From iia.ipo@his.com Wed Mar 2 10:51:14 1994 Received: from news.his.com (bbs.his.com [198.4.81.3]) by eff.org (8.6.4/8.6.4) with ESMTP id KAA16860 for ; Wed, 2 Mar 1994 10:50:44 -0500 From: iia.ipo@his.com Received: from his.com (clone@localhost) by news.his.com (8.6.4/8.6.4) with UUCP id KAA11356 for mech@eff.org; Wed, 2 Mar 1994 10:43:32 -0500 Received: by his.com id A2888wk Wed, 02 Mar 94 10:26:11 Message-Id: <9403021026.A2888wk@his.com> Organization: Heller Information Services, Inc., Rockville MD X-Mailer: TBBS/PIMP v2.52 Date: Wed, 02 Mar 94 10:26:11 Subject: "INFORMATION POLICY ONLINE" To: mech@eff.org Reply-To: iiaipo@his.com Status: RO F iiiiii iiiiii a INFORMATION POLICY ONLINE ii ii aaa ii ii aaa An Internet Newsletter ii ii aaa published by the ii ii aaaaaaaaa Information Industry Association ii ii aaa 555 New Jersey Ave., N.W. ii ii aaa Washington, DC 20001 ii ii aaa Internet: iiiiii iiiiii aaaaaaa Volume 1, Number 1, March 1994 ----------------------------------------------------------------- ***************************************************************** In this inaugural issue: [1] About "INFORMATION POLICY ONLINE" [2] About the Information Industry Association Will the Real "IIA" Please Stand Up! [3] Welcome! by Steve Metalitz, IIA/IPO Editor [4] Giving Uncle Sam the Keys: Administration Embraces Clipper [5] Bills to Cut Off Access to DMV Records Greeted Skeptically by House Synopsis of IIA Testimony on H.R. 3365, Driver's Privacy Protection Act, February 4 [6] IIA Proposes Bold Restructuring of Depository Library System in Senate Testimony [7] IIA Adopts Flexible Strategy for Telecommunications Legislation [8] Compilation Copyright at the Supreme Court: Round 2 in 1994? by Jim Schatz, IIA Proprietary Rights Committee, and Marla Hoehn, Heins, Schatz and Paquin ----------------------------------------------------------------- [1] ABOUT "INFORMATION POLICY ONLINE" INFORMATION POLICY ONLINE (IIA-IPO) is an online newsletter published on the Internet by the Information Industry Association and distributed free of charge. The purpose of the Newsletter is to inform readers of events and activities affecting information policy, and to present an information industry viewpoint concerning these events and activities. The contents of IIA-IPO will be news, views, and documents. _News_ will be factual briefings on legislative, regulatory, and programmatic activities at the federal, state, and local level that pertain to information policy. _Views_ will be viewpoints on the news: an official IIA position, or other viewpoints. _Documents_ will be online copies of documents pertinent to information policy. The target audience for IIA-IPO is any persons inside or outside the information industry, members of IIA and nonmembers, who are interested in information policy. IIA-IPO is copyrighted by the Information Industry Association; however, IIA-IPO is distributed without charge and may be freely reproduced and redistributed. Please acknowledge IIA-IPO as the source of the information when quoting or redistributing the newsletter. TO SUBSCRIBE TO IIA-IPO: Send the message "subscribe" to . ----------------------------------------------------------------- [2] ABOUT THE INFORMATION INDUSTRY ASSOCIATION THE INFORMATION INDUSTRY ASSOCIATION, founded in 1968, represents leading organizations involved in the generation, processing, distribution and use of information. IIA is home base for businesses offering the innovative products and services that make up the information marketplace. IIA's 500 member companies range from small entrepreneurial enterprises to Fortune 500 firms -- from database providers to hardware and software manufacturers, telecommunications companies to financial institutions, print and CD-ROM publishers to electronic and voice mail and messaging services, and market research to venture capital firms. Since its inception, IIA has been the only trade association in the United States addressing the broad concerns and diverse market needs of the dynamic information industry. In short, IIA fosters a responsive and responsible forum for promoting a competitive and growing information marketplace. WILL THE "REAL" IIA PLEASE STAND UP! Recently, the Internet has witnessed some discussion about another IIA, the International Internet Association. The Information Industry Association has no relationship with the International Internet Association. The Information Industry Association regrets any confusion that may arise over the two IIA's, but has no intention of ceding to the International Internet Association the use of the initials IIA. The Information Industry Association was here first; this IIA celebrated its 25 year anniversary last October! ----------------------------------------------------------------- [3] WELCOME! by Steve Metalitz Vice President and General Counsel, IIA and Editor, Information Policy Online Welcome to the first issue of Information Policy Online! February is budget season in Washington. The backs of policy wonks, reporters and lobbyists bend under the weight of volumes of turgid prose and impenetrable charts, setting forth the Administration's taxing and spending proposals for the fiscal year beginning next October. Sighs of austerity and cries of profligacy fill the air, as various interests seek to put their spin on the newly unveiled numbers. Pundits take the vital signs of the plans on Capitol Hill, and eventually the budget's bird's-eye perspective gives way to the devilish details of how the public's money will be