|News Briefs from
October 11-15, 2001
Legislators Introduce Tech Talent Bill
10/15. Rep. Sherwood Boehlert (R-NY)
and Rep. John Larson (D-CT) announced
that they will introduce a bill named the "Tech Talent Bill" that
would establish a competitive grant program through the National Science Foundation for undergraduate
institutions pledging to increase the number of U.S. citizens or permanent
residents obtaining degrees in science, math, engineering and technology fields.
The bill would authorize $25 Million in FY02.
Rep. Boehlert is Chairman of the House
Science Committee. Rep. Larson, who is also a member of the Committee,
stated in a release that
"In the wake of September 11, we must remember that there is a strong
connection to be made between our national security and the level of science and
technology proficiency in America." See also, Committee release.
Sen. Joe Lieberman (D-CT),
Christopher Bond (R-MO), Barbara Mikulski (D-MD), Bill Frist (R-TN), and Pete
Domenici (R-NM) are sponsoring a companion bill in the Senate. See, Lieberman
Even if the FCC, NextWave, and the re-auction winners reach a settlement, it is
hypothetically possible that other communications companies that did not
participate in the re-auction would bring legal challenges to the FCC's handling
of this process.
September 11 Serves As Rationale for Tech Initiatives
10/15. OPINION. Since the terrorist attacks of September 11, proponents of
various technology related bills and regulatory initiatives have argued that
events of September 11 mandate adoption of their proposals. Yet, many of these
proposals predate September 11, and have little nexus to the events of September
11. Examples includes some provisions of the USA Act and PATRIOT Act, the
Internet gambling provisions of the Financial Anti Terrorism Act, the Tech
Talent Bill, and proposals to expand the regulatory authority of the FCC.
Late last week the House and Senate passed similar bills designed to give law
enforcement and intelligence agencies increased authority to investigate and
prosecute. These bills, S 1510,
the USA Act, and HR 2975,
the PATRIOT Act, no doubt enhance the ability of government agencies to fight
terrorism. However, many of the provisions apply to crimes across the board, and
not just to foreign intelligence gathering, terrorism, and related matters.
Similarly, on October 11 the House
Financial Services Committee adopted an amended version of HR 3004, the
Financial Anti Terrorism Act of 2001. § 307 provides, in part, that
"No person engaged in the business of betting or wagering may knowingly
accept, in connection with the participation of another person in unlawful
Internet gambling (1) credit, or the proceeds of credit, extended to or on
behalf of such other person (including credit extended through the use of a
credit card)". What is the connection between the use of credit cards to
place bets over the Internet, and terrorism?
Likewise, this week Representatives and Senators introduce bills to increase
government funding for math and science education -- again, citing the events of
Finally, FCC Commissioner Michael Copps argued in a speech on October 15 that
the September 11 means that the FCC "has a larger job to do".
FCC Commissioner Wants to Expand FCC Regulation
10/15. FCC Commissioner Michael
Copps gave a speech
in Washington DC in which he argued that the terrorist attacks of September 11
mean that the FCC should assume expanded regulatory authority, particularly with
respect to the Internet.
"What does September 11 mean for how the FCC does business?",
Commissioner Copps asked himself rhetorically. He answered his own question:
"I believe the Federal Communications Commission has a larger job to
The FCC, which has statutory mandates with
respect to the Communications
Assistance for Law Enforcement Act (CALEA) and emergency 911 legislation,
will likely pursue a more vigorous and expeditious implementation of these
statutes. Copps referenced these topics. But, Commissioner Copps' speech was
also littered with references to the Internet, cyberspace, and information
systems -- all technologies over which the FCC now has no general statutory
"The Commission must be in the vanguard of our homeland security
efforts," said Commissioner Copps. He continued that the FCC's
"participation in the homeland security effort is not only logical but also
imperative. Truly secure and reliable telecommunications and cyberspace systems
are no longer a luxury after September 11th."
The FCC is a regulatory commission made up of lawyers, lacking both technical
expertise in, and statutory authority over, "cyberspace systems". One
government agency with a statutory mandate in this area is the National Infrastructure Protection Center (NIPC).
Commissioner Copps did explain the source of this new FCC regulatory power:
"the public interest" references contained in the Communications Act
He elaborated: "America will mobilize the great power of its communications
and broadcast and information systems to serve the safety and security of all
our people. In the final analysis, the safety of the people is the first and
foremost responsibility of government."
