Legislative Update

An overview of laws currently under consideration by Congress concerning First Amendment and freedom of information issues.

From the Spring 2001 issue of The News Media & The Law, page 59.

The Reporters Committee reports each spring on legislative proposals considered by the U.S. Congress that would affect the Freedom of Information and First Amendment rights of the news media. The report, which is by no means comprehensive, highlights some of the issues raised by lawmakers.

In the early stages of the 107th Congress, legislators were drawn to regulation of the Internet and privacy matters. Legislators introduced dozens of bills that regulate how consumers’ personal information is gathered and sold online, whether companies can send out mass electronic mailings to customers, and what online uses of Social Security numbers should be allowed. But there are signs that lawmakers are increasingly wary of signing Internet privacy laws and may give the industry a chance to work on the problem itself first. One bill promises to set up a commission to oversee computer privacy issues.

Legislators also have introduced other bills affecting speech and newsgathering. News organizations are closely watching for a bill similar to the one President Clinton vetoed in November 2000 that would have punished as a felony the leaking of confidential government information. A constitutional amendment was drafted that would prohibit desecration of the flag; a similar proposal has missed in recent years by only a thin margin.

Perhaps the most prominent speech-related bill discussed to date this term was the campaign finance reform bill pushed through the Senate by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.). That bill has drawn the ire of Republicans, who promise both a tough fight in the House and a court challenge if the bill is signed into law.

Freedom of Information

Legislation that failed last term but has a good chance of passing in the new legislature would protect critical infrastructure information. The bill — not as yet introduced — would encourage the secure disclosure and protected exchange of information about cyber-security problems and solutions between private-sector entities and the government. FOI advocates are concerned that a measure like those discussed last session would create broad exemptions for information if a submitting party requested it. The bill also so broadly defines “critical infrastructure information” that it could be interpreted to refer to things other than computer and cyber security.

Rep. Tom Lantos (D-Calif.) introduced a bill that requires each federal agency to identify, review and organize all human rights records regarding activities occurring in Guatemala and Honduras for declassification and public disclosure. The bill also provides a process for executive agencies to declassify on an expedited basis and disclose certain documents relating to human rights abuses in foreign countries. The bill requires certain federal agencies to identify, review and organize all human rights records for declassification and public disclosure if the President determines there is a bona fide request for them by an individual or entity carrying an official mandate to investigate a pattern of gross violations of internationally recognized human rights. The bill prescribes guidelines under which the Interagency Security Classification Appeals Panel shall review agency determinations to postpone disclosure of any human rights record. The bill also authorizes postponement of such public disclosures on specified grounds. (H.R. 1152)

In mid-April, Sen. Patrick Leahy (D-Vt.) withdrew an amendment he had introduced to the Bankruptcy Reform Act that would have closed off all electronic access to bankruptcy records of individual debtors except to parties, the bankruptcy trustee and law enforcement agencies. However, the issue is not dead and it is likely that the Judiciary Committee will hold a hearing in the near future on a bill seeking to block public access to any personal information about debtors in bankruptcy court.

On March 28, Rep. David E. Bonior (D-Mich.) introduced the Secret Evidence Repeal Act of 2001, which would only allow an attorney general to use secret classified information in an immigration proceeding if the attorney general is seeking to have the alien deported because of alleged terrorist activity or if the attorney general is opposing other special types of alien applications. The bill also requires an attorney general seeking to use secret classified information at an immigration proceeding to inform the alien and the presiding officer in advance, or within 15 days after the attorney general initiates a proceeding. The alien then can seek access to the classified information under the Freedom of Information Act with expedited processing. The bill also requires the attorney general’s office to promulgate rules that would protect release of classified information from “federal non-judicial officials in immigration proceedings.” (H.R. 1266)

Twin bills require licensing of purchasers of certain firearms and a log of sale to be kept by the state, which then may be a public record under state law. Sen. Diane Fienstein (D-Calif.) introduced the Senate bill in January and Rep. Martin Meehan (D-Mass.) introduced the House bill in late March. (S.25, H.R.1247)

Rep. Charles Rangel (D-N.Y.) introduced a bill to permit expungement of a federal criminal record if an offender has never been convicted of a violent offense other than the one for which expungement is sought, has fulfilled the sentence of the court, and meets certain other qualifications. (H.R. 696)

