TLJ News from March 6-10, 2006

FCC Announces Agenda for March 17 Event

3/10. The Federal Communications Commission (FCC) released an agenda [2 pages in PDF] for its event titled "Open Meeting", scheduled for Friday, March 17, 2006. This agenda includes consideration further NPRMs regarding the children's television rules, and public safety communications in the 700 MHz band. The FCC also plans to create a new Public Safety and Homeland Security Bureau.

The FCC will consider a Second Further Notice of Proposed Rulemaking regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages. This proceeding is titled "In the Matter of Children's Television Obligations Of Digital Television Broadcasters" and numbered MM Docket No. 00-167.

Second, the FCC will consider an Eighth Notice of Proposed Rulemaking regarding public safety communications in the 746-776 MHz and 794-806 MHz bands. This is WT Docket No. 96-86.

Finally, the FCC will consider an order establishing Public Safety and Homeland Security Bureau at the FCC.

This event is scheduled for 9:30 AM on Friday, March 17, 2006 in the FCC's Commission Meeting Room, Room TW-C305, 445 12th Street, SW. The event will be webcast by the FCC. The FCC does not always consider all of the items on its published agenda. The FCC sometimes adds items to the agenda without providing the "one week" notice required 5 U.S.C. § 552b. The FCC does not always start its monthly meetings at the scheduled time. The FCC usually does not release at its meetings copies of the items that its adopts at its meetings.

Bush Discusses R&D and Innovation

3/10. President Bush gave a speech in Washington DC at which he discussed, among other topics, research and development.

Bush said that "we need to spend research and development money at the federal level so that we're always on the leading edge of technological change, that the United States is the leader of the world, and that we've got to make sure the research and development tax credit is a permanent part of the tax code, recognizing two-thirds of research dollars comes from the private sector."

Also on March 10, Mark Warshawsky, Assistant Secretary of the Treasury, gave a speech in Augusta, Georgia. He said that foreign direct investment (FDI) funds research and development in the U.S., and contributes to innovation.

He said that "foreign affiliates help spur technological innovation. Research and development expenditures by foreign affiliates in the U.S. are substantial -- totaling $29.5 billion in 2003 (latest available) and accounting for about 14 percent of U.S. R&D performed by all U.S. businesses." (Parentheses in original.)

Warshawsky continued that "About three-quarters of total R&D spending by U.S.-based foreign affiliates is done by manufacturing firms. Among manufacturing industries the biggest spender is chemicals (43 percent of all R&D spending in manufacturing), followed by computers and electronic products (23 percent spending in manufacturing). U.S.-based affiliates of European firms perform the most R&D in the U.S., accounting for 75 percent of total R&D spending by foreign affiliates. U.S.-based affiliates of firms headquartered in Asia and the Pacific region account for about 12-1/2 percent of total foreign R&D spending in the United States. Roughly 90 percent of Asia/Pacific R&D spending here is performed by Japanese companies." (Parentheses in original.)

"Overall, it appears that one reason the U.S. economy is so vibrant and resilient, and on the cutting edge of economic innovation, is that we are open to foreign products, foreign ideas, and foreign capital."

And, Warshwsky added that "our investment in business abroad is also a key element in maintaining strong growth and high levels of innovation."

President Bush also said that adoption of information technologies by the health care industry will increase efficiency and productivity. He said that "So information technology, which we're now advancing here at the federal level, in conjunction with providers throughout the country, to develop a common vocabulary, so that eventually there will be electronic medical records, with ample privacy protections available, will help wring out some of the costs of health care."

Rep. Gallegly to Retire

3/10. Rep. Elton Gallegly (R-CA) announced that he will not run for re-election. This is a district that has voted Republican in the past, and is likely to elect another Republican in November of 2006. Rep. Gallegly is a senior member of the House Judiciary Committee (HJC) and its Subcommittee on Courts, the Internet and Intellectual Property (CIIP). He is also a member of the House International Relations Committee, and the Chairman of its Subcommittee on Europe and Emerging Threats.

His retirement could impact the selection of the Chairmen of the HJC and its Subcommittees for the 110th Congress, which will begin in January of 2007. Rep. James Sensenbrenner (R-WI) is term limited from remaining as Chairman. (Rep. Sensenbrenner hypothetically could be selected Chairman of the House Science Committee. He previously served for four years as its Chairman. The current Chairman, Rep. Sherwood Boehlert (R-NY) will be term limited at the end of the present Congress.

Rep. Henry Hyde (R-IL), a former Chairman of the HJC, is retiring. Rep. Bill Jenkins (R-TN), the 9th ranking Republican, is also retiring. Rep. Bob Goodlatte (R-VA), the 6th ranking Republican, is the Chairman of the House Agriculture Committee, and is not yet term limited.

Other senior members of the HJC include Rep. Howard Coble (R-NC), who is currently the Chairman of the Subcommittee on Crime (and not yet term limited in this position), Rep. Lamar Smith (R-TX), who is currently the Chairman of the Subcommittee on CIIP (but not yet term limited in this position), Rep. Steve Chabot (R-OH), who is currently the Chairman of the Subcommittee on the Constitution, Rep. Dan Lungren (R-CA), and Rep. Chris Cannon (R-UT), who is currently Chairman of the Subcommittee on Commercial and Administrative Law.

