News Briefs from September 11-15, 2001

Third Circuit Affirms in Smirnoff Case
9/14. The U.S. Court of Appeals (3rdCir) issued its opinion in The Joint Stock Society v. UDV North America, a case involving claims under the Lanham Act, for false designation of origin, false advertising, and trademark cancellation, as well as claims under Delaware law, in connection with the use of name Smirnoff vodka. The District Court dismissed for lack of a case or controversy within the meaning of Article III of the Constitution. The Appeals Court affirmed.
Defendant Pleads Guilty to Theft of Itanium Designs
9/14. Say Lye Ow plead guilty in U.S. District Court (NCCal) to copying trade secrets in violation of 18 U.S.C. § 1832(a)(2), the Economic Espionage Act of 1996. In 1998 Say Lye Ow copied without authorization computer files relating to the design and testing of Intel's Merced microprocessor, which is now known as Itanium. He now faces a maximum jail sentence of ten years. Ross Nadel, Chief of the CHIP Unit for Northern District of California, is the Assistant U.S. Attorney (USAO) who prosecuted the case. See, Plea Agreement [PDF], Superseding Information [PDF], and USAO release.
GAO Identifies Computer Security Weaknesses at BPD
9/14. The GAO released a report [PDF] titled "Bureau of the Public Debt: Areas for Improvement in Computer Controls". The report concludes that Bureau of the Public Debt's "computer resources or operating environment are exposed to threats such as unintentional errors or omissions or intentional modification, disclosure, or destruction of data and programs by disgruntled employees or intruders. Thus, the vulnerabilities we note increase the risks of inappropriate disclosure and modification of sensitive data and programs, misuse or damage of computer resources, or disruption of critical operations."
Computer Crime
9/14. Melissa Brown plead guilty in U.S. District Court (NDOhio) to a one count indictment charging her with computer fraud in violation of 18 U.S.C. § 1030(a)(5)(A). Without authority from her employer, Brown used a company laptop to access the company's network, and change the password of the company's CIO, who was out of town at the time. See, CCIPS release.
Senate Passes Bill Expanding Electronic Surveillance Powers
9/13. The Senate passed HR 2500, the appropriations bill for FY 2002 for the Departments of Commerce, Justice, State, and the Judiciary, and related agencies. It is also sometimes called the "CJS bill". The Senate also passed Senate Amendment 1562 to this bill. It would increases law enforcement powers. It would expand wiretap authority. It would also extend the scope of pen register and trap and trace orders from old fashioned wireline phone technology, to new Internet communications. The bill also contains many other law enforcement related provisions.
See also, TLJ opinion article titled An Analysis of How the Events of September 11, 2001 May Change Federal Law. It focuses on the wiretap, pen register, and trap and trace provisions of Senate Amendment 1562. It also speculates about the possible impact of recent terrorist events on other tech related issues, including Carnivore, CALEA, E-911, encryption, the Export Administration Act, cyber terrorism, antitrust enforcement, 3G wireless services, and broadband Internet access.
Wiretap Authority
9/13. SA 1562, approved by the Senate on September 13, expands wiretap authority. Currently, there is a short list of criminal offenses that can serve as predicate offenses for the issuance of wiretap orders. This amendment would add two new offenses -- terrorism and cyber crime.
Pen Registers and Trap and Trace Devices
9/13. SA 1562, approved by the Senate on September 13, expands law enforcement authority with respect to the use of trap and trace devices and pen registers. These are both telephone industry concepts. The amendment brings these concepts into the world of Internet communications.
Pen Registers. A pen register records the numbers that are dialed or punched into a telephone. Current law covers "wire" communications only. Specifically, a pen register is "a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached ..." See, 18 U.S.C. § 3127(3).
Under SA 1562, the concept of a pen register would be expanded from merely capturing phone numbers, to capturing routing and addressing information in any electronic communications, including Internet communications. Specifically, as amended, the statutory definition of pen register would read: "a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted ..."