After there was a smattering of negative press when President Clinton left office with gifts that may or may not have belonged to the White House, a bill was introduced to address the issue. Gifts to the President, the executive residence at the White House or a Presidential archival library would be documented in a public log kept by the U.S. Archivist under a bill by Rep. Doug Ose (R-Calif.). (H.R. 1081)

Rep. James Greenwood (R-Pa.) introduced a bill that would prevent a health care provider, a health plan, employer, life insurer, school or university from allowing inspection or copying of individual health information if release of the information would endanger a patient’s “life or safety,” the information was given by the patient “under a promise of confidentiality to a health care provider,” or the information was “compiled in anticipation of or in connection with a fraud investigation or litigation,” unless ordered to do so by a court. (H.R. 1215)

Newsgathering

President Bill Clinton vetoed a measure on Nov. 4, 2000 that would have authorized federal felony charges to be brought against leakers of classified information after media and watchdog groups urged him to do so and a spate of editorials appeared in newspapers around the country calling the measure “an official secrets act.” Sen. Richard Shelby (R-Ala.), chairman of the Senate Intelligence Committee, wrote the provision into the intelligence authorization bill, which easily passed both houses of Congress with no public hearings despite widespread criticism that it would make felons of whistleblowers. Now Shelby and other bill supporters plan to reintroduce the same or similar legislation, although with public hearings on the matter.

In a “sense-of-the-Congress” resolution, Congress declared in February 2001 that news organizations should agree, through a voluntary, industry-wide agreement, to refrain from projecting winners of political elections until polls have closed. (H. Con. Res. 40 (Senate concurring))

In the same vein, Rep. Edward Markey (D-Mass.) introduced the Uniform Poll Closing Act of 2000 on Jan. 3, 2001. The bill would set a national poll closing time of 9 p.m. EST for Presidential elections. The bill allows the States of Alaska and Hawaii to open polling places for such an election during the day preceding election day and provides for extended daylight savings time in the Pacific time zone in presidential election years. (H.R. 50)

The Law Enforcement Officers Privacy Protection Act was introduced by Rep. John Sweeney (R-N.Y.) in January 2001. The bill prevents a judge from releasing personnel records of a law enforcement officer during discovery unless there is a showing that the records are “necessary and material to an issue involved in the pending action.” The bill directs the judge to issue an order to protect these records from public disclosure if they are released to the other party. (H.R. 199)

Broadcast & Cable

As with previous years, several bills have been introduced to curb violent media content and keep it from reaching children. A Federal Trade Commission report in September 2000 that was critical of the video game, music and film industries triggered congressional interest. It found that 81 percent of adults polled found the motion picture industry’s self-regulatory rating system somewhat satisfying to very satisfying. The FTC report also described what it called a routine practice of advertising R-rated films to under-age children. For example, the report cited incidents of using children as young as 13 in test-market screenings for R-rated films.

Several legislators have voiced concerns that music, video games and film content may provoke violence in children. The issue is a favorite of high-profile senators Joseph Liebermann (D-Conn.) and John McCain (R-Ariz.).

A follow-up report put out by the FTC in April recognized some advances by companies in the movie, music and video game industries, but chastised the industries for failing to implement plans to stop marketing violent products to children. On April 26, Sen. Liebermann, joined by Sens. Hillary Clinton (D-N.Y.) and Herb Kohl (D-Wis.) responded by introducing the Media Marketing Accountability Act. According to Liebermann, the bill would define the “targeted advertising or other marketing” of adult-rated movies, music recordings and video games to minors as a deceptive act or practice under the Federal Trade Commission Act, making it illegal. It would then authorize the FTC to enforce this ban by levying civil fines against companies that label products as appropriate or suitable only for adults and then market those products to children. “We are simply saying that if you voluntarily label a product as being unsuitable for kids, and then turn around and market it in a way that directly contradicts that rating, you should be held accountable, just like any other company that misleads consumers,” Liebermann said in a statement that accompanied the bill’s introduction. (S. 792)

