TLJ News from May 26-31, 2005

Supreme Court News

5/31. The Supreme Court issued three opinions, none of which are technology related. The Supreme Court has yet to issue its opinions in MGM v. Grokster (regarding copyright and P2P systems), NCTA v. Brand X (regarding regulation of broadband internet services), and Merck v. Integra (regarding a research exemption to patent infringement).

The Supreme Court denied certiorari in Global Naps v. Verizon New England, No. 04-1284. See, Order List [10 pages in PDF] at page 4.

The Supreme Court denied rehearing in Focus Media v. NBC, No. 04-1107. See, Order List [10 pages in PDF] at page 9. On August 2, 2004, the U.S. Court of Appeals (9thCir) issued its opinion [23 pages in PDF] in this involuntary Chapter 7 bankruptcy case involving a company that booked and paid for commercial spots from television and radio stations on behalf of advertising clients. The Appeals Court affirmed the District Court. This case is App. Ct. No. 03-55808, and U.S. District Court (CDCal) No. CV-01-01146-AHS.

The Supreme Court denied rehearing in Colida v. Qualcomm, No. 04-8643, and Colida v. Sanyo, No. 04-8644. See, Order List [10 pages in PDF] at page 10.

The Supreme Court announced that "The Court will take a recess from Tuesday, May 31, 2005, until Monday, June 6, 2005." See, Order List [10 pages in PDF] at page 10.

GAO Releases Report on Status of Government Efforts to Introduce IT to Health Care

5/31. The Government Accountability Office (GAO) released a report [92 pages in PDF] titled "Health Information Technology: HHS Is Taking Steps to Develop a National Strategy".

This report reviews the Department of Health and Human Services' (HHS) efforts to develop and implement a national health information technology (IT) strategy. It also addresses lessons learned from the Department of Defense's (DOD) and Veterans Administration's (VA) experiences with implementing electronic health records. Finally, it addresses the experience of other countries (Canada, Denmark and New Zealand) in modernizing their health IT infrastructures.

The report states that "The U.S. health care delivery system is an information-intensive industry that is complex and highly fragmented with estimated spending of $1.7 trillion in 2003. In April 2004, President Bush announced a health information technology (IT) plan that calls for the development and implementation of a strategic plan to guide the nationwide implementation of health IT in both the public and private health care sectors to prevent medical errors, improve quality, and produce greater value for health care expenditures."

The report finds that the HHS "is taking initial steps toward developing a national strategy for health IT". But, it cautions, "HHS has not established milestones for the completion of phase I, nor has it defined plans for phases II and III. Without defined milestones, it remains unclear when the important activities of phase I will be completed to provide the building blocks needed to support the activities of the subsequent phases."

1st Circuit Addresses Substantial Similarity Test in Music Copyright Case

5/31. The U.S. Court of Appeals (1stCir) issued its opinion in Johnson v. Gordon, a copyright case. Calvin Johnson wrote a song. He asserts that the defendants, Allen Gordon, the members of the group named "Sisters With Voices", and others, copied, recorded, and sold his song, titled "You're the One".

He filed a complaint in U.S. District Court (DMass) alleging, among other things, copyright infringement. The District Court granted summary judgment to the defendants.

The Appeals Court affirmed. The opinion includes a long and careful analysis of whether the defendants' song met the test of substantially similarity. It concluded that it did not, and hence, affirmed the District Court.

This case is Calvin Johnson v. Allen Gordon, et al., U.S. Court of Appeals for the 1st Circuit, No. 04-2475, an appeal from the U.S. District Court for the District of Massachusetts. Judge Selya wrote the opinion of the Court of Appeals, in which Judges Lynch and Lipez joined.

People and Appointments

5/31. Maureen Ohlhausen was named Director of the Federal Trade Commission's (FTC) Office of Policy Planning. She has been the acting Director since July 2004. See, FTC release.

5/31. Verisign named Louis Simpson to its Board of Directors. Sampson is also P/CEO of GEICO Corporation's Capital Operations. See, Verisign release.