Commissioner Copps spoke to the Federal
Communications Bar Association, a Washington DC group made up largely of
lawyers who practice before the FCC, work for large telecommunications
companies, or work for the FCC.
Novell v. Microsoft
10/15. Novell stated that Microsoft
"has agreed to stop the dissemination of statements about Novell that are
the center of Novell's false advertising lawsuit filed Oct. 1 against Microsoft.
Microsoft has also agreed to send a retraction letter along with corrective
information ..." See, Novell
Novell filed a complaint
in U.S. District Court (DUtah) against Microsoft alleging that Microsoft made
false and misleading statements about Novell's NetWare 6. Novell alleged
violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(b),
and violation of the Utah Truth in Advertisings Act.
USTR Discusses Trade, APEC and WTO Round
Robert Zoellick held a press conference in Kuala Lumpur, Malaysia, in which he
addressed the Asia Pacific Economic Cooperation (APEC) meetings scheduled for
October 17-21 in Shanghai, China, the upcoming meeting in Doha, Qatar, and a new
WTO round of trade negotiations. He was also asked about other issues. See, transcript.
Gov. Davis Signs School Computer Bill
Gov. Gray Davis signed Senate
Bill 388, a bill to facilitate the selling or leasing of computers and
Internet appliances to students' parents by school districts. The bill provides
that "a school district may sell or lease Internet appliances or personal
computers to parents of pupils within the school district, for the purpose of
providing access to the school district's educational computer network, at a
standard price, not to exceed the cost incurred by the school district in
purchasing the Internet appliance or personal computer." AB 388 was
sponsored by Sen. Deirdre
Alpert (D-San Diego).
Order appointing Eric
Green mediator in the Microsoft antitrust case, 10/12 (PDF, USDC).
10/15. Brent Slosky joined the Denver office of the law firm of Hogan & Hartson as a partner. He previously
worked at the law firm of Brownstein Hyatt
& Farber in Denver. His practice focuses on corporate transactions, with
an emphasis on private capital formation and the structuring and financing of
mergers and acquisitions, including for Internet based telecommunications
businesses and Internet service satellite companies. See, release.
Fenwick & West Elects Partners
10/13. The law firm of Fenwick & West
elected new partners, including Stephen
Gillespie, Samuel Angus,
and John Ryan.
Gillespie works in the firm's Intellectual Property Group, focusing on
technology licensing and Internet commerce counseling. Angus works in the firm's
Corporate Group, concentrating on advising start up and venture backed
companies, equity and debt financings, mergers and acquisitions and strategic
and joint venture transactions. Hixson works in the Employment and Labor Law
Group. Ryan works in the Tax Group. See, F&W
Representatives Announce Outline for Privacy Legislation
10/12. Rep. Cliff Stearns (R-FL), Rep. Billy Tauzin (R-LA), Rep. Bob Goodlatte (R-VA), and Rep. Rick Boucher (D-VA) held a press
conference to outline a proposal for future privacy legislation. The four
released a one page outline,
but have not yet introduced a bill. The proposal calls for preemption of state
laws, FTC enforcement, and no private right of action. The proposal would also
apply to both online and offline entities that collect personally identifiable
information. It recommends requiring privacy statements, opportunity to limit
sale or disclosure of information, security statements, and safe harbor
provisions. The four suggested that legislation would be forthcoming early next
Rep. Goodlatte said that one goal is to "make absolutely certain that we
preempt state legislatures from creating a massive and conflicting array of
regulatory entanglements that would, I think, harm are efforts to truly protect
privacy while promoting the Internet." He also said that he wants to
"preempt anyone in the Congress from introducing legislation that is a
bureaucratic fix to this problem."
Rep. Tauzin also addressed privacy standards of government web sites. "I
think that it is abhorrent that any federal web site should have a cookie on
Rep. Stearns is Chairman of the House
Commerce Committee's Subcommittee
on Commerce Trade and Consumer Protection, which has held six hearings on
Internet privacy this year. However, he has not introduced any legislation. He
commented on the Senate Commerce
Committee: "Fritz Hollings has dropped a bill, but he did not have the
hearings we had. So, I think we have a knowledge of this issue here in the
House, in our Committee ..."
Rep. Boucher addressed "the means by which enhanced privacy guarantees be
extended to Internet users." He said that "it is very important that
that anyone who uses the Internet have notice of what information is collected
web bugs or other technologies that enable the web site to collect information.