The Children’s Protection from Violent Programming Act would amend the Communications Act of 1934 to require that broadcast of violent video programming be limited to the hours after children are reasonably likely to comprise a substantial portion of the audience, unless it is specifically rated on the basis of its violent content so that it is blockable by electronic means based on that rating. (S. 341, H.R. 1005)

In an effort to get media companies to follow voluntary industry guidelines on content, The Children’s Protection Act of 2001 would exempt agreements relating to voluntary guidelines governing telecast material, movies, video games, Internet content and music lyrics from the applicability of the antitrust laws. (S. 124)

Rep. Michael Oxley (R-Ohio) introduced a bill that would require the Federal Communications Commission to eliminate from its regulations the restrictions on the cross-ownership of broadcasting stations and newspapers. (S. 235)

The Amateur Radio Spectrum Protection Act of 2001, introduced in both houses of Congress, amends the Communications Act of 1934 to protect the limited amateur radio wave frequencies from being reallocated by the FCC after July 1, 2001, unless at the same time the FCC provides equivalent replacement spectrum. (H.R. 817, S. 549)

The Low Power Radio Act of 2001, introduced by Sen. John McCain (R-Ariz.), requires any low-power FM radio licensee determined by the FCC to be interfering with one or more licensed radio services to cease such transmission, if so ordered, and to refrain from recommencing broadcasts until it has taken FCC-prescribed action to assure that the licensee can serve the public interest. The bill also authorizes any radio service licensee or subcarrier program provider to file an interference complaint and requires resolution within 90 days. (S. 404)

Sen. Sam Brownback (R-Kan.) introduced the Third-Generation Wireless Internet Act, which amends the Communications Act of 1934 to prohibit the FCC from applying spectrum aggregation limits to spectrum assigned by auction after 2000. (S. 696)

A bill introduced by Rep. Robert Andrews (D-N.J.) would amend the Internal Revenue Code to allow credits against income tax for an owner of a radio broadcasting station that donates the license and other assets of its station to a nonprofit corporation for purposes of supporting nonprofit fine arts and performing arts organizations. (H.R. 1050)

Copyright

Sens. Orrin Hatch (R-Utah) and Patrick Leahy (D-Vt.) introduced the Technology, Education and Copyright Harmonization Act of 2001, a bill that would exempt certain performances or displays for educational uses from copyright infringement provisions. The bill would provide that making a single copy of such performances or displays is not an infringement. The bill would extend the infringement exemption for instructional broadcasting to digital “distance learning” or “distance education,” that is, instruction by electronic relay. It allows under specified conditions: the performance and display of reasonable and limited portions of any copyrighted work, the reproduction of such work in transient copies or phonorecords created as a part of the automatic technical process of a digital transmission, and distribution of such copies or phonorecords in the course of such transmission to the extent technologically necessary. (S. 487)

Campaign Finance

Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) gained passage of the Bipartisan Campaign Reform Act of 2001 in the Senate, 59-41, on April 2, 2001. The bill is a radical overhaul of campaign finance. Under the Federal Election Campaign Act of 1971, “hard money” contributions — funds donated straight to the candidate — had a limit of $1,000. There were no restrictions on “soft money” — funds sent to political parties.

The McCain-Feingold bill bans unrestricted “soft money” contributions to political parties, restricts end-of-campaign advertising by outside groups and raises limits on direct contributions to candidates and parties. Corporations, unions and many advocacy groups would be prohibited from using their own funds to buy broadcast ads within 60 days of a general election and 30 days of a primary. The bill was passed after two weeks of debate and repeated attempts to weaken it. Probably the most important attempt was the so-called “poison pill,” which would have invalidated the key parts of the bill if any section was deemed unconstitutional by the U.S. Supreme Court.

