ARCHIVED: Legislative and Regulatory Update - June 1996

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June 1996

Mary Alice Baish
Assistant Washington Affairs Representative
Georgetown University Law Library
111 G Street, N.W.
Washington, DC 20001
202/662-9200 *FAX:202/662-9202
Internet: baish@law.georgetown.edu

Important May Hearings to Focus on Copyright, LC and GPO

A trio of May Congressional hearings on federal information policy issues are of critical interest and importance. Bob Oakley will appear before the Senate Judiciary Committee to present the May 7th testimony on S. 1284, the NII Copyright Protection Act of 1995, on behalf of the Digital Future Coalition (DFC). This hearing had originally been scheduled for late March. The testimony includes draft language fixes for issues relating to fair use, first sale and preservation. In addition, new language has been added since the March draft to incorporate an exemption for distance education transmissions.

The Library of Congress is the focus of a Joint Committee on the Library hearing also on May 7th to respond to the GAO report mandated by Congress regarding LC's financial management and security problems. A Washington Post article earlier this week, based on the yet-to-be-released draft report's executive summary, revealed that the report questions LC's mission to serve the American public as "a sustained universal collection of knowledge and creativity." This is of serious concern since a narrowing of LC's mission could be viewed by legislators as a rationale for cutting the library's FY '97 budget request. We await official release of the GAO report and next week's hearing to draft a response to this unforseen and threatening development.

The Senate Rules and Administration Committee has just scheduled a May 22nd hearing to reiterate that committee's jurisdiction over the Federal Depository Library Program (FDLP) and any changes to Title 44. According to Minority Staff Director Kennie Gill, the hearing is timed to head off any attempt by the appropriating committees to make significant changes to the FDLP. Its purpose is to recognize the need for: 1) centralized management of the FDLP; 2) retaining the program within the Legislative Branch; 3) examining the procurement of agency electronic products as well as fee-based services; and 4) the role of NARA. ALA President Dr. Betty J. Turock will once more present our joint testimony. Unrelated to the timing of the Senate Rules hearing was the fortuitous postponement until early June of the GPO FY '97 appropriations hearing before the Senate Legislative Subcommittee. It will likely work to our advantage to have the Senate authorizing review precede GPO's appearance before the appropriations subcommittee.

GPO Study: Response to the Draft Report to Congress

Carol Henderson, Executive Director of the ALA Washington Office, presented oral comments on this latest draft on April 18th to a joint meeting of Advisors and Working Group members. Comments were also given on behalf of the National Commission on Libraries and Information Science, the Depository Library Council and the Information Industry Association. Linda Kemp, staff director of the Joint Committee on Printing, told me afterwards that we can expect to see the House version of draft legislative changes to Title 44 released for comment in August or September. Hearings would take place next spring. Our Washington Affairs Office drafted the April 26 comment letter to the Public Printer on behalf of AALL, ALA, ARL and SLA. We expressed gratitude that many of our earlier comments had been incorporated into this draft study. We also enumerated areas of continued serious concern: lack of data, long-term permanent access and preservation, copyright-like restrictions, agency fee-based products and services, and the role and responsibilities of both regional and selective depositories. (Reminder: All of our letters on the GPO Study and the Congressional testimonies noted above have been posted to Aaallnet.)

OMB Draft Legislation

On April 5th, the Office of Management and Budget sent draft legislation to Rep. Bob Livingston, Chairman of House Appropriations Committee, that serves as the executive branch's response to GPO's December Transition Plan. OMB strongly objects to GPO's assertion that a centralized model is needed in the distributed environment of electronic information. The draft seeks to limit GPO's procurement "monopoly" and centralized distribution system to print and microfiche materials only. It authorizes each agency's Chief Information Officer, a position mandated in the Information Technology Management Reform Act of 1996, to oversee that depository libraries receive tangible copies of electronic products, and access to agency online services.

GPO could "ride" an agency's contract for tangible products, such as CDs, but if agencies failed to notify GPO of such products, they would themselves have to pay the cost for the depository copies. Regarding fee-based electronic online services, agencies would make arrangements directly with depository libraries for access "in some suitable electronic format" to the information contained in electronic services, or would allow the Superintendent of Documents to reimburse the agency any fees necessary to provide the online service to depositories. A library's incentive to remain in the program--and indeed the raison-d'etre for the program to even continue to exist--will be the no-fee access to tangible electronic products and to agency fee-based services, along with whatever remains in the program in print and microfiche formats.

