CongressLine - Don't Look Back! Internet Legislation in the Year 2000

Carol M. Morrissey has been a Legislative Specialist in Washington, D.C. for 14 years. She is a lawyer and legislative expert, and has authored a Congressional update column for LLRX.com since 1996.

Congress is taking a great deal of flack over its performance in 1999. Phrases like "do nothing," "lackluster" and "pro-Big Business" are being bandied about in the end of the year wrap-up columns. However, Congress passed an Omnibus Spending bill (P.L. 106-113, signed by the President on Nov. 29, 1999) which contains anti-cybersquatting provisions to protect businesses from those who register company Internet addresses in bad faith. They also amended the statutory damages provisions of Title 17 of the U.S. Code (P.L. 106-160, signed by the President on Dec. 9, 1999) to target "digital piracy" by increasing the statutory damages for copyright infringement. So, all criticism of Congress aside, we will now turn our attention to the unfinished business of 1999 which Becomes the Business of the Year 2000.

Encryption

The Department of Commerce published its Interim Final Rule on Encryption Export Regulations in the Federal Register dated January 14, 2000. (The text of the regulations in pdf format, a press release from Secretary Daley and a fact sheet are all available at http://www.bxa.doc.gov/Encryption/Default.htm.) The preamble to the regulation states that this rule implements the encryption policy announced by the Administration in September of 1999. Comments on this interim rule are due by May 15, 2000. Although there are encryption proposals pending in Congress (H.R. 850 and S.798), Rep. Goodlatte (R-VA), (sponsor of the House bill) had stated that he would wait until Commerce released its final regulations before he pressed forward. (The text of the December draft encryption regulations can be accessed at http://www.cdt.org/crypto/admin/991217draftregs.shtml. The November version of the regulations can also be accessed from this website.)

Internet Filtering

There are several bills pending before Congress concerning the use of Internet filtering products. S.97, sponsored by Sen. McCain (R-AZ), was reported out of the Senate committee on Commerce in August and was placed on the Senate Legislative Calendar. His bill would require schools and libraries to install filtering technology in order to qualify for the E-rate telecommunications discount. Sen. Santorum (R-PA) has introduced a compromise bill (S.1545), endorsed by the American Library Association (ALA), which allows for the option of either installing software or implementing Internet usage policies. (Please see the press release at http://www.senate.gov/~santorum/press/991103.htm.)

This issue is of great concern to educators and librarians, especially upon the heels of the decision by a library in Michigan to disconnect their Internet terminals entirely rather than deal with the concerns of the community. The White House has indicated that libraries should be proponents of responsible Internet usage and has not endorsed either the McCain or Santorum legislation. (For an analysis of filtering proposals, please go to http://www.ala.org/washoff/e-rate.html.)

Internet Gambling

The National Gambling Impact Study Commission released their report on gambling in June of 1999, which, on the issue of gambling online, recommended a total ban. (The text of the Final report is at http://www.ngisc.gov/reports/fullrpt.html.) The Commission's recommendations put in perspective the current legislative proposals, one which has passed the Senate (S.692, by Sen. Kyl (R-AZ)) and one which is pending before the House committee on the Judiciary (H.R.3125, by Rep. Goodlatte). House Democrats have criticized the Goodlatte bill, saying the exemptions negate the effectiveness of the bill and the overall result will be more overseas gambling operations. (A press release on H.R.3125 can be found at http://www.house.gov/apps/list/press/va06_goodlatte/NR.html.) The Administration is expected to introduce a bill this year with an eye on the Gambling Commission's recommendations.

Spam - Unsolicited Junk E-mail

Spam legislation became all the rage starting in the 105th Congress. (Please see Unsolicited Commercial Electronic Mail: Spam for the Masses, June 1998 CongressLine, for an examination of spam legislation.) Even though it was au courant as a topic, it never generated much interest until November of 1999 when the House committee on Commerce, subcommittee on Telecommunications held hearings on four proposals; H.R.3113, H.R.2162, H.R.1910 and H.R.3024. (For access to all of the testimony from this hearing, please click here.) Although the Senate has not held any hearings on its proposal (S.759), the House is expected to continue their hearings this year.

Most spam legislation would require, at the very least, that all commercial e-mail have a valid return address. Some of the proposals also specify fines per unsolicited e-mail or per day. The Senate bill would give consumers the choice of "opting out" of junk mail by placing their domain name on a protected list which would be maintained by the FCC. The Administration has not placed its support behind any of the current proposals.