More News

5/31. The Federal Communications Commission's (FCC) Wireline Competition Bureau released an order [2 pages in PDF] that extends the deadline for reply comments in its proceeding titled "In the Matter of Developing a Unified Intercarrier Compensation Regime". The deadline was June 22, 2005. The extended deadline is July 20, 2005. This order is DA 05-1553 in CC Docket No. 01-92. The FCC adopted its Further NPRM on February 10, 2005. See, story titled "FCC Adopts FNPRM in Intercarrier Compensation Proceeding" in TLJ Daily E-Mail Alert No. 1,076, February 14, 2005.

GAO Reports on Government Use of RFID Technology

5/27. The Government Accountability Office (GAO) released a report [41 pages in PDF] titled "Information Security: Radio Frequency Identification Technology in the Federal Government". This report reviews the technology, federal agency initiatives to use RFID technology, and standards for interoperability.

The report also addresses privacy and security issues. It states that "Several security and privacy issues are associated with federal and commercial use of RFID technology. The security of tags and databases raises important considerations related to the confidentiality, integrity, and availability of the data on the tags, in the databases, and in how this information is being protected."

The report elaborates that "these issues included ensuring that only authorized readers or personnel have access to information, maintaining the integrity of the data on the chip and stored in the databases, and ensuring that critical data is fully available when necessary. Other issues with implementing the technology included the potential for various attacks, such as counterfeiting or cloning, replay, and eavesdropping; the possibility of electronic collisions when multiple tags and/or readers are present; and the presence of unauthorized components that may interfere or imitate legitimate system components."

It also states that "Without effective security controls, data on the tag can be read by any compliant reader; data transmitted through the air can be intercepted and read by unauthorized devices; and data stored in the databases can be accessed by unauthorized users."

The report continues that the security risks associated with the use of RFID technology can be mitigated by using the risk-based framework mandated by the Federal Information Security Management Act (FISMA), encryption, and authentication.

The report also reviews privacy issues. It states that many uses of RFID technology have no privacy implications, such as inventory control. However, other uses involve issues of notification to individuals, tracking of individuals, and profiling of individuals. There is also the matter of secondary uses, or mission creep, for data collected with RFID technology.

The report states that "tags can be read by any compatible reader. If readers and tags become ubiquitous, tagged items carried by an individual can be scanned unbeknownst to that individual. Further, the increased presence of readers can provide more opportunities for data to be collected and aggregated. As the uses of technology proliferate, consumers have raised concerns about whether certain collected data might reveal personal information such as medical predispositions or personal health histories and that the use of this information could result in denial of insurance coverage or employment to the individual."

The report also states that "three agencies raised the issue of protecting personal data, such as date of birth and biometrics, contained on the tag as well as the associated database that stores this information."

The report reviews existing statutes. One point that is makes is that "As a practical matter ... the Privacy Act is likely to have a limited application to the implementation of RFID technology because the act only applies to the information once it is collected, not to whether or how to collect it."

People and Appointments

5/27. Paul McNulty was named Chairman, and Johnny Sutton was named Vice Chairman, of the Attorney General's Advisory Committee of United States Attorneys. McNulty is the U.S. Attorney for the Eastern District of Virginia. Sutton is the U.S. Attorney for the Western District of Texas. See, DOJ release.

5/27. Randall Stephenson was named to the SBC Board of Directors. He is SBC's Chief Operating Officer. See, SBC release.

More News

5/27. The Federal Communications Commission's (FCC) Wireless Telecommunications Bureau issued a public notice [5 pages in PDF] that announces that 800 MHz band reconfiguration will begin on June 27, 2005, in the National Public Safety Planning Advisory Committee (NPSPAC) regions assigned to Wave 1. The FCC adopted a report and order on July 8, 2004 that addressed the problem of interference to 800 MHz public safety communications systems from Commercial Mobile Radio Services (CMRS) providers operating systems on channels in close proximity. See, story titled "FCC Adopts Report and Order Regarding Interference in the 800 MHz Band" in TLJ Daily E-Mail Alert No. 936, July 13, 2004. This public notice is DA 05-1546 in WT Docket No. 02-55. See also, public notice number DA No. 05-1542, accepting the requests to withdraw pleading submitted by Mobile Relay Associates and Skitronics, LLC.

