What’s next for USA FREEDOM?

May 23, 2014

By Elizabeth Holland

On Thursday, the House of Representatives passed the USA FREEDOM Act (H.R. 3361) in a 302-121 vote. In the eleven months since the Edward Snowden leaks shed light on the National Security Agency’s (NSA) secret spying practices, the political tide has clearly shifted against government surveillance. But while House passage of the USA FREEDOM Act indicates that lawmakers are critical of current surveillance practices, the USA FREEDOM Act passed by the House does not go far enough to protect the privacy of library users and all Americans.

Despite calls from privacy advocates and open government groups to strengthen the USA FREEDOM Act before sending it to the floor, the House Rules Committee made substantial modifications to the bill due to pressure from the Obama Administration. In the version passed by the House, search selector terms used by the NSA to define the scope of data requests have been broadened in such a way that could still allow bulk collection. The bill also limits transparency reporting for companies who receive such requests for data, and wrongly shifts the role of declassifying court decisions from the attorney general to the director of national intelligence. Many of the USA FREEDOM Act’s original co-sponsors expressed disappointment with the weakened legislation, with 76 of the bill’s 152 co-sponsors ultimately voting against it.

Congress can still act to reign in the NSA’s spying programs as the Senate Judiciary Committee will likely take up the USA FREEDOM Act this summer. Several leading senators have said they want a stronger bill and Committee Chairman Patrick Leahy (D-Vt.) has pledged his commitment to “meaningful reform.”

AALL urges the Senate to support improvements to the USA FREEDOM Act to protect the privacy of all Americans and ensure greater transparency about their government’s actions. 


House Set to Vote on Weakened USA FREEDOM Act

May 21, 2014

By Elizabeth Holland

Tomorrow, the House of Representatives is expected to vote on a watered down version of the USA FREEDOM Act (H.R. 3361), after substantial changes to the legislation were made by the Rules Committee earlier this week. The revised bill includes a modified, broadened definition of the term “specific selection term,” which was the key to the bill’s proposal to end bulk collection of Americans’ data, as intended by the bill’s authors. The new version also significantly waters down corporate transparency provisions and is generally weak in its approach to reforming the National Security Agency’s (NSA) surveillance practices.

Reports suggest Administration officials had a hand in the substantial modifications made to the bill, following closed-door negotiations with the Rules Committee. A compromise version of the bill, which AALL supported, unanimously passed the House Judiciary and Intelligence Committees earlier this month.

AALL is disappointed by the changes made to the USA FREEDOM Act by the Rules Committee. Last week, in coalition with a number of open government, civil liberties, and privacy advocates, we urged the Committee to restore crucial transparency requirements and to make clarifications and technical corrections that would strengthen the USA FREEDOM Act before floor consideration. Instead, the changes made by the Committee substantially weaken the USA FREEDOM Act’s ability to prohibit the bulk collection of innocent Americans’ records.

The House will also consider the National Defense Authorization Act (NDAA) (H.R. 4435) tomorrow, including several key amendments to limit government surveillance authorities under Section 702 of Foreign Intelligence Surveillance Act and Section 215 of the USA PATRIOT Act. As a closed rule process will preclude members of the House from offering amendments to the USA FREEDOM Act during floor consideration, the NDAA process is our best hope for reform. Stay tuned for more information.


FCC Opens Proposed Net Neutrality Rulemaking

May 16, 2014

By Emily Feltren

The Federal Communications Commission (FCC) voted Thursday to adopt Chairman Tom Wheeler’s Notice of Proposed Rulemaking (NPRM) on net neutrality, launching a 120 day public comment period on how to protect and promote an open Internet. The 3-2 vote was cast along on party lines, with the chairman and two Democrats voting in support and the two Republican commissioners voting against.

Reports of Chairman Wheeler’s proposal raised fears in recent weeks that the principle of net neutrality, which ensures that all Internet traffic is treated equally, could be compromised. After initial press accounts about the draft NPRM, AALL became concerned that the FCC’s proposal would allow Internet companies and websites to pay for premium access to faster data connections, creating a tiered system of broadband access that critics call “pay-to-play fast lanes” and effectively ending net neutrality. At Thursday’s commission vote, though, the Chairman’s insisted that the FCC will seriously consider public input on how “to preserve and protect the Open Internet.” The Commission also said it will “seriously consider the use of Title II of the Communications Act as the basis for legal authority,” reclassifying broadband as a telecommunications service. AALL believes that this would allow the FCC to stand on firmer legal ground.