Most relevant to the news media, the bill amends the Communications Act of 1934 to require that charges made for the use of any broadcast station, or by a provider of cable or satellite television service, to any person who is a legally qualified candidate for any public office can be no more than the lowest rate of the station during the previous year. The Communications Act currently only makes ad rate provisions for the 45 days preceding a primary and the 60 days preceding the election. The rate also is only set at “the lowest unit charge of the station for the same class and amount of time for the same period.” Candidates are only eligible for the low rate if they meet certain criteria, such as including a statement from the candidate that he or she has approved the broadcast.The bill also requires that candidates’ ads may not be preempted except in “circumstances beyond the control of the licensee.” (S. 27)

It will now be up to Reps. Christopher Shays (R-Conn.) and Martin Meehan (D-Mass.) to push the bill, which has 161 co-sponsors, through the House. Campaign finance reform bills passed the House in 1998 and 1999 but stalled in the Senate. “If we want to end the abuses of corporate treasury, union dues and foreign national money we need to act now to ban soft money and reign in sham ‘issue ads,'” Shays said in a press release. “The legislation which passed the Senate on [April 2] and which passed the House in 1998 and again in 1999 does both.” McCain has already suggested that he does not want the House to pass a differing bill that would require a conference. “We’re not going to let a bill be written in conference that would emasculate the campaign finance reform,” McCain said. (H.R. 380)

But the McCain-Feingold/Shays legislation will be opposed in the House by a competing bill. Rep. John Doolittle (R-Calif.) introduced the Citizen Legislature and Political Freedom Act in the House to amend the Federal Election Campaign Act of 1971. The bill, which has 71 co-sponsors, would take the sting out of the McCain-Feingold bill. Most importantly, the bill repeals limits on how much individuals and political action committees may contribute to candidates or parties and repeals limits on how much parties can contribute to candidates. Its sponsor disputes the notion that too much money is spent on election campaigns and notes that the “total spending per voter (in 1996) was $3.89, the approximate cost of a McDonald’s value meal.” (H.R. 1444)

Rep. Clay Shaw (R-Fla.) also introduced a campaign finance reform bill in April. That bill restricts broadcast stations from accepting soft money advertisements that contain the likeness of a candidate for election for federal office unless the station agrees to broadcast without charge a similar ad from his opposition. (H.R. 1516)

Although not dealing directly with campaign finance reform, several other bills concern the content of campaign materials. The Stand By Your Ad Act, introduced by Rep. David Price (D-N.C.), requires that communications advocating the election or defeat of a candidate for election for federal office contain specific information regarding the sponsor of the communication and whether or not the communication is authorized by the candidate involved. A similar bill introduced by Price last term failed. (H.R. 156)

Sen. John McCain (R-Ariz.) introduced a resolution to the Senate in February that would require agencies to post some Congressional documents, including Senate lobbying and gift report filings, Congressional Research Service publications, and Senate and Joint Committee documents on the Internet. The resolution is currently in committee. (S. Res. 21)

Rep. John Baldacci (D-Maine) introduced a resolution in early March that would require the Clerk of the House of Representatives and the Secretary of the Senate to compile and make available to the public the names of candidates for election to the House of Representatives and the Senate who agree to conduct campaigns in accordance with a Code of Election Ethics. (H. Con. Res. 53)

Internet & Privacy

There are more than 30 privacy and privacy-related Internet bills pending in Congress, and others are expected to be introduced. The purpose of the bills ranges from protecting people from identity theft to ensuring that companies do not trade in customers’ personal information without permission. Many are expected to fail, though, because members are unsure what appropriate legislation should look like. There is also a growing movement to allow industry self-regulation measures to control, especially as business and high-tech lobbies have kicked their opposition to the bills into high gear.

Increasingly, members seem to be taking a wait-and-see approach to Internet privacy legislation. Rep. Dick Armey (R-Texas) sent a memo to colleagues in early April urging caution. “Right now, Congress is an inexperienced and amateur mechanic trying to tinker with the supercharged, high-tech engine of our economy,” he said. “We need to be careful not to let our good intentions get in the way of common sense.”

The central debate in many of the Internet privacy bills is between “opt-in” legislation and “opt-out” legislation. “Opt-out” rules put the onus of protecting privacy on the consumer, who has to contact the company or Web site and opt out of the particular gathering of information. “Opt-in” legislation generally requires more notice to the consumer and an affirmative choice to participate in the collection of information or to receive e-mail marketing. In other words, the onus is on the company to get permission before subjecting consumers to marketing or information collection.