spent. This February, things were a bit different. Once again, forests were sacrificed, and the Government Printing Office spewed forth budget paper (over 2000 pages this year), but the budget documents were also distributed in electronic form (through dial-up access, Internet, and Commerce Department CD-ROMs). The political messages, too, were a bit different. The Administration stressed the importance of keeping the deficit on a downward path, but at the same time it returned to the theme of "investment in long-term economic growth," calling for selected increases in spending along with the many proposed spending cuts. In true Washington fashion, the White House scooped the mammoth budget release with the strategic leak to the news media of a much shorter document: the list of 115 federal programs President Clinton wants Congress to eliminate this year. Six of these are library grant programs administered by the Department of Education. But a closer review of the budget reveals that programs for information dissemination were not only spared the ax, but targeted for substantial increases, in the name of "investment." Some of the major boosts are contained in a line item called "National Information Infrastructure." The National Telecommunications and Information Administration (NTIA), part of the Department of Commerce, had $26 million to spend this year in hooking up non-profit institutions with Internet and other networks. The proposal for next year: $100 million. The National Technical Information Service (NTIS), also in Commerce, is supposed to be self-supporting. But the President wants to appropriate 18 million taxpayer dollars -- more than one-quarter of the agency's 1994 budget -- for a "one-time pool of investment capital to help support the electronic dissemination of data generated by the Federal Government." The big bucks come under the rubric of "High Performance Computing and Communications," encompassing a number of federal initiatives from support for supercomputing to funding of Internet resources. HPCC spending by seven agencies is slated to rise 23%, to $1.15 billion, in fiscal 1995. Also participating in the HPCC largesse is perhaps the biggest single winner among federal agencies: the National Institute of Standards and Technology (NIST), yet another Commerce unit, whose budget will nearly double (to $935 million), partly for information infrastructure programs. As the budget ritual unfolded, the U.S. Advisory Council on the National Information Infrastructure convened its first public session February 10. This group of two dozen private sector representatives is (among other things) supposed to help the government more clearly define the problem that its information infrastructure spending programs should be targeting. Not only the Advisory Council deliberations, but also the spending programs sketched out in the 1995 budget, must be guided by an appreciation for the value of information content. Once the glitz and glitter of the exciting new networks, hardware, and software has faded, content is the deliverable that will mean the most to the customers of the NII -- whether they are receiving "universal service" or participating in a true information marketplace. IIA will be advocating the content focus in the months ahead. ----------------------------------------------------------------- [4] GIVING UNCLE SAM THE KEYS: ADMINISTRATION EMBRACES CLIPPER Last April 15, when the Clinton Administration unveiled its plans to adopt the controversial "Clipper chip" technology for encrypting government communications, it kicked off a "comprehensive interagency review of encryption technology." That review came to an abrupt conclusion February 4, with the announcement that the Administration will steam full speed ahead with Clipper. Specifically, the February 4 decisions included: - Approval of the "escrowed encryption standard" as a voluntary Federal Information Processing Standard (FIPS). Approval came despite virtually unanimous opposition to the standard from business, academia, and public interest groups. The Administration dismissed the opposition as representing "misunderstanding or skepticism." - Designation of two federal agencies as "escrow agents" to hold the digital "keys" to every telephone and other device manufactured with the Clipper chip system. The National Institute of Standards and Technology (NIST) and a Treasury Department unit will give U.S. law enforcement access to communications encrypted using Clipper, upon presentation of necessary legal documentation (usually a search warrant). - Limited streamlining of export control procedures for encryption products. However, the Administration rejected the idea of loosening up export controls generally, warning that in that case encryption would "be used extensively by terrorists, drug dealers and other criminals." Even more troubling is the report that the Administration may support a revived proposal to require redesign of digital telecommunications systems to facilitate government monitoring. The proposal, long a pet project of federal law enforcement agencies, died on the vine during the Bush Administration, but Clinton Administration support could breathe new life into this costly idea, which IIA and most other industry and privacy groups have long opposed. For the record, the Administration set up an interagency group to "work with industry to ensure that new digital telecommunications systems are designed in a way that ensures that [they] do not prevent court-authorized