People and Appointments

3/10. President Bush announced his intent to nominate Robert McCallum to be Ambassador to Australia. He is the Associate Attorney General. Before that, he was Assistant Attorney General in charge of the Civil Division. And before that, he was a partner in the law firm of Alston & Bird. See, White House release.

Bush Signs PATRIOT Act Extension Bills

3/9. President Bush signed HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", at a White House ceremony. See, transcript.

Bush also signed S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006", the bill sponsored by Sen. John Sununu (R-NH), that adds several civil liberties related provisions. See, White House release.

This brings to a close the several year debate over extending the sunsetted provisions of the USA PATRIOT Act.

President Bush stated at the event that "As we wage the war on terror overseas, we're also going after the terrorists here at home, and one of the most important tools we have used to protect the American people is the Patriot Act. The Patriot Act closed dangerous gaps in America's law enforcement and intelligence capabilities, gaps the terrorists exploited when they attacked us on September the 11th."

USA PATRIOT Act is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed quickly after the terrorist attacks of September 11, 2001 by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

The PATRIOT Act is a huge bill that addresses a wide range of issues. Title II of the Act covers electronic surveillance and information technology. The original Act provided that sixteen sections of Title II would sunset on December 31, 2005. (The Congress enacted two short extensions, so there was no lapse between December 31 and March 9.)

HR 3199 is a huge bill that also contains provisions unrelated to extending the sunsetted provisions. It extends all of the sunsetted provisions, most permanently. It also contains numerous amendments related to protecting civil liberties.

President Bush also spoke about the PATRIOT Act, terrorism and the National Security Agency's extrajudicial electronic surveillance program in a speech later in the day in College Park, Georgia.

He said that "After the attacks on the country, I did what you would expect me to do, and ask people who are on the front lines of defending you whether or not there was -- there's more we could be doing. ... And a General named Mike Hayden said, I believe there is, Mr. President; I believe we can design a system that will enable us to listen to a call from outside the country in from a known al Qaeda affiliate or a suspected al Qaeda affiliate."

Bush continued that "If the people inside the country that planned the attacks on the United States were making phone calls out, we'd want to know that prior to any attack. And so I said, Mike, show me how the system would work. I then called in lawyers ... And they came back and said, Mr. President, you have the authority to do this program -- in other words, it's legal."

He also described the surveillance. He said that it "is limited in nature -- phone calls coming from inside the country out, and outside in, with one of the numbers being known al Qaeda, suspected al Qaeda, and affiliates".

He concluded that "It is right, it is necessary to listen to al Qaeda. If al Qaeda is making a phone call into the United States of America or vice versa, we want to know why, in order to protect this country."

DISA's IPv6 Transition Chief Indicted for P2P Porn on Office Computer

3/9. A grand jury of the U.S. District Court (EDVa) returned an indictment of Charles Lamont Lynch, the Chief of the Internet Protocol Version 6 Transition Office at the Department of Defense's Defense Information Systems Agency (DISA). The indictment charges Lynch with violation of 18 U.S.C. § 2252A(a)(5)(b).

The DISA web site states that the DISA is "the provider of global net-centric solutions for the Nation's warfighters and all those who support them in the defense of the nation".

Internet Protocol Version 6, or IPv6, which is currently replacing IPv4, provides a vastly increased number of internet addresses. It also provides for more efficient and faster routing, enhanced mobility features, and improved security, for example, through authentication. See, story titled "House Government Reform Committee Holds Hearing on IPv6" in TLJ Daily E-Mail Alert No. 1,168, July 6, 2006.

The Office of the U.S. Attorney (EDVa) stated in a release [PDF] that Lynch used "a peer-to-peer file sharing program on a computer in his office at DISA", and that "Child pornography was found in computer file folders".

SEC to Hold Series of Roundtable Meetings on XBRL

3/9. The Securities and Exchange Commission (SEC) announced that it will hold a series of roundtable meetings in Washington DC on the SEC's plans regarding interactive data and XBRL. See, SEC release.

The first meeting will be at 10:00 AM on Monday, June 12, 2006, at the SEC headquarters. The SEC has not yet set the dates for other meetings.

The SEC also requested "written feedback from investors, registrants, auditors and others on their experiences with interactive data and XBRL. The Commission welcomes feedback on any aspect of the use of interactive data. The information that is submitted will become part of the public record of the interactive data roundtables." The SEC release sets no deadlines for requesting to speak at the roundtables, or deadlines for submitting written comments.

In addition, SEC Commissioner Cynthia Glassman gave a speech in Washington DC on March 9 in which she discussed XBRL.

She said that "An exciting new initiative is the submission of SEC filings using Extensible Business Reporting Language, more commonly known as XBRL. XBRL is an interactive data format that makes financial information easier to locate and analyze. XBRL enables filers to "tag" electronically various items in their reports. I analogize the tagged data to Lego building blocks - investors can use the data to construct for themselves financial, operating ratio or other meaningful information about companies just as Lego blocks can be used to build a variety of different structures, be they buildings or bridges."