Trap and Trace. The amendment also expands the concept of trap and trace. Under current law, this is "a device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." See, 18 U.S.C. § 3127(4).
The amended language reads: "a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information relevant to identifying the source of a wire or electronic communication''.
Effect of Amendments. This is not just a matter of expanding pen register and trap and trace orders from phone to Internet communications. It also expands the scope and quantity of information collected. In the context of telephones, the information obtained is only the phone number, not the content of the phone call. In Internet communications, a significant amount of substantive content is included within "routing, addressing, and signaling" information.
Civil liberties advocates have argued that this is significant because the standard for obtaining pen register and trap and trace orders (for phone numbers), as opposed to wiretap orders (for phone conversations), is much lower. The current statute reads: "the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the attorney for the Government or the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation." Note the use of the mandatory -- shall. Note also the low standard -- mere relevance. The ease of obtaining pen register and trap and trace orders is based on the assumption that only phone numbers, rather than the content of conversations, is being obtained. Under the SA 1562, this low standard will be used to obtain a wider scope of information.
National Scope of Orders. Note also that the above quoted language of current law states that pen register and trap and trace orders apply "within the jurisdiction of the court". The amendment would also change this. It would add this: "The order shall, upon service of the order, apply to any entity providing wire or electronic communication service in the United States whose assistance is required to effectuate the order."
Offering Virtual Stocks Can Violate Securities Laws
9/13. The U.S. Court of Appeals (1stCir) issued its opinion in SEC v. SG Ltd, a case regarding whether virtual shares in an enterprise existing only in cyberspace fall are affected by the federal securities laws. The Appeals Court, applying SEC v. Howey, reversed the District Court's dismissal of the SEC's complaint.
Facts. SG operated a web site called StockGeneration that offered shares in eleven "virtual companies" listed on the web site's "virtual stock exchange." SG arbitrarily set the purchase and sale prices of each of these imaginary companies in biweekly "rounds," and guaranteed that investors could buy or sell any quantity of shares at posted prices. SG advertised that investing in one of the stocks was a "game without any risk" and that it "is supported by the owners of SG, this is why its value constantly rises; on average at a rate of 10% monthly". SG further stated that "capital inflow from new participants provided liquidity for existing participants who might choose to sell their virtual shareholdings". SG later sharply reduced the prices of shares, and suspended all pending requests to withdraw funds. Finally, SG asserted that the web site offerings were merely a "game".
SEC Complaint. The SEC filed a civil complaint in U.S. District Court (DMass) alleging violation of the registration and anti fraud provisions of the federal securities laws. Specifically, the SEC alleged offer, sale or delivery of unregistered securities in violation of the Securities Act of 1933 § 5(a), (c), 15 U.S.C. § 77e(a), (c); the SEC also alleged fraud in the offer or sale of securities in violation of § 17(a), 15 U.S.C. § 77q(a); finally, the SEC alleged fraud in purchase or sale of securities in violation of the Securities Exchange Act of 1934 § 10(b), 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. 240.10b-5. The SEC alleged that SG's offerings constituted investment contracts.
District Court Dismissal. The District Court dismissed the complaint for failure to state a claim upon which relief can be granted pursuant to FRCP 12(b)(6), holding that the complaint did not allege facts constituting transactions in investment contracts.
Appeals Court. The First Circuit reversed. It held the SEC had satisfied the three pronged test set out in the seminal case of SEC v. Howey, 328 U.S. 293 (1946), to determine whether SG offered investment contracts, that is, (1) the investment of money (2) in a common enterprise (3) with an expectation of profits to be derived solely from the efforts of the promoter or a third party.
IIPA Supports Trade Promotion Authority Bill
9/13. The International Intellectual Property Alliance wrote a letter [PDF] to House Rules Committee Chairman David Dreier (R-CA) urging prompt enactment of Trade Promotion Authority (TPA), which is also known as fast track.
