Government Executive - Authors - Drew Clark

FCC asked to investigate agencies' video news releases

Julie Rovner and Drew Clark — Thu, 17 Mar 2005 00:00:00 -0500

Clips of videos created by federal agencies have been broadcast frequently on local news programs without reference to the fact that they were produced by the government, according to press reports.

"Certain broadcasters are editing government-created VNRs to make it appear as if such information is the result of independent news-gathering," Inouye said in a letter sent Tuesday to the FCC and released Wednesday.

He added that it "seems to violate FCC rules requiring attribution for the airing of 'any political broadcast matter' or 'the discussion of a controversial issue of public importance.' "

Asked about the practice at a Wednesday news conference, President Bush said: "There is a Justice Department opinion that says these pieces are within the law so long as they're based upon facts, not advocacy. And I expect our agencies to adhere to that ruling, to that Justice Department opinion."

But he added: "I think it would be helpful if local stations then disclosed to their viewers that this was based upon a factual report and they chose to use it. But evidently in some cases that's not the case."

Health and Human Servics Secretary Mike Leavitt defended his agency's use of video news releases that are not clearly identified as government productions, despite a Government Accountability Office opinion that such communications violate a ban on propaganda.

At a Senate Labor-HHS Appropriations Subcommittee hearing, Leavitt said educating 41 million Medicare beneficiaries about the new prescription drug benefit that begins next year "is a very big challenge" and the department would use whatever means available to communicate needed information.

He said "we will follow guidance of our legal counsel," which differs from that of the GAO.

Labor-HHS Appropriations Subcommittee ranking member Tom Harkin, D-Iowa, got Leavitt to agree to provide the subcommittee with the budget for public relations, including contracts with public relations firms. The videos that GAO found inappropriate last year were produced by outside contractors.

Harkin said he did not object so much to the department producing such videos, but to the fact that they were not clearly identified as government-produced.

"We send out letters and information all the time," he said. "But at least we sign our names. Shouldn't HHS sign this stuff?"

Said Leavitt, who was not at the department during last year's flap over the Medicare information, "That seems like a logical approach."

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President Bush appoints new FCC chief

David Hatch and Drew Clark — Wed, 16 Mar 2005 00:00:00 -0500

The boyish-looking Martin, 38, has been serving as a Republican commissioner at the agency since 2001. He was deputy general counsel for Bush's first presidential campaign and worked on the Bush-Cheney transition team. He also served as special assistant to the president for economic policy at the White House.

Martin's elevation to chairman creates an opening for a GOP commissioner at the agency. The expected departure of Commissioner Kathleen Abernathy would create another GOP vacancy at the five-member agency. Abernathy's term expired last year, but she may stay until the slot is filled or until the end of this year.

Martin made a name for himself in February 2003 when he disagreed with Powell over whether rules governing traditional telephone wires should be liberalized. The two Democrats on the commission joined Martin to form the majority on that portion of the order, blocking Powell's efforts at deregulation.

Powell's position ultimately was vindicated by the federal D.C. Circuit Court of Appeals and by the Bush administration when it declined to seek Supreme Court review of that decision.

Martin also generally has favored the broadcast industry over cable in their various battles at the agency. In February, for example, Martin cast the lone dissenting vote against the FCC decision that cable need not carry all of broadcasters' digital-television programs. In 2003, Martin and Powell voted in favor of a plan championed by Powell to relax rules on media ownership.

The announcement that Martin was selected as FCC chairman raised new questions about how the FCC will approach key telecom and media policy questions.

The most pressing question facing Martin is a request by Level 3, a competitor of the regional Bell telecom firms, that all Internet telephone calls traveling over traditional networks pay the cheaper rates borne by local phone companies, not those of long-distance providers.

Until now, Martin has been reluctant to join Powell and Abernathy in their efforts to approve the request. Bell and rural telephone companies have been lobbying hard against Level 3, which has strong support from technology companies, the MCI long-distance provider and Internet phone companies like Vonage.

The chief of the Information Technology Industry Council (ITI) last month wrote a personal letter to Bush urging him to appoint Martin as chairman. Other leading candidates for the post were Michael Gallagher, the head of the National Telecommunications and Information Administration and Becky Armandariz Klein, a former chairwoman of the Texas Public Utilities Commission.

ITI chief Rhett Dawson said Martin has sided with the technology industry on its key concerns, including his decision in 2003 to support Powell and Abernathy in loosening regulations governing high-speed Internet technologies like fiber-optic wires and cable modems.

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FCC Chairman Powell announces resignation

Molly M. Peterson and Drew Clark — Fri, 21 Jan 2005 00:00:00 -0500

During his tenure, Powell completed rules regarding telecommunications competition, promoted the transition to digital television, resolved the conflict over interference between police department radios and some cellular phones, and promoted new technologies such as Internet telephony.

Powell also dramatically expanded the amount of spectrum devoted to unlicensed wireless communication, attempted to free cable modem service from tight regulation and stepped up enforcement of laws against "indecent" content on television and radio.

As part of the transition to digital television, the FCC required an anti-piracy technology called the "broadcast flag" and sanctioned other content protection measures on cable television. Powell also attempted to loosen the rules limiting how many media outlets one company could own in any city. But lawmakers have tinkered with the rules and an appellate court has delayed implementation.

His resignation comes at a time when lawmakers and courts are reviewing major telecommunications issues. The FCC's cable modem ruling was overturned by the 9th U.S. Circuit Court of Appeals, but the Supreme Court is reviewing that decision.

Powell started at the FCC as a President Clinton appointee to one of the GOP seats, and President Bush named him chairman. Possible successors include Michael Gallagher, head of the National Telecommunications and Information Administration in the Commerce Department; FCC Commissioner Kevin Martin; Janice Obuchowski, a telecom consultant who served in the Commerce Department under former President George H.W. Bush, and Becky Klein, a former head of the Texas Public Utility Commission who ran unsuccessfully for Congress in 2004.

Rep. Cliff Stearns, R-Fla., who chairs the Trade and Consumer Protection Subcommittee of the House Energy and Commerce Committee, commended Powell's efforts to deregulate the telecommunications industry and crack down on broadcasters who air indecent material. Stearns also lauded Powell's role in relaxing media ownership restrictions.

"It was a difficult job that often made him a target for criticism, but I believe that Chairman Powell's leadership on many of these issues will serve the industry and American consumers very well in the years to come," Stearns said.

Michael Calabrese, vice president and director of spectrum policy at the New America Foundation, said Powell left "one significant positive legacy" by encouraging open access to the public airwaves for high-speed Internet services.

"On most other issues, however, Powell's tenure has radically changed the nation's media and telecom policy direction in ways that damage both our economy and our democracy," Calabrese said.

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FCC commissioner seeks disclosure of government-paid journalists

Drew Clark — Thu, 13 Jan 2005 00:00:00 -0500

In an unexpected statement at the FCC's January meeting, Jonathan Adelstein called for the agency to investigate whether conservative commentator Armstrong Williams or broadcasters violated laws for failing to disclose that Williams was paid to espouse particular views.

Adelstein said a provision in the 1996 Telecommunications Act that bars payola, the practice of independent music promoters paying radio stations to play the songs of affiliated arts, also applies to journalists.

"I am going to insist that we investigate this incident and every incident that is reported to us," said Adelstein, a Democratic-selected commissioner who was reappointed last month to a five-year term by the Bush administration. He said the agency had received at least 12 letters of complaint about the matter.

