Legislating the Web

Last year, the U.S. Congress made its first attempt at trying to regulate the policy of free speech on the Internet. The offspring of such political brainstorming was the Communications Decency Act (CDA), which was summarily bounced out on its ear by the Supreme Court almost immediately after it was passed. In effect, the country's highest court stated that the Internet deserved the same First Amendment protection given to print media as interpreted in the Constitution.

Since the CDA was declared unconstitutional last June, lawmakers have been scrambling for ways to try and police the Web. Some have concentrated on efforts to keep children out of the Internet's slew of sex-related websites and other shady areas. Another hot topic that has come up is the issue of regulating unsolicited e-mail. Still others have tried to address the problems of encrypted data, and the sale of personal information online.

With so much legislation being bandied about, it's difficult to keep track of which member of Congress is in favor of what law. It's also nearly impossible trying to figure out what effect (if any) each of the Internet-related acts will have if they are signed into law. Since Congress will reconvene on the 27th of this month, we've thought it a good time to provide you with a list of the most important laws being considered and how they will affect those of us who use the Internet.

Laws Regarding Minors and Sexually Explicit Material and the Internet

Among the more important pieces of legislation is an amendment concerning the selling of online pornography to minors. Introduced by Sen. Dan Coats of Indiana, this proposed law (S. 1482) would amend the Communications Act of 1934 to prohibit commercial websites from distributing to anyone under age 17 any material considered "harmful to minors," including messages or websites that depict actual or simulated sexual acts.

To fall under the law, the material in question would have to "lack serious literary, artistic, political, or scientific value." Violators could face up to a $50,000 fine and six months imprisonment. The law has been referred to the Senate Commerce Committee for review.

Another amendment to the Communications Act has been written by New Jersey Rep. Marge Roukema. This bill (H.R. 2791) prohibits Internet service providers (ISPs) from giving access accounts to "sexually violent predators." ISPs who fail to comply with the law would be fined up to $5,000 for each violation. This bill has been referred to the House Subcommittee on Telecommunications, Trade and Consumer Protection.

Illinois Rep. Jerry Weller has proposed the Protecting Children from Internet Predators Act (H.R. 2815). Currently under consideration from the House Judiciary Committee, Weller's law would make it a felony to use a computer network to send sexually explicit messages to a minor under the age of 16. Violators could get up to five years in prison for breaking this law.

Two other bills have been introduced concerning the use of filtering software to weed out undesirable websites. Both the Family-Friendly Internet Access Act (H.R. 1180) and the Internet Freedom and Child Protection Act (H.R. 774) would require Internet service providers offer filtering software to their customers. The bills are currently under consideration from a number of House committees.

Laws Regarding Spam (unsolicited junk e-mail)

The bill currently garnering the most attention in the area of spam e-mail is the Unsolicited Commercial Electronic Mail Choice Act (S. 771), authored by Sen. Frank Murkowski of Alaska. While it doesn't prohibit the sending of spam outright, this bill would require senders to label such e-mail messages as advertisements. If the bill is passed, ISPs will have to take it upon themselves to screen all unsolicited messages for customers that ask them to do so.

Another high-visibility anti-spam law is the Electronic Mailbox Protection Act. This law (S. 875) prohibits the sending of unsolicited e-mail from a fictitious address or without an accurate address for replying. Those who do not remove people from their list upon request and continue to distribute unsolicited e-mail to them, or ignore their ISP's policies against spam, could be fined up to $5,000. Like the Murkowski law, this bill has also been referred to the Senate Commerce Committee for review.

The House of Representatives is also taking action against spam. New Jersey Rep. Chris Smith has introduced the Netizens Protection Act (H.R. 1748). This act bans commercial spam messages by amending the Telephone Consumer Protection Act of 1991. Smith's bill would extend that law to cover junk e-mail; however, it would protect communications between people who have existing business or personal relationships. The House Subcommittee on Telecommunications, Trade and Consumer Protection is reviewing this piece of legislation.

Laws Regarding Consumer Privacy

The protection of personal information is one of the hottest areas of Internet-related legislation, as witnessed by the sheer number of bills that have been drafted. Five separate acts have been introduced relating to the use of social security numbers over the Internet. They are: The Social Security On-line Privacy Protection Act (H.R. 1287, introduced by New Jersey Rep. Bob Franks);

The Federal Internet Privacy Protection Act (H.R. 1367, introduced by Rep. Tom Barrett of Wisconsin);

The Personal Information Privacy Act (S. 600, introduced by California Sen. Dianne Feinstein, Iowa Sen. Charles Grassley and Wisconsin Rep. Gerald Kleczka);

The American Family Privacy Act (H.R. 1330, introduced by Rep. Paul Kanjorski of Pennsylvania); and

The Social Security Information Safeguards Act (H.R. 1331, introduced by Connecticut Rep. Barbara Kennelly).

