Vol. 11, No. 4, May 4, 1998 EFFector Vol. 11, No. 4 May 4, 1998 editor@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
See http://www.eff.org for more information on EFF activities & alerts!
The Electronic Frontier Foundation May 4, 1998
Please distribute widely to appropriate forums, no later than May 15, 1998.
Free speech supporters are asked to IMMEDIATELY contact their own Representatives, as well as House leaders, and ask them to to vote against the database bill, H.R. 2652, expected to pass or fail on the House floor on May 5, 1998. This contact shouldn't take more than TWO MINUTES per office.
Urge your Representatives to refrain from voting away your right to know and use plain facts because some companies demand special privileges to control and charge for the use of information.
Feel free to make use of the sample fax and phone "script" below.
(We regret that some readers, due to Net-related delays or for other reasons, may not receive this alert in time to act. Sometimes Congress moves quickly, and we have insufficient warning to issue an alert early enough for all readers to receive it in time.)
See EFF's Contacting Congress factsheet at http://www.eff.org/congress which provides links to places to look up who your legislator is if necessary, and to obtain their phone and fax numbers. Please PHONE first, FAX second. Time is short enough that some of the faxes may simply not make it in time.
If you can spare a few extra minutes, try working your way down this list of House leadership, as well as contacting your own Rep:
Party Last Name, First Name Voice Phone Fax State/Dist ----------------------------------------------------------------- R GA/06 Gingrich, Newt 1-202-225-4501 1-202-225-4656+ R TX/26 Armey, Richard 1-202-225-7772 1-202-226-8100+ D MO/03 Gephardt, Richard 1-202-225-2671 1-202-225-7452+ R TX/22 DeLay, Tom 1-202-225-5951 1-202-225-5241 D MI/10 Bonior, David 1-202-225-2106 1-202-226-1169 R OH/08 Boehner, John 1-202-225-6205 1-202-225-0704 R CA/47 Cox, Christopher 1-202-225-5611 1-202-225-9177 D CA/03 Fazio, Vic 1-202-225-5716 1-202-225-5141 D MD/05 Hoyer, Steny 1-202-225-4131 1-202-225-4300
(+ These are the most important to contact - call/fax them first.)
House leaders are, respectively: Speaker, Majority Leader, Minority Leader, Maj. Whip, Min. Whip, Republican Conference Chair, Rep. Policy Committee Chair, Democratic Caucus Chair, Dem. Steering Cmte. Chair
If you would like to both call, and send a fax, this extra action would certainly help.
For best results, try to put this in your own (short!) words, and be calmly emotive without being hostile.
IF YOU ARE A CONSTITUENT (i.e., you live in the same district as the Rep. you are contacting) make sure to say so. For example "I am a constituent, and I'm calling/writing because...."
IF YOU REPRESENT A COMPANY OR ORGANIZATION, say so: "I'm Jane Person from Personal Technologies Inc. of Austin. I'm calling on behalf of Personal Technologies to ask the Representative to...." Business interests carry a lot of weight with many legislators, especially if they are in the legislator's home district. Legislators also generally heed organizational voices over individiual ones. On this issue especially, legislators needs to hear a commercial viewpoint OPPOSING this bill.
You: [ring ring]
Legislative staffer: Hello, Representative Lastname's office.
You: I'm calling to urge Representative Lastname to REJECT the so-called "Collections of Information Antipiracy Act", H.R. 2652. This bill is missing key definitions and creates new property rights in databases and the raw data contained in them, at the expense of ALL citizens' rights to know and use plain facts and information. This bill threatens fair use and freedom of speech and press. The database industry has not proven any need for this legislation, and it is simply yet another attempt to extend copyright-like protection to public-domain material that can't be copyrighted. The bill is not responsive to WIPO treaty language and it provides for excessive and injust penalties. There is no need for this legislation, and I urge Representative Lastname to REJECT H.R. 2652. Thank you.
Staffer: OK, thanks. [click]
It's that easy.
You can optionally ask to speak to the legislator's technology & intellectual property staffer. You probably won't get to, but the message may have more weight if you succeed. The staffer who first answers the phone probably won't be the tech/i.p. staffer.
See above for how to get relevant Congressional fax numbers. Please, if you have the time, write your own 1-3 paragraph letter in your own words, rather than send a copy of this sample letter. (However, sending a copy of the sample letter is far better than taking no action!)
Dear Rep. Lastname:
I'm writing to urge you to reject the excessive intellectual property protections for database maintainers as contained in H.R. 2652, the "Collections of Information Antipiracy Act." This bill, while being touted as as a piece of antipiracy legislation, actually makes most uses of pure information contained in a database illegal without prior permission from the database maintainer. The Act does not create useful exceptions for the fair use of information, and key definitions of crucial terms, such as "collection" and "substantial part" are missing. Furthermore the penalties called for - up to $500,000 and 10 years in prison - are excessive and injust.
The database industry is booming and is quite lucrative for companies collecting and disseminating information. At present, the law requires database collectors to add some originality to the information collected before the collectors receive a legally recognized property right in the database. H.R. 2652 would change this, giving collectors property rights in raw information that has traditionally and properly been in the public domain. This assault on the public's fair use rights and freedom of speech and press will have dire consequences for journalism, medicine, science, political campaigning, and legal research. Additionally, the bill is simply not responsive in any way to the requirements of recent WIPO treaties. WIPO rejected such a "database giveaway".
The database industry has not demonstrated a clear need for this legislation, and the public interest is harmed by giving these companies additional rights to control plain facts and information. H.R. 2652 represents an attempt by some information collection owners to fortify their markets through manipulating the legal system (instead of through fair competition and the addition of value) by raising fears of electronic piracy of information over the Internet and through new information technologies. Congress should wait until specific and definable market failures become apparent before acting to correct them, and even then not in a way as broad and vague as that attempted in H.R. 2652.
