Law Librarian Blog

House Bill Would Place Broad IP Enforcement Powers In Hands Of Rightsholders

I usually appreciate the work of the Electronic Frontier Foundation, though I sometimes roll my eyes at the hyperbole in some of those positions.  Biases aside, the EFF report on the Stop Online Piracy Act (H.R. 3621) is pretty right-on in both the description of the provisions it would impose on the Internet and the impact it would have on all of us.  The bill would allow rights holders to send DMCA-style takedown notices of alleged copyright infringement to MasterCard and Visa type payment services and ad networks which would have five days to remove their services from the site.  Safe harbors are not an option or defense in this scheme.  

The bill’s language allows for results that essentially bypasses the courts and other provisions of the intellectual property laws.  There are other provisions which allow the Attorney General to have offending sites removed from search engines and DNS look-up tables, all down a memory hole, if you will.

There are a number of other analyses worth reviewing.  One is by Larry Downes (CNET) called SOPA: Hollywood's latest effort to turn back time.  Another is U.S. government also a villain in piracy act, a story by Molly Wood (also CNET).  I first came across Wood’s article and wondered if her description of the bill was a bit overwrought in how it could affect the free flow of information on the web.  After reading it, her reaction was just right.

The bill is a media dream piece of legislation, placing copyright holders in complete control of the enforcement process.  I’m sure Viacom would have been delighted to have this in place when suing Google and YouTube for allegations of piracy.  I’m also sure that Cambridge, et al. would have would have found it useful in their so-far unsuccessful case to characterize as infringement the placing of copyrighted works in some circumstances on electronic reserve at Georgia State University.  I’m also sure the Author’s Guild would receive the result that they seek in their case against the HathiTrust.  To paraphrase Barry Manilow, I write the rules, I write the rules, I am power.  Copyright piracy via the web may be a problem, but this bill goes way beyond what a proper response should be.  

The bland description of the legislation by the House Judiciary Committee is here.  Don’t be fooled.  [MG]

Are We/They Worth It? Collective Bargaining for Public Employees

In the October 14th Chronicle of Higher Education article "Faculty Unions Ponder New Strategies in Changed Political Climate," author Schmidt reports on the largely successful campaigns in both Ohio and Wisconsin to defeat the right of faculty unions to engage in  collective bargaining. 

I was particularly dumbfounded by this quote from Connie Werkamp, the press secretary for Building a Better Ohio, a campaign organization formed to ensure Ohio legislation (SB 5) which defeated collective bargaining rights for public employees in Marc h 2011 was not repealed by referendum next month:

"The issue here is that these are public employees who are paid by the taxpayer to educate our kids at our universities.  They are making good salaries and they get good benefits - often better benefits than those in the private sector."

(According to Schmidt, tenured faculty earn over $70,000 annually while the median household income in Ohio is about $46,000.)

Maybe I am reading too much into this quote, but the alternative to Werkamp's description would be that Ohio should pay their faculty less than what they would be worth in the private sector.

So I am a little biased because I am a unionized public employee, and I don't have "kids" of the two legged kind, but if I did, I would want their fine, dedicated educators to be well compensed for their work - if for no other reason than to secure their continued presence at that university.  And, although this is total conjecture, my guess is that most of the tenured and untenured faculty members spent many years earning doctorates, masters, and performing field work, empirical analysis, and living a rather meager lifestyle.  I just don't see many of us living la vida loca.

To be fair, the debate about collective bargaining for educators is just part of a larger movement to trim budgets and stem spending.  Executive branches from California to Massachusetts are cutting staff, salaries, and benefits in an effort to stay solvent during the economic crisis.  Public employees, like private, do have to shoulder their fair share of the burden; however, insinuating that educators are not worth their money is insulting. 

There is always the ONE who gets away with "it," but most of us are dediated and hardworking and hardly feel overpayed.  I am assuming that most of us "public employees" like to believe that we do make a difference in the lives of our students and appreciate being compensated for that hard work.  In fact, a study published in 70(4) Harvard Education Review 437 (Winter 2000) compared standardized test scores to union representation found a statistically significant and positive relationship between student test performance and teacher union representation. (Do Teacher Unions Hinder Educationalal Performance.)

Summary of the situation:  In Ohio, the legislation which undid the collective bargaining rights of faculty is going to be put to a public vote on November 8th.  In Wisconsin, the legislation had a more colorful path.  After being passed into law, a state court set it aside and declared it unconsitutional.  Then, the state Supreme Court reversed the lower court and reinstated the legislation.  In addition to the situations in Ohio and Wisconsin, there are five states that prohibited all collective bargaining for their public employees: Georgia, North Carolina, South Carolina, Texas, and Virginia. It is hard to believe that the 50 years of labor law history I studied at law school is being turned on its head.(VS)

California Enacts Book Purchase Privacy Law

California has enacted the Reader Privacy Act (S.B. 602) which requires search warrant to access customer data on regular and e-books purchased online or from bricks-and-mortar store.  All the law and privacy groups are cheering.  Here’s the ALCU press release, and here’s one via the EFF.  The law allows sellers to contest the disclosure.  Even Google likes it.  The Act was inspired by North Carolina’s attempt to get wholesale records of citizen purchases for purposes of charging them sales tax on those purchases.  California doesn’t have that problem since it entered into an agreement with Amazon to collect sales tax on California citizens. 

