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 BBS LEGISLATIVE WATCH
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 AREAS TO WATCH IN THE NEXT CONGRESS
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 by Shari Steele

Last month, I highlighted legislation that had been considered by the 102nd
Congress. This month, I would like to tell you about some legislation that is
likely to be introduced in the upcoming Congress.

TELECOMMUNICATIONS INFRASTRUCTURE TO BE DEBATED

When Congress ended its session last year, several bills were being
considered by various committees regarding the orderly development of a
telecommunications infrastructure, or a national network for communicating
with data and video as well as voice. We expect the 103rd Congress to pick up
the infrastructure debate right where the 102nd Congress left off. EFF is
excited about this, because one of the bills, that to be introduced by
Representative Edward Markey (D-MA), chair of the House Subcommittee on
Telecommunications and Finance, incorporates EFF's Open Platform proposal.

EFF's Open Platform proposal is one of the most significant civil liberties
initiatives on which we work. The future of communications lies in a national
network (or network of networks -- infrastructure) over which data, video and
voice transmissions will be sent. The bigger the network, and the more
carefully planned, the greater the diversity of speech and people who can
access the network. Ensuring that the network is built in an orderly,
systematic way that focuses on affordability, wide accessibility and
timeliness is one of the greatest contributions EFF can make to promote First
Amendment values. We believe that a digital network with those
characteristics would be an "open platform" for information services that
could enable individuals to fully participate in the information age, just as
the PC was the "open platform" that broadened access to computing power and
stimulated the development of software applications.

While we acknowledge that broadband capacity will be needed in the future,
EFF maintains that it is vitally important to make a digital information
infrastructure available nationwide as soon as possible. And technology is
available to make the current narrowband telephone network perform many of
the same functions as a broadband network. This technology is called ISDN, or
Integrated Services Digital Network. As Representative Markey has explained,
"While we are waiting and working toward a high capacity broadband network,
it makes sense to take the transitional step toward that goal by endorsing
ISDN, or digital service, as a way to begin to develop the information
marketplace."

A recent economic analysis of ISDN found that this service could be made
available for less than $10 per month to individual subscribers. With an ISDN
platform in place, information entrepreneurs would be able to reach an
expanded market, where they could offer text, video and interactive
multimedia services. Public agencies, private communications firms, computer
manufacturers, publishing companies and individuals would then be able to
access an inexpensive, widely available medium where they could publish and
communicate electronically. We expect Representative Markey to reintroduce
his bill early in the 103rd Congress.

FBI'S WIRETAP PROPOSAL WILL RETURN

During the last Congress, the Federal Bureau of Investigation (FBI) proposed
legislation that would require all providers of electronic communications
services to design their systems to facilitate authorized wiretapping. This
proposal affects more than telephone companies. Computer software and
hardware companies, network providers and BBS SysOps would be affected, as
well.

In short, the FBI proposes to require all service providers that enable their
users to send or receive wire, oral or electronic communications to "provide
such assistance as necessary to ensure the ability of government agencies to
implement lawful orders or authorizations to intercept communications." The
FBI proposes that Congress establish a procedure where communications
technologies would be required to be certified by the Attorney General that
they were open to government surveillance. The proposal does not suggest how
providers are to ensure this agency access or how they are to pay for it.

Privacy advocates are concerned that any attempt to ensure easy access by the
FBI leaves open a "back door" that could be exploited by others to breach
legitimate privacy and security needs in order to alter or destroy
information for personal gain or extortion, or merely to create havoc.
Considering the extent to which records, transactions, balances, histories
and other pieces of vital information are stored electronically, this risk is
a grave one. Communications and computer companies are concerned that this
added burden will increase their costs and make their software more
vulnerable to security breaches by interested parties without a legal right
to perform wiretaps. They are also afraid that their products will not be
able to compete abroad with foreign-made software that is more secure.

Fortunately, the FBI's proposal, entitled "Digital Telephony," while
supported by the Bush administration and widely distributed throughout the
last Congress, was never formally introduced for consideration by a member of
Congress. The FBI, however, remains undaunted. The Bureau has worked through
the Congressional break to refine its proposal to persuade the new Clinton
Administration to support it and push it in the next Congress. A broad
coalition of organizations, brought together by EFF, is ready to oppose the
next generation of the FBI's Digital Telephony proposal.

ACCESSING ELECTRONIC DATA UNDER FOIA TO BE CONSIDERED

In the last Congress, Senator Patrick Leahy (D-VT) introduced a bill to amend
the Freedom of Information Act (FOIA) to establish guidelines to insure
public access to the electronic version of stored government data, as well as
to printed public information. The Senate Subcommittee on Technology and the
Law held hearings on the bill, but it was never considered by the full
Congress. We expect Senator Leahy to reintroduce his bill in the upcoming
Congress.

First enacted in 1966 and amended in 1974 after the Watergate scandal, the
Freedom of Information Act (FOIA) has played a vital role in requiring the
federal government to be more open. The framers of the Act (and the framers
of the Constitution) believed that democracy without knowledge is meaningless
-- a citizenry cannot exercise its power to govern itself if it does not
understand its choices and the ramifications of those choices. The public has
a right to know the actions of its government.