FCC Enforcement Bureau Chief David Solomon said later in the meeting that he had not begun an investigation. Complaints about and investigations into music payola are extremely rare, and the last enforcement action occurred in 2000.

USA Today reported Friday that the Education Department paid a company owned by Williams $240,000 to promote the 2002 education law known as the No Child Left Behind Act. The story has revived the media debate about the use of paid editorial views in broadcasts without identifying the sponsors of the views.

But Adelstein said the provision of the law that bars payment for broadcasts that are undisclosed is extremely broad. Referring to two sections dealing with payola, he said "both are clearly implicated by the Armstrong Williams" incident.

Adelstein said Williams' failure to disclose his payments to the broadcasters who aired him would subject him to criminal penalties of up to one year. If Williams disclosed his contract to the broadcasters and they failed to disclose it on air, they would be subject to fines and license revocations, Adelstein said.

The payola rules only apply to broadcast radio and television, not to cable or the Internet, Adelstein and Solomon both said.

A nonprofit organization that bills itself as a media reform group on Thursday condemned Williams' non-disclosure and said it has collected 20,000 signatures for a petition demanding FCC and congressional investigations.

"Williams has issued a mea culpa in hopes this will go away, but the scandal is about more than journalistic ethics," said Josh Silver, executive director of the group, Free Press. "Undisclosed payments to shape broadcast matter are illegal payola. Laws have been broken, and it's time for Congress and the FCC to step in and answer some questions."

FCC Chairman Michael Powell declined comment on the matter. In an interview after the FCC meeting, Solomon said he believes the FCC never has attempted to apply payola or indecency laws against individuals, as opposed to licensed broadcasters.

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Veterans Affairs spurs smart-card growth

Drew Clark — Thu, 23 Dec 2004 00:00:00 -0500

Contractors to the VA initiative say it is the first department to implement a program that complies with a recent presidential directive requiring agencies to use a single smart card with the best technology available, including digital signatures.

Dubbed OneVA, the photo-identification card doubles as a computer-access card for employees to use when connecting to the department's system.

Its capabilities include the ability for doctors in VA hospitals to unplug a card from a reader, walk into another room and re-insert the card, bringing all available data immediately on-screen, said Bob Merkert, CEO of the SCM Microsystems smart card reader manufacturer.

OneVA has been distributed only in a pilot project to 950 employees at the Fayetteville VA Medical Center in Arkansas, but plans to give 500,000 cards to employees by 2006, a department spokeswoman said.

In deploying digital signatures, department officials say they are following direction from the Office of Management and Budget to use stronger security measures.

"OMB has endorsed the position that federal identity cards should be based on smart cards, and public key infrastructures is the single best approach for the federal government," said Pedro Cadenas, the department's associate deputy assistant secretary for cyber and information security.

"PKI provides substantially stronger authentication, and allows users to digitally sign transactions and protect sensitive information across the enterprise network," said Cadenas.

The department is the first to comply with a homeland security presidential directive issued in August, the most recent smart card order, said Tom Greco, vice president and general manager at Cybertrust. The National Institute of Standards and Technology expects to issue the standard by Feb. 25.

Cybertrust is one of three organizations, with VeriSign and the Agriculture Department, authorized to provide digital signature services to the federal government. Such signatures provide the credentials enabling encrypted Internet communication, and are regarded as more effective than the password-based security systems of most government agencies.

"VA is about 12 months ahead of where we believe most federal government agency will be, once the standard" is issued by NIST, said Greco. "The people involved with the VA are also involved in the federal inter-agency system" for PKI, and feel confident they have utilized the standard that will be selected.

In spite of Veterans Affairs' recent efforts, the Defense Department has been the most aggressive adopter of smart cards to date, issuing 4.2 million cards to nearly every military and civilian employee, said Craig Diffie, director of field marketing for the smart-card manufacturer Axalto.

Defense "was very aggressive," said Diffie. More than three years ago, "they just decided they were through waiting around on the technology" and began issuing cards before card readers were widely deployed.

Defense "led this whole charge of smart cards, and the VA is following in their footsteps," said Merkert.

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Tech-related programs receive funding in omnibus bill

Drew Clark — Tue, 23 Nov 2004 00:00:00 -0500

The Justice Department won $5.2 billion for the FBI, including new funds for training and information technology.

The agency would receive $35 million to relocate its counter-terrorism division to the Terrorist Threat Integration Center run by the CIA. The center is designed to share information with the FBI and the Homeland Security Department.

The FBI also would receive $20 million to outfit a field office to handle classified information, $10 million for training, $9 million to run a records-management center, $8 million to buy helicopters and other equipment, and $2 million for an office in West Africa.

Within the agency's counterintelligence funding, no less than $5 million "shall be available to combat industrial espionage and other threats to intellectual property rights of manufacturers and researchers" said the conference report to the bill.

Congress voted to fund the National Intellectual Property Law Enforcement Coordination Council with a $2 million grant, its first direct appropriation. The interagency council, which had been funded through the Office of the U.S. Trade Representative, is designed to combat piracy and counterfeiting. The Senate had proposed $20 million.

USTR, meanwhile, would receive $42 million under the bill.

The conference report also touched on the issue of online pornography, with lawmakers calling for Justice's office of juvenile justice to report to the Appropriations Committee. "The conferees desire a better understanding of what types and how many Internet safety programs are being federally funded," the report said.

The measure also would fund several tech-related Commerce Department agencies. The National Telecommunications and Information Administration would receive $39 million, versus $17 million sought by the House and $58 million sought by the Senate.

Commerce's Bureau of Industry and Security would get $68 million, and the legislation would provide $6.5 million to the Office of Technology Policy.

The National Institute of Standards and Technology would receive $708 million, closer to the Senate's $784 million mark than the House's $524 million. Congress preserved the Manufacturing Extension Partnership program from cuts and renamed its locations "Hollings Centers," after the retiring Sen. Ernest (Fritz) Hollings, D-S.C.

The Antitrust Modernization Commission that Congress created but failed to fund in 2002 would receive $1.2 million, nearly identical to the House level. The Senate had not allocated funds for the initiative of House Judiciary Committee Chairman James Sensenbrenner, R-Wis.

Among independent agencies funded under the bill, the Securities and Exchange Commission would receive $913 million; the FCC, $281 million; and the FTC, $205 million.

The conference report also includes language likely to benefit AT&T in a legal dispute involving fees paid to regional Bell telephone companies. "The conferees direct the FCC not to take any action that would directly or indirectly have the effect of raising the rates charged to military personnel or their families for telephone calls placed using prepaid phone cards," the report said.

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Senate votes for privacy study on agencies' data-mining use

Drew Clark — Thu, 16 Sep 2004 00:00:00 -0400

An amendment offered by Sens. Patrick Leahy, D-Vt., and Russ Feingold, D-Wis., was unanimously accepted. The Senate passed the bill, H.R. 4567, on Tuesday on a 93-0 vote. The House version of the bill, passed in June, does not contain such an amendment.

"At the same time that the [Bush] administration has been making it harder and harder for the public to learn what government agencies are up to, the government and its private sector partners have been quietly building more and more databases to learn and store more information about the American people," Leahy said in a statement.

The amendment essentially adopted the approach of S. 1544, a Feingold-Leahy bill that would have required annual data-mining reports. As amended, the appropriations bill would only require a single report to Congress, within 90 days of the end of fiscal year that ends on Sept. 30, 2005.