FCC Receives Comments Regarding Use of Consumer Electronic Devices on Aircraft

5/26. May 26 was the extended deadline to submit comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) in its proceeding titled "In the matter of Amendment of the Commission’s Rules to Facilitate the Use of Cellular Telephones and other Wireless Devices Aboard Airborne Aircraft".

The FCC adopted this NPRM on December 15, 2004. See, story titled "FCC Announces NPRM on Cellphones in Airplanes" in TLJ Daily E-Mail Alert No. 1,039, December 16, 2004. See also, story titled "FCC Adopts Order and NPRM Regarding Air Ground Service in the 800 MHz Band" in TLJ Daily E-Mail Alert No. 1,040, December 17, 2004.

The FCC released the text [28 pages PDF scan] of this NPRM on February 15, 2005. This NPRM is FCC 04-187 in WT Docket No. 04-435. The extended deadline to submit reply comments is June 27, 2005. See, order [2 pages in PDF] (DA 05-1015) dated April 5, 2005.

Boeing, a U.S. aircraft manufacturer, and the leading proponent of expanded use of wireless devices aboard aircraft, submitted a comment [34 pages in PDF] in which argued that "allowing the use of wireless devices during flight will provide significant public benefits to passengers, airlines and service providers alike".

It recommended that the FCC "adopt comprehensive service rules applicable to the operation of airborne picocell systems in all commercial mobile radio service (``CMRS´´) spectrum bands, including the cellular, PCS, WCS and SMR bands."

Boeing stated that these rules should provide that "any entity technically and financially capable of providing in-cabin wireless services should be authorized to do so on an unlicensed basis, subject to Federal Aviation Administration rules and the technical requirements adopted by the Commission to avoid the potential for harmful interference to co-channel terrestrial services. Existing CMRS licensees should not have exclusive authority to provide such services."

It also wrote that these rules should provide that "airborne picocell systems should be accessible to any wireless customer in good standing with its home provider if the customer is using equipment that is technically compatible with the airborne picocell system. Access to airborne wireless services can be viewed as “roaming” similar to the roaming privileges that wireless subscribers otherwise enjoy when located in the service area of another terrestrial wireless carrier."

It also wrote that "although the potential for interference from airborne picocell operations to terrestrial wireless systems is slim, the Commission should adopt appropriate technical standards and operational requirements for the provision of airborne wireless services."

In contrast, the Cellular Telecommunications and Internet Association (CTIA), which represents terrestrial wireless systems, argued that in its comment [20 pages in PDF] that there is a threat of harmful interference with existing terrestrial CMRS operations, and hence, "airborne use of CMRS spectrum should not be initiated".

Space Data Corporation argued in its comment [10 pages in PDF] that "should ensure that its rules regarding the operation of wireless devices on aircraft are technologically neutral. It should: (1) lift the existing prohibition against using 800 MHz cellular handsets on airplanes and decline to extend the prohibition to personal communications service (``PCS´´) devices; and (2) not require the use of pico cells to provide ATG services if the specific service can be provided without causing harmful interference to terrestrial wireless licensees."

The Consumer Electronics Association (CEA) submitted a comment [9 pages in PDF] in which it made the distinction between wireless devices that enable voice communications, and other devices. It wrote that voice devices can be disruptive in confined spaces, and their use should be regulated, not by the FCC, but by the airlines. The CEA wrote that consumer interest in e-mail, internet access, and other services is greater, and should be facilitated by the FCC.

The CEA wrote that "many consumers are interested in using their own electronic devices to access a wireless data network or the Internet while airborne, which is key to maintaining productivity while outside the home or office."

It advocated "greater in-flight access to mobile data services, recognizing that the use of voice communications in flight poses significant risk of disruption to travelers in the confined space of an airplane. According to Forrester Research, only 13 percent of business travelers and less than 10 percent of leisure travelers expressed interest in using their mobile phones on planes for conversation. While consumers seem far more interested in using data applications such as e-mail or text messaging while airborne, CEA recognizes that even a small number of passengers interested in utilizing voice communication raises significant social issues. ... For this reason, CEA supports limits on voice communications, as determined and enforced by individual airlines."

