Unclaimed Property Litigation Update: Victories on the Horizon for the Holder Community?
In recent years, states have become more and more aggressive in pursuing unclaimed property as a means of increasing revenue without increasing taxes. States have enacted and modified unclaimed property legislation expanding the scope of what constitutes escheatable property, shortening applicable holding periods and intensifying audit efforts. Heightened attention on unclaimed property has resulted in litigation among various states, holders, and owners of unclaimed property, all seeking to determine their respective rights and obligations under various states’ unclaimed property laws. This GT Alert highlights recent developments in unclaimed property litigation.
Unclaimed property consists of a wide range of both tangible and intangible property held by a business. Once the business has held the property for a statutorily mandated holding period without communication with the true owner, the property is deemed unclaimed or abandoned, and becomes subject to escheat. Businesses holding such property are generally required to notify the true owners that their property is being turned over to the state as unclaimed property. Unclaimed property may include uncashed money orders and travelers checks, uncashed rebate checks and customer credits, unclaimed royalty payments, unused gift certificates and gift cards, uncashed employee payroll checks, uncashed vendor checks, uncashed dividend checks, amounts due and payable under insurance policies or annuities, amounts distributable from employee benefit plans, and certain pre-payments, deposits, and layaway items.
The Supreme Court recently denied a petition for writ of certiorari in Taylor v. Yee, a case brought against the California State Controller challenging the notice procedures under California’s Unclaimed Property Law. The petitioners, a group of property owners in California, alleged that California’s Unclaimed Property Law fails to provide owners with constitutionally sufficient notice before escheating their financial assets to the State. In denying certiorari (because the “convoluted history of this case makes it a poor vehicle for reviewing the important question it presents”), the Supreme Court noted that many states, in recent years, have shortened applicable holding periods, and some states “still rely on decidedly old-fashioned [notice] methods that are unlikely to be effective.” 577 U.S. ___ (2016) (citing Delaware’s unclaimed property laws as relying only on blanket newspaper publication as a means of notifying property owners prior to escheat). The Court explained this recent trend of combining shortened holding periods with minimal notification procedures “raises important due process concerns,” concluding the “constitutionality of current state escheat laws is a question that may merit review in a future case.” Although not binding, this decision puts legislators and policymakers on notice that unclaimed property laws may become increasingly subject to heightened scrutiny and judicial review.
The California Superior Court recently determined, in Bed Bath & Beyond Inc. v. Chiang, that merchandise return credits (MRCs) constitute gift certificates and are therefore not subject to California’s Unclaimed Property Law. Between 2004 and 2012, Bed Bath & Beyond escheated nearly $2 million to the State of California, reflecting the full unredeemed balances of the MRCs that were issued to California customers who had returned merchandise to Bed Bath & Beyond without a receipt, and which had remained unredeemed for at least three years. In its action against the California State Controller’s Office, Bed Bath & Beyond claimed it had mistakenly remitted the funds to the State, and it was entitled to a refund from the State for the full value of the MRCs.
The State Controller’s Office argued the property was properly escheated because it constituted “intangible personal property” subject to escheat. However, the court found that only intangible personal property “owing” to its true owner is escheatable, and the MRCs do not constitute property “owing” to their owners because the MRCs are not redeemable for cash. By their own express terms, the MRCs are redeemable only for merchandise at Bed Bath & Beyond and its affiliate stores, and not for cash. Further, the MRCs do not expire and can be redeemed by customers against a future purchase of merchandise at any time.
Perhaps most notably, the court found that the MRCs qualified as gift certificates under California’s Unclaimed Property Law, which expressly exempts gift certificates from escheat. The court noted the MRCs bear the same characteristics as a more traditional gift certificate or gift card, and other areas of the law recognize gift certificates as including certificates issued for purposes other than giving a gift (e.g., certificates issued pursuant to an awards, loyalty, or promotional program).
This case may have a significant impact on holders who have historically escheated merchandise credits as unclaimed property to the State of California, although it is quite possible the California Controller’s Office will file an appeal seeking further review of this decision. The decision currently provides support for any holder’s position that merchandise return credits are not subject to escheat in California. It may also provide holders in similar situations with an opportunity to obtain a refund from the State of California for property which was mistakenly escheated in the past.
The Pennsylvania Treasury Department and the Treasurer of Pennsylvania recently filed a complaint against the Delaware State Escheator and MoneyGram Payment Systems, Inc. (MoneyGram) to recover over $10 million escheated by MoneyGram to the State of Delaware reflecting abandoned “official checks” issued in the State of Pennsylvania. From 2000 to 2009, MoneyGram allegedly issued official checks totaling $10,293,869.50 at MoneyGram participating locations in Pennsylvania, which went uncashed for at least three years, and for which MoneyGram claims to not have the last known address of the owners. MoneyGram subsequently escheated the property to Delaware, its state of incorporation. The plaintiffs claim MoneyGram improperly escheated the property to Delaware when it should have escheated the property to Pennsylvania. Specifically, the plaintiffs claim the official checks constitute money orders, to which Pennsylvania is exclusively entitled under applicable Federal and Pennsylvania law.
Under the general priority rules set forth in Texas v. New Jersey, 379 U.S. 674 (1965), a holder of unclaimed property should first escheat the property to the state of the apparent owner’s last known address, as shown on the company’s books and records. If the apparent owner’s address is unknown, or the apparent owner’s last known address is in a foreign country, or the apparent owner’s address is in a state which does not provide for escheat of the property in question, the holder should escheat the unclaimed property to the state of the holder’s incorporation.
In this case, the plaintiffs claim the property should have been escheated to Pennsylvania, not Delaware, pursuant to 12 U.S.C. § 2503 and 72 Pa. Stat. § 1301.2(a)(2), which provide that the state in which a money order, traveler’s check, or similar written instrument (other than a third party bank check) on which the issuer is directly liable was purchased is exclusively entitled to escheat of the amount payable on such instrument. On the other hand, the Delaware State Escheator has argued the official checks are “third party bank checks” subject to the general priority rules set forth in Texas v. New Jersey. Although the case has not yet been decided, the action highlights the increase in unclaimed property litigation seen in recent years.
Businesses can take proactive steps to determine their rights and minimize their liabilities with respect to unclaimed property. In order to do so, it is important to understand your company’s potential unclaimed property exposure. Opportunities may exist to recover funds your company previously remitted as unclaimed property if such funds were mistakenly remitted, akin to the position taken by Bed Bath & Beyond described herein. If you believe you may have mistakenly escheated property to a particular state and are entitled to a refund, or if you are considering whether certain types of property (such as store credits issued in exchange for returned merchandise) are escheatable under a particular state’s laws, counsel can assist in determining your respective rights and potential liabilities.


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TLJ Daily E-Mail Alert No. 598, February 5, 2003.