So, every web site that collects information should have a statement that is
readily accessible to the web site visitor of the precise information which is
Rep. Boucher also stated that "the web site should put forward information
about how the information, once collected, is used, and provide clear disclosure
of that. If it is used internally for its own marketing purposes, that fact
would be reflected. If it is conveyed under any circumstances to third parties,
that fact would be stated, and in my opinion, there ought to be some at least
generic description about the kinds of third parties who have access to the
Rep. Boucher continued that "once that information is made available to the
web site visitor, he needs to have an opportunity to act on it. And so a third,
very important principle, is the ability for the web site visitor to opt out and
to decline to have any information about him collected. As a practical matter,
that might mean that he needs to leave the web site without using the services
of the web site." He also reiterated the viewpoint that there is a need for
preemption, and a safe harbor.
Anti Terrorism Bills Pass Senate and House
10/12. The Senate passed S 1510, the USA
Act, by a vote of 96 to 1. Sen. Russ
Feingold (D-WI) cast the lone vote in opposition. See, Roll Call No.
302. The House passed a substitute version of HR 2975,
the PATRIOT Act, by a vote of 337 to 79 late on Friday afternoon, October 12.
Call No. 386.
The House Rules Committee met at
8:00 AM on Friday to adopt H Res 264,
a rule to substitute a bill that closely resembles the Senate bill, in place of
the version of HR 2975 that was unanimously approved by the House Judiciary Committee (HJC) on
October 3. The full House then approved this rule by a vote of 214 to 208, on a
largely party line vote, on Friday afternoon. Much of the criticism voiced on
the House floor focused on this last minute procedure to bypass the HJC bill.
During final debate on the bill, supporters stressed the need of law enforcement
and intelligence agencies to have new tools to fight terrorism. Rep. James Sensenbrenner (R-WI)
stated that "we have to change the way we think about safety and
security." Opponents argued that the bill violates civil liberties. Rep. John Conyers (D-MI) compared it to
the Alien and Sedition Act, suspension of habeas corpus during the Civil War,
and internment of Americans of Japanese ancestry during World War II. However,
after several close procedural and dilatory votes, the House overwhelmingly
voted for final passage.
Both bills contain many provisions that would increase the ability of law
enforcement, intelligence, and other government agencies to combat terrorism,
including expanded authority to conduct electronic surveillance of phone and
Internet communications. While the bills passed by the House and the Senate are
now very similar, there remain some differences. For example, the House bill
contains a five year sunset provision (the HJC version had included a two year
sunset), while the Senate bill has no sunset provision. Now, either the Senate
must accept the House version, or the bill must go to a conference committee.
President Bush issued a statement
Friday morning praising the Senate for passing its bill. Later in the day, he
released a statement
praising the House for passing its version.
Content Versus Routing and Signaling Information
10/12. The House and Senate versions of the anti terrorism bill both extend pen
register and trap and trace authority to "routing" and
"addressing" information in an "electronic communication".
Pen registers and trap and trace devices are telephone industry concepts. The
former are used to obtain outgoing phone numbers. The latter are used to obtain
incoming numbers. Thus, these bills extend pen register and trap and trace
authority to Internet communications. Both bills provide that "such
information shall not include the contents of any communication". This
still leaves much open for future implementation and interpretation. The
definition is important because court orders authorizing pen registers and trap
and trace devices do not require a showing of probable cause, as is the case for
Rep. Bob Goodlatte (R-VA) and Rep. Rick Boucher (D-VA) had sought
language clarifying what constitutes content in the context of Internet
communications, but settled for language in the House Judiciary Committee (HJC)
report. During floor debate on October 12, Rep. Goodlatte asked whether the
HJC's report on HR 2975 also applies to the version of the bill approved by the
full House. Rep. James
Sensenbrenner (R-WI), the Chairman of the Committee, and floor manager of
the bill, stated that it does.
The following are relevant excerpts from this report, House Report
"This section updates the language of the statute to
clarify that the pen/register authority applies to modern communication
technologies. Current statutory references to the target `line,' for example,
are revised to encompass a `line or other facility.' Such a facility includes: a
cellular telephone number; a specific cellular telephone identified by its
electronic serial number (ESN); an Internet user account or e-mail address; or
an Internet Protocol (IP) address, port number, or similar computer network
address or range of addresses. In addition, because the statute takes into
account a wide variety of such facilities, section 3123(b)(1)(C) allows
applicants for pen register or trap and trace orders to submit a description of
the communications to be traced using any of these or other identifiers.
