Top Stories from 2003

DOD Releases Report on DARPA's Total Information Awareness Program
12/31. The Department of Defense's (DOD) Office of Inspector General (OIG) released a report [42 pages in PDF], titled "Information Technology Management: Terrorism Information Awareness Program". The report concludes that DOD's Defense Advanced Research Projects Agency's (DARPA) Terrorism Information Awareness (TIA) Program, which was previously named "Total Information Awareness", "could prove valuable in combating terrorism", but "DARPA could have better addressed the sensitivity of the technology to minimize the possibility of any Governmental abuse of power and could have assisted in the successful transition of the technology into the operational environment."

DC Circuit Reverses in RIAA v. Verizon
12/19. The U.S. Court of Appeals (DCCir) issued its opinion [16 pages in PDF] in RIAA v. Verizon, reversing the District Court, and holding that a Section 512(h) subpoena may only be issued to an ISP that is engaged in storing on its servers material that is infringing or the subject of infringing activity.

USTR Releases 2nd Annual Report on WTO Compliance by PR China
12/18. The Office of the U.S. Trade Representative (USTR) released a report [73 pages in PDF] titled "2003 Report To Congress On China's WTO Compliance". In intellectual property rights (IPR) protection, the report finds that China's compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has been "largely satisfactory" to the extent that Chain has passed laws, regulations and rules. However, the report finds that IPR enforcement in China "remains ineffective". In telecommunications, the report finds that "China has not yet established an independent regulator in the telecommunications sector" and that "the problems in the telecommunications sector have increased".

Bush Signs Critical Infrastructure Protection Directive
12/17. President Bush signed a directive titled "Homeland Security Presidential Directive/Hspd-7". It pertains to "Critical Infrastructure Identification, Prioritization, and Protection". It replaces former President Clinton's directive on this subject, titled "Presidential Decision Directive/NSC-63", and dated May 22, 1998. The Clinton directive is also know as "PDD 63".

3rd Circuit Rules on Application of ECPA to Stored E-Mail
12/10. The U.S. Court of Appeals (3rdCir) issued its opinion [15 pages in PDF] in Fraser v. Nationwide, a case involving, among other issues, the application of the Electronic Communications Privacy Act (ECPA) to an employer's search of an employee's stored e-mail communications on a company server. The Appeals Court held that there was no violation of the ECPA.

FCC Files Petition for Rehearing En Banc in Brand X Case
12/3. The Federal Communications Commission (FCC) filed a Petition for Rehearing En Banc [19 pages in PDF] with the U.S. Court of Appeals (9thCir) in Brand X Internet Services v. FCC. On October 6, 2003 a three judge panel of the Court of Appeals issued its opinion [39 pages in PDF] vacating the FCC's Declaratory Ruling [75 pages in PDF] that cable modem service is an information service, and that there is no separate offering as a telecommunications service.

FCC Holds Forum on VOIP
12/1. The Federal Communications Commission (FCC) held a forum on Voice over Internet Protocol (VOIP) issues. All five Commissioners sat through both the morning and afternoon sessions. Chairman Michael Powell again stated that the FCC will issue a Notice of Proposed Rulemaking (NPRM) regarding the appropriate regulatory framework for VOIP. The Commissioners generally called for a light regulatory touch, and focused on five: E-911 mandates, wiretapping and surveillance under the CALEA, access by disabled people, universal service subsidies, and access charges. No Commissioners spoke in support of price regulation of VOIP services.

7th Circuit Rules in Copyright and Database Protection Case
11/25. The U.S. Court of Appeals (7thCir) issued its opinion [13 pages in PDF] in Assessment Technologies v. Wiredata, a copyright infringement case. Judge Richard Posner wrote the opinion for the three judge panel, holding that extracting the data from an electronic database incorporated within a copyrighted program does not constitute copyright infringement.

House and Senate Pass Nanotech R&D Bill
11/20. The House passed S 189, the "21st Century Nanotechnology Research and Development Act", by a voice vote. The Senate amended and passed the bill on November 18. The bill, which is sponsored by Sen. Ron Wyden (D-OR), Sen. George Allen (R-VA) and others, would authorize the appropriation of nearly $4 Billion for nanotechnology research and development programs at a variety of federal agencies.

Book Review: Human Achievement, by Charles Murray
11/19. Conservative controversialist Charles Murray wrote a history of innovators, titled Human Accomplishment: the Pursuit of Excellence in the Arts and Sciences, 800 B.C. to 1950. It is quantitative study. He identifies the leading 4,000 innovators over the last 2,750 years, and assigns scores indicating the extent of their contributions. He also collected data on such things as when they lived, where they lived, and what were some of the surrounding circumstances in which they lived. Murray finds that "At irregular times and in scattered settings, human beings have achieved great things." Murray then makes some strides, through empirical analysis, towards identifying some conditions that have been conducive to innovation and accomplishment, and others that have not. Since some of these conditions, such as individual freedom and the presence of elite universities, can be either advanced or limited by governments, the book has public policy implications.

FCC Adopts Report and Order Allocating More Spectrum for Unlicensed Devices
11/13. The Federal Communications Commission (FCC) announced, but did not release, a Report and Order to provide an additional 255 MHz of spectrum for unlicensed wireless devices operating in the 5 GHz region. The FCC issued only a short press release [2 pages in PDF] summarizing its action. The main use of this spectrum will likely be 802.11 (Wi-Fi) and Bluetooth devices.

Supreme Court Grants Certiorari in Intel v. AMD
11/10. The Supreme Court granted certiorari in Intel v. AMD, a case regarding the availability of a discovery order from a U.S. District Court, pursuant to 28 U.S.C. 1782, for a complainant in an antitrust matter before the European Commission.

FTC Files Complaint Against Company Exploiting Microsoft Messenger to Display Pop Up Ads
11/6. The Federal Trade Commission (FTC) filed a complaint [11 pages in PDF] in U.S. District Court (DMd) against D Squared Solutions LLC and others alleging unfair trade practices in violation of the Federal Trade Commission Act (FTCA) in connection with the exploitation of the Microsoft Windows Messenger Service to send to computers frequent and unwarranted pop up ads that offered for sale software that stops the ads. See also, FTC release.