I can’t say that a law such as this is a bad idea.  It sets a level of privacy that is on a par with the standard for disclosure of a person’s library records, assuming they are preserved in the first place.  Everyone is paranoid, it seems, that government wants to know what they are reading for whatever purpose.  Usually it’s part of a criminal investigation, otherwise, why make disclosure subject to a warrant?  I’ll mention in passing that the state law probably does not hamper federal investigations using the Patriot Act as authority.

Somewhere in the back of my mind, however, was a nagging question of how many prosecutions had actually taken place where a person’s reading habits were part of the evidence.  Try running the words “reading habits” /p prosecut! In Westlaw Classic in the ALLSTATES case law database and, as of this writing there are exactly seven cases where the words appear.
 
Most of them are in reference to questionnaires where potential jurors are required to disclose some their reading habits.  One case excluded the testimony of a library director about the general change in community reading habits in relation to an obscenity prosecution from 1972 (Price v. Commonwealth, 213 Va. 113, 189 S.E.2d 324 (1972)).  The prosecution in another moved to exclude reading habits by one defendant after the defense tried to use the information as part of character evidence (People v. Kronemyer, 189 Cal.App.3d 314, 234 Cal.Rptr. 442 (1987)).  A third case, Hannah v. State (420 Md. 339, 23 A3d. 192 (2011)), involved violent lyrics written by the defendant as an element of the evidence for attempted murder.  The Maryland Supreme Court quoted United States v. Giese, 597 F.2d 1170 (9th Cir.1979) in passing:

We reject Giese's arguments, but in so doing we wish to emphasize that we are not establishing a general rule that the government may use a person's reading habits, literary tastes, or political views as evidence against him in a criminal prosecution. In many cases such evidence would be clearly inadmissible. See, e.g., United States v. McCrea, 583 F.2d 1083 (9th Cir.1978). Our decision upholding the admissibility of From the Movement Toward Revolution stems from the peculiar circumstances of this case and, reflecting our concern for the sensitive nature of First Amendment values, it rests on very narrow grounds. We hold that it was proper to introduce the book during the government's case-in-chief because it bore the fingerprints of Giese and three of his co-conspirators and thus tended to corroborate witnesses' testimony that the conspirators associated with each other. We further hold that it was proper to ask Giese to read extracts from the book on cross-examination because he opened the door to that line of inquiry by introducing 18 books as evidence of his peaceable character during his own testimony on direct examination.

* * *

Giese took the stand in his own behalf and denied supplying his alleged confederates with From the Movement Toward Revolution and the various explosives and firearms manuals which had been found in their possession. [ ] Had he stopped his testimony about books at that point, he would not have opened any doors. But he did not stop. In response to his counsel's questions, Giese produced a stack of 18 books and proceeded to describe them one by one. [ ] All 18 were introduced into evidence later in the trial and were available for the jury's inspection. Some of the items were “representative samples” of the types of books Giese stocked in his bookstore; others, including three books Giese had written, were his personal property and had been kept at his home rather than at the bookstore.

There are a few federal cases that note the limitations of the Giese case where reading habits are relevant to the case, though they tend to state that reading habits are inadmissible unless the defendant raises that issue, or that reading habits are not evidence to the charge.  There are six federal cases (via ALLFEDS) that appear as results under the same search.  The closest one besides Giese that touch on the central issue of reading habits is In re Grand Jury Subpoena to Amazon.com Dated August 7, 2006, 246 F.R.D. 570 (W.D.Wis.,2007).  That case involved a federal tax investigation against a used book seller where the actual reading habits were not an issue.  The Court nonetheless raised the First Amendment issues on its own about the scope of the subpoena, which the government ultimately withdrew.  None of these cases, state or federal, demonstrate a prosecution where evidence of reading habits contributed to a finding of guilty.

I find it ironic, and not in the hipster sense, that individuals are encouraged to display their reading habits through social media and they willingly do it.  The FBI may have thought the Carnivore program was necessary to collate all possible data on all possible threats.  That program is gone, replaced likely by something a little less public.  Think NSL letters.  I think it’s just as easy to locate a suspect’s Facebook page and use any admissions there as evidence, especially if it’s public. 

So, in the spirit of disclosure, what am I reading lately?  My taste in print magazines tends towards MOJO, which is an excellent music publication out of the UK.  The November cover story is on George Harrison.  Lately in books it is Starman, a biography of David Bowie by Paul Trynka (a former MOJO editor).  Other titles include Collision Course, by Joseph McCartin on the PATCO strike and resolution (a review will be forthcoming) and How To Fix Copyright by William Patry.  Come and get me copper. 

Hat tip to the BNA Electronic Commerce & Law Report for the story.[MG]

FCC Finalizes Net Neutrality Rules

The Federal Communications Commission has finally issued their net neutrality rules by publishing them with the Office of the Federal Register.  The three rules listed are relatively simple:

To provide greater clarity and certainty regarding the continued freedom and openness of the Internet, we adopt three basic rules that are grounded in broadly accepted Internet norms, as well as our own prior decisions: 

i. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The statement is in contrast to the content in the rest of the 155 page document that both explain the scope of the rules as the FCC intends, and justifies them in light of prior administrative and court proceedings that state that the Commission does not have the authority to regulate in this area.  For that, see Part IV, The Commission’s Authority To Adopt Open Internet Rules, between pages 75 and 100.  The Commission synthesizes language in §706 of the Telecommunications Act of 1996 with other language within the Act that gives the Commission authority to promote competition in broadband.  It may or may not be a bit of a stretch on the part of the Commission, but it is at least a preview of the likely litigation that will ensue.  Verizon and Metro PCS both sued over the notice for preliminary rule-making and the Court of Appeals for the District of Columbia threw the suit out as premature.  The issue of authority is ripe now that the final rule is announced, effective November 20, 2011.