Leahy said the amendment would not end any existing program or impose new regulations over how programs are administered. "This is about accountability," he said. "The American people deserve to know what kind of information is gathered about them and how federal agencies intend to store and use it."

A Leahy aide said that the senator "is open to the concept that certain forms of data mining might enhance security. His concern is that whenever you are going to use the technology, you put in place protections for people's privacy."

The administration's data-mining programs have proven controversial with Congress in the past. An amendment by Sen. Ron Wyden, D-Ore., in an appropriations bill passed in February 2003 required the Defense Department to address the privacy impact of a program initially dubbed "Total Information Awareness (TIA)."

The May 2003 report required by that bill left Congress unsatisfied, and the 2004 appropriations bill barred all funding for TIA-related activities.

In June 2004, the Senate Appropriations Committee approved an amendment by Sen. Robert Byrd, D-W.Va., that would have barred funding for an updated version of the Computer Assistant Passenger Pre-Screening System (CAPPS II), designed to track air travelers, until privacy concerns were addressed. That measure was also included in the House-passed version of this year's Homeland Security measure.

Previous legislation required the Government Accountability Office, to study the program, and it received a poor rating from the investigative arm of Congress, then known as the General Accounting Office.

In July, Homeland Security Secretary Tom Ridge announced that the CAPPS II program was being scrapped, and a revised version of the program, dubbed "Secure Flight," was launched in August. It is unclear whether the program will engage in data-mining of the sort envisioned for CAPPS II.

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Database firm rejects TSA's pre-screening approach

Drew Clark — Mon, 10 May 2004 00:00:00 -0400

At a press conference to promote two new books he wrote, ChoicePoint CEO Derek Smith addressed what he views as the weaknesses of the Computer-Assisted Passenger Prescreening System (CAPPS II), a project of the Transportation Security Administration (TSA).

"ChoicePoint opted out of CAPPS II," Smith said. "We have not been involved in CAPPS II" because of disagreements with the government. "We respect the government's ability to do it a different way."

Smith said CAPPS II is too much like the Terrorism Information Awareness program once proposed by the Defense Advanced Research Projects Agency to mine commercial data because CAPPS II attempts to ferret out data about 280 million individual Americans.

Smith termed that approach "probabilistic theory" and said law enforcement and private businesses seeking to verify individuals' identities should instead take advantage of "link analysis." The latter approach concentrates first on suspected terrorists and seeks information about anyone who might be connected to them.

"Today, we are looking for small groups of people, or needles in a haystack," he said. "The last thing you want to do is put more hay on the haystacks."

He also proposed a new version of the program that he and CourtTV founder Steven Brill are proposing. Called the Verified Identity Pass, the program would voluntarily "enable people to get themselves into stadiums, office buildings or other places" without the hassle of an extensive security check.

ChoicePoint is one of a handful of large database aggregators, some of which have seized upon the environment since the Sept. 11, 2001, terrorist attacks to pitch their wares to government agencies. ChoicePoint provides ID-verification services to state police and the FBI, Smith said.

Acxiom has worked with TSA on CAPPS II. A Florida company called Seisint also has developed a system called Multistate Anti-Terrorism Information Exchange (MATRIX) that several states, including Florida, purchased as a means of mining data for local police.

Heavy criticism of both CAPPS II and MATRIX by privacy advocates may put ChoicePoint in a position to urge data reforms, some industry observers said. With his new books, Risk Revolution and A Survival Guide in the Information Age, Smith said he wants advocates of privacy and homeland security to coalesce around proposals guided by rational risk assessments instead of emotionalism.

"We need a new kind of privacy discussion that begins with the proposition that we can both maintain our civil liberties and maintain our civil defense," Smith said. While defending the need for privacy, he harshly criticized the role of anonymity in the contemporary world.

"I do not believe you have a right to be anonymous in a free society, or to mask, deny, change or hide our identity when we seek rights or privileges in our society," he said.

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Acting Patent Office chief urges Senate to pass fee bill

Drew Clark — Thu, 18 Mar 2004 00:00:00 -0500

Testifying before the House Commerce, Justice and State Appropriations Subcommittee, John Dudas thanked the subcommittee and the House for the March 3 passage of H.R. 1561, which raised patent fees, authorized certain agency reforms, and permitted the PTO or patent applicants to keep all fees.

Asked by Rep. Jose Serrano, D-N.Y., ranking member of the subcommittee, what would happen if the Senate does not pass a similar measure, Dudas replied: "It will put us, and the [patent] system, in a pretty tough bind."

He said the office "would not be able to hire" enough patent examiners to address a backlog of 475,000 applications and that the backlog would grow to 1 million. Pendency, or the length of time it takes for the average patent to be approved, would climb from its current 26 months to 40 months.

Pendency for technology-intensive fields like computer and communications would climb higher, to nearly 52 months, he said. Whether or not the Senate passes the bill, Dudas said pendency will rise slightly in the near-term, to a projected 31 months, because it takes about two years to begin addressing the backlog. "We are trying to make stabilize it at an acceptable point."

In addition to heading the PTO, Dudas is Commerce's acting undersecretary for intellectual property and on Tuesday was nominated by President Bush to assume the formal position. He also addressed questions from Chairman Frank Wolf, R-Va., about intellectual property piracy in China, outsourcing the patent searching functions, telecommuting by PTO employees, and technical integration with the European PTO.

Dudas said the patent office by itself could do little to combat piracy and other ills in China highlighted by Wolf, a critic of permanent trade relations with the country.

"We are finding that we are making strides" although "they are not dramatic strides in educational efforts with judges and prosecutors" in respecting patents, Dudas said.

From the perspective of U.S. patent-holders, he said, the greater problem was lack of "market access," or the inability for U.S. rights holders to offer their own legitimate goods in competition to the Chinese-produced counterfeit versions.

He also said China's portion of the seizures of counterfeit goods at the U.S. border had risen from 16 percent in 1999 to 70 percent in 2003.

On telecommuting -- another of Wolf's key interests -- Dudas said the office continues to support having its trademark examiners work primarily from home. "We now have 44 percent of 250 trademark examiners teleworking, and we intend to increase that to 60 percent." Moving patent examiners to telecommuting must await a fully electronic filing system, something Dudas promised by the end of the year.

Dudas also said he fully intends to comply with restrictions on "offshore outsourcing" of patent researchers that Congress imposed when it passed H.R. 1561.

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TSA to require passenger data and issue privacy rules

Drew Clark — Wed, 17 Mar 2004 00:00:00 -0500

The order to provide data for the Computer Assisted Passenger Pre-screening System (CAPPS II) would come under a "security directive" within the next several months from TSA, said agency acting administrator Admiral David Stone in testimony before the House Transportation Aviation Subcommittee.

CAPPS II has been criticized on privacy grounds, and airlines are unwilling to provide passenger data to the TSA unless they are compelled or privacy protections are put in place.

Subcommittee Chairman John Mica, R-Fla., and ranking member Peter DeFazio, D-Ore., harshly criticized the agency for neglecting privacy rules and for the slow pace in testing the system. CAPPS II would use names, addresses, phone numbers and dates of birth to conduct background checks on all travelers.

Mica said it was "unacceptable" that TSA was behind schedule because it could not obtain airline data. "I believe TSA has sufficient authority under the authorizing law we passed to require airlines to provide data, and should do so promptly."