In a nutshell, these bills are all designed to keep social security numbers off the Internet. Franks' bill prohibits ISPs and access providers from selling or disclosing a customer's social security number (or other personally identifiable information) without prior informed written consent. The Feinstein-Grassley bill goes one step further, stating that no one can share or sell another person's private information without their permission.

As for the proposed bills by Barrett and Kanjorski, they include federal agencies among those that can't post any information about a person's education, financial or tax transactions, or medical and employment history, if those records contain the individual's name, social security number, or other personal identification numbers. And Kennelly's bill puts the issue of posting private data online in the hands of the commissioner of Social Security. As we go to press, all of these bills have been referred to various House and Senate committees for consideration.

Other privacy bills target specific institutions. For instance, the Consumer Internet Privacy Protection Act (H.R. 98) mandates that Internet service providers get their customers' permission prior to releasing personally identifiable information to third parties. And the recently drafted Communications Privacy and Consumer Empowerment Act (H.R. 1964) requires that the Federal Communications Commission examine the data protection practices of ISPs and access providers to determine if current laws or industry self-regulatory efforts are effective. If they aren't, the FCC must propose regulations to protect the privacy of online consumers. Both laws have been referred to the House Subcommittee on Telecommunications, Trade and Consumer Protection for consideration.

Laws Regarding Encryption of Sensitive Information

There are three important pieces of legislation currently under consideration on the subject of data encryption; the most relevant is the Security and Freedom Through Encryption (SAFE) Act (H.R. 695). Introduced by Virginia Rep. Bob Goodlatte, the SAFE Act relaxes current federal export restrictions on strong encryption software, which scrambles digital messages so that only the sender and recipient can decipher the communication using a "key." The bill also prevents the government from creating a mandatory "key recovery system." Under current regulations, within two years, producers of exported encryption software must build a "back door" to their programs that gives law enforcement agencies access to the keys that decode encrypted messages.

The House Commerce, Intelligence, Judiciary, National Security and International Relations committees have each passed versions of the bill; these will go to the House Rules Committee for consolidation into one bill. If cleared, the next step would be a House vote.

Another important encryption law is the Secure Public Networks Act. Originally begun as a proposal from the Clinton administration, this bill (S. 909) makes "key" recovery mandatory for all U.S. online networks and computer equipment funded either wholly or partially with federal money. Since the government and many public academic institutions provided most of the initial seed money for building the Internet, this condition could make key recovery a component of a majority of the networks in the country.

On the other side of the encryption situation, Sen. Patrick Leahy of Vermont has introduced the Encrypted Communications Privacy Act (S. 376). This proposed law would allow all U.S. citizens to use any strength encryption software they desire. It would also prohibit federal or state lawmakers from requiring that encryption users store the key to unlock their digital communications with a third party (such as a law enforcement agency), which is known as domestic "key escrow." This bill is being reviewed by the Senate Judiciary Committee.

Laws Regarding Copyright Protection

One piece of Internet copyright legislation worth watching is the No Electronic Theft Act (H.R. 2265). Also written by Sen. Goodlatte, the proposed law gives online pirates of software, music, video or literature up to five years in prison and a $250,000 for a felony offense. Such a violation is defined as "willfully" making or possessing 10 or more illegal copies of an item with a retail value of $2,500 or more. This law was passed by Congress in October, and signed by President Clinton on December 17.

Another controversial proposed copyright law is the WIPO Copyright and Performances and Phonograms Treaty Implementation Act (H.R. 2281). This law will ratify international treaties to protect copyrighted works on the Internet. The law also makes it a crime to manufacture, import or distribute technology that could be used to "circumvent" copyright protection devices.

Other copyright laws are aimed at expanding the use of copyright materials by certain individuals. The Digital Copyright Clarification and Technology Education Act (S. 1146), for example, expands the fair use of a copyrighted work to include digital materials so that teachers, researchers and libraries will not be in violation of other proposed laws.

Perhaps the most far-reaching Internet copyright law proposed thus far is the Digital Era Copyright Enhancement Act (H.R. 3048), which was introduced by Virginia Rep. Rick Boucher and California Rep. Tom Campbell. Under the proposed law, it would be a crime to break anticopying devices, but it would not outlaw products that could be used to destroy copyright-protection devices.