The Commission does have one reason for going through with this process despite the legally shaky ground on which it rests.  At the very least it has set a baseline for rules and how they should be interpreted.  Assuming they are invalidated, an Internet provider’s conduct can be still measured as to whether they lived up to the principles embodied in the rules.  Enforcement is one thing, but companies may be sensitive to public relations depending how they are portrayed. 

The rules and accompanying report as filed with the Office of the Federal Register are here.  [MG]

EDUCAUSE Policy Analysis of Pending Data Privacy Legislation

EDUCAUSE has released Data Privacy Legislation: An Analysis of the Current Legislative Landscape and the Implications for Higher Education. 18 bills have been introduced in Congress on data privacy.

These privacy bills generally fall into three distinct areas: comprehensive online privacy protection, geolocation and mobile devices, and data security and breach notification. If enacted, many of the bills have implications for data collection, storage, and use that could affect higher education and campus IT operations and academic research.

Hat tip to DigitalKoans. [JH]

Budget Control Act Eliminates Subsidized Interest Loans for Graduate Students

The CBO estimates that the Budget Control Act of 2011 will save approximately $26.3 billion over 2012-2021 by eliminating the federal government's subsidized graduate student loan program:

Student Loans. As required under the Federal Credit Reform Act of 1990, most of the costs of the federal student loan programs are estimated on a net-present-value basis. The bill would make two changes to the student loan programs. CBO estimates those changes would reduce direct spending by $9.6 billion over the 2012-2016 period and $21.6 billion over the 2012-2021 period. The legislation would:

• Eliminate the subsidized loan program for graduate students. Beginning July 1, 2012, the bill would eliminate the interest subsidy on subsidized student loans for almost all graduate students while a borrower is in school, in the post-school grace period, and during any authorized deferment period. (Certain post-baccalaureate students would still be eligible.) The current annual and cumulative loan limits for unsubsidized loans would be adjusted to permit students to borrow additional funds in the unsubsidized loan program. CBO projects that, over the 2012-2021 period, the provision would shift approximately $125 billion in loan volume from the subsidized to the unsubsidized loan program. Because borrowers would be responsible for the interest accrued on those loans while in school, CBO estimates that this provision would reduce direct spending by $8.2 billion over the 2012-2016 period and $18.1 billion over the 2012-2021 period.
• Eliminate loan repayment incentives. Beginning July 1, 2012, the bill would terminate, with one exception, the Secretary of Education’s authority to make incentive payments to borrowers to encourage the on-time repayment of their federal loans. Specifically, the bill would eliminate the Secretary’s authority to offer a partial rebate of the origination fee but would still allow the current interest rate reduction for borrowers who agree to repay their loans through electronic debiting. Because borrowers would effectively pay a higher upfront origination fee, CBO estimates this provision would reduce direct spending by $1.4 billion over the 2012-2016 period and $3.6 billion over the 2012-2021 period.

That's a savings equal to three months in Afghanistan. See, Debt Deal Would End Subsidized Loans To Grad Students, Produce Savings Equal To Only Three Months In Afghanistan on Think Progress. For analysis by Annie Hsiao, director of education policy at the American Action Forum, see The delinquency of the debt ceiling and student debt on The Hill's Congress Blog. For commentary, see Elie Mystal's ATL post, Debt Ceiling Deal Includes Last-Second Screwing Of Graduate Students. [JH] 

Iceland's Crowdsourced Draft Constitution Submitted

On July 29, 2011, Iceland's Constitutional Council presented its draft constitution to the Speaker of Althingi. The drafting process was crowdsourced by way of the Council's website. In Icelanders hand in draft of world's first 'web' constitution, Agnes Valdimarsdottir (AFP) reports the website was an "incubator for comments... . Moreover, the council was present on Facebook, Twitter, YouTube and Flickr, allowing Iceland -- and the world -- to follow its progress."

From the Constitutional Council's The Constitutional Council hands over the bill for a new constitution (English version):

The Constitutional Council presented the Speaker of Althingi, Mrs. Ásta Ragnheidur Jóhannesdottir, with the bill for a new constitution in Idnó, today. The bill was unanimously approved by all delegates, at the last meeting of the Council, on Wednesday 27 July 2011. The bill assumes that from now on, changes to the constitution will be submitted to a vote by all who are eligible to vote in Iceland, for either approval or rejection. All delegates agree that the population should be given the chance to vote on the new constitution before Althingi’s final vote on it. In the case of ideas arising to make changes to the bill prepared by the Constitutional Council, the delegates of the Council declare themselves ready to revert to the matter before a national referendum is held.

...