February 5, 2003, 11:00 AM ET, Alert No. 598.
2/4. Department of Commerce (DOC) 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 (TA), Arden Bement, Director of the National Institute of Standards and Technology (NTIA), Jon Dudas, Deputy Director of the U.S. Patent and Trademark Office (USPTO), Kenneth Juster, Under Secretary for the Bureau of Industry and Security (BIS), and Nancy Victory, Director of the National Telecommunications and Information Administration (NTIA).
Phil Bond (at right) stated that "this is a budget that reflects the President's priorities -- technology is the common denominator". He added that "It is a budget that recognizes money is limited but research and innovation are vital to America's world leadership." He stated, for example, that there is a total of $123 Billion for research and development, which is an increase over this year's proposal and "is more basic research and development than the rest of the G8 combined."
Jon Dudas of the USPTO 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". That is, it would decrease from $193 Million to $100 Million under the President's proposals. He also said that this is a "dramatic reduction", and that the administration wants to work with the Congress towards a goal of ultimate elimination of fee diversion.
Dudas also said that the budget proposal would enable the USPTO to move forward in implementing its 21st Century Strategic Plan, which calls for hiring new patent examiners, initiating competitive outsourcing patent searches, and electronic processing of applications, among other things.
Nancy Victory stated that the proposed budget of $21.4 Million for the NTIA would fund "spectrum management reform efforts", a "paperless spectrum management process", and studies of "interference determination methodologies".
However, she said, "new grants are going to be suspended". The NTIA budget proposal contains $2.54 Million for monitoring existing grants, but would eliminate new Technology Opportunity Program (TOP) grants. She added that the budget proposal for the Corporation for Public Broadcasting contains $80 Million for grants.
Kenneth Juster stated that the proposed budget increase for the Bureau of Industry and Security (BIS), which is still also known as the Bureau of Export Administration (BXA), would enable it to create a new Office of Technology Evaluation. It would also include an increase of $1.3 Million for enforcement activities, including more staff for its Special Computer Evidence Recovery (SCERS) program, which pertains to evidence seized from computers and other electronic storage media.
See also, summary titled "FY 2004 Technology Administration Budget Request Highlights", NIST release, and USPTO release.
Rep. Sherwood Boehlert (R-NY), Chairman of the House Science Committee, stated in a release that "The Administration's budget proposal for science and technology is disappointing, although perhaps unsurprising given the budgetary constraints. On the positive side, the Administration has acknowledged the importance of funding for basic research, particularly in the physical sciences, and the Administration has recommended generous percentage increases in such areas as the National Science Foundation and the National Nanotechnology Initiative. The budget also, as had previously been announced, funds important new research to lay the groundwork for a hydrogen economy."
Rep. Boehlert added that "On the other hand, many science programs do not even keep up with inflation. In many areas, particularly Homeland Security and cybersecurity, there aren't enough details yet to fully understand the proposals. Perhaps the best that can be said is that this budget document may have to be rethought in any event once Congress finally provides domestic appropriations for fiscal 2003. Certainly, the NASA budget must be rethought in light of Saturday's tragedy. I look forward to working with the Administration, as I have in the past, to boost the funding for science beyond the initial proposals."
2/4. The General Accounting Office (GAO) released a report [53 pages in PDF] titled "Electronic Government: Progress in Promoting Adoption of Smart Card Technology".
Smart cards are credit card like devices that use integrated circuit chips to store and process data. The report states that "Results from projects that are already in place indicate that smart cards offer many useful benefits, such as significantly reducing the processing time required for deploying military personnel, tracking immunization records of children, and verifying the identity of individuals accessing buildings and computer systems."
The report also reviews challenges faced by government officials in implementing smart card systems. These include lack of executive level commitment, "obtaining adequate resources for projects that can require extensive modifications to technical infrastructures and software", integrating security practices across agencies, achieving interoperability across agencies, and "maintaining the security of smart card systems and privacy of personal information".
The report also contains several recommendations. First, it recommends that the Office of Management and Budget (OMB) "issue governmentwide policy guidance regarding adoption of smart cards for secure access to physical and logical assets".
Second, the report recommends that the National Institute of Standards and Technology (NIST) "continue to improve and update the government smart card interoperability specification by addressing governmentwide standards for additional technologies -- such as contactless cards, biometrics, and optical stripe media -- as well as integration with PKI, to ensure broad interoperability among federal agency systems".
The report also contains several recommendations for implementation by the General Services Administration (GSA), including "updating its governmentwide implementation strategy and administrative guidance on implementing smart card systems to address current security priorities, including minimum security standards for federal facilities, computer systems, and data across the government".
The report was prepared at the request of Rep. Tom Davis (R-VA), who is now the Chairman of the House Government Reform Committee.
1/31. The U.S. Court of Appeals (DCCir) issued its divided opinion in Wisconsin Project on Nuclear Arms Control v. Department of Commerce, a case involving a Freedom of Information Act (FOIA) request for information contained in export license applications. The Appeals Court held that such information is exempt from disclosure under FOIA Exemption 3.
The FOIA, codified at 5 U.S.C. � 552, entitles any "person" to request and obtain records from government agencies. However, it contains an exemption for records which a federal statute exempts. The Export Administration Act (EAA) exempted application information from disclosure.
Subsection 552(b) provides, in part, that "This section does not apply to matters that are ... (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld".
There is, however, one significant problem with the Court's analysis. The FOIA exempts records for which there is a statutory exemption. The EAA is not a statute. It was once. But it has lapsed. Hence, while the majority's conclusion may be soundly grounded in Congressional intent, public policy, and homeland security concerns, its statutory analysis is problematic. The dissent mocked the majority's "Alice in Wonderland" logic.
Export Control Regime. The Department of Commerce, and its Bureau of Industry and Security (BIS), which is still often referred to as the Bureau of Export Administration (BXA), issues licenses for dual use items. These are things, including software, encryption products, and high performance computers, that might be used for either civilian or military or terrorist purposes.
If the BIS were compelled to disclose the contents of applications for export licenses, this would enable applicants' competitors, even foreign competitors, to obtain vital trade secrets of the applicants. It would put U.S. exporters at a competitive disadvantage. It would also create a disincentive to provide information in export applications. It would also enable foreign requestors, including those from states that support terrorism, to gain access to some of the information which the export control regime is designed to prevent them from obtaining. In short, FOIA disclosure of export license applications would undermine the export control regime.
Legislative Activity. Congress continues to fund the operations of the BIS. Moreover, many members of Congress have repeatedly tried to pass a new statute.
