Clips November 3, 2003

[Lillie Coney <lillie.coney@xxxxxxx>]

Clips November 3, 2003

ARTICLES

Web patent critics spotlight old technology
Lawmaker gives thumbs-up to RIAA clampdown
MIT stops the music
As courts move into wired world, new legal problems arise
Chinese government hits difficulties with Internet crackdown
Ensuring liability protection
Agencies eye Web privacy

*******************************
CNET News.com
Web patent critics spotlight old technology
Last modified: October 31, 2003, 1:04 PM PST
By Paul Festa 
Staff Writer, CNET News.com

The Web community is rummaging desperately through dusty technology
archives, in a bid to overturn a sweeping patent verdict that could force
major changes on the Internet's most popular software products. 

Companies and standards bodies are hoping to unearth technology that
predates the patent and performs essentially the same functions--a legal
concept known as "prior art." 

If Web technologists can find the right example, they believe they can
help set aside a federal jury's recent finding that Microsoft had
violated a patent held by tiny Web developer Eolas Technologies. The
so-called '906 patent describes a way that a Web browser can call up a
separate application from within a Web page.

Prior art has been key to the case since its inception, but the issue is
once again on the front burner, after an unusual filing by the leading
Web standards body this month to the U.S. Patent and Trademark Office.
The filing, from the World Wide Web Consortium (W3C), asks the USPTO to
re-examine the Eolas patent in light of HTML+, which is technology
previously considered by the judge in the Eolas case as potential prior
art but barred from evidence at trial. 

"In view of the invalidity of (Eolas') claims and the considerable
adverse impact the '906 patent will have on the larger World Wide Web
community, a Director-initiated re-examination is appropriate," the
W3C said in its Oct. 23 filing. 

Eolas gained international attention with its $521 million patent
infringement victory over Microsoft, a judgment that has focused the
attention of the software industry in a way few other patent cases have.
Microsoft has already detailed plans to change its Internet Explorer
browser, which could force countless Web developers to rewrite their Web
pages. 

Fear of the implications of the patent has inspired vendors of plug-in
technologies--including Macromedia and Sun Microsystems--and Microsoft's
direct competitors in the browser market to rush to Microsoft's defense.

The case has brought together not only people who are professionally
dependent on Internet Explorer and the way it handles plug-in
applications, but also entities--activist groups, companies and standards
bodies alike--that have taken up a philosophy that is restrictive of
patents, if not outright hostile to them. 

The W3C, for one, recently underwent a lengthy, public and polarizing
re-evaluation of its patent policy, opting in the end to severely
restrict the use of patented technologies in its recommendations.

Calls to restructure the patent system led this week to recommendations
by the U.S. Federal Trade Commission that patents be made easier to
challenge--in part through changes to rules on the consideration of prior
art. 

Eolas this week lambasted the W3C for attempting to reopen arguments
about prior art with the patent office, calling the consortium's filing
politically motivated. 

"The W3C has a public policy against software patents," Eolas
founder Mike Doyle said in an interview. "And what they're doing now
is driven by their political agenda to fight against the whole concept of
software patents. It's clear that they're trying to circumvent the rules
to overturn a ruling by a jury in a federal lawsuit." 

Determinations about prior art are typically the province of lawyers,
judges and juries. But in this case--perhaps an indication of how
severely the Eolas patent has rattled the Web industry--seemingly
everyone is getting into the prior art act. 

Since the Eolas verdict in August, software engineers meeting in online
newsgroups have been digging through old technologies, in a somewhat
belated search for prior art. In September, Lotus Notes co-creator Ray
Ozzie issued a prior art call to arms, urging others to re-examine
decade-old applications and detailing ways in which Lotus Notes might be
relevant to the search. 

While Microsoft seeks to take its prior art claims back to court as part
of preliminary moves to appeal the patent verdict, the W3C has bypassed
the courts to argue its prior art case to the USPTO itself. 

The agency rarely revokes patents on re-examination, although such an
action is not unprecedented. In 1994, the USPTO rejected a patent for
multimedia search technology from Compton's NewMedia on re-examination.
Other examples include a patent covering advertisements on computer
displays that was rejected on re-examination in the midst of a dispute
over a screen saver featuring the Eveready Energizer bunny. 

The W3C--which in May reiterated a policy that all but bans the use of
patented technologies in its recommendations--did not return calls for
comment. Microsoft declined to comment for this story, citing the ongoing
status of the case.

