Key Lawmaker Floats DMCA Expansion

This post is related to another I posted today about a conference on the Digital Millennium Copyright Act (DMCA). I intended to cover both in one post, but there was too much ground to cover so I broke it into two.

Congressman Lamar Alexander (R-TX), Chairman of the powerful Courts, the Internet, and Intellectual Property Subcommittee (which has jurisdiction over the DMCA), recently floated the Intellectual Property Protection Act (IPPA). The draft proposal has a broad reach across copyright enforcement, and it specifically reopens part of DMCA to arguably make it more stringent. The full text of the proposal is here, and here is a “redline” (which shows how the proposal would change underlying law) of just the language that amends the DMCA.

The DMCA makes it illegal to circumvent a technical protection measure that controls access to a copyrighted work. It also makes it illegal to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” a tool that could be used to circumvent access controls. The proposed amendment would just deal with the “tools” section of the DMCA by creating a definition for the currently undefined “traffic in:”

“[T]he term “traffic in” means to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of.”

There are a couple of troubling aspects. The first being that defining “traffic in” in this way seems to shift the focus of mass distribution of a tool to one-to-one distribution. The other being the use of the word “intent.” Here is Ed Felten’s take from freedom-to-tinker.com:

“This bill, if passed, would probably increase the DMCA’s chilling effect on research. Currently, a researcher can steer clear of the trafficking provision by keeping any circumvention devices to himself, using those devices himself (lawfully) in the lab. If the Smith bill passes, the researcher would have to worry that a plaintiff or prosecutor will misjudge his intent and bring a case, and that a judge or jury might be convinced that the researcher was eventually planning to distribute the device. Even if the claim of bad intent is baseless, refuting it will be slow, painful, and expensive.”

The usage of intent seems to reopen a similar worry that many technologists had about the “Induce Act,” where individuals could face litigation based on the intent of their design. Making this determination is particularly tricky and fact intensive, meaning costly legal bills.

Apparently the IPPA was drafted by the Justice Department as a wish list of the enforcement authorities it wants to deal with copyright infringement. Congressman Smith is floating this bill in draft form right now, but at yesterday’s DMCA conference he mentioned he will be holding a hearing on it in May. Looking for a silver lining, this may open up debate on DMCA generally, giving technologists an opportunity to educate Members of Congress on its drawbacks.

Computing Community Expresses Concern Over House Budget

With the House of Representatives poised to pass its version of the budget for next fiscal year, USACM joined the computing research community and several IT companies expressing our concern that it does not reflect full funding for the President’s American Competitiveness Initiative (ACI). As readers may remember the ACI provides about a nine percent increase in funding for basic research at the National Science Foundation, the Department of Energy Office of Science, and the core labs at the National Institute of Standards and Technology. The President’s goal is to double funding for those agencies over the next ten years.

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USACM Calls On Congress to Protect Patients Privacy Rights

Last week, USACM joined a diverse collection of consumer, privacy, technology, and other groups calling on Congress to ensure that patient privacy rights are part of any federal health information technology legislation. Policy issues associated with health information technology usage are clearly a growing area of interest for policy makers with initatives from both President Bush and Congress.

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Computerworld: Cali. Registration Database Rejecting Voters

Friday’s Computerworld has an interesting article about problems with the new California statewide voter registration database. According to the report, in the past three months about 43 percent of voter registration forms in Los Angeles County were rejected. Alademda County’s rejection rate was about 10 percent. Although the article is a little vague, the likely cause is data entry errors that cause conflicts when the voter database is compared against the motor vehicle database.

This cross-checking is a new requirement under the Help America Vote Act (HAVA). HAVA requires that states authenticate each potential voter by cross-checking with other state databases. If a potential voter does not have a state driver’s license, then the last four digits of the voter’s Social Security number must be used for authentication.

We recently issued a report USACM commissioned looking at statewide voter registration databases, and the cross-checking of databases was one of the key issues the study committee identified (page 23). Because data entry errors are a significant problem and databases (voter or motor vehicle) can be inaccurate, the study committee recommended that:

  • When other databases, such as driver registration databases, are used to check for eligibility, those databases should be used for screening and not to automatically enroll or de-enroll voters.

  • An automated check can be used to flag some voters for further scrutiny, but the final determination of eligibility should be performed only by an appropriate election official.

Apparently under the California system, any errors are kicked out for manual checking. While the Computerworld article notes criticism of the rigid cross-checking protocol, what is encouraging is that they are manually checking these errors instead of automatically dumping these potential voters. However, the article also points out the problem the timing when dealing with these errors:

“My main concern is there could be 20,000 to 30,000 new registration cards delivered to Alameda County at the registration deadline,” Ginnold said. The deadline for the state election is May 22.

The registration information takes a week to process into the Alameda database before it is sent to the state database for matching, which can take up to five days, Ginnold said. “We would get the kick-outs only a few days before the election — which won’t allow enough time to manually validate them,” she said.

Closing voter registration well before an election, or adding additional staff to deal with the manual checking may be the only ways to ensure that voters aren’t disenfranchised.

ACM Washington Update, Vol. 10.3 (April 4, 2006)

April’s newsletter didn’t get posted to the web, sorry for the delay.

CONTENTS

[1] Newsletter Highlights
[2] USACM Adds a Balanced Voice to the Copyright Wars
[3] Mixed Bag Data Security Legislation Inches Forward, USACM Comments on Proposal
[4] Proponents of “Net Neutrality” Express Concern Over New Legislation
[5] Senate Increases Funding for Basic Research, House Less Receptive
[6] Maryland House Passes Legislation Mandating Paper Trails for E-Voting Systems
[7] Upcoming Events
[8] About USACM
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