For example, Sen. Mike Enzi (R-WY) sponsored S 149, the Export Administration Act of 2001, in the 107th Congress. The Senate passed the bill by a vote of 85-14, just prior to the terrorist attacks of September 11, 2001. The bill was also supported by the Bush administration. S 149 would have modernized export control laws. It would have eased restraints on most dual use products, such as computers and software, but increased penalties for violations. It also would have eliminated the use of MTOPS based limits to control the export of high performance computers.
Rep. David Dreier (R-CA) introduced HR 2568, an administration backed bill, in the House, on July 19, 2001. However, it did not pass in the House. Instead, HR 2581, sponsored by former Rep. Benjamin Gilman (R-NY), which is a much different export bill that is not supported by the administration, Rep. Dreier, and Sen. Enzi, passed the House International Relations Committee on August 1, 2001. The House then took no further action on any export control bill.
Rep. Dreier introduced HR 55 on January 7, 2003. It is essentially the Enzi proposal. However, Sen. Enzi has not yet reintroduced his bill in the 108th Congress. A member of Sen. Enzi's staff e-mailed TLJ on January 24 that Sen. Enzi is still working on a revised version of his bill for the 108th Congress, and remains "optimistic".
FOIA Request. The Wisconsin Project on Nuclear Arms Control (WPNAC) is a deceptive name. The group is based on K Street in Washington DC. Moreover, the FOIA request at issue in this case covers more than nuclear technology.
The BIS responded by providing certain aggregate reports, but asserted that more detailed information was exempt from disclosure under FOIA Exemption 3.
The WPNAC then filed a complaint is U.S. District Court (DC) against the DOC under the FOIA seeking an order compelling the DOC to produce records. The District Court ruled on summary judgment that the requested records are exempt under FOIA Exemption 3. The WPNAC then appealed.
Appeals Court. A three judge panel of the Court of Appeals affirmed, two to one. Judge Judith Rogers, writing for the Court, emphasized the presence of a clear Congressional intent to exempt export license applications from FOIA disclosure.
She wrote that "The Wisconsin Project contends that the Department may not withhold the data, and the logic of its argument is simple: Exemption 3, by its text, requires that a withholding ``statute�� be in place; because the EAA was not in effect either when the exporters submitted their application data to the Department or when the Wisconsin Project requested that data from the Department under FOIA, no statute exists to justify the Department's withholding of the requested data. The Wisconsin Project's formalistic logic, however, misses the bigger picture."
She concluded that "Congress's actions throughout the long history of the EAA evince a clear appreciation of the dangers inherent in exposing export application data to public view. Since it was first enacted by Congress, the EAA has always contained a confidentiality provision that permits the Department to withhold export application data."
Kenneth Juster (at right), the Under Secretary of Commerce in charge of the BIS, stated in a release that "We welcome this decision because the Department�s ability to protect this information is important to our national and economic security. Public disclosure of such information could assist proliferating countries or terrorists in the development of weapons of mass destruction, and could also damage the competitiveness of U.S. business".
Dissent. Judge Raymond Randolph wrote a dissenting opinion. He did not contest that if the Export Administration Act were to be re-enacted by Congress, Exemption 3 would bar disclosure. Nor did he dispute that the intent of Congress was to bar disclosure. Nor did he dispute that disclosure would be bad policy. Rather, he argued that judges should merely interpret statutes. And at this task, he had a field day.
He did not go so far as to argue, as might Justice Scalia, that legislative intent is never applicable to judicial interpretation. He merely argued that it is not applicable when there is no underlying statute to interpret. He likened the majority's approach to a scene from Alice in Wonderland. He wrote that "The statute has expired but its legislative history is good law. So say my colleagues, in a most curious opinion."
Randolph continued that "Congress at one time wanted the Commerce Department to keep the information secret, and so it shall remain. No matter that the Freedom of Information Act -- a real law -- expresses Congress's intent to require a statute exempting the documents from disclosure when they are sought or about to be released."
"It never occurred to me, or to the Framers of the Constitution, that the Executive could by the stroke of a pen convert expired legislation into an existing statute," wrote Randolph.
"In the end all the majority can come up with is some free-floating congressional intent about the meaning of a statute that no longer exists. Alice once encountered a comparable phenomenon: ``'Well! I've often seen a cat without a grin,' thought Alice; 'but a grin without a cat! It's the most curious thing I ever saw in all my life!'�� "
While the Appeals Court was divided, Supreme Court review is unlikely. It only very rarely grants certiorari in FOIA cases.
Perhaps also, there is an unstated theme in this case, as in many FOIA cases. That is, passage of the FOIA was one of those unfortunate actions taken in the immediate aftermath of the Nixon presidency, the Watergate scandals, the Viet Nam war, and a series of embarrassing disclosures about CIA operations, when there was an strong distrust of executive authority, and an effort to weaken executive branch authority, especially in the areas of intelligence and national defense. Hence, an idealistic Congress passed a FOIA that was far too broad. Many federal judges, particularly those in Washington DC, have been reluctant ever since to accord it the same status as other statutes -- or in the present case, expired statutes.
2/4. Michael Dawson was named to the newly created position of Deputy Assistant Secretary for Critical Infrastructure Protection and Compliance Policy, at the Treasury Department. Prior to joining the Treasury Department in 2001, he was Chief of Staff at FOLIOfn, which describes itself as "a financial services technology company that delivers leading edge investment solutions to financial services firms and investors. Through its registered broker-dealer subsidiary, FOLIOfn Investments, Inc., the company offers an integrated brokerage platform featuring its unique basket trading capability and state of the art execution, clearance and settlement services." Dawson also previously worked for the law firm of Covington & Burling. See, Treasury release.
2/4. The House Rules Committee met Tuesday evening and adopted a rule for consideration of HJRes 18, which makes further continuing appropriations for fiscal year 2003. The Committee did not adopt a rule for consideration of HR 395, The Do-Not-Call Implementation Act, as previously scheduled.
The House will meet at 3:00 PM. It is scheduled to consider the continuing appropriations resolution for FY03.
The Senate will meet at 9:00 AM for morning business. It will recess from 12:30 until 2:15 PM for party conferences. At 2:15 PM it will take up the nomination of Miquel Estrada to be a Judge of the U.S. Court of Appeals (DCCir).
The Supreme Court is in recess.
8:30 - 10:00 AM. Harold Furchtgott-Roth and Gregory Sidak of the American Enterprise Institute (AEI) will host a press breakfast to discuss pending FCC reviews of telecommunications regulations and media ownership rules. RSVP to Veronique Rodman at vrodman@aei.org or call Heather Dresser at 202 862-5884. Location: AEI, 1150 17th Street, NW.
9:30 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. The agenda includes the nomination of Jay Bybee to be a Judge of the U.S. Court of Appeals (9thCir). See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The Senate Banking Committee will hold a hearing on the nomination of William Donaldson to be a member of the Securities and Exchange Commission (SEC).
