seven Words filed an original complaint in the U.S. District Court (CDCal) against NSI for injunctive and declaratory relief, but not damages. It sought an order compelling NSI to register the names. It also sought a declaration that NSI violated its rights under the federal and California law. It later sought registration of six more similar words; NSI again refused; and, it sought to amend its complaint. This complaint included a claim for damages. Meanwhile, a similarly minded plaintiff on the east coast sought registration of some of the same words. NSI refused her requests as well. She filed a complaint in U.S. District Court (DNH) alleging violation of her First Amendment rights. The California action (Seven Words I) was transferred to New Hampshire, and consolidated with that action. The District Court in California declined to exercise jurisdiction over the remaining state law claim. Seven Words failed to comply with various orders issued by the New Hampshire court, and as a result, its portion of that consolidated action was dismissed.
Seven Words II. Seven also filed a second action in California state court, based on the same refusal to register dirty words, but this time only alleged violation of California law. It did not seek damages until the case was on appeal. NSI removed the case to U.S. District Court, based upon diversity of citizenship. This case, Seven Words II, was assigned to the same judge, Stephen Wilson, that heard Seven Words I. NSI then moved to dismiss Seven Words II for failure to state a claim, pursuant to FRCP 12(b)(6). The Court granted this motion. This appeal followed.
Registration of Dirty Words to Third Parties. Meanwhile, the dirty words for which Seven Words sought registration (except for some which were subject to an order in the New Hampshire action) were not the subject of any court injunction. They were registered to other parties. After the registration of six words, Seven Words sought an injunction from the Court in Seven Words II. The request was denied, and Seven Words did not appeal that decision. When the New Hampshire Court proceeded to release the words under its control, Seven Words took no action prevent that release. Those words were then registered. By the time the present appeal was heard, all of the words at issue had been registered to third parties.
Mootness. The U.S. Court of Appeals did not address the merits of the appeal. Rather, it ruled that the case had been rendered moot by the registration of the words in dispute to third parties. The Court wrote that "Seven Words never sought damages in this litigation (until a few days before argument in this court) and, indeed, effectively disavowed damages for tactical reasons. As for the declaratory relief, which is closely intertwined with the injunctive relief, there is no longer a live controversy. At this juncture, Seven Words effectively seeks an advisory opinion. We conclude that neither of these claims is sufficient to resurrect Seven Words's suit." The Court continued that "Here, the dispute with NSI has "evaporated" and there is no remaining potentially adverse effect on the interests of the parties. NSI no longer has a policy prohibiting registration of domain names containing certain words; NSI is no longer the only company that can register the domain names; and the domain names have already been registered to third parties." The Court also commented that "a timely claim for damages could have saved this case from dismissal for mootness ..."
Finally, the Court granted NSI's motion with respect to mootness, vacated the District Court's judgment in favor of NSI, and instructed the District Court to dismiss the case as moot.
The ACLU Foundation of Southern California, which apparently has way too much free time on its hands, filed an amicus curiae brief.
FCC NPRM Re Local Competition
8/13. The FCC published a notice of regarding its Notice of Proposed Rulemaking (NPRM) in the Federal Register regarding implementation of the local competition provisions of the Telecom Act of 1996. This notice invites parties to update and refresh the record on issues pertaining to the rules the FCC adopted in the First Report and Order in CC Docket No. 96-98. Comments are due by September 12, 2001. Reply comments are due September 27, 2001. See, Federal Register, August 13, 2001, Vol. 66, No. 156, at Page 42499.
FEC Fines Announced
8/13. The Federal Election Commission (FEC) released summary information about 44 cases in which it assessed administrative fines cases totaling $67,525. Several cases involve tech companies or Members of Congress who are involved in tech issues. The FEC fined a committee supporting Rep. Jerry Weller (R-IL) $9,000 for not filing a 30 day post general election 2000 report. Rep. Weller, who sits on the Ways and Means Committee, often takes the lead in protecting the interests of high tech workers, the Internet economy, and technology companies on tax issues. The FEC fined a committee supporting Rep. John Conyers (D-MI) $3,500 for the same omission. He is the ranking Democrat on the House Judiciary Committee, where he is active in intellectual property issues, privacy issues, and in opposing the Tauzin Dingell bill. The FEC fined the Internet Leadership PAC $825 for late filing of the same post election report. Finally, the FEC fined the Qwest PAC $900 for late filing of the report. See, FEC release.
Covad Settles Securities Class Action Suit
8/13. Covad Communications, which provides Internet access services via DSL, announced that it and the other defendants have settled the case D.C. Capital Partners v. Covad Communications Group. This is a securities class action case pending in the U.S. District Court (NDCal). Covad stated that "Under the terms of this agreement, Covad will contribute to the settlement fund shares equal to 3 1/2 percent of its fully diluted common stock as of August 10, 2001. Covad's insurance carriers will fund the cash portion of the settlement. Covad and the other defendants continue to deny plaintiffs' allegations." See, Covad release.

Go to News Briefs from August 6-10, 2001.