Washington Brief - February 2002

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Dateline: December 5, 2001

End-of-Year Status Report and Legislative Outlook for 2002

You'd never know it was December in Washington, with weather in the 70's and Congress still in session due to the continuing post September 11th legislative activities. It has been a particularly busy time as we continue to monitor and assess the library implications of the recently enacted anti-terrorism legislation and the rollback of government information. In addition, UCITA and database legislation have been hot topics during the past month, and both are likely to heat up once again. Here's where things are at year's end and where they'll likely be early next year.

The USA PATRIOT Act (P.L. 107-56)
The Bush administration asked Congress for swift passage of its anti-terrorism legislation, but it still took House and Senate members six weeks to enact the USA PATRIOT Act that gives law enforcement broad new surveillance powers. Many continue to believe the new law will trample on the privacy and First Amendment rights of individuals. Senator Russell Feingold (D-WI) was the lone dissenter in the Senate and introduced four amendments that were promptly tabled. For his floor statement, see http://www.senate.gov/~feingold/releases/01/10/102501at.html. Two of the Feingold amendments would have directly benefited the library community. As noted in my last column, libraries will be very much affected by provisions of the new law that expand the use of pen register and trap and trace devices to electronic communications. Also swept into the definition of "business records" are circulation records that are protected from disclosure under most states' confidentiality laws and Internet usage records.

AALL, our sister library associations and many representatives from higher education are convening here on December 14th to discuss the impact on libraries with the purpose of identifying issues and developing useful guidance for our communities. GRC member Joan Allen-Hart recently reported that at a program on the PATRIOT Act during an early November meeting of the California Library Association, many librarians said they had already been contacted by the FBI and expressed concerns that coercion may be used to encourage library cooperation. When asked how many libraries had already been contacted by law enforcement, about two-thirds of the audience raised their hands, illustrating concerns ALA has been hearing from public libraries. We will be issuing guidance to help libraries respond appropriately to any requests from law enforcement, but it's also important that we track this activity. Please contact me ASAP if your library receives such a request.

More Government Documents Disappear, Including Presidential Records
So far, the Government Printing Office has received only one recall request for depository copies of a USGS CD-ROM, but that single action fails to reflect the thousands of electronic documents and reports that have been removed from agency web sites in the aftermath of Sept. 11th. As just one of many examples, the Department of Energy has removed 13,000 documents from its DOE Information Bridge database, with no defined criteria as to the decision-making process behind the takedown. Several of us from the library and non-profit communities met last week with Federal CIO Mark Forman of the Office of Management and Budget to discuss this crisis. OMB is considering drafting guidance for agencies regarding criteria for any takedown. Understandably, agencies are concerned about access to such "sensitive" materials as risk management plans, but their decision-making is being done on a very ad hoc, agency by agency manner. Look for more government information to disappear in coming months and the likely classification of many more new documents for national security reasons.

In a related issue that is very troubling for the library, research and archival communities, President Bush issued Executive Order 13,233 on November 1st that effectively denies the public's legitimate right to access presidential papers by giving an incumbent or former president veto power over any public release of materials by the U.S. Archivist. The Presidential Records Act (PRA) of 1978 was intended to ensure that the public records of our presidents are government property and therefore belong to the American people. The PRA provides for a limited time period of 12 years during which presidential records, including confidential communications between a former president and his advisers, could be withheld from public access under custody of the Archivist. At the end of the 12-year period, FOIA requests could be made to the Archivist for access to view these records. I drafted a joint library letter to Rep. Stephen Horn, Chairman of the House Chairman, Subcommittee on Government Efficiency, Financial Management and Intergovernmental Relations concluding that unless these provisions are eliminated, the Executive Order could not withstand legal scrutiny. Public Citizen, joined by the American Historical Association, the Society of American Archivists, the National Security Archives and two historians, has in fact just filed a lawsuit to overturn the Executive Order ()

D.C. NCCUSL Meetings on UCITA)
The NCCUSL Standby Committee on UCITA, the ABA's Working Group on UCITA and approximately one hundred very interested individuals met here in Washington on November 9-11 to discuss and debate the merits of the Uniform Computer Information Transactions Act. The meeting was convened by NCCUSL for the purpose of considering various pre-submitted amendments from concerned parties with the goal of possibly reaching some consensus. It provided an important opportunity for members of the ABA's Working Group to interact with the Standby Committee, as well as the uniform law's proponents and opponents. Over the course of two and a half days, eighty-eight proposed amendments were discussed including thirty amendments that had been carefully crafted by members of the AFFECT coalition.

The two amendments proposed by the library community were largely the work of Copyright Committee Chair Jonathan Franklin and related to Sec. 105 on scope/fundamental public policy and Sec. 111 on unconscionability. Jonathan Franklin, Bob Oakley and Jonathan Band of Morrison and Foerster were the primary library spokespersons. The pro-UCITA contingent included representatives from AOL Time Warner, Microsoft, Reed Elsevier and the Magazine Publishers of America. We were very pleased to see that 33 state attorneys general signed onto a new letter [PDF] calling UCITA so flawed that any amendments would fail to fix its negative impact on consumers. Although at the opening session we were told that NCCUSL would vote on the proposals during the last day, this did not occur and the NCCUSL Standby Committee and the ABA's Working Group are working independently on recommendations. Look for continued state activity in 2002 and greater AFFECT efforts to enact bomb-shelter legislation. Please contact me ASAP if you hear of any movement on UCITA in your state.

Database Legislation Will Be Back in 2002)
House Judiciary Chairman James Sensenbrenner (R-9-WI) and House Commerce Chairman Billy Tauzin (R-3-LA) each have an interest in enacting specific legislation this year. Chairman Tauzin supports a broadband bill that is quite controversial and seems to have no support in the Senate. Chairman Sensenbrenner seems willing to support another contentious database protection bill. We may well see another battle over jurisdiction by these committees similar to the duel last year between the two competing database bills. The Judiciary Committee's approach is to overturn the 1991 Feist decision and grant new protections for databases and the facts they contain, while the Commerce Committee's approach has been a narrowly crafted misappropriations measure. A new version of database legislation is expected shortly from the Judiciary Committee, giving members of the Software and Information Industries of America (SIIA) their fourth go-round on this very controversial legislation.

In addition, some of you may recall that we were alarmed last spring by the sudden introduction of S.B. 214 in Georgia. This was the first state effort to enact database protection, presumably in order to enhance the state's economic development by attracting new firms that create informational content. The bill quickly passed the Senate and will be taken up in the House in January. The latest version of the bill, though not publicly available yet, exempts libraries from its provisions. Nonetheless, we will continue to work diligently with our many database coalition partners to defeat the Georgia bill.

 



Mary Alice Baish
Associate Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202
email:baish@law.georgetown.edu