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August 22, 2003
Executive Summary
Week Of August 18, 2003
by Sharon McLoone

Telecom
FCC Final Ruling Displeases Agency Chairman
     The FCC issued final rules governing the telecommunications industry that do not fully please the agency's chairman and likely will be a magnet for lawsuits. The order represents "important achievements ... that have long been objectives of mine -- namely broadband relief," FCC Chairman Michael Powell said. The FCC on Feb. 20 voted to deregulate new investments made by regional Bell companies in infrastructure used to provide high-speed Internet services. The FCC also voted to eliminate line sharing over three years. Powell disagreed with the agency's line-sharing decision, saying that removing it from the list of available elements "is ill conceived." The FCC ruled that competitors offering service to business customers are not impaired from providing those services if they do not have access to "switching" through certain parts of the Bells' networks. However, the rule said state public utility commissions may conduct 90-day reviews and retain access for competitors. That ruling is "is bad law, bad policy and ultimately bad for consumers," Powell said, taking aim at the choice to give states a greater role in the decision-making process.

Porn
Government Study Finds Web-Filtering Tools Satisfactory
     A new study by the National Telecommunications and Information Administration found that Internet-filtering software largely satisfies the needs of schools seeking to shield students from pornography. The report, which was mandated by the Child Internet Protection Act (CIPA), also urged schools to provide more training about how to use filters and similar technology, and asked lawmakers to clearly define what kinds of tools would qualify as a 'technology protection measure' under CIPA. Although the anti-pornography law would block federal funding to any library, school or museums that failed to install filtering software, the report largely avoided the question about the current status of software filters in libraries. Librarians had argued that software filters may unfairly block materials that patrons might want to view.

Security
Anti-Terrorism Tour, Draft Measure Rile Civil Libertarians
     Attorney General John Ashcroft began a multi-city speaking tour aimed at defending the anti-terrorism law dubbed the USA PATRIOT Act. Although the statute has become increasingly controversial since its enactment in 2001, Ashcroft said it is an essential tool in finding and disrupting terrorist cells. In a speech at the American Enterprise Institute, Ashcroft said the PATRIOT Act facilities information sharing among government agencies and added that law enforcement tools for crimes of terrorism already were available against organized crime and drug trafficking. Ashcroft also described a new Web site, www.lifeandliberty.gov, with a range of publicity materials, including fact sheets on what the law does and does not do. Michigan Rep. John Conyers also wrote to Ashcroft expressing concern over the legality of the tour and its purpose.

Security
Official Highlights Technology Challenges Facing Department
     A Homeland Security Department official highlighted technology challenges facing the new department in its efforts to combat terrorism. Deputy Secretary Gordon England said the department has not completed the task of combining a dozen separate "watch lists" of potential terrorists because it is a "technical challenge" to consolidate databases and computers that were not designed to share information. Homeland Security officials previously said the different databases often name the same people under different spellings, birth dates or hometowns. At a news conference hosted by the Heritage Foundation, England also said the low cost and ready accessibility of technology poses a hurdle to combating terrorism, arguing that in the information age, technology, information and organizations can "move around the world." England said the department has made "measurable progress" in several areas but has more to do.

Security
Lawmakers To Investigate Cyber Vulnerability Of Power Systems
     House Homeland Security Chairman Christopher Cox announced that the committee will investigate the vulnerability of the nation's power supply and distribution system. Prompted by recent massive power outages, the California Republican promised to hold a number of hearings to examine how major disruptions might affect the nation's cyber security and critical infrastructure. The hearings also will examine the role of the Homeland Security Department in coordinating a national response to attacks and in ensuring adequate redundancy and emergency plans. "We must determine accurately how vulnerable our power system is to attack and sustained denial, and what steps our government is taking to reduce that vulnerability and mitigate the potential damage through contingency planning," Cox noted.

Intellectual Property
Global Group's Shift On 'Open Source' Meeting Spurs Stir
     A request for a meeting on open development issues has plunged the Geneva-based World Intellectual Property Organization (WIPO) into a Washington political battle, causing it to shift its position on the issue. At issue is whether WIPO should hold a meeting next year on "open and collaborative projects" such as "open source" software, which allows users to view and modify underlying code. The meeting was proposed in a July 7 letter sent to WIPO Director General Kamil Idris by wide range of public and private leaders. "What happened in the intervening weeks is that a request for an open discussion on a range of 'projects' became transformed into an increasingly domestically, as opposed to internationally, oriented, polarized political and trade debate about one only of those 'projects', namely open-source software," said Francis Gurry, WIPO's assistant director and legal counsel. U.S. government officials, including Lois Boland, the U.S. Patent and Trademark Office's acting director of international relations, say that an international intellectual property body is not the place for discussions about "open source" software because it falls outside of the organization's mission.

Antitrust
FCC To Study Realities Of Local Broadcasting Markets
     Responding to the outcry over its recent decision to allow greater media consolidation, the FCC will launch a series of initiatives this fall to examine whether radio and television broadcasters are meeting the needs of local communities. The reaction to the decision to loosen media-ownership rules was swift and furious in Congress, with language being introduced to overturn the rules to permanently cap any company's share of the national audience at 35 percent and to block the funding to implement the rules. "The FCC has traditionally used both ownership limits and behavioral regulations to promote localism in broadcasting," FCC Chairman Michael Powell said when announcing the initiatives sparked by the opposition to the rules changes. Powell is creating a task force to examine how broadcasters are meeting local needs and to recommend what the agency can do to enhance broadcasters' responsiveness to those needs.

E-Commerce
Nations Give Go-Ahead To Limited Treaty On Disputes
     Nations participating in a longstanding negotiation for a treaty on which court should handle cross-border commercial contract disputes have decided to move forward with the negotiation based on a limited draft of the treaty. Hans Van Loon, secretary general of the Hague Conference on Private International Law, made the decision after reviewing opinions on the narrower draft from nearly 30 countries as of Aug. 11. A special commission will negotiate the draft Dec. 1-9 in The Hague, Netherlands. If there is agreement, it will go to a full-scale negotiation known as a diplomatic conference next June. Van Loon noted that the possibility remains for future work on other aspects of the broader treaty. But Jeffrey Kovar, the State Department's assistant legal adviser for private international law and U.S. lead delegate to the negotiation, told National Journal's Technology Daily that the negotiators narrowed the focus after being deadlocked for years.

Privacy
Court Date Set For Information Access Showdown
     A federal judge set preliminary dates for proceedings in a case over whether the Electronic Privacy Information Center (EPIC) should be given access to government documents related to technology-related programs that aim to identify potential terrorists. The case pits EPIC against the Homeland Security Department, with EPIC using the Freedom of Information Act to try to get more information on efforts such as the Terrorist Information Awareness data-mining program and the Computer-Assisted Passenger Prescreening Program for airline passengers. U.S. District Judge Colleen Kollar-Kotelly said Homeland Security's Transportation Security Administration has until Oct. 2 to file its "Vaughn Index", which essentially notes which records it plans to withhold from the public. EPIC then has until Oct. 8 to file any objections to those exemptions, and a motion for summary judgment will be filed Oct. 23. EPIC attorney David Sobel expects some opposition to the Vaughn Index.




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