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