In addition, this act lays out more exemptions for libraries and distance-learning institutions regarding fair use and fair sale, so that downloading or sharing copies of protected online material that was purchased legally by someone else is not a crime for those entities. The bill also implements the treaties mentioned in the WIPO act above. This bill has been referred to the House Judiciary Committee.

Laws Regarding Political Campaigns

With all the scandals about political fundraising and cap limits being discussed, it's no surprise that such issues have found their way to the Internet. Currently, five bills related to the Internet and political campaign information have been introduced. Chief among them is the Internet Election Information Act. Written by Rep. Rick White of Washington, the act (H.R. 653) amends the Federal Election Campaign Act of 1971 to require Internet access providers and online services to let candidates use their services free of charge. This would be done so that candidates could disseminate campaign information on an equal level and encourage public debate through online chat rooms and bulletin boards, for example. The bill is currently under consideration by the House Oversight Committee.

Four other bills being discussed relate to the filing of electronic campaign contributions and finance reports. They are as follows:

The Citizens' Right to Know Act (H.R. 2433, introduced by Rep. Lynn Rivers of Michigan);

The Campaign Finance Reform Act (H.R. 2777, written by Missouri Rep. Richard Gephardt);

The Campaign Finance Sunshine Act (H.R. 2109, introduced by Rep. Merrill Cook of Utah); and

The Electronic Campaign Filing and Disclosure Act (H.R. 2074, written by Virginia Rep. Bob Goodlatte).

The Citizen's Right to Know Act requires candidates for the House and Senate to electronically file quarterly campaign contribution reports with the Federal Election Commission within 48 hours of the time the information becomes available, so that the data can be posted on the Internet. Gephardt's version of the bill also limits nonfederal campaign financing. The laws brought forth by Goodlatte and Cook, meanwhile, would make the finance reports available to the public within 24 hours of receipt. All four bills have been referred to the House Oversight Committee; it is expected they will be reconciled into one law.

Laws Regarding the Internet in General

One law regarding Internet access has been proposed by Reo. Rick White of Washington. Called the Internet Protection Act (H.R. 2372), this law would prohibit any new regulation targeted specifically at the Internet, including any action by the Federal Communications Commission regarding Internet access providers.

Another law is being proposed regarding the taxation of online services. The Internet Tax Freedom Act (S. 442) would place a six year ban on states and localities prohibiting them from passing new taxes aimed specifically at online access, electronic commerce, and other Internet services. This bill has already passed through committees in the House and Senate; there should be a vote on this bill early in the year.

Consequences of the Net Laws

The reasoning behind many of the laws mentioned in this article does seem to make political and financial sense and will help make the Internet a safer place for everyone who uses it. However, that doesn't necessarily mean that some of these acts, if passed, could have a damaging, unforeseen effect on some of the positive ways the Internet is used.

For instance, take the different versions of Rep. Goodlatte's SAFE Act. While most of us will not really be affected by the encryption issues involved, it does raise some serious questions about the government infringing on personal privacy. Depending on which version of the bill becomes law, agencies such as the FBI or CIA could potentially have the keys to access and decode any encrypted message sent over the Internet.

Rep. Goodlatte's No Electronic Theft Act has also come under scrutiny. Public policy groups are already up in arms about the law, and with good reason. Although the bill was intended to reduce the amount of illegal software that is available on the Internet, it actually pertains to other forms of media. The way the bill is worded, an individual could face up to five years in prison for "willfully" making or possessing 10 or more copies of a document with a value of $2,500 or more. This could mean, hypothetically, that if a scientist or educator were to download an article off of the Internet and simply share it with students or colleagues, that person could be held in violation of the law.

Reading the Laws for Yourself If you'd like to see the complete wording of the proposed laws mentioned above, a great place to go is Vote-Smart ([url=http://www.vote-smart.org]http://www.vote-smart.org[/url]). The site has a section called "CongressTrack" which can be used to access the full text and status of every piece of legislation written by the current U.S. Congress. You can also use the site to contact your local elected officials and ask them their opinions and voting records on the bills mentioned in this article.

While the outcome of these legislative acts is difficult to predict, one thing is for certain. As the Internet continues to grow and make its way into the lives of more Americans, there will be more laws written to govern the way it is to be used. We will be keeping our eyes on the laws as they are presented before Congress and update you on their status in further issues of DC.

As always, we welcome your comments. If you have any questions about the issues presented in this article, please feel free to e-mail me or call me at the number below.

Michael Devitt
Huntington Beach, California
Tel: (714) 960-6577
Fax: (714) 536-1482
Editorial-dcmedia.com