The Air Line Pilots Association submitted a comment [4 pages in PDF] highly critical of use of all sorts of consumer electronic devices on or near aircraft.

A group named Morality in Media submitted a comment [10 pages in PDF] in which it complained about "this cacophony of cellular banter". This comment stated that the "quiet and unobtrusiveness of airplane travel can be a godsend". Hence, it recommended that there be cell phone sections on airplanes, like smoking sections in restaurants.

FBI Seeks CALEA Rules in FCC Proceeding Regarding Wireless Devices on Aircraft

5/26. The Federal Bureau of Investigation (FBI) and Department of Homeland Security (DHS) submitted a joint comment [23 pages in PDF] to the Federal Communications Commission (FCC) in its proceeding on the use of consumer wireless devices aboard aircraft. The FBI and DHS seek CALEA rules, even though this is not a CALEA proceeding.

They argue that the service providers "implicated by this proceeding" must "comply with the requirements of CALEA". The 1994 Communications Assistance for Law Enforcement Act (CALEA) requires telecommunications carriers to "ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of expeditiously isolating and enabling the government ... intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier ...".

The FCC's NPRM [28 pages in PDF] did not propose any new rules implementing, or ask for comments on, the CALEA. Nevertheless, the FBI has for several years been submitting documents to the FCC that request rulings and/or rules related to the CALEA, in non-CALEA proceedings.

The FCC's notice of proposed rulemaking (NPRM) addresses airborne use of cell phone service, which is provided by carriers, and use of other wireless services, such as internet access, which may not be provided by carriers. The FBI's request, by implication, seeks expansion of the scope of the CALEA to non-carriers. This is an argument that the FBI has made in greater detail in other filings with the FCC. What is new in this filing is that the FBI asks the FCC to promulgate extensive rules regulating the design and use on airborne wireless systems, under the purported authority of the CALEA.

The FCC adopted the present NPRM on December 15, 2004. It released it on February 15, 2005. This NPRM is FCC 04-187 in WT Docket No. 04-435. The FCC also has an open proceeding regarding CALEA related issues. The FBI asked for that proceeding, and has filed comments in that proceeding. That NPRM is FCC 04-187 in ET Docket No. 04-295 and RM-10865. See, story titled "Summary of the FCC's CALEA NPRM" in TLJ Daily E-Mail Alert No. 960, August 17, 2004.

The FBI states that terrorists have hijacked aircraft, and that it therefore wants to be able to immediately intercept and disrupt any onboard communications.

However, the FBI also articulates several considerations that militate against allowing any onboard wireless devices. For example, it states that "the use of personal wireless telephones onboard aircraft could potentially facilitate a coordinated attack". It also states that "Although the potential for terrorists and other criminals to use communications devices as remote-controlled improvised explosive devices (``RCIEDs´´) already exists, the risk of RCIED use may, at least in theory, be increased as a result of the ability of aircraft passengers to now effectively use personally-owned wireless telephones and similar communications devices in-flight."

The FBI asks the FCC to impose numerous design requirements. For example, it wants the FCC to require that "any wireless telecommunications capability to or from an aircraft operating in United States airspace utilize mobile switching centers (``MSCs´´) located within the United States' borders only and not MSCs located along the border in neighboring countries."

It further wants the FCC to mandate intercept capability within 10 minutes from the moment of notification.

It also wants the FCC to require "that all wireless/air-to-ground carriers/pico cell providers (1) create and maintain the capability to record (and do record) at some central, land-based storage facility located within the United States, at a minimum, non-content call records relating to all calls processed to and from wireless telephones onboard aircraft operating within United States air space, international air space contiguous or attendant to United States air space, and international air space used en route to or from United States air space or destinations, and (2) provide law enforcement with immediate access to such records upon lawful request." (Parentheses in original.)

The FBI also wants the FCC to write rules "concerning in-flight personal wireless phone use"; it asserts that "unrestricted use" could lead to "air rage". The FBI offered no suggests regarding what these rules of personal etiquette should require.