Cynthia GlassmanGlassman (at right) continued that "Users can retrieve the tagged data through computer searches and analyze it quickly and easily with other computer software tools to construct a variety of analyses, such as trends over time at one company and comparisons across companies. Doing this electronically saves time and money and ensures better accuracy - ultimately resulting in more robust and efficient analyses. I am hopeful that this powerful technology could make the information that registrants file with us more useful to investors and other market constituents."

She also said that the SEC "is currently engaged in XBRL experimental programs. Last year, we launched a voluntary XBRL pilot program. That presents registrants the opportunity to explore the costs and benefits of this new approach. In January, the SEC solicited interest in a new test group under the voluntary program. Participants in the test group will undertake to furnish data in their periodic and investment company reports in XBRL format for at least one year and provide feedback on the costs and benefits of using the interactive data format. In return for participating, the staff will screen and review these participants' filings on an expedited basis."

FBI Investigates FEC for Fraud and Corruption

3/9. The Federal Bureau of Investigation's (FBI) Fraud and Public Corruption section is investigating several current and former employees of the Federal Election Commission (FEC) in connection with their activities at the FEC.

The scope of the investigation includes a former Staff Director, James A. Pehrkon, who left the FEC late last year.

The Political Money Line web site published an Application and Affidavit for Search Warrant [14 pages in PDF] that was filed at the U.S. District Court for the District of Columbia on November 28, 2005.

This application states that the FBI is investigating possible violations of 18 U.S.C. § 208 and 18 U.S.C. § 1001.

Section 208 of the Criminal Code provides, in part, as follows:

Section 1001 criminalizes certain false statements by public officials. It provides, in part, as follows:

This proceeding is titled "In the Matter of the Search of The offices and computers of James Pehrkon, John O'Brien, Lola Hatcher-Capers U.S. Federal Elections Commission", and numbered 1-05-mj-00634

The application states that the FBI seeks to search the FEC offices and FEC issued laptops of James A. Pehrkon, John C. O'Brien, and Lola Hatcher-Capers.

The application elaborates that "Since October, 2005, the FBI has been conducting an investigation of Pehrkon because of his efforts to secretly obligate and spend FEC funds to settle an employment discrimination claim alleging, among other things, that he had created a hostile work environment for a female subordinate."

It continues that "Pehrkon officially represented the FEC's financial interests in the settlement stage of the Equal Employment Opportunity ("EEO") resolution process, negotiated cash settlements payable by the FEC to the victim and her attorney, failed to notify the FEC's Commissioners of either the allegations or the settlement offers, and caused others to submit disguised procurement requests to obligate FEC funds for the settlement."

The application states that Pehrkon was the FEC's Staff Director. Before that, he was Deputy Staff Director and Chief Financial Officer. The application identifies John O'Brien as the FEC's Budget Officer.

The FEC is currently writing rules that will prohibit, regulate, and/or penalize certain forms of online political speech by bloggers and other individuals.

More News

3/9. The Government Accountability Office (GAO) released a report [65 pages in PDF] titled "Election Reform: Nine States' Experiences Implementing Federal Requirements for Computerized Statewide Voter Registration Lists".

3/9. The Senate approved HR 1053, a bill to extend normal trade relations treatment to the products of Ukraine. The House approved the bill on March 8.

House CIIP Subcommittee Holds Hearing on Orphan Works

3/8. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) held a hearing on the Copyright Office's (CO) report [133 pages in PDF] titled "Report on Orphan Works".

"Orphan works" is a term used to describe certain copyrighted works. The CO's report proposes legislation to substantially lessen the copyright protection afforded to orphan works. Some works are literally orphan in the sense that the creator has died and abandoned the work. A subsequent user cannot find any copyright owner from whom to license the work.

However, for some works, the term orphan is relative. From the perspective of the user, or infringer, a work is orphan if the owner of a copyrighted work cannot be identified and located. From the perspective of the creator of the work, who asserts copyright, and who seeks to derive income from licensing the work, the work is not and should not be labeled orphan and subjected to diminished legal protection.

The CIIP Subcommittee heard from one group, photographers, who label their works, and seek to license them, but who still would likely have some of their works declared orphan works under the CO's legislative proposal. The Subcommittee also heard from the CO and users of orphan works, who support the CO proposal.

See, prepared testimony [21 pages in PDF] of Jule Sigall (primary author of the report), prepared testimony [PDF] of Allan Adler (Association of American Publishers), prepared testimony of David Trust (Professional Photographers of America), and prepared testimony [10 pages in PDF] of Maria Pallante (Guggenheim Museum).

See, full story.

7th Circuit Applies Computer Hacking Statute to Use of Trace Removers on Employee Laptops

3/8. The U.S. Court of Appeals (7thCir) issued its opinion [7 pages in PDF] in International Airport Centers v. Citrin, a post-employment dispute that also involves application of the Computer Fraud and Abuse Act to employees' use of trace remover tools on the laptops assigned to them by their employers.

The opinion states that an employee of a company who is provided a laptop computer by that company, and who uses a trace remover tool on that laptop, might be sued civilly, or prosecuted criminally, for that act, even if there is no employment contract or company policy that prohibits the use of trace remover programs.

See, full story.