AALL strongly supports the principle of net neutrality and believes that equal access to information is a fundamental principle of the Internet. Without net neutrality, law libraries may be unable to afford the imposed fees for preferred access, and thus could not provide equal access to the online legal information their users need. We oppose any decision that would position Internet Service Providers as gatekeepers to online information.

AALL will participate in the rulemaking process. Please stay tuned for further analysis and opportunities for your participation.


Guest Post: Standing up for the First Sale Doctrine

May 14, 2014

By Meg Kribble, chair, AALL Copyright Committee

Last week saw great outcry over Wolters Kluwer Aspen Law’s new Connected Casebook program. Under the proposed program, new casebooks would come with access to Aspen’s Casebook Connect digital platform including promised post-term access to the ebook edition with note taking tools and other digital bells and whistles. The catch? Students would be required to return the print books to Aspen at the end of the term, even highlighted and marked up. The tradition of selling the book to another student to recoup some of the expense would not be allowed.

Although Wolters Kluwer has backtracked and says they will continue to offer a traditional print book that students may retain or dispose of how they wish, the Connected Casebook is still an option for students and remains problematic for many reasons, perhaps most of all because of its encroachment on the first sale doctrine.

As many of you know, the first sale doctrine—allowing purchasers of legal copyrighted works to re-sell, lend, rent, or give them away—has been an important part of U.S. copyright law since the Supreme Court recognized it in Bobbs-Merrill v. Straus. The Copyright Act of 1976 codified it as 17 U.S. Code § 109. It was re-affirmed by the court as recently as 2012 in Kirtsaeng v. Wiley, applying the doctrine to works lawfully made overseas. The first sale doctrine is an essential protection of libraries’ right to lend our materials.

Wolters Kluwer Connected Casebook is troubling because it involves an attempt to shift print copies of books from a traditional sale to a license agreement. Some have suggested the proposal was a purposeful experiment to see if consumers would accept it—or as the Electronic Frontier Foundation posits, “a cynical plot to destroy the secondhand market for books.” Duke’s Scholarly Communications Officer Kevin Smith compares the plan to Ford including a provision in its sales contracts to prevent resale of its cars. Joe Patrice at Above the Law observes that Wolters Kluwer’s actions should have been foreseeable in light of Bowman v. Monsanto, the case in which the Supreme Court held that farmers could not replant seeds obtained through planting and harvesting seeds patented by Monsanto.

Librarians have already seen some of the impacts of switching from sales to licensing models having rights to digital publications curtailed compared to print editions, including not being allowed to interlibrary loan licensed material. Perhaps the most newsworthy instance was HarperCollins’ plan to require libraries to purchase new copies of ebooks after 26 checkouts, even though ebooks don’t wear out.

So what can we do?

The AALL Copyright Committee monitors issues like these for copyright implications and will alert AALL membership when there are opportunities for action to support the rights of libraries and our patrons. Watch this space, the Washington e-Bulletins, our blog or Twitter for more alerts and news. Congress is becoming active on copyright issues, so the coming years promise to be interesting.

Be informed if faculty or students—or even librarians in other disciplines—ask about the issue. Although James Grimmelman’s Change.org petition to Wolters Kluwer has been closed, there may be other petitions to watch for and sign in the future. Closed or not, the “reasons for signing” left by signers are inspiring reading!

In addition, AALL’s Vendor Liaison Margie Maes and Committee on Relations with Information Vendors are monitoring these issues for trends in the legal information industry and its impact on AALL members.

Read more about the Connected Casebook issue at the Chronicle, EFF, or Scholarly Communications @ Duke.


White House Outlines Plan for Open Data Progress

May 13, 2014

By Elizabeth Holland

The White House released its U.S. Open Data Action Plan on Friday, one year after President Obama signed an executive order to make government data open and machine-readable.  The plan builds on the international Open Data Charter, signed in June 2013, which laid out a roadmap to releasing open data.