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Altima Communications v. USITC, No. 02-1110. The U.S. International Trade Commission barred the import by Altima Communications, a Broadcom subsidiary, of certain ethernet networking products found to infringe Intel patents. Fish and Richardson represents Intel in this matter. Location: Courtroom 402, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Crossroads Systems v. Chaparral Network Storage, No. 02-1158. This is an appeal from the U.S. District Court (WDTex) in a patent infringement case involving storage router technology. (D.C. No. 00-CA-217-SS.) Location: Courtroom 203, 717 Madison Place, NW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument in Digital Privacy v. RSA Security, No. 02-1440. This is an appeal from the U.S. District Court (EDVa) in a patent infringement case involving the pre-boot protection of unauthorized use of computer programs and data. Location: Courtroom 201, 717 Madison Place, NW.
11:00 AM. The Cato Institute will host a panel discussion titled "Battle over the Broadcast Flag: The IP Wars and the HDTV Transition". The speakers will be Fritz Attaway (Motion Picture Association of America), Jim Burger (Dow Lohnes & Albertson), Mike Godwin (Public Knowledge), and Andy Setos (Fox Entertainment Group). See, notice and registration page. Lunch will follow. Location: Cato, 1000 Massachusetts Ave., NW.
11:15 AM. Howard Beales, Director of the Federal Trade Commission's (FTC) Bureau of Consumer Protection will speak to the Direct Marketing Association's Committee on Privacy on "Spam and Privacy." Location: 1111 Nineteenth Street, NW, Suite 1150.
12:30 PM. The House Armed Services Committee will hold its organizational meeting for the 108th Congress. Location: Room 2118, Rayburn Building.
1:00 PM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Health of the Telecommunications Sector: A Perspective from Investors and Economists". The scheduled witnesses include Robert Atkinson (Columbia University), Blake Bath (Lehman Brothers Equity Research), Steve Brouder (Cambridge Strategic Management Group), Robert Crandall (Brookings Institute), and Eric Strumingher (Cobalt Capital). Press contact: Ken Johnson at 202 225-5735. See, notice. Location: Room 2123, Rayburn Building.
2:00 PM. Sen. Ron Wyden (D-OR) and others will hold a briefing by teleconference on the Total Information Awareness (TIA) program. On January 23, the Senate approved an amendment (SA 59) to HJRes 2, the continuing FY03 appropriations bill, by a voice vote. The amendment would limit the ability of the Department of Defense to spend money on Defense Advanced Research Projects Agency's (DARPA) TIA project. The Senate has also passed HJRes 2. However, the House passed a version without the Wyden amendment. The other participants will include representatives of the Electronic Privacy Information Center (EPIC), Association for Computing Machinery (ACM), Americans for Tax Reform, Center for Democracy and Technology (CDT), Eagle Forum, Free Congress Foundation (FCF), People for the American Way (FCF), the Rutherford Institute and other groups. To participate, dial 512 225-3630; the access code is 993630.
2:00 PM. The Senate Finance Committee will hold a hearing on on revenue proposals in the President's FY 2004 budget. Secretary of the Treasury John Snow will be the only witness. Location: Room 215, Dirksen Building.
DATE & TIME CHANGE. 5:45 PM. The House Financial Services Committee will hold its organizational meeting for the 108th Congress. Location: Room 2128, Rayburn Building.
The House will not be in session, due to a memorial service for the crew of the Columbia, and a Republican retreat.
9:30 AM. The Senate Judiciary Committee will hold an executive business meeting. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. Ed Thomas, Chief of the Federal Communications Commission's (FCC) Office of Engineering and Technology (OET) will hold a press briefing "to provide an update on policy issues related to emerging technologies and implementation of recent recommendations for spectrum reform". Press contact: Lauren Van Wazer at 202 418-0030. Location: FCC, 8th Floor, South Conference Room (8B-516), 445 12th Street, SW.
10:00 AM. The U.S. Court of Appeals (FedCir) will hear oral argument en banc in Festo v. SMC Corp., No. 95-1066. Location: Courtroom 201, 717 Madison Place, NW.
10:00 AM. The Internet Security Alliance (ISA) will hold a press conference to announce the release of new information security consumer guidelines. The scheduled speakers will include Orson Swindle (Commissioner, Federal Trade Commission), Dave McCurdy (ISA), Susan Grant (National Consumers League), and Mark MacCarthy (Visa). Location: Lisagore Room, National Press Club, 529 14th Street, NW. See, FTC release.
11:00 AM. The House International Relations Committee will hold its organizational meeting for the 108th Congress. Location: Room 2172, Rayburn Building.
3:30 PM. Madhavi Sunder (Professor of Law, University of California at Davis Law School) will give a lecture titled "IP3: Intellectual Property, Identity Politics, and the Internet Protocol". For more information, contact Julie Cohen at jec@law.georgetown.edu. Location: Georgetown University Law Center, Faculty Lounge, 600 New Jersey Ave., NW.
Deadline to submit comments to the Federal Communications Commission (FCC) regarding BellSouth's December 20, 2002 Petition for Forbearance [16 pages in PDF] from application of the separate subsidiary requirements to provide international directory assistance service. BellSouth asked the FCC to forbear from applying the structural separation requirements of 47 U.S.C. � 272 to allow BellSouth to provide international directory assistance service on an integrated basis together with its local and nonlocal directory assistance services. See, FCC notice [2 pages in PDF]. This is CC Docket No. 97-172.
12:00 NOON. The Cato Institute will host a panel discussion titled "Technology Policy in the 108th Congress". The speakers will be Steve Delbianco (Association for Competitive Technology), Clyde Crews (Cato), and Adam Thierer (Cato). See, notice and registration page. Location: Room B-369, Rayburn Building.
12:00 NOON - 1:30 PM. The Bureau of Industry and Security's National Infrastructure Advisory Council (NIAC) will meet. Richard Clarke (Special Advisor to the President for Cyberspace Security) and Richard Davidson, (Chairman of NIAC) will speak. The agenda also includes a discussion of Internet Protocol Version 6.0 and responsible disclosure of cyber attacks or incidents. The public can attend only via teleconference. Call 1-888-899-7785 (toll free) or 1-913-312-4169 (toll), and when prompted, enter pass code 1468517. See, notice in the Federal Register, January 28, 2003, Vol. 68, No.18, at Page 4167.
12:15 PM. The Federal Communications Bar Association's (FCBA) Wireless Telecommunications Practice Committee will host a luncheon. The speakers will be wireless and spectrum Legal Advisors to FCC Commissioners. The price is $15. RSVP to Wendy Parish at wendy@fcba.org. Location: Sidley Austin, 1501 K St., NW, Conference Room 6E.
