IP: RE: "Joe Sims" ICANN replies to Politech post about House bill and .kids

[David Farber <dave () farber net>]

> From: "Eric C. Grimm" <ericgrimm () mediaone net>
> To: <farber () cis upenn edu>
>
>
> Dave, based on experience and recent history, I must respectfully disagree
> with Joe Sims.
>
> At least in high school Civics classes -- and even some law schools --
> Congress is not infrequently portrayed as a highly deliberative place where
> Bills must survive great scrutiny in order to pass.  So it is hardly
> surprising that Joe Sims might fall into the trap of anticipating that wiser
> heads will prevail before there is any risk that the ".kids" Bill will
> become law.
>
> However, it does not take too much investigation into Congress's deplorable
> track record of passing dreadfully unwise Internet-related legislation to
> realize that Joe (and the rest of us) perhaps have more to fear than Joe
> anticipates.
>
> In particular, the mechanism of choice for Really Bad Bills to find
> themselves suddenly passed by Congress and signed into law while nobody is
> looking appears to involve tacking them onto the annual last-minute
> end-of-session Pay-for-the-Whole-Government-to-Keep-Working Appropriations
> Act.
>
> This is how the Childrens' Internet Protection Act (the mandate for
> libraries and schools receiving Federal $$ to install censorship software)
> became law last year: As part of H.R. 4577 -- the Consolidated
> Appropriations Act of 2000 (incorporating CHIPA, HR5666, by reference).
> Never mind that there exists no software on the market today capable of
> meeting the statutory standards.  And never mind that any government entity
> (any library or school) making a statutory "certification" in order to
> secure the carrot of federal dollars may therefore (unless it demands the
> proper legal assurances in its software licensing agreements) be setting
> itself up for treble-damages liability under 31 USC 3729-33 for making a
> false statement to the government in order to receive payment.  A few
> die-hard Members of Congress who seem to think censorship software is a good
> thing slipped it into the Appropriations Act and left it to the rest of us
> to sort the consequences.
>
> Likewise, with the 2000 election cycle approaching rapidly (and a lot of
> money at stake for such sponsors as Spencer Abraham, Jim Rogan, John McCain
> and Orrin Hatch), the so-called Anticybersquatting Consumer Protection Act
> of 1999 (I have yet to meet any "consumer" who has ever been "protected" by
> this legislation; but I hear not infrequently from many who have been badly
> bludgeoned in and out of court by large entities using this legislation to
> suppress free speech) literally rocketed to passage -- especially once it
> hit the House of Representatives.
>
> Spencer Abraham introduced the ACPA in the Senate in late June, 1999, about
> two weeks after Greg Phillips (a lawyer in Utah -- Orrin Hatch's home state)
> lost the Porsche case.  Only one hearing was ever held -- and the only
> people testifying were Greg Phillips (imagine that!), Anne Chasser, the
> President of the Interneational Trademark Association, and a representative
> of a firm called Cyveillance, Inc.  The ACPA cleared the Senate in August,
> after Patrick Leahy did his best to make it a LITTLE less draconian (like
> taking out the part about jail time).
>
> Once the action started in the house, things REALLY heated up.  Despite a
> letter from the Association for Computing Machinery Internet Governance
> Committee (Dave, I note you were one of those signing the letter,
> http://www.acm.org/usacm/trademark.html), and many other efforts to get
> SOMEBODY in the House to hold hearings, the legislation passed the House and
> was signed into law without any hearings at all between the time of its
> referral to committee (October 6, 1999), and its eventual adoption by the
> House on October 26, 1999.
>
> The legislation also sailed through conference without significant changes.
> On November 9, 1999 (less than two weeks after the House voted on it), the
> ACPA suddenly emerged from conference -- tacked onto the enormously popular
> satellite television bill, in order to help make passage easier.  (See H.
> Conf. Rep. 106-464).  Then, when it looked like the Satellite Bill would
> fail to pass in the Senate, the whole kit 'n kaboodle -- on November 19,
> 1999 -- was tacked onto the Omnibus Appropriations Act of 1999 (H.R. 3194).
>
> This surreptitious insertion into the Appropriations Act was done at
> approxomately 3:06 in the morning, on the day that HR3194 was up for a final
> vote in the House.  One hour was allotted to EACH side on the ENTIRE
> Appropriations bill.
>
> So . . . should it come as a surprise that those of us who have watched
> Members of Congress for years hypocritically rise to sing the praises of the
> Internet and preach sermons about keeping government regulation of the
> Internet at bay, while simultaneously (in some smoke-filled conference)
> trying their darnedest to slip the most draconian and Internet-harmful
> legislation they can dream up into the Appropriations Act year after year,
> might be inclined to express concern about the possibility that Congress
> might try to do it again with this bill?
>
> Eric C. Grimm
> CyberBrief, PLC
> 320 South Main Street
> Ann Arbor, MI  48107-7341
> 734.332.4900
> fax 743.332.4901



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