Washington Brief - November 2002

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December Teleconference on the USA PATRIOT Act

AALL has once again joined forces with ALA, ARL, MLA and SLA to sponsor a national teleconference on a timely issue of extreme importance to our communities. The title of this year's interactive teleconference is Safeguarding Our Patrons' Privacy: What Every Librarian Needs to Know About the USA PATRIOT Act & Related Anti-Terrorism Measures. It will be held on December 11, 2002 from 12:00-3:00 EST. Our key goal in planning this event was to help all librarians, legal counsels, information technologists and library boards better understand the new provisions of the Act and other new authorities that have broadened the surveillance capabilities of law enforcement since September 11, 2001. Additionally, we will identify steps that institutions need to take to comply with proper search warrants, subpoenas, and wiretap requests.

Our four distinguished panelists-Tracy Mitrano, Director of Computer Law and Policy, Cornell University; James Neal, Vice President and University Librarian, Columbia University Libraries; Gary Strong, Director, Queens Borough Public Library; and Peter Swire, Professor of Law, Ohio State University-will give you specific and practical answers to the following questions:


  • What do the USA PATRIOT Act, the revised FBI Guidelines, and other Homeland Security measures mean for all types of librarians and library patrons?


  • How should librarians respond to requests from law enforcement for patron information?


  • What policies and procedures should be implemented at libraries?


  • What tools or resources are available to help librarians understand the changing landscape and respond with confidence to law enforcement requests?


It is critically important that we all understand the implications of these measures for libraries and the privacy and First Amendment rights of our users. You'll find more information about the teleconference and the location nearest you on the Washington Office web site. Please join us on December 11th!

S. 2395, the Anticounterfeiting Amendments of 2002
Sen. Joseph Biden (D-DE) introduced S. 2395 to create liability for trafficking in illicit authentication features, such as a hologram, watermark, certification, symbol, code or other means of designating that the product to which it is affixed is authentic. The bill could pose major problems for anyone exercising fair use. The library community is concerned that the bill could adversely impact librarians using interlibrary loan and making preservation copies of works. Potentially, if the TEACH Act is enacted to update the copyright law for distance education, the distribution of copyrighted material without permission from the copyright owner could constitute a violation of the anti-trafficking provisions of S. 2395. The types of works covered in the bill are phonorecords, computer programs, and motion pictures and other audiovisual works, all of which could be included in otherwise exempt transactions. In addition, there may be problems in the remedies provisions of the bill. Perhaps most alarming, this bill modifies the US criminal code, so that potential copyright infringement transactions-or even exempt uses such as fair use-could be subject via trafficking in illicit authentication measures to criminal penalties including imprisonment.

The bill was passed out of the Senate Judiciary Committee without hearings or a report. Just before the Senate's August recess, there was an effort to pass the bill on the Senate floor by unanimous consent. Several Senators, however, placed a hold on the bill because of numerous concerns from diverse groups, including libraries and universities. Nonetheless, there is great pressure in the Senate to push through the Biden bill this year.

Possible Elimination of PubSCIENCE
One of the issues that has taken up much of my time recently has been the expected call for comments by the Department of Energy (DOE) on the elimination of the PubSCIENCE database. This announcement comes as no surprise because PubSCIENCE, FirstGov and PubMED were targeted for elimination by the Software and Information Industry of America (SIIA) on the grounds that these three government resources compete with private sector services. For over 50 years, DOE's Office of Scientific and Technical Information (OSTI) has been collecting, preserving, and disseminating scientific and technical information in order to ensure that research results were reported and made available to the agency, to researchers in the physical sciences community, and to the broader scientific community. In 1999, OSTI transitioned its print indexing and abstracting tools to the Internet and, in addition, partnered with 35 publishers to provide direct links to their resources for users who had access to the services. PubSCIENCE was a valued example of DOE's commitment to build a rich web site for the American public. In fact DOE in early 2001 selected PubSCIENCE as the featured site on the agency's National Library homepage.

The probable demise of PubSCIENCE is important to us because it likely will draw a line in the sand in terms of the degree to which agencies will be able to enhance their electronic information products and services for public access in the future. My thanks to all of you, individuals and chapters alike, who responded to the action alert opposing the elimination of PubSCIENCE that I sent out in early September. The joint library community comments to the DOE were signed by nine organizations. (URL)

OMB Drafting Guidelines on "Sensitive" Government Information
I recently attended a library and public interest group meeting with staff of the Office of Management and Budget (OMB) to discuss their efforts in drafting new guidelines to define and restrict access to "sensitive but unclassified" government information. This new category of information was mandated in a White House memo issued last April to respond to concerns that electronic government information could be used by terrorists in planning another attack on our shores. It is still unclear how the Bush Administration intends to draft the new rules, which we expect to be released for public comment within a few months. However, OMB staff went out of their way to signal that the new rules, requested by the Office of Homeland Security, would be narrowly drawn to cover "sensitive homeland security information" such as actual plans of nuclear power plants or water facilities. A related issue is the process that agencies will use to review information taken down immediately after 9/11 because of possible use by terrorists and to determine what information should be reposted on agency web sites for health and safety concerns, and the public good. We plan to discuss these guidelines with Federal CIO Mark Forman once Congress adjourns.


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