9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Primosphere Ltd v. FCC, Nos. 01-1526 and 1527. Judges Henderson, Rogers and Silberman will preside. Location: 333 Constitution Ave., NW.
3:00 - 5:00 PM. The State Department's International Telecommunication Advisory Committee (ITAC) will meet regarding the World Summit on the Information Society (WSIS), scheduled to take place in December of 2003. See, notice in the Federal Register, February 4, 2003, Vol. 68, No. 23, at Pages 5689-5690. Location: National Academy of Sciences, 2100 C St. NW.
POSTPONED TO FEBRUARY 28. Deadline to submit reply comments to the Federal Communications Commission's (FCC) regarding the Report [73 pages in PDF] of the FCC Spectrum Policy Task Force (SPTF). The report recommends that "spectrum policy must evolve towards more flexible and market oriented regulatory models." See, original notice [PDF] and notice of extension [PDF].
Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Tier III Coalition's petition to forbear, up to December 31, 2005, from enforcing the E911 accuracy and reliability standards set forth in � 20.18(h) of the FCC�s Rules with respect to Commercial Mobile Radio Service (CMRS) provided by Tier III wireless carriers. See, FCC notice [PDF]. This is WT Docket No. 02-377.
Deadline to submit comments to the The National Telecommunications and Information Administration (NTIA) regarding the health and life insurance cancellation notices exception to the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The Act provides, at �101, for the acceptance of electronic signatures in interstate commerce, with certain enumerated exceptions. �103 of the Act provides that the provisions of section 101 shall not apply to "the cancellation or termination of health insurance or benefits or life insurance benefits (excluding annuities)". (Parentheses in original.) The Act also requires the NTIA to review, evaluate and report to Congress on each of the exceptions. The E-SIGN Act is codified at 15 U.S.C. � 7001, et seq. The exceptions are codified at 15 U.S.C. � 7003. See, NTIA notice.
Extended deadline to submit applications to the Federal Communications Commission (FCC) for membership on the FCC's Consumer Advisory Committee. For more information, contact Scott Marshall at 202 418-2809 smarshal@fcc.gov. The deadline had been January 31. On January 31 the FCC extended the deadline.
9:30 AM. The Commerce Department's Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee will meet. Part of the meeting will be closed to the public. See, notice in the Federal Register, January 17, 2003, Vol. 68, No.12, at Page 2499. Location: Herbert Hoover Building, Room 3884, 14th Street between Constitution and Pennsylvania Avenues, NW.
5:00 PM. The Federal Communications Bar Association's (FCBA) Diversity Committee and Young Lawyers Committee will host a Law School Outreach Program at George Washington University for law students interested in practicing communications law.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding competition in the Commercial Mobile Services (CMRS) industry. The FCC seeks data and information for its Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services. This is WT Docket No. 02-379. See, notice in the Federal Register, January 7, 2003, Vol. 68, No. 4, at Pages 730 - 740. For more information, contact Chelsea Fallon at 202 418-7991.

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The legal basis for temporary storage of data is Art. 6 para. 1 (f) GDPR. We store the IP address transmitted by your web browser for a strictly earmarked period of seven days in the interest of being able to detect, limit and eliminate attacks on our web pages. After this period has expired, we delete or make the IP address anonymous. The further access data are evaluated exclusively to ensure a permanent and trouble-free operation of the website and to improve the contents of our website as well as for transmission to law enforcement authorities in the event of a cyber attack and do not allow us to draw any conclusions about your person. The anonymous data of the server log files are stored separately from all personal data provided by a person concerned. These purposes also encompass our legitimate interest in data processing in accordance with Art. 6 para. 1 (f) GDPR. We evaluate this anonymously collected data and information statistically with the aim of increasing our data protection and data security.
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By registering on our website, the IP address assigned by your Internet Service Provider (ISP), the date and time of registration are also stored. This data is stored against the background that this is the only way to prevent misuse of our services and, if necessary, to enable us to investigate criminal offences committed. In this respect, the storage of this data is necessary for our protection. This data will not be passed on to third parties unless required to do so by law or for the purpose of criminal prosecution.
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The legal basis for the personal data processed within the framework of registration is Art. 6 para. 1 (b) GDPR.
Due to legal regulations, we have our email addresses of the various locations available on our website, which enable rapid electronic contact with us and direct communication with us.
In the event of contact via email, the information provided by the user is automatically stored for the purpose of processing his contact. The other personal data processed during contact serve to prevent misuse of the email account and to ensure the security of our information technology systems. We will not compare the data collected during newsletter registration with any other data that might be collected by other components of our site. In the event of contact by email, this also constitutes the necessary legitimate interest in processing the data.
The legal basis for processing the data transmitted in the course of sending an email is Art. 6 para. 1 (f) GDPR. If your contact is aimed at concluding a contract, the additional legal basis for the processing is Art. 6 para. 1 (b) GDPR.
The data will be deleted as soon as it is no longer necessary to achieve the purpose for which it was collected. For the personal data that was sent by email, this is the case when the respective conversation with the user has been completed. The conversation will have ended when it is evident from the circumstances that the matter at hand has been conclusively resolved.
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The use of Google Maps is in the interest of making our website appealing and to facilitate locating the places we specify on the website. This constitutes a legitimate interest pursuant to Art. 6, Para. 1 (f) GDPR.
For data protection reasons, we do not integrate social plug-ins directly into our website. When you visit our pages, no data is therefore transmitted to social media services such as Twitter, XING, LinkedIn or YouTube. Profiling by third parties is thus excluded.
You can still share selected pages by clicking Twitter, XING or Google+ buttons.
Functions of the Twitter service are integrated into our site. These functions are provided by Twitter Inc., 1355 Market Street, Suite 900, San Francisco, CA 94103, USA. When you use Twitter and the “Retweet” function, the websites you visit are connected to your Twitter account and made known to other users. In the process, data will also be transferred to Twitter.
Your data protection preferences with Twitter can be modified in your account settings at https://twitter.com/account/settings.
Our site uses functions from the LinkedIn network. The service is provided by LinkedIn Corporation, 2029 Stierlin Court, Mountain View, CA 94043, USA. Every time you visit our website, a connection to the LinkedIn servers is automatically established. LinkedIn is informed that you have visited our webpages from your IP address. If you use the LinkedIn “Recommend” button and are logged into your LinkedIn account, it is possible for LinkedIn to associate your visit to our website to your user account. We would like to point out that, as the provider of these pages, we have no knowledge of the content of the data that is transmitted or how it will be used by LinkedIn.