It wrote that "If America's copyright industries are to remain successful in global markets, the President, in consultation with Congress and the private sector, must have effective and credible authority to negotiate bilateral, regional and multilateral trade agreements that will reduce barriers to American creative works, and enhance intellectual property protection and enforcement available for American creators. Failure to grant TPA will limit our nation’s efforts to secure non-discriminatory market access and achieve strong intellectual property rights protection and enforcement worldwide. If Congress fails to act promptly, America’s ability to retain its leadership role in setting world trade standards will be seriously jeopardized."
The signatories included the heads of the IIPA, Motion Picture Association of America, American Publishers Association, Business Software Alliance, Recording Industry Association of America, and the Interactive Digital Software Association.
USPTO Funding
9/13. HR2500, the FY 2002 appropriations bill for the Departments of Commerce, Justice, State and the Judiciary, was passed by the Senate late on Thursday, September 13. It provides for $1,139,001,000 in funding for the USPTO, derived from user fees.
The includes the following language regarding USPTO funding: "For necessary expenses of the United States Patent and Trademark Office provided for by law, including defense of suits instituted against the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, $856,701,000, to remain available until expended, which amount shall be derived from offsetting collections assessed and collected pursuant to 15 U.S.C. 1113 and 35 U.S.C. 41 and 376, and shall be retained and used for necessary expenses in this appropriation: Provided, That the sum herein appropriated from the general fund shall be reduced as such offsetting collections are received during fiscal year 2002, so as to result in fiscal year 2002 appropriation from the general fund estimated at $0: Provided further, That during fiscal year 2002, should the total amount of offsetting fee collections be less than $856,701,000, the total amounts available to the United States Patent and Trademark Office shall be reduced accordingly: Provided further, That an additional amount not to exceed $282,300,000 from fees collected in prior fiscal years shall be available for obligation in fiscal year 2002, to remain available until expended: ..."
FTC Funding
9/13. HR 2500, as passed by the Senate on September 13, provides $156,270,000 in funding for the Federal Trade Commission (FTC) for FY 2002.
Ninth Circuit Rules in Downing v. Abercrombie
9/13. The U.S. Court of Appeals (9thCir) issued its opinion [PDF] in Downing v. Abercrombie & Fitch, a case involving publication of pictures and names of individuals without their permission in an advertising catalogue. The Appeals Court reversed a District Court summary judgment for the advertiser. The individuals' intellectual property, privacy, and other, rights prevailed over the free speech and fair use rights of the advertiser.
Facts. Abercrombie & Fitch (AF) publishes a fat quarterly catalogue to advertise its clothing and other products. This advertising catalogue also contains some "articles". One edition of the catalogue published pictures and identities of the plaintiffs without their permission. The pictures were taken in Hawaii. The catalogue also included pictures of scantily clad models.
Complaint. Plaintiffs filed a complaint in U.S. District Court (CDCal) against AF alleging various federal and California claims. Plaintiffs alleged violation of California's common law and statutory prohibition against misappropriation of a person's name and likeness for commercial purposes, a violation of the Lanham Act for confusion and deception indicating sponsorship of Abercrombie goods, and a claim for negligence and defamation.
District Court. The District Court entered summary judgment for AF. It held that the California state claims were foreclosed because AF's use of the photograph was protected by the First Amendment; it also held that these claims were preempted by the federal Copyright Act. It further held that Hawaii law was the proper choice of law for some of these claims; that the Lanham Act claim was precluded by the First Amendment and it was also precluded by the nominative fair use doctrine; and that there was insufficient evidence to sustain the negligence or defamation claims.
First Amendment. The Appeals Court reversed on almost all issues, and remanded. It held that the First Amendment does not insulate AF in this case because its "articles" were advertising copy.
Copyright Act Preemption. The Appeals Court also held that the federal Copyright Act does not preempt this action. It wrote that while the Copyright Act does preempt state laws that are equivalent to the exclusive rights contained in § 106 of the Copyright Act, in this case, "it is not the publication of the photograph itself, as a creative work of authorship, that is the basis for Appellants' claims, but rather, it is the use of the Appellants' likenesses and their names pictured in the published photograph."
