Legislation May Affect Online Communications (1993)

by Shari Steele

      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 review of the legislation considered 
over the past two years that could affect electronic communications.

Threats to Privacy

FBIÕs Wiretapping Proposal Thwarted
      In a move that worried privacy experts, software manufacturers and 
telephone companies, the FBI proposed legislation to make it easier for 
the Bureau to perform electronic wiretapping. The proposed legislation, 
entitled ÒDigital Telephony,Ó would have required communications service 
providers and hardware manufacturers to make their systems ÒtappableÓ by 
providing Òback doorsÓ through which law enforcement officers could 
intercept communications. (See file digitele.txt in EFF Library.)

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 (DSouth 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 Administration (NTIA) to 
conduct a study on Òthe role of telecommunications in crimes of hate and 
violent acts against ethnic, religious, and racial minorities.Ó 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 ÒCable 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 CongressÕs 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 PublicÕs 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 governmentÕs 
cost for information could be applied to many other federal databases 
and impinge on the publicÕs access to government data in electronic formats.

Federal Employees Denied Copyrights for 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 citizenÕs 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 Òwillfully and for purposes of commerical advantage or 
private financial gain.Ó While the term ÒwillfullyÓ 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.
      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 where it is construed too broadly 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), EFFÕs Chairman of the Board, Mitch Kapor, argued for more 
flexible rules to spur diversity and innovation on the Internet. Relying 
in part on KaporÕs 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.

EFFÕs 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 introduced its Open Platform Proposal. 
(See the separate article on EFFÕs Open Platform beginning on page 1.) 
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 ÒTelecommunications Competition and Services Act of 1992,Ó 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 Clinton and Vice-President Gore 
have committed themselves to an infrastructure of information highways.