FCC Releases Broadcast Flag Rule
11/4. The Federal Communications Commission (FCC) adopted and released a Report and Order Further Notice of Proposed Rulemaking [72 pages in PDF] in its proceeding titled "In the Matter of Digital Broadcast Content Protection". This item promulgates rules that include a broadcast flag mandate. The FCC's interest in copyright protection is promoting a transition to DTV.

Commerce Department Releases Third Quarter GDP Data
10/30. The Department of Commerce's (DOC) Bureau of Economic Analysis (BEA) released gross domestic product and related data for the third quarter of 2003. The data shows that investment in computers and peripheral equipment has been growing at an annual rate of 35% for the past two quarters. In addition, it shows that investment in software has been growing at an annual rate of just over 4% for the past two quarters. The economy as a whole grew at an annual rate of 7.2% in the third quarter. This is the largest quarterly increase in 19 years. See, BEA data release.

DC Circuit Upholds FCC DTV Tuner Mandates Order
10/28. The U.S. Court of Appeals (DCCir) issued its opinion [20 pages in PDF] in Consumer Electronics Association v. FCC, upholding the Federal Communications Commission's (FCC) order mandating that most TV sets be built with digital TV tuners.

DOJ Sues to Stop Merger of PIN Debit Networks
10/23. The Department of Justice (DOJ), seven states, and the District of Columbia filed a complaint [28 pages in PDF] in U.S. District Court (DC) against First Data Corporation and Concord EFS, Inc., alleging that First Data's planned acquisition of Concord would violate Section 7 of the Clayton Act.

Senate Passes Burns Wyden Spam Bill
10/22. The Senate amended and passed S 877, the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003'", also known as the "CAN-SPAM Act of 2003", by a vote of 97-0. See, Roll Call No. 404.

Powell Appoints Nancy Victory to WRC-07 Post
10/17. Federal Communications Commission (FCC) Chairman Michael Powell appointed Nancy Victory to be Chair of the FCC's Advisory Committee for the 2007 World Radiocommunication Conference (WRC-07). See, FCC release [PDF]. Victory was previously the head of the National Telecommunications and Information Administration (NTIA). She resigned in August following a finding by the Office of the Inspector General (OIG) of the Department of Commerce (DOC) that she had violated rules governing the ethical standards for federal government employees. See, OIG Memorandum dated June 25, 2003.

District Court Holds that Vonage's VOIP is an Information Service
10/16. The U.S. District Court (DMinn) issued its Memorandum and Order [PDF] in Vonage v. Minnesota Public Utilities Commission, holding that Vonage is an information service provider, and that the MPUC cannot apply state laws that regulate telecommunications carriers to Vonage. The Court wrote that "State regulation would effectively decimate Congress's mandate that the Internet remain unfettered by regulation."

Supreme Court Grants Certiorari in COPA Case
10/14. The Supreme Court granted petitions for writ of certiorari in Ashcroft v. ACLU, No. 03-218. See, Order List [15 pages in PDF] at page 2. This will be the second time for the Supreme Court to consider the Child Online Protection Act (COPA), which bans sending to minors over the web material that is harmful to minors. On March 6, 2003 the U.S. Court of Appeals (3rdCir) issued its opinion [59 pages in PDF] holding the COPA unconstitutional on first amendment grounds.

10th Circuit Stays District Court Injunction of Implementation of Do Not Call Registry
10/7. The U.S. Court of Appeals (10thCir) issued an order [24 pages in PDF] staying the September 25 order of the U.S. District Court (DColo) that barred the Federal Trade Commission (FTC) from implementing its national telemarketing do not call registry. The FTC and FCC may now proceed to implement and enforce their rules pertaining to the do not call registry.

9th Circuit Vacates FCC Declaratory Ruling That Cable Modem Service is an Information Service Without a Separate Offering of a Telecommunications Service
10/6. The U.S. Court of Appeals (9thCir) issued its opinion [39 pages in PDF] in Brand X Internet Services v. FCC, vacating the Federal Communications Commission's (FCC) Declaratory Ruling (DR) that cable modem service is an information service, and that there is no separate offering as a telecommunications service. The FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking [75 pages in PDF] at its March 14, 2002 meeting. The DR component of this item states that "we conclude that cable modem service, as it is currently offered, is properly classified as an interstate information service, not as a cable service, and that there is no separate offering of telecommunications service." The opinion of the Court of Appeals vacates this DR. In so doing, the Court has placed itself in the role of writing broadband policy for the U.S., and thereby, undermined the FCC's attempts to promote broadband deployment. FCC Chairman Michael Powell promptly announced that the FCC will appeal.

First Circuit Reverses Certification of Defendant Class in Copyright Action
10/2. The U.S. Court of Appeals (1stCir) issued its opinion in Tilley v. TJX, reversing a District Court order certifying a defendant class in a copyright infringement case. The Appeals Court's opinion cautiously reverses the District Court's order on basis that the grounds relied upon by the District Court were inadequate. The Appeals Court left open the possibility that the District Court on remand could certify a defendant class on other grounds.

Homeland Security Appropriations Bill Purports to Restrict Use of Funds for CAPPS II
10/1. President Bush signed HR 2555, the "Department of Homeland Security Appropriations Act, 2004." The bill contains language prohibiting the use of funds for the Computer Assisted Passenger Prescreening System (CAPPS II) program until the General Accounting Office (GAO), which is an arm of the Congress, issues a report to the Congress in which it finds that the CAPPS II program meets certain specified criteria set out in the bill. However, while this language is in the bill, and the President signed the bill, the President wrote in a separate signing statement that this language of the bill is ineffective under the Supreme Court's opinion in INS v. Chadha. Bush wrote that while the language is mandatory, he will construe it as merely advisory.

FTC Appeals District Court Ruling That Do No Call Registry Violates 1st Amendment
9/26. The Federal Trade Commission (FTC) filed a Notice of Appeal [3 pages in PDF] with the U.S. District Court (DColo) in Mainstream Marketing v. FTC. On September 25, the District Court issued its Memorandum Opinion and Order [34 pages in PDF] holding that the FTC's do not call registry violates the First Amendment free speech rights of telemarketers. The FTC also filed a Motion for an Emergency Stay Pending Appeal [3 pages in PDF] and a Memorandum of Points and Authorities in Support of It's Motion for an Emergency Stay Pending Appeal [9 pages in PDF].