wiretaps." The next public discussion of the issues may take place at the March 23-24 meeting of the federal Computer System Security and Privacy Advisory Board, at which the February 4 announcements will be reviewed. Meanwhile, IIA has joined with numerous other associations in urging support for legislation (H.R. 3627) to liberalize export control policies on encryption technology. A letter to Chairman Lee Hamilton of the House Foreign Affairs Committee, cosigned by groups ranging from the ACLU to the U.S. Telephone Association, points out that "the main impact of export controls on crytography today is to limit American citizens' and corporations' access to high quality privacy protection." ----------------------------------------------------------------- [5] BILLS TO CUT OFF ACCESS TO DMV RECORDS GREETED SKEPTICALLY BY HOUSE The proposed Driver's Protection Privacy Act "gets Congress off on the wrong foot," by presuming that records held by state departments of motor vehicles (DMVs) should be closed to the public, IIA Vice President and General Counsel Steve Metalitz told the Civil and Constitutional Rights Subcommittee of the House Judiciary Committee February 4. Metalitz testified on the second day of hearings on H.R. 3365, introduced by Rep. James Moran (D-VA). The DPPA was motivated by use of DMV records to stalk and harass citizens. Groups representing crime victims enthusiastically supported reducing access to DMV and other records held by state governments. But the hearings also showcased opposition to the current bill from press groups, direct marketers, and private investigators, as well as IIA. Some of these criticisms seemed to strike a responsive chord with subcommittee members, including Rep. Don Edwards (D-CA), the panel chair, who emphasized that the House would not rush to rubber-stamp the DPPA's earlier approval (without any hearings) by the Senate. IIA's testimony urged Congress to "target the specific abuses" of DMV records that have been identified, while maintaining that "records collected by government should be presumed public, and generally accessible, unless it is necessary to restrict public access in order to protect privacy or achieve a similarly important social goal." IIA also argues that the DPPA "uses the wrong tool -- criminal penalties -- for the job it proposes to undertake," and urged Congress to "totally decouple" any access restrictions from criminal sanctions. Despite the skepticism expressed by some House subcommittee members, the DPPA continues to enjoy a favorable prognosis, since the Senate has already passed a version of the legislation as an amendment to the crime bill, a "must-pass" measure in the current Congress. It appears that the House subcommittee will seek to mark up an alternative measure on DMV records, perhaps as soon as early March. SYNOPSIS OF IIA TESTIMONY ON H.R. 3365, DRIVER'S PRIVACY PROTECTION ACT FEBRUARY 4, 1994 The Information Industry Association believes that the DPPA, in its current form, does not strike the right balance between privacy concerns and fundamental principles of public access to public records. Access to public records is important to American businesses and consumers, as well as serving other important roles in our democratic society. Among other uses, we rely on records from state Departments of Motor Vehicles (DMVs), as well as land, court, voter registration, corporate filing, and other public records, to make it faster, cheaper and more efficient to -- - extend credit to individuals and businesses; - detect and combat fraud; - conduct litigation and enforce court orders; - undertake "due diligence" investigations before hiring employees or concluding business deals; - conduct survey research; - make siting and land use decisions; and - undertake marketing efforts. The DPPA gives short shrift to these benefits because it treats DMV records as "presumed secret," subject only to listed exceptions. A "presumed public" approach would be more consistent with our legal framework for access to public records. Congress could begin by making it a federal crime to use DMV records for illegal purposes, which DPPA does not do. Federal legislation should then focus on specific uses which are vulnerable to abuse --in the case of DMV records, license plate look-ups of names and residential addresses. While most of these are legitimate, Congress could, if necessary, define which look-ups should be prohibited. This would leave a broad spectrum of other uses free of unneeded federal restrictions. Under the DPPA approach, state DMVs will inevitably be drawn into expensive, time-consuming and intrusive inquiries about the purposes and motivations of members of the public who seek access to DMV records. These costs could be reduced, though not eliminated, by broader exceptions to the access ban. Access for legitimate purposes could be preserved by clarifying the exceptions for litigation use, survey research, verification, antifraud measures, and marketing, including a longer time period for implementing any "opt-out" systems. The criminal sanctions of the DPPA, especially the Senate-passed version, will have a chilling effect on legitimate uses. Criminal law is the wrong tool for enforcing information practices rules. DPPA should be decoupled from criminal sanctions as much as possible. Under DPPA, the federal government would control areas of traditional state concern: defining, and regulating access to, public records. States should have more flexibility to achieve the objectives of