Moreover, the section clarifies that orders for the
installation of pen register and trap and trace devices may obtain any
non-content information -- `dialing, routing, addressing, and signaling
information' -- utilized in the processing or transmitting of wire and
electronic communications. [Footnote 1: Thus, for example, non-content
information contained in the `options field' of a network packet header
constitutes `signaling' information and is properly obtained by an authorized
pen register or trap and trace device.]
Thus, for example, an order under the statute could not
authorize the collection of email subject lines, which are clearly content.
Further, an order could not be used to collect information other than `dialing,
routing, addressing, and signaling' information, such as the the portion of a
URL (Uniform Resource Locator) specifying Web search terms or the name of a
requested file or article."
Third Circuit Rules in Computer Sabotage Case
10/12. The U.S.
Court of Appeals (3rdCir) issued its opinion in USA
v. Lloyd, reversing a declaration of mistrial in a case involving
Timothy Lloyd was the computer system administrator for Omega Engineering Corp.,
a New Jersey based manufacturer of industrial process measurement devices and
control equipment. He had a falling out with his employer, and eventually, was
fired. Prior to being fired he installed a malicious program on the central file
server of Omega's computer network. It caused Omega's design and production
computer programs to be permanently deleted after his termination. 1,200
computer programs were deleted and purged, crippling Omega's manufacturing
capabilities and resulting in a loss of millions of dollars in sales and
Lloyd was indicted and convicted by a jury of computer sabotage in violation of
18 U.S.C. § 1030(a)(5)(A) and 18 U.S.C. § 2. Subsequently, a trial juror
informed the District Court that during deliberations she saw a TV report on the
Love Bug computer virus. The District Court declared a mistrial. The U.S.
appealed. The Appeals Court reversed the grant of a new trial, reinstated the
conviction, and directed the District Court to proceed to sentencing.
Fed Circuit Reverses in FFDCA Case
10/12. The U.S.
Court of Appeals (FedCir) issued its opinion in Mylan
Pharmaceuticals v. Thompson, reversing the District Court's
preliminary injunction order in a case involving the statutory framework
governing new and generic drug approvals and its mechanisms for patent
Kotelly Names Mediator in Microsoft Case
10/12. The U.S.
District Court (DDC) named Eric Green to be a
mediator in the Microsoft antitrust case. He is a professor at the Boston
University's School of Law, where he teaches courses and seminars in evidence,
dispute resolution, complex processes, negotiation and mediation, and mass
torts. He is also the founder of two Boston firms specializing in alternative
PPI Backs Trade Promotion Authority Bill
10/12. The Progressive Policy Institute
(PPI), a Democratic party think tank, released a report
titled "Trade Promotion Authority: The Key Questions". It encourages
support for HR 3005, the Bipartisan Trade Promotion Authority Act of 2001, which
was passed by the House Ways and Means
Committee on Tuesday, October 9, by a vote of 26 to 13. The bill's lead
sponsor is Rep. Bill Thomas
(R-CA), Chairman of the Committee. Other sponsors include Rep. Cal Dooley (D-CA), Rep. William Jefferson (D-LA) and Rep. John Tanner (D-TN). The PPI
concluded that "The Dooley - Jefferson - Tanner - Thomas proposal is a good
approach to it, and deserves progressive support." The report was written
by Edward Gresser.
Seattle Prosecutor Assassinated
10/12. Thomas Wales, an Assistant U.S. Attorney for the Western District
of Washington in Seattle, died as a result of gunshot wounds inflicted on
Thursday night, October 11. He was responsible for prosecuting major business
crimes and bank frauds. He was also the Executive Assistant U.S. Attorney
to former U.S. Attorney Katrina Pflaumer at the time of the "Assassination
Politics" prosecutions. The USAO obtained a conviction of Carl
Johnson for sending threatening e-mail messages to federal judges and others.
Specifically, Johnson was convicted of one count of retaliating against a
judicial officer, one count of obstructing justice by making a death threat
against a judicial officer, and two counts of transmitting threatening
communications. The first three counts pertained to death threats against
federal judges. The fourth count pertained to a death threat sent to Bill Gates.
release number one and release number two regarding
the Assassination Politics matter. See also, USAO release
regarding the death of Wales.