Congress Passes Bill to Authorize Do Not Call Registry
9/25. The House passed HR 3161, a bill authorizing the Federal Trade Commission (FTC) to implement a national do not call registry, by a vote of 412-8. See, Roll Call No. 521. Later in the day, the Senate passed the bill by a vote of 95-0. See, Roll Call No. 365. President Bush said he will sign the bill. The Congress passed this bill in immediate response to the September 24 Order [19 page PDF scan] of the U.S. District Court (DOkla) in U.S. Security v. FTC, holding that the FTC's rule creating a do not call registry exceeds the statutory authority of the FTC.

EPIC Submits Privacy Complaint To FTC Regarding JetBlue
9/22. The Electronic Privacy Information Center (EPIC) submitted a complaint to the Federal Trade Commission (FTC) in which it alleged that JetBlue Airways Corporation and Acxiom Corporation violated Section 5 of the Federal Trade Commission Act (FTCA), codified at 15 U.S.C. 45(a)(1), in connection with the disclosure of consumer personal information to Torch Concepts Inc. The EPIC alleges that JetBlue collected personal information from its customers through its web site, and promised customers in its privacy policy that it would not share this information, but did in fact provide the information to an information mining company at the request of the Department of Defense (DOD). The EPIC alleges that this constitutes a deceptive trade practice that violates the FTCA.

House Republicans Assert That They Are The High Tech Party
9/17. The House Republican High-Tech Working Group (HTWG) hosted an event in the Capitol Building to review its accomplishments, promote its agenda, and assert that when it comes to technology, the Republicans "get it".

Bush Proposes Expanded Administrative Subpoena Power
9/10. President Bush gave a speech at the FBI Academy at Quantico, Virginia, on September 10, in which he stated that the Congress should pass legislation giving law enforcement new tools, including administrative subpoena power, to fight terrorism. On September 9, Rep. Tom Feeney (R-FL) introduced HR 3037, the "Antiterrorism Tools Enhancement Act of 2003", for this purpose.

FCC Rules that Howard Stern Has a Bona Fide News Interview Program
9/9. The Federal Communications Commission's (FCC) Media Bureau issued a Declaratory Ruling [PDF] that Infinity Broadcasting Operations' Howard Stern Show, famous for its on air garbage, constitutes a "bona fide news interview program", and is therefore exempt from the equal time requirements of 47 U.S.C. 315. While pundits and critics may condemn a finding that Howard Stern's program is "bona fide news", the FCC has a long history of granting "bona fide news" exemptions to the speakers of the vast wasteland of broadcast media.

Senate Appropriations Committee Marks Up CJS Bill
9/4. The Senate Appropriations Committee approved several the FY 2004 Commerce, Justice, State, and the Judiciary (CJS) appropriations bill. This bill includes appropriations for most of the technology related agencies, including the Federal Communications Commission (FCC), Federal Trade Commission (FTC), U.S. Trade Representative (USTR), Department of Justice (DOJ), U.S. Patent and Trademark Office (USPTO), National Telecommunications and Information Administration (NTIA), and National Institute of Standards and Technology (NIST). The Committee approved a manager's amendment that includes a provision that prohibits the use of funds to grant licenses for a commercial TV broadcast station if the granting of that license would result in such party having an aggregate national audience reach exceeding 35%. This has the effect, during fiscal year 2004, of reversing the FCC's recently announced change to the national TV ownership cap. The Committee also approved an amendment that, in effect, provides that Northpoint will not have to obtain its spectrum at auction.

3rd Circuit Stays FCC's Media Ownership Rule Changes
9/3. The U.S. Court of Appeals (3rdCir) issued an order [3 page PDF scan] in Prometheus Radio Project v. FCC, staying the Federal Communications Commission's (FCC) new media ownership rules, pending resolution of the proceeding. The Appeals Court granted this preliminary relief without making any finding of likelihood of success on the merits.

3rd Circuit Breaks New Ground on Copyright Misuse
8/26. The U.S. Court of Appeals (3rdCir) issued its opinion [23 pages in PDF] in Video Pipeline v. Buena Vista Home Entertainment, affirming the District Court's preliminary injunction of Video Pipeline's online distribution of short clip previews of Disney movies, and rejecting Video Pipeline's affirmative defenses of fair use and copyright misuse. However, while the Appeals Court ultimately held that the copyright misuse defense fails in this case, it made new law by extending its applicability.

Summary of FCC Triennial Review Order
8/21. The Federal Communications Commission (FCC) released its triennial review order [576 pages in PDF]. The order is consistent with the FCC's announcements made on February 20, 2003, but adds considerable detail.

FCC Releases Order Permitting AOL Time Warner to Provide Advanced IM Services
8/20. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order [13 pages in PDF] granting AOL Time Warner's petition to remove the FCC's restriction on its provision of video streaming advanced Instant Messaging based high speed services (AIHS). The FCC had imposed this restriction in its order approving the merger of AOL and Time Warner in early 2001.

Music Publishers File Appeal Brief in P2P Infringement Case
8/18. The National Music Publishers Association (NMPA), representing Jerry Liebler and other music publishers and songwriters, and the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), representing MGM and other movie and record companies, filed appeal briefs with the U.S. Court of Appeals (9thCir) in Liebler v. Grokster and MGM v. Grokster. The MPAA/RIAA brief was filed under seal. The NMPA brief is also under seal. However, the NMPA has released a public redacted version of its brief [45 pages in PDF].

9th Circuit Applies Section 230 Immunity to Online Dating Service
8/13. The U.S. Court of Appeals (9thCir) issued its opinion [12 pages in PDF] in Carafano v. Metrosplash.com, a case regarding application of Section 230 interactive computer service immunity to an online dating service. The District Court had held that the online dating service, which wrote the questionnaire to be used by persons who post their profiles, did not have  230 immunity for a false posting, because it contributed to the content. The Appeals Court held that the service does have  230 immunity.