But one W3C participant who testified in the Eolas patent trial on
Microsoft's behalf lauded the consortium's filing, given that the judge
disallowed testimony about prior art to the jury.

"My feeling was that we never got to argue whether there was prior
art," Dale Dougherty, a vice president of online publishing and
research at Sebastapol, Calif.-based publisher O'Reilly & Associates,
said in an interview this week. "At the end of the day, it's a
ruling by a court, and has more to do with procedural things than
anything else."

The refusal by U.S. District Judge James Zagel for the Northern District
of Illinois to allow evidence of prior art followed detailed examinations
of various technologies brought forward by Microsoft during the trial's
evidentiary hearing. These included the Viola browser, written by Perry
Pei-Yuan Wei, an artist, software engineer and then a student at the
University of California at Berkeley; and the HTML+ specification written
by W3C staff member Dave Raggett.

Unpicking prior art
Microsoft's attorneys have highlighted the Viola browser in their request
for a new trial. By contrast, the W3C bypassed the Viola software
altogether in its USPTO filing and concentrated instead on the Raggett
technology.

Raggett's HTML+ draft, according to the W3C, proposed a tag called
"embed" that would let a browser display, within its own
window, data rendered by another application. It also described a way in
which external editing applications could let someone interact with that
data, still within the browser.

The Raggett draft falls far short of prior art, Doyle 
contended.

"It is as if they are trying to completely ignore the elements of
the patent claims that require the embedded application to enable
interactive processing of the data while it is being displayed within the
Web page," Doyle wrote in an e-mail interview. "Raggett was
focused on a tool that would make it easier for a Web page author to
create static images for Web pages. Our invention, on the other hand,
transformed the end user's interactive experience, which was a paradigm
shift over what Raggett was suggesting."

Prior art comes in two types: anticipatory and obvious.

Prior art that anticipates a patent does so completely. That is, a single
piece of technology encompasses all the claims of the patent and predates
it.

Claims of obvious prior art, by contrast, pick and choose elements from
various products. They typically say that while there is no single
example that predates the patent in its entirety, all the parts of the
idea are in plain view. Putting them together is an obvious move, goes
the argument, not a patentable invention.

In addition to mounting an anticipation argument based largely on the
Viola browser, Microsoft also raised an obviousness claim, which the
court also declined to let the jury hear. With its filing to the USPTO,
the W3C raised its own obviousness argument, citing elements of the
Raggett draft and elements of the Mosaic browser (designed in part by
Marc Andreessen).

Patent proof
An attorney for Eolas said prior art defenses against the '906 patent
were wishful thinking.

"There's no good prior art against this patent," Martin Lueck,
an attorney with Chicago-based Robins Kaplan Miller & Ciresi, said in
an interview. "And wishing that there was doesn't make it so.
Microsoft can appeal the various rulings that the court made, but when
you get down to it, we don't believe there's any good anticipation
analysis, and they never proposed to the court or the jury a proper
obviousness argument."

Lueck gave the obviousness claim poor odds of succeeding either in
Microsoft's appeal or in the W3C's request for re-examination by the
patent office.

"If the invention is so obvious, why didn't the W3C think of
it?" Lueck asked. "They invented this that and other, so why
not this? Everyone wants to rail against the patent, but the W3C didn't
come up with it. Microsoft and Netscape didn't come up with it...It's
entirely fair that the patent owner and Eolas be compensated for the
extent of Microsoft's use of the invention in protecting its Windows
franchise."

Among Eolas' critics, Microsoft is the least committed to an antipatent
stance. With a formidable patent arsenal of its own, the company in some
cases has removed its technologies from the auspices of the W3C in order
to take them to standards organizations with fewer restrictions on the
use of patented technologies.

For many of Microsoft's defenders, however, the case against Eolas is a
case against software patents--a view that frequently surfaces in the
battle over prior art.

"The fundamental design and implementation of the World Wide Web,
which we all benefit from today, was not patented by Tim Berners-Lee and
many others who contributed separate inventions that became part of
it," Dougherty noted in an e-mail interview.

Dougherty, who testified on Microsoft's behalf in the trial, pointed to
the collaborative spirit of the Web's early development to explain why
legitimate instances of prior art were not considered.

