Congress to take on spam, copyright

As the 108th Congress begins, some of the controversial proposals from the last session concerning spam, copyright and Net taxes stand a better chance of becoming law.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
When the 107th Congress ended its work last November, politicians discarded dozens of technology-related bills that had been briefly considered but were never enacted.

Learn more about Congress
Now that the 108th Congress has begun this week, some of those controversial proposals dealing with spam, copyright and Internet taxes will resurface--and some stand a better chance of becoming law.

Key changes to watch this session include:

•  a policy switch by a major marketing trade group that could help break a longstanding logjam on anti-spam legislation;

•  a reshuffling of a key committee in charge of copyright legislation that could help bring a stalled measure to mandate copy protection in consumer-electronics devices to a vote;

•  renewed calls for enhancing privacy protections following a pendulum swing favoring security after the Sept. 11, 2001, attacks.

Copyright in the spotlight
One issue that is sure to remain a flash point this session will be the 1998 Digital Millennium Copyright Act (DMCA), which has been the focus of intense scrutiny and a number of lawsuits. Beloved by the entertainment industry, the DMCA broadly prohibits bypassing the kind of copy-protection technology used in DVDs, computer software and electronic books.

On Tuesday, Rep. Rick Boucher, D-Va., and three other legislators reintroduced their bill from last year that would defang the DMCA. Their proposal, called the Digital Media Consumers' Rights Act, would let Americans bypass copyright-protection schemes for legitimate "fair use" purposes.

"The reintroduced legislation will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work," Boucher said.

Most large copyright holders, ranging from the software industry to Hollywood and the Association of American Publishers, support the DMCA almost as much as programmers, academics and open-source aficionados loathe it.

"The DMCA provides important tools in the fight against piracy," Robert Cresanti, vice president for policy at the Business Software Alliance, said on Tuesday. "We fear that broad exemptions to the DMCA could undermine the core purpose of the act--that technological measures can have an important and proper role in curbing piracy."

"We strongly believe that Internet distribution should meet, not frustrate, the expectations of consumers and their ability to utilize in customary ways the copyrighted content that they lawfully acquire. Our principal reservation is that the (Boucher) bill could make it harder for software companies to take action against pirates," Cresanti said. The BSA's 10 members include Adobe Systems, Apple Computer, Microsoft and Network Associates.

Boucher's three co-sponsors are John Doolittle, R-Calif., Spencer Bachus, R-Ala., and Patrick Kennedy, D-R.I.

Hollings' bill returns?
Where the computer industry breaks with Hollywood is over "technological mandates," which is Washington-speak for government requirements that hardware or software be designed in a certain way to prevent piracy.

Last March, Sen. Fritz Hollings, D-S.C., introduced a bill that would forcibly implant copy-protection technology in all PCs and consumer-electronics devices. Silicon Valley abhors Hollings' proposal, called the Consumer Broadband and Digital Television Promotion Act.

Hollings' bill died in the last Congress after two senior politicians--then-Senate Judiciary Chairman Patrick Leahy, D-Vt., and House Majority Leader Dick Armey, R-Texas--vowed it would go nowhere in 2002.

But Leahy no longer runs the Judiciary Committee, and Armey has retired, which provides the recording industry and movie studios with a second chance. Rep. Mark Foley, R-Fla., the deputy majority whip and chairman of the House Entertainment Industry Task Force, said this week that he would review Hollings' bill and possibly endorse it.

In the Senate, one big question is where Sen. John McCain, R-Ariz., the new chairman of the Senate Commerce Committee, stands on copyright legislation.

At a March 2002 hearing, McCain seemed to shy away from taking a firm position. "I believe the concerns of content providers are justified," McCain said. "They invest creativity, effort and capital into producing high quality films and programming, and should be able, adequately, to protect their investments. I am apprehensive, however, of proposals that select technological winners and losers, and mandate government intervention in the marketplace."

Wayne Crews, an analyst at the free-market Cato Institute, predicts that the Republican Party's newfound control of the Senate may not matter much for copyright laws.

"It wouldn't matter who was in power--Republicans can surely always be found who'll embrace Hollywood's vision of mandatory copy protection," Crews said Tuesday. "It's a bad idea, as is, on the other side of the coin, the extreme interpretation of Boucher's 'fair use' legislation...(Some people) will use it as a lever later to target all copy protection as violations of 'free speech.' That's as big a mistake as mandating copy protection."

In addition to tweaking the DMCA, Boucher's bill would also require anyone selling copy-protected CDs to include a "prominent and plainly legible" notice that the discs include anti-piracy technology that could render them unreadable on some players. The FTC would develop regulations "to require the proper labeling" of CDs, and proscribing the removal or mutilation of any label.

In October, an aide to Rep. Howard Berman, D-Calif., said to expect a "significantly" changed version of Berman's peer-to-peer hacking bill in the 108th Congress. The P2P Piracy Prevention Act says copyright holders would have the right to disable, interfere with, block or otherwise impair a peer-to-peer node that they suspect is distributing their intellectual property without permission.

Spam and privacy
Two reasons make it increasingly likely that the 108th Congress will enact an anti-spam law: First, the volume of spam is skyrocketing, and clogged e-mail servers may cost American companies billions of dollars a year. Second, the Direct Marketing Association now says it will lobby for anti-spam laws.

Until last fall, too late to do anything in the 107th Congress, the DMA opposed the majority of anti-spam bills in Congress or offered only lukewarm support. But the ever-rising tide of junk e-mail made the influential trade association rethink its stand and remove a sizable obstacle to federal legislation.

Now the association, which boasts about 4,700 members that include direct mail, catalog and telemarketing companies, says it will lobby for a law that overrules about 20 state laws currently on the books, prohibits forged headers in e-mail and provides a way for recipients to remove themselves from future mailings.

The outlook for privacy legislation is much less predictable, says Marc Rotenberg, director of the Electronic Privacy Information Center. Rotenberg says McCain, the new Senate Commerce chairman, is not necessarily opposed to legislation that imposes additional privacy requirements on private companies.

Immediately after the Sept. 11 terrorist attacks, security concerns became paramount on Capitol Hill. But now there are some signs that politicians are becoming concerned about privacy again: At least four senators have called for limits on the Defense Department's Total Information Awareness system.

"More hearings on both government and the private sector are almost certain," Rotenberg said Tuesday. "Legislation is the big open question."