Sincerely,
My Name Here
My Address Here
(Address is especially important if you want your letter to be taken as a letter from an actual constituent.)
For brief tips on writing letters to Congress, see: http://www.vote-smart.org/contact/contact.html The most important tip is to BE POLITE AND BRIEF. Swearing will NOT help.
H.R. 2652, the "Collections of Information Antipiracy Act" (introduced by Rep. Howard Coble (R-NC), expands the rights of database creators and maintainers, at the expense of YOUR rights to know and use plain and available facts and information. The bill has been put on the fast track, and is up for a "suspension rules" vote, by the entire House in which it cannot be amendmed to fix its flaws (but can only pass with a 2/3 majority vote.) A lot of big money is behind this legislation, so the danger of its passage is high.
The bill, the latest in a long series of efforts by certain commercial interests to extend copyright-like protections to that which belongs to the public and cannot be copyrighted, authorizes enormous civil and criminal penalties (up to $250,000 and/or 5 years in prison for a first offense; $500,000 and/or 10 years in prison for subsequent convictions) against anyone who uses uncopyrightable, public domain data collected in a database without the express consent of the company that controls that database.
The Act, backed by major database maintainers such as Microsoft and West Publishing, is designed to create a new crime against those who extract or commercially use a "substantial part" of a collection of information gathered, organized or maintained by another person "through a substantial investment of money or other resources" so as to harm the data collector's "actual or potential" market for a product or service that incorporates that collection of information.
The main problem with the bill is that key terms are either not defined or are poorly defined, leaving huge loopholes that render literally all information, data, and facts vulnerable under the Act. For example, even though the bill is titled the "Collections of Information Antipiracy Act," the term "collection" is not defined. "Substantial part" is not defined. And "information" is defined as "facts, data, works of authorship, or any other intangible material capable of being collected and organized in a systematic way," an extremely broad definition that could include just about anything! The legislation amounts to a roundabout form of censorship that could severely harm journalism, medicine, scientific inquiry, academia, consumer watchdogging, the Freedom of Information Act, and many other areas and avenues of inquiry about and use of raw infomration.
Unfortunately, while Congress has been feeling intensifying pressure from the database maintainers to pass this legislation, they have not been hearing from those opposed to the bill. YOUR immediate action is needed to stop it from passing the House.
April 22, 1998
Statement of Barry Steinhardt, President of the Electronic Frontier Foundation (EFF) on the Legal Challenge to the New Mexico Net Censorship Law.
The Electronic Frontier Foundation (EFF) believes that SB 127, New Mexico's recently passed law banning the dissemination of material deemed "harmful to minors" on the Internet, is patently unconstitutional. This law represents a threat to freedom of expression, not only in New Mexico, but across the country. The EFF, as a content provider, and its members, would be compelled to either refrain from communicating constitutionally protected speech or face potential criminal prosecution. Because of this threat, we join today as a plaintiff in the challenge filed today by the American Civil Liberties Union (ACLU).
The EFF was the first national non-profit group established to protect free expression, privacy and open access to information in the electronic age and has used the Internet to educate the public about civil liberties and legal issues as they arise in cyberspace. The EFF was a party to the successful challenge to the Federal Communications Decency Act (CDA) in Reno v. ACLU, decided by the US Supreme Court only last June. We believe the New Mexico law is equally defective.
The EFF's public education efforts that would be affected include the extensive online resources on its web site. These resources include articles, court cases, legal papers, news releases, newsletters, and excerpts from public discussions related to the EFF's legal, legislative, educational, and advocacy work. Section A in SB 127, as it affects the EFF, is even broader and more censorial that the CDA. The term "harmful to a minor" is defined as any communication "which in whole, or in part, depicts actual or simulated nudity, sexual intercourse or any other sexual conduct." The Legislature did not even attempt to qualify this term by requiring that the speech be viewed in its overall context or that its value to minors or adults be taken into account. Because the definitions used in SB 127 are so broad and so unqualified, it would include everything from a web site's representation of Michalangelo's David, to the publication of the Biblical Song of Solomon on a newsgroup. It would certainly encompass information in many of the archives that the EFF maintains on its web site.
Language purporting to limit the application of the law to those who "knowingly and intentionally initiate or engage in communication" with a minor cannot save the law. For most speakers on the Internet, it is not possible to limit speech to an audience that is known to be adults only. Laws like SB 127, such as the even narrower CDA, will inevitably and unconstitutionally restrict the speech available to adults, who will be reduced to receiving only that speech which is deemed suitable for children.
As the Supreme Court said in _Reno v. ACLU_:
"Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minor will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be minors and therefore that it would be a crime to send the group and indecent message and would surely burden communication among adults."
In addition to the restricting Constitutionally protected speech, SB 127 would also violate the Interstate Commerce Clause of the US Constitution.
SB 127 is not limited to purely intrastate New Mexico communications. It seeks to broadly regulate an inherently "interstate", even international medium. A recent decision from New York, American Library Ass'n. v. Pataki, 969 F.Supp. 160, 164 (S.D.N.Y. 1997) dealt with the interstate commerce issue. The ALA case dealt with a New York State statute that, like SB 127, sought to restrict speech on the Internet that was "harmful to minors", without limiting the geographic reach of its prohibition. In that decision, which the State of New York did not appeal, the judge held that the law was invalid because it was an "unconstitutional projection of New York law into conduct that occurs wholly outside New York; that the burdens on interstate commerce [by enforcement of this law] ... could paralyze development of the Internet altogether; and finally, that the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require."
Given the fatal constitutional defects in the new law and its potential to damage free speech on the Internet, the EFF believes that it has no recourse other than to join in this case.
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