7th Circuit Holds State Cannot Substitute Tariff Filing for Negotiations to Set Prices and Terms for Interconnection
8/12. The U.S. Court of Appeals (7thCir) issued its split opinion [18 pages in PDF] in Wisconsin Bell v. Bie, a case regarding the interconnection provisions of 251 and 252 of the Communications Act. The Appeals Court that the Wisconsin's public utilities commission cannot order the regional Bell company to filed tariffs setting the prices and terms on which competitors can interconnect.

Sen. Lisa Murkowski Introduces Bill to Roll Back Surveillance Provisions of PATRIOT Act
7/31. Sen. Lisa Murkowski (R-AK) introduced S 1552 [21 pages in PDF], the "Protecting the Rights of Individuals Act", or PRI Act. This bill contains numerous significant changes to the Foreign Intelligence Surveillance Act (FISA) and the Criminal Code to limit the powers of government to conduct searches, seizures, and surveillance. It contains some major rollbacks of provisions added to the FISA (Title 50) and the Criminal Code (Title 18) by the PATRIOT Act in late 2001. Sen. Ron Wyden (D-OR) is the cosponsor of the bill.

Pacific Bell Internet Services Sues RIAA Over Infringer Subpoenas
7/30. Pacific Bell Internet Services (PBIS) filed a complaint in U.S. District Court (NDCal) against the Recording Industry Association of America (RIAA) seeking declaratory and injunctive relief regarding the validity of subpoenas issued by the U.S. District Court (DC), pursuant to Section 512 of the DMCA, that directs ISPs to provide information about subscribers alleged to be engaging in P2P copyright infringement over the ISPs' networks. The complaint argues many of the issues raised by Verizon in a case in the District of Columbia. (Verizon lost on these issues.) The complaint also raises issues regarding the form of the subpoenas, the manner in which they are served, and whether the recipient is entitled to compensation for compliance.

Sen. Wyden Introduces Bill to Require Government to Disclose Its Use of Databases
7/29. Sen. Ron Wyden (R-OR) introduced S 1484 [9 pages in PDF], "The Citizens' Protection In Federal Databases Act". This is a disclosure bill. It does not actually restrict the government's collection or use of data. Rather, it would cut off funding for certain enumerated government entities to obtain or access commercial databases, unless these entities first provide a detailed report to the Congress and the public explaining their use of these databases.

Rep. Bono Introduces Sypware Bill
7/25. Rep. Mary Bono (R-CA) and Rep. Edolphus Towns (D-NY) introduced HR 2929 [PDF], the "Safeguard Against Privacy Invasions Act", a bill to prohibit the distribution of certain spyware programs over the internet without notice and consent.

House Subcommittee Holds Hearing on Classification of Broadband Services
7/21. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing titled "The Regulatory Status of Broadband Services: Information Services, Common Carriage, or Something in Between?" The Federal Communications Commission (FCC) has several open proceeding that pertain to the issue.

House CIIP Subcommittee Holds Hearing on Piracy Deterrence and Education Act
7/17. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property (CIIP) held a hearing on HR 2517, the "Piracy Deterrence and Education Act of 2003." This bill would enhance the government's resources for prosecuting intellectual property crimes, and involve the Federal Bureau of Investigation (FBI) and Department of Justice (DOJ) in educating and warning the public regarding internet based copyright infringement.

House Judiciary Committee Approves Internet Tax Bill
7/16. The House Judiciary Committee approved HR 49, the "Internet Tax Nondiscrimination Act", by a voice vote. This bill is sponsored by Rep. Chris Cox (R-CA), and cosponsored by 132 other members of the House. It would permanently extend the moratorium on internet access taxes and multiple and discriminatory internet taxes that was created by the 1998 Internet Tax Freedom Act (ITFA). It would also eliminate the grandfather provision that allows states that had taxes in 1998 to continue those taxes. The Committee also approved an amendment offered by Rep. Mel Watt (D-NC) that provides that the moratorium applies to telecommunications services, "to the extent such services are used to provide Internet access", thus clarifying that the ban on internet access taxes extends to broadband DSL and wireless services provided by phone companies or others.

House Commerce Committee Holds Hearing on Spam
7/9. The House Commerce Committee's Subcommittees on Commerce, Trade and Consumer Protection and on Telecommunications and the Internet held a hearing titled "Legislative Efforts to Combat Spam". It focused on HR 2214, sponsored by Rep. Richard Burr (R-NC), and HR 2515, sponsored by Rep. Heather Wilson (R-NM).

Court Rules Operation of Website Does Not Create Personal Jurisdiction Over Out of State Defendant
7/2. The U.S. Court of Appeals (4thCir) issued its opinion [PDF] in Carefirst Maryland v. CPC, a case involving whether the operation of a website by a local non profit group can serve as the basis for personal jurisdiction over it by an out of state court in a trademark infringement case. The District Court dismissed for lack of personal jurisdiction. The Appeals Court affirmed.

Senate Commerce Committee Approves FCC Reauthorization Bill
6/26. The Senate Commerce Committee amended and approved S 1264, the Federal Communications Commission Reauthorization Act of 2003. The bill would reauthorize the Federal Communications Commission (FCC) through 2008. However, the bill also contains many significant substantive provisions pertaining to media ownership rules, e-rate fraud, FCC enforcement, lobbying by former FCC officials, and the effect of bankruptcy on spectrum auctions.

9th Circuit Construes Section 230 Immunity in Suit Against Listserv Operator
6/24. The U.S. Court of Appeals (9thCir) issued its opinion [41 pages in PDF] in Batzel v. Smith, a case involving the application of California's Anti-SLAPP statute to a suit alleging defamation on an internet listserv. The District Court denied a defendant's motion to dismiss under the Anti-SLAPP statute. The Appeals Court, relying upon the federal interactive computer service immunity provision of 47 U.S.C. 230(c)(1), vacated and remanded.