Senate Approves Trademark Dilution Revision Act

3/8. The Senate amended and approved HR 683, the "Trademark Dilution Revision Act of 2006'", by unanimous consent, with little discussion.

The House approved its version of HR 683 on April 19, 2005, by a vote of 411-8. See, Roll Call No. 109.

This bill is a reaction to the Supreme Court's March 4, 2003 opinion [21 pages in PDF] in Moseley v. V Secret. See, story titled "Supreme Court Rules in Trademark Dilution Case" in TLJ Daily E-Mail Alert No. 618, March 6, 2003.

The Congress amended the Trademark Act in 1995 with the enactment of the Federal Trademark Dilution Act (FTDA). The FTDA bars uses of another's mark that blur or otherwise interfere with the ability of that mark to identify the source of goods. The FTDA is codified at 15 U.S.C. § 1125(c). It is also known as Section 43(c) of the Lanham Act.

The issue in the Moseley case, and the most important issue with this bill, is whether the plaintiff in a lawsuit for violation of the FTDA must show actual economic loss. The Sixth Circuit held that economic harm may be inferred. The Supreme Court reversed. The present bill rewrites the statute to undo the opinion of the Supreme Court

The Supreme Court wrote that "The relevant text of the FTDA ... provides that ``the owner of a famous mark´´ is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution."

Both the House and Senate versions of HR 683 replace the current language of 15 U.S.C. § 1125(c).

Subsection (c)(1) currently provides that "The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection." It then enumerates several factors that the court may consider in determining whether a mark is distinctive and famous.

Under both the House and Senate versions of HR 683, subsection (c)(1) would provide that "Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury."

The bills also provides that "a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:
  (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.
  (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.
  (iii) The extent of actual recognition of the mark."

The bills also define, and enumerate factors to be considered by the court regarding, dilution by blurring. The bills also defines dilution by tarnishment.

The bills differ in the list of exemptions. These modify the exemptions in the current statute.

The House version of the bill provides that "The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
  (A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
  (B) Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
  (C) All forms of news reporting and news commentary."

The Senate version of the bill contains a broader list of exemptions. It provides that "The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
  (A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with -- (i) advertising or promotion that permits consumers to compare goods or services; or (ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
  (B) All forms of news reporting and news commentary.
  (C) Any noncommercial use of a mark."

Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, stated that "In 2003, the Supreme Court decided the case of Moseley v. V Secret Catalogue, Inc. The Court held that trademark holders had to show actual harm, not the likelihood of harm, from dilution before they could seek injunctions. As an original author and sponsor of the act, I know firsthand that this is contrary to what Congress intended when it passed the dilution statue. What we did intend was to stop diluting before actual harm could be realized and the value of any reputable trademark debased." See, Congressional Record, March 8, 2006, at Page S1923.

He continued that "H. R. 683 makes clear Congress's intent and corrects the law to provide that owners of famous trademarks can seek injunctions against anyone who attempts to use a mark that is likely to cause dilution. It also affords the court the ability to consider ``all relevant factors'' when determining whether a mark is ``famous.´´ However, this legislation not intended to provide for injunctive or other relief against legitimate, third party trade in products manufactured under authority of the U.S. trademark owner of the distinctive, famous mark."

Sen. Leahy concluded that "Senator Hatch and I were successful in including language that definitively shelters important constitutionally protected first amendment freedoms from being caught up in the liability net."

The Senate's changes actually go further than First Amendment speech. The Senate bill exempts "Any noncommercial use of a mark".

Beth Frigola, a staff assistant to Rep. Lamar Smith (R-TX), the sponsor of the bill, and the Chairman of Subcommittee on Courts, the Internet and Intellectual Property, told TLJ on March 10 that "we are reviewing it".

See also, story titled "House Approves Trademark Dilution Bill" in TLJ Daily E-Mail Alert No. 1,119, April 20, 2005. See, story titled "CIIP Subcommittee Holds Hearing On Trademark Dilution Revision Act" in TLJ Daily E-Mail Alert No. 1,081, February 23, 2005.

The CIIP Subcommittee amended and approved this bill on March 3, 2005. See, story titled "House CIIP Subcommittee Amends and Approves Trademark Dilution Revision Act" in TLJ Daily E-Mail Alert No. 1,088, March 4, 2005. The House Judiciary Committee approved HR 683 on March 9, 2005. See, story titled "House Judiciary Committee Approves Trademark Dilution Bill" in TLJ Daily E-Mail Alert No. 1,093, March 11, 2005.

More News

3/8. The House Commerce Committee (HCC) approved the committee print [18 pages in PDF] of HR __, the "Prevention of Fraudulent Access to Phone Records Act". The HCC approved an amendment [PDF] offered by Rep. Joe Pitts (R-PA) regarding access to wireless numbers. The HCC also approved a motion that provides that the HCC "be authorized to enter into a service contract to support the ongoing investigation by the Subcommittee on Oversight and Investigations of ``data brokers´´ who acquire and sell consumers’ cell phone related records and other confidential information."

3/8. The House approved HR 1053, a bill to extend normal trade relations treatment to the products of Ukraine, by a vote of 417-2. See, Roll Call No. 24.

