BlackBerry users in a jam
- By Rob Thormeyer
- Dec 12, 2005
Feds face the (remote) possibility that a patent suit could put the lid on their beloved handhelds
'My dog hates it. Whenever it vibrates, the dog barks and I throw pillows at the device.'
'GSA's David Drabkin
J. Adam Fenster
Kim Nelson doesn't want to consider the possibility. In fact, the outgoing CIO at the Environmental Protection Agency won't even answer the question.
'We don't want to think about that,' she said.
That would be the shutdown of the immensely popular and highly addictive BlackBerry handheld devices and wireless network that let users check e-mail from anywhere, anytime.
The threat is raised by a complicated patent-infringement case between BlackBerry developer Research in Motion Ltd. of Waterloo, Ontario, and a patent holding company, NTP Inc. of Arlington, Va., which claims RIM has infringed on its patents. And it has some federal executives chewing the nails on their overused BlackBerry thumbs.
While industry analysts say they think a deal will be reached and a shutdown averted'and RIM claims government users could be exempted even if there is a shutdown'the case nevertheless has the potential to be disruptive. NTP's suit calls for RIM to end sales and support of BlackBerrys in the United States.
The Justice Department has intervened, sending a statement of interest last month to the 4th Circuit Federal Court in Richmond, Va., that is hearing the case outlining the government's concern that a prolonged shutdown'even if the feds are somehow exempt'could harm vital communications.
Over the past four-plus years, BlackBerry devices'sometimes called 'CrackBerrys' because of their addictive power'have permeated the government landscape. Few people can remember the last time they walked into a congressional hearing or industry conference without seeing attendees with their heads down and thumbs plucking away at the tiny keyboard.Master's voice
The device is so ubiquitous that one government official reports seeing men use them in the men's room, while another said he has to take special steps to keep his dog from burying it in the backyard.
'My dog hates it,' said David Drabkin, deputy chief acquisition officer at the General Services Administration. 'Whenever it vibrates, the dog barks and I throw pillows at the device.'
Nelson said she uses her BlackBerry constantly and considers it 'one of the greatest things to ever come down the pike.
'As a working mother with two teenage girls and a hectic schedule between school and activities and doctor's appointments, it gives me the freedom to do what I need to and not feel guilty about being away from the office,' Nelson said.
'My BlackBerry serves as an electronic leash to my office,' one Capitol Hill staff member said. 'The downside of that is that you never really leave work at the office. But the upside is that some nights I can leave work at a reasonable hour, have dinner at home, and return e-mails later that evening on my BlackBerry.'
But that freedom could be jeopardized as the patent case heads into a critical phase.
On Nov. 30, U.S. District Judge James Spencer threw out a proposed settlement between RIM and NTP, claiming the deal was unenforceable. This could pave the way for a potentially fast-tracked hearing on NTP's request for an injunction against BlackBerry usage until the parties reach a new deal. Meanwhile, the Patent and Trademark Office is deliberating on whether any of a handful of NTP's patents were infringed by RIM, said NTP attorney James Wallace of Wiley, Rein and Fielding LLP of Washington.
At press time, Spencer had not established a time for the injunction hearing.
A PTO spokeswoman could not give any estimate on when it will act on the remaining patent infringement allegations'most experts believe it could be months'and a RIM spokeswoman would only say that the company has a work-around plan that will somehow keep the network operational during a prolonged outage.
And to make matters more complicated, federal, state and local governments, as well as first responders, will somehow be exempt from any injunction, although, again, RIM is offering no details of how this can be done.
Wallace said it would be fairly easy for RIM to keep government officials online, noting that each BlackBerry has a unique personal identification number that lets RIM and its carriers know which devices are governmental.
'This way, if you purchase a new BlackBerry from, say, T-Mobile, it can notify RIM that your new PIN number is an active account,' Wallace said. 'By the same token, if you default on your monthly payments, T-Mobile can tell RIM you are a deadbeat and that your account is no longer active.'
But Justice attorneys said in the brief that the process is not so simple. In an early November filing, they told the court that there is no 'simple manner in which RIM can identify which users of BlackBerrys are part of the federal government.'
Although RIM has provided no definitive numbers of how many government users it has, several industry experts said the company has between 300,000 to 500,000 federal BlackBerry subscriptions.
RIM, Justice said, 'does not maintain a listing of e-mail addresses associated with government users, so that one might attempt to segregate addresses that end in .gov or .mil. Rather, RIM relies upon a PIN as a means of uniquely identifying every BlackBerry device. Thus, there is no simple way in which federal government users can be easily identified to assure that their service is not being cut off along with commercial users.'
Perhaps the only way to determine what BlackBerrys are federal property is to create a 'whitelist' documenting all federal users that would be exempted by an injunction, Justice said.Substantial challenges
Of course, doing this 'raises some substantial challenges that cannot be instantly surmounted,' Justice attorneys said, and requires a lot of time, energy and judgment calls on whether devices owned personally but used for work can be considered government property.
Moreover, the government does not maintain a central agency for purchasing and deploying BlackBerry units, making this job even harder to complete, Justice attorneys said.
One obvious place to start seems to be the General Services Administration, which runs the Federal Acquisition Service schedules. But a GSA spokeswoman could not provide any details on how many BlackBerry devices agencies purchase from the schedule.
But will a shutdown even occur?
Wallace, the NTP attorney, and other observers believe the case will be settled, with RIM doling out millions. At press time, RIM officials said they were negotiating with NTP through a court-appointed mediator.
Noting that RIM receives about $650 million in net revenue each year, Alan Webber, a senior analyst at Forrester Research Inc. of Cambridge, Mass., said the company will not be financially burdened by any settlement.
'The odds of BlackBerry being shut down are 1 in 100,' Webber said.
And if there is a shutdown, not all feds are worried. While Dave Marin, a spokesman for the House Government Reform Committee, jokingly said that without BlackBerrys, 'life would cease to exist,' some government officials said life existed before the wireless handheld, and it will surely exist after.
'BlackBerrys really broaden our capabilities, but at the end of the day, it's an implement,' said Sam Mok, the Labor Department's chief financial officer. 'It's an instrument. We'll live; the world won't come to an end.'
Even contractors who might be cut off from their federal counterparts played down any major communication disruption if they are knocked offline.
Although BlackBerrys provide a 'critical link for us in the industry,' said Alan Chvotkin, senior vice president and counsel of the Professional Services Council, most of the communicating comes from the federal side.
'More information is flowing out [of the government] than is flowing in,' Chvotkin said.