Other Issues. The Appeals Court also reversed the District Court on the choice of law issue. The Appeals Court also reversed District Court's rejection of the Lanham Act 43(a) claim, and its holding for AF on nominative fair use.
Scantily Clad Models. However, the Appeals Court affirmed the summary judgment on the defamation claim. Plaintiffs had submitted no evidence of injury. Apparently, it is not defamation to depict someone in a clothing catalogue with nude or scantily clad beach models.
BXA Issues Injunction for Exporting Computer Equipment to Terrorist States
9/13. The Bureau of Export Administration (BXA) published a notice in the Federal Register regarding its injunction against Infocom, its officers, and others, for selling computer equipment to Libya and Syria in violation of the Export Administration Regulations (EAR). The notice contains a full copy of the BXA's September 6 order, which provides, in part, that Infocom and others "may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as "item") exported or to be exported from the United States that is subject to the Export Administration Regulations (EAR), or in any other activity subject to the EAR ..." The notice further provides "notice to companies in the United States and abroad that they should cease dealing with Infocom ..." Infocom is based in Richardson, Texas. Its CEO is Bayan Medhat Elashi. Four other Elashis are covered by the order, as is Fadwa Elafrangi, the majority owner of Infocom. The order also covers Tetrabal Corporation, Inc. See, Federal Register, September 13, 2001, Vol. 66, No. 178, at pages 47630 - 47632.
FCC Adopts Software Defined Radio Rules
9/13. The FCC adopted rule changes at its September 13 meeting to accommodate the authorization and deployment of a software defined radios (SDRs). The FCC released a statement, in which it wrote: "Software defined radios can be quickly reprogrammed to transmit and receive on multiple frequencies in different transmission formats. This reprogramming capability could change the way users traditionally communicate across wireless services and promote more efficient use of radio spectrum. In a software defined radio, functions that were formerly carried out solely in hardware, such as the generation of the transmitted radio signal and the tuning of the received radio signal, are performed by software. Because these functions are carried out in software, the radio is programmable, allowing it to transmit and receive over a wide range of frequencies and to emulate virtually any desired transmission format." (ET Docket 00-47.)
Michael Powell Addresses Events of September 11
9/13. FCC Chairman Michael Powell made a statement at the FCC's September 13 meeting regarding the events of September 11. He praised the work of telecom companies to maintain service in New York City, and stated that "I am confident that these efforts will continue to ensure the nation's communications infrastructure will operate effectively to serve the communications needs of our citizens and an efficient functioning economy."
Martin Names Bohigan to be Legal Advisor
9/13. FCC Commissioner Kevin Martin named Catherine Bohigian to be his Legal Advisor on cable and mass media issues. Like Martin, she previously worked in the Washington DC office of the law firm of Wiley Rein & Fielding. Prior to law school, she worked as a legislative analyst for Bellcore (now Telcordia Technologies), and as a program analyst for IBM governmental affairs. See, FCC release.
FCC Examines Ownership Rules
9/13. The FCC adopted, but did not release, a Further Notice of Proposed Rulemaking (FNPRM) to review its horizontal and vertical limits for cable companies. (CS Docket Nos. 98-82 and 96-85, and MM Docket No. 92-264.) See, FCC release. The FCC also adopted, but did not release, a NPRM to review its rule barring common ownership of a broadcast station and daily newspaper in the same market, and to consider whether or to what extent the rule should be revised. (MM Docket No. 01-235). See, FCC release.
Cancelled Hearings
9/13. Most Congressional hearings that had been scheduled for Thursday, September 13, were cancelled or postponed, including the House Judiciary Committee's meeting to mark up HR 1552 (Internet Tax Nondiscrimination Act), and the Senate Commerce Committee's Science, Technology, and Space Subcommittee's hearing on digital divide issues.