Over the past 25 years, the public has benefited from FOIA in countless ways,
including exposures of: waste, fraud and abuse in the government; consumer
health and safety risks; corporate destruction of the environment; denials of
individuals' civil and constitutional rights; arms sales to foreign
governments; and abuses of power by federal agencies, such as the Central
Intelligence Agency and the Federal Bureau of Investigation. From revelations
about the dangers of the Ford Pinto gas tank and Red Dye Number 2 to
accidents at the Rocky Flats Nuclear Weapon Plant, FOIA has enabled the
public to be informed. A congressional committee has estimated that as many
as 500,000 requests are filed each year under the Act. These requests have
enabled journalists, scholars, public interest groups, corporations, private
citizens and others to build a solid public accounting of government's
activities in a variety of areas.

However, as powerful a tool as FOIA has been, the Act was passed before
computers were widely used to store government information. There are no
explicit guidelines that agencies must follow when asked to turn over
computerized information requested under the Act, nor are there guidelines on
the form in which agencies must release the data. As a result of this lack of
standard guidelines, government agencies have responded to requests for
electronically stored information with a great deal of latitude, with some
agencies rejecting them outright while others provide them in full, and
others use the law's ambiguity to evade or sandbag requests. Some agencies
have held that if any computer programming is required to extract requested
data, the result constitutes a new record and is therefore not required to be
provided under FOIA. Government officials have even gone so far as to
undermine the intent of FOIA by releasing huge volumes of paper records to
effectively hide information that could be found instantly if the records had
been released in the form of computer files.

Senator Leahy's bill attempts to correct this misuse of the Act. Among other
things, the bill would amend FOIA to: enable people making FOIA requests to
receive records in the format in which they are maintained, require
reasonable efforts by an agency to provide records in an electronic format
even when those records are not usually maintained in that format, and change
the definition of "record" to include electronic information and "search" to
include an automated examination to locate records.

GOVERNMENT MAY HAVE TO DISSEMINATE INFORMATION ELECTRONICALLY

As discussed above, the Freedom of Information Act requires that information
be available to the public on request but does not require agencies to
disseminate it widely. The law governing the dissemination of public
information, the Paperwork Reduction Act of 1980 (PRA), does specifically
mention computers, but limits the requirement of agency use of electronic
technology to making government more effective and efficient. While this is a
laudable goal, PRA does not make a requirement that requested information be
actively disseminated in computer-readable form. This has resulted in
government agencies relying on private sector information distributors, such
as Westlaw and Legis-Slate, to make computerized public information
available. These distributors "add value" to the information by formatting
and organizing it, but often the information -- publicly gathered and owned
information -- is only offered at prices beyond the reach of most citizens.

While a diversity of public and private sources of government information is
a valuable hedge against government monopolization and control over access to
information, total reliance on the private sector to make public information
available electronically is not a good idea. In addition to the threat of
information only being available to those wealthy enough to pay for it, in
many cases, valuable health, safety and environmental information cannot be
produced at a profit. If there is no profit to be made, private information
vendors are not interested in offering the information at all.

Congress came close to enacting an amendment to the Paperwork Reduction Act
that would have required government agencies to disseminate public
information electronically while not discouraging private sector distribution
and enhancement. The legislation, entitled "The Federal Information Resources
Management Act of 1991," was referred to the Senate Governmental Affairs
Committee last session and never re-emerged for full Congressional
consideration. We expect this important measure to be reintroduced in the
upcoming Congress.

Congress also came close to enacting a law that would have made citizen
access to and knowledge of government information much greater. The GPO WINDO
Act was designed to set the Government Printing Office (GPO) up as a single
point of online access to a wide range of federal databases. (WINDO stands
for Wide Information Network Data Online.) The Act, which had a whopping 37
cosponsors in the House of Representatives, would have established online
access to public government information through GPO. The GPO WINDO would be a
single account, "one-stop shopping" way to access and query federal
databases, complementing other agency dissemination efforts. Information
would be priced for most subscribers at approximately the incremental cost of
dissemination and provided without charge through the depository library
system. Despite broad support, the bill was not passed by the last Congress.
We expect it to be reintroduced in the upcoming year.

TECHNICAL PROBLEMS WITH ECPA FORESHADOWED

Two years ago, a task force was called together by Senator Patrick Leahy,
chair of the Senate Judiciary Subcommittee on Law and Technology, to report
on the privacy implications of the increasing use of radio spectrum to
transmit voice and data communications, such as with the new personal
communications services (PCS) and wireless local area network (LAN)
technologies. The task force recommended amendments to the Electronic
Communications Privacy Act (ECPA) to give further legal protection to
radio-based communications. The task force also called on Congress to explore
technical means, such as encryption, for protecting private,
radio-transmitted communications from interception. Congress has yet to act
on the task force's recommendations. We are hopeful that it will do so over
the coming year.

[Shari Steele is a Staff Attorney with the Washington office of the
Electronic Frontier Foundation (EFF), a nonprofit organization dedicated to
advancing freedom and openness in computer-based communications. Send your
legal questions to Shari at ssteele@eff.org (Internet) or c/o Boardwatch
magazine - Editor]