Digital Signatures

Digital or electronic signature legislation is almost certain to be addressed early this session. Both the Senate (S.761) and the House (H.R.1714) versions were passed in November 1999. (For an examination of digital signature legislation in 1999, please see Digital Signature Legislation Here and Abroad, November 1999, CongressLine) The Administration favors the Senate bill, that clearly states its provisions are effective only in the event that a state has not adopted the Uniform Electronic Transactions Act (UETA) promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). (For a summary of the UETA, please go to http://www.nccusl.org/summary/Uetasum.htm.) A "Fact Sheet" released by the UETA tracks states which have adopted the UETA as well as pending UETA bills. Pennsylvania and California are presently the only states listed under "state adoptions" but several other states plan to bring up the measure this year. (The UETA fact sheet is at http://www.nccusl.org/factsheet/Ueta.htm.) On Capitol Hill, because the House and Senate bills are fairly disparate, it is likely that a conference is in the cards for this legislation.

Internet Taxation

If there is a hot button issue for the Year 2000, Internet taxation may well be it. This political hot potato is even being tossed around by the Presidential hopefuls (Sen. McCain favors a permanent moratorium, Governor Bush is proposing a 3 to 5 year extension on the moratorium and Sen. Bradley and Vice President Gore support extension to 2001).

ACEC (The Advisory Commission on Electronic Commerce) held their last open forum in San Francisco in December 1999. (For a discussion of the issues surrounding Internet taxation and ACEC's role in the process, please see Internet Taxation - Who Will Prevail, October 1999,CongressLine.)

Reports from the December meeting indicate that the Commission is more fragmented than ever. Gov. Gilmore, the Chairman, is absolutely committed to the idea of keeping the Internet tax free. His proposal is to eliminate the federal excise tax on telecommunications, let the states levy a 1% telecommunications tax and permanently ban Internet taxes. Gov. Leavitt of Utah, Chairman of the National Governor's Association (NGA), has emerged as the leader of the opposition. The NGA proposal is to allow states to use tracking software so Websites can charge tax based on the items destination.

Among the many proposals that ACEC discussed at their meeting was H.R.3252 by Rep. Kasich (R-OH). (A press release on H.R.3252 can be found at http://www.house.gov/budget/press/111099release.html.) H.R.3252 would ban Internet taxation in order to encourage the growth of electronic commerce and also for consumer privacy reasons. ACEC also considered its Issues and Policy Options Paper at the meeting. (The text of the Paper can be accessed from http://www.ecommercecommission.org/releases/acec1210.htm. All of the proposals considered at the December ACEC meeting can be found at http://www.ecommercecommission.org/proposal.htm.) So where does all this leave us - the American public? ACEC is still scheduled to release its report at the end of April, 2000 and the Commission's final recommendations will be pivotal for all the parties involved in the issue.

State Legislation

The states are becoming more proactive than ever in introducing Internet related legislation and three states which have developed initiatives for the Year 2000 are Arizona, Colorado and Maryland. Two Arizona legislators, in conjunction with the state Attorney General, have introduced a comprehensive Computer Crime Act of 2000, HB 2428. (For the text of the Act, please go to http://www.azleg.state.az.us/legtext/44leg/2r/bills/hb2428p.htm.)

This legislation addresses such issues as computer viruses, stalking over the Internet, "screen jacking" and "luring" or online solicitation involving children. Colorado's package, developed by the Governor's Commission on Science and Technology, encompasses spam, Internet taxation, software piracy as well as privacy issues. (The Commission's website is at http://www.state.co.us/govoit/scitech/missions.htm.)

Maryland's policy, which was formulated by the Maryland Information Technology Board, addresses both private and public issues. (The text of the recommendations can be found at http://www.gov.state.md.us/gov/technology/html/policy.html.) The panel recommends passage of the UETA, online access for all state agencies, e-mail addresses at birth and also considers consumer issues such as privacy and spam.

There are issues which have not been covered in the discussion above, such as whether the regulations being promulgated under the new financial services industry bill(P.L.106-102,Gramm-Leach-Bliley Act) will sufficiently protect consumer's without the need for further privacy legislation. However, Congress already has a formidable task for the Year 2000, let's not add to their burden unnecessarily.