NCC WASHINGTON UPDATE, Vol. 6, #38, November 2, 2000
by Bruce Craig <[log in to unmask]> of the National Coordinating Committee for
the Promotion of History

1.  Opposition Mounts to "Leak Statute" in FY 2001 Intelligence Authorization
2.  Appropriation Update: Gridlock - Congress Fails to Finish Budgets
3.  New Digital Copyright Ruling - Bad News for the History/Library Community
4.  National Recording Preservation Act Passes Senate
5.  President Signs NHPRC Reauthorization
6.  President Signs Veterans Oral History Project Act
7   Freedman's Bureau Records Preservation Act Cleared for President.
8.  News Bits and Bytes: Nazi Criminal Records Legislation

Throughout the country opposition is growing in both the liberal and
conservative press to legislation that would make it a felony to disclose any
information that the Executive branch has concluded is classified, or
"classifiable"- even if it is not properly marked.  In a recent editorial,
the  New York Times urged that, "As President, Mr. Clinton has an obligation
to consider the national interest when he weighs legislation of this
kind....He should veto this undemocratic bill."

On October 12, without benefit of any Congressional hearings, the so-called
Leak Statute -  "Prohibition of Unauthorized Disclosure of Classified
Information," Section 304 of  the Intelligence Authorization Act for FY 2001
(H.R. 4392), was passed by Congress by voice vote.  According to civil
libertarians, historians, and journalists who have been tracking this
legislation, the proposed new law would be equivalent to an "Official Secrets
Act."  It would severely restrict free speech, undercut the already tenuous
rights of federal government whistle-blowers who put their jobs on the line
when they disclose wrongdoing, and would "shield corruption and government
abuse of power behind a wall of secrecy."  Opponents also believe enactment
of the legislation would exacerbate the tendency to criminalize public-policy
differences and would encourage over-classification. Undoubtedly, had this
legislation had been in place years ago, the public would never had seen or
even known about the Pentagon Papers or the status of arms control
negotiations between the US and Russia in 1996.

Two efforts are currently underway to defeat this controversial measure:
First there is an attempt to pass a rider associated with another
appropriations bill that would delay implementation of Section 304 for a year
in order to give Congress sufficient time to conduct public hearings on the
measure.  To this end, the National Coordinating Committee has signed-on to a
letter to the White House requesting that President Clinton take action to
delay implementation of this provision.  A second approach (embraced by
several members of Congress) calls on the President to outright veto the
authorization act.  Most Hill watchers consider it unlikely that Clinton
would veto the measure though the White House is "reviewing the bill."

It is now days before the election and the Republican-controlled Congress and
the Clinton White House continue to battle over spending priorities. Only
seven of thirteen spending bills have been signed into law. The huge $113
billion Labor, Health and Human Services, and Education bill- the last of
thirteen appropriation bills to be considered by Congress -  remains stalled
over disagreements on spending priorities.  In order to deal with the massive
bill and several other spending measures, a post-election "lame duck" session
seems likely. After the election there will probably be a less politically
charged atmosphere, thus enabling Congress to finish action on the budget.

There is some good news, however.  A deal on certain aspects of the
Department of Education budget appears to have been negotiated. Early in the
morning of October 30, agreement was reached on the $43 billion education
portion of the Labor, H&HS, and Education bill.  Under the compromise,
federal education spending would increase 16 percent with the GOP agreeing to
Clinton's demands for increases in Pell grants, money for after-school
programs, $1.7 billion for new teacher hiring, and a $1.3 billion earmark for
school repair funds.  The deal between Congress and the White House was
sealed at 1:00 am with glasses of merlot, but it quickly unraveled when
Republicans added a provision in the Labor portion of the bill that sided
with business interests with respect to workplace repetitive-stress injuries.
Clinton responded by vetoing the $33 billion measure that would have funded
the Legislative branch (including the Library of Congress) and the Treasury
Department (including the National Archives). In his veto message Clinton
stated, "I cannot in good conscience sign a bill that funds the operation of
Congress and the White House before funding our classrooms, fixing our
schools and protecting our workers."  In all likelihood, the vetoed
appropriations bills will be resubmitted to the President for signature
without amendment.

In a recent ruling, Librarian of Congress James Billington granted only two
exceptions in the fair use proceeding involving the 1201 anticircumvention
provision of the Digital Millennium Copyright Act (DMCA; P.L.105-304).  In
1998, with the enactment of the DMCA, a new title was added to Section 17 of
the United States Code which among other things provides that "no person
shall circumvent a technology measure that effectively controls access to a
work protected under this title." The Librarian's ruling grants only two
exceptions to this general rule.

