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BBS Legislative Watch Legislation from Last Congress that May Affect Your Online Communications by Shari Steele For those of us communicating electronically, it is often hard to see how involvement in the bureaucracy of Washington, D.C., could have any positive impact on our lives online. But laws that can have great effect on our online rights are constantly introduced and modified in the United States Congress and local legislatures, and last year was no exception. While the 102nd Congress is now history, here is a sample of the legislation introduced over the past year that will likely affect those of us building communities on the electronic frontier. Threats to Privacy FBI's Wiretapping Proposal Thwarted In a move that worried privacy experts, software manufacturers and telephone companies, the FBI proposed legislation to amend the Communications Act of 1934 to make it easier for the Bureau to perform electronic wiretapping. The proposed legislation, entitled "Digital Telephony," would have required communications service providers and hardware manufacturers to make their systems "tappable" by providing "back doors" through which law enforcement officers could intercept communications. Furthermore, this capability would have to be provided undetectably, while the communication was in progress, exclusive of any communications between other parties, regardless of the mobility of the target of the FBI's investigation, and without degradation of service. The security risks are obvious; if law enforcement officers can "tap" into a conversation, so can others with harmful intent. The privacy implications are also frightening. Today, all sorts of information about who we are and what we do, such as medical records, credit reports and employment data, are held on electronic databases. If these databases have government-mandated "tappability," this private information could potentially be accessed by anyone tapping in. To add insult to injury, the FBI proposal suggests that the cost of providing this wiretapping "service" to the Bureau would have to be bourne by the service provider itself, which ultimately means you and I will be paying higher user fees. The Electronic Frontier Foundation organized a broad coalition of public interest and industry groups, from Computer Professionals for Social Responsibility (CPSR) and the ACLU to AT&T and Sun MicroSystems, to oppose the legislation. A white paper produced by EFF and ratified by the coalition, entitled, "An Analysis of the FBI Digital Telephony Proposal," was widely distributed throughout the Congress. Senator Patrick Leahy (D-Vermont) and Representative Don Edwards (D-California), chairs of two key committees, referred to the EFF paper as they delayed introduction of the FBI's proposal. As Leahy stated before the Senate, "Our goal is to assist law enforcement," but "without jeopardizing privacy rights or frustrating the development of new communications technologies." The Justice Department lobbied hard in the final days to get Congress to take up the bill before Congress adjourned, but the bill never even found a Congressional sponsor (and was therefore never officially introduced). The FBI will almost certainly reintroduce "Digital Telephony" when the 103rd Congress convenes in January. Cellular Scanners Prohibited The wrong solution won out as Congress attempted to protect the privacy of users of cellular telephones. Congress chose to ban scanners as it amended the Communications Act of 1934 with the FCC Authorization Act of 1991. The Authorization Act, among other things, prohibits the U.S. manufacture and importation of scanning receivers capable of: receiving cellular transmissions, being easily altered to receive cellular transmissions, or being equipped with decoders to convert digital cellular transmissions to analog voice audio. While privacy protection is always important, EFF opposed the bill, arguing that technical solutions, such as encryption, are the only way to protect private communications carried over the airwaves. Unable to stop the scanner ban, EFF worked with Representative Edward Markey (D-Massachusetts) and Senator Ernest Hollings (D-South Carolina) to add an amendment to the legislation requiring the FCC to study the impact of this law on privacy. Sometime in 1993, the FCC must also conduct a public inquiry and issue a report on alternative means for protecting cellular telephone conversations with a focus on encryption. Threats to Free Speech Federal Agency to Study Hate Crimes on BBSs Recognizing that electronic media have been used more and more often to spread messages of hate and bigotry, Congress mandated the National Telecommunications and Information Adminstration (NTIA) to conduct a study on "the role of telecommunications in crimes of hate and violent acts against ethnic, religious, and racial minorities." Computer bulletin boards are specifically mentioned as one of the targeted media to be studied under the Telecommunications Authorization Act of 1992. Representative Markey, while supporting the Act in the House, cautioned NTIA to be sensitive to privacy concerns while conducting the study. A report on the results of the study will be presented to the Senate before the end of June, 1993. Congress Regulates Video Transmissions Much has been written about the passage of the Cable Television Consumer Protection and Competition Act of 1992, more commonly known as the "Cable Act." While specifically designed to regulate rates, establish customer service requirements and prevent unfair competition for cable television providers, the Cable Act may have broader implications for those of us communicating online. The communications networks of the future will include video and data transmission, as well as the voice transmission we are now used to using over the telephone lines. The Cable Act is Congress's first attempt to regulate the wire/cable transmissions that will make up our networks of the future. EFF is currently studying the implications of this legislation, specifically as it applies to free speech over the network. Threats to the Public's Right to Government Information