Senate Committee Examines Cyber Terrorism
9/12. Since the events of September 11, almost all public hearings and meetings on Capitol Hill have been cancelled or postponed. The House and Senate both met to pass a joint resolution on September 12. One of the few previously scheduled events that did proceed on September 12 was a hearing of the Senate Governmental Affairs Committee on cyber terror threats to America's critical information infrastructure.
The events of September 11 were not an attack on information systems. However, the members of the Committee examined what terrorist threats exist to these systems, and what should be done to minimize the risks. The Committee has jurisdiction over information infrastructure of government agencies only. Nevertheless, the Senators addressed both government and private sector issues. The Senate Judiciary Committee's Technology, Terrorism, and Government Information Subcommittee had scheduled a hearing on another matter for September 12. But, it cancelled its hearing.
Sen. Joe Lieberman (D-CT), the Chairman of the Committee, presided. Sen. Fred Thompson (R-TN), the ranking Republican also participated. Sen. Bob Bennett (R-UT) was present throughout the two hour hearing. Sen. Jim Bunning (R-KY), Sen. Carl Levin (D-MI), Sen. Tom Carper (D-DE), and Sen. Mark Dayton (D-MN), also participated.
Sen. Lieberman said that the events of September 11 begin a new era for American national security, and that future attacks will also target critical information infrastructure. The primary witness, Joel Willemssen of the General Accounting Office, testified that "federal computer systems are riddled with weaknesses that continue to put critical operations and assets at risk." See, prepared testimony [PDF] of Willemssen.
Sen. Lieberman questioned Willemssen about the reasons for lack of preparedness in both the public and private sectors. Willemssen stated that Presidential Decision Directive 63 [PDF], dated May 1998, has not been adequately implemented. He also said that the problem is that agencies have not made this a priority. Willemssen testified that another problem is that "the private sector does not always want to share information."
Sen. Thompson suggested that the way to get the private sector to share information about cyber security with government is to give it the same sort of statutory protection that the Congress gave in The Y2K Act. Sen. Bennett interjected, "Have I got a bill for you," perhaps referring to HR 2435, the Cyber Security Information Act.) Willemssen agreed with them. Willemssen also testified later that he supports a proposal contained in a bill sponsored by Sen. Lieberman and Sen. Thompson that would create a new federal office of Chief Information Officer. (See, S 803, the E-Government Act of 2001.)
Sen. Dayton pressed Willemssen on specific types of cyber threats. He responded that these are "disruption and stoppages of operation",  "inappropriate disclosure of sensitive information", and that terrorists might "change or modify or destroy data ..." Sen. Carper asked Willemssen which sectors of the economy are most secure from cyberthreats, and which are most vulnerable. He responded that banking, finance, and electric power are in the best position, while the public health sector is weak.
Sept 11 Events Seen As an Attack Upon Infrastructure
9/12. Sen. Bennett made the point that the attacks of September 11 were not only attacks upon human life and symbols of America; they were also successful attacks upon American infrastructure. Moreover, said Sen. Bennett, they had some of the same sort of results as a major cyber attack upon information infrastructure. He noted that the attacks succeeded in completely shutting down both the air traffic system and the stock markets. He also noted that a significant amount of data was destroyed in the World Trade Center in law offices, brokerages, and other offices.
Sen. Bennett was the Senate's point man on ensuring that critical information systems of the federal government were not adversely affected as a result of failure to remedy Y2K conversion problems. He is now the Senate's leading authority on terrorist threats to the critical information infrastructure.
More Statements From Cyber Terrorism Hearing
More Money.
Sen. Thompson stated that "we have to get more serious." He said this includes a larger military budget, more money for intelligence, and more money for infrastructure protection. Sen. Thompson also stated that the Governmental Affairs Committee has been active in promoting government information security. He cited hearing held by the Committee, reports prepared for it by the GAO, and bills passed. He also distributed a CYA memo which listed 17 of actions taken by the Committee.
