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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