"It is our intent to use the [regulation] along with a security directive," Stone replied. That should address both the airlines' concerns and those of privacy advocates, he said.

Mica also criticized the agency for failing to integrate terrorist "watch lists." Stone replied that a preliminary version would be offered by March 31, and that the integration would be complete by year's end.

Lawmakers also hammered the agency on failing to address privacy concerns. But Stone said in his testimony: "There is an inherent goodness to CAPPS II that I believe will shine through as we examine the program more closely."

"CAPPS II seems to be collapsing before it is even testing," said District of Columbia Democratic Del. Eleanor Holmes Norton. "I can't imagine what it will take to get the public to accept the screening that CAPPS II is offering."

"The bottom line is assuring the American public that CAPPS II does not begin to look like Big Brother," said Rep. Bill Pascrell, D-N.J.

"I am a little bit troubled about the plan to implement" CAPPS II, said Rep. Bob Ney, the Ohio Republican who chairs the House Administration Committee. He said he was concerned about its privacy implications and how it dealt with errors. "This has got to be thought out to the nth degree."

"It is my understanding ... that we gave significant authority to issue security directives with no notice of rulemaking and no public comment," said DeFazio. "Why wouldn't you just use that criteria with the airlines?"

Stone replied that issuing proposed rules were important "to instill trust and confidence and to provide notice to passengers that we will be taking data and testing it." In a brief interview, Stone said the agency had not decided whether it would first issue the "security directive" or the proposed notice of regulation.

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House patent reform vote generates industry praise

Drew Clark — Mon, 08 Mar 2004 00:00:00 -0500

House passage of legislation that is likely to significantly boost PTO revenues by raising patent fees, eliminating fee diversion and permitting reforms sought by the agency.

By a vote of 379-28, the House easily passed the bill, H.R. 1561, and that margin of victory was a major win for the technology industry and broader business community.

Business officials have long urged an end to diverting patent-related fees for general government revenue, a practice that has cost the agency $750 million over the past decade, bill sponsor Lamar Smith, R-Texas, said during the floor debate.

Bill supporters set their sights on educating senators about the issues and expressed optimism that agreements with House appropriators and the Small Business Committee will eliminate controversies that might delay Senate passage.

"This was a bill that could have gone nowhere and instead" passed easily, Smith said, because House leaders were "able to come up with a solution that did not step directly on the shoes of the appropriators."

Without the bill, PTO "would not be able to make much-needed improvements to ensure quality and expedite patent and trademark processing," said Jon Dudas, PTO's acting chief.

Business groups, which would foot an average 15 percent patent-fee increase under the bill, concurred. The groups said their members would support an increase if fee diversion stopped.

"It would be hard to overstate the sense of relief in the business community, particularly the high-tech sector," over passage of the bill, said National Association of Manufacturers President Jerry Jasinowski. He said his group has "watched with dismay" as PTO performance deteriorates.

"Modernizing the U.S. patent system will enable us to bring cutting-edge technologies to consumers faster, which could help spur economic growth and job creation in the U.S.," said Rhett Dawson, president of the Information Technology Industry Council, whose members include Apple, Canon, Dell, Eastman Kodak, Hewlett-Packard, IBM, Intel and Microsoft.

"For the first time, there has been something done" about the thorny issue of fee diversion, said Mike Kirk, executive director of American Intellectual Property Law Association. "If it passes the Senate, it would end diversion" and likely pave the way for the office to get far more money.

The lopsided margin of passage came after a January agreement to create a "refund" program designed to eliminate the incentive for diverting agency revenue to non-PTO programs. Under the amendment, patent revenues collected in excess of the amount appropriated to the agency would be deposited into a PTO "reserve fund."

"It does not take the PTO off budget, and that is a big step back" from the earlier language that was controversial with appropriators, Kirk said. Businesses concerned about administering rebates said they want appropriators to allocate the full amount instead.

Administering any rebates "may cause some angst," but patent interests "don't want to start playing around" with their best shot at ending diversion in a decade, Kirk said.

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House passes bill eliminating diversion of patent fees

Drew Clark — Wed, 03 Mar 2004 00:00:00 -0500

The House passed the bill on a 379-28 vote.

Judiciary Chairman James Sensenbrenner, R-Wis., acceded to one core demand by Small Business Chairman Donald Manzullo, R-Ill., who wanted independent and small-business inventors to retain the traditional 50 percent discount on patent filing fees.

The deal eliminated obstacles to bringing the bill, H.R. 1561, to the floor. Originally, the bill would have raised patent fees by an average of 15 percent and authorized the Patent and Trademark Office to make additional reforms to expedite the patent-granting process.

One of those reforms that has proven somewhat controversial would split filing fees into three components: fees for filing, for researching evidence of prior inventions and for examinations. Currently, the base fee is $750; under the proposal, it would become $300 for filing, $500 for researching and $200 for examination.

But an amendment approved last July by the Judiciary Committee would take the PTO off budget by eliminating congressional appropriators' ability to divert patent fees for general revenues.

Technology and other business leaders strongly supported that amendment, which they regarded as crucial to securing their support for patent-fee increases. But House appropriators -- including Frank Wolf, R-Va., chairman of the Appropriations subcommittee with jurisdiction over the Commerce Department and PTO -- objected to such a precedent.

In January, Sensenbrenner brokered an agreement that appears to have quelled appropriators' vocal objections. The amendment drafted by Sensenbrenner would create a "refund" program to "eliminate the potential incentive for diverting PTO revenue to non-PTO programs," according to a House leadership summary of the amendment.

On Tuesday, the House Rules Committee ruled that amendment in order, as well as a Manzullo amendment to establish inflation-adjusted fees and to keep all filing fees for small business at 50 percent of the base level.

The panel also agreed to permit an amendment by Sheila Jackson-Lee, D-Texas, that would require that PTO contracts for researching patent applicants be awarded to U.S. and minority businesses.

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Senators grill Homeland official on threat assessments

Drew Clark — Tue, 24 Feb 2004 00:00:00 -0500

Arizona Republican John Kyl, chairman of the subcommittee on Terrorism, Technology and Homeland Security, asked Amit Yoran, director of the department's National Cyber Security Division, whether his division had conducted such an assessment.

Kyl said the federal government is "awash in a sea of vulnerability studies," or analyses of weaknesses in federal computer networks, and questioned Yoran and top officials at the Justice Department and the FBI. What it lacks, however, is "an accurate threat assessment" about who has been engaging in cyber attack, whether nations, terrorists or individual hackers.

In his testimony, Yoran emphasized the need to integrate investigations of cyber attacks with investigations into physical terrorist attacks. "Rather than only focusing on specific attack profiles," he said, "we are developing programs and initiatives that apply to the gamut of attack approaches."

"Our mission extends to protecting cyber systems across the entire threat spectrum, regardless of an actor's intent," Yoran said.

"Have you focused on a threat assessment?" Kyl questioned.

"Our protection strategy is threat-independent," Yoran replied. He also said that a classified National Intelligence Estimate by Defense officials, expected this week, would provide an estimate of threat capabilities.

Noting that FBI and Justice witnesses said assessment responsibility passed to Homeland Security, Kyl persisted. "I still haven't heard you say you have done a threat assessment," he asked.

"It sees to me that the Department of Homeland Security must be carrying out a cyber-threat analysis/assessment," Kyl said. "If the FBI isn't doing it, we still need someone else to do it."