The Online Privacy Protection Act of 2001 would require the Federal Trade Commission to issue regulations to protect personal information collected from and about individuals on the Internet who are not covered by the Children’s Online Privacy Protection Act of 1998. That law, which was ruled unconstitutional by the U.S. Court of Appeals (3rd Cir.), makes criminal an Internet commercial communication to minors that is “harmful to minors.” Introduced by Rep. Rodney Frelinghuysen (R-N.J.), the new bill also provides greater individual control over the collection and use of that information. (H.R. 89)

Social Security Number Bills. There are several bills that address the issue of unauthorized trading in Social Security numbers. According to the Social Security Administration, Social Security numbers were originally created in 1935 to keep track of the earnings, and eventually the benefits, of people who worked in jobs covered under the new Social Security program. Over time, Social Security numbers have become a kind of de facto national identification number and are used by banks, credit companies, government agencies and schools. Because the numbers are so widely used as identifiers, they are often stolen or sold for nefarious purposes.

Rep. Frelinghuysen also introduced the Social Security On-line Privacy Protection Act, which would prohibit an interactive computer service from disclosing to a third party an individual’s social security number or related personally identifiable information without the individual’s prior informed written consent. The bill requires such a service to permit an individual to revoke consent at any time. (H.R. 91)

Rep. Paul Brown (R-Texas) introduced the Identity Theft Protection Act of 2001. The bill would amend Title II of the Social Security Act and the Internal Revenue Code to protect the integrity and confidentiality of Social Security numbers and would prohibit the federal government’s establishment of any uniform national identifying number. The bill would also prohibit Federal agencies from imposing standards for identification of individuals on other agencies or persons. (H.R. 220)

The Social Security Number Privacy Act of 2001, introduced by Senate Minority Leader Tom Daschle (D-S.D.), prohibits the sale and purchase of a Social Security number of an individual by financial institutions and includes such numbers in the definition of nonpublic personal information. (S.B. 324)

Sen. Bill Nelson (D-Fla.) also introduced the Social Security Number Protection Act of 2001, which would establish civil and criminal penalties for the sale or purchase of Social Security numbers. (S.B. 451)

Spam Bills. There are at least four bills that address the issue of “spam,” an Internet term that refers to the process of sending out vast numbers of electronic mail, often to recipients who did not request it. It is simply e-junk-mail, and the bane of many computer users’ existence.

Rep. Bob Goodlatte (R- Va.) introduced the Anti-Spamming Act of 2001, which allows the Secret Service to police software that “is designed or produced primarily for the purpose of concealing the source or routing information of bulk unsolicited electronic mail messages.” Critics are concerned that because the bill is worded so broadly, it might imperil other programmers instead, and point to the second section, which makes it illegal to distribute software that “has only limited commercially significant purpose or use other than to conceal such source or routing information.” (H.R. 1017)

Rep. Heather Wilson (R-N.M.) introduced the Unsolicited Electronic Mail Act of 2001 in February. The bill, which has 100 co-sponsors, amends the federal criminal code to provide criminal penalties for intentionally initiating the transmission of any unsolicited commercial electronic mail message to a protected computer in the United States with the knowledge that any domain name or other initiator identifying information contained in or accompanying such message is false or inaccurate. The bill cleared the Committee on Energy and Commerce’s Subcommittee on Telecommunications and the Internet Subcommittee in March. In late March, Democrats John D. Dingell (D-Mich.) and Ed Markey (D-Mass.), who called the regulation of commercial speech “a most serious issue,” sent a letter to the chair of the Securities and Exchange Commission asking that “the Commission initiate an immediate investigation into securities industry use of unsolicited ‘spam’ e-mails.” (H.R. 718)

Rep. Gene Green (D-Texas) introduced the Unsolicited Commercial Electronic Mail Act of 2001. That bill would amend the federal criminal code to provide criminal penalties for intentionally initiating the transmission of any unsolicited commercial electronic mail message to a protected computer in the United States with the knowledge that any domain name or other initiator identifying information contained in or accompanying such message is false or inaccurate. The bill prohibits sending such a message unless it contains a valid e-mail address, conspicuously displayed, to which a recipient may send notice of a desire not to receive further messages. The bill was referred to the House Judiciary Committee’s Subcommittee on Crime in February. (H.R. 95)

Sen. Conrad Burns (R-Mont.) introduced the Can Spam Act of 2001 which is designed to prohibit senders of unsolicited commercial electronic mail from disguising the source of their messages. The bill also gives consumers the choice to cease receiving a sender’s unsolicited commercial electronic mail messages. (S. 630)