The action plan outlines more than 40 government data sets to be made public or expanded in 2014 and 2015, including a new Small Business Administration database, digitized Smithsonian American Art Museum Collection, Federal Emergency Management Agency disaster data and Federal Drug Agency adverse drug event data. The White House commits to “support innovators and improve open data based on feedback” in the plan.  Agencies will also ask for public feedback to determine which data sets to release first.

The Obama administration has launched a number of Open Data Initiatives over the last several years. “These efforts have helped unlock troves of valuable data — that taxpayers have already paid for — and are making these resources more open and accessible to innovators and the public,” Federal Chief Information Officer Steve VanRoekel and Chief Technology Officer Todd Park wrote in a blog post announcing the new plan.

 


USA FREEDOM Act Gets Unanimous Approval in HJC Vote

May 8, 2014

By Elizabeth Holland

Yesterday, the House Judiciary Committee voted unanimously to approve the USA FREEDOM Act (H.R. 3361), an important step forward toward reforming the National Security Agency’s surveillance authorities. As we reported Tuesday, the Committee considered an amended “compromise” version of the bill. The 32-0 bipartisan vote signals that this legislation will likely be the reform vehicle to move forward in the House.

The USA FREEDOM Act “unequivocally ends bulk collection,” the bill’s author, Rep. Jim Sensenbrenner (R-Wis.), said at the markup. Sensenbrenner, who also authored the 2001 USA PATRIOT Act, said the vote “makes it crystal clear that Congress does not support bulk collection.”  If passed, the amended USA FREEDOM Act would allow the government to collect phone data on U.S. citizens in cases where “reasonable, articulable suspicion” of wrongdoing can be proved, in turn allowing the government to collect metadata on individuals who are two degrees of separation, or “hops”, from the suspect. 

Several important reforms were excluded from the Judiciary passed bill. The amended USA FREEDOM Act fails to address collection authority under Section 702 of the FISA Amendments Act and does not provide a fix to the “backdoor loophole,” in which the NSA interprets the law to allow searches of data collected under Section 702 for the purpose of finding communications of a U.S. person. An attempt to restore this provision, offered by Rep. Zoe Lofgren (D-Calif.) was struck down Wednesday.

The Judiciary Committee did restore a provision permitting increased transparency for companies receiving surveillance orders for their customers’ data, an amendment offered by Rep. Suzan Delbene (D-Wash.). AALL applauds the House Judiciary Committee’s unanimous vote. We hope to see additional reforms and transparency measures incorporated as the bill moves forward in the legislative process and urge members of Congress to support this important reform.

Note: The House Permanent Select Committee on Intelligence held a closed-door markup of the USA FREEDOM Act this morning. There are conflicting reports about the content of amendments considered during that markup. We will provide more information as it becomes available. 


House Committee to Consider USA FREEDOM Act Tomorrow

May 6, 2014

By Elizabeth Holland

On Wednesday, the House Judiciary Committee will hold a markup of the USA FREEDOM Act (H.R. 3361), our favored legislative proposal to limit the NSA’s surveillance authority and end bulk collection of Americans’ phone and Internet records. The author of the USA FREEDOM Act, Rep. Jim Sensenbrenner (R-Wis.), is expected to introduce a manager’s amendment at the markup that will make several key changes to the bill, including creating a clear bulk collection fix and requiring declassification of significant FISA Court opinions. AALL has strongly supported the USA FREEDOM Act since its introduction and believes that, even as amended, this bill is the best legislative reform to restore Americans’ privacy and rights under the Constitution.

Early last month, AALL joined a broad coalition of organizations on a letter to Congress and the President calling for an end to the bulk collection of data on individuals and urged swift markup and passage of the USA FREEDOM Act. The amended bill would address each of the reforms endorsed in our letter, as well as others, by aiming to prohibit bulk collection of all data under Section 215 and 214 and the National Security Letter (NSL) statutes while preserving the requirement of prior court approval. Unfortunately, the Sensenbrenner amendment would also weaken some of the bill’s transparency requirements. AALL will therefore continue to advocate to restore these provisions.

AALL believes the government has a responsibility to protect the privacy of library users and calls for effective oversight of those laws which expand surveillance on library users. We are pleased that the House Judiciary Committee is moving forward to address needed reforms to the National Security Agency’s surveillance programs. 


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