Yoran replied that his division "looks at cyber as one component of infrastructure protection. I would also add that through conducting exercises, such as Livewire, we are looking at ways to appreciate cyber as a vector" of threat. Yoran said previously that the Livewire exercise revealed gaps in coordination between government agencies and the private sector.

Subcommittee ranking member Dianne Feinstein, D-Calif., also aggressively questioned Yoran. "My concern is that we don't really take cyber terrorism as serious as we should," Feinstein said in her opening statement. "The strategy at this point is to leave this to the private sector, and I am not really sure that this is going to work."

She noted that Yoran reports to an assistant secretary at Homeland Security and not to Secretary Tom Ridge, and questioned, "given your lack of seniority, how are you able to direct assistant secretaries in other directorates" at Homeland Security about the need, for example, to toughen up cybersecurity at U.S. borders?

Yoran replied, "There are advisers within the White House who maintain a very close awareness of cyber activity and cyber protection." In response to another Feinstein question, he did not cite any instances in which Homeland Security had issued cybersecurity directives to other departments.

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Report renews questions about passenger-screening system

Drew Clark — Thu, 12 Feb 2004 00:00:00 -0500

GAO's report concluded that the Homeland Security Department "has not completely addressed seven of the eight issues" that Congress set as conditions for the deployment of the new Computer-Assisted Passenger Prescreening System (CAPPS II).

The homeland security appropriations act for fiscal 2004 put funding for deployment or implementation on hold until GAO certifies that the system included protections for privacy, due process, data accuracy and more. Of Congress' eight criteria, the GAO report said Homeland Security has fully met only one -- establishing an oversight board.

"All the privacy, accuracy, security and due-process concerns I had about CAPPS II last year still stand," said Martin Sabo, D-Minn, who sponsored the appropriations language.

But in a conference call organized by the American Civil Liberties Union (ACLU), Sabo added: "I don't think [the report] ends the program. They can continue the planning process. I would also expect that they do that."

As currently envisioned by Homeland Security, CAPPS II would require airlines to collect birth dates and other identifying information from every passenger and pass the data to the department's Transportation Security Administration (TSA), which would use it to verify passengers' identities by checking them against commercial databases.

Based on their identity scores, passengers would be tagged "red," "yellow" or "green," and be detained, searched or cleared for passage. Privacy groups, business travelers, civil-rights organizations and some airlines have criticized the program.

Barry Steinhardt, director of ACLU's technology and liberty program, said the cost to retrofit the airlines' reservation systems would be up to $1 billion, "a cost that has not even been accounted for yet."

Hilary Shelton, director of the National Association for the Advancement of Colored People's Washington bureau, argued that CAPPS II "could have a disproportionate impact on low-income flyers or passengers of color" because they are "likely to have little or no credit record," increasing the likelihood that they would be selected for further searches or denial of flight.

The appropriations bill allowed TSA to continue to develop and test the system pending the GAO report. When President Bush signed the spending law, he said he regarded the demand for GAO as "advisory."

In its response to the GAO report, the department said it has progressed further than credited by the congressional oversight body.

"In its present state, CAPPS II is capable of receiving data, cleansing and formatting the data, transmitting the formatted data through the identity-authentication process, receiving an authentication score, performing a risk assessment and generating a final risk-assessment score," said Janet Hale, undersecretary of management at Homeland Security.

"Because we are not currently authorized to receive [passenger] data for additional testing, we are not able to advance the program beyond the current state of development," Hale added.

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Justice Department budget centers on fighting terrorism

Drew Clark — Mon, 02 Feb 2004 00:00:00 -0500

Justice officials emphasized the proposal's 19 percent increase in funding directed at preventing terrorist attacks, an 11.4 percent increase for the FBI and 4.5 percent for federal law enforcement programs. The total budget request is for $22.1 billion, including mandatory spending.

The initiatives devoted to fighting terrorism include $36 million for the Terrorism Threat Integration Center (TTIC) and $29 million for the Terrorist Screening Center (TSC). TTIC is an intelligence-analysis initiative of the FBI, CIA and Homeland Security Department based at the CIA. The screening center aims to help the federal government merge terrorist watch lists.

Other new programs at the FBI would include: an Office of Intelligence, a $13 million project with 151 positions, including many consolidated from other divisions; $14 million for a counter-terrorism headquarters support program; and $64 million for various national security initiatives.

The administration also proposed $25 million in new FBI funding -- including 159 positions, with 61 agents, to "assist the aggressive pursuit of computer-intrusion crime," according to the department. It also proposes $31 million and 29 positions for advanced computer support.

In addition to funds directed at fighting terrorism, Attorney General John Ashcroft said in a statement that the budget "provides the tools for the department to continue vigorously enforcing federal laws -- particularly drug, gun and civil rights violations -- and to combat corporate fraud and obscenity."

Cutting $2.36 billion from a range of programs, together with the additional $325 million sought, would yield $2 billion for new administration priorities. The budget also proposed $692 million for programs that must by law be boosted.

Of the $2 billion in new funding priorities, $14 million would go to combating "Internet crime against children" and "protecting children against pornography and exploitation," said Paul Corts, assistant attorney general in the Justice Management Division. The department also proposes the creation of eight full-time positions devoted to prosecuting adult obscenity, he said.

The bulk of the $2 billion in new funding would go to counter terrorism ($371 million), incarceration ($166 million), gun crimes ($96 million) and drug enforcement ($74 million). Corporate fraud prosecutions would receive $1.5 million in new funding.

Funding for the antitrust division would rise to $136 million, from $114 million in fiscal 2004.

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Industry discouraged by plans for Patent and Trademark Office budget

Drew Clark — Fri, 12 Dec 2003 00:00:00 -0500

The omnibus appropriations bill that the House passed on Dec.8 would allocate $1.22 billion to the agency, which would not even cover increases for inflation over the $1.17 billion for fiscal year 2003. It also would be $180 million less than necessary to cover the agency's modernization plan, PTO Director James Rogan said in an Oct. 31 letter to Rep. Frank Wolf, R-Va., chairman of House Appropriations subcommittee that oversees funding for the agency.

The agency also paid $44 million to move its headquarters from Arlington, Va., to a five-building complex in nearby Alexandria. Patent examiners began moving into the first building Dec. 2.

Rogan's announcement on Dec. 8 that he will resign on Jan. 9 to finish his autobiography only adds to sense of budgetary panic expressed by some people in the patent community. PTO Deputy Director Jonathan Dudas is expected to become acting director when Rogan leaves.

"I look forward to Jon [Dudas] taking the reins, but he is going to find himself in exactly the same crisis situation" that faced Rogan, said Mike Kirk, executive director of the American Intellectual Property Law Association. Kirk said the message from Congress was: "We want you to fix it, but we are not going to give you the money to do it."

Many technology and business groups are disappointed that Congress has spurned their willingness to pay higher patent fees in exchange for letting PTO keep all such revenue. The additional fees would fund more examiners hired under Rogan's 21st-century strategic plan.

Nearly 100 companies and 28 associations recently urged House Speaker Dennis Hastert, R-Ill., to schedule a floor vote on a bill, H.R. 1561, that would take the PTO "off budget," meaning that it would be funded outside the normal appropriations process. Appropriators oppose the idea.

"The reality is that the appropriators are cutting back further on the funding than where the PTO has been," Kirk said, "which means that implementation of the plan is just a dream. It isn't going to happen."