Supreme Court Grants Certiorari in Nixon v. Missouri Municipal League
6/23. The Supreme Court granted certiorari in Nixon v. Missouri Municipal League, and related cases, pertaining to 47 U.S.C. 253(a) and state statutes that prohibit political subdivisions from offering telecommunications services. Nixon (as Attorney General of Missouri), the Federal Communications Commission (FCC), and Southwestern Bell, each sought review of the opinion [11 pages in PDF] of the U.S. Court of Appeals (8thCir) that vacated an FCC Memorandum Opinion and Order [18 pages in PDF] denying a request that it preempt a Missouri statute that prohibits political subdivisions of the state from offering telecommunications services. See, full story.

Senate Commerce Committee Passes Media Ownership Bill
6/19. The Senate Commerce Committee amended and passed S 1046, the "Preservation of Localism, Program Diversity, and Competition in Television Broadcast Service Act of 2003". The bill, as amended, would roll back some of the changes to the the Federal Communications Commission's (FCC) media ownership rules that the FCC announced at its June 2, 2003 meeting. See, full story.

Reps. Lofgren and Boucher Address FTAs and DMCA
6/18. Rep. Zoe Lofgren (D-CA) and Rep. Rick Boucher (D-VA) urged passage of two bills that would amend the DMCA to provide exceptions to its anti-circumvention provisions. They also stated that Secretary of Commerce Don Evans has advised them that these bills would not breach the treaty obligations of the U.S. under the negotiated Singapore and Chile free trade agreements (FTA). President Bush signed the Singapore FTA on May 6, 2003, and U.S. Trade Representative (USTR) Robert Zoellick signed the Chile FTA on June 6, 2003. Both require approval by the Congress. See, full story.

Supreme Court Denies Certiorari in Baystate v. Bowers
6/16. The Supreme Court denied certiorari, without opinion, in Baystate v. Bowers, a patent, copyright and contract case involving CAD software. See, Order List [10 pages in PDF], at page 4. This denial lets stand the January 29, 2003, revised opinion of the U.S. Court of Appeals (FedCir) which addressed federal preemption, shrink wrap contracts, and reverse engineering. Basically, a shrinkwrap contract barred reverse engineering of a software program. A divided Appeals Court held that the Copyright Act does not preempt state contract law that allows parties to impose a ban on reverse engineering. See, full story.

FTC Seeks End to Communications Common Carrier Exemption
6/11. The Federal Trade Commission (FTC) proposed to the Congress that it amend the Federal Trade Commission Act (FTCA) to end the exemption for common carriers subject to the Communications Act from the FTCA's prohibitions on unfair or deceptive acts or practices and unfair methods of competition. See, full story.

Supreme Court Reverses in Dastar v. Fox
6/2. The Supreme Court issued its opinion [18 pages in PDF] in Dastar v. Twentieth Century Fox, reversing the Court of Appeals, which had upheld a District Court judgment of violation of the Lanham Act's false designation of origin provision. Technically, this is a Lanham Act, reverse passing off, case. In another sense, this is a case in which a plaintiff is passing off a copyright claim as a Lanham Act claim. The plaintiff alleged that its work of authorship was copied (which can be actionable under the Copyright Act), but instead proceeded on the legal theory of violation of the Lanham Act. The defendant copied a work whose copyright had expired, and failed to attribute its origin. The lower courts ruled for the producer. The Supreme Court reversed, 8-0. It held that this is not the purpose of the Lanham Act. Moreover, allowing this sort of use of the Lanham Act would have the impermissible effect of creating perpetual quasi patents and copyrights. See, full story.

Court Hears Arguments on Bar Associations' Challenges to FTC's Financial Privacy Rules
6/2. The U.S. District Court (DC) heard oral argument in both New York State Bar Association v. FTC and ABA v. FTC. These suits challenge to the application of the financial privacy provisions of the Gramm Leach Bliley Act to practicing attorneys. The hearing was on the Federal Trade Commission's (FTC) motions to dismiss the complaints. The Court took the matter under advisement, but only after asking numerous questions to counsel for the government that reflect a skepticism about the merits of the government's position. See, full story.

Microsoft and AOL Time Warner Settle Antitrust Lawsuit
5/29. Microsoft and AOL Time Warner announced that they settled the private antitrust lawsuit brought by AOLTW against Microsoft. They announced that Microsoft will pay $750 Million, license Internet Explorer royalty free, and work with AOLTW on digital media and digital rights management initiatives. See, full story.

DHS and NIST to Collaborate
5/22. Department of Homeland Security's (DHS) Science and Technology Directorate and the Department of Commerce's (DOC) Technology Administration (TA), which includes the National Institute of Standards and Technology (NIST), entered into a Memorandum of Understanding (MOU) [2 pages in MS Word] which states that "the Directorate and TA seek to collaborate on research and planning activities, and share where appropriate facilities, personnel, and scientific information". When the Bush administration originally proposed creating the new DHS in the summer of 2002, it proposed moving the NIST's Computer Security Division to the new DHS. However, the Congress rejected this proposal. See, full story.

7th Circuit Addresses Erroneous Copyright Registrations, Assignments, and Works Made for Hire
5/21. The U.S. Court of Appeals (7thCir) issued its opinion [PDF] in Billy Bob Teeth v. Novelty, a copyright infringement and trade dress infringement case involving novelty teeth. The dispute does not involve technology. Nevertheless, the Court addressed issues, such as authorship, registration, erroneous registration, assignment, and works made for hire, that are applicable in copyright cases involving technology. See, full story.

1st Circuit Holds Monitoring Web Site Traffic Can Violate Wiretap Act
5/9. The U.S. Court of Appeals (1stCir) issued its opinion in In Re Pharmatrak Privacy Litigation, reversing a District Court summary judgment in a case brought under the Electronic Communications Privacy Act (ECPA) involving web site monitoring. See, full story.

FCC Adopts Order Allowing Some Secondary Leasing of Spectrum
5/15. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) and a Further Notice of Proposed Rulemaking (FNPRM) which allows certain FCC spectrum licensees to enter into leasing arrangements with third parties. The FCC released a press release [4 pages in PDF] announcing the R&O and FNPRM. It states that this item "(1) authorizes spectrum leasing in a broad array of wireless radio services, (2) adopts streamlined processing for certain categories of license transfer and assignment applications, and (3) seeks comment on additional steps to improve the functioning of secondary markets." See, full story.