Ben Bernanke3/8. Federal Reserve Board (FRB) Chairman Ben Bernanke (at right) gave a speech in Las Vegas, Nevada, titled "Community Banking and Community Bank Supervision in the Twenty-First Century". He stated that "this division of labor between large and small institutions has begun to blur. Today, practitioners and researchers understand that low-cost information processing, improved credit-scoring, and more sophisticated management techniques are rapidly reducing the effective opacity of many small businesses and households. Credit card lending provides an example of this phenomenon. Technological and financial innovation, including credit scoring, securitization, and economies of scale in data processing, have combined to make credit card lending a hard-information, transactions-driven business, quite different from traditional unsecured personal lending, which relies heavily on personal knowledge and relationships."

3/8. The Office of the U.S. Trade Representative (USTR) announced in a release that the Bush administration intends to negotiate a free trade agreement with Malaysia.

House Approves Stop Counterfeiting in Manufactured Goods Act

3/7. The House approved HR 32, the "Stop Counterfeiting in Manufactured Goods Act", by voice vote. This bill amends the Criminal Code with respect to trafficking in counterfeit marks, including wrappers, boxes and stickers.

This bill addresses a loophole that was exposed by the U.S. Court of Appeal's (10thCir) 2000 opinion in United States v. Giles, 213 F.3d 1247. It also increases the enforcement authority of the Department of Justice.

The House approved an earlier version of the bill on May 24, 2005, by voice vote. See, story titled "House Approves Bill Regarding Trafficking in Counterfeit Marks" in TLJ Daily E-Mail Alert No. 1,141, May 24, 2005.

The Senate amended and approved the bill on February 15, 2006. See, story titled "Senate Approves Bill to Criminalize Trafficking in Counterfeit Marks" in TLJ Daily E-Mail Alert No. 1,315, February 22, 2006. (This story addresses the impact of the bill on internet companies.)

The bill now goes to President Bush for his signature.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee (HJC), stated in the House that "This legislation, which is substantially similar to legislation that passed the House by voice vote in May of 2005, contains important provisions to facilitate efforts by the Department of Justice to prosecute those who exploit the good names of companies by attaching counterfeit marks to substandard products. As amended by the other body, H.R. 32 includes changes to the definition of ``traffic´´ contained in Federal counterfeiting statutes to permit the prosecution of persons who import or export counterfeit products or possess counterfeit products with the intent to transport, transfer, or distribute such products." See, Congressional Record, March 7, 2006, at Page H594.

House Approves S 2271

3/7. The House approved S 2271, the "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006", by a vote of 280-138. See, Roll Call No. 20.

The Senate approved the bill on March 1, 2006, by a vote of 95-4. See, Roll Call No. 25. This bill, along with the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", are now ready for President Bush's signature.

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee (HJC) offered this explanation of the bill. "This bill includes three additional clarifications of the conference report to address concerns raised by some Members of the other body. First, current law does not expressly provide a recipient of a section 215 order or a national security letter the right to challenge it. The conference report clearly delineated judicial review for such challenges, including the ability of NSL recipients to challenge an accompanying nondisclosure order. S. 2271 would extend the section 215 recipients similar access to judicial review, to challenge and attach the nondisclosure order." See, Congressional Record, March 7, 2006, at Page H582-3.

Second, said Rep. Sensenbrenner, "Second, because of national security concerns, the conference report contained language that would allow the government to ask a recipient of one of these national security orders to identify the persons to whom disclosure will be or was made. The Director of National Intelligence expressed concern that without this safeguard, a recipient could disclose the government's investigative efforts to a person with ties to hostile foreign governments or entities. The conference report permitted the government to determine whether a request is warranted, and if the defendant has made such a request to determine whether the disclosure affected an ongoing investigation. An exception was included for information that might interfere with attorney-client relations, specifically barring the disclosure of the identity of an attorney to whom a recipient planned to disclose. This bill extends the exception to prevent the government from requesting the name of counsels with whom the recipient had already consulted."

Third, "S. 2271 clarifies current law that a library may only be subject to an NSL request if it falls under 18 U.S.C. 2516(15), which defines an electronic communications service provider as any service which provides to users thereof the ability to send or receive wire or electronic communication. This change addresses the potential for misuse alleged by critics of the legislation."

Rep. John Conyers (D-MI), the ranking Democrat on the HJC, spoke in opposition. He said that "We failed when we rushed through the first PATRIOT Act while the wreck of the World Trade Center was still smoldering. We failed when we refused to address the repeated civil liberties abuses by our own government, including the warrantless surveillance of U.S. citizens. And today, we are failing yet again, by taking up S. 2771. Not only is the bill substantively dangerous, it does nothing to respond to the serious flaws in the conference report."

Rep. John ConyersFirst, said Rep. Conyers (at right), "the bill is dangerous because it makes it practically impossible to challenge the gag orders that come with secretive 215 orders. It would not only make the recipient wait at least one full year before challenging a gag order, it deems government certifications concerning possible harm to national security to be ``conclusive.'' This is far worse than what is proposed by the conference report which would allow the FISA court to ensure that the law and the Constitution are not violated." See, Congressional Record, March 7, 2006, at Page H584-5.