People and Appointments
10/12. President Bush announced his intent to designate Thomas White to
be Acting Assistant Secretary of Defense for Special Operations and Low
Intensity Conflict. See, White
10/12. William Kolasky was named Deputy Assistant Attorney General in
charge of international antitrust and policy enforcement for the Department of
Justice's Antitrust Division. He was
previously a partner in the Washington DC office of the law firm of Wilmer Cutler & Pickering, where he was
co-chair of the firm's antitrust and competition practice. See, DOJ release.
GAO Releases Report on Infringement by States
10/12. The GAO released
a report [78 pages in PDF]
titled "Intellectual Property: State Immunity in Infringement
Actions." The report was prepared for Sen.
Orrin Hatch (R-UT), ranking Republican on the Senate Judiciary Committee.
10/12. The U.S. Court of Appeals for the
District of Columbia Circuit heard oral argument in U.S. Telecom
Association v. FBI, No. 00-5386.
10/12. The Department of Justice's Antitrust
Division released a document
titled "Merger Review Process Initiative". See also, DOJ release.
10/12. The Senate Judiciary
Committee's Subcommittee on Technology, Terrorism, and Government
Information held a hearing to examine the role of technology in preventing the
entry of terrorists into the U.S. See, prepared testimony of Glenn Fine
(Department of Justice), James Ziglar
(Immigration and Naturalization Service), Mary Ryan (State
Camarota (Center for Immigration Studies), Greg Spadorcio
(NEC Technologies), and Paul Collier
(Biometrics Foundation). See also, statement by
Sen. Patrick Leahy (D-VT).
House Committee Passes Internet Gambling Ban
10/11. The House Financial
Services Committee adopted an amended version of HR 3004, the Financial Anti
Terrorism Act of 2001, by a vote of 62 to 1. See, the manager's amendment
[PDF], which was approved. Rep. Mike Oxley
(R-OH), the Chairman of the Committee, and the sponsor of the bill, said in his opening statement
that the bill "will strengthen the ability of law enforcement to disrupt
the financing of terrorism, enhance the partnership between government and
industry to detect terrorist related transactions, and prevent terrorists from
accessing the U.S. financial system through foreign countries and
institutions." See also, committee release.
However, the bill also contains, at §§ 307 and 308, provisions which are aimed
at Internet gambling. This language is similar to stand alone bills that the
Committee has been considering.
§ 307 provides, in part, that "No person engaged in the business of
betting or wagering may knowingly accept, in connection with the participation
of another person in unlawful Internet gambling -- (1) credit, or the proceeds
of credit, extended to or on behalf of such other person (including credit
extended through the use of a credit card); (2) an electronic fund transfer or
funds transmitted by or through a money transmitting business, or the proceeds
of an electronic fund transfer or money transmitting service, from or on behalf
of the other person; or (3) the proceeds of any other form of financial
transaction as the Secretary may prescribe by regulation which involves a
financial institution as a payor or financial intermediary on behalf of or for
the benefit of the other person."
Sen. Baucus Addresses Trade Promotion Authority
10/11. Sen. Max Baucus (D-MT), Chairman
of the Senate Finance Committee,
gave a speech
on trade promotion authority legislation. The House Ways and Means Committee passed HR 3005,
the Bipartisan Trade Promotion Authority Act of 2001, by a vote of 26 to 13 on
Tuesday night, October 9. It is sponsored by Rep. Bill Thomas (R-CA), Rep. Cal Dooley (D-CA), and others. Sen.
Baucus stated that the House bill "addresses a number of the key issues
that many Members of Congress have expressed support for. I was especially
pleased to see many of the measures I have been pushing -- particularly on labor
and environment -- were included in this legislation. The Thomas Dooley bill is
far from perfect. But it is a good effort and an important step in the right
Anti Terrorism Bills Still Pending
10/11. On Thursday, October 11, the House debated and passed HR 3061,
a bill to make appropriations for the Departments of Labor, Health and Human
Services, and Education, and related agencies. The House has not yet passed its
anti terrorism bill, HR 2975,
the PATRIOT Act. Also on October 11, the Senate passed S 1447, the Aviation
Security Act. The Senate has yet to pass its anti terrorism bill, S 1510,
the USA Act.
