House Passes Version of Controversial Wiretapping Legislation Without Telecom Immunity

By Andrew Ungberg — Edited by Wen Bu

H.R. 3773 – Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
Full Text of House Bill
Full Text of Corresponding Senate Bill
CRS Summary of House Bill
GovTrack Summary (including House vote details)

On Friday, March 14, the House of Representatives approved H.R. 3773, the Foreign Intelligence Surveillance Act (“FISA”) of 1978 Amendments Act of 2008. The House bill, which passed 213-193, would set new rules for governmental “eavesdropping” on phone calls and emails within the United States. Originally introduced in October 2007 by Rep. John Conyers (D-MI) and several other House Democrats, the bill aims to resolve issues associated with the wiretapping program the Administration created in the wake of September 11, 2001. The House version of the bill would establish restraints for future government action, as well as the procedures for challenging those actions in court.

Unlike the Senate version of the bill, S. 2248, which the Senate passed in February, the House version does not grant immunity from civil liability to telecommunications companies accused of illegally cooperating with government surveillance.

Some other highlights of the bill:

• Government must seek approval of the Foreign Intelligence Surveillance Court before conducting surveillance.
• Intelligence agencies are forbidden from reverse-targeting American citizens through surveillance of foreigners.
• A “Commission on Warrantless Electronic Surveillance Activities” will be established to investigate government surveillance since September 11, 2001.

The Associated Press and OMB Watch report on the passage of the House bill.
Rep. Jerrold Nadler (D-NY) explained more of the process behind the House bill’s passage.
Hugh D’Andrade of the Electronic Frontier Foundation, in response to the debate on the FISA amendments, excerpted several opinion pieces on “how surveillance hurts free speech.”

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Sixth Circuit Affirms Dismissal of § 1983 Claim Arising from Publication of SSN on County Website

By Evan Kubota — Edited by David Lawson

Lambert v. Hartman et al.
Sixth Circuit, February 25, 2007, No. 07-3154
Slip Opinion
District Court Order

On February 25, the Sixth Circuit affirmed a ruling of the U.S. District Court for the Southern District of Ohio dismissing a § 1983 claim brought against the Hamilton County Clerk of Courts and Board of City Commissioners by a victim of identity theft, after the clerk published the victim’s Social Security number and other identifying information on a publicly accessible website. The court held that potential financial harm alone was insufficient to implicate the “fundamental liberty interest” necessary to trigger a right to informational privacy.

Online commentary on the appellate decision has been light, despite its potentially serious implications.
The Stanford Law School Center for Internet and Society elucidated the district court opinion.
The circuit court cited Helen L. Gilbert‘s interesting Chicago Law Review Comment on informational privacy.

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En Banc Hearing of the Federal Communications Commission on Broadband Network Management Practices
Ames Courtroom, Harvard Law School, February 25, 2007
Full video recording (RealPlayer format)
Full audio recording (RealPlayer format)
Statements of FCC Chairman Martin and Commissioners Copps, Adelstein, Tate, and McDowell

On February 25, Harvard Law School and the Berkman Center for Internet and Society hosted an unusual en banc hearing of the Federal Communications Commission (“FCC”) at Harvard Law School. FCC held the hearing in response to a Petition for Rulemaking filed by Vuze, Inc., a peer-to-peer video distribution company, objecting to the network management practices of Comcast Corp., a large U.S. Internet service provider. JOLT Digest’s Debbie Rosenbaum recently covered Comcast’s filing in response to the Vuze petition.

The Ames Courtroom reached capacity well before the hearing began, and multiple JOLT Digest staff members were unable to gain access to the hearing. Other media outlets and commentators have, however, extensively reported on the proceedings. A selection of news articles and commentary follows.

Chris Kanaracus of IDG News Service reported extensively on the hearing.
Stephen Labaton of the New York Times and Cecilia Kang of the Washington Post reported on the hearing.
Mark Jewell of the AP reported on accusations that Comcast paid unaffiliated individuals to arrive early, occupy seats in the Ames Courtroom, and applaud after Comcast-friendly testimony.
Matthew Lasar of Ars Technica reports on the hearing from a technical perspective.
The Berkman Center has a roundup of additional links.
Richard Koman of Sci-Tech Today evaluated the testimony of Comcast Executive Vice President David Cohen.
Josh Stearns of Save the Internet and Sam Gustin of Conde Nast Portfolio commented on the “astroturfing” allegations.
Finally, Boston entrepreneur Christopher Herot offered detailed commentary on all portions of the proceedings.

Federal Circuit Holds that Automatic Assignment of Employee Rights May Foreclose Certain Defenses

By Sarah Sorscher — Edited by David Lawson

DDB Technologies, L.L.C. v. Major League Baseball Advanced Media, L.P.
Federal Circuit, February 13, 2008, No. 2007-1211
Slip Opinion

On February 13, the Federal Circuit affirmed in part, vacated in part and remanded for further discovery a decision of the District Court for the Western District of Texas related to employee assignment of patent rights.

The court affirmed the district court’s holding that appellant DDB Technologies could not assert statute of limitations and equitable defenses against patent claims by Schlumberger Technology Corporation — a former employer of DDB’s co-founder, inventor David Barstow — because Barstow’s employment agreement with the company automatically assigned the patent rights in question to Schlumberger, and Texas law foreclosed those defenses for automatically assigned patent rights.

The Federal Circuit vacated the district court’s dismissal for lack of jurisdiction (and resulting denial of jurisdictional discovery). The district court held that DDB failed to join either Schlumberger or Major League Baseball Advanced Media (MLB), which it held were both necessary parties because they were co-owners of the patents. While holding that DDB was not yet entitled to a jury trial on the merits, because the facts of the case were insufficiently intertwined with the jurisdictional issue, the Federal Circuit remanded for further discovery on the jurisdictional question alone.

Dennis Crouch of Patently-O sees the decision as a major victory for employers, and warns employees to explicitly protect their rights.
Gary Odom at Patent Prospector dissects the opinion, also seeing severe dangers ahead for inventive employees.

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Comcast Comments to FCC on Broadband Network Management Practices

By Debbie Rosenbaum — Edited by David Lawson

Comcast Comments to the Wireline Competition Bureau
FCC Request for Comment on Broadband Network Management Practices
FCC Request for Comment on Request for Declaratory Ruling on ISP Network Management Policies
Vuze, Inc. Petition for Rulemaking
FCC Internet Policy Statement

On February 13th, Comcast Corporation, one of the largest Internet service providers (“ISP”) in the United States, filed comments pursuant to two Requests for Comment issued by FCC’s Wireline Competition Bureau. The comments addressed 1) whether managing peer-to-peer (“P2P”) traffic generated by Comcast subscribers violates FCC’s Internet Policy Statement and 2) whether the agency should promulgate further regulations defining reasonable network management.

The FCC notices arose from an investigation launched earlier this year after Vuze, Inc., a company that uses P2P to legally distribute video content, filed a Petition for Rulemaking with FCC in objection to Comcast’s treatment of P2P connections initiated by Comcast subscribers.

In its comments, Comcast argues that the tools it uses minimize interference that would otherwise degrade the activities of all Comcast subscribers. The company requests that FCC not initiate a rulemaking proceeding to address which broadband network management practices are reasonable, and further requests that FCC declare that network management practices such as Comcast’s are reasonable and consistent with the Internet Policy Statement.

Peter Svensson of the AP (carried on Wired News) summarizes the story.
Nate Anderson of Ars Technica details Comcast’s argument.
Craig Aaron of Save the Internet argues that Comcast’s practices are much more harmful than the company admits.

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