FBI Legal Memorandum Addresses FBI Use of Internet and Private Databases
5/13. The Electronic Privacy Information Center (EPIC) published in its web site a heavily redacted copy of a Federal Bureau of Investigation (FBI) memorandum [16 page PDF scan] that addresses FBI use of the internet for investigations, and whether the FBI may pay for access to ChoicePoint's database of personally identifiable information about Americans. The unredacted portions of the memorandum state that the FBI may use the internet to collect publicly available information in foreign counterintelligence investigations (FCI) provided that the FBI complies with the Privacy Act and the Attorney General's Guidelines. However, on the question of whether the FBI may use ChoicePoint's private database, the memorandum's key sections are redacted. The unredacted portions of the memorandum further state that use of ChoicePoint does not violate the Fair Credit Reporting Act (FRCA). See, full story.

House Crime Subcommittee Approves Internet Gambling Bill
5/6. The House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security approved HR 21, the "Unlawful Internet Gambling Funding Prohibition Act", without amendment, by a voice vote. This bill, which is sponsored by Rep. James Leach (R-IA), would attempt to functionally bar internet gambling by prohibiting the use of financial instruments, such as credit cards, in any transaction involving illegal internet gambling. See, full story.

Sen. Ensign Introduces Bill to Impose Moratorium on Mandating Stock Option Expensing
5/1. Sen. John Ensign (R-NV), Sen. Barbara Boxer (D-CA), and other Senators introduced S 979, the "Broad-Based Stock Option Plan Transparency Act of 2003''. The bill is a reaction to a tentative decision of the Financial Accounting Standards Board's (FASB) in April to mandate the expensing of stock options. The bill would place a three year moratorium on the mandatory expensing of stock options. Specifically, it would temporarily prevent the Securities and Exchange Commission's SEC's from recognizing any accounting standards related to the treatment of stock options that it did not recognize on April 1, 2003. The bill would further require the SEC to adopt rules requiring companies to report information regarding their stock option plans. And, after three years, the SEC would be required to prepare a report. See, full story.

Supreme Court Denies Certiorari in Internet Jurisdiction Case
4/28. The Supreme Court denied certiorari, without opinion, in Healthgrades.com v. Northwest Healthcare Alliance. This denial lets stand an opinion of the U.S. Court of Appeals (9thCir) holding that the U.S. District Court (WDWash) has personal jurisdiction over an out of state defendant in defamation case, based solely upon publication of its allegedly defamatory statements in its internet web site. The lower courts, and foreign courts, have issued many opinions in the last few years, some of which are inconsistent, which leave considerable uncertainty as to when a court has personal jurisdiction over a distant defendant, whose internet based conduct serves as the basis for the claim, and personal jurisdiction. The Supreme Court passed up an opportunity to bring some clarity to this issue. See, full story.

District Court Rules That A DMCA  512(h) Subpoena for the Identity of an P2P Infringer Does not Violate the Constitution
4/24. The U.S. District Court (DC) issued an order [3 pages in PDF] and opinion [58 pages in PDF] in RIAA v. Verizon, holding that the issuance of a subpoena by a Clerk of the District Court pursuant to 17 U.S.C. 512(h) to obtain the identity of an anonymous peer to peer infringer from his ISP does not violate either the First Amendment of the Constitution, or the justiciability requirements of Article III. The District Court also denied Verizon's motion for stay pending appeal, but granted a 14 day stay, to enable Verizon to seek a stay from the Appeals Court. This opinion addresses Verizon's constitutional objections. The District Court previously rejected Verizon's arguments regarding construction of 512 of the Digital Millennium Copyright Act (DMCA). See, full story.

10th Circuit Rules on Civil Liability for Violation of Wiretap Act
4/22. The U.S. Court of Appeals (10thCir) issued its opinion in Quigley v. Rosenthal, a civil case involving application of the federal wiretap act to the monitoring of cordless telephone conversations. The case addresses who can be held liable for illegal interception of wire or electronic communications, and when the First Amendment offers protection to those who make use of such intercepted communications. The Appeals Court affirmed a District Court civil judgment against the Anti-Defamation League (ADL) for violation of the Wiretap Act, when it had not conducted the monitoring, but rather, had conspired with others who recorded the cordless telephone conversations, and then made use of the recordings. The Appeals Court also rejected the ADL's argument that its use of the recordings was protected by the First Amendment. The Appeals Court distinguished the Supreme Court's recent opinion in Bartnicki v. Vopper, which held that a radio host who disclosed an illegally recorded cell phone conversation was protected by the First Amendment. See, full story.

DHS Begins Rulemaking Proceeding on FOIA Exemption for Critical Infrastructure Information
4/15. The Department of Homeland Security (DHS) published a notice in the Federal Register regarding proposed rules for receiving and protecting critical infrastructure information (CII). The DHS is required by the Homeland Security Act to conduct this rulemaking to implement the provisions of the Act creating an exemption to the Freedom of Information Act (FOIA) for certain information about critical infrastructures, including cyber security, that is voluntarily shared with the government. See, full story.

House and Senate Pass Conference Report on Child Protection Bill
4/10. The House and Senate both passed the conference report [118 pages PDF] on S 151, the "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003", or "PROTECT Act". The House passed the bill by a vote of 400-25. See, Roll Call No. 127. The Senate passed the bill by a vote of 98-0. See, Roll Call No. 132. The bill contains several tech related items, including a ban on use of certain misleading domain names, provisions pertaining to computer generated images, and an expansion of the list of offenses that may serve as a predicate for the issuance of a wiretap order. See, full story.

4th Circuit Holds North Carolina Ban On Internet Wine Sales Is Unconstitutional
4/8. The U.S. Court of Appeals (4thCir) issued its opinion [20 pages in PDF] in Beskind v. Easley, holding that North Carolina's ban on direct shipment of wine from out of state wineries to North Carolina residents violates the Commerce Clause. See, full story.

Greenspan Addresses Intellectual Property Laws
4/4. Federal Reserve Board (FRB) Chairman Alan Greenspan gave a speech titled "Market Economies and Rule of Law". He spoke primarily about developing a legal regime for intellectual property that maximizes economic growth. He offered some insights into how to analyze the problem, and asked some rhetorical questions, but offered no specific policy recommendations. He said that the "more general challenge is to develop a framework that fosters the growth of an economy increasingly dominated by conceptual products." See, full story.

