Washington Brief - April 2002

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Dateline: February 7, 2002

Report of the ABA Working Group on UCITA
The ABA working group on the Uniform Computer Information Transactions Act (UCITA) issued a report to the Board of Governors on January 31, 2002 that summarizes UCITA's drafting history; notes prominently the continuing controversy surrounding its enactment in the states; expresses concern that the statute is so complex "that it is daunting for even knowledgeable lawyers to understand and apply"; and recommends that UCITA should be redrafted. The working group found that "UCITA, as presently drafted, would not achieve the principal objective that a uniform law is expected to achieve, namely the establishment of a high level of clarity and certainty in a particular area of the law" and therefore would result in "considerable controversy and litigation over what its various 'rules' really mean." The report focuses on ten specific troubling areas including clarity, scope and electronic self-help, noting that this is not an exhaustive list of concerns.

One of the nine members of the working group, Donald Cohn, who served as one of the two full ABA advisors to the NCCUSL drafting committee, issued a minority report in which he fundamentally disagrees "with the premise of the report, the tone of the report, and the conclusions reaching by the Working Group." Cohn states that "UCITA is no more difficult to understand than most other laws that attempt to address complicated issues" and is critical of those who have opposed the proposed uniform law. He further cautions that "the failure of the ABA to report out UCITA as being worthy of enactment or consideration by the States will arm UCITA's opponents with a weapon that will make the passage of UCITA in any new State legislatures almost impossible."

We were pleased that the ABA working group reached the same conclusion about the act's complexity and lack of clarity that caused the American Law Institute (ALI) to withdraw from the joint drafting process with NCCUSL on the proposed Article 2B of the Uniform Commercial Code. The AFFECT coalition promptly issued a press release noting that the report comes at a critical time and may well be a determining factor in whether states consider the introduction of UCITA in 2002. (www.affect.ucita.com)

Ohio "Bomb shelter" Bill
As we await reaction to the ABA working group's report and next steps, we are continuing our AFFECT coalition activities by monitoring UCITA closely in several key states. We are also strongly supporting the enactment of "bomb shelter" legislation similar to the bills already enacted in Iowa, North Carolina and West Virginia. AALL member Bruce Kennedy was one of several individuals to testify at a January 23rd hearing in support of H.B. 287, a bill that would void a choice of law or choice of forum provision in a UCITA-driven contract for residents and businesses in Ohio. Kennedy noted in his statement that UCITA is unnecessary because the software industry is thriving with annual revenues of more than $259.4 billion in 2000. Asserting that a key problem with UCITA is that non-negotiated, mass-market licenses often impose egregious restrictions on software consumers, he added that it harms libraries by creating "a very durable 'legal envelope' into which software companies and web publishers can thrust unreasonable, non-negotiated license terms." Testifying at the same hearing in opposition to the "bomb shelter" legislation were Brian Dengler (Compuserve Interactive), William Ashworth (Microsoft), and Steven Emmert (LexisNexis and Reed Elsevier Inc.).

Matrix on the USA PATRIOT Act Now Available
Last month I reported on the December 14, 2001 meeting here in D.C. at which approximately thirty individuals with a broad range of responsibilities, from library director to IT professional to university CIO, participated in discussions on the impact of provisions of the USA Patriot Act on our institutions. One of the goals of the meeting was to develop guidance about the new law to assist members of the eight sponsoring organizations, including AALL and our sister library associations, in understanding the new legal framework in order to comply with proper search warrants, subpoenas and wiretap requests from law enforcement. A draft matrix has been developed, The Search & Seizure of Electronic Information: The Law Before and After the USA PATRIOT Act, that summarizes these changes.

Co-sponsors Needed for House Bill to Nullify E.O. 13,233
In November, I drafted a joint letter to Rep. Stephen Horn, Chairman of the House Government Reform's Subcommittee on Government Efficiency, Financial Management and Intergovernmental Reform, expressing opposition to President Bush's E.O. 13,233 relating to implementation of the Presidential Records Act (PRA). The letter is part of the subcommittee's record for an oversight hearing on the executive order.

Public Citizen quickly filed a lawsuit challenging provisions of the executive order and two influential House members who are highly critical of it are planning legislative action. House Government Reform Committee Chairman Dan Burton (R-6-IN) and Ranking Member Henry Waxman (D-29-CA) have drafted a short bill, the Access to Presidential Records Act, that nullifies the executive order. The bipartisan bill will be introduced in March following a full committee hearing, and Reps. Burton and Waxman are looking for 100 co-sponsors by the time the bill is introduced. Please contact your representative through the Capitol Switchboard at 202-224-3121, and urge her/him to co-sponsor the Access to Presidential Records Act.

Less Access to Government Information Post 9/11
All signals point to more electronic information being take off the Internet by entities at all levels of government because of security concerns although the task of monitoring and assessing the rollback is an impossible one. During the past month the press has linked access to public information with the al Qaeda terrorist organization, potentially putting more pressure on government to scrutinize even more carefully the information currently available to the public. You may have heard the February 1st story on NPR's All Things Considered, "Terrorists Study Report on Vulnerable U.S. Targets," reporting that a study done by the General Accounting Office critical of security at major U.S. facilities was found on a computer seized from al Qaeda members in Afghanistan. There is no doubt that we need to carefully review information access policy in light of September 11th and that government entities will be putting fewer new publications on the Internet because of security risks. A handful of federal agencies have developed very thoughtful criteria to determine what "sensitive" information should be withheld from Internet access by the public in the future, although neither the White House nor the new Office of Homeland Security has publicly issued any general guidelines to date.


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