New Leadership. Sen. Bennett said that the U.S. must reform the way the federal government is organized to protect against attacks on America's information infrastructure. He stated that it was a mistake in PDD 63 to put the leadership of this effort at the FBI's National Infrastructure Protection Center. He reasoned that the FBI and Department of Justice are law enforcement agencies focused on detecting and prosecuting past crimes. He said that what is needed is leadership that focuses of prospective threats, and strategically seeks to prevent them from being realized. However, he did not say who this should be.
GAO Criticizes Lack of Computer Security at Education Department
9/12. The GAO released a report [PDF] titled "Education Information Security: Improvements Made But Control Weaknesses Remain." The GAO concluded that the Department of Education "has made progress in correcting security weaknesses identified by Education’s IG, and that the department has taken other actions to improve security. However, we identified weaknesses that place critical financial and sensitive grant information at risk of unauthorized access and disclosure, and key operations at risk of disruption. Specifically, Education did not sufficiently protect its network from unauthorized users, effectively manage user IDs and passwords, appropriately limit access to authorized users, effectively maintain system software controls, or routinely monitor user access activity. Further, Education was not providing adequate physical security for its computer resources ..." The report was prepared for Rep. Peter Hoekstra (R-MI) and Rep. Charlie Norwood (R-GA).
Cancellations and Postponements
9/12. The House Commerce Committee's Subcommittee on Telecommunications and the Internet postponed its hearing titled "Transition to Digital Television: Progress on Broadcaster Buildout and Proposals to Expedite Return to Spectrum", which had been scheduled for September 12.
9/12. The Senate Judiciary Committee's Technology, Terrorism, and Government Information Subcommittee postponed its hearing on S 1055, which had been scheduled for Wednesday afternoon, September 12. The bill is sponsored by Sen. Dianne Feinstein (D-CA). It would require the consent of an individual prior to the sale and marketing of such individual's personally identifiable information. No new date for the hearing has yet been set.
5th Circuit Rules on Jurisdiction in Patent Related Appeals
9/12. The U.S. Court of Appeals (5thCir) issued its opinion in James Logan v. Burgers Ozark Country Cured Hams, a case involving several issues, including when the U.S. Court of Appeals for the Federal Circuit has jurisdiction over appeals from judgments of U.S. District Courts in disputes which implicate patents. The Fifth Circuit held that it had jurisdiction, and affirmed the District Court on substantive issues.
Patent Infringement Case
9/12. The U.S. Court of Appeals (FedCir) issued its opinion in Fin Control Systems v. OAM, a patent infringement case involving removable surfboard fins. The District Court granted summary judgment that OAM did not infringe Fin Control System's U.S. Patent No. 5,464,359, either literally or under the doctrine of equivalents. The Appeals Court affirmed in part, vacated in part, and remanded.
9th Circuit Affirms in FTC v. Gill
9/12. The U.S. Court of Appeals (9thCir) issued its opinion in FTC v. Gill, affirming a District Court judgment in an FTC civil enforcement action brought under the Credit Repair Organizations Act (15 U.S.C. §§ 1679-1679j). The FTC is a federal agency with authority to bring enforcement actions to stop a wide range of deceptive business practices that harm consumers. In recent years, it has been involved in shutting down Internet fraud.
This is not an Internet fraud case. Rather, the defendants operated a credit repair scam. The FTC filed a complaint in the U.S. District Court (CDCal) seeking a permanent injunction from participating in the credit repair business, and monetary relief in the form of consumer redress, restitution and disgorgement. Defendant Keith Gill is an attorney in California. The defendants fought the action. The FTC won in the District Court (including a $1,335,912.14 money judgment). The Appeals Court affirmed.
9/12. The USPTO published a notice [PDF] in the Federal Register regarding its new rules relating to civil actions and claims involving the USPTO. These rules provide procedures for service of process, obtaining USPTO documents and employee testimony, indemnifying employees, and making a claim against the USPTO under the Federal Tort Claims Act. See, notice in Federal Register, Vol. 66, No. 177, September 12, 2001, at pages 47387 - 47392.