AOL Time Warner Petitions FCC for Relief From Instant Messaging Restriction
4/2. AOL Time Warner (AOLTW) submitted a petition [58 pages in PDF] to the Federal Communications Commission (FCC) requesting relief from the FCC's January 22, 2001 Memorandum Opinion and Order (MOO) approving the merger of AOL and Time Warner, and imposing conditions upon AOLTW regarding instant messaging services. Specifically, AOLTW seeks relief from the condition restricting its ability to offer internet users streaming video advanced Instant Messaging based high speed services (AIHS) via AOL Time Warner broadband facilities. See, full story.

USTR Submits Proposal to WTO Regarding Trade in Services
3/31. The Office of the U.S. Trade Representative (USTR) released a document titled "Initial Offer" [120 pages in PDF] that it submitted to the World Trade Organization (WTO) in which it proposes to further open access to the U.S. services sectors. The offer addresses a wide range of services, including telecommunications, information, legal, financial and accounting services. See, full story.

House Subcommittee Holds Hearing On Commercial Spectrum Enhancement Act
3/25. The House Commerce Committee's Subcommittee on Telecommunications and the Internet held a hearing on HR 1320, the Commercial Spectrum Enhancement Act. This bill would facilitate the relocation of spectrum from federal users, such as the Department of Defenese (DOD), to commercial users, such as Third Generation (3G) wireless service providers. 3G is intended to provide broadband internet access for portable devices. The bill would create a "Spectrum Relocation Fund", funded out of auction proceeds, to pay for relocation costs of federal entities whose spectrum is reallocated. See, full story.

8th Circuit Upholds TCPA
3/21. The U.S. Court of Appeals (8thCir) issued its opinion [17 pages in PDF] in Missouri v. American Blast Fax, upholding the constitutionality of the fax advertising ban contained in the Telephone Consumer Protection Act of 1991. This case dealt only with application of the fax advertising ban to unsolicited commercial fax messages. However, were the Congress to enact a ban on unsolicited commercial e-mail advertising, the analysis of its constitutionality would be very similar to the analysis in this case. See, full story.

Senate Committee Holds Hearing on Internet Gambling Bill
3/18. The Senate Banking Committee held a hearing on proposals to regulate illegal internet gambling. The hearing focused on HR 21 and S 627, both of which would attempt to bar internet gambling operations access to the U.S. financial services system by banning the use of credit cards, wire transfers, or any other bank instrument to fund gambling transactions. The two bills are not identical. Senators expressed support for the legislation. See, full story.

Supreme Court Grants Certiorari in Verizon v. Trinko
3/10. The Supreme Court granted certiorari in Verizon v. Trinko, a case involving the application of Section 2 of the Sherman Antitrust Act, 15 U.S.C. 2, in the context of telecommunications. The Court's Order List [14 pages in PDF], at page 4, states that "The petition for a writ of certiorari is granted limited to the following Question: ``Did the Court of Appeals err in reversing the District Court's dismissal of respondent's antitrust claims?" See, full story.

Bush Administration Announces Digital Freedom Initiative
3/4. Secretary of Commerce Donald Evans, other Bush administration officials, and others announced the launch of a Digital Freedom Initiative. The initiative involves foreign aid for developing countries to develop information and communication technology (ICT), training by Peace Corps volunteers, and involvement by U.S. technology companies. This launch event pertained to the African nation of Senegal. The participants' descriptions of the initiative were long on superlatives, aspirations, and plans for expansion to other countries, but short on specifics. It will involve foreign aid grants from the U.S. Agency for International Development (USAID). A release from the White House press office stated that the estimated budget for the Senegal program over three years is $6.5 Million. It will also involve contributions from Cisco and HP, primarily in the form of training and "human capital", as opposed to free equipment and money. See, full story.

House Commerce Committee Holds Hearing on FCC Triennial Review Order
2/26. The House Commerce Committee's Telecom and Internet Subcommittee held a lengthy hearing. All five Commissioners of the Federal Communications Commission (FCC) explained and defended their positions in the divided Triennial Review Order which the FCC announced last week. Key members of the Subcommittee condemned the UNE-P portion of the order, and predicted its eventual reversal by the courts. See, full story.

Hearing On Triennial Review Order Serves As Forum For Other Issues
2/26. The House Commerce Committee's Telecom and Internet Subcommittee hearing on February 26 on the Federal Communications Commission's (FCC) Triennial Review order regarding the Section 251 unbundling obligations of incumbent local exchange carriers (ILECs) also served as a forum for the discussion of other communications and technology related issues. Members of the Subcommittee raised the FCC's media ownership rules, e-rate subsidies for schools and libraries, telemedicine at rural health clinics, E911, internet taxes, and other issues. See, full story.

TLJ Articles on FCC UNE Report and Order of February 20
  FCC Announces UNE Report and Order
  FCC Order Offers Broadband Regulatory Relief
  FCC Announces Decision on Switching
  Commentary: Republicans Split On FCC UNE Order
  Congressional Reaction To FCC UNE Order

New Hampshire Court Rules on Tort Liability of Information Brokers
2/18. The Supreme Court of New Hampshire issued its opinion in Remsburg v. Docusearch regarding whether private investigators and information brokers are liable in tort for privacy invasions of third parties about whom they are collecting and disseminating information. See, full story.

Sen. Edwards Proposes Homeland Intelligence Agency
2/13. Sen. John Edwards (D-NC) introduced S 410, the Foreign Intelligence Collection Improvement Act of 2003. It would revise the way the government conducts foreign intelligence operations within the U.S., and the way government stores, shares and safeguards information. It would create a Homeland Intelligence Agency within the Department of Homeland Security, and reduce the responsibilities of the FBI. The bill does not expand the powers of the federal government with respect to intelligence gathering. Rather, it is premised upon the assumption that by moving certain functions to a new agency, those functions will be conducted more effectively. It also limits executive power, in two respects. First, a substantial part of the bill is devoted to protecting privacy, civil rights and Constitutional rights, particularly through the creation of an entity to safeguard these rights. Second, it would increase the ability of the Congress to oversee and control the operations of executive branch. See, full story.