According to the ruling published in the October 27, 2000 issue of the
Federal Register (Volume 65, number 209, "Rules and Regulations," pp.
64555-64574) exemptions are to be provided only for "literary works,
including computer programs and databases" that are protected by control
mechanisms that fail to permit access because of  "malfunction, damage or
obsoleteness" and compilations "blocked by filtering software applications."
In layperson terms, this ruling makes it illegal to open any digital lock
without the specific authority to do so. While historians and researchers can
easily browse the stacks of a reference library freely and open the binding
of virtually any book, this law makes it illegal to browse certain electronic
documents, hence, making it virtually impossible to make fair use of them.
Scholars had hoped for a broader interpretation of the exceptions - language
that would have enabled them to freely download portions of literary,
musical, and video materials and access them through established fair use

The Library community, educators, and several historical groups are on record
in support of the principle that "fair use" must continue with respect to
digital documents. With this ruling users of digital information will have
fewer rights and opportunities than users of print information. According to
Nancy Kranich, President of the American Library Association, "The Copyright
Office has issued a misguided ruling taking away from students, researchers,
teachers and librarians the long-standing basic right of "fair use" to our
Nation's digital resources." The scholarly community is expected to regroup
in the coming months and launch either a circumvention ban by bringing action
in federal court or press Congress to amend the DMCA. For a copy of the
ruling see: <>

Senate passed the an amended version of the National Recording Preservation
Act of 2000 (H.R. 4846) - introduced on July 13, 2000 by Representative
William M. Thomas (R-CA), the Chairman of the House Administration Committee.
 The House, which passed the measure on July 25, must first agree to the
Senate's technical amendments before the legislation may be advanced to the
White House for the President's signature. The amendments added to the
legislation by the Senate are largely technical corrections to the House
passed bill.

The legislation has several major provisions: It directs the Librarian of
Congress to establish the National Recording Registry for the purpose of
maintaining and preserving sound recordings that are "culturally,
historically, or aesthetically significant"; it also establishes a National
Sound Recording Preservation Program within the Library of Congress and
creates a National Recording Preservation Board - an appointed body charged
to review and recommend the nominations for the National Recording Registry.
Finally, the bill authorizes the establishment of a National Recording
Preservation Foundation - a federally chartered, nonprofit-charitable
corporation charged to raise funds for preservation and public access to the
nation's sound recording heritage.

On November 1 President Clinton signed legislation (no Public Law number at
this writing) to reauthorize the National Historical Publications and Records
Commission (NHPRC) for the fiscal years 2002 through 2005 with an annual
federal appropriations ceiling of $10 million. While the bill (H.R. 4110)
passed the House of Representatives on July 24, because the NHPRC still had a
year to run in its current authorization cycle, the Senate committee of
jurisdiction was reluctant to push for enactment this year. Thanks in large
part to your letters, e-MAIL communications, and phone calls to Senator Fred
Thompson (R-TN) and other members of Congress (see "Action Item" in NCC
WASHINGTON UPDATE, Vol. 6, #25, July 27, 2000), the Senate Committee on
Governmental Affairs passed H.R. 4110 on October 3; the full Senate passed
the measure on October 19.

On October 27, 2000, President Clinton signed into law the Veterans Oral
History Project Act (P.L.106-380). The legislation directs the American
Folklife Center at the Library of Congress to establish a program to collect
video and audio recordings of personal histories and testimonials of American
war veterans.  With the support of 235 plus co-sponsors, the House of
Representatives easily passed legislation on October 4; the Senate acted
favorably on the measure on October 17.

Introduced by Representative Ron Kind (D-WI), the Veterans Oral History
Project Act (H.R. 5212) creates a new federally sponsored and funded program
to coordinate at a national level the collection of personal histories of war
veterans and to encourage local efforts to preserve their memories. The
legislation authorizes the Director of the Folklife Center to enter into
agreements and partnerships with other "government and private entities and
may otherwise consult with interested persons" in carrying out the provisions
of the act. A total of $250,000 for FY 2001 is authorized to be appropriated
for this project.

On October 28, legislation was advanced to the White House that would
authorize the expenditure of $3 million in fiscal years 2001 through 2005 to
safeguard the records of the Freedman's Bureau - a federal agency that from
1865 to 1872 attempted to help better the lives of former slaves after the
American Civil War.  The records of the Bureau document one of the greatest
social undertakings in this country's history.

The legislation requires that the National Archives take action to preserve
the Bureau records through microfilming and through establishing partnerships
with educational institutions including Howard University in Washington D.C.
and the University of Florida.  The partners are to assist NARA in making the
records "more easily accessible to the public, including historians,
genealogists and students."  The House of Representatives passed the
legislation (H.R. 5157) on October 19 and the Senate acted favorably on the
measure on October 26.

On October 10, 2000, Representative Carolyn B. Maloney (D-NY) introduced
legislation (H.R. 5432) to amend the Nazi War Crimes Disclosure Act to extend
and modify the functions of the Nazi War Criminal Records interagency Working
Group to cover records of the Japanese Imperial government. The bill was
referred to the House Government Reform Committee; no Congressional action is
expected on this bill until the next Congress.

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