Washington Brief - September 2001

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Dateline: July 18, 2001

Report of the Washington Affairs Office
AALL General Business Meeting, July 18, 2001

It's a pleasure for me to have a few minutes on the agenda this afternoon to summarize briefly the activities of the Washington Affairs Office since our Philadelphia conference. I, for one, am very glad that this evening--actually, in approximately 6 hours, 8 minutes and 47 seconds--not that I'm counting--Bob will hand over the AALL presidency to Barbara Bintliff after what has been a very exciting year for him as your president, and a very busy and challenging one for me.

This was also the year of a national presidential election, the arrival of a new Administration to Washington, and more recently, the abrupt post-election change of leadership in the Senate--all of which impact our legislative and regulatory work. I have a short list of the top five policy issues in which the Washington Office has been engaged during the past year.

The first legislative issue is database protection. Many of you will recall that last year at this time, we were in a very difficult struggle between two competing approaches to protecting databases from piracy. We strongly opposed the approach taken by the House Judiciary Committee that granted new "sweat of the brow" protections to facts and data outside of copyright law, and was very broad and sweeping. As an alternative, we supported legislation introduced in the House Energy and Commerce Committee that presented a more balanced approach and did not overturn the Feist decision. It was a jurisdictional battle through to the very last days of the 106th Congress, and your strong grassroots efforts helped to defeat the House Judiciary bill.

While we believe that there are already sufficient laws in effect to protect databases from piracy, the proponents of database protection are continuing to pressure the Judiciary Committee to introduce a new bill. This spring, staff of both House committees co-hosted 8 weekly sessions between the proponents and opponents of database legislation in which we participated as part of a broad database coalition consisting of library, higher education and scientific associations, as well as representatives from database producers. Each session focused on one specific issue, but as the weeks passed it became increasingly apparent to us that database proponents are once again seeking a broad new intellectual property regime that we believe will stifle the growth of e-commerce, as well as scientific and educational research. As a member of our broad based coalition, we will begin meetings shortly with staff of both committees to negotiate our differences with the proponents of database protection. I think it's very safe to say that we have another jurisdictional battle shaping up between these two committees and their very different approaches to database protection. This is a hot issue on the immediate horizon, so stay tuned.

The second legislative issue that I'd like to mention is S. 487, the Technology, Education and Copyright Harmonization Act of 2001 or "TEACH Act". The good news is that early this year, the bipartisan leadership of the Senate Judiciary Committee--Sen. Orrin Hatch of Utah and Sen. Patrick Leahy of Vermont--stated their commitment to drafting distance education legislation for the digital age. The higher education community worked diligently this spring with Senate Judiciary staff and the publishing community to negotiate a compromise that would satisfy both sides. S. 487 provides new exemptions for non-profit educational institutions to permit the asynchronous use of digital resources in distance education. At the same time, it includes protections to ensure that copyright owners are able to safeguard their content. S. 487 passed the Senate in early June by unanimous consent and was reported out of the House Judiciary Committee last week with minimal changes to the Senate version. We hope to see S. 487 move quickly to the House floor, to conference, and to the White House for the President's signature.

The third legislative issue is the E-Government Act of 2001 (S. 803) introduced in May be Sen. Joseph Lieberman, Sen. Conrad Burns and 12 other cosponsors. S. 803 creates a Federal CIO for the executive branch at the Office of Management and Budget, a position with new authorities specifically detailed in the bill to provide the visibility, leadership and coordination that is necessary to maximize government effectiveness in using information technology. I had the pleasure of working closely with Sen. Lieberman's staff throughout the winter and spring to develop key public access provisions regarding:


  • the accessibility, usability and preservation of web-based electronic government information;


  • the development of standards and a public domain directory for agency web sites;


  • a requirement that federal courts and regulatory agencies establish web sites and electronic dockets; and,


  • explicit responsibility for executive branch agencies to take on front-end responsibility for the life-cycle of their web-based publications.

I drafted the joint AALL/ALA/ARL testimony for the Senate Governmental Affairs Committee's hearing on July 11th, where the legislation received positive support from many stakeholders, including the Office of Management and Budget. Sen. Lieberman´┐Żwho is now chair of the Senate Governmental Affairs Committee--recognizes that S. 803 is a "work in progress," that it needs some tweaking, and we look forward to continuing to work with his staff. The outlook for S. 803 improved last Thursday when it was introduced in the House by Rep. Turner of Texas and 35 cosponsors.

The fourth legislative issue that I would like to mention is the Uniform Computer Information Transactions Act, or UCITA. I think that everyone is this room has a good understanding of the harms that UCITA will cause to consumers, libraries and businesses by enforcing mass-market shrink-wrap and click-on licenses. By this time last year, UCITA had been enacted in only two states, Maryland and Virginia. Last fall the anti-UCITA coalition created by AALL, ALA and ARL--4-CITE--received new funding, new vitality and a name change to AFFECT--Americans For Fair Electronic Commerce Transactions. Our scorecard since then has been very impressive--UCITA has not been enacted in any new states this year.

This spring we stopped UCITA in the two leading battleground states, Texas and Arizona, and got it tabled in a handful of other states. Iowa has just extended its anti-UCITA "bomb shelter" legislation to exempt Iowa residents and businesses from the provisions of UCITA, and similar anti-UCITA legislation has been introduced in several other states. Battling state legislation from Washington has been a very difficult challenge, and AALL members have stepped up to the plate using their knowledge, expertise and leadership to help defeat UCITA or delay its introduction in many state capitols this year.

The fifth issue in which we have become increasingly engaged during the past year is privacy, particularly as it relates to public and government records available broadly through the Internet. We submitted comments to the Judicial Conference on January 26 of this year in response to a Federal Register notice regarding privacy and public access to electronic case files. Concurrent with AALL's strong commitment to the public's right to access government information is our equally strong belief that public access through the Internet must be tempered by privacy rights concerning personal information held in government files and private sector databases.

Our comments to the Judicial Conference stressed the need to strike a careful balance between public access to Electronic Case Files and the need to protect citizens from harm that may well result from the dissemination of such personal information as Social Security numbers, employment records, medical records, and the broad spectrum of financial information contained in bankruptcy files. I also testified before the Judicial Conference's Subcommittee on Privacy and Electronic Access to Court Files regarding this important issue on March 16th. The Judicial Conference is expected to release its report on privacy and electronic case files in September.

Also on the privacy front, AALL joined The Privacy Coalition, a new nonpartisan group of consumer, civil liberties, educational, library and labor organizations that was established in January by Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC).

Final Thoughts on Our 2000-2001 Legislative Agenda. To summarize, database protection, the TEACH Act, the E-Government Act of 2001, UCITA and privacy were our top priorities during the past year, and these are ongoing issues that will continue to demand much of our attention during the coming year.

I would like to mention very quickly that AALL has contributed $5000 to assist ALA's efforts in Federal court in fighting the Children's Internet Protection Act (CIPA) that became effective in April of this year. The CIPA mandates that schools and libraries that receive Federal funding for computers or Internet access--including LSTA funds that many of our county law libraries receive--must install filtering technology on their computers by 2002. We believe that the CIPA is unconstitutional and were pleased to be able to support ALA in this important battle.

As you all know, because I remind you of it every year at this time, "all politics is local" and the efforts of the Washington Office to represent your interests on important federal and state policy issues would not be successful without your tremendous grassroots advocacy help. This has been a challenging and productive year, and I thank you all very much for your continued support.


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