Online Consumer Bills. As consumers have used the Internet to make purchases in greater frequency, a call has gone up to protect personal information collected from customers. The Consumer Online Privacy and Disclosure Act of 2001, for example, requires the FTC to enact regulations to protect the privacy of personal information collected from and about individuals on the Internet and provides greater individual control over the collection and use of that information. (H. R. 347)

The Consumer Internet Privacy Enhancement Act, introduced by Rep. Anna Eshoo (D-Calif.) prohibits the collection of personal information from a consumer unless the Web site operator provides notice that the information is being collected, by whom, and how it will be used, and provides an opportunity for the consumer to limit how the collected information is marketed and used. (H.R. 237)

Other Privacy Bills. Rep. Asa Hutchinson (R-Ark.) introduced the Privacy Commission Act, which would create a commission to engage in a comprehensive study of privacy protection. The bill establishes the “Commission for the Comprehensive Study of Privacy Protection” to study and report to Congress and the President on issues relating to protection of individual privacy and the appropriate balance to be achieved between protecting such privacy and allowing appropriate uses of information. The bill also requires the commission to conduct at least two hearings in each of five geographical regions of the United States. (H.R. 583)

The Wireless Telephone Spam Protection Act would prohibit the use of the text, graphic or image messaging systems of wireless telephone systems to transmit unsolicited commercial messages. (H.R. 113)

Rep. Peter King (R-N.Y.) introduced the Religious Communication Sanctity Act of 2001. That bill prohibits surreptitiously listening to or recording “any communication that is privileged, because of its religious character.” (H.R. 751)

Internet Bills. A House resolution introduced by Rep. David Dreier (R-Calif.) in January prohibits the imposition of criminal liability on Internet service providers based on the actions of their users. “Internet Service Providers make this global communications tool possible,” Dreier said in a press release, “and it’s wrong to hold them criminally liable for online content all over the world. If successful, efforts to hold ISP’s criminally liable for third-party content will have a profoundly negative effect on the Internet.” (H. Res. 12)

Two bills promote broadband access to the Internet for citizens. The Broadband Deployment Act of 2001, introduced by Sen. John Kerry (D-Mass.), amends the Internal Revenue Code of 1986 to provide an incentive to ensure that all Americans gain timely and equitable access to the Internet over current and future generations of broadband capability. “Too often we talk about a digital divide in the United States as if it were unchangeable, a simple fact of life that some communities will be empowered by technology while others will be left behind,” Kerry said. “This is a false choice — and we ought to be doing everything in our power as policy makers, working harmoniously with industry, to offer a new choice.” (S. 150)

The Broadband Internet Access Act of 2001, introduced in both houses of Congress a week after the Kerry bill, also provides a tax incentive by creating a “broadband credit” to anyone who invests in bringing broadband access to consumers in rural and under-served parts of the country. “Today, most residential Internet users, especially those located in low income and rural areas, are extremely limited in the type of information they can send and receive over the Internet because their means of access is limited to ‘narrowband’ communications media, typically conventional phone lines at a maximum speed of 56,000 bits per second,” the bill notes in its findings. (S. 88, H.R. 267)

Freedom of Expression

Both sides of Congress have introduced a proposed constitutional amendment that will prohibit the physical desecration of the United States flag. The Senate version was introduced by Sens. Orrin Hatch (R-Utah) and Max Cleland (D-Ga.); the House version was introduced by Reps. Randy Cunningham (R-Calif.) and John Murtha (D-Pa.). As a constitutional amendment, it need not be signed by the President, but it must pass both houses of Congress by a 2/3 vote and be ratified by 3/4 of the states. The bill is expected to be pushed this summer as the Fourth of July approaches. (S.J. Res. 7, H.J. Res. 36)

Rep. Jo Ann Emerson (R-Mo.) introduced a proposed constitutional amendment that permits voluntary prayer in public schools: “Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer. Neither the United States nor any State shall prescribe the content of any such prayer.” (H.R. 69)

A similar measure was introduced by Sen. Strom Thurmond (R-S.C.). (S.J. Res. 1)