Other businesses that back the measure are speaking out more aggressively about how "the PTO is buckling from insufficient funding," said Senior Vice President of Technology and Manufacturing at IBM Nicholas Donofrio. He called the long-term practice of diverting patent fees a form of taxation on innovation.

In a recent article, Donofrio said IBM, the country's leading patent holder, is willing to pay an extra $15 million-plus "if it leads to higher quality patents and a better system of patent review."

In a Dec. 9 interview about his resignation, Rogan said PTO has done as much reform as it can under its current budget. Regarding fee diversion, he said: "That ball is in Congress' court. We were hoping that it would have gotten included in the omnibus. I am pretty optimistic that when they come back they will accept a compromise."

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Patent office chief to depart; deputy may be in line for job

Drew Clark — Tue, 09 Dec 2003 00:00:00 -0500

Rogan has served for two years as the Commerce Department's undersecretary for intellectual property. He has spearheaded a legislative initiative aimed at bolstering the quality of the patent-review process by improving the agency's operations and by using higher application fees to increase the number of examiners.

Dudas currently is the deputy undersecretary for intellectual property and deputy director of PTO. Under law, he becomes the acting director when Rogan resigns Jan. 9. Rogan is leaving to complete work on his autobiography, "Rough Edges," which is scheduled to be published next summer by HarperCollins.

Others close to the office expect Dudas to receive the president's nomination as director, and many said Dudas already is running the agency. On Monday, he gave the keynote address at the agency's "PTO Day" and has represented the office on various recent occasions.

At the Dec. 2 dedication of the new PTO headquarters in Alexandria, Va., Dudas served as master of ceremonies and thanked the audience for attending the ceremony, signaling the opening of the first of five buildings the agency ultimately will occupy. Commerce official Sam Bodman referred to Dudas and Rogan as "managing the U.S. PTO."

"Jim Rogan is the director who has put PTO reform on the Washington agenda, and that is a major accomplishment," said Herb Wamsley, executive director of Intellectual Property Owners Association (IPO).

Rogan's new fee proposal is dubbed the "21st-century strategic plan" and was revised after initial objections by patent owners. The plan is embodied in a bill, H.R. 1561, and as approved by the House Judiciary Committee, that bill would take PTO out of the annual appropriations process.

"[Rogan] developed that [plan] and promoted that within the government, on Capitol Hill, in the private sector, and it is very widely supported," Wamsley said. "The 21st Century Strategic Plan is PTO reform, and he is the person who did that."

Dudas, who has served as Rogan's deputy since January 2002, was the counsel for legal policy and senior floor assistant to House Speaker Dennis Hastert, R-Ill. He previously served as deputy general counsel for the House Judiciary Committee and as counsel on then Courts and Intellectual Property Subcommittee.

He also practiced law in Chicago at Neal, Gerber & Eisenberg, and earned a law degree from the University of Chicago. Dudas was traveling and unavailable for comment.

"To me, the interesting question is how much [Dudas] is tied to the plan," said another attorney close to PTO. "Or how much does he have to divert from the plan because of the overwhelming funding realities?"

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White House chastised for use of security technology

Drew Clark — Tue, 02 Dec 2003 00:00:00 -0500

"They have not yet taken advantage of technological expertise" available in this country, said Zoe Baird, president of the New York-based foundation. "The government can set up a network that improves our ability to prevent terrorism and protect civil liberties."

After articulating nearly a dozen perceived weaknesses in current information-sharing systems, the group suggested the creation of a System-wide Homeland Analysis and Resource Exchange (SHARE) Network designed to couple Silicon Valley know-how with low-tech law enforcement and intelligence databases.

Markle also urged greater clarity from the administration about the proper delineation of responsibilities between the Terrorist Threat Integration Center (TTIC) overseen by the director of intelligence and the Homeland Security Department, and the foundation said privacy principles must be incorporated into any new intelligence network.

The recommendations came from a report issued Tuesday by the foundation's task force on national security, which Baird co-chaired with James Barksdale, a venture capitalist and former CEO of Netscape. An October 2002 report from the task force said better information sharing is necessary to fight terrorism.

The second report was more critical of the administration. It recommended how to change course on distributing intelligence information, implementing computer systems and reorienting the nation's approach to privacy. The members of the task force also said that President Bush should issue an executive order establishing their proposed network as a way to better share information within the federal government and with state and local governments.

"There is a deep belief [in the tech community] that [technology] can be enormously valuable" in combating terrorism, said Eric Benhamou, chairman of 3Com and Palm.

But for the concept of the SHARE network to work, "there has to be strategic implementation from the top," he added. Even more important are "a sense of urgency and a set of clearly stated values that help the rest of the strategy be implemented more crisply."

The report repeatedly contrasted the "Cold War intelligence architecture" or the world of computer mainframes with the decentralized and distributed model for information handling that has been seen on the Internet. Baird said the new homeland security model "needs to be decentralized, with information to and from" intelligence-collection agencies.

"Centralized analysis of information alone is inadequate," said Baird, who was President Clinton's first choice for attorney general.

"We really need to have the right organizational construct that requires sharing to take place where it is not taking place today," said Michael Vatis, executive director of the task force and a Clinton administration cyber-security official. He criticized Bush's decision to create the TTIC and said it created confusion among state government officials.

"Who has responsibility for developing actionable intelligence?" he asked. "That confusion between [Homeland Security] and TTIC and their roles needs to be clarified."

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Pentagon panelists want to study entire privacy 'iceberg'

Drew Clark — Mon, 24 Nov 2003 00:00:00 -0500

The panel was created to study the Terrorism Information Awareness (TIA) project, which called for "mining" commercial databases for information on potential terrorists. But John Marsh, a member of the eight-person board chartered in February, said TIA is "just the tip of the iceberg."

Congress subsequently killed the funding for TIA, but Defense Secretary Donald Rumsfeld instructed the committee to continue holding hearings and to present a report on privacy and data-mining issues to the Defense Department and Congress. Marsh, a former Army secretary, said the committee needs to articulate a "national policy on surveillance technology and privacy" regarding the actions of government.

He and other TAPAC members debated the approach they should take to producing their report after taking testimony in their final two-day meeting last week. The committee members listened to Sen. Ron Wyden, D-Ore.; former Virginia Gov. James Gilmore, a Republican; Rep. Jerrold Nadler, D-N.Y.; and current Defense officials and former Justice Department officials.

"[T]he thing that struck me most of all was the sense that the Congress is struggling with the same hard issues we are and is looking for us to help," said Newton Minow, a former FCC chairman at Sidley and Austin who chairs TAPAC. "That is a very big responsibility."

In an interview, Minow said he hopes the committee will finish its report within six weeks, even though it is not due until February. Defense allotted $200,000 to TAPAC and appointed Lisa Davis, an assistant deputy undersecretary at Defense, as executive director. Minow also has hired Fred Cate, an Indiana University privacy law expert who has frequently opposed legislative restrictions on the private sector's use of commercial data, to help write the report.

Gerhard Casper, a law professor and president emeritus for Stanford University, agreed with Marsh that the committee must go beyond TIA. "That tip has been cut off, so we are left only with the remainder of the iceberg," Casper said.

Casper also referred to "an ocean of an almost unlimited number of floating icebergs, each of them databases" with implications for privacy and national security. He said that he had come to the conclusion it would be impossible to reach conclusions about data mining by the government without also addressing commercial uses of databases.