Our website uses functions of the XING network, operated by XING AG, Dammtorstrasse 29-32, 20354 Hamburg, Germany, and in particular the XING service kununu, operated by kununu GmbH, Fischhof 3 Top 7, A – 1010 Vienna. The plug-ins can be recognised by the respective logos. Every time one of our pages is accessed, which contains a corresponding plug-in, a connection to the XING servers is automatically established. The plugin is transmitted directly to the browser by XING and integrated into the page. Therefore we have no influence on the data collected by means of this plug-in. To the best of our knowledge, no personal data is stored in the process. In particular, no IP addresses are stored, nor is usage behavior evaluated.
Our website uses plug-ins from YouTube, which is operated by Google. The operator of the pages is YouTube LLC, 901 Cherry Ave., San Bruno, CA 94066, USA. YouTube, LLC is a subsidiary of Google Inc, 1600 Amphitheatre Pkwy, Mountain View, CA 94043-1351, USA.
When you visit our website, which is equipped with a YouTube plug-in, a direct connection to the YouTube servers is established.
If you are logged in to your YouTube account, YouTube allows you to associate your browsing behaviour directly with your personal profile. You can prevent this by logging out of your YouTube account. We do not collect any personal data using the social plugins or about how they are used.
In case IP anonymisation is activated on this website, your IP address will be truncated within the area of Member States of the European Union or other parties to the Agreement on the European Economic Area. Only in exceptional cases will the full IP address be transferred to a Google server in the USA and truncated there. On behalf of the operator of this website, Google will use this information to evaluate your use of the website in order to compile reports on the activities of the website and to provide further services relating to the use of the website and the internet usage vis-a-vis the operator of the website.
The IP address that your browser transmits within the scope of Google Analytics will not be associated with any other data held by Google. Google will use this information on our behalf to evaluate the use of our website by users, to compile reports on the activities within this website and to provide us with further services relating to the use of this website and the Internet. These purposes also encompass our legitimate interest in data processing in accordance with Art. 6 para. 1 (f) GDPR.
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We have concluded an order processing agreement with Google and fully implement the strict requirements of European data protection when using Google Analytics.
To post on our blog, you must provide your name and email address. All further details are provided on an optional basis. The forum/comment function is used under your specified name. In addition to the comment and your name, information at the time the comment was created and your email address will also be saved.
After writing a post, your IP address will be used on the basis of Art. 6 para. 1 (f) GDPR. Since we do not check comments on our site before they go live, we need this information in order to be able to pursue action for illegal or slanderous content. The IP address will be deleted as soon as we have taken note of your contribution.
We use SSL encryption for security reasons and to protect the transmission of confidential content, such as requests you send to us as a website operator. You can recognise an encrypted connection in your browser’s address line when it changes from “http://” to “https://” and by the lock icon in your browser line.
If SSL encryption is activated, the data which you transfer to us cannot be read by third parties.
We have taken appropriate technical and organisational security measures to protect your data from unauthorised access, misuse, unauthorised disclosure and alteration as well as loss and destruction. Your personal data will only be stored and processed within the European Union. Personal data is only made available by us to those employees who need it to make our websites available and to provide the services and information requested.
However, you should also take precautionary measures to protect your personal information, especially by keeping your login information secret and monitoring and controlling access to your computer.
Newtron will delete your personal data as soon as you are no longer registered as a user (e.g. termination of contract between Newtron and the company for which you work). This only applies if Newtron has no legal storage obligations to prevent the deletion. In this case, the deletion is replaced by a restriction on the processing of your personal data.
The disclosure of your personal data is neither required by law nor by contract, nor for the conclusion of a contract. As a user of the Newtron Services you are not obliged to provide your personal data. The consequence of not providing your personal data would be that the Newtron services are not activated for you and you cannot use them.
If your personal data is processed, you are affected within the meaning GDPR and you are entitled to rights vis-a-vis the person responsible (=website operator).
If you have permitted the use of your personal data in accordance with § 6 para.1 (a), 7 para. 1 GDPR, you can revoke your consent at any time without giving reasons by sending an email to support@newtron.de with effect for the future. The revocation of consent shall not affect the legality of processing undertaken on the basis of this consent before its withdrawal.
If you believe that the collection, processing or use of your personal data does not comply with data protection regulations and that your rights have been violated, you can contact the relevant data protection authority. The latter will investigate the complaint and inform you of the result.
Please note that complete confidentiality and data security are not guaranteed when communicating via the Internet (e.g. by email). We recommend that you send confidential information by post.

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TLJ Daily E-Mail Alert No. 971, September 7, 2004.
September 7, 2004, 9:00 AM ET, Alert No. 971.
8/31. The U.S. Court of Appeals (FedCir) issued its opinion [46 pages in MS Word] in Chamberlain v. Skylink, a case involving the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), and interoperability of after market products. In this case, the product is portable radio frequency transmitting devices that activate garage door openers (GDO). Chamberlain asserted that Skylink, by selling GDOs that interoperate with its equipment, is trafficking in devices that circumvent a technological measure that effectively controls access to a copyrighted work. The District Court rejected Chamberlain's claim. The Court of Appeals affirmed.
Following a lengthy and intricate examination of the Section 1201 of the DMCA, the Court of Appeals concluded that Chamberlain's DMCA claims fails because Chamberlain failed to prove that it had not authorized its customers to use devices such as Skylink's, and because Chamberlain failed to prove a nexus between the "access" and some protection of copyright.
The Appeals Court concluded that "A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization -- as well as notice that authorization was withheld. A copyright owner seeking to impose liability on an accused trafficker must demonstrate that the trafficker's device enables either copyright infringement or a prohibited circumvention."
Introduction. § 1201(a)(1)(A) of the Copyright Act, which was added in 1998 by the DMCA, provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"
Chamberlain Group, Inc. has sought to prevent Skylink Technologies, Inc. from selling GDO transmitters that interoperate with its systems, by asserting that Skylink has violated the DMCA by selling devices that circumvent a technology measure that effectively controls access to a copyrighted work -- namely, software in the garage unit that opens and closes doors.
The underlying purpose of the anti-circumvention provisions of the DMCA is to give copyright holders a cause of action against those who circumvent technological protections of copyrighted works, and those who traffick in devices that circumvent, in order to give copyright holders further means to protect their works from being infringed. There is no claim of infringement in this case. Skylink is not copying and selling Chamberlain's copyrighted program. Rather, Chamberlain seeks to use the DMCA for an altogether different purpose than that contemplated by the Congress -- to protect it from competition in the after-market for GDO transmitters.
More specifically, Chamberlain makes equipment for automatically opening garage doors. It makes electronically powered devices that raise and lower garage doors, the attached receivers that activate the device that raises or lowers the door, and the portable transmitters that signal the garage unit to open or close the door.
Skylink makes GDO transmitters that interoperate with Chamberlain's systems. That is, it makes after-market GDO transmitter devices that can serve as replacements of spares for the original GDO transmitter sold by Chamberlain.
Chamberlain, like many producers of electronic systems, wants to control the sale of replacement, spare, and associated parts for its systems.