The delegates of the Constitutional Council is a group of various people with diverse opinions, education and experience in life. Each and everyone has taken a stance to matters based on their own beliefs and opinions. During the process, the Council has consulted the Report of the Constitutional Committee, as well as the result of the National Forum 2010. The public has had wide access to the work of the Council, primarily by writing comments, totaling 3600, as well as sending their suggestions, numbering approximately 370, to the Council’s website. The idea that the public had their saying in the revision of the constitution has thus been preserved. In that way, the bill of the Council has little by little taken shape during discussion between the delegates themselves and with open exchange of opinion with the community. The Constitutional Council now presents the bill to the Parliament and to the people. Explanatory notes on the bill, reflecting the discussion within and outside of the Council, will be handed over to Althingi next week.

The Constitutional Council expects that the open discussion of recent months on constitutional matters will continue.

Resources: Consititution of the Republic of Iceland and the Constitutional Council's crowdsourced draft (Google translation). [JH]

Apparently the GPO Is Not Considered an Essential Government Service by Some Members of Congress

At least not if one views the issue in the context H.R. 2551, The Legislative Branch Appropriations Bill [Thomas]. Case in point, in response to the GPO's request for $5 million to continue the development of FDsys, the House cut the entire line item from the bill. Passed by the House on July 22, H.R. 2551 would cut GPO's funding by a total 20 percent. Such deep cuts question GPO's ability to publish and disseminate federal documents.

GAO To Study Feasibility of Transferring GPO's Executive Branch Operations to the GSA. But the funding cuts are just the tip of the iceberg. Check out House Report 112-148 [Thomas]. Quoting from House Questions Future of Government Printing Office by OMB Watch:

Certain provisions of H.R. 2551 suggest that some members of Congress seriously question whether GPO is needed at all. Rather than simply reducing the agency's roles and capacities behind the rubric of cost savings, Congress needs to discuss how we are going to build and support the capacity to disseminate public information and data in the 21st century. Open government advocates argue that modernization and oversight of this function – a key element of enabling citizen engagement with government – should be resolved prior to making significant funding reductions that reduce GPO’s capacity to meet its responsibilities.

H.R. 2551 previews the possibility of eliminating GPO entirely. Noting that "the Committee has some concern about the future of the GPO as a viable printing operation for the Federal Government," the report on the bill directs the Government Accountability Office (GAO) to study "the feasibility of Executive Branch printing being performed by the General Services Administration, the transfer of the Superintendent of Documents program to the Library of Congress, and the privatization of the GPO" – options nearly identical to those proposed by former Rep. Scott Klug (R-WI) in 1995. The committee asks GAO to report back by January 2012.

...

The core question of the GAO study should be whether moving GPO's responsibilities to GSA and LOC would strengthen the policy, oversight, and expertise needed for effective citizen access to public information or reduce the amount of information available to citizens seeking to engage government officials. These are the questions that need answers – before key funding decisions are made that could undermine the capacity of government to report its activities to the American people.

[JH]

Uniform Law Commissioners Address Official Electronic Legal Publishing

One of the more recent developments when it comes to official online law is the creation of the Uniform Electronic Legal Material Act by the Uniform Law Commission.  The Act was approved for publication on July 12th.  It requires official electronic legal materials to be:

• Authenticated, by providing a method to determine that it is unaltered;
• Preserved, either in electronic or print form; and
• Accessible, for use by the public on a permanent basis.

The Act covers state constitutions, session laws, codified laws or statutes, and administrative regulations.  The Act requires a state agency to be named for content responsibility.  States have the option to include court documents and agency decisions.

More information is in the ULC press release.  Hat tip to Lisa Rush for alerting me to this.  [MG]

Editor's Note: See also LLB's July 21, 2011 post, Freeing Digitally Conceived Text, Part 3: The Uniform Electronic Legal Material Act is a Good First Step But Not a Major Accomplishment. [JH]

And Yet Another New Tax Target: The Cloud

And while we're on the subject of a new income tax revenue stream for the states see Joe's post below, consider a recent report in the BNA Computer Technology Law Report (12 CTLR 312) that examines the possibility inevitability of states collecting taxes from cloud services.  Software as service is still something akin to tangible physical software as far as the New York State Department of Taxation is concerned.  Adobe markets photo editing capability in the form of an online subscription.  Consumers can subscribe to the software as an alternative to buying Photoshop.  New York would subject the subscriptions to state and local taxes even though no copies of the online code are transferred to users.  As the Department states:

The location of the code embodying the software is irrelevant, because the software can be used just as effectively by the customer even though the customer never receives the code on a tangible medium or by download.

New York State, of course, has the power to interpret its rules in its favor, so why not?  Other states are beginning to follow suit according to the report.  Michigan has a similar ruling, with Illinois and Louisiana looking at the issue.  The taxing landscape may be uncertain now, as the report suggests, but I think other states will join the bandwagon once cloud services and online software access become more popular.  The report notes that Congress is considering the Digital Goods and Services Tax Fairness Act to set national standards as to which jurisdiction would be able to collect the tax when more than one can make the claim.  That may make some states unhappy with the choice out of their hands.  You can bet that if treating software that is accessed but never transferred is considered the same as tangible property, states will find a way to further tax things such as streaming media rentals, or any type of subscription delivered over the web.  [MG]

A New Income Tax Revenue Stream? Bill Introduced to Legalize Online Poker

Actually it would legalize online poker if allowed in your state. HR 2366 [Open Congress] would establish a program for state licensing for Internet poker companies for winning (and losing) real money. What the heck, wouldn't that be a "good thing" for licensing fee revenues and income tax purposes (if you win)?