3rd Circuit Rules on Retroactivity of Cyber Squatting Act
2/11. The U.S. Court of Appeals (3dCir) issued its opinion [4 pages in PDF] in Schmidheiny v. Weber, a case regarding retroactive application of the Anti-cybersquatting Consumer Protection Act's (ACPA) protection of individuals' names, and the effect of re-registration of a domain name. The Appeals Court held that while the ACPA does not apply retroactively to registrations of domain names prior to the effective date of the statute, it does apply to re-registrations of domain names after the effective date, for which the original registration was before the effective date. See, full story.

Administration Officials Discuss Technology Related Budget Items
2/4. Department of Commerce officials held a briefing on sections of the President Bush's proposed budget for fiscal year 2004 that pertain to intellectual property, technology, science and innovation. The participants were included Phil Bond, Under Secretary for the Technology Administration, Arden Bement, Director of the NIST, Jon Dudas, Deputy Director of the USPTO, Kenneth Juster, Under Secretary for the Bureau of Industry and Security, and Nancy Victory, Director of the NTIA. Jon Dudas stated that the FY04 budget proposal calls for $1,404 Million, up from the FY03 proposal of $1,334 Million. He also stated that this proposal continues the practice of "fee diversion". However, on the bright side, he said that this proposal "returns to the USPTO a greater share of its revenue than last year". See, full story.

Representatives Introduce Bills to Make R&D Tax Credit Permanent
2/3. Last week, two bills were introduced in the House to make permanent the existing research and development tax credit. Technology companies are among the strongest backers of efforts to make the R&D tax credit permanent. See, full story.

Federal Circuit Rules in Rambus v. Infineon
1/29. The U.S. Court of Appeals (FedCir) issued its split opinion [MS Word] in Rambus v. Infineon, a patent infringement case involving dynamic random access memory (DRAM) products. The Court of Appeals vacated the District Court's judgment of non-infringement, as a matter of claim construction. It also reversed the District Court's denial of a motion to set aside a jury verdict of fraud under Virginia state law based upon failure to disclose patent and patent application information to a standard setting body. However, Rambus still faces a Federal Trade Commission (FTC) administrative complaint, based upon essentially the same facts, but which alleges violation of antitrust law. See, full story.

Supreme Court Rules Against FCC in NextWave Case
1/27. The Supreme Court issued its opinion [34 pages in PDF] in FCC v. NextWave Personal Communications, holding that the Federal Communications Commission's (FCC) attempt to revoke NextWave's spectrum licenses violated Section 525 of the Bankruptcy Code. See, full story.

District Court Rules DMCA Subpoenas Available for P2P Infringers
1/21. The U.S. District Court (DC) issued its opinion in RIAA v. Verizon, ruling that copyright holders can obtain subpoenas pursuant to 17 U.S.C. 512(h) that require Internet Service Providers (ISPs) to reveal the identities of their customers who infringe copyrights on peer to peer filing sharing systems. Verizon had argued that 512(h) subpoenas were only available with respect to infringers who stored infringing content on the servers of the ISP. While the Recording Industry Association of America (RIAA) could obtain a subpoena by other means, this holding is significant because Section 512(h) provides a fast and efficient means of obtaining subpoenas for ISP's information that identifies infringers. In particular, it requires no notice to, or opportunity to be heard by, the alleged infringer. Verizon stated that it will appeal. See, full story.

Supreme Court Upholds CTEA in Eldred v. Ashcroft
1/15. The Supreme Court issued its opinion [89 pages in PDF] in Eldred v. Ashcroft, upholding the constitutionality of the Copyright Term Extension Act (CTEA), which retroactively extended the maximum duration of copyrights. Justice Ruth Ginsburg wrote the opinion of the Court, in which Kennedy, O'Connor, Rehnquist, Scalia, Souter, and Thomas joined. Both Breyer and Stevens wrote dissenting opinions. Justice Ginsburg wrote that the Copyright Clause delegates to the Congress the authority to set the terms for copyright protection, and the Supreme Court will defer to the Congress' determinations. She also wrote that the First Amendment does not limit the Congress' power to extend copyright terms. She wrote "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them." Such safeguards, wrote Ginsburg, include fair use, and the principle that copyright protects expressions, but not the ideas or facts contained in expressions. See, full story.

Software, Computer and Music Companies Reach Agreement on Digital Copyright Issues
1/14. Three industry groups, the Recording Industry Association of America (RIAA), the Business Software Alliance (BSA), and the Computer Systems Policy Project (CSPP), reached an agreement regarding policies that they will advocate in the 108th Congress regarding digital copyright issues. The agreement is compromise and truce between industries that previously advocated conflicting policies. One of the key provisions is that "Technical protection measures dictated by the government ... are not practical". This is a retreat by the music industry. Another key provision is that "Legislation should not limit the use or effectiveness" of "unilateral technical protection measures that limit unauthorized access, copying or redistribution of products". Another key provision is support for "technical measures to limit illegal distribution of copyrighted works", subject to certain limitations. See, full story.

District Court Squeezes Sharman on Internet Based Personal Jurisdiction
1/9. The U.S. District Court (CDCal) issued an order and opinion in MGM v. Grokster in which it denied Sharman Network's motion to dismiss for lack of personal jurisdiction. Sharman, which now owns the key assets of Kazaa, is organized in the offshore jurisdiction of Vanuatu, apparently for the purpose of evading the reach of U.S. courts. Sharman provides free software, known as the Kazaa Media Desktop (KMD), that can be downloaded and used to search for and exchange digital music, movies, and other mostly copyrighted works, using FastTrack file sharing technology. The Court based its finding of personal jurisdiction largely on the fact that Sharman had made the KMD software available to about two million residents of the state of California. See, full story.

Adelstein Addresses Copyright, Media Ownership, and Red Lion Case
1/6. Federal Communications Commission (FCC) Commissioner Jonathan Adelstein gave an speech titled "The Last DJ?: Finding a Voice on Media Ownership". He addressed the FCC's pending rulemaking proceeding regarding copyright protection, and the FCC's pending proceedings pertaining to media ownership and cross ownership rules. See, full story.