And second, "the bill operates as a mere fig leaf, covering over serious problems in the underlying conference report. For example, the bill pretends to protect libraries from receiving National Security Letters, but then revokes that protection if the library offers internet access. The bill does nothing to prevent the government from using security letters to obtain confidential information having nothing to do with terrorism; nothing to protect secret physical searches of homes and offices; and nothing to rein in abusive roving wiretap orders."

DHS Data Privacy and Integrity Advisory Committee Releases Report

3/7. The Department of Homeland Security's (DHS) Data Privacy and Integrity Advisory Committee approved and released a report [7 pages in PDF] titled "Framework for Privacy Analysis of Programs, Technologies, and Applications".

The report does not analyze the privacy implications of any DHS or other governmental program. Rather, it provides a "recommended framework for analyzing programs, technologies, and applications in light of their effects on privacy and related interests".

The report recommends a five part analysis. First, examine the scope of the program, technology, or application. Second, examine the legal basis. Third, conduct a risk analysis and estimation of the efficacy of the program, technology, or application. Fourth, examine its privacy implications. Fifth, make recommendations.

The key section addresses the examination of privacy interests. The report identifies four principles: privacy, fairness, liberty, and data security.

The report states that privacy concerns "How does the program affect individuals’ ability to control how personal information about them is collected, used, or shared?". It, in turn, has three subsets: confidentiality, anonymity, and seclusion.

Fairness encompasses data quality, notice, individual participation and accountability, transparency, and accountability.

Jim Harper, a member of the Advisory Committee, wrote in a release that this report "promises to shed new light on the privacy issue and ameliorate the privacy impacts of many national security programs". Harper is also Editor of and Director of Information Policy Studies at the Cato Institute.

FCC Releases NPRM on M-LMS Systems

3/7. The Federal Communications Commission (FCC) announced and released the text [24 pages in PDF] of its Notice of Proposed Rulemaking (NPRM) regarding reexamining its rules governing the 904-909.75 and 919.75-928 MHz bands.

This spectrum is currently shared by Part 15 devices and specified uses by the multilateration Location and Monitoring Service (M-LMS) defined in Part 90 of the FCC's rules.

The NPRM notes that this spectrum is used also by network devices that provide high speed data and internet services via wireless internet service providers (WISPs). However, a footnote to the NPRM adds that "These do not represent a large number of equipment authorizations compared to other available unlicensed bands in higher frequency ranges."

The NPRM states that M-LMS systems "track and locate objects over a wide geographic area (e.g., tracking a bus fleet) by measuring the difference in time of arrival, or difference in phase, of signals transmitted from a unit to a number of fixed points, or from a number of fixed points to the unit that is to be located."

The NPRM states that "we seek to determine whether our current M-LMS rules are limiting licensees from providing services that are desired in the market and that could be profitably deployed without causing harmful interference to other users. We inquire as to whether the Commission could promote the development of such services by establishing new rules that would replace certain restrictions on M-LMS operations and grant M-LMS licensees more flexibility to respond to market conditions."

This proceeding is titled "In the Matter of Amendment of the Commission’s Part 90 Rules in the 904-909.75 and 919.75-928 MHz Bands". This NPRM is FCC 06-24 in WT Docket No. 06-49.

Initial comments are due by May 30, 2006. Reply comments are due by June 30, 2006.

Gonzales Discusses Electronic Surveillance and Data Sharing

3/7. Attorney General Alberto Gonzales gave a speech in London, England, in which he discussed, among other topics, electronic surveillance and data sharing.

He said, "Take, for example, the issue of electronic surveillance, which has come to the fore in the current debate over the U.S.’s terrorist surveillance program. Critics have expressed concern about civil liberties and privacy interests. As I have stated many times, the program is both fully constitutional and fully protective of civil liberties. And while such issues must be resolved under our own Constitution and laws, it is noteworthy that the practice of obtaining electronic surveillance without a judicial warrant has long been accepted in Europe as something that can be accomplished with proper respect for liberty and privacy interests. France, for example, allows public prosecutors to order wiretapping without judicial warrant if they believe doing so would be useful for determining whether a terrorist offense has occurred. Here in the UK, the Home Secretary has the same power, subject to careful checks."

He also discussed data sharing. He said that "One area in which we clearly must do more to learn from each other involves the sharing of data regarding terror suspects. A central challenge faced by all our countries is how to ensure that data is gathered and shared in ways that maximize the safety of our citizens without endangering their legitimate privacy interests. In Europe, the EU Commission has advanced the ``principle of availability´´ to encourage data sharing among EU countries for criminal justice purposes. Significantly, this principle would permit the sharing not only of traditional criminal justice information, but also fingerprint, DNA, and border control data."

He continued that "Some contemplate erecting barriers against sharing data with partners outside the EU if their privacy systems do not precisely match the EU’s. Yet some of these privacy systems, while not identical to the EU’s, aim at very much the same result. The U.S., for instance, recognizes a right of privacy. While we implement that right in a different fashion than the EU, the core principles and protections remain the same. It is for this reason that we have been able to partner in data sharing arrangements with Europol and to work with the EU to fashion data protection provisions for the Council of Europe Cybercrime Convention. It would be a great loss to both the US and Europe if we were not able to do the same thing in the terrorism context. Neither side can afford to erect new walls that preclude us from sharing critical information about terror suspects."