"Unfortunately, the (Patent and Trademark Office) didn't have access
to a lot of the materials about the Web's early development, and Doyle
himself did little to call attention to projects like Viola which helped
advance the Web," he wrote. "I hope that the re-exam of the
EOLAS patent will cause the PTO to looker deeper into the available
sources and see that Doyle's claims are too broad, if not completely
inaccurate."

Doyle dismissed antipatent advocacy as the reflection of Microsoft's
corporate public relations strategy, and defended the use and fairness of
software patents.

"There are a number of cases in point where companies like Microsoft
essentially cloned other people's innovations, and they had no
recourse," Doyle said. "A lot of the public sentiment you're
hearing now is the result of a well-funded public relations campaign. And
I think that people are reacting to that very carefully crafted PR
message without considering the fact that the patent laws are there to
protect the little guys against the theft of their ideas by large,
powerful, well-funded companies."
*******************************
CNET News.com
Lawmaker gives thumbs-up to RIAA clampdown
Last modified: October 31, 2003, 3:20 PM PST
By Declan McCullagh 
Staff Writer, CNET News.com
The head of the U.S. House of Representatives panel that oversees
copyright law on Friday applauded the music industry's recent lawsuits
against peer-to-peer file swappers. "The legal action taken by the
recording industry is necessary to protect intellectual property rights
from being violated," said Rep. Lamar Smith, R-Tex., chairman of the
Subcommittee on Courts, the Internet and Intellectual Property. 
In his remarks to the American Intellectual Property Law Association,
Smith also said peer-to-peer networks permit "the widespread and
massive distribution of digital music, movies, and software files."
The remarks come one day after the Recording Industry Association of
America filed 80 more lawsuits against alleged copyright infringers,
bringing the total to 341. They also signal his continued support for the
Digital Millennium Copyright Act's controversial subpoena process, which
Verizon Communications and privacy advocates had hoped that Congress
might modify.
Article on the 80 lawsuits
http://news.com.com/2100-1027-5099738.html?tag=nl
*******************************
Boston Globe
MIT stops the music
Legal problems cloud future of MIT's cable music network
By Hiawatha Bray, Globe Staff, 11/1/2003

The Massachusetts Institute of Technology has shut down a much-heralded
campus music network that was supposed to provide a legal alternative to
unauthorized file-swapping software.

The MIT LAMP (for Library Access to Music Project) network, although not
a download service, was to have offered thousands of popular tunes over
the school's cable television network, in an arrangement that MIT
officials had believed was legal under US copyright law.

But this week, the school was informed that the music files that it had
purchased for about $30,000 from Seattle-based Loudeye Inc. could not be
legally used for this purpose.

Loudeye sells digital copies of music from major record companies. But
according to the Los Angeles Times, record company officials told Loudeye
that their contracts did not permit Loudeye recordings to be used on the
MIT network.

Loudeye informed MIT of the problem, and the school shut down the LAMP
network to avoid the possibility of a legal dispute with the record
companies.

"Obviously, this is disappointing to me," said Keith Winstein,
one of two MIT students who designed the LAMP network with a $60,000
grant from Microsoft Corp.

Winstein said that he hoped the network could be relaunched in a couple
of weeks, once questions about its legality were resolved.

Winstein, 22, a graduate student in electrical engineering and computer
science, and his co-creator, Josh Mandel, 21, a junior with the same
major, had hoped to avoid copyright conflicts with the recording industry
by using MIT's cable television system, which uses analog technology and
is thus unaffected by the tough federal laws governing digital music
streaming.

Although their network takes orders over the Internet, the music on LAMP
is played over the cable system. The creators, and MIT, had believed that
the arrangement neatly avoided the copyright issues that have plagued
online services like the original Napster and Kazaa. But last week's
objection from the music industry has called into question the school's
interpretation of copyright law.

Loudeye officials were at a board meeting yesterday and could not be
reached for comment.

MIT, though, issued a statement blaming Loudeye for the LAMP
shutdown.

"We have been working with Loudeye on obtaining content since
October 2002 and Loudeye assured us on multiple occasions that the
content they provided to us was prepared fully under authorization from
the record labels and on behalf of the publishers," the statement
said.

It also said that MIT is committed to introducing a legal version of the
service.

Hiawatha Bray can be reached at bray@xxxxxxxxxx
*******************************
USA Today
As courts move into wired world, new legal problems arise
By Dana Fields, Associated Press
November 1, 2003

KANSAS CITY, Mo.  Moving a state's courts into the online, high-tech
world is fairly straightforward. All it takes is money, time, and the
right people and equipment. 
But that's only half the task the nation's state courts are confronting.
The rest  for which no technical manuals or prewritten programs
exist  consists of anticipating and addressing the perplexing legal
issues that technology can create. 