This case involves Chamberlain's line of products named Security+. These incorporate a rolling code computer program that constantly changes the transmitter signal required to open the garage door. This computer program is copyrighted. Skylink makes a GDO transmitter that allows users to operate Chamberlain's Security+ systems. Chamberlain asserts that Skylink's transmitter allows unauthorized users to circumvent the security inherent in rolling codes.
This case is especially important because of the dearth of Appeals Court opinions construing the DMCA. The 2nd Circuit applied the DMCA in its opinion in Universal City Studios v. Corley, 273 F.3d 429 (2001), but only in the context of a First Amendment challenge. The 7th Circuit discussed the DMCA, but only very briefly, in its opinion [23 pages in PDF] in In re Aimster Copyright Litigation, 334 F.3d 643, 655 (2003).
District Court. Chamberlain filed a complaint in U.S. District Court (NDIll) against Skylink alleging patent infringement and violation of anti-circumvention provisions of the DMCA. The complaint did not allege copyright infringement, either directly or vicariously.
The District Court granted summary judgment to Skylink holding that it did not violate the anti-trafficking provisions of the DMCA. It reasoned that Chamberlain had authorized consumers to use Skylink's devices. The issue of authority is important because the DMCA defines circumvention with the words "without the authority of the copyright owner". The District Court reasoned that Chamberlain sold equipment to customers, without any restriction on use. Hence, customers had implicit authorization to use other companies' interoperating products with Chamberlain's products. See, opinions published at 292 F. Supp. 2d 1023 and 292 F. Supp. 2d 1040.
The District Court also dismissed the patent infringement claims.
The Statute. 17 U.S.C. § 1201 addresses circumvention of copyright protection systems.
§ 1201(a)(1)(a) provides, in part, that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title."
§ 1201(a)(3)(A) provides relevant definitions. It provides that the phrase "circumvent a technological measure" means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner". It also provides that "a technological measure ``effectively controls access to a work´´ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."
The Court of Appeals followed the District Court on the question of authorization. It wrote that "The essence of the DMCA's anticircumvention provisions is that §§ 1201(a),(b) establish causes of action for liability. They do not establish a new property right. The DMCA's text indicates that circumvention is not infringement, 17 U.S.C. § 1201(c)(1) (“Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”), and the statute's structure makes the point even clearer. This distinction between property and liability is critical. Whereas copyrights, like patents, are property, liability protection from unauthorized circumvention merely creates a new cause of action under which a defendant may be liable. The distinction between property and liability goes straight to the issue of authorization ..."
The Court of Appeals continued that under "copyright law, a plaintiff only needs to show that the defendant has used her property; the burden of proving that the use was authorized falls squarely on the defendant." However, the DMCA "defines circumvention as an activity undertaken ``without the authority of the copyright owner.´´ 17 U.S.C. § 1201(a)(3)(A). The plain language of the statute therefore requires a plaintiff alleging circumvention (or trafficking) to prove that the defendant’s access was unauthorized -- a significant burden where, as here, the copyright laws authorize consumers to use the copy of Chamberlain’s software embedded in the GDOs that they purchased."
The Court next stated that "Congress crafted the new anticircumvention and anti-trafficking provisions here at issue to help bring copyright law into the information age. Advances in digital technology over the past few decades have stripped copyright owners of much of the technological and economic protection to which they had grown accustomed. Whereas large-scale copying and distribution of copyrighted material used to be difficult and expensive, it is now easy and inexpensive. ... Congress therefore crafted legislation restricting some, but not all, technological measures designed either to access a work protected by copyright, § 1201(a), or to infringe a right of a copyright owner, § 1201(b)."
The Appeals Court also noted that whenever the statute uses the term "access", it is used in connection with the term "protection".
Chamberlain argued on appeal that its garage unit and transmitter incorporate computer programs that are copyrighted. It further argued the rolling codes are a technological measure that controls access to these copyright programs within the meaning of § 1201(a)(2). And hence, it argued that Skylink violated § 1201(a)(2) by trafficking in device that circumvents a technological measure that effectively controls access to a copyrighted work. Chamberlain argued that there need not be any connection between the "access" and the "protection".
The Court concluded that "Chamberlain's proposed construction would allow any manufacturer of any product to add a single copyrighted sentence or software fragment to its product, wrap the copyrighted material in a trivial ``encryption´´ scheme, and thereby gain the right to restrict consumers’ rights to use its products in conjunction with competing products. In other words, Chamberlain’s construction of the DMCA would allow virtually any company to attempt to leverage its sales into aftermarket monopolies -- a practice that both the antitrust laws, ... and the doctrine of copyright misuse, normally prohibit."
Hence, the Court rejected Chamberlain's argument. It concluded that "17 U.S.C. § 1201 prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners. While such a rule of reason may create some uncertainty and consume some judicial resources, it is the only meaningful reading of the statute."
The Court applied this six part test, and found that Chamberlain failed both the fourth (authorization) and fifth (nexus between the access and the protection) elements.
This appeal only involves interpretation of the DMCA. Yet, this appeal was heard by the Federal Circuit. The Federal Circuit's jurisdiction was based upon 18 U.S.C. § 1295, which provides that the Federal Circuit has exclusive jurisdiction over "an appeal from a final decision of a district court ... if the jurisdiction of that court was based, in whole or in part, on section 1338 ..." In turn, 18 U.S.C. § 1338 provides that the District Court has jurisdiction over patent infringement claims. Chamberlain plead patent infringement in the District Court. While it did not appeal that portion of the judgment dismissing its patent claims, these patent claims nevertheless served as the basis for exclusive Federal Circuit jurisdiction. The consequence is that the appeal did not go to the 7th Circuit, which tends to randomly assign copyright cases to Judge Richard Posner. Posner has a strong interest in copyright law, and in developing the law of copyright misuse. See, for example, Posner's May 30, 2002 opinion in Ty v. Publications International.
This case is The Chamberlain Group, Inc. v. Skylink Technologies, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 04-1118, an appeal from the U.S. District Court for the Northern District of Illinois, Judge Rebecca Pallmeyer presiding. Judge Arthur Gajarsa wrote the opinion of the Court of Appeals, in which Judges Richard Linn and Sharon Prost joined.
The House and Senate will return from the August recess.
The House will meet at 2:00 PM for legislative business. It will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.
1:00 PM. Secretary of Homeland Security Tom Ridge will speak. Location: National Press Club, 529 14th St. NW, 13th Floor.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the process for designation of eligible telecommunications carriers (ETCs) and the FCC's rules regarding high-cost universal service support. This NPRM is FCC 04-127 in Docket No. 96-45. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40839 - 40843.
Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding the rechannelization of portions of the 17.7-19.7 GHz band. This NPRM is FCC 04-77 in WT Docket No. 04-143. See, notice in the Federal Register, July 7, 2004, Vol. 69, No. 129, at Pages 40843 - 40850.
Deadline to submit comments to the Copyright Office (CO) in response to its notice of proposed rulemaking (NPRM) regarding amendments to the CO's regulations to permit the Library of Congress to record unpublished radio and other audio and audiovisual transmission programs. The CO stated that "regulations already provide for the Library of Congress to obtain copies of unpublished television transmission programs, either by recording fixations or by demanding copies in the form of a transfer, loan or sale at cost. This revised regulation makes similar provisions for audio transmission programs and includes transmission programs made available by radio broadcasts and by digital communications networks such as the Internet." See, notice in the Federal Register, August 5, 2004, Vol. 69, No. 150, at Pages 47396 - 47399.
10:00 AM. The House Judiciary Committee will meet to mark up several bills, including HR 4661, the "Internet Spyware (I-SPY) Prevention Act of 2004", and HR 4077, the "Piracy Deterrence and Education Act of 2004". HR 4661 is the spyware bill sponsored by Rep. Bob Goodlatte (R-VA), Rep. Zoe Lofgren (D-CA), and Rep. Lamar Smith (R-TX), of the Judiciary Committee. The House Commerce Committee has already approved its spyware bill, HR 2929, the "Safeguard Against Privacy Invasions Act" or "SPY Act", sponsored by Rep. Mary Bono (R-CA). See, story titled "House Commerce Committee Approves Spyware Bill" in TLJ Daily E-Mail Alert No. 926, June 25, 2004. The markup is scheduled to continue on Thursday, September 9 at 10:00 AM. Location: Room 2141, Rayburn Building.
10:00 AM. The Senate Judiciary Committee will hold a hearing on judicial nominations. Press contact: Margarita Tapia at 202 224-5225. Sen. Orrin Hatch (R-UT) will preside. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The House Financial Services Committee will hold a hearing titled "Protecting our Financial Infrastructure: Preparation and Vigilance". The witness will include Robert Liscouski (Department of Homeland Security) and Wayne Abernathy (Department of the Treasury). Location: Room 2128, Rayburn Building.
11:00 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold a hearing titled "Law Enforcement Access to Communications Systems in a Digital Age". On August 9, 2004 the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking and Declaratory Ruling (NPRM & DR) [100 pages in PDF] regarding imposing Communications Assistance for Law Enforcement Act (CALEA) obligations upon broadband internet access services and voice over internet protocol (VOIP) services. See, notice of hearing. Location: Room 2322, Rayburn Building.
12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch. William Freedman, Deputy Chief of the Federal Communications Commission's (FCC) Enforcement Bureau's (EB) Investigations and Hearings Division, will discuss the FCC's policies and procedures for enforcement of indecency related complaints. No RSVP is required. Location: National Association of Broadcasters (NAB), 1771 N Street NW, Conference Rooms A&B.
2:30 PM. The Senate Commerce Committee will hold a hearing titled "Spectrum for Public Safety Users". The witnesses will be Michael Powell (FCC Chairman), Stephen Devine (Missouri State Highway Patrol), Gary Grube (Motorola), David Donovan (Association for Maximum Service Television), Robert LeGrande (District of Columbia), Bud Paxson (Paxson Communications Corporation). The hearing will be webcast by the Committee. Press contact: David Wonnenberg at 202 224-2670 or david_wonnenberg@commerce.senate.gov. Location: Room 253, Russell Building.
5:30 - 6:45 PM. The American Enterprise Institute (AEI) will host a lecture by Sam Peltzman (University of Chicago) titled "Regulation and the Natural Progress of Opulence". He will argue that some regulations make matters worse because of offsetting personal or market behavior, and discuss why some counterproductive regulations remain in place while others are repealed. The lecture will be followed by a reception. See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.
Deadline to submit comments to the Federal Communications Commission (FCC) in response to its further notice of proposed rulemaking (FNPRM) to determine whether mobile satellite service (MSS) operators using different technologies could share additional spectrum in the 1610-1626.5 MHz band (L-band). This FNPRM is FCC 04-134 in IB Docket No. 02-364 and ET Docket No. 00-258. See, notice in the Federal Register, August 9, 2004, Vol. 69, No. 152, at Pages 48192 - 48194.
9:30 AM. The Federal Communications Commission (FCC) will hold a meeting. See, agenda [4 pages in PDF]. The event will be webcast. Location: FCC, 445 12th Street, SW, Room TW-C05 (Commission Meeting Room).
2:00 - 4:30 PM. The Federal Communications Commission (FCC) will hold an event titled "Discussion on the Debt Collection Improvement Act Rules and Rules Governing Applications or Other Request for Benefits by Debtors". See, original notice [PDF] and rescheduling notice [PDF]. Location: FCC, Commission Meeting Room, 445 12th Street, SW.
2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a demonstration titled "How NASDAQ's Electronic Market Works". The speakers will be Frank Hatheway and Peter Marlyn (NASDAQ) and Peter Wallison (AEI). See, notice. Location: AEI, Twelfth floor, 1150 17th St., NW.
Deadline to submit comments to the National Institute of Standards and Technology (NIST) regarding its notice in the Federal Register that it intends to withdraw Federal Information Processing Standard (FIPS) 46–3, which specified the Data Encryption Standard (DES), and the associated FIPS 74 and FIPS 81. The NIST has determined that "the strength of the DES algorithm is no longer sufficient to adequately protect Federal government information". See, Federal Register, July 26, 2004, Vol. 69, No. 142, at Pages 44509 - 44510. Send comments to descomments@nist.gov.
9:30 - 11:00 AM. The Progressive Policy Institute (PPI) will host a panel discussion titled "Telecommunications Reform: Is the “Network Layers” Approach the Right One?". The speakers will be Rick Whitt (Senior Director of Global Policy and Planning at WorldCom), Link Hoeing (Assistant Vice President, Issues Management and Technology Policy at Verizon), and Rob Atkinson (Director of the PPI's Technology and New Economy Project). Free. Breakfast will be served. Location: PPI, 600 Pennsylvania Ave., SE, Suite 400.
12:00 NOON. Dane Snowden, Chief of the Federal Communications Commission's (FCC) Consumer & Governmental Affairs Bureau, will hold a press briefing. RSVP to Rosemary Kimball at 202 418-0511 or rosemary.kimball@fcc.gov. Location: FCC, 445 12th St., SW, Hearing Room B/Conference Room, TW A-402/A-442.
10:00 AM. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing titled "A Review of the Tools to Fight Terrorism Act". Sen. Jon Kyl (R-AZ) will preside. Press contact: Margarita Tapia at 202 224-5225. Location: Room 226, Dirksen Building.