Reaction to AT&T BellSouth Merger

3/7. On March 5, 2006, AT&T and BellSouth announced in releases that the two companies will merge. See, BellSouth release, AT&T release, and story titled "AT&T and BellSouth Announce Merger" in TLJ Daily E-Mail Alert No. 1,323, March 6, 2006.

Federal Communications Commission (FCC) Chairman Kevin Martin stated in a release [PDF] on March 6 that "I look forward to working with my colleagues on the Commission to review the applications expeditiously once they are filed. The FCC’s primary responsibility is to determine whether the proposed transaction is in the best interest of consumers. We will carefully weigh the information presented, examining any allegations of specific harm in individual markets and the potential benefits for the deployment of new services."

Sen. Mike DeWine (R-OH) and Sen. Herb Kohl (D-WI), the Chairman and ranking Democrat on the Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, released a joint statement on the proposed merger on March 7.

They wrote that "This is an important deal, and we will be holding hearings to examine its implications. A key question will be, simply, is bigger going to be better for consumers? ... We need to see whether the increased size of the new AT&T will bring consumer benefits, or harm competition."

Their joint release also states that "The proposed $67 billion merger of AT&T and BellSouth is yet another step in the historic re-combination of the old ``Ma Bell´´ system and will bring under one roof the largest phone company, largest cell phone service and largest DSL provider in the country. As this industry-wide consolidation continues most consumers will find themselves dealing with only one or two very large, very powerful integrated telecommunications companies, which raises concerns but also offers opportunities for consumer benefit, because these companies will have an enhanced ability to offer a greater number of consumer products."

Rep. James Sensenbrenner (R-WI), the Chairman of the House Judiciary Committee, stated in a release on March 6 that "AT&T's announcement that it plans to acquire BellSouth demonstrates yet another step in the reconstitution of Ma Bell. The proposed acquisition of BellSouth by AT&T and the growing concentration in this marketplace reduces consumer choices and heightens the risk that consumers will pay more for local, long distance and cellular service. Consequently, careful review of the competitive aspects of the proposed merger by the Justice Department's Antitrust Division becomes all the more important. In its oversight capacity, the Committee on the Judiciary plans to aggressively scrutinize the proposed transaction and the state of competition in the broader telecommunications marketplace to reduce the risk of consumer harm from any proposed mergers."

New York Sues Entercom for Selling Airtime

3/7. The State of New York filed a complaint [PDF] in the Supreme Court of the State of New York (a trial court) against Entercom Communications and others alleging violation of New York state law in connection with its providing broadcast radio airplay of songs in exchange for items of value.

The complaint alleges that the "competition for radio airplay has created what is effectively a black market for illegal sale of ``spins´´ in which radio stations accept payments or non-cash consideration from record labels, or their independent promoter representatives, in exchange for airplay without their listeners' knowledge".

The complaint adds that "Entercom Communications Corp., the nation's fifth largest radio conglomerate, has been an active participant in this deception of its listeners. Entercom stations have traded airplay for revenue, with the knowledge and encouragement of Entercom's corporate leadership ..."

The complaint requests monetary penalties, disgorgement of profits, and injunctive relief.

See also, story titled "New York Announces Settlement of Payola Investigation of Warner Music" in TLJ Daily E-Mail Alert No. 1,263, December 1, 2005.

The Federal Communications Commission (FCC) initiated its own general investigation of payments on August 8, 2005. See, stories titled "FCC Chairman Directs Enforcement Bureau to Conduct Payola Investigation" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005; "Adelstein Angles for More FCC Regulation of Speech" in TLJ Daily E-Mail Alert No. 1,143, May 26, 2005; and "Powell Announces FCC Investigation Regarding Armstrong Williams" in TLJ Daily E-Mail Alert No. 1,057, January 17, 2005.

FCC Commission Jonathan Adelstein stated in a release [PDF] on March 9 that "The New York Attorney General investigation is piling evidence on top of evidence of the widespread abuse of the public trust. Given the voluminous documents pointing to major, systematic violations of FCC rules, the penalties should be commensurate with the crime. We can't let any violators get away with a slap on the wrist."

Eliot Spitzer, the Attorney General of New York, stated in a release that "Almost a year after payola was exposed in significant detail, the FCC has yet to respond in any meaningful way. The agency's inaction is especially disappointing given the pervasive nature of this problem and its corrosive impact on the entertainment industry."

People and Appointments

3/7. President Bush announced his intent to appoint Scott Kriens, Ch/CEO of Juniper Networks, to be a Member of the President's National Security Telecommunications Advisory Committee. See, White House release.

3/7. President Bush announced that he has withdrawn the nomination of James Payne to be a Judge of the U.S. Court of Appeals for the Tenth Circuit. Bush made the nomination on September 29, 2005. See, White House release. He is currently a Judge of the U.S. District Court (EDOkla). President Bush appointed him. He was confirmed by the Senate on October 23, 2001. From 1988 until 2001 he was a Magistrate Judge in that District. See, DOJ biography and resume.