Hundreds of judges and other legal personnel who came to Kansas City for
a national conference on court technology this week spent three days
tussling with such issues. A sampling: 

? If a state's online court database mistakenly lists someone as having a
felony conviction, is anyone responsible if an employer then denies the
person a job? And even if the record is fixed, is the person frozen in
cyberspace as guilty forever? 

? Should divorce records be posted online? On the other hand, why not?
And who decides? 

? Will someone who's been eluding a stalker avoid going to court over,
say, a small contract dispute because it will mean an automatic presence
in cyberspace? 

? If a crime victim never comes to court but testifies via a live video
hookup, is the defendant's constitutional right to confront the accuser
fulfilled? 

Few such questions were definitively answered during the National Center
for State Courts' eighth Court Technology Conference. But the 2,500
participants went home with some fresh guidance and plenty of food for
thought about the pitfalls  and promises  of adapting state
courts to high-speed communications. 

"Unfortunately, the legal system works at a slightly slower
pace," said Jim McMillan, a technology expert with the Williamsburg,
Va.-based national center. 

Some of the questions, such as remote-video testimony in criminal cases,
must be answered state-by-state as the situation presents itself. A few
hundred courtrooms around the country now have the technology, and
appeals from trials held in them are reaching higher courts. 

Other issues require states to make policy decisions as they put their
trial court records online. 

To assist them, chief justices and court administrators from around the
country have developed model guidelines on what to post, what to keep
only on paper and what should still be seen only by court personnel,
lawyers, and other parties such as law enforcement officers or social
workers. 

The model's recommendations include keeping Social Security numbers off
the Internet; making some records available only at a courthouse rather
than online; and leaving the addresses of domestic violence victims out
of online records. 

Missouri, which began connecting all of its courts and putting some
records online years ago, is among the few states that adopted their own
rules. The state's award-winning "Case.net" Web site now
contains searchable records from 33 of the 45 trial-level judicial
circuits. 

Searching the site yields selected facts on each case, such as the
parties' names, their birthdays (to distinguish them from people with the
same name), type of case, important dates and final disposition.

But some details, although they are public information, must still be
viewed the old-fashioned way, at the court clerk's office. That's a nod
to reality: Personal information about a minor child, for example, will
be seen by far fewer people at the courthouse than if it were posted on
the Web. 

"The law says that if you go into a courthouse and request a public
document, the clerks are required to give that out. But if something is
put online, everyone in the whole world can go query it," said Nancy
Griggs, court services director in Missouri's Office of State Courts
Administrator. 

In some circumstances, an online court record can be more than simply
embarrassing; it could cost someone a potential job. Some employers won't
hire convicted felons, so Missouri now deletes a felony charge from the
posted record once a person has been acquitted or the charge has been
dropped. 

"People with no felony convictions were being denied jobs because
employers didn't read the entire record and just saw the charges,"
Griggs said. "They didn't keep reading and see that the person was
never convicted."
*******************************
Associated French Press
Chinese government hits difficulties with Internet crackdown
Mon Nov 3, 3:41 AM ET

BEIJING, (AFP) - China's crackdown on free _expression_ on the Internet hit
difficulties after two high-profile cyber-dissident cases were forced
into the spotlight Monday -- one over lack of evidence and the other
after witnesses alleged police forced them to testify. 


Prosecutors bounced back to police a case implicating one of China's
youngest dissidents -- a student known as "Stainless Steel
Mouse" detained for posting essays calling for democracy on the
Internet. 


The case of Liu Di, 22, a psychology student taken into custody from her
Beijing Normal University dormitory last November, was returned to police
Friday due to insufficient evidence, said sources, including her family.


In the other case, an appeal trial of four Internet dissidents opened
Monday to decide if they deserved up to 10 years in jail for posting
their views on social issues online, relatives and a Hong Kong-based
rights group said. 


That case is seriously flawed because three key witnesses retracted their
statements used as evidence after they were released from detention,
claiming police had forced them to make the claims, said Frank Lu,
director of the Hong Kong Information Center for Human Rights and
Democracy. 