District Court Grants Summary Judgment in PSINet v. Chapman
10/11. The U.S.
District Court (WDVa) issued its order and
opinion [PDF] in PSINet
v. Chapman, granting summary judgment that the 1999 amendment to
Code Ann. § 18.2-391, which criminalizes the dissemination by computer of
material that is harmful to minors, violates both the First Amendment and the
The District Court had previously enjoined enforcement of this portion of the
statute. See, Memorandum
Opinion and Order
dated August 8, 2001. See also, TLJ Story, Judge Overturns
Virginia Internet Porm Statute, August 10, 2000.
§ 18.2-391 is an anti porn provision that has long been on the books; it was
primarily directed at brick and mortar businesses. However, the Virginia
legislature amended the statute in early 1999 to include any "electronic
file or message", thus making clear that it encompasses the Internet. It is
this aspect of the statute that the District Court held unconstitutional.
Freedom of Speech. The Court concluded that "section 18.2-391 is a
content- based restriction on expression protected by the First Amendment, it is
presumptively invalid and can only be upheld if it survives strict scrutiny. ...
To satisfy strict scrutiny, the law in question must be (1) narrowly tailored to
(2) promote a compelling government interest." The Court found that
"the state's asserted interest in protecting, and helping parents to
protect, minors from sexually explicit materials is compelling." However,
it also found that the statute was not narrowly tailored. It reasoned that
"even if the government has a compelling interest in restricting speech,
that restriction must be narrowly tailored in order to survive strict scrutiny.
A law is narrowly tailored if it employs the least restrictive means to achieve
its goal and if there is a nexus between the government’s compelling interest
and the restriction." The Court continued that "The pre- amendment
version of section 18.2-391 applied only to traditional media in physical
spaces, and thus made it possible to restrict minors’ access to indecent
material without substantially burdening adult access. For example, in a brick
and mortar bookstore, a magazine considered harmful to minors can be wrapped in
protective covering and placed behind the counter where only adults can purchase
it. Presently, the same cannot be said for material on the Internet. That is,
efforts to comply with the 1999 Act will result in the exclusion of too many
adults from accessing material to be constitutionally sound."
Dormant Commerce Clause. Federal Judges have often struck down anti porn
and indecency statutes on First Amendment grounds. However, the District Court
in this case also held that the statute violates the dormant Commerce
Clause of the Constitution. This part of the opinion could have
implications for state regulation of the Internet and e-commerce.
The Court wrote that the "negative implication of the Commerce Clause, U.S.
Const. Art I., § 8, cl. 3, includes a prohibition on state regulation that
"discriminates against or unduly burdens interstate commerce and thereby
"imped[es] free private trade in the national marketplace." "
The Court continued that state laws regulating cyber porn "currently impose
a much greater burden on out-of-state businesses providing adult material on the
Internet than state laws regulating real-space pornography impose on
out-of-state adult magazine publishers and other real-space pornography
providers. ... Thus, to avoid prosecution, an adult Web site operator must
comply with the most restrictive state obscenity regulations if it is to make
its content available on the Web at all. In contrast, purveyors of real-space
pornography can choose to comply with the regulations of only those states to
which they affirmatively distribute. This leads the court to conclude that, due
to the current status of geographic filtering technology on the Internet,
section 18.2-391 violates the Commerce Clause."
Interception of Computer Trespasser Communications
10/11. Senators have agreed to debate four amendments offered by Sen. Russ Feingold (D-WI) to the Senate
anti terrorism bill, S 1510.
One amendment pertains to § 217, regarding interception of computer
trespasser communications. This section is intended to enable companies and
other entities obtain the assistance of law enforcement agencies to fight
distributed denial of service, and other, attacks on their systems.
As currently written, § 217 provides, in part, that "It shall not be
unlawful under this chapter for a person acting under color of law to intercept
the wire or electronic communications of a computer trespasser, if -- (i) the
owner or operator of the protected computer authorizes the interception of the
computer trespasser's communications on the protected computer; (ii) the person
acting under color of law is lawfully engaged in an investigation; (iii) the
person acting under color of law has reasonable grounds to believe that the
contents of the computer trespasser's communications will be relevant to the
investigation; and (iv) such interception does not acquire communications other
than those transmitted to or from the computer trespasser."