HR 2366 is sponsored by Congressman Joe Barton, R-TX. I'm thinking he may be a Texas Hold'em player. In a WSOP video interview, Barton forecasted that the bill, if passed, realistically wouldn't pass until August of next year. Perhaps that can be sped up a bit. Barton called on Internet poker players to unite -- contact your House representative and ask him or her to add their name to the bill's list of sponsors.

When the interviewer mentioned that she heard that Barton is considered the best poker player on the Hill, he refused to confirm that. In fact he named another representative and a senator who may be better. Is it just me or do you think he was priming the pump for a showdown match? To view the WSOP video, visit this Business Law Prof Blog post.

Jeez, I completely forgot that I joined the Poker Players Alliance years ago until I received an email. Here's part of the emailed PPA Member Action Alert message:

On June 24th, Congressman Joe Barton (R-TX) introduced H.R. 2366, the Online Poker Act of 2011. This bill will restore your online poker rights by allowing licensed companies to offer Internet poker with real-money play to U.S. residents.  The bill is a huge leap forward for the poker community in the aftermath of Black Friday. Twelve of Mr. Barton’s colleagues have already become sponsors of this legislation:

Rep. Andrews, Robert [NJ-1]
Rep. Berkley, Shelley [NV-1]
Rep. Campbell, John [CA-48]
Rep. Cohen, Steve [TN-9]
Rep. Conyers, John, Jr. [MI-14]
Rep. Frank, Barney [MA-4]
Rep. Grimm, Michael G. [NY-13]
Rep. Honda, Michael M. [CA-15]
Rep. King, Peter T. [NY-3]
Rep. Paul, Ron [TX-14]
Rep. Perlmutter, Ed [CO-7]
Rep. Sanchez, Linda T. [CA-39]

We are urging the poker community to TAKE ACTION to support this important bill. Below are a number of actions you can take to make your voice heard. Please be sure to share this email with your family and friends and encourage them to act as well. Let’s seize this moment and let Congress know we care about the right to play poker!

This take action page can also be found at: www.theppa.org/takeaction

Well, it's not exactly one of the most pressing issues facing our nation but if the financial industry can legally gamble, why can't I. At least I wouldn't request a federal bailout to cover my losses. And one former LLB co-editor and I want to play Texas Hold'em online in the middle of the night when our long-suffering wives are asleep.

Love the "patriotic" symbolism in the email's image header. [JH]

Come Back With a Warrant!

Quoting from EFF's Kevin Bankston's legislative analysis:

[In mid-May,] Senator Patrick Leahy introduced much-needed legislation to update the Electronic Communication Privacy Act of 1986, a critically important but woefully outdated federal privacy law in desperate need of a 21st century upgrade. This ECPA Amendments Act of 2011 (S. 1011) would implement several of the reform principles advocated by EFF as part of the Digital Due Process (DDP) coalition, and is a welcome first step in the process of providing stronger and clearer privacy protections for our Internet communications and location data."

See Bankston's EFF Applauds New Electronic Privacy Bill That Tells the Government: Come Back With a Warrant! for details. Text of the bill [Thomas] and a summary of the bill produced by  Sen. Leahy's staff. [JH]

PATRIOT Sunset Extension Act of 2011 "Signed" into Law

Late last Thursday S. 990, PATRIOT Sunsets Extension Act of 2011 [Thomas], was signed into law shortly before sections of the Act were set to expire. In what appears to be a presidential first, an autopen was used at the direction of President Obama who was in Europe and who apparently would not have received a copy of the bill before "sunsets" kicked in. Ah, no email access to receive an authenticated PDF that could have then been printed? I thought this was the high tech White House administration.

Some may question the legality of using an autopen under Article 1, Section 7 of the Constitution. The New York Times reports that White House officials relied on a 2005 DOJ memorandum which concluded that “the president need not personally perform the physical act of affixing his signature to a bill to sign it.” See Making Legislative History, With Nod From Obama and Stroke of an Autopen. One has to wonder if any opponents of S. 990 will litigate the issue. Imagine a brief on the merits with string citations to Justice Scalia. Food for thought or mindless navel gazing? Constitutional law prof scholars have all summer to chew on this issue for a potential SSRN paper.

Ruthann Robson, Professor of Law & University Distinguished Professor, CUNY School of Law, authors the first blog post I've seen on the issue. See Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension on Constitutional Law Prof Blog (May 30, 2010) (Link to the 2005 DOJ memorandum provided by the post). Quoting from the post's concluding paragraph:

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

Call me old school but I want my president to put pen to paper when signing every bill into law. Legal or not, an autopen should be left to mass mailings. And no, use of an autopen is not indicative of a high tech administration IMHO.

S. 990 as "signed" reauthorizes the three controversial government surveillance powers from the PATRIOT Act to June 1, 2015 despite some unsuccessful bipartisan Congressional opposition. See the ACLU's Four More Years of Unchecked Spying, Surveillance and Secrecy and the Washington Post's Patriot Act extension signed into law despite bipartisan resistance in Congress. Quoting from a pre-S.990 ACLU analysis (since no changes, why not):

Section 215 of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person's privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.
 
