Washington Brief - March 2003

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By Mary Alice Baish

Dateline: January 3, 2003

A Preview of the New Year
The 108th Congress convenes on January 7, 2003 with a host of high priority legislative issues, top among them being the long-overdue FY 2004 appropriations bills that will likely be contentious as congressional debate resumes over funding for anti-terrorism, homeland security and military efforts amidst a growing budget deficit. Nonetheless, as noted in my December column, legislative and regulatory issues surrounding digital rights management technologies will be back, as will the information industry's tenacious efforts--begun in 1995--to enact database legislation. Government information issues will continue to be a high priority in the coming year as tensions continue between the Administration's secrecy policies in response to threats of terrorism and the access community's concerns about reduced public access, right-to-know and disclosure through the Freedom of Information Act.

Update on Controversy over Executive Branch Printing
I drafted the joint library comments to the FAR Secretariat, on behalf of AALL, ALA, ARL, MLA and SLA, in response to the notice for comments on proposed changes to the FAR recommended by the Office of Management and Budget (OMB). The proposed amendments would permit agencies to procure publications outside of the Government Printing Office (GPO). In our comments, submitted on December 13th and endorsed by seven other public access organizations, we opposed the proposed changes to the FAR because they are in violation of current law, including 44 U.S.C. 501 (which states that "All printing, binding, and blank-book work for Congress, the Executive Office, the Judiciary, other than the Supreme Court of the United States, and every executive department shall be done at the Government Printing Office.") and 44 U.S.C. 1903 (which states that "The cost of printing and binding those publications distributed to depository libraries obtained elsewhere than from the Government Printing Office, shall be borne by components of the Government responsible for their issuance..."). Further, while OMB emphasizes that a goal of the amendments is "to improve dramatically the depository library system by ensuring that all Government publications are in fact made available to the nation's depository libraries," the proposed changes are so vague that the result will be more fugitive publications, not fewer. Moreover, the lack of any proposed oversight or enforcement mechanism, other than the requirement that agencies file an annual report with OMB, is problematic. The FAR Council is expected to issue its decision on the proposed changes shortly.

New Leadership at the Government Printing Office
The Senate confirmed President Bush's nomination of Bruce R. James as the 24th Public Printer on November 20, 2002. He will be sworn in on January 9, 2003 during a ceremony in the Senate Caucus Room. Mr. James, former CEO of Barclays Law Publishers, brings his lifelong experiences as a successful and innovative publisher of both print and electronic information resources to an agency that he holds in high esteem. Noting that he is both honored and humbled by his appointment, James commented, "I look forward to working with our 3,000 talented and diverse employees to ensure that the GPO remains flexible, forward-thinking and at the forefront of print and information processing technology."

In mid-December, Mr. James announced his appointment of Judith C. Russell to be the new Superintendent of Documents (SuDocs), the first woman to hold this position. She replaces Francis J. Buckley, who was appointed the SuDocs in 1998 by Public Printer Michael DiMario. Judy Russell is a familiar face to the depository library community and to AALL. She was Director of GPO's Office of Electronic Information Services (EIDS) from 1991 to 1996, where she was instrumental in the creation of the award-winning GPO Access system. Ms. Russell has been the Deputy Director of the National Commission on Libraries and Information Science (NCLIS) since 1998. I worked closely with Ms. Russell during 1995-1996, when she led the development of GPO's 1996 Report to the Congress, "Study to Identify Measures Necessary for a Successful Transition to a More Electronic Federal Depository Library Program," and during the past several years on various NCLIS initiatives. Her appointment as SuDocs becomes effective on January 6, 2003. We welcome Public Printer Bruce James and Superintendent of Documents Judy Russell to their new positions at GPO and we look forward to working with them.

Bush Signs the E-government Act of 2002 (P.L. 107-347)
President Bush signed into law the E-Government Act (H.R. 2458 /S. 803) on December 17, 2002, important legislation supported by AALL that will improve how agencies provide government information and services though the Internet. Introduced by Sen. Joseph Lieberman in spring 2001, the new law incorporates important provisions that the library and public access communities participated in developing. Kevin Landy, Lieberman's staff on the Senate Governmental Affairs Committee, summarized the key provisions of S. 803 during a program at our 2001 Annual Conference in Minneapolis that you may have attended. In addition, we thank all of you who helped us get cosponsors in both the House and Senate. While we were disappointed that several of our important provisions, including specific language regarding the permanent public access of electronic government information, were weakened during the negotiation process with OMB and members of the House, nonetheless the new law is a huge step towards defining and managing e-government--from the development of agency and federal court web sites to electronic directories and archives. On the House side, Rep. Tom Davis added provisions affecting many aspects of information technology (IT) management, including initiatives for training federal IT employees and new buying rules to help lower the costs of the government's investments in IT. Other added provisions protect the privacy of personal information held by the government and strengthen the security of the government's information infrastructure.

Library Comments on Broadcast Flag & Rulemaking on Exemptions on Anticircumvention
This fall, we worked closely with students of the Washington College of Law's Glushko-Samuelson Intellectual Property Clinic in drafting the library community "Comments on the Promulgation of a Broadcast Flag Rule" submitted to the Federal Communications Commission (FCC) on December 6, 2002. The FCC is considering whether to promulgate a broadcast flag rule that will create a government mandate that specific technology be incorporated into a range of consumer electronics equipment. The broadcast flag is a signal that may be imbedded in digital broadcast content to regulate performance of the equipment that recognizes the signal. Broadcast flag could be implemented to control the use of digital broadcast content, thereby restricting the ability of libraries and users to use digital broadcast content for teaching, study and scholarship. Reply comments are due February 18, 2003.

We also submitted joint library comments, with ALA, ARL, SLA and MLA, to the Copyright Office in December on their rulemaking inquiry as to whether the Digital Millennium Copyright Act's prohibition on circumventing technological measures that control access to copyrighted works have adverse effects on noninfringing uses of a particular "class of works." The DMCA requires this rulemaking proceeding to occur every three years. The first ruling resulted in only two narrow exemptions: first, for compilations of lists of Web sites blocked by filtering software applications; and second, for literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsolescence. Unless reauthorized, these two exemptions will expire in October 2003 when any new exemption(s) granted by the Copyright Office would become effective.

In the notice of inquiry for the current rulemaking, the Copyright Office articulated a regulatory scheme that holds little promise of meaningful relief from the genuinely adverse effects of the statutory prohibition on circumvention. For that reason, we made only modest proposals. We urged that both previous exemptions be renewed, and we proposed a new exemption for "Literary works, including eBooks, which are protected by technological measures that fail to permit access, via a "screen reader" or similar text-to-speech or text-to-braille device, by an otherwise authorized person with a visual or print disability." Reply comments are due to the
Copyright Office on February 19, 2003.

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


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