"Once we get into the area of private collection of technology, we change the dynamics of the discussion in a very serious way," committee member Floyd Abrams objected. "When we talk about private parties' use of lawfully obtained information, then we are intruding into an area that has significant First Amendment protections."

Other committee members include: Zoe Baird, director of the Markle Foundation; Griffin Bell, a former U.S. attorney general and appeals-court judge; William Coleman, a former chairman and CEO of BEA, an infrastructure company; and Lloyd Cutler, a former White House counsel.

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Privacy experts differ on merits of passenger-screening program

Drew Clark — Fri, 21 Nov 2003 00:00:00 -0500

At an afternoon debate hosted by the National Academy of Sciences, Paul Rosenzweig of the Heritage Foundation said the Homeland Security Department's new Computer-Assisted Passenger Pre-screening System (CAPPS II) serves a worthy goal.

"It doesn't seem reasonable that the tools used to issue a credit card shouldn't be used to try to find out if I am a terrorist attempting to fly the airplane into the Pentagon," said Rosenzweig, a senior legal research fellow at Heritage's Center for Legal and Judicial Studies.

Cedric Laurant, an international privacy expert from the Electronic Privacy Information Center (EPIC), countered that it is more effective to match bags to passengers and have airport screeners randomly screen travelers boarding flights.

"Robotic profiling is mainly used in the U.S.," Laurant said. "Other countries use human security screening," he said, citing the success that Israeli security guards have had in keeping terrorists from crashing flights of the El Al airlines.

Citing a commission headed in the late 1990s by then Vice President Al Gore, Laurant said, "mandatory passenger bag-matching on all flights was the single-most important step that could be taken." Airlines have resisted that demand as too costly and pushed for the initial version of CAPPS.

Homeland Security and its Transportation Security Administration currently are designing that system's successor, and they intend to require all airlines to obtain the names, birth dates, home addresses and home telephone numbers of every passenger. That information will be used to conduct background checks on all flyers.

Rosenzweig said any privacy lost from CAPPS II must be balanced against the privacy sacrificed under the current system. He referred to an incident in which a federal judge's belongings were upended in his presence before passage on a recent flight.

CAPPS II would have flagged her as a federal judge and not subjected her to such intrusive screening, Rosenzweig said. "There are different types of privacy out there," he said. "It is not all just electronics, and she would have traded a little bit of her electronic privacy for personal privacy" in that instance.

Laurant criticized Homeland Security for failing to assure the European Union that it will not use the more extensive data that the U.S. government collects about all passengers on foreign flights for more than anti-terrorism.

"The Americans do not see that it is important not to use data for secondary purposes later that is not related to the original purpose for which the data was collected," Laurant said. "The EU is trying to comply with the most important privacy law in Europe: the data-protection directive."

But Rosenzweig also conceded he is troubled by Homeland Security's July decision to extend CAPPS II to cover crimes beyond terrorism. "That is something that is ill advised," he said.

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Defense officials lament lost data-mining opportunities

Drew Clark — Thu, 20 Nov 2003 00:00:00 -0500

One halted program involves attempts to identify suicide bombers attacking U.S. interests overseas. Deputy Defense Undersecretary Sue Payton said such restrictions were "absolutely" a significant impediment in failing to prevent Thursday's suicide bombing in Istanbul, Turkey.

Another top official shed light on the airline-passenger profiling system that an Army contractor developed with personal data from JetBlue Airways. Using an hypothesis developed by studying the data, the project identified terrorists with 83 percent accuracy, said Thomas Killion, the Army's chief scientist and acting deputy assistant secretary for research and technology.

But as a result of privacy concerns raised by the use of the data without customer consent, the Army's inspector general is investigating the matter, Killion said. "We are not pursuing additional applications partly because of privacy" concerns, he said in an interview.

Payton outlined elements of a program that she has supervised in her department-wide position responsible for advanced systems and concepts. The program aims to assemble information on potential suicide bombers by weaving together intelligence information from Defense commands with that from international police organization like Interpol.

Floyd Abrams, a First Amendment lawyer and member of TAPAC, asked Payton how Defense activities outside the United States would be circumscribed by privacy concerns about U.S. citizens. "If we uncover the name of American citizens involved, or coincidentally associated with a terrorist, we would have to be able to figure out how to handle that information on the U.S. citizen, even though the primary [names] in the database are not of U.S. citizens," Payton replied.

She said that "what happened in Istanbul" would have provided "dots" to connect information leading Defense officials to thwart other bombings -- "who is in buildings, what are the financial records, what are people buying, what is the movement in and out of certain facilities by people."

"I have been told to put this on hold because there was a big of fog about what we were allowed to do in this department," she said. "I do lose some sleep over this."

In addition to building a model for analyzing potential terrorism, the Army's passenger-profiling project also succeeded in segmenting many JetBlue travelers into five groups: "short-trippers" (15 percent), "short notice/short stay" (25 percent), "high spenders" (17 percent), "stranded" or frequent one-way travelers (23 percent), and "non-descript" (20 percent).

The profiles emerged from linking 2.2 million trip records with demographic data assembled by Acxiom, Killion said. The Army does not have the data, and he told the committee that he does not know whether the contractors deleted it.

Although all the programs associated with TIA were de-funded by Congress, TAPAC has been instructed by Defense Secretary Donald Rumsfeld to continue its efforts because of continued interest in the privacy implications of data mining, committee Chairman Newton Minnow said.

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Security official details screening process for air travelers

Drew Clark — Thu, 20 Nov 2003 00:00:00 -0500

The data assembled for the Homeland Security Department's Computer Assisted Passenger Pre-screening System (CAPPS II) will not be accessible because of a technology that allows database companies to read but not copy passenger data, said Steve Thayer, deputy director of the Office of National Risk Assessment (ONRA).

The program has been slowed by privacy concerns, and Homeland Security officials have said they will not proceed with CAPPS II until it issues regulations subject to a Privacy Act notice.

Thayer, testifying before the Defense Department's Technology and Privacy Advisory Committee, said ONRA is testing the system and hopes to have it running by the end of March. He said ONRA is developing CAPPS II.

"Commercial companies can only read but not copy the information," Thayer said. "In effect, there is no record" of the passenger names, addresses, phone numbers and dates of birth that travelers would have to provide to airlines when they purchase tickets.

As CAPPS II previously has been described, that personal information would be passed to commercial companies like ChoicePoint or LexisNexis, who would run the information through their databases to verify the identities of travelers.

Using algorithms to be determined by ONRA, the database companies would return scores to group passengers into "green," "yellow" or "red" categories. Green passengers would be cleared for travel, yellow passengers would be searched more thoroughly, and red passengers would be blocked from boarding airplanes and could be arrested.

But Thayer said data collected by the system could not subsequently be used by law enforcement agencies to track individual travel patterns because of advanced technology called Radiant Trust designed by Lockheed Martin.

"We use the data to authenticate [the individual] by comparing that information with that which is contained in a commercial data source," Thayer told the advisory committee. "The commercial data is never revealed to the government. It stays on the other side in the commercial database."

Similarly, the database companies could not glean insights about customers' travel patterns because of the use of Radiant Trust. "Technology also allows us to ensure that the [database companies] cannot use the names or the information that we provide to them," he said.

Thayer, the former executive director of the American Conservative Union, also commented on the ongoing negotiations between Homeland Security and the European Union over what information foreign airlines must give the U.S. government about incoming passengers.

"I just returned from four days in Brussels," he said. "As a person who has been very involved in privacy for many years, I think we have a lot of common ground."