Section 206 of the Patriot Act, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.
 
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called "Lone Wolf" provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government's investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.

See also the ACLU's 2009 report, Reclaiming Patriotism: A Call to Reconsider the Patriot Act, which could be reissued as a 2011 report. [JH]

Library Copyright Alliance Identifies Necessary Features for Legislative Reform of the Copyright Act

From the Library Copyright Alliance's May 16, 2011 Statement on Copyright Reform:

In the wake of Judge Chin’s rejection of the Google Books Settlement, there has been a renewed interest in legislative solutions to a variety of copyright issues affecting libraries, including those implicating the mass digitization of books, the use of orphan works, and the modernization of 17 U.S.C. § 108 (particularly preservation).

...

[L]ibraries would support an effort to amend the Copyright Act to benefit libraries only if it offered significant benefits over the status quo. To do so, a proposal must contain at least the following features:

• The non-commercial use (i.e., reproduction, distribution, public performance, public display, or preparation of a derivative work) by a nonprofit library or archives of a work when it possesses a copy of that work in its collection:

– would not be subject to statutory damages;

– would not be subject to actual damages if the use ceases when the library or archives receives an objection from the copyright owner of the work; and

– would be subject to injunctive relief only to the extent that the use continues after the library or archives receives an objection from the copyright owner of the work.

• This limitation on remedies would apply to the employees of the library or archives, as well as to a consortium that includes the library or archives.

• Copyright owner objections would have no effect on a library’s rights under fair use.

The premise behind this proposal is that the possibility of statutory damages deters libraries from engaging in uses that likely qualify as fair uses or that copyright owners would not oppose if they could be identified, located, and asked. Eliminating the possibility of statutory damages will encourage libraries to make these appropriate uses. At the same time, the continuing possibility of take-down or actual damages, combined with libraries’ high visibility, will require libraries to exercise appropriate restraint that respects the legitimate interests of copyright owners.

Hat tip to Digital Koans. See also, The Fate of an Institutional Subscription Database for Out-of Print Books Since the Court Rejection of the Google Book Settlement. [JH] 

Will Washington State Effectively Close Its State Law Library?

Could the Washington State legislature be so short-minded to essentially de-fund the Washington State Law Library in the budget currently under consideration?  That seems to be the case if this article in the News Tribune out of Tacoma is true.  The current budget for the years 2009-2011 is $4,436,000, and that represents a reduction from previous budget years.  It's reported that the Washington House is considering further reductions to $3,260,000 and the Senate proposed appropriation for two years is a mere $1,000,000.

Considering the Law Library pays expenses such as rent, insurance, and utilities to the tune of $450,000 per year, the leftover amount would barely pay for anything of substance.  If this is how Washington State legislators think of having a state law library, then what is the point of having one at all?

I have to hope that a budget compromise will come about that adequately funds the Law Library.  I'd like to think that this is typical of how budget negotiations start, and with reasonable funding secured in the end.  However, these days of what passes for governing and politics, I'm not so sure.  I hope this works out for the best.  [MG]

"Decertifying" the AAUP in Ohio Public Sector Institutions of Higher Education by Legislation: Profs as Managerial Employees

"There is an assault on public sector workers throughout many parts of this country," writes Mitchell Rubinstein in his Adjunct Law Prof Blog post, Union Busting In Wisconsin And In Other Parts of the Country, And Rubinstein should know. He and I both worked for one of the very largest management-side labor law firms in the country once. Private sector labor relations was my speciality so I'm a bit out of my comfort zone to be writing about Ohio public sector labor-management relations but OH SB 5 is a substantial dilution of public sector collective bargaining rights. It's a game-changer, particularly for AAUP-represented faculty in public colleges and universities.

A provision inserted in SB 5 just hours before the Ohio Senate passed the bill would in effect decertify AAUP as bargaining representative for public sector IHE faculty. The provision would classify all public sector faculty as managers. That would make them exempt from union representation. My hunch is that would include public sector college and university tenure or tenure-track librarians who have some sort of "faculty" status.

In Ohio Senate Votes to Deny Collective-Bargaining Rights to Most Public-College Professors, The Chronicle reports

The classification provision defines as "management-level employees" those faculty members who, individually or through faculty senates or similar organizations, engage in any of a long list of activities generally thought of as simply part of the jobs of tenured and tenure-track professors. Those activities include participating in institutional governance or personnel decisions, selecting or reviewing administrators, preparing budgets, determining how physical resources are used, and setting educational policies "related to admissions, curriculum, subject matter, and methods of instruction and research.

Ohio SB 5 is expected to pass in the Ohio House and to be signed into law by Gov. John R. Kasich, a Republican. Gov. Kasich supports the bill and has just announced the appointment of James M. Petro to serve as Chancellor of the Ohio Board of Regents, effective March 14. A graduate of Case Western Reserve Law School, Petro previously served as Ohio Auditor of State (1995-2002) and Ohio Attorney General (2003-2006). I'm thinking  he is ready, willing and very able to enforce Ohio SB 5 when it is enacted into law.