Bob and I, along with Carol Henderson (ALA), Prue Adler (ARL) and Tom Susman (ALA legal staff) recently attended a meeting with Bruce McConnell and others at OMB to discuss some of these issues. Of obvious concern is the question of who would assume responsibility for long-term access and preservation. Agencies cannot be forced to keep information on their web sites and clearly agency staff have little understanding of the life-cycle of information. OMB would like to develop strategic partnerships, including with libraries, to provide a distributed archive that would be similar to the Consortium of Law Schools' project with Circuit Court opinions. These partnerships would be formalized in contractual agreements and the government would have to provide incentives including funding. At this point, the OMB draft is circulating for comment and its future is uncertain.

Spring Depository Library Council/GPO Conference Meetings

Eager to express their concerns about GPO's draft report, approximately fifty AALL members attended these joint meetings April 15-18th here in Washington. The main issues of discussion focused on bibliographic access to electronic information and long-term permanent access. Council drafted twenty-some recommendations on issues relating to the draft study and revisions to Title 44. The COMA group also met one evening to discuss the tone of our joint response and debate the future of the program. In addition to the April 26th letter described above, COMA members including AALL's Susan Dow, Susan Tulis, Carol Moody and Dorie Bertram are drafting comments on several of the task force reports. I will be coordinating these comments into another letter to DiMario due in mid-May. Incidentally, the Fall '96 Council meeting will be held in Salt Lake City, Utah on October 21-24.

There was also an excellent choice of concurrent programs during the conference and fine presentations by representatives of several agencies, including NARA. Ted Hall, of NARA's Center for Electronic Records, said that his office identifies the 3-5% of agency electronic records that are worthy of preservation. The Center, housed in the spacious new Archives II facility in Silver Spring, Maryland, currently has 23,000 files from all three branches of government. Fynnette Eaton, Chief of the Center's Technical Services Branch, said that NARA's mission is preservation but also access. She described methods of reformation (recopying files every ten years) and noted that as part of disaster planning precautions, two copies are always made with one copy kept off-site. NARA strips all the "bells and whistles" to preserve the basic information in ASCII. In the Q & A regarding agency web sites, Fynnette noted that NARA is neither robust nor stable enough to do online transfers; this is where valuable information is now being lost, probably on a daily basis.

CIEC Lawsuit Update

The Department of Justice presented its case on April 12 and 15 and final closing arguments are scheduled for May 10. The two government witnesses were Dr. Dan Olsen, computer science professor at Brigham Young University, who testified on the technical issues of the CDA defenses and Special Agent Howard Schmidt, USAF Office of Special Investigation, who testified on access to sexually explicit materials on the Internet. Olsen testified that specially coded tags could be put on all sexually explicit material and proof of age would be required to access these materials. Schmidt testified that one can get around blocking software although he later admitted that children would not be likely to do so.

See You in Indianapolis!

Bob and I are very much looking forward to our Annual Conference and there are several programs at which we hope to "deliver the message" to all of you on activities of the Washington Affairs Office during the past year. Karen Schuh has graciously invited me back to speak at the Chapter Leadership Training on Saturday, July 20th. This will be a great opportunity to energize enthusiasm and support for our developing liaison program between the chapters and our office.

This is also the goal for the Tuesday afternoon "AALL Washington Affairs Office Liaisons Meeting" to be held from 5:15-6:30 p.m. on July 23rd. It will be an informal ice-breaker for us all, and I am very pleased that joining me in welcoming all of you will be Donna Bausch, Chair of the VALL Legislative Awareness Committee, to share their experiences in trying to get legislation passed for the funding of Virginia's public law libraries; Karen Schuh, wearing her NJLLA hat this time, to describe the chapter's involvement leading up to passage in January of the New Jersey legislative information Internet bill; and last but certainly not least, Judy Janes to tell us all about NOCALL's proactive role in drafting California's Senate Bill 1507 on public access to legislative history documents. Their experiences will inspire us all so please be sure to join us!

The annual GRC Legislative and Regulatory Update, coordinated this year by Tim Coggins and Steve Perkins, takes place on Monday, July 22nd, at 8:30 a.m. Bob and I will wrap-up the year's activities and offer some insights on what to expect during the remaining months of the 104th Congress. The Government Relations Committee is very excited that the guest speaker will be Judith F. Krug, Executive Director of ALA's Office of Intellectual Freedom, to update us on the CIEC lawsuit.

Two other important policy programs will be held on Tuesday afternoon, July 23rd. Bob will join Sally Wiant and Lolly Gasaway on a panel to address copyright concerns related to the current NII legislation as well as guidelines developed by the Conference on Fair Use. Judith Krug will be a featured speaker at "The First Amendment Confronts the Internet" program. Important issues ranging from intellectual freedom, to empowering parents to block Internet content they deem to be harmful to their children, to privacy issues will be aired. Please join us at any, or better yet at all, of the above programs!

1996, American Association of Law Libraries