the legislation. If Congress decides sweeping federal pre-emption is needed, it should also require uniform treatment of requests for access to DMV records. ----------------------------------------------------------------- [6] IIA PROPOSES BOLD RESTRUCTURING OF DEPOSITORY LIBRARY SYSTEM IN SENATE TESTIMONY On February 3 and 10, the Senate Committee on Rules and Adminstration held hearings on Title XIV of H.R. 3400, legislation to implement the Clinton Administration's National Performance Review recommendations, and other proposals to change the role of the Government Printing Office. While much of the testimony focused on allocation of responsibilities for government printing, IIA took the opportunity to urge the Senate to "reinvent" the Depository Library Program to better meet the needs of information users. In his testimony on February 3, Public Printer Michael DiMario argued that a centralized information distribution system was essential to keep costs of the program down and to ensure that all documents (including agency electronic documents) are made available. OMB Deputy Director Alice Rivlin defended the Clinton Adminstration's position that GPO's traditional monopoly over federal government printing should be eliminated "by devolving printing procurement responsibility to the agencies and by giving the President responsibility for printing policy-making for the Executive Branch." She stressed GPO's role as a "value-added service provider" to federal agencies, and testified that "this model -- GPO as a competitive service provider in a context where agencies decide how best to carry out their missions -- should apply to all facets of GPO's business...". The Administration proposal calls for no immediate changes in the depository library system. IIA's testimony at the February 10 hearing addressed H.R. 3400 as introduced and as adopted by the House. IIA Vice President Steve Metalitz expressed support for the Administration's proposal to write into law dissemination policies included in OMB's Circular A-130, but pointed out several provisions in the House-passed version of H.R. 3400 which are of concern to the IIA, notably those which transfer lead responsibility for federal information dissemination to the Library of Congress without any guidance as to how that institution is to carry out this function. The House-passed bill would give the Superintendent of Documents a virtual "blank check" to remedy situations where he believes that agencies are not providing "adequate access" to government documents. IIA's testimony went on to outline a model for significantly reforming the Depository Library Program in response to fiscal and technological pressures. "The reformed system should be demand-driven, consumer-oriented, and characterized by choice and diversity. It should reflect sound information policy principles, and should empower those most knowledgeable about the information needs and desires of library users: librarians." Metalitz urged the Senate to consider a "direct support" model, in which libraries would use federal funds to acquire information products directly from federal agencies, from multi-agency sources, from non-profit or private sector providers or a combination of sources. The direct support system, he noted, would give libraries more flexibility to tailor their government information acquisitions to meet the needs of their customers; anticipate technological trends that favor decentralization of information resources; and make agencies directly accountable to libraries as customers. Neither of the Senators present for the February 10 hearing -- chairman Wendell Ford (D-KY) and ranking Republican Ted Stevens (R-AK) --asked many specific questions about IIA's proposed direct support model for the Depository Library System. However, it was apparent that neither Senator had much enthusiasm for either the original or House-passed version of H.R. 3400. The fate of the legislation, which contains numerous provisions falling within the jurisdiction of other committees, remains uncertain. ----------------------------------------------------------------- [7] IIA ADOPTS FLEXIBLE STRATEGY FOR TELECOMMUNICATIONS LEGISLATION IIA has adopted a flexible strategy to assure that the information industry remains active in the very fluid atmosphere surrounding telecommunications legislation on Capitol Hill. The issue at hand is the definition that Congress will use to establish pro-competitive safeguards for regional Bell operating companies that wish to participate in the information services market. IIA has long supported a broad definition of "enhanced services" established by the Federal Communications Commission in 1980. However, none of the bills currently pending before Congress adheres to this definition. The Senate bill, S. 1822, is better than the House bill in this regard, since the Senate proposal includes an expanded definition of "electronic publishing" subject to full safeguards, and provides limited safeguards for the full range of enhanced services. House and Senate committees have put the issue on the fast track, with subcommittee mark-ups in the House scheduled before March 1. The Senate Commerce Committee began hearings February 23, and plans completion of its bill before the end of March. IIA will seek the most inclusive definition possible for information services subject to pro-competitive safeguards -- even if it should prove impossible to gain the full protection offered by the "enhanced services" definition. IIA intends to