"The government will face more and more problems like this. There
are millions of people posting essays and comments on the Internet every
day, and many of them scold the government," Lu said. 


"If they want to seek out who put the essays online and prosecute
these people, it takes a lot of time and they also need some
evidence." 


But the government is finding, as with the case of the college student
Liu, that by arresting one person many more netizens end up criticizing
the government online. 


Liu's arrest stirred vocal opposition in Internet chatrooms, with many
people posting messages adopting "stainless steel" as part of
their online names. 


A growing chorus of dissidents and Internet activists has repeatedly
demanded her release with at least two people detained for their pains.


Liu herself had been vocal in seeking the releases of jailed
cyber-dissidents, including Huang Qi, a campaigner who sought to overturn
the official "counter-revolutionary verdict" on the 1989
Tiananmen democracy protests, and a group known as the "New Youth
Society." 


The four members of the society, Xu Wei, Yang Zili, Jin Haike and Zhang
Hongkai are involved in the appeal trial Monday. 


They were arrested in 2001 after posting a manifesto on the web pledging
to build a civil society based on democracy and law. 


Xu, a former journalist, and Jin, a young intellectual, were sentenced to
10 years in jail, while the two others received eight-year sentences, all
on charges of subversion. 


The Center's Lu's said the government realizes it faces a backlash if it
cracks down too hard on the Internet, something it sees as a tool to
drive economic growth, but also a dangerous venue for public _expression_.


"Some people in the government thinks further crackdown is
necessary, but others disagree," Lu said. 


Liu Di's grandmother, Liu Heng, meanwhile told AFP family members did not
want to get their hopes up that lack of evidence mean she could be
released. 

   



"We don't know if she will be released soon or if they will try to
gather evidence against her," Liu Heng said. 

"Of course we are worried. We have not been allowed to visit her or
talk to her on the telephone since she was detained." 

Lu said authorities may be concerned that sentencing her would lead to
unrest among college students. 

"College students tend to act as one group. Sentencing her could
ignite unrest in colleges," he said.
*******************************
Washington Post
Malaysians Test Limits of Press Freedom 
Government Pledge Not to Censor Internet Creates Opportunity for
Journalists 

By Alan Sipress
Washington Post Foreign Service
Sunday, November 2, 2003; Page A15 


KUALA LUMPUR, Malaysia -- First police raided the modest newsroom,
hauling away the 19 computers that journalists used to produce their
online report and put it beyond the reach of the country's stifling press
restrictions.

Two days later, the landlord informed journalists for the Web site,
Malaysiakini, that they were being evicted from their offices, tucked
down a narrow side street of buildings and apartment blocks, for
activities contravening the laws of the land.

Nine months later, Malaysiakini
(www.malaysiakini.com)
has recovered all but two of its computers and rebuffed the eviction
order. But the chief editor, Steven Gan, faces the prospect of three
years in prison on sedition charges for refusing to reveal the author of
an anonymous letter that criticized the government's affirmative action
policies for ethnic Malays. The letter referred to "the pernicious
politics of privilege that pervade Malaysia." 

In a country where newspapers rarely cross rulers, Malaysiakini has
offered up aggressive reporting and diverse opinions over the last four
years by taking advantage of the government's pledge not to censor the
Internet.

This guarantee, part of Prime Minister Mahathir Mohamad's bid to develop
the country as an international high-tech hub, inadvertently left
officials with a gap in the wall of media restraints. Reporters Without
Borders this year ranked Malaysia at 105 out of 166 countries in terms of
press freedom.

About three weeks ago, a senior government official warned that
Malaysiakini remained under scrutiny and would not be allowed to overstep
the freedom accorded cyberspace. The country's election commission
announced separately in July that it would monitor material circulated on
the Internet and by e-mail, tracking down and punishing those who discuss
"sensitive issues" ahead of the national vote expected early
next year. It was unclear what the commission considered to be
sensitive.

"The election is coming up and the government is worried that their
monopoly of truth can be challenged. They're basically trying to spook
everybody," Gan said in an interview.

Gan, 40, who has also worked as a freelance reporter in Hong Kong and
Bangkok, launched the Web site with a fellow Malaysian journalist during
a brief spring of political ferment around the 1999 elections to cover
backroom debates within the ruling coalition and its opposition. Since
then, the online report has chronicled developments in the case of Anwar
Ibrahim, Mahathir's former deputy, who was jailed five years ago after
challenging the prime minister, and recently explored a questionable
logging concession awarded to the ruling party. The letters column has
become a forum for freewheeling debate.

