Stalled Internet-Related Bills May Sneak in Through Appropriations

Appropriations or omnibus bills are likely vehicles for such legislation, a “doomsday” scenario that’s been realized with one bill, staff counsel Nancy Libin said in a briefing with reporters. Lawmakers sympathetic to CDT’s concerns need “vigilant staff” to sniff out wide-ranging provisions inserted into unrelated, must-pass bills, she said.

President Bush has said a bill authorizing his warrantless electronic surveillance program is his highest priority in the lame duck, Libin said. A new surveillance bill from Senate Judiciary Chmn. Specter (R-Pa.), who has introduced multiple bills with varying reactions from privacy hawks, moves closer to a bill he co-sponsored months ago with Sen. Feinstein (D-Cal.), and in some ways “placates” Bush skeptics, she said. But CDT worries because a House-passed bill -- sponsored by returning Rep. Wilson (R-N.M.) and giving broader powers to the White House over the program -- would have to be reconciled with the new Specter bill.

Alternatively, if the House attaches the Wilson bill to a must-pass measure, the Senate either goes along or shuts down the govt. -- an unappealing choice, Libin said. The good news is that Democrats next year will certainly conduct a “thorough inquiry” on the surveillance program and flaws seen in the Foreign Intelligence Surveillance Act, to determine whether legislative changes are necessary, as the President claims, she said. Another worry: If the Wilson bill fails, its provision granting immunity to telecom companies that assisted the NSA in the program may pop out and into another must-pass bill, she said.

If Web labeling remains part of the State-Commerce- Justice appropriations bill (WID Aug 4 p3), CDT will challenge it in court “quite immediately,” CDT Exec. Dir. Leslie Harris said. CDT said it may be “the most imminently dangerous” Internet bill in lame duck. The provision hasn’t had a hearing and would be removed from a point-of-order floor objection if it’s included in appropriations, she added. It would require website operators -- on penalty of up to 5 years in prison -- to label sites that carry “sexually explicit” content. That term’s definition in the provision is broad enough to cover simple nudity and displays of fully clothed “lascivious” behavior, endangering a “vast array” of commercial and noncommercial sites that take a narrower view of prurient material, staff counsel John Morris said. CDT is already challenging a similar Utah statute, which has become the subject of a court injunction until legislators can draft and approve amendments to minimize its impact on adults’ access to lawful content and ISPs’ burden in filtering out flagged sites (WID Aug 30 p5).

DoJ appears to have limited the scope of its data- retention proposal to “quell some of the concerns” raised by privacy hawks, Libin said. The agency has said it would use ISP subscriber information such as IP addresses for terrorism and child porn investigations, but recently has said it would limit that information to child porn cases, she said. A DoJ spokeswoman told us the agency has never taken a position on data-retention specifics, referring us to Attorney General Alberto Gonzales’s statements in support of retention generally (WID Sept 20 p1). People ordinarily skeptical of such intrusive mandates have “visceral responses” when child porn is put front and center as the rationale, but in practice it would be “next to impossible” to limit that information to child porn investigations, and not, say, intellectual property criminal investigations, Libin said.

It looks like the most-watched retention proposal may miss lame-duck action, though. A spokesman for Rep. DeGette (D-Colo.), who has said for months she will introduce a bill requiring one-year retention (WID Sept 22 p1), told us Congress is “absolutely too busy” to take up her nascent bill this year. “We'll be in the driver’s seat in a month and a half, and at that point we'll definitely” introduce the bill, he said. Libin said in the briefing she’s meeting with DeGette’s staff this week.

Outgoing Senate Majority Leader Frist (R-Tenn.) is considered “very sympathetic” to the audio flag proposal in the Senate telecom bill, given his representation of Nashville, staff counsel David Sohn said. It’s therefore a candidate for inclusion in appropriations or omnibus bills, if the telecom bill dies this year. The RIAA’s “interesting questions” about satellite radio devices’ recording functionality, and whether it involves iTunes-like downloads in addition to radio performances, are a matter for music licensing legislation, like Senate IP Chmn. Hatch’s (R-Utah) Copyright Modernization Act, not telecom, he said. The broadcast flag provision in the telecom bill has more “procedural history,” with the FCC crafting rules since struck down, and the Commerce Committee took steps to limit the bill’s application to public affairs and news programming for the consideration of video bloggers and others reusing broadcasts, a “good first step,” he said. It’s possible a “much briefer version” simply authorizing the FCC to make rules could pass.

The fate of the House-passed Deleting Online Predators Act (DOPA) is uncertain, because its sponsor, Rep. Ferguson (R-Pa.), lost reelection, Morris said. CDT hasn’t heard any “specific suggestion” it’s being championed in the Senate, but its low profile suggests it could slip through unnoticed in a larger bill, Harris said: “These things are not on [Hill staff’s] radar screen.” The bill would require libraries to block “commercial” social networking and chat sites -- again loosely defined -- from children, with narrow exceptions (WID July 28 p6).

The FTC’s enforcement of its $3 million settlement with Zango will be the “real test” of the settlement’s precedent, said CDT Assoc. Dir. Ari Schwartz. The settlement provisions are great, and FTC Comr. Jon Leibowitz’s recent promise to send letters to Zango advertisers, warning them of the settlement (WID Nov 7 p1), was a “major step forward,” he said. But Zango has “pushed the edges of compliance” with the law throughout its history, and is doing the same with the settlement, Schwartz said. The filing includes examples of pop-up ads that don’t identify the program causing them -- Zango -- or provide a link to a page offering uninstallation and complaint procedures, violations of the order. One ad was served a week after the settlement, and the other 2 in Sept.; Zango has said it has been largely in compliance with settlement terms since Jan. CDT has documentation of 36 other violations Sept.-Oct.; up to 10% of served ads lacked required notice, the filing said.