remain an active participant in crafting effective telecommunications legislation that will serve the best interests of the information industry as a whole. ----------------------------------------------------------------- [8] COMPILATION COPYRIGHT AT THE SUPREME COURT: ROUND 2 IN 1994 by Jim Schatz, Chair, IIA Proprietary Rights Committee and Marla A. Hoehn, Heins, Schatz & Paquin Ever since the U.S. Supreme Court decided the _Feist Publications_ case in 1991, information companies have been waiting for clearer signals from the courts about the scope and strength of copyright in compilations, including directories, collections of public domain materials, and factual databases. Now, cases on yellow pages directories, baseball pitching statistics forms, and personal organizers have found their way through the judicial system, and offer the high court a change to clarify its _Feist_ ruling. _Bellsouth Advertising & Publishing Corp v. Donnelley Info. Publishing, Inc._, 999 F.2d 1436 (11th Cir. 1993), _petition for cert._ filed (No. 93-862; Nov. 30, 1993) is a yellow pages copyright case. In developing its own directory, defendant used certain information in plaintiff's directory, including the name, address, telephone number, business type and unit of advertising of each of plaintiff's subscribers. In September, the full Eleventh Circuit Court of Appeals (based in Atlanta) held that this did not amount to copyright infringement because no original elements of selection, coordination, or arrangement of the first directory were copied. The court concluded that plaintiff's grouping of individual listings under appropriate headings was not "original." Although finding that defendant actually took a "substantial" amount of information from plaintiff's directory, the Court nevertheless decided that similarities in headings between the parties' directories was due more to functional considerations and standard industry practice than to the fact that defendant copied plaintiff's headings. A strong dissenting opinion argued that plaintiff's independent selection of headings for its directory, its assignment of listings to the various headings, and its selection of businesses to include in the directory were acts of originality warranting copyright protection. The dissent noted that the defendant's subject headings were based on the plaintiff's, and concluded that the second yellow pages directory was "substantially similar" in arrangement to the first one, including the repetition of telltale errors. In _Kregos v. Associated Press_, 3 F.3rd 656 (2nd Cir. 1993), _petition for cert. filed_ (No. 93-863; Nov. 30, 1993), the Second Circuit Court of Appeals in New York considered whether the defendant violated the plaintiff's copyright in a form presenting statistics on baseball pitchers. Ultimately, the court held that the plaintiff was entitled to copyright protection, but that the defendant had not committed an infringement, because four of the ten statistical categories used in the defendant's form differed from those in the plaintiff's form. The Ninth Circuit Court of Appeals in San Francisco reached a different result in _Harper House, Inc. v. Thomas Nelson, Inc._, 1993 WL 346546 (9th Cir. Sept. 10, 1993), a case involving competing personal organizers. The court concluded that plaintiff's organizers were entitled to only limited copyright protection, they consisted largely of uncopyrightable elements such as blank forms. However, because defendant's organizers contained 63 out of 76 sticker label headings contained in plaintiff's organizers, and because of other close similarities, the court found sufficient evidence to show "bodily appropriation" of the selection, coordination and arrangement of plaintiff's organizers, even though there were also differences in the selection or arrangement of sections. As it happens, all three of these decisions were issued in early September, and parties in all three cases have asked the U.S. Supreme Court for a ruling. The Supreme Court hears only a small fraction of cases presented to it, and generally decides only one or two copyright cases each year. However, the fact that three different courts of appeal have applied the _Feist_ decision differently could help persuade the Supreme Court to consider these cases, in order to resolve apparent inconsistencies. The Court will probably decide this spring whether to consider any of the cases; if it agrees to do so, a final decision would probably come by mid-1995. IIA will consider filing a friend of the court brief if the Supreme Court agrees to hear any of these cases. On January 24, 1994, the Supreme Court denied the petition for certiorari in the BAPCO case. Also, the press has reported a pending settlement of the Harper House case. It appears, therefore, that the remaining chance for the Supreme Court to clarify its Feist decision rests with the Kregos case. IIA will monitor these cases for impact on the interests of information companies. ----------------------------------------------------------------- ----------------------------------------------------------------- President of the IIA: Kenneth B. Allen Editor of Information Policy Online: Steven J. Metalitz, IIA Vice President and General Counsel Consulting Editor: J. Timothy Sprehe, Sprehe Information Management Associates For messages to IIA-IPO: Voice: (202) 639-8262. Fax: (202) 638-4403. ----------------------------------------------------------------- ***************************************************************** .