And finally, the FBI argues that the FCC "must consider ... commercial equities". However, it does not explain what a "commercial equity" is.

GAO Reports That DHS Has Failed To Address Cyber Security

5/26. The Government Accountability Office (GAO) released a report [78 pages in PDF] titled "Critical Infrastructure Protection: Department of Homeland Security Faces Challenges in Fulfilling Cybersecurity Responsibilities".

The report finds that the Department of Homeland Security (DHS) has thirteen responsibilities related to cyber security, but that it has "not fully addressed any" of these. For example, it finds that the DHS "has not yet developed national cyber threat and vulnerability assessments or government/industry contingency recovery plans for cybersecurity, including a plan for recovering key Internet functions."

The report adds that the DHS "continues to have difficulties in developing partnerships -- as called for in federal policy -- with other federal agencies, state and local governments, and the private sector."

The report also finds that the DHS "faces a number of challenges that have impeded its ability to fulfill its cyber CIP responsibilities. Key challenges include achieving organizational stability; gaining organizational authority; overcoming hiring and contracting issues; increasing awareness about cybersecurity roles and capabilities; establishing effective partnerships with stakeholders (other federal agencies, state and local governments, and the private sector); achieving two-way information sharing with these stakeholders; and demonstrating the value DHS can provide." (Parentheses in original.)

Rep. Zoe Lofgren (D-CA) commented on the report in a release. She said that "This GAO report only confirms what we have known all along -- the DHS has failed to meet the responsibility for critical infrastructure protection. And even worse, this report proves that a national plan to secure our cyber networks is virtually nonexistent."

Rep. Zoe LofgrenRep. Lofgren (at right) continued that "There is no doubt that these vulnerabilities will continue to hamper our homeland security efforts if we do not make cyber security a major priority. As long as our critical infrastructures are interconnected and interdependent, the likelihood that a cyber attack will disrupt major services or cripple our economy will remain and the threat will increase."

Rep. Logren represents a Silicon Valley district. She is also a cosponsor of HR 285, the "Department of Homeland Security Cybersecurity Enhancement Act of 2005". An amended version of HR 285 was added to HR 1817, the "Department of Homeland Security Authorization Act for Fiscal Year 2006", which the House approved on May 18, 2005. See, §§ 311-314 of HR 1817, as enacted. See also, story titled "House to Take Up DHS Authorization Act, With Amended DHS Cybersecurity Enhancement Act" in TLJ Daily E-Mail Alert No. 1,136, May 16, 2005.

People and Appointments

5/26. The World Trade Organization (WTO) formally selected Pascal Lamy to be the WTO's Director-General, for a four year term beginning on September 1, 2005. The selection had been previously announced. See, WTO release.

5/26. The Federal Communications Commission (FCC) named twenty persons to the FCC's Consumer Advisory Committee. See, FCC release.

5/26. President Bush nominated Philip Morrison to be Assistant Secretary of the Treasury (Tax Policy). The person who holds this position, at least nominally, is responsible for formulating policy with respect to taxation that affects technology and innovation. Morrison is a principal with the Washington National Tax Office of Deloitte Tax. Before that, he was partner at the law firm of Baker & McKenzie. See, White House release and release.

5/26. President Bush nominated Randal Quarles to be an Under Secretary of the Treasury. See, White House release.

5/26. President Bush nominated Israel Hernandez to be Assistant Secretary of Commerce and Director General of the United States and Foreign Commercial Service. See, White House release and release.

More News

5/26. The Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau (CGB) that it now provides a "Consumer Information Registry". It stated in a release that this is an "e-mail service that will deliver to subscribers customized information about the FCC’s actions and related developments". It added that "The Registry is an Internet database".

5/26. John Sammis, Minister-Counselor for Economic Affairs at the U.S. Mission to the EU gave a speech titled "Expanding the Transatlantic Economy" to the European Parliament's International Trade Committee. He stated that "New technologies and market forces will continue to push the U.S. and European economies closer. Managing the process of increasing economic interdependence will require ambitious and innovative new approaches."

Go to News from May 21-25, 2005.