Legislative Analysis
A Transparency Agenda for the New Administration
Legislative Analysis by Tim JonesThis is the final post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on government transparency. Previously, we've written about surveillance and intellectual property.
The past eight years have seen an increase in government secrecy and a decrease in government accountability. These factors have led to record levels of distrust in our government. Here are three steps the new leadership should take to begin to restore that trust:
Leverage new technology to provide authoritative government data. It's notoriously difficult or impossible to find and manage data on legislation (both passed and proposed), on election day polling locations, on the boundaries of Congressional districts, and on government spending. All of these should be made available online for the federal and state levels, in open formats, with no intellectual property restrictions on their use, distribution or ownership.
Review the entire information-classification infrastructure and reform it to create meaningful oversight. This system has been repeatedly abused by the White House. It leaves far too much discretion in administration hands, allowing them to "capture" legislators who want to be "in the loop," forbidding them from conducting any serious investigation into the administration's illegal or questionable practices.
Restore strength to the Freedom of Information Act (FOIA). Encourage government agencies to produce documents, instead of withholding documents under overbroad pretenses. This will allow the government to assist in uncovering misconduct. A good start would be to re-introduce and pass the Faster FOIA Act.
An Innovation Agenda for the New Administration
Legislative Analysis by Tim JonesThis is the second post in a three-part series outlining how the new leadership in Congress and the White House can restore some of the civil liberties we've lost over the past eight years. Today's post focuses on innovation, fair use and intellectual property. On Friday, we posted about privacy and surveillance, and tomorrow we'll discuss government transparency.
Today's intellectual property (IP) laws frequently fail to strike the proper balance between the rights of creators, copyright holders and the public. Powerful companies interested in maximizing their investments in intellectual property have run roughshod over the people's fair use rights. This has been especially problematic given the explosion of user generated content sites like YouTube, which celebrate creativity and innovation and actively encourage a remix culture. It is our hope that our government leaders will work to bring balance to the law. Here are some suggestions to get things started:
Repair the Digital Millennium Copyright Act (DMCA). Eliminate the ability of copyright holders to get statutory damages for noncommercial violations of copyright laws. Require proof of actual damages prior to any award based on copyright liability. Raise the requirements for content owners to receive preliminary injunctions against technologies in copyright cases. Congress should pass the FAIR USE Act and the Orphan Works Act.
Reform the U.S. Patent and Trademark Office (PTO), emphasizing its role to promote, rather than impede, innovation. Patents, by constitutional design, are supposed to "promote the Progress of Science and useful Arts." All too often today, patents are used to hold innovation hostage. Patent office procedures should be reviewed to ensure that patent examiners are being given the tools and incentives they need to challenge overbroad patent applications. Simultaneously, avenues for post-grant administrative review procedures should be broadened, ensuring that public interest groups can continue to raise post-grant challenges without restrictive time limitations on their participation.
Don't let the content industry use our government resources to pressure universities and others to participate in their intimidating peer-to-peer dragnet operations.
Show caution before regulating the use of technologies that limit consumer choice or consumer rights. In the United States and abroad, our government should advocate for policies that promote the ability of consumers to use technology they purchase however they choose.
A Privacy Agenda For The New Administration
Legislative Analysis by Tim JonesThis is the first post in a three part series directed at restoring some of the civil liberties we've lost over the past eight years. Today's post is about our privacy rights. We'll follow this up early next week with our thoughts on intellectual property rights and government transparency.
As new leaders prepare to move into the White House and Congress over the next few months, we'd like to call on them to restore Americans' privacy rights. Here's a little "wish list" we'd like to put forward:
Repeal or repair the FISA Amendments Act (FISAAA). There are a great many flaws in FISAAA, which was passed last Summer after a long and difficult fight. Most significantly, the provisions granting retroactive immunity from litigation to telecommunications companies complicit in the Bush Administration's warrantless wiretapping program should be repealed so that the millions of Americans who have been illegally surveilled can have their day in court.
Reform the Electronic Communications Privacy Act (ECPA). ECPA is a major law restricting the government's ability to surveil citizens and is in desperate need of reform. It has become dangerously out-of-sync with recent technological developments and Americans' expectation of online privacy. In particular, the privacy of personal data should not depend on how long an ISP has stored that data or whether the data is stored locally or remotely.
Reform the State Secrets Privilege. The State Secrets Privilege has been radically abused by the Bush Administration, particularly to shield its electronic surveillance activity from judicial review. The new administration should voluntarily reduce its use of the privilege, and work with Congress to reform the privilege and insure that claims of state secrecy are subject to independent judicial scrutiny.
Scale back the use of National Security Letters to gag and acquire data from online service providers. The REAL ID Act, with its requirement that Americans carry a national ID card, has been rejected by many U.S. states and should be federally repealed. Large-scale government data collection and data-mining projects like Automated Targeting System (ATS) should be reduced or eliminated. Invasive border-searches of electronic devices should be stopped.
DoJ Agrees: IP Enforcement Bill is a Bad Idea
Legislative Analysis by Fred von LohmannYesterday, the Department of Justice delivered a letter to Senators Specter and Leahy, blasting S.3325, the "Enforcement of Intellectual Property Right Act of 2008." In the letter, the DoJ echoes, almost exactly, the concerns that EFF and other public interest groups have had for months:
We strongly oppose Title I of the bill, which not only authorizes the Attorney General to pursue civil remedies for copyright infringement, but to secure "restitution" damages and remit them to the private owners of infringed copyrights. First, civil copyright enforcement has always been the responsibility and prerogative of private copyright holders, and U.S. law already provides them with effective legal tools to protect their rights....
Second, Title 1's departure from the settled framework above could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources. In effect, taxpayer-supported Department lawyers would pursue lawsuits for copyright holders, with monetary recovery going to industry.
Third, the Department of Justice has limited resources to dedicate to particular issues, and civil enforcement actions would occur at the expense of criminal actions, which only the Department of Justice may bring. In an era of fiscal responsibility, the resources of the Department of Justice should be used for the public benefit, not on behalf of particular industries that can avail themselves of the existing civil enforcement provisions.
Unfortunately, pressed by the entertainment industry, the Judiciary Committee has already approved S.3325, and the measure has been "hotlined" for speedy passage by unanimous consent. Let's hope that Congress, even if it won't listen to the public interest community, will listen when the Department of Justice itself says this is bad legislation.
UPDATE: Congress listens! At the request of Senator Ron Wyden of Oregon, the civil enforcement provisions have been stripped out of S.3325:
I am happy to announce that after substantial discussions Chairman Leahy and the Senate Judiciary Committee have agreed to remove provisions from S.3325 that would have resulted in a massive gift of scarce federal resources to Hollywood and the recording industry.