This vigorous coverage has been a prod to print media, which unlike
Malaysiakini need an annual license to publish. Aware of the online
competition, some newspapers now touch on subjects, such as judicial
nominations, that previously would have gone uncovered, according to
Mustafa Kamal bin Anuar, a communications professor at the Science
University of Malaysia. He said papers have also responded by enlivening
their pages with letters critical of official policies -- though within
clear limits.

But the situation remains tenuous. "The Malaysiakini raid serves as
a reminder that whatever freedom that is available on the Internet can be
fragile in Malaysia, particularly if that Web site becomes increasingly
interesting and critical," Anuar said. He noted that most who write
letters to the Web site decline to sign their names, underscoring the
continuing fear of official reprisal.

Malaysiakini's current troubles were provoked by a letter penned under
the pseudonym Petrof. The author attacked long-standing policies favoring
Malaysia's majority Malay community over the Chinese and Indian
minorities, drawing a comparison with the white-supremacist agenda of the
Ku Klux Klan.

The youth wing of the ruling party, the United Malays National
Organization, filed a complaint with the police. Days later, about 10
officers raided the newsroom. The deputy home minister, Zainal Abidin
Zin, explained at the time: "Where there are any parties committing
acts which are unjust against society, the government must act
responsibly to defend the rights of the people."

Gan and four members of his staff were subsequently interrogated at the
police station about the offending letter. Gan took responsibility for
publishing the letter but, citing journalistic ethics, declined to reveal
the identity or e-mail address of its author. After carrying off four
servers and 15 other newsroom computers, the police later returned all of
the equipment except for two of the servers, which they retained as
possible evidence.

But the raid shook the Web site's readers and contributors. "We got
a lot of e-mails from readers expressing concern that they didn't want
their employers to know they subscribe to Malaysiakini. There's quite a
lot of fear out there," Gan said. Letters to the Web site, which
usually number about 50 daily, dropped by half before eventually picking
up again.

The Web site continues to claim 50,000 hits a day.

It is unclear whether the long-expected resignation of Mahathir as prime
minister Friday will influence Malaysiakini's fate. Political observers
said, however, there is little reason to believe that his replacement,
Abdullah Badawi, will take a more liberal approach to the media until he
has consolidated his political position.

Gan, meantime, waits for word about whether he is headed for trial. A
home ministry official said last month that police had completed their
investigation of his Web site and turned their findings over to
Malaysia's attorney general for possible prosecution. 

"I will definitely fight it," Gan said. "It's an act of
intimidation, a kind of harassment. But at the end of the day, our
operation will continue."
*******************************
Federal Computer Week
Ensuring liability protection
DHS works to implement law designed to encourage new technologies
BY By Judi Hasson 
Nov. 3, 2003

Homeland Security Department officials plan to make it easier for private
companies to develop anti-terrorism technologies without the fear of
costly lawsuits. Now experts are asking whether the move will be enough
and whether it will work.

As DHS begins the process of limiting the liability for companies
developing potentially lifesaving technologies, the government still has
a long way to go to make the Support Anti-Terrorism by Fostering
Effective Technologies Act of 2002  better known as the SAFETY
Act  an effective part of the war against terrorism.

The law was passed primarily to encourage the development of new
technologies. Existing ones can be certified, but only under limited
circumstances.

There are other caveats. The liability protection does not cover
companies for damage caused by anti-terrorism tools when no terrorist act
occurred  for instance, when the technology causes environmental
pollution.

Although it is supposed to encourage innovation, the certification
process is daunting. DHS officials estimated that filling out the
application would take 108 hours. Some vendors say it could be more like
1,000 hours and requires a great deal of legal advice.

But small steps are needed to find new ways to fight terrorism, and
encouraging new technologies is one of them.

For example, some contractors who rushed to help victims of the Sept. 11,
2001, terrorist attack on the World Trade Center in New York City learned
the hard way that they exposed themselves to unnecessary liability
because no exemptions were in place, according to Rep. Carolyn Maloney
(D-N.Y.).

Maloney, a member of the House Government Reform Committee, which held a
hearing Oct. 17 on the SAFETY Act, said she wants to make sure private
companies can extend a hand without opening themselves up to
lawsuits.