Now, is this a bad thing? I guess that depends on what, if any, impact SB 5 has on tenure. In the legal academy there are some law school deans and law school library directors who give lip service to how important tenure is while whispering how they wish they could unload tenured law profs and law librarians who are and have been for years "coasting." That old argument about "academic freedom" as the justification for tenure just isn't very persuasive; hell it is downright counter-productive for executing curricular changes in the legal academy and skills-based changes required in law library staff because few in the public law library sector have the budget to increase staff. There are plenty of ways to protect intellectual freedom without granting lifetime employment.

When SB 5 passes in Ohio and public sector profs are classied as "managerial," there are two important things to watch for. One is the probable increase in part-time professors hired to replace retiring full-time profs and the second is to see what happens to tenure over the course of this decade.

The Taxpayer Sponge. There is another interesting provision in Ohio SB 5 of much more general applicablity in Ohio public employment, namely management being able to unilateral implement its final offer if agreement cannot be reached at the bargaining table. Very "private sector" like. Been there, done that. It was one of the reasons I worked in private sector negotiations. The other was private sector negotiations always boiled down to the nexus of profit earning potential, unit labor costs (meaning wage-productivity-capital investment) and ability to pay during the duration of typical multi-year contracts.

In the worst economic climate since the 1930s depression, ability to pay in the public sector is based on the ability of taxpayers to pay by way of increased taxes and levies. That sponge won't soak up any more. If private sector taxpayers in Ohio don't have lifetime job secutity, why should public sector profs?

Some would call this union-busting. I would call it time to face economic reality; it's not budget cuts in public sector education. Produce something of value to your employer or here's your pink slip. Higher education is important. Hell, foreign students come to the US and contribute substantially to the economy but public sector IHEs are no longer immune to the economic realism of the private sector. [JH]

Crownsourcing the UK's Protection of Freedoms Bill

From the Civil Liberties and Identity Policy Unit of the Home Office's Public Reading Stage site:

The Government is committed to continuing this public engagement with the content of the Protection of Freedoms Bill. This website gives you the opportunity to comment on each clause contained in the Bill. Your comments will get collated at the end of this public consultation and fed through directly to the Parliamentarians who will carry the Bill through the House of Commons.

[JH]

Beltway Broken Promises on Civil Rights and Civil Liberties: A Three Act Play About This Month's Extension of the USA PATRIOT ACT

Last week the House spent a fair amount of time on legislative manuvering on how to proceed with bringing up the matter of extending the USA PATRIOT ACT. Quoting from Donny Shaw's Open Congress Blog post, House spends 2 days on non-binding resolution, gives PATRIOT Act 1 hour:

Just in case you need more evidence that the floor of the House of Representatives has devolved into little more than a political sideshow, let’s take a look at how they’re allocating their time these days. On Wednesday the Rules Committee got together for 10 minutes to decide that extending the three most controversial provisions of the PATRIOT Act would be allowed 1 hour of debate on the floor. The day before that they met for more than an hour and decided to give 9.5 hours of debate to …wait for it… a non-binding resolution directing committees to hold hearings on regulations that businesses don’t like.

That’s right. One hour for debate on allowing the government to continue demanding that libraries and businesses turn over individuals’ private records without being allowed to notify the individual, but 9.5 hours for debating on a non-binding bill requesting committees to hold hearings. One hour for debate on allowing the government to continue using “roving” wiretaps on multiple phones and devices that suspects may possibly use, but 9.5 hours for debating on a non-binding bill requesting committees to hold hearings. One hour for debate on allowing the government to spy on supposed terrorist suspects that aren’t part of a terrorist group, but 9.5 hours for debating on a non-binding bill requesting committees to hold hearings. You get the picture.

Act 1. Yes, we get the picture. In February 2010, Congress extended the sunsetting section of the USA PATRIOT Act until the end of this February with a promise to fully consider the issues before the next deadline which is February 28, 2011. A one hour debate isn't going to do that. The stage is now set for Act 1, the likely passage of H.R. 514 this week. Like last year, the bill would temporarily extend the USA PATRIOT ACT, in this case to December 8, 2011, including the Act's Section 215 Library Provisions. Once passed, the stage will be set for Act 2, the Senate.

Act 2. In the Senate, H.R. 514 will join a crowded chorus of three Senate bills. Senator McConnell's not-going-anywhere, S. 291, Senator Leahy's S. 193 which offers improved reader privacy protection for library records (but not bookstore records) as well as some much needed oversight provisions, and Senator Feinstein's S. 289 which, well, let's just say that S. 289 fails to address any of the issues presented in EFF's report, Patterns of Misconduct: FBI Intelligence Violations from 2001 - 2008 (note well the section on abuse of national security letters). Quoting from a February 12, 2011 New York Times editorial:

Senator Patrick Leahy of Vermont, the Judiciary Committee chairman, has introduced a bill that would add several safeguards to the act, most notably the phasing out of “national security letters,” which the F.B.I. has used to obtain evidence without a court order. These letters have been subject to widespread misuse and have never received proper oversight.

Unfortunately, the same bill that would bring the letters under control would extend the three expiring provisions in the Patriot Act through 2013. It is a much better measure, however, than a bill by Senator Dianne Feinstein that would extend the provisions for three more years without the new safeguards, or one by Senator Mitch McConnell that would make the three provisions permanent. Congress should not miss an opportunity to wield some oversight on this issue and determine whether the government could achieve its goals with less sweeping surveillance powers.

(Emphasis added.)