FCC News
9/12. The FCC announced that the meeting of the Commission set for September 13 at 9:30 AM will proceed as scheduled. The agenda remains unchanged.
9/12. The FCC announced that the meetings its Public Safety National Coordination Committee scheduled for September 13 and 14 have been postponed. The FCC has not yet rescheduled these meetings. See, FCC release [PDF].
9/12. The FCC issued a statement regarding the effect of its closure on September 11 on filing and fee payment deadlines. It stated: "Due to the national emergency that occurred yesterday, September 11, the Federal Communications Commission closed its offices early in the morning. According to section 1.4(e)(1) of the Commission's rules, 47 C.F.R. Section 1.4(e)(1), all filings, paper and electronic, that were due on September 11, 2001, are due today, September 12, 2001, the Commission's next official work day after early closing. In addition, September 11th does not count in computing filing periods that are less than seven days. See 47 C.F.R. Section 1.4(g)."
9/12. FCC Chairman Michael Powell praised the "tireless and heroic efforts of those in the telecommunications industry who are working hard to keep our most fundamental communications systems – such as telephone service, wireless phone service and television service – operating efficiently under the circumstances." See, FCC release.
Verizon Assesses Damage to its New York City Facilities
9/12. Verizon stated that it "began work to restore phone service to a major switching center that was damaged as a result of yesterday's attacks on the World Trade Center." See, Verizon release. On September 11, Verizon stated "Two facilities at the World Trade Center that handled calls to and from the complex were destroyed in the building collapse." It also stated that "Verizon has as many as 10 wireless cell cites in New York City that are not operating." See, Verizon release.
California Upholds Conviction for Removing Battery from Cordless Phone
9/12. The Court of Appeal of California (4/2) issued its opinion [PDF] in People v. Tafoya, affirming a criminal conviction of a California man for removing a battery from a cordless telephone. This is a domestic abuse case. However, in addition to abuse related charges, the defendant was charged with violation of California Penal Code, Section 591, which makes it a crime unlawfully and maliciously to injure or obstruct a telephone line "or appurtenances or apparatus connected therewith". The Court of Appeal held that "the jury could properly find defendant Michael Martin Tafoya guilty under section 591 based on the evidence that, during an argument with his estranged wife, he removed the battery from her cordless phone. This is true even though she was still able to call the police from another phone." However, the Court of Appeal reasoned that "it does not make it a crime to leave a phone off the hook either negligently or accidentally."
Federal Government Closes On Tuesday
9/11. Government offices, the Congress, and Courts closed Tuesday morning, September 11. Congressional hearings and meetings that started early Tuesday morning were cut short, and buildings were evacuated. President Bush stated in his address Tuesday night that Federal agencies in Washington will be open for business on Wednesday. The House and Senate are both scheduled to meet Wednesday morning.
The status of many previously scheduled hearings and other events has not been determined. Tech Law Journal's calls to many offices went unanswered on Tuesday. Some staff and officials who were reached stated that scheduling decisions had not yet been made.
Witnesses and other participants are currently unable to fly into Washington DC. Nevertheless, some events scheduled for Wednesday will proceed. For example, the Senate Governmental Affairs Committee hearing on the security of critical governmental infrastructure will be held a 11:00 AM, rather than its previously scheduled time of 9:30 AM. Sen. Joe Lieberman (D-CT) and Sen. Fred Thompson (R-TN) are the Chairman and ranking Republican on the Committee.
The Senate Judiciary Committee's Technology, Terrorism, and Government Information Subcommittee is scheduled to hold a hearing on S 1055, a privacy bill sponsored by Subcommittee Chairman Sen. Dianne Feinstein (D-CA). Her staff told TLJ late Tuesday that they did not know if this hearing would proceed on Wednesday. This bill would require the consent of an individual prior to the sale and marketing of such individual's personally identifiable information.