3/7. Randall Fons, Regional Director of the Securities and Exchange Commission's (SEC) Central Regional Office, which covers the states of Colorado, North Dakota, South Dakota, Utah, Wyoming and New Mexico, will leave the SEC in late March to become a partner in the Denver office of the law firm of Morrison & Foerster. See, SEC release and MoFo release.

More News

3/7. The Government Accountability Office (GAO) released a report [16 pages in PDF] titled "Telecommunications: Challenges to Assessing and Improving Telecommunications for Native Americans on Tribal Lands".

Sen. Specter Introduces Further PATRIOT Act Related Bill

3/6. Sen. Arlen Specter (R-PA) and others introduced S 2369, an untitled bill pertaining to delayed notice of search warrants, judicial review of Foreign Intelligence Surveillance Act (FISA) orders and national security letters (NSLs), requirements for issuance of FISA orders, and sunsetting of various search and surveillance provisions.

This bill contains many provisions that Sen. Specter and the cosponsors of the bill had unsuccessfully sought to have included in the conference report [PDF] on HR 3199, the "USA PATRIOT Improvement and Reauthorization Act of 2005", or other legislation pertaining to extending the sunsetted provisions of the 2001 USA PATRIOT Act.

Sen. Arlen SpecterSen. Specter stated in the Senate that "The PATRIOT Act has had a complex procedural history where the House passed a version which was substantially different from the Senate version. Then we hammered out a conference report which, in my view, was an acceptable compromise. It did not have all of the provisions which I would have preferred. It did not have the provisions of the Senate bill. But in a bicameral legislature, we learn to work with the art of the possible." See, Congressional Record, March 6, 2006, at Page S1791.

He continued that "What this legislation does is reinstate provisions of the original Senate-passed bill."

He first addressed delayed notice search warrants. He said that "the House bill had called for 180 days. The Senate bill had called for 7 days' notice. The conference report compromised out at 30 days, which I thought was acceptable, while not as good as I would have liked it. So in this new bill, the delayed notice provision is set at 7 days. That means that when a search warrant is authorized, where the subject of the search warrant is not told -- ordinarily if you have a search and seizure, law enforcement officials come in and in broad daylight make the search and seizure. The resident, the owner of the residence knows about it. But a delayed notice search warrant is structured so that the recipient does not know about it, where there is cause shown that the investigation would be impeded if the recipient were to be told at that time. This cuts the time to 7 days."

He next addressed Section 215 of the PATRIOT Act and FISA orders. He said that "There had been considerable controversy over the provisions of section 215 where the Senate bill had a three-part test, and a fourth provision was added to the conference report where the judge had the discretion to grant the order if there was adequate showing in the opinion of the court to pursue a terrorist investigation. But the new bill comes back to the three-part test of the original Senate bill so the records sought must, first, pertain to a foreign power or an agent of a foreign power; second, are relevant to the activities of a suspected agent of a foreign power who is the subject of an authorized investigation; or, three, pertain to an individual in contact with the suspected agent of a foreign power."

He next addressed judicial review of NSLs. He said that this bill "would eliminate the conclusive presumption with respect to national security letters that the court would automatically uphold nondisclosure -- that is, a gag order -- upon the Government's good faith certification that disclosure may endanger the national security of the United States or interfere with diplomatic relations. The bill introduced today would allow the judge to review all of the factors and would not be controlled by this conclusive presumption."

He added that the bill "also makes a change on judicial  review of section 215, which eliminates both the conclusive presumption which was added in on the legislation sponsored by Senator SUNUNU, and it eliminates the mandatory 1-year waiting period. The sunset on national security letters is an additional provision which adds a 4-year sunset to national security letters, which is the same sunset in the balance of the conference report. National security letters had not been subjected to the PATRIOT Act but were included in the Senate version this time. That provision is added."

The original cosponsors are Sen. Patrick Leahy (D-VT), Sen. Lisa Murkowski (D-AK), Sen. John Sununu (R-NH), Sen. Russell Feingold (D-WI), Sen. Larry Craig (R-ID), Sen. Chuck Hagel (R-NE), Sen. Richard Durbin (D-IL), Sen. Ken Salazar (D-CO), Sen. Diane Feinstein (D-CA), Sen. Barack Obama (D-IL) and Sen. John Kerry (D-MA).

Sen. Specter added in a release that "This bill will be useful as a marker to promote further reconsideration of the provisions contained in the Senate bill passed last year". He did not explain why, if he could not get these provisions included in the legislation that will shortly be signed by the President, the Congress (and especially the House) would approve them now.

People and Appointments

3/6. Rep. Bill Thomas (R-CA), the Chairman of the House Ways and Means Committee, announced that he will not seek reelection later this year. See, statement by President Bush, statement by USTR Rob Portman, and statement by Treasury Secretary John Snow.

3/6. The Senate confirmed Timothy Batten to be a Judge of the U.S. District Court (NDGa) by a vote of 88-0. See, Roll Call No. 31.

3/6. The Senate confirmed Thomas Johnson to be a Judge of the U.S. District Court (SDWV) by a vote of 89-0. See, Roll Call No. 32.

Go to News from March 1-5, 2006.