Fees Charged for Use of Government BBS In a poorly thought-out move designed to raise federal revenues, Congress passed a law permitting the Federal Maritime Commission to charge user fees on its Automated Tariff Filing and Information System (AFTI). The law requires shippers, freight forwarders, ocean carriers and third-party information vendors to pay 46 cents for every minute they are connected to the government-sponsored electronic database. EFF joined with many other groups, including library groups, the Information Industry Association and The Journal of Commerce, in opposing this legislation. EFF and the others fear that this precedent of allowing the government to charge citizens more than the government's cost for information could be applied to many other federal databases and impinge on the public's access to government data in electronic formats. Federal Employees Denied Copyrights for Government Software EFF joined with several other organizations to successfully stop the Technology Transfer Improvements Act in a Senate committee after it had passed in the House of Representatives. This Act would have allowed the federal government to claim copyright in certain computer software created by federal employees working with non-federal parties. Because so much government information is stored only in computerized formats, EFF and the others, including the Software Publishers Association, American Library Association, and Information Industry Association, were concerned that this legislation would impinge on a citizen's right to obtain and use government information that he or she has the right to obtain and use. Reproducing Copyrighted Software Now a Felony Under the strong lobby of the Software Publishers Association, Congress decided to stiffen penalties for individuals making illegal reproductions of copyrighted software. The amended law makes reproducing copyrighted software a felony if certain conditions are met. According to the statute, any person who makes 1) at least ten copies 2) of one or more copyrighted works 3) that have a retail value of more than $2500, can be imprisoned for up to five years and/or fined $250,000. In order for the infringement to be a criminal violation, however, the copies must be made "willfully and for purposes of commerical advantage or private financial gain." While the term "willfully" is not defined in the statute, previous criminal court cases on copyright law have held that the person making the copies must have known that his or her behavior was illegal. Software backups are not illegal (in fact, they are usually encouraged by software providers), and therefore do not fall under the scope of this statute. Like most of us, EFF is concerned about the ramifications of this legislation. While the statute itself provides safeguards that seem to place heavy restrictions on how the law is applied, we are wary that improper application of the law could result in extreme penalties for software users. We will be monitoring cases brought under this statute and intervening if we see civil liberties violations taking place. Network Access for All Commercial Users Given Internet Access Congress gave the National Science Foundation (NSF), the agency overseeing the Internet, the authority to relax some of its access rules governing certain types of information travelling over the network, including commercial information. The Internet has been an educational and research-oriented network since the 1980s. Over the past few years, however, the Internet has become increasingly open to non-educational and commercial uses. The National Science Foundation Act was amended to encourage an increase in network uses that will ultimately support research and education activities. While the amendment was still being considered by the House Science Subcommittee, chaired by Representative Richard Boucher (D-Virginia), EFF's President, Mitch Kapor, argued for more flexible rules to spur diversity and innovation on the Internet. Relying in part on Kapor's contentions, Representative Boucher sponsored the amendment as it passed in the full House of Representatives; Senator Albert Gore (D-Tennessee) championed it in the Senate. EFF lobbied to convince potential congressional and industry opponents that the legislation would facilitate, not impede, wider access to the Internet. EFF's Open Platform Proposal Introduced This past Fall, Mitch Kapor testified before the House Subcommittee on Telecommunications and Finance about the perceived dangers of regional Bell telephone company entry into the information services market. To combat the fear that the Bells would engage in anticompetitive behavior, EFF proposed an information network for the near future that would be affordable, equitable, and easily-accessible (EFF's Open Platform Proposal). Kapor suggested that ISDN could make such a network possible sooner rather than later and at little expense. Legislation was circulated near the end of Congress which included the Open Platform Proposal. The proposed legislation, entitled the "Telecommunications Competition and Services Act of 1992," was sponsored by House Telecommunications and Finance Subcommitee Chair Markey and would give government support to anyone moving forward to provide digital telecommunications now over existing copper wires. This, in turn, would pave the way for a broadband network requiring telecommunications infrastructure modernization in the future. This piece of legislation laid the groundwork for a major debate in the next Congress, especially since President-elect Clinton and Vice-President-elect Gore have committed themselves to an infrastructure of information highways. As you can see, Congress has been very busy creating legislation that may affect your lives online. Next month, we will make some predictions of areas where the 103rd Congress is likely to concentrate its efforts. Shari Steele is a Staff Attorney with the Washington office of the Electronic Frontier Foundation (EFF), a nonprofit organization dedicated to advancing freedom and openness in computer-based communications. Shari can be reached at ssteele@eff.org (Internet) or c/o Boardwatch magazine.