"Just from New York City, we're still reeling from some of the
aftermath of really being supportive to the contractors who rushed to the
scene to save the lives of others, and now they're facing certain
liability issues when all they were trying to do was save the lives of
others selflessly," she said. 

In other cases, insurance has either been largely unobtainable or so
costly that companies do not want to develop the technologies or put them
on the market because they will never recoup their investments.

"It is hardly surprising that companies are unwilling to bet their
existence by developing and deploying services and products in this
uncertain climate," said Parney Albright, assistant secretary for
plans, programs and budgets at DHS. "This means that key
capabilities needed to secure the homeland may not be available for
deployment."

Rep. Henry Waxman (D-Calif.), ranking member on the committee, said the
law is weak and not about encouraging innovation, but providing
"absolute immunity" to defense contractors and other
manufacturers of anti-terrorism products.

"This act is ironically called the SAFETY Act, when in reality, the
only safety it provides is to corporate wrongdoers," Waxman
said.

But companies should have some accountability for a critical mistake,
according to Harris Miller, president of the Information Technology
Association of America.

"In these extreme situations?it's the only way we're going to get
these products to the government and protect the American people,"
Miller said.

DHS' liability coverage 

Homeland Security Department Secretary Tom Ridge signed an interim rule
last month that put the Support Anti-Terrorism by Fostering Effective
Technologies Act of 2002 into effect. The final rule will be issued by
the end of this year. 

Highlights include:

* The amount of liability insurance coverage is limited for each
technology. DHS officials will not require insurance beyond the point at
which the cost of coverage would unreasonably distort the price of the
technology.

* Vendors will be liable for the percentage of noneconomic benefits
proportionate to their responsibility for harm.

* Punitive damages are banned.

* Benefits may be given to plaintiffs who receive other awards, such as
insurance payouts.

Source: Federal Register
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Federal Computer Week
Agencies eye Web privacy
E-Gov Section 208 carries December deadline
BY By Michael Hardy 
Nov. 3, 2003

Agencies are meticulously examining their Web pages for weaknesses in
privacy protections, as Office of Management and Budget officials call
their attention to Section 208 of the E-Government Act of 2002.

Section 208 lays out rules and guidelines agencies must follow to protect
the privacy of citizens using government Web sites. OMB officials issued
a memorandum offering specific guidance on implementing the privacy
provisions in late September. Agencies must begin submitting annual
reports on their compliance with the privacy rules, and the first report
is due Dec. 15. 

The agencies are moving into high gear now, said David Grant, director of
accessibility solutions at Watchfire Corp., a company that makes software
tools including products for automating the privacy validation
process.

"Privacy was always a 'nice-to-have,' but there was never something
like this to enforce it," he said. "Agencies and departments
are all concerned."

Both Section 208 and OMB's September memo spell out clear rules that
agencies have to follow. The problem is that most agencies have Web pages
that predate those rules, sometimes by years, Grant said. Now they are
under orders to examine their older pages and bring them into
compliance.

The rules include some fairly standard practices that almost any Web site
will offer. Agencies must post privacy policies on Web sites used by the
public, for example, and must spell out in the policies what information
the site collects and how it is used. The policies must inform users when
they reveal information voluntarily.

However, the rules also define some limits on what federal sites can do
that agencies might have done in the past.

For example, agencies cannot use persistent cookies to track visitors.
Persistent cookies are small files that the site transfers to a user's
computer to identify visitors when they return to the site. But agencies
can use session cookies, which track a visitor's clicks through the site
and can temporarily personalize the site, but expire as soon as the
visitor leaves.

Agencies also have to submit privacy impact assessments to OMB  and
make them publicly available when purchasing new information technology
equipment  when making changes to their Web sites that could affect
privacy.

Sorting through all of the rules and ensuring compliance are daunting
tasks, but agencies are tackling them. Commerce Department officials are
working on updating all of their sites in time to meet the deadline, said
Tom Pyke, the department's chief information officer.

"The department's chief privacy officer is working with CIOs across
the department who are responsible for the privacy statements on Commerce
Web sites, to guide them as they update the privacy statements and make
any other changes that may be required by this guidance," he said.
"Commerce expects to be able to report to OMB in December 2003 that
these actions have been completed."

The Securities and Exchange Commission is undertaking a similar effort,
said spokesman John Nester. SEC staff members are developing plans for
reviewing the SEC site for policy statements and evaluating the
information technology systems that work with Web interfaces to determine
what information they collect.
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