Privacy Law
9/11. The development of laws which implicate individual privacy -- particularly laws regarding the collection of information by law enforcement entities -- may be affected by the events of Tuesday. In past debates over issues such as electronic surveillance, Carnivore, CALEA, ECHELON, and encryption restraints, government and law enforcement officials have usually cited several threats that warrant expanded law enforcement authority -- drug dealers, money launderers, child pornographers, and international terrorists. Historically, privacy advocates have downplayed the seriousness of these threats. The final argument, regarding terrorism, may now take on new meaning.
9/11. The Senate Judiciary Committee postponed its hearing on the nomination of John Walters to be Director of National Drug Control Policy, which had been scheduled for the morning of September 11. Several groups which advocate privacy rights have urged the Committee to examine the impact of the War on Drugs on privacy rights. These groups have urged the Committee to examine the government's use of electronic surveillance, Carnivore, and ECHELON.
Judicial Conference Postpones Meeting
9/11. The Judicial Conference of the U.S., which had been scheduled to meet at the Supreme Court of the United States Tuesday afternoon, postponed its meeting. The Conference makes policy for the federal courts. It had been scheduled to consider the recommendations contained in the report [PDF] titled "Report on Privacy and Public Access to Electronic Case Files." This report was prepared by the Administrative Office of U.S. Courts' Committee on Court Administration and Case Management. It 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, AOUSC release [PDF]. The Supreme Court closed on Tuesday morning. Court guards bearing shotguns took up positions at its entrances.
USPTO Clarifies Affect of Tuesday Closing
9/11. The USPTO closed on September 11. Acting chief Nicholas Godici issued a statement regarding the affect of the closing on filing and fee payment deadlines. He wrote that "Any action or fee due on September 11, 2001, will be considered as timely for the purposes of, e.g., 35 U.S.C §§ 119, 120, 133 and 151, if the action is taken, or the fee paid, on the next succeeding business day on which the Patent and Trademark Office is open."
Telecommunications Networks
9/11. Telecommunications carriers issued statements regarding the status of their landline and cellular phone networks. See, statements by AT&T, BellSouth, Sprint, and Verizon.
Verizon, which is the incumbent local exchange carrier in both New York City and Washington DC, stated that its "Two facilities at the World Trade Center that handled calls to and from the complex were destroyed in the building collapse. ... The company has accounted for most of these employees." Also, "At 140 West Street in Manhattan, the company's operations center was evacuated before the WTC buildings collapsed. Normally, 1,737 employees are assigned to that building."
Verizon also stated that it has "as many as 10 wireless cell cites in New York City that are not operating. These are mostly out of service because facilities that connect the sites to the landline network went through the World Trade Center." Verizon also detailed its deployment of temporary cell cites, as well as increasing power at cell cites in Northern New Jersey adjacent to southern Manhattan.
9/11. Meanwhile, the Senate Commerce Committee postponed its hearing on E-911 issues, which had been scheduled for Tuesday afternoon.
CSSPAB Cancels Meetings
9/11. The Computer System Security and Privacy Advisory Board (CSSPAB) had been scheduled to hold three days of meetings on September 11-13. The CSSPAB advises the Secretary of Commerce and the Director of NIST on security and privacy issues pertaining to federal computer systems. The meeting was cancelled just after it began early on the morning of September 11. The CSSPAB meets quarterly. This meeting will not be rescheduled. The next quarterly meeting will be in early December. See, original notice in Federal Register, August 27, 2001, Vol. 66, No. 166, at Pages 45009 - 45010.
Karen Kincaid
9/11. Karen Kincaid, a partner in the communications practice of the law firm of Wiley Rein & Fielding, died on September 11 in the crash of American Airlines Flight 77. See, WRF statement.
More News
9/11. Microsoft filed its Reply Brief with the Supreme Court in Microsoft v. U.S.A. This is its reply to the government's opposition to its petition for writ of certiorari seeking to have the entirety of Judge Jackson's findings of fact and conclusions of law and judgment set aside for improper conduct by the Judge.

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