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 Act 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 1. OPPOSITION MOUNTS TO "LEAK STATUTE" IN FY 2001 INTELLIGENCE AUTHORIZATION ACT 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." 2. APPROPRIATIONS UPDATE: GRIDLOCK - CONGRESS FAILS TO FINISH BUDGETS 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. 3. NEW DIGITAL COPYRIGHT RULING - BAD NEWS FOR THE HISTORY/LIBRARY COMMUNITY 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 provisions. 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: <http://www.loc.gov/copyright/fedreg/65fr64555.html> 4. NATIONAL RECORDING PRESERVATION ACT PASSES SENATE: On October 25 the 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. 5. PRESIDENT SIGNS NHPRC REAUTHORIZATION BILL 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. 6. PRESIDENT SIGNS VETERANS ORAL HISTORY PROJECT ACT 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. 7. FREEDMAN'S BUREAU RECORDS PRESERVATION ACT CLEARED FOR PRESIDENT 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. 8. NEWS BITS AND BYTES Item #1: NAZI WAR RECORDS: 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. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * NCC invites you to redistribute the NCC Washington Updates. A complete backfile of these reports is maintained by H-Net at <http://www.h-net.msu.edu/~ncc> To subscribe to the "NCC Washington Update," send an e-mail message to [log in to unmask] according to the following model: SUBSCRIBE H-NCC firstname lastname, institution.