Washington Brief - February 2005

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By Mary Alice Baish

Dateline: December 8, 2004

The 108th Congress: the Good, the Bad and the Ugly

I had the honor of speaking at the CALL Business Meeting last month about our efforts during the 108th Congress on a number of important issues: copyright, digital rights management, and efforts to enact database legislation; the USA Patriot Act; and access to government information and the Bush Administration's penchant for secrecy. These issues will continue to be among our most important legislative and policy priorities when the 109th Congress convenes next year. If interested, you'll find the full-text of my presentation at: http://www.aallnet.org/aallwash/lt11172004.pdf [PDF]. The following is a short summary of these key issues and what we can look forward to early in the 109th Congress. Certainly the truisms of lobbying held steady during the 108th Congress--that it's much easier to kill a bill than to enact one; that we are more successful when we are part of strong and diverse coalitions; and last but not least, that all politics is local. Many of you reading this month's column are among our most active grassroots supporters, and I am very grateful for all your efforts during the past two years. Believe me, you made a real difference and contributed greatly to our success in the 108th Congress--thank you!

First: copyright and digital rights management.

The "Good"
The Digital Media Consumers' Rights Act of 2003( H.R. 107) was introduced by Rep. Rick Boucher (D-9-VA) to restore the historic balance in U.S. copyright law that was eroded by certain provisions of the 1998 Digital Millennium Copyright Act. Under the Boucher bill, it would not be a crime for a lawful user to circumvent a technological protection measure to access or use a digital work if the circumvention does not result in an infringement of the copyright in the work.

The "Bad"
S. 2560, the Inducing Infringement of Copyrights Act (the INDUCE Act), was introduced by Senators Hatch, Leahy, Frist, and Daschle in June 2004 to respond to the complaints by Hollywood and the recording industry that peer-to-peer technology is mainly used by consumers to illegally trade copyrighted materials. The INDUCE Act would make companies and Internet service providers liable if their software or technology "induces" users to infringe copyrighted works. We successfully stopped its enactment this fall but INDUCE will be back early next year.

And the "Ugly"
When I think about what's really been ugly among our IP issues, it's database legislation because we've been fighting database since 1996 and it just won't go away. Because of the tireless efforts of our strong, diverse anti-database coalition, we killed a "bad" database bill, the Database and Collections of Information Misappropriation Act (H.R. 3261) by getting it referred from the House Judiciary to the House Energy and Commerce Committee where a "better" database bill was substituted. The dueling bills thankfully resulted in yet another impasse, but we do expect to see database reemerge next year.

Second, the USA Patriot Act.

The "Good"
Many good bills were introduced in the 108th Congress to repeal various provisions of the USA Patriot Act. First among them was the Freedom to Read Protection Act (H.R.1157) introduced by Rep. Bernie Sanders (I-VT) to exempt libraries from the Sec. 215 provision that expanded the scope of materials that the FBI and other law enforcement agencies can access with a warrant from the FISA court to include library materials.

The "Bad"
Sen. Kyl (R-AZ) introduced S. 2476 in May to repeal the USA Patriot Act sunsets. Part of the deal in getting this legislation enacted so quickly in October 2001 was that sixteen of the most controversial provisions, including Sec. 215, are set to expire on December 31, 2005, unless Congress acts to renew them next year. These sunsets, as well as efforts to further expand surveillance powers, are likely to be important issues for us next year.

And the "Ugly"
During the Senate floor debate, Kyl tried to get S. 2476 attached as an amendment to the National Intelligence Reform Act (S. 2845) that implements the 9/11 Commission's recommendations. Fortunately, his amendment failed because it was ruled non-germane to the Commission's recommendations.

And third, access to government information and the Bush Administration's penchant for secrecy.

The "Bad"

  • The 2003 Memorandum from Chief of Staff Andrew Card to withhold "Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security" without defining "sensitive" or providing any mechanism for review.
  • The hundreds, perhaps thousands, of documents taken off agency web sites after 9/11 and never put back up even though they may not pose a threat to national security.
  • The untold number of documents that have been withheld from the public because they are deemed "sensitive but unclassified"--an as-yet undefined category of information.

The "Ugly"

  • E.O. 13233 that strengthens the ability of former presidents--and their families--to exert executive privilege to withhold their records.
  • The October 2001 Memorandum on the Freedom of Information Act issued by Attorney General John Ashcroft that presumes secrecy over disclosure.
  • Vice-President Cheney's refusal to disclose records of his Energy Policy Task Force.
  • The fact that more documents have been classified during the past four years and more tax dollars have been spent on maintaining the government's secrets than ever before.

And, last but not least so we can end the year on a positive note, the "Good"
Rep. Henry Waxman (D-30-CA), a strong advocate of open government and the right to know, has been the most outspoken member of Congress in his criticism of the Administration's penchant for secrecy and its lack of accountability to Congress and the public. In late September, he introduced the Restore Open Government Act (H.R. 5073) to reverses the Bush executive order on presidential records; revoke the Card and Ashcroft memos; make it clear that there is a presumption of disclosure over secrecy in all FOIA requests; and ensure openness when the president obtains advice through special committees, such as Vice-President Cheney's Energy Policy Task Force. Expect to hear lots more about this bill because Waxman intends to reintroduce it early next year and it's important legislation that AALL strongly supports.


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

 


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