§ 217 further defines "computer trespasser" as "a person who
accesses a protected computer without authorization and thus has no reasonable
expectation of privacy in any communication transmitted to, through, or from the
protected computer". However, a computer trespasser does not include
"a person known by the owner or operator of the protected computer to have
an existing contractual relationship with the owner or operator of the protected
computer for access to all or part of the protected computer".
Sen. Feingold's amendment would limit the surveillance under § 217 to
electronic communications. It would also provide that it is the trespassory
communications, and not the trespasser, that the government is allowed to
monitor. It would also limit the duration of surveillance under this section to
Davis Signs Tech Schools Grant Bill
10/11. California Gov. Gray Davis signed Assembly
Bill 620, sponsored by Assembly Member Howard Wayne (D-San Diego). This bill
creates a High Tech High School Grant Program "to provide 10 one-time
grants to eligible school districts or charter schools for purposes of
establishing new high-tech high schools."
10/11. The SEC filed a civil complaint in
the U.S. District Court (SDNY) against AbsoluteFuture.com and several
individuals alleging manipulation of stock price in violation of § 17(a)
of the Securities Act of 1933, § 10(b) of the Securities Exchange Act of
1934, and Rule 10b-5 thereunder. AF is a Seattle based software company. See, SEC release.
Sen. Enzi Introduces Net Tax Moratorium and Sales Tax Bill
10/11. Sen. Mike Enzi (R-WY) introduced
S 1542, the Internet Tax Moratorium and Equity Act. This bill would make
permanent the existing moratorium on Internet access taxes, and extend the
current moratorium on multiple and discriminatory taxes for four years. It would
also and authorize states to enter into an interstate sales use tax compact, and
then require all remote sellers to collect and remit sales and use taxes. The
current moratorium is set to expire on October 21. The bill was referred to the Senate Committee on Health, Education,
Labor, and Pensions.
Rep. Stearns to Outline Privacy Bill
10/11. Rep. Cliff Stearns (R-FL),
announced that he will hold a press conference on Friday, October 12, to discuss
possible provisions for a federal baseline privacy statute. He stated in a
release that "The free flow of this information yields major economic
benefits. At the same time, consumers have legitimate concerns over the
availability and use of their personal information – concerns that could
impede the growth of e-commerce and other information-based activities. My goal,
and that of the Committee, is to address these concerns without unduly burdening
these vital industries."
Rep. Stearns is the Chairman of the House Commerce Committee's Subcommittee
on Commerce, Trade & Consumer Protection. This subcommittee has held
nine hearings this year that have addressed privacy issues.
Oct 11 FCC Meeting
10/11. Multi-Association Group (MAG) Plan. The FCC announced,
but did not release, at its October 11 meeting, an Order and a Further Notice of
Proposed Rulemaking in which it modified its interstate access charge rules and
universal service support system for rate of return ILECs. See, FCC
release. (CC Docket Nos. 00-256, 98-77 and 98-166.)
Accounting Rules. The FCC announced, but did not release, a Report and
Order and Further Notice of Proposed Rulemaking modifying its accounting rules
and its financial and operating data reporting requirements for ILECs.
release. (CC Docket Nos. 00-199, 97-212, 80-286, 00-199, 99-301 and 80-286.)
Exclusive Contracts. The FCC announced, but did not release, a Notice of
Proposed Rulemaking (NPRM) which initiates a proceeding to examine whether or
not to extend the prohibition on exclusive contracts for satellite delivered
cable or satellite delivered broadcast programming between vertically integrated
programming vendors and cable operators. See, FCC
release. (CS Docket No. 01-290.)
Digital TV Task Force. FCC Chairman Michael Powell announced the creation
of an FCC Digital Television (DTV) Task Force, to be chaired by Rick Chessen,
Associate Chief of the FCC's Mass Media Bureau. This task force will review the
ongoing transition to DTV, and make recommendations to the FCC concerning
priorities to facilitate the transition and promote the rapid recovery of
broadcast spectrum for other uses. See, FCC
NCE DTV. The FCC announced, but did not release, a Report and Order
regarding ancillary or supplementary use of digital TV capacity by noncommercial
licensees. The FCC ruled that Noncommercial Educational (NCE) Television
licensees are required to use their entire digital television (DTV) bitstream
capacity primarily for nonprofit, noncommercial, educational broadcast services.
by Chairman Powell, and statement
by Commissioner Copps. (MM Docket No. 98-203).
Go to News Briefs from October 6-10,