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Witnesses haggle over anti-terrorism law provisions

Drew Clark — Tue, 18 Nov 2003 00:00:00 -0500

In testimony before the Senate Judiciary Committee, five nonprofit groups derided either the anti-terrorism law, passed six weeks after the September 2001 terrorist attacks, or post-attack actions of the Bush administration, such as the detention of immigrants.

Committee Chairman Orrin Hatch, R-Utah, continued to express strong support for the USA PATRIOT Act and toughly questioned the civil-liberties advocates. But Hatch said he joined ranking member Patrick Leahy, D-Vt., in giving the law's critics an opportunity to voice grievances.

Some critics -- including former Rep. Bob Barr, R-Ga., Center for Democracy and Technology Executive Director James Dempsey and Nadine Strossen, president of the American Civil Liberties Union -- said they belong to a diverse coalition that supports "reform" of the act.

Strossen appealed to the relationship that her organization built with Hatch 11 years ago in supporting a law that sought to protect religious freedom, and referred favorably to a current bill, S. 1709, introduced by three committee members: Sens. Larry Craig, R-Idaho; Richard Durbin, D-Ill.; and Russell Feingold, D-Wis.

"None of these modest reforms would interfere with the powers that [Justice officials] have said are necessary to protect us from terrorism," Strossen said.

The measure would require federal agents to meet a higher standard in foreign intelligence investigations before obtaining electronic or physical records stored by libraries and businesses. It also would require delayed notice of "sneak and peek" searches after seven days, and would force law enforcement to specify the targets of their "roving wiretaps."

Two former Justice officials defended the provision for nationwide court orders and fewer restrictions on information sharing among prosecutors and intelligence agents. "The speed and efficiency [of anti-terrorism investigations] was compromised by administrative impediments imposed by antiquated laws" before enactment of the PATRIOT Act, said Robert Cleary, a former U.S. attorney in New Jersey.

As an example, Cleary cited the ability for investigators in New Jersey to obtain warrants for e-mail from subscribers of the free e-mail service Hotmail without having to detail agents to other parts of the country.

Georgetown University law professor Viet Dinh, former head of Justice's Office of Legal Policy and a key drafter of the legislation, also defended the law. In particular, he cited the significance of the change permitting prosecutors to direct foreign intelligence investigations, something barred for years.

Strossen said the provisions defended by Cleary and Dinh demonstrate that "the government remarks are saying, 'We can do a better job by this power,' and the civil libertarians are saying, 'We object to these other powers.'"

But Strossen and Cleary found a point of direct difference when Cleary defended the expansion of sneak-and-peak searches under the act while Strossen attacked it.

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TSA not collecting passenger data for screening system

Drew Clark — Mon, 17 Nov 2003 00:00:00 -0500

"At this time, there is no current testing, and there are no airlines currently working with the TSA [Transportation Security Administration]" to provide data for the Computer-Assisted Passenger Pre-screening System (CAPPS II), Nuala O'Connor Kelly said.

The privacy officer for Homeland Security also said she is investigating whether employees of the airline JetBlue, TSA or the Transportation Department acted improperly when the airline passed personal passenger information to an Army subcontractor. O'Connor Kelly said she plans to conclude her investigation by the end of the year, and she added that the head of the TSA is "working with the airlines" on other security regulations.

The CAPPS II system under development by TSA would require every passenger to provide names, addresses, telephone numbers and birth dates to their airlines, which then would pass the data to a private-sector contractor for a background check and an identification score to the TSA.

But O'Connor Kelly said the contractors participating in the system would not be exempt from existing privacy law. "I have heard time and time again that there will be a loophole for private-sector actors with CAPPS II or other federal actions," she said. "That is absolutely not the case. Those contractors are bound" by the same terms of the 1974 Privacy Act as the federal government would be if it had collected the information itself, she said.

In a wide-ranging speech about the role of privacy in American law and in current practice, O'Connor Kelly said it is important to "embed privacy as a value and as a structure" within the new department. She was appointed to her position in April, the first congressionally mandated privacy officer in a Cabinet department.

O'Connor Kelly said she attempts to steer a middle course between the demands of privacy and security. "Fear of government abuse of information is understandable, but we cannot let it stop us from using what is right" or necessary to combat terrorism, she said.

She said she had to send some potentially invasive proposals back to the drawing board. Although she declined to identify the Homeland Security agencies involved in those plans, she said that on one occasion she "sent the thing back and said, 'Nope, try again.'"

"What I am heartened by is that no one has ever said no" to her demands, O'Connor Kelly added.

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Senators see momentum to limit anti-terrorism powers

Drew Clark — Tue, 21 Oct 2003 00:00:00 -0400

Momentum is building in the Senate for revisions to a law enacted after the Sept. 11, 2001, terrorist attacks that enhanced the government's surveillance powers, supporters and critics of the law said on Tuesday during an oversight hearing.

Three Democrats and one Republican on the Senate Judiciary Committee said they want to limit the surveillance elements of the law, dubbed the USA PATRIOT Act. The law also permits the detention of immigrants and monitoring of financial transactions for money laundering.

Democrats Richard Durbin of Illinois and Russell Feingold of Wisconsin, who co-sponsored a bill to curb three surveillance powers, questioned three Justice Department witnesses about the measure. The primary sponsor is Idaho Republican Larry Craig.

In addition to Craig, Democrat Patrick Leahy of Vermont also urged changes in the PATRIOT Act. He said he has bipartisan support for a related bill that would extend the four-year time limit on the surveillance powers in the law to more provisions that impact privacy and civil liberties.

Sen. Edward Kennedy, D-Mass., said the Bush administration "rides roughshod over the basic constitutional principles of the First, Fourth, Fifth and Six Amendments in order to meet the needs of law enforcement, and then insist[s] that a Second Amendment 'right' to bear arms prevails" over crime-fighting needs.

Democratic supporters of the PATRIOT Act said Attorney General John Ashcroft needs to cooperate with Congress. "The department has been less and less willing to share basic information about its activities," said Sen. Joseph Biden, D-Del.

"The administration stands to squander the new tools that this body reluctantly passed," he said. "I predict that the act will be repealed if you don't get your act together."

Kennedy, Biden and Leahy criticized Ashcroft for failing to appear at the oversight hearing and instead "barnstorming the country" to defend the PATRIOT Act and criticize the press and advocacy groups for "hysteria" about the law.

But committee Chairman Orrin Hatch, R-Utah, said Ashcroft has agreed to attend a subsequent oversight hearing and was not invited to Tuesday's, which featured Christopher Wray, head of the criminal division at Justice, and the U.S. attorneys in Chicago and Alexandria, Va.

Hatch defended the PATRIOT Act, as did Republicans Jon Kyl of Arizona and John Cornyn of Texas, and Dianne Feinstein, D-Calif. Hatch said the statute helps law enforcement combat terrorism, illegal drugs, obscenity and child pornography.

Hatch said a more limited anti-terrorism law passed after the Oklahoma City bombing in 1995 disappointed him because "some on the far right and far left prevented us from getting some of these tools that might very well have saved thousands of lives."

Asked by Kyl what provisions of the PATRIOT Act had proved most useful, Wray cited nationwide court orders, the ability for law enforcement to share information with intelligence agents, and the ability to obtain the e-mail addresses sent from and to suspects.

Feingold said he supports those powers but seeks to curb other, more objectionable provisions of the law.

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