The New York Times editional failed to mention that Senator Feinstein's S. 289 has the Obama Administration's support. With two weeks left one has to wonder if Senator Leahy's S. 193 reforms have any chance for full consideration of the issues. As quoted from The Hill in LLB's Too Late for Consideration? Leahy's USA PATRIOT Act Extension Bill, S. 193, Would Improve Privacy of Library Records

Feinstein indicated that there may not be enough time to consider Leahy's reforms.

Act 3. I guess we should not be surprised when Congress fails to deliver on its promise to fully examine civil rights and civil liberties issues in the context of "national security." What is Act 3? The President signing some version of the USA PATRIOT ACT extension by February 28th. Just like he did this last year. [JH]

Too Late for Consideration? Leahy's USA PATRIOT Act Extension Bill, S. 193, Would Improve Privacy of Library Records

On January 26th, Sen. Patrick Leahy introduced S. 193, The USA PATRIOT Act Sunset Extension Act of 2011 that would reauthorize sections of the USA PATRIOT Act. One positive step in S. 193 is that the bill would provide more safeguards for library records. According to the Library Journal's report:

For one, it would remove the presumption in favor of the government that a judge has to honor when reviewing a Section 215 order for business records.

It would also require the FBI, when seeking library records, to make "a statement of facts" showing that "there are reasonable grounds to believe that the records sought" pertain to a terrorism investigation that involves a foreign power or an agent of a foreign power. Presently, the law allows the government access to "any tangible thing" during investigations.

While protecting library records, S. 193 still leaves a huge gaping privacy hole because it does not provide similar safeguards for the records of bookstore customers which could still be searched whenever the FBI believes they are “relevant.”

Barbara Jones, director of the American Library Association’s Office for Intellectual Freedom, called on Congress to protect the privacy of reader records in bookstores as well as libraries. “We appreciate the heightened protection afforded library records for those Americans who borrow books,” she said. “The next logical step would be to safeguard the First Amendment rights of Americans who purchase books in a bookstore. In both instances, reader privacy must be maintained.”

Quoting from PEN's press release, Reader Privacy Fight Resumes in Congress. See Michael Kelley's LJ article for details.

USA PATRIOT ACT Extension in the House. The Hill is reporting that the House will vote on H.R. 514, to extend the legal authority to conduct various surveillance activities under the USA PATRIOT Act. The bill, sponsored by Rep. Jim Sensenbrenner, would extend these practices until Dec. 8.

USA PATRIOT ACT Extension in the Senate. In addition to Senator Leahy's bill, Senator Grassley has proposed a permanent extension and Senator Feinstein has introduced a bill that would extend the Act for three years. While Senator Leahy's bill offers improved reader privacy protections, Feinstein's S. 289 is supported by the Obama administration. According to The Hill's Senate split over how to extend the Patriot Act's surveillance authority:

Leahy is also facing a challenge from within his own party. Sen. Dianne Feinstein (D-Calif.) has introduced her own bill that would extend the surveillance authorities until 2013, but would do so without the additional oversight language that Leahy prefers.

In Thursday's hearing, Feinstein indicated that there may not be enough time to consider Leahy's reforms.

Section 215 Library Provisions Set to Expire on February 28. Too late? In a joint letter supporting Leahy's bill, ARL and ALA wrote:

ARL and ALA welcome the introduction of S. 193 for several reasons.

First, we support additional judicial oversight for use of these surveillance tools when they implicate reader privacy. Specifically, our members strongly support the requirement of a clear connection to a terrorist or spy (rather than the much lower “mere relevance” standard that applies to other Section 215 requests) when law enforcement agents seek library circulation records and patron lists. This provision recognizes the importance of protecting the right to read, a vital First Amendment activity.

Second, ALA and ARL strongly support the codification of the reforms adopted voluntarily by Attorney General Eric Holder. While we welcomed the Attorney General’s announcement that he would institute some of the reforms included in S. 193, including the protections for library records, we believe strongly that these protections are too important to leave to the discretion of executive officers. Making them part of the law will ensure that future attorneys general will not roll back these important safeguards.

Third, we support the other commonsense reforms in the bill, including a new sunset for National Security Letters (NSLs) and the repeal of the presumption of relevance for certain Section 215 orders. Restoring the constitutional rights of gag order recipients is another important provision. These sections are extremely important to assure accountability and transparency.

[JH]

Moving Towards Electronic Distribution of Bills and Resolutions in Congress: House Passes H.R. 292, Stop the OverPrinting (STOP) Act

On Jan. 18, H.R. 292, Stop the OverPrinting (STOP) Act passed in the House. Essentially, the bill would replace the mandatory printing of bills and resolutions for the use of offices of Members of Congress with on-demand printing under the following circumstances:

1. if a committee of the House or Senate, at any time during a Congress, requests the Public Printer to provide the committee with printed copies of each bill or resolution during the Congress that is within the committee's jurisdiction, the Public Printer shall provide the committee with printed copies of each such bill or resolution (limited to 75 copies); and
2. at the request of a Member or committee of the House or Senate, the Public Printer shall provide the Member or committee with such number of copies of a bill or resolution as the Member or committee may request.

Under H.R. 292, Stop the OverPrinting (STOP) Act, the primary format of bills and resolutions would be electronic and would be accessible through the Internet. The Hill reports that H.R. 292 is expected to save as much as $35 million over 10 years in printing costs. [JH]